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WINTERBERG v. CNA INS. CO.

October 24, 1994

PATRICIA WINTERBERG and JAMES WINTERBERG
v.
CNA INSURANCE CO.



The opinion of the court was delivered by: BY THE COURT; EDWARD N. CAHN

 Cahn, C.J.

 October 24, 1994

 Patricia Winterberg ("plaintiff" or "Winterberg") and James Winterberg (collectively, "plaintiffs") have brought this action against CNA Insurance Company ("defendant" or "TIC" *fn1" ). Plaintiff complains that defendant's conduct in response to a work-related accident violated her common law rights as well as her rights under state insurance and trade statutes. Currently before this court is defendant's Motion to Dismiss Plaintiffs' Complaint Pursuant to Federal Rule of Civil Procedure 12(b). This court has jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332.

 I. BACKGROUND

 A summary of the facts as alleged is as follows. Winterberg was an assistant store manager at T.J. Maxx, a department store. On February 12, 1991, a heavy clothing rack fell on her left foot, causing a "severe contusion of bones." Plaintiffs' Complaint P7. Winterberg was immediately treated in an emergency room, and she came under the care of orthopedic and other specialists in the following months.

 Physicians treating Winterberg diagnosed her as having Reflex Sympathetic Dystrophy ("RSD"), characterized by extraordinary pain and the loss of functional use of her left foot. This condition subsequently intensified, causing Winterberg frequently to fall down because of the weakness and pain in her leg. These falls led to further complications, such as tendon and ligament damage to her ankle and a fracture of her elbow, and emergency medical care for these injuries. Winterberg now must use a wheelchair. Her physicians have prescribed water therapy to alleviate the severity of pain from the RSD, and have directed her to obtain psychological counseling for pain management and depression.

 TIC wrote the insurance policy under which T.J. Maxx was insured. TIC began to make worker's compensation payments to Winterberg and to reimburse her medical expenses. In 1992, however, TIC retreated markedly from this course of action. Despite the fact that Winterberg's physicians unanimously agreed that she had RSD and was suffering from consequent emotional and physical problems requiring medical care, TIC refused to pay for any medical expenses beyond those of the primary physician responsible for treatment of Winterberg's initial foot injury. TIC has persisted with this policy despite the oral admonition of the Workmen's Compensation Judge, the findings of two independent utilization reviews approving the ancillary medical expenses, and multiple letters from counsel warning TIC of the harmful physical and psychological impact on Winterberg of being unable to pay for necessary treatment.

 In addition to its refusal to pay for Winterberg's medical treatment, TIC petitioned to terminate her workers' compensation benefits, claiming that she was fit to return to a job at T.J. Maxx. Plaintiffs claim that TIC filed its petition with the knowledge that no such job existed at T.J. Maxx, that no effort had been made to develop any position that could be performed by a person experiencing plaintiff's symptoms, and that the job offer made by T.J. Maxx failed to conform to the Pennsylvania Worker's Compensation Act's requirements which allow for the termination of worker's compensation benefits when a bona fide job offer has been made.

 On September 27, 1993, at the request of TIC, Winterberg was examined by Richard Bennett, M.D., a neurologist engaged by TIC. During this examination, which was prior to the initiation of the present litigation, Dr. Bennett asked Winterberg, "Did you settle your lawsuit?" He forcefully grabbed Winterberg's left foot immediately after she told him that she could not tolerate even the light pressure of air blowing across the injury site. He demanded that she attempt to walk, and refused to come to her aid both when she became unsteady and after she fell hard on to the floor. He told her, "I am not going to help you up. You are not an invalid and you have to get up yourself." Winterberg suffered chin, neck, and head injuries from the fall.

 On October 5, 1993, Winterberg testified at her worker's compensation hearing. On October 8, 1993, distraught over Dr. Bennett's examination, the prospect of losing her only source of financial support, and the belief that she was a burden to her husband and children, Winterberg made an unsuccessful suicide attempt.

 Plaintiff filed a complaint in the Philadelphia Court of Common Pleas, claiming that defendant violated 42 Pa.C.S.A. § 8371, and the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S.A. § 201. Plaintiff also makes claims for the intentional infliction of emotional distress, the intentional breach of contract likely to result in emotional distress, and common law fraud and deceit. James Winterberg sues for loss consortium.

 Defendant removed this case to federal court based on the diversity of citizenship between the parties. *fn2" Defendant now responds to the complaint with motions to dismiss based upon lack of personal jurisdiction and failure to state a claim upon which relief may be granted.

 II. DISCUSSION

 A. Personal Jurisdiction

 Federal Rule of Civil Procedure 15(a) permits the court to grant leave to amend a pleading, and "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). This rule has been applied in a "liberal manner." Sechrist v. Palshook, 97 F. Supp. 505, 506 (D. Pa. 1951). Thus, leave to amend should be denied only in a narrow set circumstances. Ynclan v. Dept. of Air Force, 943 F.2d 1388 (5th Cir. 1991).

 The most common of these circumstances are "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). None of these circumstances exist in this case. Plaintiff named "CNA Insurance Company" as defendant in good faith, and for good reason. Defendant called itself "CNA" throughout the workers' compensation proceedings, and issued checks and letterhead in that name. See Plaintiffs' Answer to Defendant's Motion to Dismiss, Exhibits B-D. *fn3" It was never brought to plaintiff's attention during pre-litigation communications that she was using the wrong name. In short, plaintiff made an honest mistake.

 Furthermore, defendant has not been prejudiced by the misnomer. *fn4" Transportation Insurance Company received actual, timely notice of the suit, and has not otherwise been harmed by the mistake in nomenclature. Liberal use of amendment is appropriate under these circumstances. See, e.g., Shoap v. Kiwi S.A., 149 F.R.D. 509, 511-12 (M.D. Pa. 1993); Sechrist, 97 F. Supp. at 507 ("To hold otherwise would be unfair to Plaintiff and would allow the Defendant to avoid his rightful obligation through a technical error ... where the Defendant has had notice of the Plaintiff's claim from the outset.")

 Amendment is particularly warranted where the proper defendant is itself responsible for plaintiff's mistake as to its identity. See, e.g., Shoap, 149 F.R.D. at 512; Sorrels v. Sears, Roebuck & Co., 84 F.R.D. 663, 666-67 (D. Del. 1979). *fn5" Transportation Insurance Company made no attempt to correct a mistake that was known to them. When they filed suit, plaintiff reasonably believed that "CNA Insurance Company" was the correct name. Given TIC's role in the error, it would be unreasonable, and unjust, to throw plaintiff out of court. Accordingly, the court will deny defendant's Motion to Dismiss for lack of personal jurisdiction. *fn6"

 1. Legal Standard

 Defendant also moves to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6). The purpose of a 12(b)(6) motion is to test the legal sufficiency of a complaint. Brown v. Hammond, 810 F. Supp. 644, 645 (E.D. Pa. 1993). In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), "all facts alleged in the complaint and all reasonable inferences that can be drawn from them must be accepted as true." Malia v. General Electric Company, 23 F.3d 828, 830 (3d. Cir. 1994). The complaint should not be dismissed unless the plaintiff alleges "no set of facts in support of the claim that would entitle him to relief." Ala, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994).

 2. Workmen's Compensation Act

 Defendant contends that plaintiff's complaint pertains to a worker's compensation claim and so must be brought under the Pennsylvania Workmen's Compensation Act. *fn7" Title 77 Pa. C.S.A. § 481(a) (the "exclusivity provision") provides:

 
The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband, or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section [411(1) & (2)] or occupational disease as defined in section [27.1].

 The Act further defines "injury" as "an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, ...


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