MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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.
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 claim must be dismissed. The Court agrees with GEICO.
Only one decision from the District of Columbia has recognized a cause of action in tort based upon an insurer's bad faith refusal to pay an insurance claim. In Washington v. Group Hosp., Inc., 585 F. Supp. 517 (D.D.C. 1984), Judge Greene found that "many jurisdictions have recognized a cause of action in tort for the bad faith refusal of an insurer to pay. The District of Columbia is no exception." Id. at 520. This Court is not bound by the decision of Judge Greene, and it respectfully declines to follow the result reached in Washington v. Group Hosp.
The Court reaches a conclusion contrary to that of Judge Greene for several reasons. First, the Court finds that District of Columbia case law does not compel the decision reached in Washington v. Group Hosp. That case relies primarily upon the decision of the District of Columbia Court of Appeals in Continental Ins. Co. v. Lynham, 293 A.2d 481 (D.C. 1972). In Lynham, appellees brought an action against their insurer seeking to recover the cost of damages to their motor boat, plus punitive damages and attorneys' fees incurred in bringing the action. Id. at 482. The trial court denied punitive damages but awarded attorneys' fees of $ 1,000. Id. The only issue before the Court of Appeals was whether the award of attorneys' fees was justified. The Court concluded that it was not. Id. at 483-84. The parties did not raise a tort claim of bad faith refusal to pay, nor did the Court of Appeals decide that such a cause of action existed. The Lynham decision does not create the tort of bad faith refusal to pay nor does it control the case before this Court.
Second, the Court finds that District of Columbia statutory law does not recognize a cause of action in tort based upon an insurer's bad faith failure to pay an insurance claim. The District of Columbia Code provides a remedy in cases when an insurer fails to pay insurance benefits for injuries caused by uninsured motorists. A beneficiary may recover interest on the overdue benefits, D.C. Code Ann. § 35-2110(c) (1981 ed.) (1988 Repl. Vol.), and attorneys' fees incurred in recovering the overdue benefits. Id. § 35-2110(e)(1). Nowhere does the District of Columbia Code provide for a private cause of action against an insurer based upon the insurer's bad faith refusal to pay a claim.
The lack of a statutory private cause of action in the District of Columbia becomes more significant when compared to the statutes of other states which do provide causes of action for bad faith refusal to pay. See Fla. Stat. Ann. § 624.155 (1991 Supp.) (insured entitled to bring civil action and seek punitive damages based upon insurer's wrongful failure to pay claim); Ga. Code Ann. § 33-34-6 (1982) (insured entitled to bring civil action and seek punitive damages based upon insurer's failure to pay benefits in good faith). Relying upon the doctrine of expressio unius est exclusio alterius -- "the mention of one thing implies the exclusion of another" -- the Court will not infer a private cause of action for bad faith denial of an insurance claim when the District of Columbia Council has expressly provided for other remedies. See McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986).
Finally, the Court finds that the decision of Judge Greene in Washington v. Group Hosp. has not been universally followed. In Clayton v. Government Employees Ins. Co., Civ. No. 88-1310 (D.D.C. May 8, 1989) (Transcript of hearing), Judge Lamberth declined to follow Judge Greene's decision, reasoning that the District of Columbia Council had not expressly provided for a tort action and that no appellate case had held that such a cause of action existed. Id. at 3. Judge Lamberth concluded that a "bad faith action cannot be maintained against an insurance company." Id. at 2. Similarly, in a case from the Superior Court for the District of Columbia, Washington Hosp. Center Corp. v. Smith, Civ. Nos. 746-85 & 815-83 (D.C. Super. Ct. Mar. 23, 1987), Judge Wolf rejected a tort claim of bad faith refusal to pay an insurance claim:
The court rules that District of Columbia law does not recognize a cause of action of bad faith insurance claim denial between insurer and insured, and does not recognize a tort claim for alleged breach of contract. The court respectfully disagrees with Judge Harold H. Greene's views to the contrary . . .