that plaintiff suffered from a potentially fatal disease).
Here, we find that Plaintiff's alleged conduct does not rise to the same level of outrage as that suffered in the above cases such as would eliminate or diminish the requirement that physical injury as a result of the alleged conduct be alleged. Therefore, the Defendant's intentional infliction of emotional distress claim is dismissed for failure to state a cause of action under Pennsylvania law.
B. COUNT VI - UNFAIR INSURANCE PRACTICES
Count VI of Defendant's Counterclaim attempts to state a claim for relief under the Pennsylvania Unfair Insurance Practices Act ("UIPA"). Act of July 22, 1974, P.L. 589, 40 Pa. C.S.A. §§ 1171.1 et seq. The UIPA was enacted to curb unfair or deceptive practices in the insurance industry. Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427, 429 (1986). The UIPA's provisions are enforced by the Insurance Commissioner of the Commonwealth of Pennsylvania. 40 Pa. C.S.A. § 1171.7. The UIPA vests the Insurance Commissioner with the power to investigate specifically defined acts and practices of insurers. Pekular, 513 A.2d at 433. It is well settled, however, that the UIPA does not provide a private citizen with a cause of action against an insurer. Lombardo v. State Farm Mutual Automobile Insurance Co., 800 F. Supp. 208, 212 (E.D. Pa. 1992).
However, the UIPA is not the sole and exclusive deterrent against unfair insurance practices and the UIPA does not pre-empt the Unfair Trade Practices and Consumer Protection Law. 73 Pa. C.S.A. §§ 201-1 et seq.; Pekular, 513 A.2d at 434. Defendant's Counterclaim includes Count IV for Bad Faith under 42 Pa. C.S.A. § 8371, which was enacted to provide private citizens with a cause of action for bad faith conduct by insurers, and Count V for violation of the Unfair Trade Practices and Consumer Protection Law under 73 Pa. C.S.A. §§ 201-1 et seq., which provides a private cause of action against an insurer for unfair or deceptive acts or practices. Accordingly, the Defendant's claim will go forward on Counts IV and V, but Count VI will be dismissed.
C. COUNT VII - MISREPRESENTATION OR FRAUD
A claim of misrepresentation or fraud must, in accordance with Federal Rule of Civil Procedure 9(b), state with particularity the circumstances which bring rise to the claim of fraud. In determining the sufficiency of a claim for misrepresentation or fraud, the most basic consideration is whether the necessary degree of detail was provided to give the adverse party adequate notice and the ability to prepare a responsive pleading. 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, Civil 2d, § 1298 (1990). Rule 9(b) does not require date, time and place of fraudulent acts, provided the claimant supplies other means of precision and substantiation. U.S. v. Kensington Hospital, 760 F. Supp. 1120, 1125 (E.D. Pa. 1991). The purpose of Rule 9(b) is to give the adverse party fair notice of the charges. Id.
Applying Fed. R. Civ. P. 9(b) to the instant case, we find that Defendant's Counterclaim for Misrepresentation or Fraud fails to provide the Plaintiff with time, dates or places of alleged fraudulent acts. Defendant's Counterclaim alleges that "at all times, this plaintiff engaged in consistent course of conduct throughout this state and other states, of depriving people of disability benefits . . . . At all relevant times plaintiff intended by its actions to deceive and defraud [defendant]." The Defendant does not provide any other information which gives Plaintiff fair notice as to the fraudulent acts alleged. Defendant's Counterclaim is thus vague and too general and does not meet the particularity requirement of Rule 9(b). However, this Court shall give the Defendant an opportunity to replead Count VII with particulars regarding date, time and place or other particulars sufficient to give the Plaintiff fair notice regarding the alleged fraudulent schemes. In addition, the Defendant must be sure to plead the elements of fraud. Accordingly, Plaintiff's Motion to Dismiss Count VII of Defendant's Counterclaim is granted but with leave to replead Count VII within twenty (20) days of the date this Memorandum and Order is entered.
D. COUNT X - PUNITIVE DAMAGES
Defendant's Counterclaim for Punitive Damages in Count X is dismissed following agreement by both parties. Defendant has requested the opportunity to amend the wherefore clauses to add a prayer for Punitive Damages in the counts where appropriate. As stated in the opening paragraphs of the Memorandum, Defendant's request will be partially granted.
Pennsylvania has adopted the principles of the Restatement of Torts (Second) § 908(2) which governs punitive damages. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436, 447 (1987). Restatement of Torts (Second) § 908(2) provides that:
punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended and the wealth of the defendant.
Id. The pleadings must therefore allege facts sufficient to demonstrate evil motive or reckless indifference to the rights of others. McDaniel, 533 A.2d at 447-448. In this case, Mr. Levithan contends that the Plaintiff attempted to blackmail him to give up his rights under the insurance policy by contacting the Defendant's doctors and advising them that Mr. Levithan was believed to be engaging in fraudulent conduct and that Plaintiff made statements to third persons with the intent of labeling Defendant "a fraud." Defendant has thus alleged sufficient facts in Counts II, VIII and IX to support a claim for punitive damages. As for Count IV for Bad Faith under 42 Pa. C.S.A. § 8371, the statute permits recovery for punitive damages. Therefore, this Court grants the Defendant leave to amend Counts II, IV, VII, VIII and IX.
With respect to Count I for Breach of Contract, the purpose of contract damages is to compensate the injured party and not to punish the breaching party. Therefore, compensatory damages are the only appropriate remedy. As for Count V, the Unfair Trade Practices and Consumer Law provides solely for actual damages with a private cause of action. 73 Pa. C.S.A. § 201-9.2. Consequently, Defendant's request for leave to amend Counts I and V of his Counterclaim to include claims for punitive damages is denied.
III. STANDARDS GOVERNING MOTIONS TO STRIKE
A motion to strike under Rule 12(f) of the Federal Rules of Civil Procedure is the proper method to eliminate matters in pleadings which are found to be redundant, immaterial, impertinent, or scandalous. 5A Wright & Miller, § 1380 at 644. A motion to strike is also the appropriate procedure to object to an insufficient defense. Id. See U.S. v. Marisol, 725 F. Supp. 833 (M.D. Pa. 1989). In order to succeed on a motion to strike, the moving party must show that the allegations being challenged are so unrelated to the plaintiff's claims as to be unworthy of any consideration as a defense and that the moving party is prejudiced by the presence of the allegations in the pleading. Id. at 649-650. However, motions to strike are generally viewed with disfavor. Marisol, 725 F. Supp. at 837. Motions to strike are often not granted if there is an absence of a showing of prejudice to the moving party. 5A Wright & Miller, § 1381 at 672. Here, the Plaintiff's Motion to Strike deals with striking various portions of Defendant's Answer.
First, the Plaintiff requests that Defendant's denials for lack of knowledge or information sufficient to form a belief in paragraphs 104, 106-09, 111, 113, 115-17, 121-29, 132-46, 148-61 and 213-14 of Defendant's Answer be stricken on grounds that the Defendant did in fact have the personal knowledge or information to form a belief as to the averments in Plaintiff's Complaint. However, a denial based on lack of knowledge or information sufficient to form a belief is proper when the pleader lacks sufficient data to justify his interposing either an honest admission or a denial of an opponent's averments. 5 Wright & Miller, § 1263 at 393. A court may strike portions of the pleading if bad faith is found to underlie the denial or if the party intended to make the pleading evasive. Id. at 392. Insofar as the existing record in this case is insufficient to show that Defendant was acting in bad faith, with evasive intentions, Plaintiff's Motion to Strike Defendant's denials for lack of knowledge or information in paragraphs 104, 106-09, 111, 113, 115-17, 121-29, 132-46, 148-61 and 213-14 is denied. Likewise, there has been no showing that the Plaintiff is unduly prejudiced by Defendant's responses. At best, the Plaintiff has been merely challenged to prove the factual issues at a hearing.
Plaintiff next requests this Court to strike Defendant's responses to paragraphs 6, 10-71, 74-88, 91-95, 98-99, 102-03, 118 and 130 of Plaintiff's Complaint in which the Defendant alleges that Plaintiff's averments are conclusions of law and do not require a reply. Upon review of the above paragraphs in Plaintiff's Complaint, this Court finds that Plaintiff's averments in paragraphs 6, 10-71, 74-88, 91-95, 98-99, 102-03, 118 and 130 are not conclusions of law, but are factual allegations which require a response by the Defendant. Therefore, this Court will strike those paragraphs and grant twenty (20) days leave to Defendant to file an amended answer.
Plaintiff also requests that the responses in paragraphs 6, 9-71, 74-95, 98-99, 102-04 and 118 of Defendant's Answer in which the Defendant alleges that the writings speak for themselves be stricken as such responses do not deny or admit the allegations in Plaintiff's Complaint. This Court finds that such responses are denials of the Plaintiff's characterization and representation of the writings. Therefore, this Court will deny Plaintiff's Motion to Strike these portions and will not treat Defendant's responses as admissions of the writings and their pleaded contents.
Lastly, Plaintiff requests that the references to "strict proof" which appear in paragraphs 1, 3, 6-7, 10-95, 98-161, 163 and 205-17 of Defendant's Answer be stricken as such a demand does not exist under the Federal Rules of Civil Procedure. However, the Plaintiff has not cited to any case in the Third Circuit which supports such a position. The Defendant is putting the Plaintiff to his proofs on those matters on which Plaintiff carries the burden. Therefore, this Court will not strike Defendant's responses of "strict proof."
For the foregoing reasons, we find that Counts III, VI and X of Defendant's Counterclaim are dismissed and Defendant is granted leave to replead Count VII. The Court also finds that paragraphs 6, 10-71, 74-88, 91-95, 98-99, 102-03, 118 and 130 are to be stricken from Defendant's Answer with twenty (20) days leave to amend. As for the remainder of Plaintiff's Motion to Strike, it is denied.
An appropriate order follows.
ORDER - October 26, 1993, Entered
AND NOW, this 22nd day of October, 1993, upon consideration of the Motions of Plaintiff Great West Life Assurance Company to Dismiss Counts III, VI, VII and X of Defendant Mark Levithan's Counterclaim pursuant to Fed.R.Civ.P. 12(b)(6), and to strike various responses in Defendant's Answer, it is hereby ORDERED that the Motion to Dismiss is GRANTED in part and DENIED in part, and Defendant will be granted leave to amend Count VII, and that the Motion to Strike is GRANTED in part and DENIED in part, and paragraphs 6, 10-71, 74-88, 91-95, 98-99, 102-103, 118 and 130 of Defendant's Answer will be stricken, and Defendant will be granted leave to amend his Answer.
BY THE COURT:
J. CURTIS JOYNER, J.
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