19‐987‐cv
Dix v. Peters

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 20th day of February, two thousand twenty.

PRESENT:            DENNIS JACOBS,
                    GUIDO CALABRESI,
                    DENNY CHIN,
                                         Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

CORY P. DIX and RUBY E. DIX,
                       Plaintiffs‐Appellants,
                 ‐v‐                                                               19‐987‐cv

KATHLEEN A. PETERS and AUTO‐OWNERS
INSURANCE COMPANY,
                     Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLANTIFFS‐APPELLANTS:                                    ARMEN J. NAZARIAN, Nazarian Law, P.C.,
                                                             Phoenix, New York.
FOR DEFENDANTS‐APPELLEES:                 HILARY C. BANKER, Burgio, Curvin &
                                          Banker, Buffalo, New York, for Kathleen A.
                                          Peters.

                                          ADONAID C. MEDINA (Gregg D. Weinstock,
                                          on the brief), Vigorito, Barker, Patterson,
                                          Nichols & Porter, LLP, Valhalla, New York, for
                                          Auto‐Owners Insurance Company.

              Appeal from the United States District Court for the Northern District of

New York (DʹAgostino, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiffs‐appellants Cory P. Dix (ʺCoryʺ) and Ruby E. Dix appeal from the

March 20, 2019 judgment of the district court dismissing their claims against defendant‐

appellee Kathleen A. Peters for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) and defendant‐appellee Auto‐Owners Insurance Company (ʺAuto‐

Ownersʺ) for lack of personal jurisdiction pursuant to Rule 12(b)(2). We assume the

partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

              The facts in the complaint are assumed to be true. On or about September

29, 2016, Cory, a resident of Virginia, and Peters, a resident of New York, were involved

in a motor‐vehicle accident in Clay, New York. Cory suffered serious injuries, and he

sought compensation for his medical treatments from Petersʹs automobile insurance

carrier, USAA Insurance (ʺUSAAʺ). On March 10, 2017, Cory settled his claims with


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USAA for $100,000, the maximum coverage provided for under Petersʹs policy. As part

of the settlement, Cory signed a release (the ʺRelease Agreementʺ) in which he agreed

to:

              release, acquit, and forever discharge Kathleen A. Peters
              his/her heirs, executors and assigns, from any liability now
              accrued or hereafter to accrue on account of any and all
              claims or causes of action which I/we now or may hereafter
              have for personal injuries, damage to property, loss of
              services, medical expenses, contribution indemnification,
              losses of damages of any and every kind or nature
              whatsoever, now known or unknown or that may hereafter
              develop, by me/us sustained or received on or about
              September 29, 2016 through an automobile accident.

J. Appʹx at 97 (the ʺRelease Agreementʺ).1

              At the time of the incident, plaintiffs also had an automobile insurance

policy with Auto‐Owners that included underinsured motorist (ʺUIMʺ) coverage (the

ʺUIM Policyʺ). The UIM Policy provided that Auto‐Owners would ʺpay, in accordance

with Va. Code Ann. Section 38.2‐2206, damages which an ʹinsuredʹ . . . is legally entitled

to recover from the owner or operator of an . . . ʹunderinsured motor vehicleʹʺ that

resulted from bodily injury or property damage. J. Appʹx at 60.

              After Petersʹs settlement, which exhausted the USAA policy limit,

plaintiffs made a demand on Auto‐Owners for UIM coverage. Auto‐Owners failed to




1      Although the complaint failed to reference or attach the Release Agreement, the district
court properly considered it on a Rule 12(b)(6) motion as a document ʺintegral to the
complaint.ʺ DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
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respond, and plaintiffs commenced an action against both Peters and Auto‐Owners in

the court below. The complaint alleged tort claims against Peters and contract and

related claims against Auto‐Owners.

              Peters moved to dismiss the complaint on the ground that plaintiffsʹ

claims were barred by the Release Agreement, and Auto‐Owners moved to dismiss on

the ground that it was not subject to personal jurisdiction in New York. By

memorandum decision and order entered March 20, 2019, the district court granted

both motions. The court held that Peters was entitled to be dismissed from the action

by virtue of the Release Agreement. With Peters dismissed from the lawsuit, the district

court further held it could not exercise personal jurisdiction over Auto‐Owners because

the remaining contract dispute lacked any connection to the New York forum.

              This appeal followed.

                                 STANDARD OF REVIEW

              We review de novo a district court’s grant of a motion to dismiss under

Rules 12(b)(2) and 12(b)(6). See Edwards v. Sequoia Fund, Inc., 938 F.3d 8, 12 (2d Cir.

2019); Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). Where

the district court grants a Rule 12(b)(2) motion without an evidentiary hearing, we

credit the plaintiffʹs averment of jurisdictional facts as true. Metro. Life Ins., 84 F.3d at

567.




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                                           DISCUSSION

              Cory Dix agreed under the Release Agreement to ʺrelease, acquit, and

forever discharge . . . Peters . . . from any liability . . . [stemming from the] September 29,

2016 . . . automobile accident.ʺ J. Appʹx at 97. Peters was a New York resident and was

in an automobile accident in New York State. The Release Agreement was

unambiguous and thus enforceable under New York law, see VKK Corp. v. Natʹl Football

League, 244 F.3d 114, 129 (2d Cir. 2001), and it released Peters from any further

obligation arising from the automobile accident. See also Appellantsʹ Br. at 23 (ʺIt is

undisputed that the [Settlement Agreement] provides Peters with a full release from all

liability.ʺ). Thus, plaintiffs were barred from suing her in this action.

              Notwithstanding the Release Agreement, plaintiffs claim that Virginiaʹs

UIM statute permits Petersʹs inclusion in the lawsuit. Virginiaʹs UIM statute, as

amended in 2015, allows for settlements with liability insurers without prejudice to a

plaintiffʹs subsequent underinsured motorist claim ‐‐ under certain conditions. See Va.

Code § 38.2‐2206(L)‐(M) (2015).2 One such condition is that the settlement agreement

require the tortfeasor to ʺcooperate with the underinsured motorist benefits insurer(s),ʺ

including by ʺattending [a] deposition and trial, if subpoenaed, . . . assisting in

responding to discovery, . . . [and] meeting with defense counsel at reasonable times.ʺ




2      Although the Virginia statute was amended again in 2019, the 2015 version of the statute
controls in this case as the accident occurred in 2016.
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Va. Code § 38.2‐2206(L). Here, the UIM statute does not apply because the Release

Agreement did not contain the requisite language carving out Petersʹs obligation to

cooperate with the UIM insurer. And contrary to plaintiffsʹ suggestion, this failure

cannot be cured by sending a belated notice to Peters. Since the Release Agreement did

not include these obligations, there are no obligations for which to provide notice.

               The district court also did not err in granting Auto‐Ownersʹ motion to

dismiss for lack of personal jurisdiction. With Peters dismissed from the action, all that

remained were contract and related claims between plaintiffs, Virginia residents, and

Auto‐Owners, an insurance company incorporated and headquartered in Michigan,

arising from an insurance policy issued in Virginia. Because plaintiffs failed to make a

prima facie showing of personal jurisdiction over Auto‐Owners in New York, see Eades v.

Kennedy, PC Law Offices, 799 F.3d 161, 167‐68 (2d Cir. 2015), the district court rightly

held it lacked personal jurisdiction over Auto‐Owners. To the extent plaintiffs have any

contract or related claims against Auto‐Owners, the claims must be pursued in Virginia

or Michigan.

                                          *   *   *




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             We have considered plaintiffsʹ remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                       FOR THE COURT:
                                       Catherine OʹHagan Wolfe, Clerk




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