                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
AZOROH et al.,                 )
                               )
               Plaintiffs,     )
                               ) Civil Action No. 14-1695
          v.                   )
                               )
AUTOMOBILE INS. CO. of         )
HARTFORD, CT.,                 )
                               )
               Defendant.      )
______________________________)


                        MEMORANDUM AND ORDER

    I.   Introduction

    Christopher and Ngozi Azoroh (“Plaintiffs”) own a rental

property located at 133 Longfellow Street, N.W., Washington,

D.C. First Am. Compl. (“Am. Compl.”), ECF No. 13 ¶ 1. Plaintiffs

allege that their property was damaged by a windstorm in 2011.

Id. ¶ 15. The Automobile Insurance Company of Hartford

Connecticut (“Hartford” or “Defendant”) insured Plaintiffs’

property. Id. ¶ 8. 1 Hartford denied Plaintiffs’ claim in January

2012 and Plaintiffs filed this lawsuit in October 2014 alleging

the denial constituted breach of contract and breach of the

implied obligation of good faith and fair dealing. Id. at ¶¶ 19,

25-33. On February 23, 2015, Defendant filed a Motion for


1Plaintiffs incorrectly refers to Defendant as “Travelers”
throughout their pleadings. Def.’s Answer, ECF No. 14 at 1. The
Court will refer to Defendant as “Hartford.”
                                 1
Judgment on the Pleadings, arguing that (a) there is no coverage

obligation because the damages suffered by Plaintiffs were not

caused by a peril insured by the policy; (b) there is no

coverage obligation under the policy because the Plaintiffs

failed to comply with the two-year suit limitation provision;

and (c) there was no breach of any covenant of good faith and

fair dealing because Hartford did not breach any of the

provisions, terms or conditions of the policy. Def.’s Mem.

Supp., ECF No. 15-2 at 1-8. 2 Upon consideration of the Motion,

the response and reply thereto, and for reasons discussed below,

the Defendant’s Motion is GRANTED.

    II.   Background

    Plaintiffs leased apartments on three floors of their property

under the “Section 8” program, which is supervised by the United

States Department of Housing and Urban Development (“HUD”) and

the District of Columbia Housing Authority (“DCHA”). Id. ¶ 12.

Pursuant to the HUD/DCHA requirements, Plaintiffs’ property was

inspected by the government in June 2011 and received a passing

grade. Id. ¶ 14.




2 In May 2015, the parties agreed to the appointment of a
mediator to assist in settlement discussions. See May 27, 2015
Minute Order. On September 30, 2015, the parties informed the
Court that settlement was unlikely and that the parties agreed
the Court should rule on Defendant’s pending Motion for Judgment
on the Pleadings. Parties’ Status Report, ECF No. 32.
                                 2
  On September 8, 2011, a windstorm moved through the D.C. area.

Id. ¶ 15. Plaintiffs immediately submitted a claim to Hartford,

reporting damage to their property that they believed was caused

by the storm. Id. Defendant’s claims’ adjuster Deanna Carroll

(“Ms. Carroll”) concluded that the “significant water and mold

damage on all three levels of [Plaintiffs’] rental property” was

the result of “wear and tear” and “splits in the roof membrane

that occurred over a period of time.” Id. ¶ 20. Ms. Carrol

denied Plaintiffs’ claim as excluded under Section 1 of the

policy, which states:

           Windstorm or hail. This peril does not include
           loss to the inside of a building or the
           property contained in a building caused by
           rain, snow, sand or dust unless the direct
           force of wind or hail damages the building,
           causing an opening in a roof or wall and the
           rain, snow, sleet, sand or dust enters through
           this opening.

Id.   (citing   Hartford   denial   letter,   dated   January   4,   2012)

(emphasis added).

  In June 2014, Plaintiffs hired an engineer to complete an

inspection of the damaged property. Id. ¶ 16. The engineer

concluded that the damage to the roof and roof sheathing “was

most likely caused by a pointed instrument being pushed up

against the sheathing from the interior.” Id. ¶ 17. Plaintiffs

allege that “no indication or evidence exist[s], which indicates

that the said actions of this unknown third-party person were


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done for purposes of vandalism or mischief, nor can Defendant []

prove or show any such malicious intent by said unknown third-

party.” Id. ¶ 18.

  III. Standard of Review

       a. Motion for Judgment on the Pleadings

  A Rule 12(c) motion is “functionally equivalent” to a Rule

12(b)(6) motion to dismiss and governed by the same standard.

Rollins v. Wachenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir.

2012). A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). While detailed factual allegations are not

necessary, plaintiff must plead enough facts “to raise a right

to relief above the speculative level.” Id.

   “The court is limited to considering acts alleged in the

complaint, and documents attached to or incorporated by

reference in the complaint, matters of which the court may take

judicial notice, and matters of public record.” Maniaci v.

Georgetown Univ., 510 F. Supp. 2d 50, 59 (D.D.C. 2007). The

Court must construe the complaint liberally in plaintiff's favor

                                4
and grant plaintiff the benefit of all reasonable inferences

deriving from the complaint. Kowal v. MCI Commc’ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not

accept plaintiff's inferences that are “unsupported by the facts

set out in the complaint.” Id. “Nor must the court accept legal

conclusions cast in the form of factual allegations.” Id.

“[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009).

  IV.   Analysis

  Defendant argues that Plaintiffs’ claims should be dismissed

due to Plaintiffs’ failure to file this action within two years

from the date of loss, as required under the plain language of

Plaintiffs’ insurance policy. Def.’s Mem. Supp. at 4. Plaintiffs

maintain that application of the discovery rule means that the

statute of limitations on their claim would not begin to run

until June 23, 2014. Pl.’s Mem. Opp., ECF No. 18 at 8.

  Section I of Plaintiffs’ insurance policy states:

          7. Suit Against Us. No action can be brought
          against us unless there has been full
          compliance with all of the terms under Section
          I of this policy and the action is started
          within two years after the date of loss.


Def.’s Mem. Supp. at 3 (emphasis added).




                                5
     Unambiguous suit limitation provisions included in

insurance policies are consistently enforced. Martinez v.

Hartford Cas. Ins. Co., 429 F. Supp. 2d 52, 61 (D.D.C. 2006)

(upholding a two-year limitations period found in the insurance

policy, noting that “[c]ontractual provisions limiting the

period within which insurance policy-holders may validly

initiate a lawsuit are generally enforceable under District of

Columbia law.”); Kron v. Young & Simon, Inc., 265 A.2d 293, 294-

95 (D.C. 1970) (upholding a one-year limitations period found

within an insurance policy).

     Plaintiffs do not dispute that they filed this action three

years after the date of loss. See Notice of Removal, ECF No. 1.

As such, Plaintiffs filed suit one year after the two-year

policy limitation expired. As such, the terms of the policy bar

this action because Plaintiffs’ complaint was not timely filed.

The language of policy limitation is unambiguous, and Plaintiffs

do not argue otherwise. Rather, Plaintiffs’ argument against

dismissal centers on application of the discovery rule in an

attempt to circumvent the clear and unambiguous language of the

insurance policy. Pls.’ Mem. Opp’n at 2-4.

  The discovery rule is generally applied to toll a statute of

limitations when the relationship between the injury and the

wrongful conduct is obscure and there is a need to protect the

interests of the injured party. Doe v. Medlantic Health Care

                                6
Group, Inc., 814 A.2d 939, 945 (D.C. 2003); see also Moore v.

Dist. of Columbia, 445 Fed. Appx. 365, 366 (D.C. Cir. 2011)

(“Under the discovery rule, a limitations period does not run

until the injured party ‘knows, or with the exercise of

reasonable diligence would have known, of some injury, its

cause-in-fact, and some evidence of wrongdoing.’”) (citations

omitted).

    Plaintiffs argue that under the discovery rule, the two-year

contractual limitation to bring their claim “did not begin to

run until June 24, 2014, with that being when the Plaintiffs

could finally afford to pay for, then obtain, an in-depth

investigative report from their own privately retained

engineering exert . . .” Pls.’ Mem. Opp’n. at 3. Plaintiffs’

argument fails for at least two reasons. 3

    First, although the District of Columbia has yet to explicitly

rule on whether the discovery rule applies to contractual

limitations provisions, other courts have held that the

discovery rule does not apply to unambiguous contractual

limitations provisions that clearly identify the time from which


3 Plaintiffs’ assertion that consideration of when they were able
to afford an independent inspection of their property should
extend the suit limitation included in their insurance policy is
rejected as baseless. Martinez v. Hartford Cas. Ins. Co., 429 F.
Supp. 2d 52, 60 (D.D.C. 2006) (“The purpose of contractual
limitations provisions is to prevent the insured from engaging
in unreasonable delay in proceeding to enforce or pursue the
claim so that insurers may otherwise be protected.”)
                                 7
the limitations period begins to run. See Osmic v. Nationwide

Agribusiness In. Co., 841 N.W. 2d 853, 859 n.1 (Iowa 2014)

(denying application of the discovery rule and stating that an

“insurance company has the ability . . . to clearly articulate

the applicable limitations period for claims . . . and the event

upon which the limitations period begins to run.”); United

Techs. Auto. Sys. v. Affiliated FM Ins. Co., 725 N.E.2d 871, 875

(Ind. Ct. App. 2000) (declining to adopt a discovery rule in

insurance coverage cases); Caln Village Assocs., L.P. v. Home

Indem. Co., 75 F. Supp. 2d 404, 413 (E.D. Pa. 1999) (denying

application of the discovery rule where insurance policy

contained an unambiguous two-year suit limitation). Plaintiff

cites no legal authority for the proposition that the discovery

rule should apply when a contractual limitation period is plain

and unambiguous. 4

    Second, even if the discovery rule could be applied to this

case, the engineer’s report obtained by Plaintiffs does nothing

to show that Hartford wrongfully denied their claim. In fact,

Plaintiffs’ engineering expert supports Hartford’s claim denial.


4 Moreover, Plaintiffs fail to explain why, even if the discovery
rule could be applied to contractual limitation cases, it should
be applied to this case where the facts indicate that the
alleged injury was not hidden or obscure. Indeed, Plaintiffs
submitted their claim for damage immediately after the storm.
Am. Comp. ¶¶ 6-7. Thus, there is no basis for application of the
discovery rule, even if it were permitted in contractual
limitation cases.
                                 8
Plaintiffs do not dispute that their insurance policy only

covers storm damage where the “direct force of wind or hail

damages the building . . .” Am. Compl. ¶ 20. Ms. Carroll

concluded that the damage to Plaintiffs property was from “wear

and tear.” Id. Plaintiffs’ engineer concluded that the damage to

the roof sheathing and roofing “was most likely caused by a

pointed instrument being pushed up against the sheathing from

the interior.” Id. ¶ 17. Thus, even if Plaintiffs’ action was

not barred by the two-year limitation period included in the

insurance policy, Plaintiffs own complaint demonstrates that

Hartford properly denied Plaintiffs’ claim for coverage because

the relevant portion of the policy at issue only covers storm

damage that is caused by “direct force of wind or hail.” Id. ¶

20. Plaintiff does not allege any facts that their property was

damaged as a direct result of the September 2011 storm. As such,

Plaintiffs have failed to state a claim for breach of contract

or breach of any implied covenant of good faith and fair

dealing. 5


5 Plaintiffs’ only allegation against Hartford in regard to its
alleged breach of good faith and fair dealing is that Defendant
did not have “a reasonable basis for denying prompt and
immediate payment of full benefits and compensation under the
parties’ contract of insurance.” Am. Compl. ¶ 30. As discussed
above, Hartford’s denial of Plaintiffs’ claim was reasonable
under the parties’ contract because, as affirmed by Plaintiffs’
own engineering expert, there was no evidence that the damage to
Plaintiffs’ property was directly caused by the windstorm as
required under the policy. Id. ¶ 17, 20.
                                9
  V.      Conclusion

  Because Plaintiffs failed to bring this action within the two-

year limitation period included in the contract insuring their

rental property, their claims are time-barred. In the

alternative, Plaintiffs fail to state a claim. For these

reasons, Hartford’s motion for judgment on the pleadings is

GRANTED and this lawsuit is DISMISSED WITH PREJUDICE.

       SO ORDERED.


Signed:     Emmet G. Sullivan
            United States District Judge
            August 4, 2016




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