The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
The plaintiff, a chiropractor, has been receiving $8,000 a month in
disability benefits from the defendant since December 1997. He filed this
case pro se alleging various and sundry tort and contract claims. The
plaintiff does not claim that the defendant is withholding any benefits
that are due him. The plaintiff filed an earlier case making almost
identical allegations to those made here.
The defendant has made a motion to dismiss the amended complaint, and
for sanctions pursuant to Rule 11. The plaintiff has made a motion to add
claims. The Court heard oral argument on the various motions on November
20, 2003, and shortly before the oral argument, counsel from the first
case entered an appearance on behalf of the plaintiff. The Court
discussed all of the issues with counsel and with the plaintiff for
almost two hours. The Court incorporates that discussion herein. The
plaintiff was present and also made argument to the Court. At the hearing, the plaintiff withdrew any claims based on the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L.
104-191, 110 Stat. 1936 or the Gramm-Leach-Bliley Act ("GLB"), Publ. L.
106-102, 1338. The Court dismissed the breach of contract claim for the
reasons stated at the hearing. The Court will dismiss all other counts of
the amended complaint. Before stating its reasons for doing so, the Court
will describe the earlier case and its resolution.
In July 2001, Mr. Rister filed his first suit against NWML. His
complaint alleged that the defendant invaded his privacy; breached its
fiduciary duty; committed various torts, including intentional and
negligent infliction of emotional distress; and breached the insurance
On July 3, 2002, the late Honorable Jay C. Waldman, before whom the
case was then pending, dismissed all but the bad faith and invasion of
privacy claims. On September 5, 2002, the parties filed a joint
stipulation of dismissal without prejudice. The plaintiff then filed a
Motion to Grant Class Certification on February 25, 2003, which the
Court, to whom the case had by then been transferred, denied because the
case had been closed. The Court's Order of March 25, 2003, indicated that
the plaintiff had to commence a new action by August 22, 2003, if he
wanted to assert class action claims on his two surviving claims. Mr. Rister filed the present case on August 21, 2003. The first four
counts of the six counts in the plaintiff's Amended complaint are
substantially identical to the claims the plaintiff made in his earlier
The defendant argues that Judge Waldman's decision should be res
judicata as to the identical claims that Judge Waldman dismissed. At the
same time, the defendant observes in footnote four of its memorandum in
support of its motion to dismiss that in this Circuit, the defense of res
judicata may not properly be raised by a motion to dismiss unless the
basis for the defense appears from the face of the complaint. Iacaponi
v. New Amsterdam, Cas. Co., 379 F.2d 311, 312 (3d Cir. 1967). In view of
the uncertainty as to whether res judicata is applicable here, the Court
independently has reviewed the amended complaint and concludes that it
must be dismissed.
Count I contains a potpourri of allegations and claims. To the extent
Count I alleges a breach of fiduciary duty, it is dismissed because there
is no fiduciary duty running from an insurer to an insured under the
circumstances alleged here. All claims based on the allegation that
somehow the defendant violated the law by attempting to determine whether
plaintiff had a mental disability are dismissed. The claim forms submitted
by the plaintiff that are referenced in the amended complaint make
absolutely clear that the plaintiff was claiming some sort of mental problems. The plaintiff claims that a suggestive letter was
sent to Dr. Michaels, without describing the letter. This allegation does
not state a claim. At the hearing, it became clear that this allegation
is based on pure speculation. The plaintiff does not have any evidence
that any suggestive letter was sent to Dr. Michaels. Count I will be
dismissed on its entirety with prejudice.
Count II appears to allege defamation, invasion of privacy, and putting
the plaintiff in a false light. That Count is dismissed because the
plaintiff has failed to identify any allegedly defamatory remark made by
the defendant or to whom the remark was published. Nor are there
sufficient allegations to sustain an allegation that the defendant's
actions put the plaintiff in a false light. With respect to the invasion
of privacy claim based on an allegation that a private investigator
surveilled the plaintiff on or about January 6, 1999, it is beyond the
statute of limitations. The plaintiff concedes this. We are left with the
mere allegation in the amended complaint that surveillance continued up
to the present. At the hearing, the Court questioned the basis for that
allegation so that the Court could decide whether to allow the plaintiff
to replead that claim with more specificity. The Court learned that there
is no evidence that the defendant surveilled the plaintiff after the
January 1999 date. The basis of the plaintiff's view that the surveillance occurred up until the present is that an unknown car
was seen at the bottom of the plaintiff's driveway. There is absolutely
no basis to connect that car to the defendant.
At the hearing, in an attempt to allay what appeared to the Court to be
the plaintiff's irrational fears that the defendant was placing him under
surveillance, the Court requested the defendant to provide to the
plaintiff an affidavit to the effect that they were not surveilling the
defendant. Counsel for the defendant so stated at the oral argument. Such
an affidavit has been provided. The Court is convinced that there would
be no basis for the plaintiff to replead this invasion of privacy claim.
It is dismissed with prejudice.
Count III contains separate claims for intentional infliction of
emotional distress, negligent infliction of emotional distress,
intentional and unintentional misrepresentation, and wrongful
interference with contract. Pennsylvania courts and Judge Waldman in the
first action have rejected claims of intentional infliction of emotional
distress in actions involving alleged conduct by an insurer toward an
insured. None of the plaintiff's factual allegations are sufficient to
state a claim for intentional infliction of emotional distress. Nor is
there sufficient basis in the amended complaint for negligent infliction
of emotional distress. The plaintiff does not set forth the defendant's
alleged misrepresentations that form the basis of the intentional
misrepresentation claim. Because the defendant is a party to the
insurance policies, it cannot be held liable for wrongful interference
with the contract rights. All these claims are denied with prejudice.
The Court dismissed on the record at the hearing Count IV that alleges
a breach of contract.
Count V fails to state a claim. Count V of the amended complaint is
based on a letter dated January 7, 2003, from Northwestern Mutual to the
plaintiff. The plaintiff claims that the letter effectively waives the
defendant's right to enforce the provision of the policy that requires
that the plaintiff be under the regular care of a licensed physician. The
Court has read the letter carefully and discussed it with counsel and Dr.
Rister and the letter cannot be read as a waiver of any rights by the
Count VI is dismissed because there is no obligation on the insurance
company to buy out the plaintiff's policy. This was also discussed at
length at the hearing.
As to the motion to add claims, the plaintiff has withdrawn his claims
under the HIPAA and GLB. The Court will deny the motion to add an
invasion of privacy claim based on the defendant's submission of certain
of the plaintiff's medical reports to the Court. For the reasons stated
in the defendant's opposition to the motion, there has not been "an unreasonable and serious
interference with [the ...