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No. 07-1941
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cv-00006-F)
Argued:
Decided:
ARGUED: John Crudup Rogers, III, ALLEN, MOORE & ROGERS, L.L.P.,
Raleigh, North Carolina, for Appellant.
David A. Jones, AKIN,
GUMP, STRAUSS, HAUER & FELD, San Antonio, Texas, for Appellees.
ON BRIEF: Josiah Stockton Murray, III, HEDRICK, MURRAY, BRYSON,
KENNETT, MAUCH & ROGERS, P.L.L.C., Durham, North Carolina, for
Appellant. Reid L. Phillips, BROOKS, PIERCE, MCLENDON, HUMPHREY
& LEONARD, L.L.P., Greensboro, North Carolina; Nada L. Ismail,
AKIN, GUMP, STRAUSS, HAUER & FELD, San Antonio, Texas, for
Appellees.
Company
Automobile
(USAA
Association
General),
and
United
(USAA)
(collectively,
Services
the
Defendants). 1
USAA General.
to members of the armed services and their families and use the
same form policies.
in
North
According
treatment
Carolina,
to
on
Haney,
North
including
the
Haney,
Defendants
Carolinas
unique
beginning
blamed
in
this
procedures
2002.
disparate
for
setting
USAA
filed
motion
for
class
certification
and
the
for
determined
summary
that
judgment.
Haney
lacked
The
district
standing
to
sue
court
USAA
first
General
action
by
USAA
[General]
that
has
caused
him
injury.
that
he
had
pled
sufficient
allegations
to
establish
that
the
USAA
Board
of
Directors
made
the
actual
violation
of
North
Carolinas
Unfair
and
Deceptive
that
follow,
Trade
we
affirm
the
judgment
of
the
For the
district
court.
II.
Haney contends the district court erred in holding that he
lacked standing to sue USAA General.
particularized,
conjectural
or
and
(b)
actual
hypothetical
555,
Lujan
(1992)
imminent,
v.
Defenders
of
Whitmore
v.
504
U.S.
Arkansas,
495
U.S.
omitted).
155
(1990))
(quoting
not
Wildlife,
149,
560
or
(internal
citations
court.
(1976); see also Friends for Ferrell Parkway v. Stasko, 282 F.3d
315, 320 (4th Cir. 2002) (The traceability requirement ensures
that
it
is
likely
the
plaintiff's
injury
was
caused
by
the
withhold
policyholders
policyholder.
the
payment
that
causes
of
damage
dividends
to
him
to
as
USAA
General
USAA
Casualty
beginning
purposes.
point,
Haney
cannot
claim
standing
for
Rule
23
III.
We review the grant of summary judgment de novo.
Long v.
Dunlop Sports Group Ams., Inc., 506 F.3d 299, 301 (4th Cir.
2007)).
party
is
entitled
to
summary
judgment
if
the
show
that
there
is
no
genuine
issue
as
to
any
[T]he
pointing
out
to
the
district
court
that
there
is
an
Id.
at
not
325.
If
significantly
the
evidence
probative,
is
summary
merely
colorable,
judgment
may
be
or
is
granted.
A.
Under
North
Breach of Contract
Carolina
law,
an
insurance
policy
is
contract and its provisions govern the rights and duties of the
parties thereto.
and
rewriting
used.
the
enforce
insurance
contract
or
policies
disregarding
as
the
written,
express
without
language
Id.
of
contents
entitled
Your
Personal
Auto
Policy
Quick
unambiguous,
and
susceptible
of
only
one
reasonable
Pittsburgh,
472
F.3d
99,
11516
(4th
Cir.
2006)
(citing
As the
provisions
that
are
only
applicable
to
United
Services
11
grouped together. 7
Thus,
the
according
to
plain
language
of
the
reciprocal
avoid
this
result
Haney
makes
several
arguments
on
should
be
construed
against
the
Defendants,
that
their
dividends
violates
N.C.
Gen.
Stat.
58-8-25.
For
the
unambiguous,
and
reciprocal
provisions
are
plain,
ABT Bldg.
only
Association,
Company.
or
apply
USAA,
when
is
United
named
on
the
Services
Automobile
Declarations
as
the
12
be
manufactured
and
false
reading
to
Thus, it
consider
the
there
is
nothing
ambiguous
about
the
In
reciprocal
provisions.
With
no
ambiguity,
evidence
of
historical
practice
or
Carolina,
Having
determined
346
S.E.2d
that
the
515,
520
reciprocal
(N.C.
Ct.
App.
provisions,
1986).
including
Haney
avers
that
regardless
of
the
contractual
Ins. Co. v. Aetna Life and Cas. Co., 194 S.E.2d 834, 837 (N.C.
1973)).
Consequently,
Haney
Carolina,
such
Casualty,
payment
of
insurance
as
USAA
dividends
and
by
risks by states.
on
contends
the
may
basis
territorial
of
an
only
each
divisions
of
insurer
in
North
differentiate
general
the
the
kind
of
location
of
We do not
United
States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008) (Failure to
raise an argument before the district court typically results in
the waiver of that argument on appeal.); Holland v. Big River
Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999).
8
While the Defendants did reference N.C. Gen. Stat. 58-825, they did so only once in the course of a discovery dispute
over the admission of an affidavit from one of Haneys proposed
expert witnesses. That affidavit never mentioned in any way the
statutory argument Haney makes here for the first time on
appeal.
Haney obliquely mentions the statute in his response
seeking admission of the affidavit, but he can identify no
document in the record, and we find none, where he makes the
argument he now makes on appeal.
14
B.
Haney
actions
by
also
asserted
the
Carolinas UDTPA.
actions
Defendants
the
district
constituted
court
that
violations
various
of
North
constituted
Defendants
in
failure
violations
to
pay
of
auto
the
statute:
dividends
(1)
they
the
were
to
North
Carolina
policyholders
regarding
the
The district
court held that Haneys UDTPA claims lacked merit because he had
no contractual right to dividends and he failed to present any
evidence
showing
he
was
injured
by
the
allegedly
explained,
the
district
misleading
communications.
As
we
have
already
court
was
As to the
practices,
Haney
was
required
to
show
that:
(1)
[the
Dalton v.
Haney
did
trade
not
produce
evidence
that
any
unfair
or
deceptive
the
district
court
did
not
err
in
granting
summary
C.
Declaratory Judgment
the
district
authority
to
court
declare
withhold
the
Defendants:
dividends
from
(1)
North
had
no
Carolina
(2)
refusing
to
breached
pay
contractual
dividends,
(3)
and
were
fiduciary
obligated
to
duties
pay
by
auto
dividends for the years 2002, 2003, and 2004, with interest, and
16
(4)
were
prohibited
from
refusing
to
pay
dividends
to
North
Our
determination
that
Haney
is
not
contractually
IV.
For
all
the
foregoing
reasons,
we
affirm
the
district
17
Casualty
to
pay
Haney
dividends.
However,
when
USAA
fair
and
equitable
and
made
according
to
reasonable
on
any
policyholders
reasonable
and
thus
classification
violates
North
of
this
Carolina
category
law
and
of
the
I.
The majority avoids reaching the merits of Haneys argument
under North Carolina General Statutes Section 58-8-25 by finding
that the argument was waived.
18
Generally speaking, I am
argument
appeal.
But
into
I
the
find
heart
this
of
his
situation
theory
unique
of
in
liability
two
on
respects.
interest
in
protecting
parties
from
unfair
surprise.
Korangy v. U.S. Food and Drug Admin., 498 F.3d 272, 276 (4th
Cir. 2007) (internal quotation omitted).
cannot
plausibly
argue
that
they
19
were
surprised
by
actually
gives
them
discretion
to
pay
of
Mot.
to
Strike
Aff.
of
Thomas
different
(Defs. Mem. in
Keller
8.)
find
we
must
be
concerns at issue.
mindful
the
significant
In this
public
policy
provisions
insurance
applicable
policyholders
written.
policy
to
to
the
policies
same
extent
to
be
as
part
if
of
therein
20
citizens,
the
justifications
for
strictly
enforcing
circumstances,
and
given
that
Defendants
have
our
Under
been
on
II.
As Haney notes, an insurance company operating in North
Carolina
is
dividends,
permitted
but
only
to
by
discriminate
using
in
reasonable
the
payment
of
classifications
of
of
risks
by
Defendants
states.
have
argued
N.C.
Gen.
before
Stat.
this
58-8-25(a)
Court
that
the
On this record,
it appears that they have two possible ways for defining the
risk,
and
neither
would
constitute
reasonable
Defendants
could
--
as
they
seemed
to
in
oral
The
explanation
as
to
why
automobiles
and
drivers
in
North
in
the
other
forty-nine
states.
Without
such
exclude
North
Carolina
policyholders
from
the
payment
of
routinely
litigation)
Carolina]
between
Insurance
leads
to
insurers
protracted
such
Commissioner.
as
disputes
USAA
(Maj.
and
Op.
(and
often
the
[North
n.3.)
The
Couch
on
Insurance
101:3
(3d
ed.
2005).
In
the
in
charging
Carolinas
rates
Insurance
higher
than
Commissioner
those
should
approved
be
by
classified
North
as
III.
Because
find
that
Haneys
argument
regarding
North
23
courts
of
summary
judgment
24
on
Haneys
UDTPA