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May 24, 2004.


The opinion of the court was delivered by: STEWART DALZELL, District Judge


Plaintiff Richard J. Mandel, an orthopedic surgeon, purchased disability income insurance policies from defendant Chubb Life America*fn1 on April 3, 1985 ("Policy 1"), August 25, 1985 ("Policy 2"), June 8, 1986 ("Policy 3"), and February 20, 1989 ("Policy 4"). Dr. Mandel suffered a back injury on May 25, 2001 that has required two surgical procedures.

For the remainder of 2001 and all of 2002, Dr. Mandel could only work on a restricted basis as a result of the injury, and he experienced a loss of income that, according to the claim he ultimately filed with defendant Jefferson-Pilot, entitled him to benefits under his disability policies. Jefferson-Pilot, however, took a different view of Dr. Mandel's eligibility for benefits and denied his claim.

  Dr. Mandel then brought this action, which asserts claims against Jefferson-Pilot for breach of contract (Count I), negligent misrepresentation (Count II), violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("PUTPCPL"), 73 Pa. C.S. § 201-1 et seq. (Count III), intentional misrepresentation (Count IV), and breach of fiduciary duty and the duty of good faith and fair dealing (Count V).

  Before us is Jefferson-Pilot's motion to dismiss Counts II, III, IV, and V of the complaint.*fn2 For the reasons provided below, we grant the motion in part and deny it in part.


  A. Counts II and IV (Negligent and Intentional Misrepresentation

  Jefferson-Pilot argues that Dr. Mandel's claims for negligent and intentional misrepresentation must be dismissed because they violate Pennsylvania's "gist of the action" doctrine, which bars a contracting party from pursuing a tort claim against the other party where the essential nature of the claim is contractual. Etoll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). In Owen J. Roberts School Dist. v. HTE, Inc., No. 02-7830, 2003 WL 735098 (E.D. Pa. Feb. 28, 2003) we examined the application of the doctrine in cases involving pre and post-contractual statements. We concluded that the doctrine does not categorically bar or exempt a claim based on a pre-contractual statement. However, the doctrine does bar the claim if the statement became the basis for a contractual duty. Id. at *3. As to post-contractual statements, we concluded that, at the Rule 12(b)(6) stage, the doctrine does not bar a plaintiff's claim that the defendant breached the contract and then made misrepresentations about the breach to prevent the plaintiff from asserting rights under the contract.*fn3 Id. at *6.

  Here, Dr. Mandel alleges that the defendants' ongoing statements about their willingness to pay claims induced him to take out Policy 1 and then simultaneously induced him to take out Policies 2-4 and continue paying premiums on the policies he had already purchased. The duty to pay claims is embodied in the policies themselves. See, e.g., Def.'s Resp. Ex. B at 2 (Policy 1) ("We will pay a reduced monthly income while the insured is residually disabled. . . ."). The gist of the action doctrine therefore bars Dr. Mandel's misrepresentation claims to the extent they focus on statements that induced him to take out the policies. However, to the extent that these claims concern post-breach misrepresentations that induced Dr. Mandel to continue paying premiums rather than abandon the policies, he has stated a claim upon which relief can be granted.

  B. Count III (PUTPCPL)

  Jefferson-Pilot also seeks dismissal of Count III, which alleges that it violated the PUTPCPL by engaging in a "deceitful course of conduct by promising disability benefits it never intended to pay on the basis of inaccurate, deceitful, biased and inappropriate claims processing . . . for the sole and calculated purpose of denying benefits to . . . Dr. Mandel." Compl. ¶ 47.

  An insurer can be held liable under the PUTPCPL only if it makes fraudulent misrepresentations in order to sell a policy or engages in some other form of misfeasance. Fisker v. Aetna Life Ins. & Ann. Co., 39 F. Supp.2d 508, 511 n.1 (M.D. Pa. 1998); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp. 836, 841 (M.D. Pa. 1995). Here, Dr. Mandel has alleged that the Jefferson-Pilot's misrepresentations induced him to purchase the four policies, and he has therefore stated a claim in Count III.*fn4

  C. Count V (Breach of Fiduciary Duty and Breach of Duty of Good Faith and Fair Dealing)

  Count V asserts that Jefferson-Pilot breached its fiduciary duty to Dr. Mandel and also violated the covenant of good faith and fair dealing. Under Pennsylvania law, both of these claims sound in contract and not tort, see Gen. Refractories Co. v. Liberty Mut. Fire Ins. Co., No. 97-7494, 1999 WL 1134530, at *2-3 (E.D. Pa. Dec. 9, 1999) (Hutton, J.), and Jefferson-Pilot therefore seeks the dismissal of Count V on the ground that it duplicates Dr. Mandel's breach of contract claim in Count I. Although we acknowledge the redundancy, there can be no harm in retaining Count V ...

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