policies, retroactive to January, 2001. Finally,
Dr. O'Shea alleged a claim for bad faith, seeking compensatory and
Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants moved
for dismissal of the claim for breach of contract to the extent that it
included future damages, and for dismissal of both the equity claim and
the claim for bad faith in their entirety. This court, by order of
January 18, 2002, granted the defendants' motion in part, dismissing Dr.
O'Shea's equitable claims as well as her claim for breach of contract to
the extent it was asserted in support of future relief. In reliance upon
applicable Pennsylvania law set forth in Summers v. Prudential Insurance
Company of America, 179 A. 78 (Pa. 1935),*fn1 the order held
specifically that the breach of contract claim "survives defendants'
motion insofar as it seeks only such payments as were allegedly due Dr.
O'Shea at the time she filed her complaint, on May 22, 2001."
The Current Motion
Dr. O'Shea alleges in her motion for voluntary dismissal that the
defendants have ceased making the $2650.00 reduced benefit payments to
her, such that she has received no payment whatsoever on her policy since
she instituted her lawsuit. Therefore, it is claimed, the damages to the
plaintiff are now accruing at the rate of $5,300.00 with each passing
month, rather than the $2,650.00 originally alleged in the complaint.
So that she might recoup the not-insubstantial sum of unpaid benefits
that has accumulated since May 22, 2001, Dr. O'Shea filed the motion now
before this court. Her intent is to have the action dismissed without
prejudice, then to re-file the suit (with updated calculations of damages)
in an effort to be eligible for a higher damage award that would not run
afoul of Summers. Other than the additional months' worth of damages
claimed, the subsequent suit envisioned by Dr. O'Shea would differ from
the existing one only in that she will seek to add a claim for a
declaratory judgment settling the rights of the parties with respect to
the four insurance contracts.
This court is aware of the odd predicament in which the Summers
precedent places a plaintiff, and is not averse to granting the current
motion. The intent of the order of January 18, 2002, was not to sever
arbitrarily plaintiff's right to recover damages beyond the filing of her
complaint, but rather to obviate the need for speculation regarding
future damages that Dr. O'Shea will not have yet incurred when judgment
is eventually rendered.
As Dr. O'Shea's stated intent is simply to re-file a nearly identical
suit in the same court, an alternative procedure would be preferable to
the artifice of dismissal followed by re-filing namely, simply amending
or supplementing the existing pleadings in accordance with Rule 15 of the
Federal Rules of Civil Procedure.*fn2 By
proceeding with amended or
supplemented pleadings reflecting the updated amount of damages, Dr.
O'Shea would effectuate the same result she seeks through the relatively
complicated procedure she has proposed. Additionally, merely amending or
supplementing the original complaint should assuage the defendants'
concern regarding "the spectre of continual voluntary dismissals and new
complaints every month as alleged damages accrue." Accordingly, this
court will deny the plaintiff's currently pending motion to dismiss, with
the assumption that Dr. O'Shea will opt to amend or supplement her
existing pleadings rather than starting anew. However, the choice remains
with Dr. O'Shea. If she would prefer to proceed by obtaining a voluntary
dismissal rather than by moving to amend or supplement her pleadings,
this court will gladly grant a renewed motion under Rule 41(a)(2) for
dismissal without prejudice, with no costs to defendants.
Plaintiff's Motion for Voluntary Dismissal Without Prejudice under Rule
41(a)(2), F.R.C.P., is DENIED.