UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC MCCALL,
Plaintiff,
v. Civil Action No. 26-1184 (JEB)
PROTECTIVE INSURANCE COMPANY,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Eric McCall, a D.C. resident, sustained grievous bodily injuries from an
automobile accident in 2021 while on the job in Virginia. He alleges in this suit that the three
companies involved in administering his occupational-accident insurance policy — Defendants
Protective Insurance Company, Independent Haulers Association, and SCI, LLC — defaulted on
a range of duties, causing him delay in accessing covered medical care at great physical,
economic, and emotional cost. He has thus brought claims for breach of contract, insurer bad
faith, and fraudulent misrepresentation against Protective and negligence against IHA and SCI,
as well as a separate count seeking declaratory relief. Protective has now moved to dismiss the
counts against it on grounds of untimeliness and failure to state a claim, and IHA and SCI have
jointly done the same.
Behind such a pedestrian description lie myriad nuanced choice-of-law questions, given
that the underlying insurance policy was issued in Indiana. After walking through all the
conflicts analysis, the Court ultimately concludes that Plaintiff has stated plausible claims for
breach of contract against Protective and negligence against IHA and SCI. The Court will, on
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the other hand, grant Protective’s Motion with respect to Plaintiff’s counts for insurer bad faith,
fraudulent misrepresentation, and declaratory relief because the applicable law does not
recognize them as standalone claims except in circumstances not plausibly present here.
I. Background
The Court draws its facts from the Amended Complaint. See Naz v. Wright, 177 F.4th
1242, 1244 (D.C. Cir. 2026). It also relies, as it may at this stage, on documents “incorporated
by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily
relies.” Thomas v. Pompeo, 438 F. Supp. 3d 35, 40 (D.D.C. 2020) (quotation marks and citation
omitted).
A. Factual Background
On November 24, 2021, McCall was involved in a motor-vehicle accident while working
— presumably as a truck driver — in Virginia, where he lived at the time. See ECF No. 17 (Am.
Compl.), ¶¶ 1–2, 12; see also id., ¶¶ 1, 22, 39 (never specifying Plaintiff’s occupation but stating
that IHA sponsored his insurance). He lost the functional use of his left hand and suffered
serious brain, knee, ankle, and eye injuries, as well as other orthopedic and neurological harm.
Id., ¶¶ 1–2, 54. At some point after the accident, he moved to Washington, D.C. Id., ¶ 17.
Plaintiff was covered by an occupational-accident insurance policy jointly administered
by IHA and SCI and underwritten by Protective (sometimes mislabeled as “Progressive” in the
pleadings). Id., ¶¶ 39, 74–76; see generally ECF No. 1-3 (Policy). IHA and SCI served as
intermediaries between Plaintiff and Protective, handling enrollment, recordkeeping, premium
payments, notice of loss, and policy administration generally. See Am. Compl., ¶¶ 45–46, 48;
see also id., ¶ 77 (listing duties related to claim intake, documentation, and communication). For
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example, SCI deducted premiums from Plaintiff’s wages and served as Protective’s chief “claims
administrator.” Id., ¶¶ 47, 75. IHA oversaw and helped administer the program. Id., ¶¶ 48, 76.
About nine days after the accident, on December 3, 2021, Plaintiff called and emailed
SCI to initiate a claim. Id., ¶ 55. He also called Protective directly. Id., ¶ 63. Both paths led to
dead ends. SCI assigned McCall a claim number but then allegedly failed to transmit his claim
to Protective and withheld information from McCall about his claim and policy. Id., ¶ 57; see
also id., ¶ 69 (“Plaintiff did not have access to the Policy.”); id., ¶ 101 (“SCI breached [its] duties
by . . . [f]ailing to provide Plaintiff with access to the Policy . . . .”). During Plaintiff’s call with
Protective, an intake agent told him “in substance” that his “only option for medical coverage”
was Medicare, not his private insurance plan. Id., ¶ 63.
The agent, McCall now alleges, was wrong. Id., ¶ 66. He says that the policy’s “plain
language” covered medical expenses “incurred as a direct result of” a “sudden, unforeseen, and
unexpected [occupational] event causing bodily injury,” regardless of fault. Id., ¶¶ 40, 93; see
ECF No. 18 (Opp.) at 10; but see Policy (apparently not containing quoted language verbatim).
Those covered expenses allegedly included “reasonable and necessary medical treatment,
hospitalization, surgery, and related care.” Am. Compl., ¶ 40. And nothing in the plan
conditioned benefits on Medicare status. Id., ¶ 42. McCall does not explain why he lacked
access to the policy from the start.
The agent’s words swayed McCall at the time. He stopped pursuing his claim, even as he
kept paying premiums. Id., ¶¶ 70, 90. In his telling, he believed that “no private occupational
accident coverage existed” because an “authorized claims representative” had said so “during
formal claim intake . . . , at a time when [Protective] possessed superior knowledge of coverage
unavailable to Plaintiff, and while Plaintiff did not have access to the Policy.” Id., ¶¶ 69–70.
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About two years later, McCall learned from a coworker that such coverage in fact
existed. Id., ¶ 70. He “promptly” contacted SCI again to pursue benefits. Id. According to
McCall, however, Defendants’ conduct had already caused him to delay treatment, leading to
out-of-pocket medical expenses, aggravation of his injuries, permanent physical and cognitive
impairment, and other economic and emotional harm. See id., ¶ 72; see also id., ¶ 96 (listing
similar set of harms); id., ¶ 137 (listing bases for damages).
While the Amended Complaint does not describe what happened next, Plaintiff states in
his Opposition that an SCI representative “allegedly acknowledged that SCI had failed to report,
transmit, or act on the notice” that McCall originally submitted. See Opp. at 1–2. In addition,
Plaintiff at some point provided “Proof of Loss” related to his accident, as required by the policy.
See Am. Compl., ¶ 110. Protective eventually “adjusted the claim,” though it “paid only
approximately $10,579.20, while full benefits” — in an unspecified amount — “remain unpaid.”
Opp. at 2.
Several other factual allegations are embedded elsewhere in the Amended Complaint.
Because the timing and details are not entirely clear, the Court rehearses them here in bulk. As
to Protective, McCall alleges not only that the company misrepresented his coverage and failed
to process his claim but also that it (1) never provided him with a complete copy of his insurance
policy upon request; (2) misclassified his claim as non-occupational and therefore not covered;
(3) failed to issue payment or a formal written denial identifying an applicable exclusion from
coverage; (4) demanded “duplicative and burdensome” documentation without identifying
deficiencies in Plaintiff’s prior submissions; (5) refused to correct “known misrepresentations
once discovered”; and (6) engaged in a “pattern of delay and obstruction designed to discourage
pursuit of benefits.” Am. Compl., ¶ 91. McCall likewise alleges that SCI — in addition to not
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processing his claim properly at the outset — did not provide him with access to his policy or
correct “known misstatements of coverage.” Id., ¶ 101. And he states that IHA failed to ensure
proper claim processing, correct known claim mishandling, and provide policy documentation
upon request. Id., ¶ 103; see also id., ¶ 82 (making similar allegations about all three companies
acting in “coordinated” manner).
B. Procedural Background
McCall sued Defendants in D.C. Superior Court on February 16, 2026. See generally
ECF No. 1-2 (Super. Ct. Compl.). IHA and SCI filed a Notice of Removal on April 7, pursuant
to 28 U.S.C. § 1332. See ECF No. 1 (Removal Notice), ¶¶ 5–6 (alleging complete diversity of
citizenship and amount in controversy above $75,000). They then moved to dismiss the
Complaint on April 7. See ECF No. 2 (First IHA/SCI MTD). After some back and forth,
Plaintiff filed an Amended Complaint that clarified Protective’s identity but remained
substantially the same. See ECF No. 13 (Mot. for Leave to File Am. Compl.) at 3 (describing
changes).
That operative pleading offers a mix of claims sounding in contract and tort, including
breach of contract, insurer bad faith, and fraudulent misrepresentation against Protective (Counts
I–III) and negligence against IHA and SCI (Count IV). See Am. Compl., ¶¶ 107–33. McCall
seeks declaratory relief, framed as a separate cause of action (Count V); an order compelling
payment of all benefits due; and compensatory damages. Id., ¶¶ 135, 137–38. He also seeks
punitive damages against Protective. Id., ¶ 138.
IHA and SCI have now filed a renewed Motion to Dismiss, see generally ECF No. 15
(IHA/SCI MTD), and Protective has similarly moved. See generally ECF No. 16 (Protective
MTD).
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II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation marks and citation omitted).
In evaluating a 12(b)(6) motion, a court must treat “well-pleaded factual allegations as
true” and draw “all reasonable inferences” in the plaintiff’s favor. Animal Legal Def. Fund, Inc.
v. Vilsack, 111 F.4th 1219, 1223 (D.C. Cir. 2024) (citation omitted); see also Iqbal, 556 U.S. at
678. But the court need not accept as true “a legal conclusion couched as a factual allegation,”
nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d
178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Finally, where a defendant’s 12(b)(6) motion raises a statute of limitations as a basis for
dismissal, the case “cannot be dismissed [on that ground] unless it appears beyond doubt that the
plaintiff can prove no state of facts in support of his claim that would entitle him to relief.”
Jones v. Rogers Mem’l Hosp., 442 F.2d 773, 775 (D.C. Cir. 1971). That is a high bar,
particularly given that “statute of limitations issues often depend on contested questions of fact.”
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). A complaint may be dismissed
under Rule 12(b)(6) as “conclusively time-barred” only if “a trial court determines that the
allegation of other facts consistent with the challenged pleading could not possibly cure the
deficiency.” Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir. 2017) (quotation marks and
citation omitted).
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III. Analysis
As a preliminary matter, Indiana and D.C. laws loom large in the briefing. Under Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny, a federal court sitting in
diversity jurisdiction “must apply state law to the substantive issues before it,” including statutes
of limitations. A.I. Trade Fin., Inc. v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir.
1995) (citing Erie and Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99 (1945)). To determine which
state’s law applies, it must look to the choice-of-law rules of the state in which it sits — here, the
District’s. Petra, 62 F.3d at 1458; see also id. (confirming that same principles apply even
though District is not a state).
Plaintiff argues that Indiana law governs the entire suit based on the terms of his
insurance policy, see Am. Compl., ¶¶ 27–28, which was “issued and delivered in the State of
Indiana and is governed by the laws of Indiana.” Policy at ECF p. 27. He nonetheless relies on
caselaw from both jurisdictions to argue that his claims should not be dismissed as time-barred.
See Opp. at 5–9. On the other side, Protective often alternates between Indiana and D.C.
authorities without providing arguments for when or why a particular jurisdiction’s law should
apply. See, e.g., Protective MTD at 5–7. IHA and SCI, meanwhile, contend that D.C. law
governs Plaintiff’s negligence claim and the corresponding statute of limitations under Erie and
the applicable D.C. choice-of-law rules. See IHA/SCI MTD at 4, 7–8.
To deal with this fine kettle of fish, the Court addresses choice-of-law issues only as
needed. It first considers whether Plaintiff’s claims are time-barred “beyond doubt.” Jones, 442
F.2d at 775. Finding that they are not, it moves to the merits.
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A. Timeliness
According to Defendants, the limitations period for Plaintiff’s claims is three years,
whether under the insurance policy or D.C. law, rendering his suit too late. See Protective MTD
at 4–5, 7–8; IHA/SCI MTD at 4–5; see also Policy at ECF p. 24 (“No lawsuit [to recover on this
policy] may be brought after three (3) years from the time written Proof of Loss is required to be
given by this policy.”) (formatting altered). McCall nowhere disputes that number, instead
arguing that he did not miss the deadline because his claims accrued later than Defendants
suppose and, in any event, equitable principles justify an exception from strict application of the
limitations period. See Am. Compl., ¶¶ 29–34; Opp. at 5–10. The Court looks separately at the
claims brought against Protective and IHA/SCI because it finds different bases to allow certain
counts to proceed.
1. Claims Against Protective
As it is unclear whether Plaintiff is making two separate arguments related to claim
accrual against Protective, compare Opp. at 4–5 (possibly relating to accrual under insurance
contract), with id. at 9–10 (relating to accrual under D.C. law), the Court begins and ends with
his argument for equitable estoppel, which would apply regardless. On that front, a conflict-oflaws analysis is “unnecessary” because no relevant conflict exists between Indiana and D.C.
laws, as shown below. Young Women’s Christian Ass’n of the Nat’l Cap. Area, Inc. v. Allstate
Ins. Co. of Canada, 275 F.3d 1145, 1150 (D.C. Cir. 2002).
Plaintiff principally contends that “[a]ny statute of limitations or contractual suitlimitation is tolled by Progressive’s [sic] active and intentional fraudulent concealment of the
existence and availability of coverage,” Am. Compl., ¶ 29, and that it should be “equitably
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estopped” from asserting a timeliness defense. Id., ¶ 33. He later frames substantially the same
argument in terms of “waiver,” “prevention,” and “lulling,” too. See Opp. at 3, 5–6, 8.
Equitable estoppel is a “flexible doctrine” that “prevents one party from misleading
another to the other party’s detriment or to the misleading party’s own benefit.” 28 Am. Jur. 2d
Estoppel and Waiver § 1 (2026). Under both Indiana and D.C. laws, the party seeking estoppel
must show that he lacked knowledge or the means to acquire knowledge of the relevant facts;
that he relied on the conduct of the party being estopped; and that he acted accordingly in a way
that changed his position for the worse. Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan
Comm’n, 819 N.E.2d 55, 67 (Ind. 2004); see Cassidy v. Owen, 533 A.2d 253, 255 (D.C. 1987)
(additionally requiring that estopped party make false representation or conceal material fact
with actual or constructive knowledge of truth and with intention that other party rely on
misrepresentation). Generally, estoppel is appropriate in the statute-of-limitations context only
where the defendant has acted affirmatively to delay the plaintiff from filing suit. See Kenworth
of Indianapolis, Inc. v. Seventy-Seven Ltd., 134 N.E.3d 370, 383 (Ind. 2019) (stating that party’s
conduct “must be of a sufficient affirmative character to prevent inquiry or to elude investigation
or to mislead and hinder”) (citation omitted); Onyeneho v. Allstate Ins. Co., 80 A.3d 641, 647
(D.C. 2013) (“Equitable estoppel, sometimes called fraudulent concealment, only comes into
play if the defendant takes active steps to prevent the plaintiff from suing in time . . . .”) (cleaned
up).
Here, Plaintiff has presented facts sufficient to warrant equitable estoppel, whether the
relevant limitations period is established by the contract (and thus governed by Indiana law) or
set by D.C. law. Consistent with the elements of equitable estoppel in both jurisdictions, he has
alleged that (1) Protective, through its agent, affirmatively misrepresented his insurance coverage
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by telling him that his only option was Medicare, see Am. Compl., ¶¶ 4, 31; (2) Protective
intended that he rely on that misrepresentation, id., ¶¶ 29, 68; (3) it knew or should have known
that McCall’s insurance covered his injuries, id., ¶ 67; (4) Plaintiff relied on this
misrepresentation, id., ¶ 69; and (5) he therefore delayed pursuing his claim and filing suit, to his
detriment. Id., ¶¶ 70, 72. Critically, McCall also alleges that (6) he lacked knowledge of the
truth or the means to acquire it because he did not have access to his insurance policy and
Defendants refused to provide it upon request. Id., ¶¶ 69, 101, 104, 128; Opp. at 15, 19, 22, 23.
To be sure, Plaintiff’s case for equitable estoppel is close. Several points of fact and law
appear to weigh against his claim, but they are ultimately not enough to justify dismissal.
First, according to the D.C. Court of Appeals, the “general rule” in the insurance context
is that a company “is not estopped to assert [a contractual] limitations period as a bar to a claim[]
unless the company has conceded liability and some discussion of a settlement offer has
occurred,” Bailey v. Greenberg, 516 A.2d 934, 938–39 (D.C. 1986) (emphasis added), which
Plaintiff does not allege occurred during his initial phone call with Protective. But that “general
rule” rests on caselaw from other jurisdictions, id., and was not part of the holding in Bailey,
since the company in that case allegedly told the claimant that her claim would be paid. Id. at
940. Bailey’s dicta is insufficient evidence that that the D.C. Court of Appeals — much less the
Indiana Supreme Court — would apply such a rule in a case where, as here, a plaintiff has
otherwise pled facts sufficient to support equitable estoppel and was not issued a formal claim
denial when the misrepresentation allegedly occurred. See Am. Compl., ¶¶ 82, 91.
Second, as Protective notes, see Protective MTD at 6–7, “an insured cannot estop the
insurer from asserting a policy’s limitations period” when “the inducement by the insurance
company not to file suit ended well before the limitations period expired.” 1426 Wisconsin
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L.L.C. v. Travelers Indem. Co. of Am., 110 F. Supp. 3d 259, 263 (D.D.C. 2015) (quoting Bailey,
516 A.2d at 939). Judge John Bates of our district in 1426 Wisconsin deemed one year “ample
time” to file suit in such a scenario — approximately the amount of time that passed between
when McCall learned he had coverage and the 2024 deadlines that Protective invokes. Id. at
263–64; see Protective MTD at 6–7. Yet Judge Bates did so at the summary-judgment stage,
1426 Wisconsin, 110 F. Supp. 3d at 261, based in part on facts about subsequent dealings
between the parties. Id. at 270. Here, the details of what transpired after Plaintiff learned of his
coverage are fuzzy. See supra Section I.A. Dismissing the suit now because Plaintiff might
have had “ample time” to file would therefore be premature, particularly in light of the rule that a
complaint may be dismissed as “conclusively time-barred” only if no other facts consistent with
the challenged pleading could “possibly cure” the deficiency. Momenian, 878 F.3d at 387
(citation omitted).
Third, Protective’s appeal to the “failure to discover damages” rule is inapt: the Indiana
cases it cites deal with discovery of property damage that itself would have been compensable
under the insurance contract if found sooner. See Protective MTD at 5–6 (citing United Techs.
Auto. Sys., Inc. v. Affiliated FM Ins. Co., 725 N.E.2d 871 (Ind. Ct. App. 2000), and New Welton
Homes v. Eckman, 830 N.E.2d 32 (Ind. 2005)). In those cases, the plaintiffs discovered physical
damage to their property after the relevant contractual limitations period had expired, including
environmental contamination and structural flaws in a home’s drainage system, respectively.
United Techs., 725 N.E.2d at 873; New Welton Homes, 830 N.E.2d at 33–34. By contrast, this
case involves Plaintiff’s discovery of the fact of coverage after Protective’s alleged
“misdirection.” Opp. at 7. So the Indiana rule that failure to discover damages does not justify
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tolling an insurance contract’s limitations period — to the extent it applies at all here — is not
necessarily dispositive.
While equitable estoppel is an “extraordinary remedy,” 28 Am. Jur. 2d, supra, § 3,
Plaintiff’s estoppel argument does not lie outside the realm of plausibility. Given the factintensive nature of the inquiry and the high threshold for deeming a claim conclusively timebarred at this stage, dismissal of the claims against Protective on timeliness grounds is not
appropriate. Cf. Suarez v. Compass Coffee LLC, 2025 WL 3062798, at *11–12 (D.D.C. Nov. 3,
2025) (citation omitted) (citing “many contested questions of fact” in declining to dismiss claim
based on statute of limitations where parties disputed issues related to accrual and equitable
estoppel).
2. Claims Against IHA and SCI
Plaintiff similarly argues that his claims against IHA and SCI should not be dismissed as
time-barred because (1) they plausibly accrued when he learned of his coverage from a coworker
around December 2023, making them timely, and (2) even if they were prima facie untimely,
equitable tolling and estoppel are appropriate. See Opp. at 17–18; see also East v. Graphic Arts
Indus. Joint Pension Tr., 718 A.2d 153, 160 n.21 (D.C. 1998) (distinguishing between related
doctrines known as “the discovery rule, equitable estoppel, and equitable tolling”). Because the
Court agrees with McCall on the first point, it need not address the second. In addition, no
relevant conflict of laws exists with respect to accrual, as the cases below show, so the Court
need not conduct a full conflicts analysis. See Young Women’s Christian Ass’n, 275 F.3d at
1150.
A cause of action generally accrues — and the applicable limitations period begins to run
— when the injury occurs. Radbod v. Moghim, 269 A.3d 1035, 1044 (D.C. 2022); see also Keep
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v. Noble Cnty. Dep’t of Pub. Welfare, 696 N.E.2d 422, 425 (Ind. Ct. App. 1998) (“Generally, a
cause of action accrues when a wrongfully inflicted injury causes damage.”). Under the
“discovery rule,” however, a cause of action can accrue later if certain information was
“obscure” when the injury happened; in that scenario, the cause of action accrues when “one
must know or by the exercise of reasonable diligence should know” of the injury, “its cause in
fact,” and “some evidence of wrongdoing.” Morton v. Nat’l Med. Enters., Inc., 725 A.2d 462,
468 (D.C. 1999) (citation and emphasis omitted); see also Pflanz v. Foster, 888 N.E.2d 756, 759
(Ind. 2008) (“Under Indiana’s discovery rule, a cause of action accrues, and the statute of
limitations begins to run, when a claimant knows or in exercise of ordinary diligence should have
known of the injury.”); cf. supra Section II.A.1 (distinguishing Indiana caselaw cabining
discovery rule).
What counts as sufficient diligence is a “highly factual analysis” that requires
consideration of “all relevant circumstances,” including the defendant’s conduct, “the
reasonableness of the plaintiff’s reliance,” and the plaintiff’s “confidence” in the defendant.
Radbod, 269 A.3d at 1044 (citation omitted); see also Wehling v. Citizens Nat’l Bank, 586
N.E.2d 840, 843 (Ind. 1992) (describing discovery rule’s applicability as “a question of fact for
the factfinder to answer”). Sometimes, the “relevant facts may be such that it may be reasonable
to conduct no investigation at all.” Radbod, 269 A.3d at 1045 (citation omitted).
Here, IHA and SCI insist that Plaintiff’s negligence claim accrued more than three years
before he filed this suit, making it untimely under the District’s default three-year statute of
limitations. See IHA/SCI MTD at 5; D.C. Code § 12-301. Specifically, they argue that Plaintiff
should have known the relevant information on December 3, 2021, when the Protective
representative told him that Medicare was his only option and McCall therefore learned that
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“there was no claim being adjusted.” IHA/SCI MTD at 5. Plaintiff counters that he “did not
discover the existence” of his coverage until about two years later, see Opp. at 17, and maintains
that he “acted reasonably and with due diligence in relying on Defendants’ misrepresentations
and omissions[,] and in later discovering coverage.” Am. Compl., ¶ 30.
While McCall does not allege many facts demonstrating diligent investigation, he does
not need to do so at this stage. The facts that he does allege suggest that it might have been
reasonable for him not to investigate the alleged omissions for some time because he believed —
based on Protective’s statements — that he had no valid claim for IHA and SCI to act (or sit) on.
Rather than bolstering IHA and SCI’s accrual argument, the phone call with Protective on
December 3, 2021, undercuts it.
Of course, additional facts could show that Plaintiff knew or should have known that IHA
and SCI owed him continuing duties or that his reliance on Protective’s statements was
unreasonable. Such a showing might be enough to prove that his negligence claims accrued on
December 3, 2021, as IHA and SCI contend. But none of those conclusions flows inexorably
from the facts that McCall alleges, and the Court cannot dismiss a claim as time-barred unless “it
appears beyond doubt that the plaintiff can prove no state of facts in support of his claim that
would entitle him to relief.” Jones, 442 F.2d at 775; see also E.M. v. Shady Grove Reprod. Sci.
Ctr., P.C., 2025 WL 947515, at *6 (D.D.C. Mar. 28, 2025), opinion clarified, 2025 WL 1707695
(D.D.C. June 18, 2025) (not dismissing count as time-barred where there was “factual dispute
regarding when the tort accrued”). Here, that demanding standard for dismissal is not met:
Plaintiff plausibly alleges an accrual date that would render his negligence claims timely, and so
the Court will not dismiss that count as conclusively time-barred.
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B. Merits
The Court now turns to the merits. It preliminarily notes that Protective does not argue
that Plaintiff’s breach-of-contract claim (Count I) should be dismissed on grounds other than
timeliness, compare Protective MTD at 4–8, with id. at 8–11, so the Court will allow it to
proceed without further analysis. As for the other counts, Defendants maintain that McCall has
failed to state a claim for each under D.C. law. See Protective MTD at 8–11; IHA/SCI MTD at
6–10. He responds that his claims all arise under Indiana law, see Am. Compl., ¶ 28, while
maintaining that he has stated claims under D.C. and Indiana law alike. See, e.g., Opp. 13–15,
18–19. The Court must thus analyze choice-of-law issues claim by claim. See Lopez v. Council
on Am.-Islamic Rels. Action Network, Inc., 741 F. Supp. 2d 222, 235 (D.D.C. 2010) (“Under
District of Columbia conflict of laws principles, the Court must conduct the choice of law
analysis for each claim being adjudicated.”).
1. Count II: Insurer Bad Faith Against Protective
To make out his claim of “insurer bad faith” — which he styles as a tort — Plaintiff
alleges that Protective owed him a “duty of good faith in claim handling” and that it knowingly
breached that duty by (1) concealing coverage, (2) misdirecting him to Medicare, (3) failing to
initiate a claim and conduct a reasonable investigation, (4) irrationally delaying payment without
issuing a written denial identifying an exclusion, (5) acting with “dishonest purpose and
conscious wrongdoing,” and (6) “[p]rioritizing its financial interests over Plaintiff’s rights.” Am.
Compl., ¶¶ 115–16. He states that Protective’s conduct was “willful, malicious, and in reckless
disregard of [his] rights,” id., ¶ 117, and accordingly seeks punitive damages. Id., ¶ 119.
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a. Choice of Law
Unfortunately for the reader, there is a genuine conflict between D.C. and Indiana laws
on insurer bad faith. In Choharis v. State Farm Fire & Cas. Co., 961 A.2d 1080 (D.C. 2008), the
D.C. Court of Appeals declined to recognize a tort of insurer bad faith because every contract
contains an implied covenant of good faith under D.C. law, meaning that damages for insurer
bad faith can generally be recovered as part of an action for breach of contract. Id. at 1087–88.
By contrast, in Erie Insurance Co. v. Hickman ex rel. Smith, 622 N.E.2d 515 (Ind. 1993), the
Indiana Supreme Court reaffirmed “the existence of a duty that an insurer deal in good faith with
its insured” and recognized “a cause of action in tort for the breach of that duty.” Id. at 517. The
Court must therefore undertake a choice-of-law analysis.
Not surprisingly, the parties offer opposing positions. Protective assumes without
argument that D.C. law governs Plaintiff’s bad-faith claim and relies on D.C. precedent to argue
that this count is a contract claim masquerading as a tort. See ECF No. 21 (Protective Reply) at
2 (“Plaintiff allege[s] breach of contract claims disguised as a tort.”) Plaintiff meanwhile insists
that Indiana law governs all his claims, even as he contends that they are entirely independent
from the contract. See, e.g., Opp at 13–15, 22. The threshold question, then, is not just whose
choice-of-law rules apply, but what kind of choice-of-law rules apply — those applicable to
contract claims, see, e.g., Restatement (Second) of Conflict of Laws § 187 (Am. L. Inst. 1971),
or those associated with tort claims. See, e.g., id., § 145.
The “whose rules” question is easy. “A federal court sitting in diversity must apply the
choice-of-law rules of the forum state — here, the District of Columbia.” In re APA Assessment
Fee Litig., 766 F.3d 39, 51 (D.C. Cir. 2014). The “what rules” question is harder. Because the
D.C. Court of Appeals has not squarely addressed whether a bad-faith claim pleaded as a tort
16
independent from any contract is subject to tort- or contract-related choice-of-law rules, this
Court must “predict” how that court would rule. Edge Inv., LLC v. Dist. of Columbia, 927 F.3d
549, 559 n.10 (D.C. Cir. 2019) (quoting Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir.
1991)).
In this Court’s view, the D.C. Court of Appeals would likely treat Plaintiff’s bad-faith
claim as a tort claim for choice-of-law purposes (consistent with the pleadings) and apply its
general governmental-interests analysis rather than a choice-of-law test tailored to contract
claims. Although the D.C. Court of Appeals did not grapple with this issue in Choharis, its
treatment of the bad-faith claim there is instructive. After determining that insurer bad faith was
generally compensable under contract principles and thus not cognizable as an independent tort,
see 961 A.2d at 1087, the court did not take it upon itself to reconstrue the plaintiff’s claim as a
permissible breach-of-contract claim; instead, it affirmed the lower court’s dismissal of the badfaith claim. See id. at 1083 (affirming on all issues); id. at 1086 (noting that trial court dismissed
bad-faith claim as matter of law); id. at 1088 (“The trial court here correctly dismissed the count
based on a distinct tort of bad faith.”). If the court took the plaintiff’s tort framing at face value
in Choharis when considering whether to dismiss his bad-faith claim, it would likely follow the
same straightforward approach when deciding what choice-of-law rules to apply here.
To be sure, some courts have taken a different tack, most notably in Maryland. The
Choharis court cast Maryland law as persuasive authority on insurer bad faith, see id. at 1088
(quoting Fourth Circuit’s gloss on Maryland law), and federal courts in Maryland have applied
contract-related choice-of-law principles to insurer-bad-faith claims on at least two occasions.
See Cecilia Schwaber Trust Two v. Hartford Accident & Indemnity Co., 437 F. Supp. 2d 485,
488–89 (D. Md. 2006) (applying lex loci contractus rule to insurer-bad-faith claim where no
17
such tort existed); see also E. Stainless Corp. v. Am. Prot. Ins. Co., 829 F. Supp. 797, 798–99,
801 (D. Md. 1993) (taking similar approach before state high court had ruled on whether badfaith tort existed). That said, the federal district court in Cecilia Schwaber did not confront a
situation where, as here, applying the law selected in the contract would contravene the forum
state’s “considered choice” to bar tort claims of insurer bad faith. See 437 F. Supp. 2d at 489.
On the contrary, one reason that the court treated the bad-faith claim as contractual for choice-oflaw purposes was that doing otherwise would allow the claim to proceed, which would “run[ ]
counter to Maryland public policy.” Id. While that logic might seem objectionably results
oriented, it at least suggests that the Maryland cases are distinguishable and do not defeat this
Court’s prediction that the D.C. Court of Appeals here would not apply choice-of-law rules made
for contract claims.
The Court will accordingly apply the District’s general method for analyzing choice-oflaw questions in tort cases, known as “modified governmental interests analysis.” Washkoviak
v. Student Loan Mktg. Ass’n, 900 A.2d 168, 180 (D.C. 2006) (quotation marks and citation
omitted); cf. Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198, 202–03 (D.C. 1997) (treating
interests-based analysis as “general” approach also relevant to contract claims in insurance
context). To “identify the jurisdiction with the most significant relationship to the dispute,” D.C.
courts “evaluate the governmental policies underlying the applicable laws and determine which
jurisdiction’s policy would be more advanced by the application of its law to the facts of the case
under review.” Washkoviak, 900 A.2d at 180 (quotation marks and citation omitted); see also In
re APA Assessment Fee Litig., 766 F.3d at 51 (employing Washkoviak “as our guide”).
As relevant here, the rule announced in Choharis rests on the D.C. court’s determination
that contract principles should chiefly govern insurer-insured relationships and that any further
18
regulation of those relationships is “most appropriately” left to the legislature. See 961 A.2d at
1087; see also Fireman’s Fund Ins. Co. v. CTIA, 480 F. Supp. 2d 7, 10 (D.D.C. 2007) (noting
that D.C. Code lacks general cause of action for insurer bad faith). The Indiana Supreme Court’s
different conclusion in Hickman hinges primarily on the “special relationship” between insurer
and insured, the harm that results from insurer bad faith, and the notion that “it is in society’s
interest that there be fair play between insurer and insured.” 622 N.E.2d at 518–19.
Neither set of policies clearly trumps the other. The District has a strong interest in
holding insurers doing business there accountable to their contract terms — and those terms
alone — absent a truly independent basis for tort recovery or a decision by the legislature to
regulate the insurance industry differently. Cf. In re APA Assessment Fee Litig., 766 F.3d at 53
(noting, based on D.C. law, that rules of “non-liability” are owed “the same consideration in the
choice-of-law process” as rules that impose liability). At the same time, Indiana has a strong
interest in ensuring that its corporate citizens and other companies executing contracts in the
state deal fairly with consumers. The Court thus “cannot say” whether the policies underlying
either jurisdiction’s rule would be “more advanced than the policies of the other by the
application of its law” to this case. Washkoviak, 900 A.2d at 180.
Where no government’s interest prevails, D.C. courts also consider (1) “the place where
the injury occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the
domicile, residence, nationality, place of incorporation and place of business of the parties”; and
(4) “the place where the relationship is centered.” Id. at 180–81 (citation omitted); see also
Restatement (Second) of Conflict of Laws § 145 (enumerating same factors). Again, those
factors do not point decisively in either direction. Although Plaintiff alleges that Defendants
“caused tortious injury in the District of Columbia,” including “bad-faith claim delay,” he says
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that the company did so “by acts and omissions outside the District.” Am. Compl., ¶ 16
(emphasis added). And while McCall is domiciled in the District, see id., ¶ 35, Protective is
incorporated and has its principal place of business in Indiana. See Removal Notice, ¶ 6.
Finally, the parties’ relationship is not squarely centered in one jurisdiction or the other: the
insurance policy was “delivered” in Indiana, see Policy at ECF pp. 2, 27, but Plaintiff alleges that
Defendants “transacted business in the District of Columbia by administering, adjusting,
supervising, and communicating regarding Plaintiff’s insurance claim while Plaintiff resided in
the District.” Am. Compl., ¶ 15. In addition, the “insured risk” likely lay in Virginia, given that
McCall lived and worked there before he moved to the District. Vaughan, 702 A.2d at 202
(citation omitted); Am. Compl., ¶¶ 12, 52.
So must we flip a coin? Fortunately, there is a rule for this situation. Where the Court
“cannot determine from the pleadings which jurisdiction has a greater interest in the
controversy” — particularly given that neither Plaintiff nor Protective has briefed the choice-oflaw issues fully — it “must apply the law of the forum state, which in this case is the District of
Columbia.” Malvitz v. Fincantieri Marine Grp., LLC, 2025 WL 1663077, at *6 (D.D.C. June 12,
2025) (quoting Washkoviak, 900 A.2d at 182); see also Wu v. Stomber, 750 F.3d 944, 949 (D.C.
Cir. 2014) (“D.C. choice-of-law rules require, in a case where the factors do not point to a clear
answer, that we apply D.C. tort law, the law of the forum state.”). D.C. law it is.
b. Application of D.C. Law
As stated above, the choice of D.C. law sinks McCall’s bad-faith count because such a
tort does not exist here. Choharis, 961 A.2d at 1087–88. He tries to distinguish this case from
Choharis by framing the Protective agent’s statements as misrepresentations that
“extinguishe[d]” the claim “before the contractual process” began, as distinct from
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misrepresentations made during interactions contemplated by the contract. See Opp. at 13.
While it is true that Choharis involved “a dispute over how to perform a contractual obligation,”
id. (emphasis added) — including, for example, the insurer’s duty to provide the plaintiff with
short-term housing while his home was uninhabitable, see 961 A.2d at 1084 — its holding is not
so narrow. See id. at 1088 (“[W]e reject the broad claim of bad faith as a viable tort.”). In
refusing to recognize a tort of bad faith, the court reasoned that “bad faith conduct can be
compensated within [contract] principles” and that “no compelling basis” existed for
“intertwining” contract disputes with “considerations peculiar to tort.” Id. at 1087.
The same logic applies here. Plaintiff alleges in his Amended Complaint that the
Protective agent who directed him to Medicare “effectively deni[ed] the existence of applicable
private coverage,” Am. Compl., ¶ 4 — in other words, Protective initially refused to process a
claim that it was contractually obligated to pay. That allegation is well within the ambit of the
contractual relationship and contract law.
Further, the fact that Protective’s alleged bad faith might have caused McCall harm
beyond nonpayment of benefits does not change the outcome. In Choharis, the plaintiff sought
additional damages resulting from insurer misrepresentations and delay, including the costs of
living in a hotel and punitive damages. See 961 A.2d at 1089–90. He did so under the headings
of fraud, negligent misrepresentation, and breach of contract, but the court’s reasoning is equally
applicable to bad-faith claims like McCall’s. In ruling against the plaintiff, the court explained
that his hotel costs “would fall within the realm of recoverable contract damages” and that
punitive damages were not available because the relevant actions “cannot be characterized as
ones that merge with and assume the character of a willful tort.” Id. at 1090 (cleaned up).
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While the harms McCall alleges here are significant — “economic loss, delayed medical
treatment, aggravation of physical injury, and emotional distress,” Am. Compl., ¶ 18 — they are
“directly related to” Protective’s contractual obligation to pay valid claims and are therefore
“potentially compensable under contract principles.” Choharis, 961 A.2d at 1090. Plaintiff
likewise cannot recover punitive damages because bad faith alone does not “merge with and
assume the character of a willful tort,” as the Choharis court made abundantly clear. Id.; see id.
at 1087–88; see also Sere v. Grp. Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (stating that
“punitive damages will not lie” for mere breach of contract “even if it is proved that the breach
was willful, wanton, or malicious”).
To the extent Plaintiff wishes to amend his breach-of-contract count to account for
damages beyond “benefits owed,” Am. Compl., ¶ 111, he must file a written motion and attach
“the proposed pleading as amended.” United States ex rel. Adams v. Dell Computer Corp., 496
F. Supp. 3d 91, 102 (D.D.C. 2020) (quoting Local Civ. Rule 15.1); see also Belizan v. Hershon,
434 F.3d 579, 582 (D.C. Cir. 2006). His “bare request in [his] opposition — without any
indication of the particular grounds on which amendment is sought — does not constitute a
motion within the contemplation of Rule 15(a).” U.S. ex rel. Williams v. Martin-Baker Aircraft
Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004) (citation omitted); see Opp. at 22 (requesting leave to
amend under Rule 15(a)(2) if Court finds pleading deficiency).
2. Count III: Fraudulent Misrepresentation Against Protective
Plaintiff also brings a claim of fraudulent misrepresentation against Protective on the
ground that Defendant, through its agent, “misrepresented that Plaintiff’s only coverage option
was Medicare.” Am. Compl., ¶ 121; see Sibley v. St. Albans Sch., 134 A.3d 789, 808–09 & n.13
(D.C. 2016) (recognizing “fraudulent misrepresentation” claim as distinctive type of fraud). He
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alleges that the “statement was false,” “contradicted the Policy’s express provisions,” and “was
made knowingly or recklessly in the course of claim intake and at a time when [Protective]
possessed superior knowledge of coverage unavailable to Plaintiff.” Am. Compl., ¶¶ 122–23.
He says that he “reasonably relied on the misrepresentation” and “suffered damages as a direct
and proximate result.” Id., ¶¶ 124–25.
a. Choice of Law
As with bad faith, the D.C. Court of Appeals in Choharis dismissed several tort claims
sounding in fraud and misrepresentation because they arose from a contractual relationship. See
961 A.2d at 1089. The rules and rationales that it articulated thus apply equally here for
purposes of choice of law.
Plaintiff cites no Indiana authority on the elements of fraudulent misrepresentation,
focusing instead on defending the particularity of his pleading even though that is not
Protective’s main line of attack. Assuming, however, that a genuine conflict of laws exists as to
this purported tort, the same choice-of-law analysis as before would govern. Specific to this
count, the two jurisdictions presumably have comparable interests in preventing insurer fraud,
whether for the sake of protecting residents or holding corporate citizens in check, while the
District also maintains its interest in holding insurers accountable to their contracts (and only
their contracts). McCall himself points to no differences in governmental interests or facts that
might alter the four-factor Restatement analysis. For the reasons stated earlier, then, D.C. law
also governs his fraudulent-misrepresentation claim.
b. Application of D.C. Law
Choharis again dooms Plaintiff’s count. His arguments for fraudulent misrepresentation
rest on a subset of the facts underlying his bad-faith claim — specifically, his allegations that
23
Protective knowingly or recklessly concealed and misrepresented his coverage. Compare Am.
Compl., ¶¶ 121–23, with id., ¶¶ 115–16. The Court has already explained why the harms related
to insurer bad faith were directly related to Protective’s contractual obligations and are
potentially compensable under the contract. The same is true here: Protective’s alleged
concealment and misrepresentation of Plaintiff’s coverage is clearly not “separable from the
terms of the contract” since the contract is what defines and creates the coverage itself.
Choharis, 961 A.2d at 1089. And nowhere does McCall allege that Protective committed fraud
“in matters leading to the procurement of the contract.” Id. at 1088 n.11. Unlike the duty not to
assault or slander someone, id. at 1088, the “duty . . . to be accurate” in assessing whether a
claim is covered “flow[s] basically from the contractual relationship.” Id. at 1089–90. False
assertions about a valid claim, in turn, “directly relate[ ] to an obligation arising under the
contract.” Id. at 1090. This count thus does not survive.
3. Count IV: Negligence Against IHA and SCI
Switching Defendants in Count IV, Plaintiff alleges negligence against IHA and SCI on
the theory that they “undertook direct communications and claim intake responsibilities
independent of [Protective’s] contractual duty to pay benefits.” Am. Compl., ¶ 132. He asserts
that those undertakings “created independent duties of reasonable care” that IHA and SCI then
breached, causing him “personal injury and physical harm.” Id., ¶¶ 132–33.
a. Choice of Law
Yet again, Choharis assists in framing the governmental-interests analysis, even though it
did not itself involve a plain-vanilla negligence claim like McCall’s. See 961 A.2d at 1088–89
(broadly declining to recognize any tort arising from contractual relationship).
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The reasons that D.C. law governs Plaintiff’s other tort claims apply again here. If it
turns out that McCall’s negligence count fundamentally arises from his contractual relationship
with IHA and SCI, then the governmental interests at stake mirror those already described. If, on
the other hand, the count “exist[s] in its own right,” Choharis, 961 A.2d at 1089, then the
governmental interests balance out, too: both jurisdictions have strong interests in preventing
insurer negligence, whether to protect residents or to regulate companies contracting in the state.
The four-factor Restatement test, however, tips the scales further toward the District than before
since neither IHA nor SCI is incorporated or has a principal place of business in Indiana. See
Removal Notice, ¶ 6 (stating that “SCI is incorporated in and has a principal place of business in
Delaware” and that “IHA is a non-profit corporation incorporated and with principal place of
business in Tennessee”); see also ECF No. 12 (Notice of Members), ¶¶ 1–6 (listing SCI’s
members, none of which is incorporated in or a resident of Indiana). The Court will thus apply
D.C. law to McCall’s negligence claim.
b. Application of D.C. Law
Under Choharis, the key question is whether McCall’s negligence claim arises from his
contractual relationship with IHA and SCI. But the contours of that relationship are blurry at
best. The only contract provided to the Court and cited by the parties is the insurance policy
signed by Protective’s “[a]uthorized [r]epresentative.” Policy at ECF pp. 30, 32, 35–37. That
document names IHA as the plan “Sponsor” and SCI (somewhat opaquely) as the “Specified
Entity,” id. at ECF pp. 1–3; it makes no other mention of them, and no party has taken a position
on whether Protective’s insurance policy binds them. Plaintiff, meanwhile, has not even
acknowledged the existence of separate contracts with IHA and SCI. See, e.g., Am. Compl.,
¶¶ 127–28 (stating that IHA and SCI “owed Plaintiff duties independent of [Protective’s]
25
contractual obligations” arising from “their voluntary undertaking of enrollment, premium
collection, policy administration, and notice of loss functions,” as well as their “control over
claim intake,” their “possession and maintenance of coverage records,” and their “superior
access to coverage information unavailable to Plaintiff”).
The two Defendants nonetheless maintain that their conduct is “governed solely by the
contracts entered by Plaintiff with SCI and IHA” and that those contracts do not require them to
“participate, assist, or process an insurance claim.” IHA/SCI MTD at 8. But that only raises
further questions. Where are those contracts? And if they do not dictate claim-handling duties,
what do they require?
Such uncertainty leaves the Court little choice but to allow Plaintiff’s negligence count to
proceed. Assuming that (1) IHA and SCI played key roles in claim administration and oversight,
as Plaintiff alleges, see Am. Compl., ¶¶ 45–49, 101–03, yet (2) they had no contractual claimhandling obligations, as they acknowledge (to Plaintiff’s benefit under Choharis), see IHA/SCI
MTD at 8, the companies might well owe duties outside the contract. See Hedgepeth v.
Whitman Walker Clinic, 22 A.3d 789, 794 (D.C. 2011) (“[T]he scope of the defendant’s
undertaking determines the scope of its duty . . . .”) (cleaned up). And that might mean the rule
of Choharis does not bar Plaintiff’s negligence claims. See Choharis, 961 A.2d at 1089 (“[A]
cause of action that could be considered a tort independent of contract performance is a viable
claim, even in the insurance context.”). Without more, it is plausible — albeit still unlikely —
that the negligence at issue would “stand as a tort even if” the relevant contractual relationships
“did not exist.” Id.
IHA and SCI’s remaining argument is that McCall has not plausibly alleged causation
because his damages “arise out of” Protective’s “denial of his claim” over the phone on
26
December 3, 2021, “not the failure to transmit or ‘administer’ his claim by SCI and IHA.”
IHA/SCI MTD at 10. Proximate cause, a requirement for negligence, has two components:
“‘cause-in-fact’ and a ‘policy element[,]’ which limits a defendant’s liability when the chain of
events leading to the plaintiff’s injury is unforeseeable or ‘highly extraordinary’ in retrospect.”
Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C. 2002) (citation omitted). Questions of
proximate cause are normally fact laden: they “pass from the realm of fact to one of law” only in
“exceptional cases.” Id. (citation omitted).
Plaintiff plausibly alleges causation in maintaining that IHA’s and SCI’s omissions led to
harmful delays in his medical care. True, he says the same about Protective’s misrepresentation,
which arguably played a more significant causal role. But it could still be the case that IHA’s
and SCI’s alleged negligence was “of itself . . . sufficient to bring about” the harms, even if it
was not a but-for cause. See Restatement (Second) of Torts § 432(2) (Am. L. Inst. 1965). And
at this stage, the Court is not prepared to infer that Protective’s conduct completely neutralized
any negligence by IHA and SCI, particularly in light of Plaintiff’s allegations that IHA and SCI
had continuing oversight and claim-handling duties. See Am. Compl., ¶¶ 17, 101–03. McCall’s
negligence claims can therefore proceed.
4. Count V: Declaratory Relief
Plaintiff last frames his request for declaratory relief as a freestanding count. Id., ¶¶ 134–
36. He asks for a declaration that his insurance policy covers his accident and his resulting
expenses and that “Defendants are obligated to pay benefits.” Id., ¶ 135. He also seeks an
“order compelling payment of all covered benefits due,” which the Court construes as a request
for enforcement of the contract terms rather than for declaratory relief. Id.
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a. Choice of Law
Because Plaintiff offers no authorities to guide the Court’s analysis, see Am. Compl.,
¶¶ 134–36; Opp. at 15, it will assume that whatever law might govern this count is procedural for
vertical choice-of-law purposes and will accordingly apply federal law. See Erie, 304 U.S. at 78;
cf. Medtronic, Inc. v. Mirowski Fam. Ventures, LLC, 571 U.S. 191, 199 (2014) (“We have long
considered the operation of the [federal] Declaratory Judgment Act to be only procedural.”)
(quotation marks and citation omitted); Coccaro v. Geico Gen. Ins. Co., 648 F. App’x 876, 880–
81 (11th Cir. 2016) (deeming state law governing declaratory judgments “procedural” and thus
construing count as arising under federal Declaratory Judgment Act).
b. Application of Federal Law
Protective’s main argument for dismissal is that no actual controversy exists because the
rest of the suit “is time barred and does not state claims upon which relief may be granted” — an
argument now rendered obsolete. See Protective MTD at 11; see also Protective Reply at 8; see
generally IHA/SCI MTD (not addressing count at all). The better argument is that declaratory
relief “is not cognizable as a separate cause of action,” Intelsat USA Sales Corp. v. Juch-Tech,
Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013), and, in any event, it would “add nothing” to this
suit given that the breach-of-contract claim remains in play. Butler v. Enter. Integration Corp.,
459 F. Supp. 3d 78, 108 (D.D.C. 2020) (citation omitted). The Court will therefore dismiss the
count for declaratory relief.
* * *
With the main issues resolved, the Court turns to a handful of miscellaneous requests.
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First, Protective asks it to strike Plaintiff’s demand for punitive damages, which
accompanies his bad-faith claim. See Protective MTD at 11–12 (invoking Fed. R. Civ. Proc.
12(f)); Am. Compl., ¶ 119. Given that such count does not survive, nor can this demand.
Second, Protective asks the Court to strike “Plaintiff’s attempt to identify Protective as
any other entity other than its correct legal name.” Protective MTD at 11. It contends that
McCall — who frequently refers to the company as “Progressive” in his Amended Complaint —
“has no grounds to assert claims as to ‘Progressive,’ ‘Progressive Fleet & Specialty Programs,
Inc.,’ or ‘and/or Affiliated Entity’ because these companies do not exist.” Id. at 12. Plaintiff
responds that he encountered such names during the “claims process” and that he is entitled to
plead facts accordingly. See Opp. at 16. The Court will deny Protective’s request, as the
company has not identified any prejudice it will suffer if the pleadings stay intact, and Plaintiff
already introduces the company in the Amended Complaint as “Defendant Protective Insurance
Company.” Am. Compl., ¶ 36.
Third and last, McCall has filed a Motion for Leave to File a Surreply responding to
Defendants’ Replies. See generally ECF No. 22 (Mot. for Leave to File Surreply). The standard
for granting leave is “whether the party making the motion would be unable to contest matters
presented to the court for the first time in the opposing party’s reply.” Lewis v. Rumsfeld, 154 F.
Supp. 2d 56, 61 (D.D.C. 2001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.
Cir. 2003). McCall argues that Protective’s newfound reliance on certain allegations in the
Amended Complaint justifies granting leave. See Mot. for Leave to File Surreply at 2;
Protective Reply at 4–5; Am. Compl., ¶ 84 (stating that “Defendants were on actual and
constructive notice of reasonably foreseeable litigation no later than December 3, 2021,” and that
Plaintiff “subsequently served preservation demands on [Protective] and SCI” at an unspecified
29
time). As those rather ambiguous allegations did not factor into the Court’s analysis in this
Opinion, any need to respond is now moot. Plaintiff’s myriad other arguments focus on how
Defendants have allegedly “mischaracterized [his] position” — an objection that “does not
involve a new matter.” Lewis, 154 F. Supp. 2d at 61; see Mot. for Leave to File Surreply at 2–5.
He also objects to Defendants’ elaboration on preexisting legal arguments and their reliance on
additional cases, which similarly does not warrant granting leave. See Mot. for Leave to File
Surreply at 2–4. The Court will therefore deny Plaintiff’s Motion.
IV. Conclusion
For the foregoing reasons, the Court will grant Protective’s Motion to Dismiss Counts II
(insurer bad faith), III (fraudulent misrepresentation), and V (declaratory relief), but it will deny
the Motion with respect to Count I (breach of contract). It will also deny IHA and SCI’s Motion
to Dismiss Count IV (negligence). Finally, the Court will deny Protective’s two requests to
strike material from Plaintiff’s pleadings and will likewise deny his Motion for Leave to File a
Surreply. An Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: October 2, 2026
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