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BOYCE v. NATIONWIDE MUT. INS. CO.

January 6, 1994

ANDREA BOYCE, et al.
v.
NATIONWIDE MUTUAL INSURANCE CO.



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 YOHN, J.

 Presently before the court is Nationwide Mutual Insurance Company's ("Nationwide") motion to dismiss. For the reasons explained herein, the court will grant Nationwide's motion and dismiss count II in its entirety and count I to the extent that pre-July 1, 1990, conduct by Nationwide forms the basis of that count. The court will deny without prejudice Nationwide's motion to dismiss the damages asserted by the plaintiffs in count I. Finally, if the plaintiffs wish to pursue a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law as well as a claim under the Pennsylvania Motor Vehicle Financial Responsibility Law, they must amend their complaint consistent with this memorandum within twenty (20) days of the date of the order.

 STANDARD FOR REVIEW

 Dismissal Under Rule 12(b)(6)

 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). A court must determine whether the party making the claim would be entitled to relief under any set of facts that could be established in support of his or her claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. See Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). A complaint does not need to contain a lengthy recitation of the facts to withstand a motion to dismiss. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). All a plaintiff must do in his complaint is give a "short and plain statement of the claim that will give each defendant fair notice of what plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. Therefore, the court must accept the facts contained in plaintiffs' complaint as true.

 BACKGROUND

 On February 3, 1986, Andrea Boyce was an occupant in an ambulance operated by Paramedic Ambulance Service, Inc. The ambulance was struck by an uninsured motorist at the intersection of Second and Third Streets and Roosevelt Boulevard in Philadelphia, Pennsylvania. Andrea Boyce suffered injuries as a result of the accident.

 At the time of the accident, the plaintiffs, Andrea and Brian Boyce, had a personal automobile insurance policy with Nationwide. The policy provided uninsured motorist benefits in the amounts of $ 50,000 per person and $ 100,000 per accident. On February 27, 1987, the plaintiffs made a claim for uninsured motorist benefits to Nationwide. The plaintiffs allege they were informed by Nationwide that since Andrea Boyce was a passenger in an ambulance insured by another insurance company, they must exhaust the ambulance's insurance before seeking recovery under their personal policy.

 Upon exhaustion of the coverage provided by the ambulance's insurance policy, the plaintiffs made a claim for uninsured motorist benefits from Nationwide by filing a petition to appoint arbitrators in the Philadelphia courts. Nationwide attempted to remove this action to federal court (Andrea and Brian Boyce v. Nationwide Insurance Co., Civ. No. 91-6738 (E.D.Pa. Feb. 5, 1992) and it also filed a declaratory judgment action (Nationwide Insurance Co. v. Andrea and Brian Boyce, Civ. No. 91-4787 (E.D.Pa. Feb. 5, 1992). The Honorable Herbert J. Hutton remanded civil action 91-6738 to state court and dismissed the declaratory relief action.

 After the petition to appoint arbitrators was remanded to state court, the plaintiffs allege that Nationwide repeatedly delayed the arbitration hearing by arguing matters not supported by the law. Because of Nationwide's tactics, plaintiffs filed the present three count complaint in the Court of Common Pleas, Philadelphia County on June 22, 1993. Count I alleges that Nationwide's bad faith conduct violated 42 Pa. Cons. Stat. Ann. § 8371. Count II alleges a violation of Pennsylvania's Unfair Insurance Practices Act ("UIPA"), 40 Pa. Cons. Stat. Ann. § 1171.1, et seq. Count III alleges a common law claim of fraud and deceit. Nationwide removed this action to federal court and now seeks dismissal of count II as well as partial dismissal of count I.

 DISCUSSION

 Count II - Unfair Insurance Practices Act

 All of the counts in plaintiffs' complaint are virtually identical except for the cause of action stated in the introductory paragraph. Count II states: "Come now the Plaintiffs' and in support of their cause of action against Nationwide for violation of the UNFAIR INSURANCE PRACTICE (sic) Act and state . . ." Thus, plaintiffs ...


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