Barringer v. Progressive Select Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARCIA BARRINGER
:
v. 	: 	Civil Action No. DKC 25-1414
:
PROGRESSIVE SELECT INSURANCE
COMPANY 	:
MEMORANDUM OPINION
Presently pending and ready for resolution in this insurance
dispute is the motion to dismiss for failure to state a claim or,
in 	the 	alternative, 	for 	summary 	judgment 	filed 	by 	Progressive
Select 	Insurance 	Company 	(“Defendant” 	or 	“Progressive 	Select”).
(ECF 	No. 	8). 	The 	issues 	have 	been 	briefed, 	and 	the 	court 	now
rules, no hearing being deemed necessary. 	Local Rule 105.6. 	For
the following reasons, the motion will be denied.
I. 	Background
On 	November 	8, 	2022, 	Marcia 	Barringer 	(“Ms. 	Barringer” 	or
“Plaintiff”) 	was 	a 	passenger 	in 	a 	car 	driven 	by 	her 	husband 	when
an 	uninsured 	motorist 	collided 	with 	them 	in 	Suitland, 	Maryland.
(ECF No. 2 ¶ 5). 	Ms. Barringer alleges that she suffered injuries
to her back and right knee “[a]s a direct result of the accident.”
(Id. ¶ 6). 	She further alleges that the injury to her knee in the
accident caused two subsequent falls. 	(Id. ¶ 7). 	On January 17,
2023, she “fell when her knee buckled” and fractured her left pinky
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toe. 	(Id.). 	On May 16, 2024, her knee gave out when she attempted
to rise from her seat, “resulting in a fall that injured her left
hand.” 	(Id.). 	Ms. 	Barringer 	alleges 	that 	she 	“promptly 	sought
and received medical treatment for all injuries sustained.” 	(Id.
¶ 8).
Ms. 	Barringer 	was 	insured 	under 	an 	auto 	insurance 	contract
with Progressive1 that included personal injury protection (“PIP”)
coverage. 	(Id. ¶ 10; ECF No. 8-3, at 1). 	The insurance contract
provided 	that 	Progressive 	would 	make 	no 	payment 	to 	the 	insured
under 	its 	PIP 	coverage 	unless 	the 	insured 	presents 	her 	claim 	to
Progressive within twelve months of the accident causing personal
injury. 	(ECF 	No. 	8-3, 	at 	1). 	Ms. 	Barringer 	alleges 	that
Progressive 	“has 	refused 	to 	pay 	the 	medical 	expenses 	directly 	to
Plaintiff 	or 	assume 	responsibility 	for 	the 	additional 	injuries
resulting from the falls.” 	(ECF No. 2 ¶ 9).
On February 27, 2025, Ms. Barringer filed a complaint pro se
against Progressive Select in the Circuit Court for Prince George’s
County, 	Maryland. 	(ECF 	Nos. 	1 	¶ 	1; 	2). 	In 	her 	complaint, 	she
asserts 	two 	counts: 	Count 	I 	is 	a 	claim 	for 	breach 	of 	contract,
(ECF 	No. 	2 	¶¶ 	10–11), 	and 	Count 	II 	is 	a 	claim 	for 	bad 	faith
1 	The 	parties 	dispute 	whether 	the 	underwriting 	company 	is
Progressive Select or Progressive Casualty Insurance Company. 	In
recognition of this dispute, the court refers to the underwriting
company as “Progressive” in this paragraph.
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insurance 	practices, 	(Id. 	¶¶ 	12–13). 	She 	seeks 	$300,000 	in
compensatory 	damages 	along 	with 	damages 	for 	pain, 	suffering, 	and
emotional distress. 	(Id. at 3).
Progressive 	Select 	removed 	the 	case 	to 	this 	court 	on 	May 	2,
2025, asserting diversity jurisdiction. 	(ECF No. 1 ¶ 11). 	On May
16, Progressive Select moved to dismiss Ms. Barringer’s complaint
for 	failure 	to 	state 	a 	claim 	or, 	in 	the 	alternative, 	for 	summary
judgment. 	(ECF 	No. 	8). 	The 	court 	mailed 	a 	Rule 	12/56 	Notice 	to
Ms. Barringer the same day advising her that she had twenty-eight
days 	to 	respond 	to 	Progressive 	Select’s 	motion. 	(ECF 	No. 	9).
Accordingly, 	Ms. 	Barringer’s 	response 	was 	due 	on 	June 	13. 	After
several months without a response from Ms. Barringer, Progressive
Select 	filed 	a 	line 	on 	September 	17 	requesting 	a 	ruling 	on 	its
motion. 	(ECF 	No. 	11). 	Ms. 	Barringer 	then 	filed 	her 	response 	in
opposition on October 6, nearly four months after her response was
due. 	(ECF No. 12). 	Progressive Select filed its reply on October
20 and did not object to Ms. Barringer’s untimely opposition. 	(ECF
No. 	14). 	Ms. 	Barringer 	then 	filed 	a 	sur-reply 	on 	October 	26.2
(ECF No. 15).
2 	Ordinarily, 	sur-replies 	are 	not 	permitted 	absent 	leave 	of
court. 	Local Rule 105.2.a. 	Given Plaintiff’s pro se status, the
court 	construes 	Plaintiff’s 	sur-reply 	as 	a 	motion 	for 	leave 	to
file sur-reply and grants it.
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II. 	Defendant’s Motion Is One for Summary Judgment
As a threshold matter, the court must determine how to analyze
Defendant’s 	motion. 	Defendant 	moves 	to 	dismiss 	for 	failure 	to
state 	a 	claim 	or, 	in 	the 	alternative, 	for 	summary 	judgment. 	“‘A
motion 	styled 	in 	this 	manner 	implicates 	the 	court’s 	discretion
under 	Rule 	12(d)’ 	. 	. 	. 	to 	determine 	whether 	to 	accept 	evidence
outside the pleadings, and thus convert a Rule 12(b)(6) motion to
a Rule 56 motion.” 	Coleman v. Calvert County, No. 15-cv-920-GJH,
2016 	WL 	5335477, 	at 	*3 	(D.Md. 	Sep. 	22, 	2016) 	(quoting 	McCray 	v.
Md. 	Dep’t 	of 	Transp., 	No. 	11-cv-3732-ELH, 	2013 	WL 	210186, 	at 	*15
(D.Md. 	Jan. 	16, 	2013), 	aff’d 	in 	part, 	vacated 	in 	part 	on 	other
grounds 	by, 	741 	F.3d 	480 	(4 th 	Cir. 	2014)) 	(citing 	Fed.R.Civ.P.
12(d); McCray, 2013 WL 210186, at *16). 	Defendant attaches to its
motion 	an 	affidavit 	and 	a 	portion 	of 	the 	insurance 	contract 	in
question, 	(ECF 	Nos. 	8-2; 	8-3), 	which 	are 	not 	appropriate 	to
consider 	on 	a 	motion 	to 	dismiss 	unless 	they 	are 	integral 	to 	the
complaint, Faulkenberry v. U.S. Dep’t of Def., 670 F.Supp.3d 234,
249 (D.Md. 2023) (quoting Reamer v. State Auto. Mut. Ins. Co., 556
F.Supp.3d 	544, 	549 	(D.Md. 	2021), 	aff’d, 	No. 	21-2432, 	2022 	WL
17985700 	(4th 	Cir. 	Dec. 	29, 	2022)). 	“[F]or 	an 	extrinsic 	document
to 	be 	integral 	to 	a 	complaint 	the 	document 	must 	either 	give 	rise
to 	a 	claim 	or 	be 	the 	basis 	of 	an 	element 	of 	a 	claim.” 	Defs. 	of
Wildlife v. Boyles, 608 F.Supp.3d 336, 345 (D.S.C. 2022); see also
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Goines 	v. 	Valley 	Cmty. 	Servs. 	Bd., 	822 	F.3d 	159, 	166 	(4 th 	Cir.
2016). 	The portion of the insurance contract attached is plainly
integral to the complaint because it is the portion of the contract
that 	Plaintiff 	alleges 	Defendant 	breached. 	The 	affidavit,
however, 	which 	is 	relevant 	to 	Count 	II, 	is 	not 	integral 	to 	the
complaint; 	it 	did 	not 	give 	rise 	to 	Plaintiff’s 	claims.
Accordingly, it is proper to consider the affidavit only on summary
judgment. 	Furthermore, Defendant’s argument regarding Count I is
an 	affirmative 	defense, 	which 	is 	generally 	inappropriate 	to
consider 	on 	a 	motion 	to 	dismiss 	unless 	it 	appears 	on 	the 	face 	of
the complaint. 	L.N.P. v. Kijazaki, 64 F.4th 577, 585–86 (4 th Cir.
2023) (citing Goodman v. Praxair, Inc., 494 F.3d 458, 464, 466 (4 th
Cir. 	2007) 	(en 	banc)). 	The 	affirmative 	defense 	that 	Defendant
raises 	does 	not 	appear 	on 	the 	face 	of 	Plaintiff’s 	complaint.
Because of the affidavit Defendant attaches to its motion relevant
to Count II and the nature of the argument Defendant raises as to
Count I, the court will treat Defendant’s motion as one for summary
judgment.
Treating 	Defendant’s 	motion 	as 	one 	for 	summary 	judgment 	is
not 	unfair 	to 	Plaintiff. 	Two 	requirements 	must 	be 	met 	before
converting a motion to dismiss into one for summary judgment: (1)
actual notice to the nonmovant that the conversion may occur, and
(2) 	reasonable 	opportunity 	for 	discovery. 	See 	Gay 	v. 	Wall, 	761
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F.2d 175, 177 (4 th Cir. 1985). 	The first requirement is met when
the movant styles his motion to dismiss as one for summary judgment
in the alternative. 	Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 	253, 	260 	(4 th 	Cir. 	1998). 	Here, 	Defendant 	styled 	its 	motion
as a “Motion to Dismiss, or in the Alternative, Summary Judgment.”
(ECF No. 8, at 1).
The 	second 	requirement 	is 	met 	when 	the 	nonmovant 	fails 	to
“file an affidavit or declaration pursuant to Rule 56(d) . . . []
explaining 	why, 	‘for 	specified 	reasons, 	it 	cannot 	present 	facts
essential 	to 	justify 	its 	opposition,’ 	without 	needed 	discovery.”
Sager v. Housing Comm’n of Anne Arundel Cnty., 855 F.Supp.2d 524,
542–43 & 543 n.26 (D.Md. 2012) (quoting Fed.R.Civ.P. 56(d)) (citing
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4 th
Cir. 2002)); see also Harrods, 302 F.3d at 244 (“[T]he failure to
file an affidavit under Rule [56(d)] is itself sufficient grounds
to 	reject 	a 	claim 	that 	the 	opportunity 	for 	discovery 	was
inadequate.” (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4 th Cir. 1996))). 	Here, Plaintiff failed to request
time for discovery through a Rule 56(d) affidavit, which itself is
sufficient to satisfy the second requirement. 	Absent a Rule 56(d)
affidavit 	or 	declaration, 	she 	also 	fails 	to 	identify 	“which
specific facts are yet to be discovered.” 	McCray, 741 F.3d at 484
(citing 	Nader 	v. 	Blair, 	549 	F.3d 	953, 	961 	(4 th 	Cir. 	2008)). 	She
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argues 	in 	her 	opposition 	that 	she 	did 	not 	receive 	the 	Rule 	12/56
Notice that the court mailed to her on May 16, 2025, apprising her
of 	the 	requirements 	of 	the 	summary 	judgment 	rule, 	and 	thus 	was
“deprived of fair notice . . . of the requirement to file evidence
in 	opposition.” 	(ECF 	No. 	12, 	at 	2). 	Even 	assuming 	she 	did 	not
receive 	the 	Rule 	12/56 	Notice 	in 	May 	when 	the 	court 	mailed 	it,
Plaintiff 	gained 	access 	to 	the 	docket 	and 	evidently 	viewed 	the
Rule 12/56 Notice before filing her opposition and subsequent sur-
reply. 	In 	other 	words, 	Plaintiff 	still 	received 	the 	Rule 	12/56
Notice 	before 	filing 	any 	response. 	Therefore, 	she 	did 	not 	lack
notice 	of 	the 	requirements 	of 	Rule 	56, 	and 	her 	argument 	fails 	to
specify 	whether 	she 	needed 	discovery 	to 	supply 	evidence 	in
opposition. 	In her sur-reply, she further requests that the court
“permit 	this 	case 	to 	proceed 	to 	discovery.” 	(ECF 	No. 	15, 	at 	2).
This 	request, 	however, 	merely 	reflects 	Plaintiff’s 	understanding
of 	the 	procedural 	posture 	of 	the 	case, 	not 	a 	basis 	for 	barring
consideration of Defendant’s motion as one for summary judgment.
Accordingly, 	both 	requirements 	are 	met 	to 	treat 	Defendant’s
motion 	as 	one 	for 	summary 	judgment. 	Additionally, 	Plaintiff 	is
not 	prejudiced 	by 	consideration 	of 	Defendant’s 	motion 	as 	one 	for
summary 	judgment 	because 	the 	court 	denies 	Defendant’s 	motion 	on
both counts.
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III. Standard of Review
Summary judgment is appropriate under Fed.R.Civ.P. 56(a) when
there is no genuine dispute as to any material fact, and the moving
party 	is 	entitled 	to 	judgment 	as 	a 	matter 	of 	law. 	A 	fact 	is
material 	if 	it 	“might 	affect 	the 	outcome 	of 	the 	suit 	under 	the
governing 	law.” 	Libertarian 	Party 	of 	Va. 	v. 	Judd, 	718 	F.3d 	308,
313 	(4th 	Cir. 	2013) 	(quoting 	Henry 	v. 	Purnell, 	652 	F.3d 	524, 	548
(4th 	Cir. 	2011) 	(Shedd, 	J., 	dissenting)). 	A 	dispute 	about 	a
material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” 	Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 	When evaluating a
motion 	for 	summary 	judgment, 	the 	court 	“view[s] 	all 	facts 	and
reasonable inferences in the light most favorable to the nonmoving
party.” 	Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4 th Cir.
2020) (citing News & Observer Publ’g Co. v. Raleigh-Durham Airport
Auth., 	597 	F.3d 570, 	576 	(4 th 	Cir. 	2010)). 	The 	“judge’s 	function
is 	not 	himself 	to 	weigh 	the 	evidence 	and 	determine 	the 	truth 	of
the 	matter 	but 	to 	determine 	whether 	there 	is 	a 	genuine 	issue 	for
trial.” 	Anderson, 477 U.S. at 249.
“The 	moving 	party 	bears 	the 	‘initial 	responsibility’ 	of
showing that there is no genuine issue of material fact.” 	Shaw v.
Foreman, 	59 	F.4th 	121, 	129 	(4 th 	Cir. 	2023) 	(quoting 	Celotex 	Corp.
v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986)). 	If 	the 	moving 	party
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satisfies 	that 	burden, 	“the 	nonmoving 	party 	must 	then 	go 	beyond
the 	pleadings 	and 	affidavits 	and 	show 	that 	there 	are 	‘specific
facts 	showing 	that 	there 	is 	a 	genuine 	issue 	for 	trial.’” 	Id.
(quoting Celotex, 477 U.S. at 324).
Plaintiff 	in 	this 	case 	is 	pro 	se. 	Courts 	hold 	pro 	se
pleadings 	to 	“less 	stringent 	standards 	than 	formal 	pleadings
drafted 	by 	lawyers.” 	Erickson 	v. 	Pardus, 	551 	U.S. 	89, 	94 	(2007)
(quoting 	Estelle 	v. 	Gamble, 	429 	U.S. 	97, 	106 	(1976)). 	The 	court
has 	an 	obligation 	to 	construe 	filings 	of 	self-represented
litigants liberally. 	Id. 	It is generally inappropriate to grant
pre-discovery summary judgment against a pro se litigant when she
has put the court “on fair notice of potential disputes as to the
sufficiency 	of 	the 	summary 	judgment 	record.” 	Shaw, 	59 	F.4th 	at
129 (citing Pledger v. Lynch, 5 F.4th 511, 526 (4 th Cir. 2021)).
IV. 	Analysis
A. 	Plaintiff’s Delayed Response in Opposition
Plaintiff 	filed 	her 	response 	in 	opposition 	to 	Defendant’s
motion 	nearly 	four 	months 	after 	it 	was 	due. 	To 	explain 	her
tardiness, 	she 	contends 	that 	after 	Defendant 	removed 	the 	case 	to
this 	court, 	she 	“never 	received 	any 	mailed 	or 	electronic 	notice
confirming 	that 	the 	Notice 	of 	Removal 	had 	been 	granted, 	nor 	any
order from the federal court advising that the case had officially
been 	transferred 	or 	that 	Plaintiff 	had 	30 	days 	to 	file 	any
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responsive 	pleading 	or 	amendment.” 	(ECF 	No. 	12, 	at 	1). 	As 	a
result, 	she 	“believ[ed] 	the 	matter 	remained 	pending 	in 	state
court.” 	(Id.). 	Only 	soon 	before 	she 	filed 	her 	response 	in
opposition did she “discover[] the federal docket.” 	(Id.). 	It is
unclear which documents, if any, she received in the mail and how
she came to discover the federal docket. 	Defendant, however, has
not objected to Plaintiff’s untimely opposition.
Whether 	to 	consider 	an 	untimely 	filing 	for 	failure 	to 	abide
by 	the 	court’s 	briefing 	schedule 	is 	a 	matter 	within 	the 	court’s
discretion. 	See Shields v. Verizon Md., LLC, No. 23-cv-2932-JMC,
2024 WL 1050996, at *3 (D.Md. Mar. 11, 2024) (citing Ball-Rice v.
Bd. 	of 	Educ., 	No. 	11-cv-1398-PJM, 	2013 	WL 	2299725, 	at 	*5 	(D.Md.
May 24, 2013); Parker v. Goldman Sachs Mortg. Co. Ltd. P’ship, 596
F.Supp.3d 	559, 	568 	n.5 	(D.Md. 	2022)). 	Fed.R.Civ.P. 	6(b)(1)(B)
allows the court to “retroactively extend the deadline by which a
party 	was 	required 	to 	file 	a 	motion 	if 	that 	party 	failed 	to 	meet
that deadline ‘because of excusable neglect.’” 	Id. at *3 (quoting
Fed.R.Civ.P. 	6(b)(1)(B)). 	Excusable 	neglect 	is 	an 	“elastic
concept.” 	Pioneer 	Inv. 	Servs. 	Co. 	v. 	Brunswick 	Assocs. 	Ltd.
P’ship, 	507 	U.S. 	380, 	392 	(1993) 	(quoting 	4A 	Wright 	& 	Miller’s
Federal 	Practice 	& 	Procedure 	§ 	1165 	(2 d 	ed. 	1987)). 	In 	another
context patterned after Rule 6(b), the Supreme Court of the United
States 	has 	explained 	that 	“excusable 	neglect” 	may 	include
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“inadvertence, 	mistake, 	or 	carelessness, 	as 	well 	as 	. 	. 	.
intervening 	circumstances 	beyond 	the 	party’s 	control.” 	Id. 	at
388. 	Relevant 	factors 	include 	“the 	danger 	of 	prejudice 	to 	the
[opposing party], the length of the delay and its potential impact
on 	judicial 	proceedings, 	the 	reason 	for 	the 	delay, 	including
whether 	it 	was 	within 	the 	reasonable 	control 	of 	the 	movant, 	and
whether the movant acted in good faith.” 	Id. at 395 (citing In re
Pioneer Inv. Servs. Co., 943 F.2d 673, 677 (6 th Cir. 1991)).
Despite the length of Plaintiff’s delay, it still falls within
the 	“elastic” 	outer 	bounds 	of 	excusable 	neglect. 	Plaintiff 	was
mistaken 	that 	the 	court 	needed 	to 	“grant” 	removal 	and 	order 	the
transfer 	of 	the 	case 	from 	state 	court 	to 	federal 	court. 	Removal
automatically transfers the case to federal court, at which point
the case may be remanded to state court upon a valid objection by
the plaintiff or the court’s sua sponte determination that it lacks
jurisdiction. 	See 28 U.S.C. §§ 1446–1447. 	If Plaintiff’s untimely
response was due to this mistake, it is excusable given her pro se
status. 	If 	she 	indeed 	failed 	to 	receive 	notice 	of 	Defendant’s
summary 	judgment 	motion, 	then 	her 	untimely 	response 	was 	due 	to
circumstances 	beyond 	her 	control, 	the 	heartland 	of 	excusable
neglect. 	The 	Pioneer 	factors 	support 	this 	conclusion. 	First,
Defendant’s 	failure 	to 	contest 	Plaintiff’s 	untimely 	response 	is
strong 	evidence 	that 	consideration 	of 	Plaintiff’s 	response 	would
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not prejudice Defendant. 	Second, Plaintiff’s delay of four months
was 	certainly 	long, 	but 	other 	courts 	have 	considered 	similarly
delayed filings by pro se litigants. 	See, e.g., Harper v. United
Airlines, No. 23-cv-22329, 2024 WL 3371404, at *1 n.1 (D.N.J. July
11, 	2024) 	(considering 	pro 	se 	plaintiff’s 	opposition 	filed 	more
than five months late); Bowden v. City of Buffalo, No. 15-cv-6565,
2021 WL 1162879, at *3 & n.1 (W.D.N.Y. Mar. 26, 2021) (considering
pro se plaintiff’s opposition filed more than three months late).
Third, 	as 	previously 	discussed, 	the 	reason 	for 	Plaintiff’s 	delay
appears 	to 	be 	either 	mistake 	or 	lack 	of 	timely 	notice. 	Finally,
there 	is 	no 	evidence 	in 	the 	record 	that 	Plaintiff 	acted 	with 	bad
faith; 	to 	the 	contrary, 	her 	consistent 	participation 	in 	the
litigation in recent months demonstrates good faith.
The court will consider Plaintiff’s late opposition.
B. 	Proper Entity
Defendant 	first 	argues 	that 	the 	case 	should 	be 	dismissed
because 	the 	named 	Defendant, 	“Progressive 	Select 	Insurance
Company,” is the incorrect party; the correct party, it contends,
is 	“Progressive 	Casualty 	Insurance 	Company.” 	(ECF 	No. 	8, 	at 	3).
Defendant 	attached 	to 	its 	motion 	an 	affidavit 	from 	a 	Progressive
Casualty 	Insurance 	Company 	claims 	officer, 	Brandon 	Murphy, 	who
states that he is handling the claim related to the November 2022
accident. 	(ECF 	No. 	8-2 	¶¶ 	1–2). 	He 	asserts 	that 	“the 	correct
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underwriting 	company 	is 	Progressive 	Casualty 	Insurance 	Company,”
not 	Progressive 	Select 	Insurance 	Company. 	(Id. 	¶ 	3). 	Plaintiff
responds 	that 	“[t]he 	policy, 	correspondence, 	and 	claim 	documents
all identify Progressive Select as the responsible insurer.” 	(ECF
No. 	12, 	at 	1). 	Neither 	party 	has 	supplied 	the 	full 	insurance
policy 	that 	identifies 	the 	underwriting 	company. 	Without 	that
document, a genuine dispute of material fact remains based on the
parties’ 	conflicting 	assertions 	about 	the 	identity 	of 	the
underwriting company. 	Defendant’s motion for summary judgment on
this ground is denied.
C. 	Count I: Breach of Contract
In 	Count 	I, 	Plaintiff 	alleges 	that 	Defendant 	“refus[ed] 	to
pay for [her] medical expenses, including those resulting from the
falls,” in breach of its contractual obligation under the parties’
auto 	insurance 	contract 	“to 	cover 	medically 	necessary 	expenses
arising 	from 	auto 	accidents.” 	(ECF 	No. 	2 	¶¶ 	10–11). 	Defendant
moves for summary judgment on this count on the basis that it “is
time 	barred 	under 	the 	policy 	and 	Maryland 	law” 	because 	Plaintiff
did 	not 	present 	a 	PIP 	claim 	to 	Defendant 	within 	twelve 	months 	of
the November 8, 2022, accident. 	(ECF No. 8, at 3). 	Under Maryland
law, auto insurers may condition the payment of benefits on filing
a claim with the insurer within at least twelve months of the date
of 	the 	motor 	vehicle 	accident. 	Md. 	Code 	Ann., 	Ins. 	§ 	19-
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508(a)(2)(i). 	Defendant 	did 	just 	that 	here, 	stating 	in 	the 	PIP
coverage 	endorsement: 	“No 	payment 	shall 	be 	made 	under 	this
endorsement for any claim for Personal Injury Protection benefits
that 	is 	not 	originally 	presented 	to 	us 	within 	12 	months 	of 	the
date 	of 	the 	accident.” 	(ECF 	No. 	8-3, 	at 	1). 	Defendant 	contends
that Plaintiff did not present a claim to it before filing suit on
February 27, 2025, over two years after the accident. 	(ECF No. 8,
at 	3). 	Accordingly, 	Defendant 	argues, 	Plaintiff’s 	breach 	of
contract 	is 	barred 	by 	the 	“statute 	of 	limitations.” 	(Id. 	at 	4).
Plaintiff responds that Defendant’s “claim representatives delayed
providing 	PIP 	forms 	and 	claim 	numbers 	despite 	multiple 	requests
following 	the 	November 	8, 	2022 	accident,” 	which 	“warrant[s]
equitable tolling.” 	(ECF No. 12, at 1–2).3 	Defendant interprets
Plaintiff’s 	argument 	as 	an 	“admi[ssion] 	that 	she 	did 	not 	file 	a
timely 	PIP 	claim.” 	(ECF 	No. 	14 	¶ 	1). 	Somewhat 	confusingly,
Plaintiff then retorts that her claim “arises from the Defendant’s
partial 	denial 	of 	injury 	compensation 	[in 	an 	‘insufficient
3 	In 	support 	of 	this 	argument, 	Plaintiff 	cites 	“Bertina 	v.
Maryland Auto Ins. Fund, 492 A.2d 1050 (Md. Ct. Spec. App. 1985).”
(ECF 	No. 	12, 	at 	2). 	No 	such 	case 	with 	that 	caption 	or 	at 	that
location in the Atlantic Reporter appears to exist. 	The reporter
citation 	directs 	to 	the 	middle 	of 	an 	unrelated 	New 	Jersey 	case
regarding zoning. 	In re Application of Madin, 492 A.2d 1034, 1050
(N.J.Super.Ct.App.Div. 1985).
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settlement 	offer’], 	not 	an 	untimely 	PIP 	claim.” 	(ECF 	No. 	15, 	at
1).4
There 	are 	several 	material 	facts 	that 	the 	parties 	do 	not
dispute. 	Neither 	party 	disputes 	the 	existence 	of 	the 	auto
insurance 	contract 	governing 	Defendant’s 	obligation 	to 	pay
benefits to Plaintiff upon a proper claim, (ECF Nos. 8, at 3–4; 8-
3; 	12, 	at 	1–2), 	and 	that 	Defendant 	has 	not 	paid 	benefits 	to
Plaintiff 	related 	to 	the 	November 	8, 	2022, 	accident, 	(ECF 	Nos. 	2
¶ 	9; 	8, 	at 	3; 	12, 	at 	1–2). 	Moreover, 	neither 	party 	appears 	to
dispute 	that 	a 	claim 	by 	Plaintiff 	related 	to 	that 	accident 	is
currently pending under the claim number 22-2889587. 	(ECF Nos. 2
¶ 	10; 	8-2 	¶ 	2). 	Plaintiff 	does 	not 	dispute 	explicitly 	that 	she
presented this claim after the twelve-month deadline expired, (ECF
No. 12, at 2 (requesting equitable tolling, implying a concession
that 	she 	did 	not 	present 	a 	timely 	claim)), 	though 	when 	precisely
she did present the claim is unclear. 	Defendant’s statement that
Plaintiff 	did 	not 	make 	a 	claim 	for 	PIP 	benefits 	before 	February
4 	Based 	on 	Plaintiff’s 	filings, 	it 	appears 	that 	settlement
negotiations 	between 	Plaintiff 	and 	Defendant 	have 	proceeded
parallel 	to 	this 	litigation. 	(ECF 	No. 	12, 	at 	1 	(“Plaintiff 	has
been working with the adjustor trying to resolve this case[.]”)).
Plaintiff’s sur-reply seems to reflect a misguided effort to recast
her original breach of contract claim as a challenge to Defendant’s
settlement offer. 	(ECF No. 15, at 1 (“This lawsuit properly seeks
judicial 	review 	of 	the 	insufficient 	settlement 	offer[.]”)).
Plaintiff 	evidently 	did 	not 	accept 	Defendant’s 	“insufficient”
settlement offer, thus the underlying claim remains the same.
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27, 2025, (ECF No. 8, at 3), implies that Plaintiff presented the
currently 	pending 	claim 	after 	that 	date. 	It 	is 	difficult 	to
reconcile 	that 	statement, 	however, 	with 	the 	fact 	that 	Plaintiff
already possessed her claim number at the time she filed her first
complaint on February 24, 2025. 	(ECF No. 1-2 ¶ 10).
The 	parties 	do 	dispute, 	however, 	the 	circumstances
surrounding 	Plaintiff’s 	presentment 	of 	a 	claim 	to 	Defendant.
Although 	Defendant 	labels 	the 	twelve-month 	claim 	filing 	deadline
a 	“statute 	of 	limitations,” 	this 	presentment 	deadline 	is 	treated
as a condition precedent under Maryland law. 	Gov’t Emps. Ins. Co.
v. Harvey, 278 Md. 548, 554 (1976) (“We think [the defendant] GEICO
had 	a 	contractual 	right 	to 	deny 	liability 	based 	on 	[the
plaintiff’s] 	failure 	to 	comply 	with 	the 	condition 	precedent
requiring that proof of claim be made within six months after the
accident.”) (discussing an earlier version of Md. Code Ann., Ins.
§ 	19-508). 	As 	with 	a 	statute 	of 	limitations 	argument, 	the
defendant 	bears 	the 	burden 	of 	proof 	of 	failure 	to 	satisfy 	a
condition 	precedent. 	See 	United 	States 	ex 	rel. 	Tusco, 	Inc. 	v.
Clark 	Constr. 	Grp., 	LLC, 	235 	F.Supp.3d 	745, 	753 	(D.Md. 	2016)
(“[F]ailure 	to 	satisfy 	a 	condition 	precedent 	is 	ordinarily
considered an affirmative defense.” (citing Howard Robson, Inc. v.
Town 	of 	Rising 	Sun, 	No. 	14-cv-2003-ELH, 	2015 	WL 	424773, 	at 	*12
(D.Md. 	Jan. 	30, 	2015); 	Nat’l 	Lab. 	Coll., 	Inc. 	v. 	Hillier 	Grp.
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17
Architecture 	N.J., 	Inc., 	No. 	09-cv-1954-DKC, 	2012 	WL 	3264959, 	at
*6 (D.Md. Aug. 9, 2012))). 	Although Plaintiff’s argument regarding
equitable tolling of the statute of limitations is misplaced, her
identification 	of 	delays 	on 	Defendant’s 	behalf 	during 	the 	claims
process remains a valid counter to Defendant’s condition precedent
defense. 	“When 	a 	party 	to 	a 	contract 	contributes 	to 	the 	non-
occurrence 	of 	the 	condition 	precedent, 	a 	trial 	court 	may 	. 	. 	.
waive 	the 	condition 	precedent” 	by 	applying 	the 	“prevention
doctrine,” which “is a generally recognized principle of contract
law 	that 	states 	if 	one 	party 	to 	a 	contract 	‘hinders, 	prevents 	or
makes 	impossible 	performance 	by 	the 	other 	party, 	the 	latter’s
failure to perform will be excused.’” 	Patriot Constr., LLC v. VK
Elec. 	Servs., 	LLC, 	257 	Md.App. 	245, 	264 	n.1 	(2023) 	(quoting
WSC/2005 LLC v. Trio Ventures Assocs., 460 Md. 244, 267 (2018)).
At 	this 	early 	stage, 	Defendant 	does 	not 	carry 	its 	burden
regarding 	failure 	of 	a 	condition 	precedent. 	To 	begin, 	Defendant
has 	not 	produced 	any 	evidence 	regarding 	the 	claims 	process 	and
timeline 	thereof 	with 	Plaintiff, 	despite 	providing 	an 	affidavit
from the claims officer handling the claim stating that the claim
exists. 	(ECF No. 8–2 ¶¶ 1–2). 	Even though it may not be disputed
that 	Plaintiff 	failed 	to 	present 	a 	claim 	within 	twelve 	months 	of
the 	accident, 	the 	parties 	do 	dispute 	whether 	Defendant 	hindered
Plaintiff’s timely compliance with the claim presentment deadline.
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Because 	Plaintiff 	is 	a 	pro 	se 	litigant, 	she 	may 	survive 	pre-
discovery 	summary 	judgment 	if 	she 	puts 	the 	court 	“on 	fair 	notice
of potential disputes as to the sufficiency of the summary judgment
record.” 	Shaw, 59 F.4th at 129 (citing Pledger, 5 F.4th at 526).
Plaintiff’s 	assertion 	that 	Defendant’s 	“claim 	representatives
delayed 	providing 	PIP 	forms 	and 	claim 	numbers 	despite 	multiple
requests following the November 8, 2022 accident,” (ECF No. 12, at
1–2), is sufficient to preclude summary judgment at this juncture.
D. 	Count II: Bad Faith Insurance Practices
In 	Count 	II, 	Plaintiff 	alleges 	that 	Defendant 	“den[ied] 	and
delay[ed] the payment of covered claims,” which she asserts to be
bad faith insurance practices in violation of Maryland law. 	(ECF
No. 	2 	¶¶ 	12–13). 	Defendant 	recognizes 	this 	claim 	as 	a 	“first-
party bad faith claim” against an insurer as authorized under Md.
Code Ann., Cts. & Jud. Proc. § 3-1701.5 	(ECF No. 8, at 4 & n.2);
see 	also 	Md. 	Code 	Ann., 	Cts. 	& 	Jud. 	Proc. 	§ 	3-1701(d)(2) 	(“This
section 	applies 	only 	in 	a 	civil 	action 	. 	. 	. 	[t]hat 	alleges 	that
5 No other cause of action is available. 	“Maryland does not
recognize 	a 	tort 	action 	against 	an 	insurer 	for 	bad 	faith 	failure
to pay a first party insurance claim,” Johnson v. Fed. Kemper Ins.
Co., 74 Md.App. 243, 246 (1988), other than the statutory cause of
action provided in § 3-1701. 	Moreover, although Plaintiff invokes
the implied covenant of good faith and fair dealing, (ECF No. 2 ¶
13), 	“there 	is 	no 	independent 	cause 	of 	action 	at 	law 	in 	Maryland
for breach of the implied covenant of good faith and fair dealing,”
Mount Vernon Props., LLC v. Branch Banking & Tr. Co., 170 Md.App.
457, 471 (2006).
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the 	insurer 	failed 	to 	act 	in 	good 	faith[.]”). 	Section 	3-1701
“provides 	a 	special 	cause 	of 	action 	for 	lack 	of 	good 	faith 	by 	a
property, 	casualty, 	or 	individual 	disability 	insurer 	in 	handling
claims 	under 	insurance 	policies 	issued, 	sold, 	or 	delivered 	in
Maryland.” 	Barry v. Nationwide Mut. Ins. Co., 298 F.Supp.3d 826,
829 	(D.Md. 	2018) 	(citing 	Md. 	Code 	Ann., 	Cts. 	& 	Jud. 	Proc. 	§ 	3-
1701).
Defendant argues that Plaintiff’s claim is barred because the
statutory cause of action is available only to those who have first
exhausted 	their 	administrative 	remedies 	with 	the 	Maryland
Insurance 	Administration 	(“MIA”), 	which 	Defendant 	contends
Plaintiff 	has 	not 	done.6 	(ECF 	No. 	8, 	at 	4–5); 	see 	also 	Md. 	Code
Ann., Cts. & Jud. Proc. § 3-1701(c)(1) (“[A] party may not file an
action under this subtitle before the date of a final decision [by
the 	MIA] 	under 	§ 	27-1001 	of 	the 	Insurance 	Article.”). 	Plaintiff
responds that she “did, in fact, file a related complaint with MIA
concerning 	th[e] 	. 	. 	. 	denial 	and 	lack 	of 	payment, 	but 	it 	was
closed without substantive review due to administrative delays and
medical 	hardship.” 	(ECF 	No. 	12, 	at 	2).7 	Defendant 	replies 	that
6 	Defendant 	further 	argues 	that 	Plaintiff 	meets 	none 	of 	the
exceptions 	to 	the 	exhaustion 	requirement. 	(ECF 	No. 	8, 	at 	5).
Plaintiff does not dispute this point.
7 In support of her alternative argument that the court “may
stay 	proceedings 	or 	permit 	amendment 	pending 	renewed 	MIA 	review
rather 	than 	foreclose 	the 	claim 	altogether,” 	Plaintiff 	cites
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Plaintiff “does not assert when she allegedly filed this Complaint,
when she received the alleged denial order, and whether her [MIA]
Complaint complied with Md. Code Ann., Ins. § 27-1001.” 	(ECF No.
14 	¶ 	2). 	Consequently, 	Defendant 	argues, 	“Plaintiff 	has 	not 	met
her 	burden 	that 	she 	exhausted 	the 	required 	administrative
remedies.” 	(Id.). 	Plaintiff 	now 	asserts, 	however, 	that 	“[t]he
MIA 	advised 	[her] 	that 	because 	the 	insurer 	had 	made 	a 	settlement
offer—albeit 	insufficient—the 	issue 	did 	not 	fall 	under 	its
jurisdiction for bad faith review.” 	(ECF No. 15, at 1).
A 	genuine 	dispute 	of 	material 	fact 	regarding 	Plaintiff’s
administrative 	exhaustion 	precludes 	summary 	judgment.8
“Hous. 	Auth. 	of 	Baltimore 	v. 	Maryland 	Ins. 	Admin., 	202 	Md. 	App.
469 (2011).” 	(ECF No. 12, at 2). 	No such case with that caption
or 	at 	that 	location 	in 	the 	Maryland 	Reporter 	appears 	to 	exist.
The 	reporter 	citation 	directs 	to 	the 	middle 	of 	an 	unrelated
Maryland 	case 	regarding 	the 	rights 	of 	witnesses 	who 	are 	arrested
pursuant 	to 	a 	body 	attachment. 	Broadway 	v. 	State, 	202 	Md.App.
464, 	469 	(2011). 	In 	light 	of 	the 	erroneous 	citations 	identified
here and in footnote three, Plaintiff is reminded of her obligation
as 	an 	unrepresented 	party 	to 	cite 	only 	legitimate 	cases.
Fed.R.Civ.P. 11(b).
8 	Whether 	administrative 	exhaustion 	is 	a 	matter 	of
jurisdiction 	or 	the 	merits 	is 	a 	close 	question. 	Courts 	in 	this
district 	have 	generally 	treated 	the 	administrative 	exhaustion
requirement 	of 	§ 	3-1701 	as 	jurisdictional. 	E.g., 	Jackson 	v.
Standard Fire Ins. Co., No. 17-cv-1612-TDC, 2018 WL 348148, at *3
(D.Md. Jan. 9, 2018). 	Until recently, the proposition that a state
legislature 	could 	limit 	federal 	court 	jurisdiction 	through 	state
administrative exhaustion requirements aligned with Fourth Circuit
case law. 	See, e.g., Balfour Beatty Infrastructure, Inc. v. Mayor
& 	City 	Council 	of 	Balt., 	855 	F.3d 	247, 	249 	(4 th 	Cir. 	2017)
(affirming 	district 	court’s 	dismissal 	for 	lack 	of 	subject 	matter
jurisdiction 	because 	the 	plaintiff 	had 	failed 	to 	exhaust 	state
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21
Specifically, 	Defendant 	provides 	the 	affidavit 	of 	its 	claims
officer stating that “Plaintiff did not pursue an action with the
[MIA]” before filing this lawsuit. 	(ECF No. 8-2 ¶ 4). 	Plaintiff
contends 	in 	response 	that 	she 	did 	file 	a 	complaint 	with 	the 	MIA.
(ECF 	No. 	12, 	at 	2). 	It 	is 	worth 	addressing 	a 	couple 	of
inconsistencies 	in 	Plaintiff’s 	papers 	on 	this 	question. 	First,
Plaintiff’s 	opposition 	states 	that 	she 	“file[d] 	a 	related
complaint 	with 	[the] 	MIA,” 	(Id.), 	but 	her 	sur-reply 	states 	that
she “contacted the MIA regarding this matter,” (ECF No. 15, at 1).
Whether 	she 	means 	that 	she 	contacted 	the 	MIA 	regarding 	her
complaint or that contacting the MIA constitutes her complaint is
unclear. 	Second, 	Plaintiff 	explains 	in 	her 	opposition 	that 	her
complaint 	“was 	closed 	without 	substantive 	review 	due 	to
administrative 	delays 	and 	medical 	hardship,” 	(ECF 	No. 	12, 	at 	2),
but 	in 	her 	sur-reply 	she 	reports 	that 	the 	“MIA 	declined 	to 	act”
because 	it 	advised 	her 	it 	lacks 	jurisdiction 	over 	matters 	where
the insurer has made a settlement offer, (ECF No. 15, at 1). 	These
administrative 	remedies). 	In 	2024, 	however, 	the 	Fourth 	Circuit
cast 	doubt 	on 	the 	correctness 	of 	this 	proposition. 	Wideman 	v.
Innovative Fibers, Inc., 100 F.4th 490, 497 (4 th Cir. 2024) (“Every
court 	draws 	its 	power 	to 	hear 	cases 	and 	controversies 	from 	the
laws of the sovereign that created it,” so “state law cannot oust
federal courts of jurisdiction that they already possess pursuant
to federal law.” (citation modified)). 	Wideman, however, does not
address 	the 	Fourth 	Circuit’s 	holding 	in 	Balfour 	Beatty 	and 	thus
leaves open the question whether it applies in the unique context
of administrative exhaustion.
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varying 	explanations 	obscure 	who 	terminated 	Plaintiff’s 	charge
with 	the 	MIA 	and 	why. 	Despite 	these 	inconsistencies, 	none 	of
Plaintiff’s 	assertions 	align 	with 	Defendant’s 	account 	of 	her
failure 	to 	exhaust 	administrative 	remedies; 	therefore, 	she 	has
satisfied 	her 	pre-discovery 	summary 	judgment 	burden 	of 	showing
“potential disputes as to the sufficiency of the summary judgment
record.”9 	Shaw, 59 F.4th at 129 (citing Pledger, 5 F.4th at 526).
V. 	Conclusion
For the foregoing reasons, Defendant’s motion to dismiss or,
in 	the 	alternative, 	for 	summary 	judgment 	will 	be 	denied. 	A
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9 	Even 	absent 	a 	final 	decision 	from 	the 	MIA—which 	is 	a
prerequisite 	to 	suit 	under 	§ 	3-1701(c)(1)—in 	the 	record, 	the
dispute 	over 	whether 	Plaintiff 	filed 	a 	complaint 	with 	the 	MIA 	is
material. 	For example, if Plaintiff filed a complaint and the MIA
did 	not 	act 	on 	it 	within 	ninety 	days, 	the 	MIA’s 	failure 	to 	act
constitutes 	a 	decision 	that 	may 	become 	final 	and 	exhaust
Plaintiff’s 	administrative 	remedies. 	See 	Md. 	Code 	Ann., 	Ins. 	§
27-1001(e)(1)(ii), (f)(3). 	Plaintiff at least initially suggests
that her complaint was closed due to “administrative delays,” (ECF
No. 12, at 2), potentially referring to this procedural feature.
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