                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1788


AUDREY DIANNE KENNEY,

                Plaintiff – Appellant,

           v.

THE INDEPENDENT ORDER OF FORESTERS,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:12-cv-00123-GMG)


Argued:   December 11, 2013                 Decided:   March 10, 2014


Before AGEE, KEENAN, and FLOYD, Circuit Judges.


Reversed and remanded by published opinion.    Judge Floyd wrote
the opinion, in which Judge Agee and Judge Keenan joined.


ARGUED: Don C.A. Parker, SPILMAN, THOMAS & BATTLE, PLLC,
Charleston, West Virginia, for Appellant.       Robert Lawrence
Massie, NELSON MULLINS RILEY & SCARBOROUGH LLP, Huntington, West
Virginia, for Appellee.     ON BRIEF: Glen A. Murphy, SPILMAN,
THOMAS & BATTLE, PLLC, Charleston, West Virginia, for Appellant.
S. Taylor Hood, NELSON MULLINS RILEY & SCARBOROUGH LLP,
Huntington, West Virginia, for Appellee.
FLOYD, Circuit Judge:

     At least three times during the past two decades, federal

courts in our Circuit have called upon West Virginia’s highest

court to answer certified questions regarding the West Virginia

Unfair Trade Practices Act (WVUTPA).                  Each time, the Supreme

Court    of    Appeals     of   West   Virginia      determined    that    actions

pursuant      to   the   WVUTPA   sound   in   tort    and   not    in   contract.

Taylor v. Nationwide Mut. Ins. Co., 589 S.E.2d 55 (W. Va. 2003);

Wilt v. State Auto. Mut. Ins. Co., 506 S.E.2d 608 (W. Va. 1998);

Poling v. Motorists Mut. Ins. Co., 450 S.E.2d 635 (W. Va. 1994). 1

This Court, too, has decided a case under that same framework,

albeit in an unpublished opinion.              Yost v. Travelers Ins. Co.,

181 F.3d 95 (4th Cir. 1999) (unpublished table decision).                       In

view of the want of published authority from this Court and the

frequency with which the WVUTPA is litigated in federal court,

we take this opportunity to clarify the law for district courts,

unless and until the Supreme Court of Appeals of West Virginia

rules to the contrary.

     For the reasons that follow, we hold that actions brought

pursuant to the WVUTPA sound in tort and not in contract.                       We

further    hold     that   West   Virginia     law    governs     the    underlying

     1
       Each of the cited cases were before the Supreme Court of
Appeals of West Virginia on certification from the U.S. District
Court for the Northern District of West Virginia.



                                          2
lawsuit and that the complaint states a claim upon which relief

can be granted.           Accordingly, we reverse the district court’s

dismissal of the complaint and remand for further proceedings.



                                            I.

       Audrey     Kenney’s    husband,       Ronald     Kenney,       passed      away   on

September 19, 2011, leaving Mrs. Kenney as the sole beneficiary

of     a    life-insurance        policy     (the    “policy”)        issued      by     The

Independent Order of Foresters (IOF), a Canadian corporation.

At the time of Mr. Kenney’s passing in 2011, the Kenneys were

residents of West Virginia and had resided there since 2003.                             At

the time that IOF issued the policy to Mr. Kenney in 1984,

however, the Kenneys resided in Virginia.                     The policy contains a

choice-of-law provision that states as follows: “The rights or

obligations of the member or anyone rightfully claiming under

this certificate will be governed by the laws of the State in

which this certificate is delivered.”

       On September 21, 2011, Mrs. Kenney filed a claim with IOF

to   collect       the    policy    benefits,       which     she    believed      to    be

$130,000; IOF, however, responded that the policy was worth only

$80,000.         In fact, although the policy was worth only $80,000

when       Mr.   Kenney    took    out     the   policy       in    1984,   Mr.    Kenney

subsequently       applied    for    and     received     a    $50,000      increase     in

coverage in 1994.


                                             3
      When IOF refused to pay $130,000 to Mrs. Kenney, she filed

a   complaint     with    the     West    Virginia      Office       of    the    Insurance

Commissioner      (the    “Commissioner”)         on    November          1,   2011.       IOF

responded to Mrs. Kenney’s complaint on or around December 7,

2011, and maintained that the policy was worth only $80,000.

On June 27, 2012, the Commissioner scheduled an administrative

hearing to be held on August 1, 2012, regarding Mrs. Kenney’s

claim.     Then, on July 20, 2012—nearly ten months after Mrs.

Kenney    first       contacted    IOF    and    just       twelve    days       before    the

administrative hearing was scheduled to take place—IOF reversed

course    and   agreed     to     pay    $130,000    to      Mrs.    Kenney.        Without

further explanation, IOF provided the following reasoning for

the sudden departure from its prior position on Mrs. Kenney’s

claim: “There are some inconsistencies within the file that lead

us to the conclusion that Mr. Kenney would have assumed the face

amount    of    the    insurance     certificate        .    .   .   at    the    increased

coverage amount of $130,000.              Based on this information, we will

honour    the   death     claim    for    that    amount.” 2         In its        brief    on

appeal, IOF now reveals that Mr. Kenney allegedly “failed to

      2
       We quote from Mrs. Kenney’s opening brief and not the
original letter sent from IOF to Mrs. Kenney, as it appears that
the letter was not included in the Joint Appendix. In answering
Mrs. Kenney’s complaint—which recites an only slightly different
version of the IOF letter quoted above—IOF did not deny the
contents of the letter as set forth by Mrs. Kenney, but instead
stated that “the letter referenced speaks for itself.”



                                            4
sign and return the offer form before its expiration date,” and

thus the offer for the increase in coverage had lapsed.                           This

explanation, however, was never provided to Mrs. Kenney during

the nearly year-long period that she was denied the benefit of

the increased coverage.

     Mrs.   Kenney   sued      IOF   in       West   Virginia     state    court   on

September 19, 2012, pursuant to the WVUTPA.                  Specifically, Mrs.

Kenney   acknowledged     in   her   complaint        that   she    “substantially

prevailed   in   obtaining     the   coverage        to   which    she    was   always

lawfully entitled”; she alleged, however, that IOF’s “conduct

. . . in connection with its handling” of her claim constituted

an unlawful settlement practice prohibited by the WVUTPA.                         See,

e.g., W. Va. Code § 33-11-4(9)(f) (unlawful to “[n]ot attempt[]

in   good   faith    to    effectuate          prompt,     fair    and     equitable

settlements of claims in which liability has become reasonably

clear”).    IOF removed the case to the district court below and

thereafter moved to dismiss for failure to state a claim upon

which relief can be granted.              The district court granted IOF’s

motion to dismiss and Mrs. Kenney appealed. 3                      This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.



     3
       Prior to appealing, Mrs. Kenny moved pursuant to Federal
Rules of Civil Procedure 59 and 60 to, inter alia, correct
certain factual inaccuracies recited by the district court in
the memorandum opinion granting IOF’s motion to dismiss. These



                                          5
                                          II.

       This appeal presents three issues that we must address in

series.        First, whether Mrs. Kenney’s lawsuit pursuant to the

WVUTPA sounds in tort or in contract.                      In re Bankers Trust Co.,

752 F.2d 874, 881 (3d Cir. 1984) (“The initial step in any

choice    of    law    analysis    involves          the   characterization        of    the

subject matter of or the issues in the case (e.g., tort or

contract) and of the nature of each issue and whether it raises

a problem of procedural or substantive law.” (citing E. Scoles &

P. Hay, Conflict of Laws 50–51 (1984)).                          Second, whether West

Virginia law or Virginia law governs the outcome of the suit

pursuant       to   West     Virginia’s   choice-of-law                rules.   See     Acme

Circus Operating Co. v. Kuperstock, 711 F.2d 1538, 1540 (11th

Cir.   1983).          And    finally,    whether          the    complaint’s      factual

allegations sufficiently state a claim upon which relief can be

granted.        This    Court     reviews       de    novo       the    district   court’s

dismissal of a complaint for failure to state a claim pursuant




inaccuracies pertained primarily to the length of time that the
Kenneys resided in West Virginia prior to Mr. Kenney’s passing.
The district court granted Mrs. Kenney’s motion and subsequently
issued an amended memorandum opinion and order that dismissed
Mrs. Kenney’s complaint.   This amended memorandum and order is
the order on appeal, and it contains the same substantive legal
reasoning for dismissal as the district court’s first order
granting IOF’s motion to dismiss.



                                            6
to Federal Rule of Civil Procedure 12(b)(6).                 Ballard v. Bank of

Am., N.A., 734 F.3d 308, 310 (4th Cir. 2013).



                                         A.

      When hearing a case on appeal for which federal subject

matter jurisdiction was proper in the district court pursuant to

28 U.S.C. § 1332 (diversity jurisdiction), this Court applies

the   choice-of-law     rules    of    the    state   of    the    district      court

below, Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386

F.3d 581, 599–600 (4th Cir. 2004)—in this case, West Virginia.

The     proper   choice-of-law        analysis   in    West       Virginia    varies

depending on how a claim is characterized, e.g., as a tort claim

or as a contract claim.           Choice of law in contracts cases is

governed by the rule of lex loci contractus, see Johnson v.

Neal, 418 S.E.2d 349, 351–52 (W. Va. 1992), and choice of law in

torts    cases   is   generally   governed       by   the    rule    of    lex   loci

delicti, see Vest v. St. Albans Psychiatric Hosp., Inc., 387

SE.2d 282, 283 (W. Va. 1989).

      The district court did not take a position on whether Mrs.

Kenney’s WVUTPA claim sounds in tort or in contract because it

concluded that Virginia law applied in either case.                       Similarly,

IOF contends that characterization of the WVUTPA claim as either

a tort claim or a contract claim is “wholly irrelevant” because

“the result is the same under both analyses.”                      Because we are


                                         7
firm in our conviction that Mrs. Kenney’s WVUTPA claim sounds in

tort, as explained in detail below, it is unnecessary to conduct

a contracts analysis.               That being said, we are reluctant to

agree with IOF that the applicable law would be the same under

both    analyses      based    on   the    choice-of-law      provision   contained

within the policy.

       IOF    cites    to    several      nonbinding   federal    cases   that   are

split as to whether WVUTPA claims are properly characterized as

contract or tort claims.             See, e.g., Yost, 181 F.3d 95 (stating

that duties arising under the WVUTPA are “quasi-tort, extra-

contractual,”       but     applying      choice-of-law    analysis   for   a    tort

claim); Pen Coal Corp. v. William H. McGee & Co., 903 F. Supp.

980, 983 (S.D. W. Va. 1995) (characterizing bad-faith and WVUTPA

claims as “part-contract and part-tort,” but applying choice-of-

law analysis for a contract claim).                   Mrs. Kenney, on the other

hand, cites to West Virginia state cases for the proposition

that WVUTPA claims sound in tort.                See, e.g., Wilt, 506 S.E.2d

at 609 (characterizing a violation of the WVUTPA as “tortious

conduct” (quoting Poling, 450 S.E.2d at 638) (internal quotation

marks omitted)).            Although Mrs. Kenney’s WVUTPA claim would not

exist but-for the policy, her claim is not predicated on the

terms    of   the     policy    itself;     rather,    Mrs.   Kenney’s    complaint

makes clear that her cause of action stems from IOF’s allegedly




                                             8
bad-faith “handling” of her claim for proceeds on the policy.

This distinction is important.

      The Supreme Court of Appeals of West Virginia explained the

distinction noted above in Wilt.           There, injured plaintiffs sued

the defendant–insurer in federal court pursuant to the WVUTPA

for unfair settlement practices after they were involved in an

automobile accident.     Id. at 609.        The district court then asked

the Supreme Court of Appeals of West Virginia to determine the

proper   statute   of   limitations       applicable   to   the   plaintiffs’

claim—one year (for torts) or ten years (for written contracts).

Id.   In concluding that the plaintiffs’ WVUTPA claim sounded in

tort, the Wilt court contrasted the facts before it with the

facts of Plumley v. May, 434 S.E.2d 406 (W. Va. 1993):

           In Plumley, this Court held that a claim by
           an   insured    to    recover     underinsurance
           benefits from his/her insurance carrier is
           governed by the statute of limitations
           applicable   to   contract    actions.      That
           action, as opposed to the [Plaintiffs’]
           pending claim . . . , involved the direct
           attempt by an insured to recover policy
           benefits from the carrier with whom he/she
           entered into a contract for underinsurance.
           In contrast to the instant case that was
           brought   to   recover   damages    for   unfair
           settlement practices, Plumley was a direct
           suit against the insurer to obtain insurance
           benefits. Given this critical distinction,
           Plumley is clearly inapposite authority for
           Plaintiffs’     contention       that     unfair
           settlement claims are contractual in origin.




                                      9
Wilt,   506    S.E.2d      at   609    (emphasis    added)   (footnote       omitted)

(citation omitted).

      The Supreme Court of Appeals of West Virginia employed the

same reasoning used in Wilt in the analogous case of Hall v.

Nichols, 400 S.E.2d 901 (W. Va. 1990).                 In Hall, the appellants

sued their attorney for legal malpractice, and the trial court

dismissed     the    action     as    time-barred   based    on   the   statute   of

limitations applicable to torts, as opposed to contracts.                         Id.

at 902–03.          Despite recognizing that legal-malpractice claims

sound in both tort and contract, the appeals court affirmed the

lower court and also characterized the action as one in tort.

Specifically,        the    court     noted    that,   “[n]otwithstanding         the

inclusion of the term ‘contractual’ in the amended complaint,

the   essence       of   the    appellants’    cause   of    action     is   various

breaches of duties implied by law and not by contract.”                           Id.

at 904.       The Hall court employed (and quoted in its entirety)

the reasoning from Pancake House, Inc. v. Redmond, 716 P.2d 575

(Kan. 1986), which states:

              Where the act complained of is a breach of
              specific terms of the contract without any
              reference to the legal duties imposed by law
              upon the relationship created thereby, the
              action is contractual. Where the essential
              claim of the action is a breach of a duty
              imposed by law upon the relationship of
              attorney/client and not of the contract
              itself, the action is in tort.




                                          10
Id. at 578 (emphasis added); see Hall, 400 S.E.2d at 904 (“Only

when    the    breach     pertains      specifically      to    the    ‘terms          of   the

contract without any reference to the legal duties imposed by

law upon the [attorney/client] relationship . . .’ is the cause

of   action     contractual       in    nature.”    (alterations            in    original)

(quoting Redmond, 716 P.2d at 578)).

       Here, it is uncontested that Mrs. Kenney’s claim does not

directly involve the policy terms or benefits; as noted above,

Mrs. Kenney conceded in her complaint that she “substantially

prevailed      in   obtaining     the    coverage    to    which      she        was    always

lawfully       entitled.”        Rather,    like     in    Wilt       and    Hall,          Mrs.

Kenney’s lawsuit is based on IOF’s allegedly unlawful “conduct

. . . in connection with its handling” of her claim.                               In other

words, notwithstanding the repeated references to the policy (a

contract)      in   the   complaint,      the   “essential        claim”         underlying

Mrs. Kenney’s lawsuit is IOF’s allegedly tortious conduct.                                  See

Hall,    400    S.E.2d     at   904    (quoting     Redmond,      716       P.2d       at 578)

(internal quotation marks omitted).

       We can further reason that Mrs. Kenney’s action is one in

tort—as       opposed     to    contract—based      on    the     type       of        damages

available under the WVUTPA and the type of relief prayed for in

the complaint.          The Wilt court noted that a successful plaintiff

suing pursuant to the WVUTPA may recover attorney’s fees and

punitive damages and, “[because] punitive damages, as a rule,


                                           11
are   not   available       in   contract      cases,     the     damages    awarded     in

connection       with   a   violation     of      the    [WVUTPA]    are    clearly     not

typical     of   damages     awarded     in       contract      cases.”      506    S.E.2d

at 610 (citation omitted).             Here, Mrs. Kenney seeks, among other

relief,     punitive        damages     and       attorneys’        fees    and     costs.

Notably, however, she does not seek damages based on the terms

of the policy itself, but instead references the policy only

when describing the damages that she incurred “as a result of

[IOF]’s improper refusal to honor her claim.”

      For    the    foregoing        reasons,       we   hold    that     Mrs.    Kenney’s

WVUTPA claim sounds in tort and not in contract.                          We now proceed

to determine which state’s laws apply to the substantive tort

claim.



                                             B.

      The   district        court,    when     it    assumed     arguendo        that   Mrs.

Kenney’s claim sounds in tort, employed the Restatement (Second)

of Conflict of Laws (“Restatement”) choice-of-law approach and

concluded that Virginia law applies.                      The parties dispute this

result: Mrs. Kenney argues that the district court erred by not

using the lex loci delicti choice-of-law approach and that West

Virginia courts usually apply; IOF, on the other hand, contends

that the district court was correct in both its methodology and

conclusion.        Both parties are justified in their positions: as


                                             12
noted above, West Virginia traditionally applies the lex loci

delicti approach to torts, see Vest, 387 SE.2d at 283, but has

in   certain   circumstances         shown     a   willingness    to    apply     the

Restatement approach “to resolve particularly thorny conflicts

problems,” e.g., Oakes v. Oxygen Therapy Servs., 363 S.E.2d 130,

131–32 (W. Va. 1987).

       Regardless,   as     the   proper       choice-of-law     approach    is    an

issue of state law and, as we explain below, the outcome is the

same under either approach, this Court need not determine which

approach West Virginia courts would apply here.                    See Chawla v.

Transam. Occidental Life Ins. Co., 440 F.3d 639, 648 (4th Cir.

2006) (“[C]ourts should avoid deciding more than is necessary to

resolve a specific case.”).           Rather, we prefer to leave it up to

West   Virginia    courts    to     develop    West   Virginia’s      law   in   this

fact-intensive area.         For the reasons set forth below, we hold

that West Virginia law applies pursuant to the lex loci delicti

approach and the Restatement approach.



                                          1.

       Under the lex loci delicti choice-of-law approach, courts

apply the “law of the place of the wrong.”                     Although conduct

that causes harm can occur in one state and the resulting injury

to   a plaintiff     can    occur    in   another     state,   “the    substantive

rights between the parties are determined by the law of the


                                          13
place   of       injury.”      West    Virginia     ex    rel.   Chemtall       Inc.   v.

Madden, 607 S.E.2d 772, 779–80 (W. Va. 2004).

       Here,      IOF    asserts      that   the    effects      of    its    allegedly

unlawful conduct (and thus Mrs. Kenney’s injury) would have been

felt by Mrs. Kenney in Virginia, as the state where the policy

was issued and where Mr. Kenney applied for the $50,000 increase

in coverage.            This argument rings hollow.              The Kenneys moved

from    Virginia         to   West    Virginia     in     2003   and    lived     there

continuously until Mr. Kenney passed away in 2011.                       Mrs. Kenney

filed her claim on the policy with IOF from West Virginia and

remains      a    West    Virginia     resident.         Accordingly,        insofar   as

Mrs. Kenney’s cause of action stems from IOF’s handling of her

claim on the policy and she was a West Virginia resident at all

times during resolution of her claim—on September 21, 2011, when

she filed the claim with IOF; on November 1, 2011, when she

filed a complaint with the Commissioner; and on July 20, 2012,

when IOF agreed to pay to Mrs. Kenney the full $130,000—the

injury to Mrs. Kenney undoubtedly occurred in West Virginia, not

Virginia.         See Yost, 181 F.3d 95 (concluding that “the worry,

annoyance,        and    economic     hardship     of    the   delay    in    receiving

compensation” (i.e., the injury) in an unfair-settlement claim

is suffered in the state where the plaintiff resides).

       Accordingly, we hold that West Virginia law applies to Mrs.

Kenney’s claim pursuant to the lex loci delicti choice-of-law


                                             14
approach.    We turn now to the Restatement choice-of-law approach

that the district court employed.



                                      2.

     Section 145(1) of the Restatement provides as follows: “The

rights and liabilities of the parties with respect to an issue

in tort are determined by the local law of the state which, with

respect to that issue, has the most significant relationship to

the occurrence and the parties under the principles stated in

§ 6” (which we explain below).             Section 145(2) then lists four

contacts    to   consider     when   determining      the    most   significant

relationship: “(a) the place where the injury occurred; (b) the

place where the conduct causing the injury occurred; (c) the

domicil,    residence,   nationality,        place    of    incorporation   and

place of business of the parties; and (d) the place where the

relationship,     if   any,     between     the      parties   is    centered.”

Restatement (Second) of Conflict of Laws § 145(2) (1971).

     As determined above in our analysis of the lex loci delicti

approach, contact (a) points to West Virginia as the state where

the injury to Mrs. Kenney occurred.            As to contact (b), despite

IOF’s contention that “the alleged misrepresentations . . . took

place in Virginia,” the letter denying the full benefit of the




                                      15
policy to Mrs. Kenney was sent (presumably) from IOF’s Toronto,

Canada office. 4      As to contact (c), Mrs. Kenney is currently a

West Virginia resident and IOF is headquartered in Canada.                       As

to contact (d), even though the relationship between Mr. Kenney

and IOF began in Virginia when he first took the policy out in

1984 and later applied for the increase in coverage in 1994, the

relationship      between    Mrs.     Kenney—who    is    the    party   to     the

lawsuit—and IOF is centered in West Virginia, where Mrs. Kenney

sought to collect, and was denied, policy benefits.                      In sum,

none of the contacts point to Virginia, and three of the four

contacts point to West Virginia, with the fourth contact being

split between Canada and West Virginia (an outcome that we would

expect in a diversity suit).

     As stated in section 145(1), the section 145(2) contacts must

be   analyzed     against   several    factors    set    forth   in   section    6,

which,    inter    alia,    include:    “the     relevant    policies    of     the

forum”; “the relevant policies of other interested states and

      4
       As previously noted, the parties did not include in the
Joint Appendix copies of the letters from IOF to Mrs. Kenney
first asserting that the policy was worth only $80,000 and then
subsequently agreeing that Mrs. Kenney should receive $130,000.
See supra note 2. IOF concedes, however, that “[t]he adjusting
of Mrs. Kenney’s claim occurred mostly in [IOF’s] Toronto,
Canada office,” and there is nothing in the record to indicate
that IOF sent letters to Mrs. Kenney from Virginia or otherwise
resolved her claim on the policy from Virginia.    We also note
that neither of the parties has advocated for this Court to
apply Canadian law.



                                        16
the relative interests of those states in the determination of

the      particular         issue”;         “the          protection           of       justified

expectations”; and “the basic policies underlying the particular

field    of    law.”       See    Yost,     181      F.3d     95    (quoting          Restatement

(Second)      of     Conflict    of    Laws      § 6(2)(b)–(e)            (1971))       (internal

quotation marks omitted) (listing the foregoing factors as the

“meat of the Restatement test”).                          IOF argues that, based on

Oakes, the section 6 factors lead to applying Virginia law.                                     In

Oakes, the plaintiff, a West Virginia resident, worked for a

Maryland       company      pursuant        to       an    employment          contract       that

designated that Maryland law would govern.                               363 S.E.2d at 130–

31.     The plaintiff was injured on the job in Maryland, filed a

Maryland       worker’s     compensation             claim,        and    was       subsequently

fired.       Id. at 131.        The plaintiff then sued his former employer

in    West    Virginia      state      court      for     retaliatory           discharge      and

argued       that,    because     he    was      a    patient       at     a    West     Virginia

hospital when he received the news of his discharge, the tort of

retaliatory discharge occurred in West Virginia and therefore

West Virginia law should apply.                      See id.        The Supreme Court of

Appeals of West Virginia applied the Restatement choice-of-law

approach       and     determined       that         Maryland        law       applied.         In

considering          the   section      6     factors,        the        Oakes        court   paid

particular         attention      to    the      “the       protection           of     justified

expectations” factor:


                                               17
            The parties specifically agreed in their
            contract that the employment relationship
            would be governed by the laws of the State
            of Maryland.   It is mere happenstance that
            the [plaintiff] was in a West Virginia
            hospital when he received news of the
            termination of his employment. [Plaintiff]’s
            claim for “retaliatory discharge” arises
            from   his   filing   a   Maryland  workers’
            compensation claim and not a West Virginia
            workers’ compensation claim.

Id. at 132.      Importantly, the court subsequently stated that,

“Had [the plaintiff] filed a West Virginia workers’ compensation

claim,   the   criteri[on]     of    §   6[(2)](b),        namely,      the     relevant

policies of the forum, would have become operative.”                      Id.

      In contrast to the plaintiff in Oakes, who filed a claim in

the   nonforum    state,      Mrs.   Kenney      filed       a    claim       with    the

Commissioner     in    West    Virginia—not       an       analogous         entity   in

Virginia.      Thus,   the    relevant    policies      of       West   Virginia      are

operative, and its public policy should be “vindicated.”                              See

id.   It is well settled that West Virginia law, and the WVUTPA

specifically, allows plaintiffs to recover for unfair settlement

practices   independent       of   any   claim   on    a    policy      or    contract.

See, e.g., Taylor, 589 S.E.2d at 59–60 (citing Jenkins v. J.C.

Penney Cas. Ins. Co., 280 S.E.2d 252 (W. Va. 1981), overruled on

other grounds, State ex rel. State Farm Fire & Cas. Co. v.

Madden, 451 S.E.2d 721 (W. Va. 1994)) (insurance claims adjuster

with whom the plaintiff had no contract may be held personally

liable, independent from insurer, pursuant to the WVUTPA); Wilt,

                                         18
506 S.E.2d at 609 (analyzing plaintiffs’ WVUTPA claim against

insurer    where     personal-injury          award     had   already       been    paid

following injury).        By contrast, courts that have interpreted

Virginia’s analogous statute—Virginia Code section 38.2-209—have

declined to recognize a separate cause of action in tort for

bad-faith dealing over an insurance contract.                    See, e.g., A & E

Supply Co. v. Nationwide Mut. Fire Ins. Co., 798 F.2d 669, 676

(4th Cir. 1986); Adolf Jewelers, Inc. v. Jewelers Mut. Ins. Co.,

No. 3:08-CV-233, 2008 WL 2857191, at *5 (E.D. Va. July 21, 2008)

(citing U.S. Airways, Inc. v. Commonwealth Ins. Co., No. 03-587,

2004 WL 1094684, at *9 (Va. Cir. Ct. May 14, 2004)); see also

Taylor,    589   S.E.2d    at    60    n.10        (“Unlike   West    Virginia,     the

majority of states do not recognize a right to bring a private

cause of action under their unfair claim settlement practices

statutes.”).

      IOF argues that “[t]he mere fact that Virginia’s laws may

differ    slightly    from,     or    be    less    favorable   [to       Mrs.   Kenney]

than, West Virginia’s law does not support a refusal to apply

Virginia law in this case.”                 Aside from the fact that not a

single section 145(2) contact points to Virginia—thus rendering

the section 6 factor regarding “the relevant policies of other

interested states and the relative interests of those states in

the   determination       of    the        particular     issue”      a    nullity—the

difference between West Virginia’s law and Virginia’s law is


                                            19
substantial and a far cry from trivial: one state’s law allows

Mrs. Kenney’s cause of action to proceed and the other state’s

law does not.

      West Virginia courts “have long recognized that comity does

not require the application of the substantive law of a foreign

state    when   that   law    contravenes      the   public   policy      of   [West

Virginia].”       Paul v. Nat’l Life, 352 S.E.2d 550, 556 (W. Va.

1986) (reversing, on public policy grounds, the lower court’s

decision to apply Indiana’s law as the law of the place of

injury because it conflicted with West Virginia’s law pertaining

to the same subject matter); see Yost, 181 F.3d 95 (stating the

following   when    analyzing      the    basic    policies   in    the    relevant

field of law: “The purpose of laws like WVUTPA is to ensure fair

play by insurance companies. . . . [T]he character of such laws

is   protectionist.          In   other   words,     West   Virginia’s      law   is

designed as it is in order to protect the citizens of West

Virginia.” (citing Poling, 450 S.E.2d at 637)).                      Accordingly,

even assuming that the majority of the section 145(2) contacts

point to Virginia law—which, as analyzed above, they do not—West

Virginia’s favoritism toward laws that align with its own public

policy   trumps    any   comity     to    Virginia’s   law.        See    Paul,   352

S.E.2d at 556.

      For the reasons set forth above, we hold that West Virginia

law applies to Mrs. Kenney’s claim pursuant to the Restatement


                                          20
choice-of-law approach.               The district court therefore erred in

determining that Virginia law applies.



                                           C.

      Finally, we consider whether Mrs. Kenney’s complaint states

a   claim    upon    which      relief   can     be    granted   pursuant       to   West

Virginia law.        See Fed. R. Civ. P. 12(b)(6).               We note that IOF’s

motion to dismiss, its opposition to Mrs. Kenney’s motion for

reconsideration,          and   its    brief    on    appeal,    each    focus   nearly

exclusively on resolving the issue of which state’s law applies

and on arguing that Mrs. Kenney’s complaint failed to state a

claim pursuant to Virginia law.                 Indeed, IOF’s motion to dismiss

is captioned, “Defendant’s Motion to Dismiss Based on Virginia

Law.”    (Emphasis added.)            IOF never contends, however, that Mrs.

Kenney’s complaint would also fail to state a claim upon which

relief      can     be    granted      should        West    Virginia     law    apply;

consequently, IOF waived any such argument.                           See Mayfield v.

Nat’l Assoc. for Stock Car Auto Racing, Inc., 674 F.3d 369,

376-77 (4th Cir. 2012).

      Insofar as the Supreme Court of Appeals of West Virginia

has previously entertained questions regarding an action brought

pursuant     to     the     WVUTPA     against        an    insurer     subsequent     to

settlement, where the cause of action was limited to “unfair

settlement practices,” see Wilt, 506 S.E.2d at 609, we hold that


                                           21
Mrs.   Kenney’s     complaint   therefore    states   a    claim    upon   which

relief   can   be    granted    should     she   prevail    on     the   merits.

Accordingly, we reverse the district court’s dismissal of the

complaint.



                                    III.

       For the reasons set forth above, we reverse the district

court’s dismissal of Mrs. Kenney’s complaint and remand this

case for further proceedings.

                                                      REVERSED AND REMANDED




                                     22
