McCall v. Progressive Fleet & Specialty Programs, Inc.
CourtDistrict Court, District of Columbia
Date FiledOctober 2, 2026
DocketCivil Action No. 2026-1184
JudgeChief Judge James E. Boasberg
StatusPublished
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Full Opinion
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-of-
laws 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 suit-
limitation 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 fact-
intensive nature of the inquiry and the high threshold for deeming a claim conclusively time-
barred 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
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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 bad-
faith 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 bad-
faith 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-of-
law 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-of-
law 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
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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