USCA4 Appeal: 21-2147 Doc: 31 Filed: 12/14/2022 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2147

WAJIH IREIFEJ,

Plaintiff – Appellant,

v.

TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA,

Defendant – Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:20-cv-00739-NCT-JLW)

Submitted: October 28, 2022 Decided: December 14, 2022

Before WYNN and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Anthony DiUlio, WHEELER, DIULIO & BARNABEI, Philadelphia, Pennsylvania, for Appellant. Gemma L. Saluta, Ryan H. Niland, WOMBLE BOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-2147 Doc: 31 Filed: 12/14/2022 Pg: 2 of 7

PER CURIAM:

Plaintiff-Appellant Wajih Ireifej appeals the district court’s order granting

Defendant-Appellee Travelers Casualty Insurance Company of America’s motion to

dismiss his complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Finding no reversible error, we affirm.

I.

Ireifej owned an apartment complex in Thomasville, North Carolina, which was

covered by an insurance policy issued by Travelers and which sustained damage from a

fire on April 28, 2015. The loss was deemed covered by the Policy, and Travelers adjusted

the claim and made an initial payment on July 14, 2015. This payment reflected the actual

cash value—that is, the cost of repair or replacement minus depreciation. However, the

Policy provided that Ireifej could also seek compensation for the replacement cost value

for covered losses, which would compensate for the cost of repair or replacement without

subtracting depreciation. In order to be compensated on a replacement-cost basis, the

Policy required the claimant to “actually” repair or replace the damaged property and to do

so “as soon as reasonably possible after the loss or damage.” J.A. 150. 1

The Policy also provided that, in the event of a disagreement as to the proper

valuation of the loss, either the claimant or Travelers could invoke an appraisal process to

determine the value. This appraisal process was invoked in early 2017, after Travelers had

made the initial, actual-cash-value payment to Ireifej. The appraisal increased the actual-

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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cash-value award amount, and on October 10, 2019, Travelers issued a check to Ireifej

reflecting the appraisal award.

On March 27, 2020, Ireifej’s representative informed Travelers that Ireifej intended

to purchase a replacement property. Travelers notified Ireifej that because he had “not

satisfied the terms and conditions of the policy with regard to payment on a replacement

cost basis,” it would not pay him the recoverable depreciation. J.A. 245. Specifically,

Travelers stated that “the purchase of the [proposed replacement property] more than four

(4) years after the April 28, 2015 loss does not constitute a replacement ‘made as soon as

reasonably possible after the loss or damage’” as required by the Policy. J.A. 246.

Ireifej filed suit in North Carolina Superior Court on July 13, 2020, asserting claims

for breach of contract, common law bad faith, and violations of the North Carolina Unfair

and Deceptive Trade Practices Act. Travelers removed the case to the federal district court

for the Middle District of North Carolina, invoking federal diversity jurisdiction, and

moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6). The district court

granted the motion. Ireifej timely appealed.

II.

We review a district court’s dismissal under Federal Rule of Civil Procedure

12(b)(6) de novo. Skyline Restoration, Inc. v. Church Mut. Ins. Co.,

(4th

Cir. 2021). We must “accept as true all of the factual allegations contained in the complaint

and draw all reasonable inferences in favor of the plaintiff.”

(quoting King v.

Rubenstein,

(4th Cir. 2016)). In order to survive a motion to dismiss, a

complaint “must contain sufficient facts to ‘state a claim to relief that is plausible on its

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face.’”

(quoting Bell Atl. Corp. v. Twombly,

(2007)). Because

jurisdiction is based on diversity of citizenship,

, we apply North Carolina

substantive law. Skyline Restoration,

.

III.

Ireifej argues that the district court improperly dismissed his claims for breach of

contract and common law bad faith as time-barred. We disagree.

The parties disagree as to which section of the North Carolina General Statutes

supplies the limitations period here and, consequently, when that period began to run.

Travelers asserts that the claims are governed by

, which applies

to fire insurance policies in the state. Section 58-44-16(b) provides that, with exceptions

not relevant here, no fire insurance policy shall be issued by an insurer of any property in

North Carolina unless it conforms with requirements set out in subsection (f) of the statute.

Subsection (f), in turn, provides that no suit for the recovery of claims shall be brought

“unless commenced within three years after inception of the loss.”

-

44-16(f)(18) (emphasis added). Accordingly, the Policy at issue here incorporates a three-

year limitations period for legal actions against Travelers, which runs from the date of loss.

J.A. 76. Thus, Travelers contends that the suit was untimely because it was filed more than

three years after the April 2015 fire.

Ireifej argues that the applicable statute of limitations here is the three-year period

established by

(1) for breach-of-contract actions in general. Because

a cause of action for breach of contract generally accrues at the time of the breach,

Christenbury Eye Ctr., P.A. v. Medflow, Inc.,

(N.C. 2017), and

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because Ireifej contends that the breach occurred when Travelers informed Ireifej that it

would not make the replacement cost payment on April 10, 2020, Ireifej argues that his

complaint filed just a few months later was timely.

We recently addressed this very question, explaining that “[g]enerally, in North

Carolina, a breach of contract claim is subject to a three-year statute of limitations”

pursuant to

(1) and that “[g]enerally, under the applicable case law,

a breach of contract claim accrues on the date of breach.” Skyline Restoration,

. However, we continued:

[A] separate three-year statute of limitations applies to certain insurance policies.

(12). Specifically, § 1-52(12) applies a three- year limitations period to an action “[u]pon a claim for loss covered by an insurance policy that is subject to the three-year limitation contained in [North Carolina General Statute §] 58-44-16.” Under § 58-44-16, such a claim must be brought within three years of the loss.

Id. (citation omitted). In Skyline Restoration, we affirmed dismissal of the plaintiff’s claims

for breach of contract as untimely, calculating the limitations period to run from the date

of loss, not the date of the subsequent breach.

Thus, the statute of limitations here ran from the date of the fire in April 2015.

Additionally, the district court correctly concluded that there is no support for any

argument that the statute of limitations is tolled during appraisal in North Carolina. See

Bankaitis v. Allstate Ins. Co.,

(M.D.N.C. 2017).

The district court was correct to conclude that Ireifej’s claims were time-barred.

Additionally, because Ireifej concedes that the bad-faith claim is subject to the same statute

of limitations as the breach-of-contract claim, the bad-faith claim is also time-barred.

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Ireifej also asserts that Travelers is estopped from asserting a statute-of-limitations

defense. In North Carolina, equitable estoppel requires “(1) conduct on the part of the party

sought to be estopped which amounts to a false representation or concealment of material

facts; (2) the intention that such conduct will be acted on by the other party; and (3)

knowledge, actual or constructive, of the real facts.”

at 386–87 (quoting Trillium Ridge

Condo. Ass’n v. Trillium Links & Vill., LLC,

(N.C. Ct. App. 2014)).

Here, the district court correctly concluded that Ireifej did not plead facts demonstrating

misrepresentation or concealment by Travelers that would have prevented Ireifej from

timely filing suit. The district court therefore correctly concluded that equitable estoppel

did not apply.

IV.

Ireifej also argues that the district court improperly dismissed his claim under North

Carolina’s Unfair and Deceptive Trade Practices Act. We affirm that the district court

properly dismissed this claim.

To support an unfair or deceptive trade practices claim under

-

1.1, a plaintiff must allege “(1) an unfair or deceptive act or practice, (2) in or affecting

commerce, and (3) which proximately caused injury to plaintiff[].” Gray v. N.C. Ins.

Underwriting Ass’n,

(N.C. 2000). As the district court correctly

concluded, Ireifej merely made conclusory statements alleging that Travelers engaged in

conduct constituting unfair or deceptive acts or practices; he did not plead facts to support

those allegations as required to survive the motion to dismiss. A “formulaic recitation of

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the elements of a cause of action,” as Ireifej set forth here, “will not do.” Skyline

Restoration,

(quoting Twombly,

).

V.

Finally, Ireifej argues that the district court erred in denying his request to amend

his complaint. We have reviewed the district court’s denial for abuse of discretion, see In

re Triangle Cap. Corp. Sec. Litig.,

(4th Cir. 2021), and conclude that

the court did not abuse its discretion.

VI.

The judgment of the district court is affirmed. 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

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