The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
Plaintiff was involved in a two-car accident in 1999. She was sued by
the other driver. Neither of the two liability insurance companies which,
at least arguably, provided coverage to plaintiff saw fit to defend the
action, and a default judgment was entered against her. Allegedly, she
lost her operating privileges as a result of nonpayment of the judgment.
Plaintiff brought this action against both of the insurance companies
The automobile which plaintiff was operating was owned by a gentleman
named Louis Santoleri, whose step-father had obtained a liability policy
from Allstate Insurance Company which covered the automobile in question.
Plaintiff also allegedly had liability coverage as a family member, under
a policy issued by GEICO Insurance Company to her father. Plaintiff's
claims against GEICO have now been settled, so we are concerned only with
plaintiff's claims against Allstate. Plaintiff filed an unusually prolix complaint, alleging claims for
breach of contract, bad faith, misrepresentation, etc., contending, not
only that Allstate had breached the terms of its insurance policy by not
providing a defense to the state court action, but also that Allstate had
led plaintiff to believe that it was defending the action. It was not
until after the state court judgment had been rendered that Allstate, for
the first time, asserted a right to disclaim coverage. The grounds
ultimately asserted by Allstate, in 2003, were (1) that plaintiff had
failed to give prompt notice of the accident, and (2) that plaintiff did
not have permission to operate the vehicle.
In addition to its prolixity (113 paragraphs), plaintiff's amended
complaint suffered from the inclusion as defendants of not only Allstate
Insurance Company which issued the policy in question, but also three
other Allstate entities (Allstate Indemnity Company, Allstate Property
and Casualty Company, and Allstate Auto Insurance Company), alleging
merely that these three entities all did business as "Allstate."
Defendant filed a motion to dismiss the complaint, invoking
Rule 12(b)(6). Plaintiff thereupon filed a second amended complaint, not
significantly different from its first amended complaint; Allstate filed
another motion to dismiss (21 pages, plus numerous attached exhibits).
Plaintiff filed a response to the motion, defendant filed a rebuttal, and
plaintiff filed a reply to the rebuttal. It seems reasonably apparent that plaintiff has no conceivable claims
against any of the defendants other than Allstate Insurance Company, but
that is a matter for summary judgment, rather than a Rule 12(b)(6)
motion: the complaint alleges actionable conduct on the part of all of
the named defendants.
The parties devote a great deal of time and energy to the question of
whether the "gist of the action" doctrine precludes plaintiff from
asserting claims for misrepresentation and the like. I conclude that, on
the basis of the facts alleged in the complaint, plaintiff may have
claims not only for breach of contract, but for bad faith handling of the
entire problem under 42 Pa. C.S.A. § 8371. If successful, plaintiff
would be entitled to recover damages for breach of contract and also
under the bad faith statute, and whatever other claims she is asserting
are mere surplusage and can now be ignored.
Since defendant has not moved to strike off the complaint as in
violation of Fed.R.Civ.P. 8, and since the complaint cannot now be
dismissed under Fed.R.Civ.P. 12(b)(6), the defense motions will be
denied, without prejudice to a properly supported motion for summary
judgment. Counsel would be well advised to develop, without further delay
and wheel-spinning, a record as to the only significant liability issues,
namely, whether the defendant Allstate Insurance Company did, or did not,
receive timely notice of the state court litigation, and whether plaintiff had permission
to operate the car she was driving at the time of the accident.
AND NOW, this ___ day of April 2004, IT IS ORDERED:
1. That all of the defense motions to dismiss the second amended
complaint are DENIED, without prejudice to a properly supported motion
for summary judgment.
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