Alyssa Majesko v. Nationwide Mutual Insurance Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 29, 2018
• Docket: 18-10132
• Status: Unpublished

Opinion

Case: 18-10132 Date Filed: 08/29/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10132 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-00222-MHC

ALYSSA MAJESKO, on behalf of herself and all persons similarly situated,

Plaintiff - Appellant,

versus

NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, ABC COMPANIES 1-5,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(August 29, 2018)

Before WILSON, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-10132 Date Filed: 08/29/2018 Page: 2 of 3

Alyssa Majesko appeals the district court’s dismissal of all of her claims at

the motion to dismiss stage against defendants Nationwide Mutual Insurance

Company and Nationwide Affinity Insurance Company of America (collectively,

Nationwide) and ABC Companies 1–5. Majesko’s case arises out of her attempt to

recover the diminished value of a Mercedes-Benz vehicle she leased that was

severely damaged in an accident in Georgia. Majesko obtained a car insurance

policy for that vehicle from the defendants. On appeal, Majesko argues that the

district court erred in: dismissing her breach of contract claim because Georgia law

and the policy do not prevent the lessee of a vehicle from recovering its diminished

value; concluding that Nationwide had not waived its standing arguments; holding

that the language in the lease divested her of standing as a bailee to pursue claims

against Nationwide; and deciding that Nationwide’s diminished value payment to

Mercedes precluded her diminished value claim against Nationwide. After

thorough review of the parties’ briefs and the record, we affirm.

I.

We review de novo a district court’s grant of a motion to dismiss for failure

to state a claim. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th

Cir. 1998). We accept the well-pleaded facts in the complaint as true and construe

them in the light most favorable to the non-moving party. Guarino v. Wyeth, LLC,

719 F.3d 1245, 1248 (11th Cir. 2013). A claim can only survive a motion to

2 Case: 18-10132 Date Filed: 08/29/2018 Page: 3 of 3

dismiss if it is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,

127 S. Ct. 1955, 1974 (2007). Facial plausibility occurs “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009).

II.

Because Majesko cannot bring this case absent standing, we start (and

ultimately end) with the standing issue. Majesko argues that Nationwide waived

its standing arguments, but standing arguments are not subject to waiver. United

States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431, 2435 (1995); see also Fed. R.

Civ. P. 12(h)(3) (mandating the dismissal of an action at any time if it is

determined that subject matter jurisdiction is lacking). And the plain language of

the lease specifies that Mercedes is the only entity that could “initiate, settle, or

release” an insurance claim arising out of the physical damage of its vehicle. See

Mark Singleton Buick, Inc. v. Taylor, 391 S.E.2d 435, 437 (Ga. Ct. App. 1990)

(explaining that the lease terms govern the rights of the bailor and the bailee).

Therefore, Majesko has no standing to bring a claim for the diminished value of

the vehicle, and because the rest of her claims emanate from that claim, she does

not have standing to bring any of her claims in this case.

AFFIRMED.