United States District Court, W.D. Pennsylvania
December 5, 2005.
RAMPART HYDRO SERVICES, L.P., RAMPART HYDRO SERVICES, INC., BETH W. NEWBOLD and PATRICK M. WINKLER, Plaintiffs,
ZURICH AMERICAN INSURANCE COMPANY and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendants.
The opinion of the court was delivered by: DAVID CERCONE, District Judge
AND NOW, this 5th day of December, 2005, upon due consideration
of defendants' motion to dismiss and the parties' submissions in
conjunction therewith, IT IS ORDERED that the motion be, and the
same hereby is, granted in part and denied in part. The motion is
granted to the extent it seeks the dismissal of Count III for
failure to state a claim upon which relief can be granted. The
motion is denied as to Counts I and II.
It is well settled that in reviewing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) "[t]he applicable
standard of review requires the court to accept as true all
allegations in the complaint and all reasonable inferences that
can be drawn therefrom, and view them in the light most favorable
to the non-moving party." Rocks v. City of Philadelphia,
868 F.2d 644, 645 (3d Cir. 1989). Dismissal of a complaint is proper
only where "it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim that would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Langford
v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000)
(citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). The
question is not whether the plaintiff will ultimately prevail;
instead, it is whether the plaintiff can prove any set of facts
consistent with the averments of the complaint which would show
the plaintiff is entitled to relief. Jordan v. Fox, Rothschild,
O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Under this standard a complaint
will be deemed sufficient if it adequately puts the defendant on
notice of the essential elements of a cause of action. Nami,
82 F.3d at 66.
Defendant's motion seeks to sidestep the above standards by
arguing that the facts as pled do not entitled plaintiffs to
relief. But the record demonstrates that a genuine dispute exists
between the parties regarding their respective rights and duties
under the Indemnity Agreement. Defendant has made a demand for
indemnity and at Count I plaintiff seeks a declaration that it is
not obligated to honor that demand under the attendant
circumstances. Adjudication of the claim for declaratory relief
will clarify the parties' respective rights and duties under the
Indemnity Agreement and resolve the controversy currently
surrounding plaintiff's defenses to the demand. This is
sufficient at the pleading stage. Furthermore, Zurich Insurance
Company is a party to the indemnity agreement and thus its
presence is necessary to protect its interests and assure the
ability to award complete relief to the prevailing parties.
At this juncture it is also sufficient to observe that in the
event plaintiff is able to prove a set of facts demonstrating
that defendants materially breached a condition precedent to
plaintiff's duty to indemnify under the agreement, then plaintiff
would be excused from the duty to perform any further obligations
under the agreement. Plaintiff is entitled to pursue evidence
that would support such relief. And while this aspect of Count II
may well duplicate the claim at Count II, plaintiff is entitled
to the benefit of all doubt at this stage of the litigation.
Accordingly, defendants' challenges to this aspect and the
remaining implications of Count II are appropriately resolved
after discovery and pursuant to a motion for summary judgment.
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