immediately preceding the effective date of his insurance. Connecticut General did not acquire full knowledge of the facts until after it made this initial payment. As previously noted, Connecticut General then moved quickly to rectify the overpayment.
Therefore, we believe that Connecticut General is entitled to recover its overpayment in the amount of $4,772.43. Accordingly, Connecticut General's motion for summary judgment on its counterclaim is granted.
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IV. PRUDENTIAL AND PAA'S CROSS-CLAIM
Connecticut General has moved to dismiss the cross-claim filed by Prudential and PAA pursuant to Fed.R.Civ.P. 12(b)(6), alleging that Prudential and PAA have failed to state a claim for which relief can be granted. Specifically, Connecticut General contends that there is no basis under Pennsylvania law for contribution among separate co-insurers. As well, there is no contractual understanding between Connecticut General and the other two Defendants with respect to contribution.
Our disposition of Plaintiff's claims against Defendants on the merits effectively resolves the cross-claim and Connecticut General's motion to dismiss. In this regard, Connecticut General is only liable under its policy for $750, which it has already paid. Prudential and PAA are liable for the full amount. The $750 paid by Connecticut General, however, has been subtracted from the amount due and owing from Prudential and PAA in order to prevent double recovery as to the former amount. Thus, the Connecticut General policy effectively covers only a portion of the liability. "Double insurance" does not exist as to the remainder of the liability. Therefore, Prudential and PAA cannot claim contribution from Connecticut General as to the latter amount.
See Southern Surety Co. v. Commercial Cas. Ins. Co., 31 F.2d 817 (3d Cir.), cert. denied, 280 U.S. 577, 74 L. Ed. 628, 50 S. Ct. 31 (1929); Meigs v. Insurance Co. of No. America, 205 Pa. 378, 54 A. 1053 (1903).
Since Connecticut General has already contributed the amount for which it is liable and that amount has been subtracted from the full amount for which Prudential and PAA are liable and also since there is no basis for requiring Connecticut General to contribute to the amount representing the remainder of the liability, Connecticut General's motion to dismiss the cross-claim is granted.
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V. ATTORNEY'S FEES
Plaintiff seeks an award of attorney's fees against those parties over which it has prevailed. Since Plaintiff did not prevail over Connecticut General, Plaintiff can only recover attorney's fees, if at all, against Prudential and PAA. We shall therefore discuss this issue only as it pertains to the latter two Defendants.
Attorney's fees are not ordinarily awarded by a federal court absent specific statutory or contractual authorization. See Alyeska Pipeline Co. v. Wilderness Soc'y, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). An exception lies when the losing party has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons. . . .'" Id. at 258-59, quoting F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129, 40 L. Ed. 2d 703, 94 S. Ct. 2157 (1974). In such cases, attorney's fees may be awarded to the prevailing party even where there is no statutory or contractual authority.
Plaintiff contends that ERISA authorizes an award of attorney's fees against Prudential and PAA. Plaintiff, however, did not bring its claim against Prudential under ERISA. Rather, the action against Prudential was predicated solely upon this Court's diversity jurisdiction. Indeed, relevant case law indicates that Plaintiff could not have stated a claim against Prudential or Connecticut General under ERISA, based upon the facts presented here. See, e.g., Lederman v. Pacific Mut. Life Ins. Co., 494 F. Supp. 1020 (C.D. Cal. 1980) (ERISA does not govern a claim against an insurance company by a participant in an employer's group health insurance plan); Cate v. Blue Cross & Blue Shield of Alabama, 434 F. Supp. 1187 (E.D. Tenn. 1977) (an action by an employee against an insurer under the employer's group health insurance plan fails to state a claim under ERISA). Hence, Plaintiff can only recover attorney's fees against Prudential if Prudential acted vexatiously or in bad faith.
There is absolutely no evidence that Prudential acted in bad faith or for improper reasons or in a manner which was oppressive or otherwise inappropriate. Accordingly, Plaintiff may not obtain an award of attorney's fees against Prudential.
With respect to PAA, section 502(g)(1) of ERISA permits a court, in its discretion, to award a reasonable attorney's fee and costs to either party. 29 U.S.C. § 1132(g)(1) (Supp. 1984).
An award of attorney's fees to a prevailing party is not mandatory under this provision. Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983).
There are five policy factors that the courts consider when determining whether or not to award attorney's fees under section 502(g)(1):
(1) the offending party's bad faith or culpability,