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WASHINGTON v. GOVERNMENT EMPLES. INS. CO.

March 28, 1991

LA TONYA WASHINGTON, Plaintiff,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY and Sharon Hunter , Defendants



The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 The Court today will decide several motions arising from this matter. First, the Court will grant in part the motion of defendant Government Employees Insurance Company ("GEICO") for summary judgment and find that plaintiff La Tonya Washington is not entitled to bring a tort claim based upon GEICO's alleged bad faith denial of her insurance claim. Second, the Court will dismiss the complaint against defendant Sharon Hunter, it appearing that Washington has agreed to dismiss her case against Hunter. Finally, the Court will allow Washington to amend her complaint to add a claim of intentional infliction of emotional distress.

 I. Background

 Few of the facts in this matter are undisputed. On or about December 10, 1988, Washington was seriously injured when she was struck by a hit-and-run driver. She subsequently filed a claim with GEICO seeking compensation for expenses arising from her injuries. Her claim was denied by GEICO through its employee Sharon Hunter, and she brought this action on September 26, 1990.

 Washington alleges that on the date of the accident she was a passenger in an automobile owned by Christen Jackson and driven by Tyrone Henderson with Jackson's consent. The automobile is insured by GEICO under a policy that provides personal injury protection ("PIP") benefits to passengers injured by uninsured motorists. Washington claims that this policy provides coverage for injuries to passengers from hit-and-run drivers. The central factual question in this matter is whether Washington was a passenger in Jackson's automobile at the time of the accident, and thus whether Washington is entitled to PIP benefits under Jackson's insurance policy with GEICO.

 Washington alleges that she was in the process of entering the automobile when she was struck by the unknown vehicle. *fn1" According to Washington, at about 2:00 a.m. Henderson parked Jackson's vehicle on Fourth Street, N.E., between Edgewood and Channing Streets, and entered an apartment across the street while Washington waited in the car. Henderson failed to return for a long period of time, and Washington went to the apartment in an attempt to convince Henderson to return to the vehicle. Unsuccessful in her efforts and lacking bus fare or an alternative means of transportation, Washington decided to return to the car and continue waiting. Washington exited the apartment, crossed Fourth Street and was attempting to open the car door when she was struck by the hit-and-run driver. *fn2"

 GEICO investigated Washington's claim and denied that it occurred in the manner described by Washington. In a letter dated March 24, 1989, Hunter informed Washington's attorney that although GEICO's investigation was ongoing, "there is no indication that [Washington] remained a passenger at the time of this incident. . . . She would be considered a pedestrian and . . . no coverage would be applicable." Pl. Opp. Mem. Exh. 3. In a letter dated May 10, 1989, Hunter advised Washington's attorney that an interview with Henderson, the police report, and the lack of damage to Jackson's automobile indicated that Washington was not a passenger at the time of her injuries and that she would not be covered under Jackson's policy with GEICO. Id. Exh. 5.

 GEICO completed its investigation and denied coverage on July 27, 1989. Id. Exh. 6 (letter of Sharon Hunter to W. Edward Thompson). Relying upon statements made by Henderson, GEICO concluded that Henderson and Washington had parked the vehicle and walked to the apartment of Henderson's friend. Henderson had locked the vehicle and pocketed the keys, making it impossible for Washington to reenter the car when she subsequently left the apartment prior to Henderson's departure. Henderson further testified that he had given Washington money for bus fare at the time she left the apartment. Although one witness, Derrick Williams, observed the hit-and-run driver strike Washington, he could not determine whether she was entering an automobile at the time of the accident. *fn3" Based on this information, GEICO concluded that "the facts of this loss do not support La Tonya as passenger in our insured vehicle at the time of the accident." Id.

 Washington brought this complaint on September 26, 1990, alleging that GEICO and Hunter "breached the implied covenant of good faith and fair dealing" contained in Jackson's insurance policy "by unreasonably withholding payment to plaintiff." Complaint at 3, para. 9. She also alleges that the defendants' actions were "outrageous, willful, unreasonable and in bad faith." Id. The complaint demands judgment against GEICO and Hunter, jointly and severally, in the amount of $ 500,000 in compensatory damages and $ 500,000 in punitive damages. Id. at 3.

 II. GEICO's Motion for Summary Judgment

 Washington's complaint for breach of the covenant of good faith and fair dealing implicates claims under both tort and contract theories. The complaint appears to bring an action in tort based upon GEICO's bad faith refusal to pay Washington's insurance claim. Washington's claims for punitive damages and to hold GEICO and Hunter jointly and severally liable imply that she seeks to allege an action in tort. The complaint also sets forth a contract cause of action. Washington presumably seeks the PIP benefits allegedly owed to her as a beneficiary of Jackson's insurance policy, and punitive damages, although unusual in contract actions, are available in extremely limited circumstances. Faced with the dual legal theories raised by Washington's complaint, the Court will address GEICO's motion for summary judgment under each theory. *fn4"

 A. The tort cause of action

 Washington's complaint raises the tort claim of bad faith refusal to pay an insurance claim. GEICO argues that District of Columbia law does not recognize such a cause of action and that the ...


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