Petition for Writ of Certiorari — Iona Howard, Petitioner v. Amica Mutual Insurance Company

APP. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 22-2321

IONA HOWARD,

Plaintiff - Appellant,

V.

AMICA MUTUAL INSURANCE COMPANY,

Defendant - Appellee,

and

ROBERT A. DIMUCCIO, CEO Amica Mutual

Insurance Company,

Defendant.

Appeal from the United States District Court for the

District of Maryland, at Greenbelt. Paul W. Grimm,

Senior District Judge. (8:22-cv-00662-PWG)

Submitted: July 20, 2023

Before KING, GREGORY, and AGEE, Circuit

Judges. Affirmed by unpublished per curiam

opinion. Decided: August 1, 2023 Iona Howard,

APP. 2

Appellant Pro Se. James Michael Connolly,

KRAMER & CONNOLLY, Reisterstown, Maryland,

for Appellee.

Unpublished opinions are not binding

precedent in this circuit.

PER CURIAM:

Iona Howard appeals the district court's order

dismissing her civil complaint without prejudice for

failure to state a claim. We have reviewed the record

and find no reversible error. Accordingly, we affirm

the district court's order. Howard v. Amica Mut. Ins.

Co., No. 8:22-cv-00662-PWG (D. Md. Dec. 9, 2022).

We dispense with oral argument because the facts

and legal contentions are adequately presented in

the materials before this court and argument would

not aid the decisional process. AFFIRMED

No. 22-2321,

FILED: August 1, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Iona Howard v. Amica Mutual Insurance

Company 8:22-cv-00662-PWG

APP. 3

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance

with Fed. R. App. P. 36. Please be advised of the

following time periods:

PETITION FOR WRIT OF CERTIORARI:

The time to file a petition for writ of certiorari runs

from the date of entry of the judgment sought to be

reviewed, and not from the date of issuance of the

mandate. If a petition for rehearing is timely filed in

the court of appeals, the time to file the petition for

writ of certiorari for all parties runs from the date of

the denial of the petition for rehearing or, if the

petition for rehearing is granted, the subsequent

entry of judgment. See Rule 13 of the Rules of the

Supreme Court of the United States;

www.supremecourt.gov.

VOUCHERS FOR PAYMENT OF APPOINTED

OR ASSIGNED COUNSEL:

Vouchers must be submitted within 60 days of entry

of judgment or denial of rehearing, whichever is

later. If counsel files a petition for certiorari, the 60-

day period runs from filing the certiorari petition.

(Loc. R. 46(d)). If payment is being made from CJA

funds, counsel should submit the CJA 20 or CJA 30

Voucher through the CJA eVoucher system. In cases

not covered by the Criminal Justice Act, counsel

should submit thecounsel should submit the

Assigned Counsel Voucher to the clerk's office for

APP. 4

payment from the Attorney Admission Fund. An

Assigned Counsel Voucher will be sent to counsel

shortly after entry of judgment. Forms and

instructions are also available on the court's web

site, www.ca4,uscourts.gov, or from the clerk's office.

BILL OF COSTS:

A party to whom costs are allowable, who desires

taxation of costs, shall file a Bill of Costs within 14

calendar days of entry of judgment. (FRAP 39, Loc.

R. 39(b)).

PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC:

A petition for rehearing must be filed within 14

calendar days after entry of judgment, except that in

civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45

days after entry of judgment. A petition for rehearing

en banc must be filed within the same time limits

and in the same document as the petition for

rehearing and must be clearly identified in the title.

The only grounds for an extension of time to file a

petition for rehearing are the death or serious illness

of counsel or a family member (or of a party or family

member in pro se cases) or an extraordinary

circumstance wholly beyond the control of counsel or

a party proceeding without counsel.

Each case number to which the petition applies must

be listed on the petition and included in the docket

APP. 5

entry to identify the cases to which the petition

applies. A timely filed petition for rehearing or

petition for rehearing en banc stays the mandate and

tolls the running of time for filing a petition for writ

of certiorari. In consolidated criminal appeals, the

filing of a petition for rehearing does not stay the

mandate as to co-defendants not joining in the

petition for rehearing. In consolidated civil appeals

arising from the same civil action, the court's

mandate will issue at the same time in all appeals.

A petition for rehearing must contain an introduction

stating that, in counsel's judgment, one or more of

the following situations exist: (1) a material factual

or legal matter was overlooked; (2) a change in the

law occurred after submission of the case and was

overlooked; (3) the opinion conflicts with a decision of

the U.S. Supreme Court, this court, or another court

of appeals, and the conflict was not addressed; or (4)

the case involves one or more questions of

exceptional importance. A petition for rehearing,

with or without a petition for rehearing en banc, may

not exceed 3900 words if prepared by computer and

may not exceed 15 pages if handwritten or prepared

on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R.

40(c)).

MANDATE:

In original proceedings before this court, there is no

mandate. Unless the court shortens or extends the

time, in all other cases, the mandate issues 7 days

APP. 6

after the expiration of the time for filing a petition

for rehearing. A timely petition for rehearing,

petition for rehearing en banc, or motion to stay the

mandate will stay issuance of the mandate. Jf the

petition or motion is denied, the mandate will issue 7

days later. A motion to stay the mandate will

ordinarily be denied, unless the motion presents a

substantial question or otherwise sets forth good or

probable cause for a stay. (FRAP 41, Loc. R. 41).

U.S. COURT OF APPEAL FOR THE FOURTH

CIRCUIT BILL OF COSTS FORM

(Civil Cases)

Directions: Under FRAP 39(a), the costs of appeal in

a civil action are generally taxed against appellant if

a judgment is affirmed or the appeal is dismissed.

Costs are generally taxed against appellee if a

judgment is reversed. If a judgment is affirmed in

part, reversed in part, modified, or vacated, costs are

taxed as the court orders. A party who wants costs

taxed must, within 14 days after entry of judgment,

file an itemized and verified bill of costs, as follows:

* Itemize any fee paid for docketing the appeal. The

fee for docketing a case in the court of appeals is

$500 (effective 12/1/2018). The $5 fee for filing a

notice of appeal is recoverable as a cost in the district

court.

* Itemize the costs (not to exceed $.15 per page) for

copying the necessary number of formal briefs and

APP. 7

appendices. (Effective 10/1/2015, the court requires 1

copy when filed; 3 more copies when tentatively

calendared; 0 copies for service unless brief/appendix

is sealed.). The court bases the cost award on the

page count of the electronic brief/appendix. Costs for

briefs filed under an informal briefing order are not

recoverable.

* Cite the statutory authority for an award of costs if

costs are sought for or against the United States. See

28 U.S.C. § 2412 (limiting costs to civil actions); 28

U.S.C. § 1915()(1) (prohibiting award of costs

against the United States in cases proceeding

without prepayment of fees).

Any objections to the bill of costs must be filed within

14 days of service of the bill of costs. Costs are paid

directly to the prevailing party or counsel, not to the

clerk's office.

Case Number & Caption: Prevailing Party

Requesting Taxation of Costs: Appellate Docketing

Fee (prevailing appellants):

Amount Requested:

Amount Allowed: Document

No. of Copies

Cost

Total Cost (<$.15)

APP. 8

Requested Allowed (court use only)

TOTAL BILL OF COSTS: $0.00 $0.00

1. If copying was done commercially, I have attached

itemized bills. If copying was done in-house, I certify

that my standard billing amount is not less than $.15

per copy or, if less, I have reduced the amount

charged to the lesser rate. 2. If costs are sought for or

against the United States, I further certify that 28

U.S.C. § 2412 permits an award of costs. 3. I declare

under penalty of perjury that these costs are true

and correct and were necessarily incurred in this

action.

Signature: Date:

Certificate of Service

I certify that on this date I served this document as

follows: Signature: Date:

FILED: August 1, 2023

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 22-2321 (8:22-cv-00662-PWG)

IONA HOWARD

Plaintiff - Appellant V.AMICA MUTUAL

INSURANCE COMPANY Defendant - Appellee

APP. 9

and

ROBERT A. DIMUCCIO, CEO Amica Mutual

Insurance Company

Defendant

JUDGMENT

In accordance with the decision of this court, the

judgment of the district court is affirmed.

This judgment shall take effect upon issuance of this

court's mandate in accordance with Fed. R. App. P.

41.

/s} PATRICIA S. CONNOR, CLERK

APP. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

IONA HOWARD,

Plaintiff,

Case No.: 22-cv-662-PWG

v. *

AMICA MUTUAL INSURANCE CO.

Defendant.

MEMORANDUM OPINION AND ORDER

Pending before me is Defendant Amica Mutual

Insurance Company’s (“Amica”) Motion to Dismiss

the Amended Complaint for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 16

(“Motion to Dismiss”). Amica’s Motion to Dismiss is

fully briefed! and no hearing is necessary. Local

Rule 105.6 (D. Md. 2021). For the reasons explained

below, Amica’s Motion to Dismiss is granted and

this case is dismissed without prejudice.

BACKGROUND

Ms. Howard filed the Complaint in this action on

March 18, 2022. ECF No. 1, Compl. She Amended

her Complaint on May 9, 2022. ECF No. 11, Am.

Compl. The Amended Complaint alleges, in sum,

APP. 11

that Amica’s insured, a Ms. Doloress Zalavsky,

struck Ms. Howard with her vehicle and did not stop

the car until eyewitnesses chased her as she drove

away. Id. Ms. Howard alleges that she was seriously

injured and was admitted to the hospital for

approximately two weeks following the accident. Id.

4 15. As a result of the accident, Ms. Howard alleges

she has ! See ECF No. 18, Response in Opposition;

ECF No. 22, Reply to Response.

“back and upper neck injuries” that have required

extensive treatment, including a neck surgery

in early 2022. Id. ¢ 16 Ms. Howard alleges that an

Amica employee sent her a letter six months

after the accident “stating [Ms. Howard] was at

fault” for the accident. Id. § 17. Ms. Howard

seeks approximately $10 million in damages.

The Amended Complaint includes a single count of

negligence against Amica. Throughout the

negligence count, the Amended Complaint also

claims multiple violations of the Maryland

Declaration of Rights. Amica moves to dismiss the

Amended Complaint in its entirety.

STANDARD OF REVIEW

A complaint must be dismissed under Fed. R.

Civ. P. 12(b)(6) if it “fails to state a claim upon which

relief can be granted.” The purpose of the rule is to

test the sufficiency of the complaint, not to address

its merits. Presley v. City of Charlottesville,

APP. 12

464 F.3d 480, 483 (4th Cir. 2006). To survive a

motion to dismiss under Rule 12(b)(6), the complaint

must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S.

662, 678-79 (2009). The claim for relief must be

plausible, and “threadbare recitals of the elements of

a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678—

79. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at 678.

When reviewing a motion to dismiss, the

Court must accept the well pleaded facts in the

operative complaint and also may “consider

documents attached to the complaint, as well as

documents attached to the motion to dismiss, if they

are integral to the complaint and their authenticity

is not disputed.” Sposato v. First Mariner Bank, No.

CCB-12-1569, 2013 WL 1808582, at *2 (D. Md. Mar.

28, 2013) (citing Philips v. Pitt County Memorial

Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). It is wellestablished in the Fourth Circuit that the pleadings

of pro se parties should be liberally construed to

recognize meritorious claims and serve justice. See

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.

1978). But that does not mean that I can “ignore a

clear failure to allege facts that set forth a cognizable

claim” and construct a claim for Mr. St. Clair myself.

See McCoy v. Pepco Holdings, Inc., 2016 WL

8678000, at *4 (D. Md. 2016).

APP. 13

ANALYSIS

Amica argues that the Amended Complaint fails to

state a claim on which relief can be granted for two

reasons: first because the factual allegations do not

satisfy the basic elements of a negligence claim, and

second because Maryland law does not permit a

lawsuit against an alleged tortfeasor’s insurer unless

and until the tortfeasor’s liability is established by

verdict or judgment. Motion to Dismiss at 3—4. I

agree. “To state a claim of negligence in Maryland, a

plaintiff must establish the following four elements:

a duty owed to him or her (or to a class of which he or

she is a part), a breach of that duty, a legally

cognizable causal relationship between the breach of

the duty and the harm suffered, and damages.”

Kennedy Krieger Inst., Inc. v. Partlow, 191 A.3d 425,

440 (Md. 2018) (cleaned up). Here, Ms. Howard has

failed to allege the duty owed to her by Amica, how

Amica breached that duty, or how that breach

caused the damages for which she seeks recovery.

And although I read Ms. Howard’s pro se Amended

Complaint liberally, I cannot simply ignore a

complete dearth of factual allegations that would

support the claims alleged. Additionally, it is wellestablished under Maryland law that “a tort

claimant may not maintain a direct action against

the defendant tortfeasor's liability insurer until there

has been a determination of the insured's liability in

the tort action. Once there is a verdict or judgment

in the tort action, a direct action may be

maintained against the liability insurer.”

APP.14

Washington Metro. Area Transit Auth. v. Queen, 597

A.2d 423, 425-26 (Md. 1991) (collecting cases).

There is no allegation that there has been any

finding by a court with respect to Ms. Zalavsky’s

hability. And Ms. Howard may not maintain a direct

action against Amica unless and until there is. For

those reasons, Amica’s Motion to Dismiss Ms.

Howard's negligence claim is granted.

Ms. Howard also alleges that Amica committed

multiple violations of the Maryland Declaration of

Rights. As briefly explained below, Ms. Howard has

failed to state a claim under any of the Articles cited

in her Amended Complaint:

* Article 17 - Article 17 is Maryland’s equivalent of

the ex post facto clause in the United States

Constitution. In short, it prohibits the enactment of

laws that retroactively criminalize actions that were

lawful at the time they were committed. The

Amended Complaint repeatedly cites Article 17 but

offers no explanation for how it applies. Because

Article 17 is inapplicable to this civil suit against a

private entity, Amica’s Motion to Dismiss must be

granted with respect to any Article 17 claim made by

Ms. Howard.

* Article 19 — Maryland courts apply Article 19

in the following contexts: “(1) Guaranteeing a right to

a remedy both in circumstances in which the

legislature has failed to provide such a remedy and

in circumstances in which the legislature

APP.15

unreasonably seeks to limit an existing remedy.

These claims arise in a variety Of situations,

including new or expanded immunities, damage

caps, statutes of limitation and _ repose,

and alternative compensation systems; (2) Ensuring

that rights belonging to Marylanders are not

illegally or arbitrarily denied by the government; and

(3) to ensure that courtrooms are open to litigants

and the public.” Friedman, D., Jackson v. Dackman

Co.: The Legislative Modification of Common Law

Tort Remedies Under Article 19 of the Maryland

Declaration of Rights, 77 Md. L. Rev. 949 (2018).

Here, Ms. Howard alleges that Ms. Zalavsky violated

her rights under Article 19 when she failed to “stop

to see if [Ms. Howard] was alive” but instead

continued driving.

I struggle to see how that constitutes a violation of

Article 19, and, in any event, Ms. Zalavsky is not a

defendant in this action. The Amended Complaint is

devoid of any allegations regarding

Amica’s violation of Article 19. Therefore, Amica’s

Motion to Dismiss must be granted with respect to

any Article 19 claim made by Ms. Howard.

* Article 24 — “Article 24 is Maryland's analogue to

the Fourteenth Amendment of the United States

Constitution.” Okwa v. Harper, 757 A.2d 118, 141

(2000); State v. Dett, 891 A.2d 1118, 1120 (2006)

(“Article 24 of the Declaration of Rights is the State

analogue to the due process clauses of the Fifth and

Fourteenth Amendments.”), Claims under Article 24

APP. 16

are based either on alleged due process or equal

protection violations. Id. Here, Ms. Howard vaguely

asserts that various conduct by Ms. Zalavsky

violated her rights under Article 24. But Ms.

Zalavsky is not a defendant in this Action, and the

Amended Complaint contains no allegations

regarding any conduct by Amica that could

constitute an Article 24 violation. Accordingly,

Amica’s Motion must be granted with respect to

any Article 24 claims made by Ms. Zalavsky.

* Article 45 ~— Article 45 provides that “[t]his

enumeration of Rights shall not be construed to

impair or deny others retained by the People.” Article

45 has no facial application to this case. And because

the Amended Complaint provides no explanation of

the alleged violation, Amica’s Motion to Dismiss any

such claims must be granted.

* Article 46 — Article 46 provides that “Equality of

rights under the law shall not be abridged or denied

because of sex.” The Amended Complaint offers no

explanation for invoking Article 46, which is wholly

inapplicable to this motor vehicle tort case.

Amica’s Motion to Dismiss any Article 46 claims

must be granted.

* Article 47 — Finally, Article 47 provides certain

rights to victims of crimes. This Article, too, is

wholly inapplicable in this civil action against a

liability insurer. Amica’s Motion to Dismiss those

claims must be granted.

APP. 17

In its final paragraph, the Amended Complaint also

appears to allege, without elaboration, that there

was “tortious interference” by Amica. Id. | 19. The

same paragraph also cites as apparent bases for

recovery various portions of the Internal Revenue

Code, the Civil Rights Act, and, most curiously,

Amica’s Charter as filed with the State of Maryland.

There are no factual bases provided for any of these

violations, and, like Amica, I am at a loss with

respect to their application in this auto-tort case. To

the extent the Amended Complaint seeks relief from

any of those sources, the Motion to Dismiss any such

claims is granted.

CONCLUSION

For the reasons explained above, Amica’s Motion to

Dismiss is GRANTED. And because Amica’s Motion

to Dismiss is granted, Ms. Howard’s Motion for

Summary Judgment, ECF No. 28, is DENIED.

Finally, because no hearing is necessary to resolve

this case, see Local Rule 105.6, Ms. Howard’s Motion

to be Heard, ECF No. 19, is also DENIED.

ORDER

For the reasons identified in the foregoing

Memorandum Opinion, it is hereby

ORDERED that: 1. Amica Mutual Insurance

Company’s Motion to Dismiss, ECF No. 16, is

APP. 18

GRANTED and this case is DISMISSED WITHOUT

PREJUDICE;

2. Ms. Howard’s Motion for Summary Judgment,

ECF No. 28, is DENIED;

3. Ms. Howard’s Motion to be Heard, ECF No. 19, is

DENIED;

4. The Clerk shall send a copy of this Memorandum

Opinion and Order to Ms. Howard at her address of

record;

5. The Clerk shall close this case.

Dated: December 9, 2022 /S/

Paul W. Grimm

United States District Judge