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GREAT WEST LIFE ASSUR. CO. v. LEVITHAN

October 22, 1993

GREAT WEST LIFE ASSURANCE COMPANY, Plaintiff,
v.
MARK LEVITHAN, Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 October 22, 1993

 This is an action for restitution and declaratory relief under 28 U.S.C. § 2201 by the Plaintiff, Great West Life Assurance Company, due to the alleged insurance claim fraud by the Defendant, Mark Levithan. Presently before the Court are the Plaintiff's Motion to Dismiss Counts III, VI, VII and X of Defendant's Counterclaim and Plaintiff's Motion to Strike various responses in Defendant's Answer. Jurisdiction is premised upon diversity of citizenship of the parties pursuant to 28 U.S.C. § 1332. For the reasons set forth below, Plaintiff's Motion to Dismiss will be granted in part and denied in part, Defendant will be granted leave to amend Count VII, and Plaintiff's Motion to Strike will be 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.

 BACKGROUND

 Plaintiff now alleges that the Defendant knowingly misstated and misrepresented his medical condition, business activities, and recreational activities, and made false declarations and material omissions in claim forms, monthly progress reports, and other documents he submitted to the Plaintiff. Plaintiff alleges that Defendant's misstatements, misrepresentations, and omissions were knowingly made in bad faith in order to secure insurance benefits from the Plaintiff. Plaintiff submits that its reliance on Defendant's declarations were material to Plaintiff's determination that Defendant was totally disabled and that payment of disability benefits was required.

 On March 24, 1993, Plaintiff filed its complaint alleging damages of $ 84,000 for insurance claim fraud and requesting a declaration that the disability policy issued to the Defendant lapsed for nonpayment of premiums in January of 1991 and that the Plaintiff is no longer liable to the Defendant thereunder. Defendant, on June 1, 1993, filed his answer, affirmative defenses and ten count counterclaim. In his Counterclaim, the Defendant alleges Breach of Contract (Count I), Intentional Interference with Contractual Relations (Count II), Intentional Infliction of Emotional Distress (Count III), Bad Faith (Count IV), Violation of the Unfair Trade Practices and Consumer Protection Law (Count VI), Misrepresentation or Fraud (Count VII), Slander (Count VIII), Libel (Count IX) and Punitive Damages (Count X).

 In the Motion to Dismiss presently before the Court, the Plaintiff alleges that Counts III, VI, VII and X should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because: Count III fails to satisfy the pleading requirements outlined in the relevant caselaw; Count VI does not allege a proper private cause of action; Count VII fails to satisfy the pleading requirements under the Federal Rules of Civil Procedure; and Count X fails to state a cause of action.

 By way of its Motion to Strike which is also now before the Court, the Plaintiff claims that: (1) Defendant's denials based upon lack of knowledge or information in paragraphs 104, 106-109, 111, 113, 115-117, 121-129, 132-146, 148-161 and 213-214 of Defendant's Answer are insufficient responses to the allegations in Plaintiff's Complaint; (2) Defendant's denials as conclusions of law as to paragraphs 6, 10-71, 74-88, 91-95, 98-99, 102-104, 118 and 130 of Plaintiff's complaint are inappropriate because Plaintiff's allegations are purely factual; (3) Defendant's references in paragraphs 6, 9-71, 74-95, 98-99, 102-104 and 118 to "writings" which "speak for themselves" should be stricken and/or deemed admissions of the pleaded contents of all documents referenced because such allegations constitute admissions and not denials; and (4) Defendant's references to "strict proof, if relevant, is demanded at trial" which appear in paragraphs 1, 3, 6-7, 10-95, 98-161, 163, 205-217 should be stricken because they do not comport with pleading requirements.

 Defendant opposes Plaintiff's Motions with the exception of conceding that Count X of the Counterclaim should be dismissed with permission to add punitive damages to the wherefore clauses in the other Counts.

 DISCUSSION

 I. STANDARDS GOVERNING MOTIONS TO DISMISS

 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is the appropriate method in which to challenge the legal sufficiency of a claim. The test applied to determine the legal sufficiency of a claim is whether it appears beyond a doubt that the claimant can prove no facts which would support the relief requested. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3rd Cir. 1992) (quoting Shubert v. Metrophone, Inc., 898 F.2d 401, 403 (3rd Cir. 1990)). In determining whether to grant a 12(b)(6) motion, the court focuses on the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In reviewing the pleadings and other material of ...


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