The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for consideration and disposition is NORTHLAND'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Document No. 5). The matter has been fully briefed. See Document Nos. 8-10.
The following facts are taken from Plaintiff's Complaint and are taken as true for the purpose of the instant Motion to Dismiss. Plaintiff Amy Johnson ("Plaintiff") "suffered physical injuries while she was a passenger in a limousine insured by Defendant Northland Insurance Company ("Defendant") on or about June 2, 2001. Complaint at ¶ 5. Specifically, Plaintiff suffered from headaches, neck pain and right shoulder pain after the crash. Id. at ¶ 8. The headaches and neck pain temporarily resolved, and Plaintiff underwent right rotator cuff surgery on or about January 3, 2003. Id. Her symptoms never completely resolved, and on or about January 27, 2004, while working as a waitress, Plaintiff re-injured her neck. Id. at ¶ 9. The Complaint alleges that the re-injury to Plaintiff's neck was "due to shoulder instability caused by the motor vehicle wreck." Id. As stated more fully in the Complaint, Plaintiff underwent a variety of medical procedures in an effort to alleviate her symptoms. Defendant has neither paid Plaintiff's medical bills nor provided compensation for lost wages on the contention that her symptoms are not related to the accident. See id. at ¶¶ 12-27.
Plaintiff initially filed her Complaint in the Court of Common Pleas of Allegheny County. The Complaint alleges violations of 75 Pa.C.S. § 1797 (Count I), bad faith pursuant to 42 Pa.C.S. § 8371 (Count II), breach of contract (Count III), unjust enrichment (Count IV), violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (Count V), and breach of fiduciary duty (Count VI). Defendant removed the action to federal court on the basis of diversity of citizenship jurisdiction. In its Motion to Dismiss, Defendant seeks to dismiss some counts and allegations of Plaintiff's Complaint.
When considering a motion to dismiss pursuant to Rule 12(b)(6) the Court accepts as true all well pleaded allegations of fact. Pennsylvania Nurses Ass'n. v. Pennsylvania State Educ. Ass'n., 90 F.3d 797, 799-800 (3d Cir. 1996), cert. denied, 519 U.S. 1110 (1997). In addition, the Court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-movant. General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 325 (3d Cir. 2001). Dismissal is appropriate only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993).
1) Count I - Alleged Violations of 75 Pa.C.S. § 1797*fn1 Count I alleges that Defendant violated the provisions of 75 Pa.C.S. § 1797. See Complaint at ¶ 29. Section 1797(b) provides a procedure for an insurer to follow when it wishes to confirm that medical care provided to an insured "conform[s] to the professional standards of performance and [is] medically necessary." 75 Pa.C.S. § 1797(b)(1).*fn2
The gravamen of Count I is that Defendant failed to follow the statutory procedures set forth in section 1797 in a variety of ways in its handling of Plaintiff's claim for first party medical benefits. Defendant contends, in essence, that most of the allegations of Count I should be dismissed because its failure to submit Plaintiff's medical bills to a peer review organization ("PRO") for review is, in and of itself, not actionable. The case law clearly reflects that a plaintiff can bring a cause of action under section 1797 to challenge an insurer's failure to pay first party medical benefits. Gemini Physical Therapy and Rehab., Inc. v. State Farm, 40 F.3d 63, 67 (3d Cir. 1994).
The Court finds and rules that Count I is sufficient as pled to state a claim under the liberal standard of notice pleading. It may well be, as Defendant contends, that it had no obligation to employ a PRO or otherwise "comply with the statutory requirements applicable to PRO reviews" under the circumstances of this case. Def's Brief at 6. However, in the Court's view discovery is necessary to determine the factual basis of Plaintiff's claim, and whether those facts give rise to violations of section 1797. Therefore, Defendant's Motion to Dismiss Count I will be denied without prejudice.
2) Count II - Bad Faith Pursuant to 42 Pa.C.S. § 8371 Count II alleges that Defendant violated 42 Pa.C.S. § 8371 in a variety of ways. Defendant contends that some of the allegations of Count II fail to state a claim and must be dismissed. The Court will address the various allegations seriatim.
a. Bad Faith Based on Defendant's Handling of the First and Third Party Claims
Paragraph 34(d) of the Complaint alleges that Defendant acted in bad faith "in that the same claims representative handled both first party benefits and third party liability, creating an impermissible conflict of interest ..." Complaint at ¶ 34(d). Defendant contends, and the Court agrees, that "[t]here is no legal authority for the proposition that it is wrong, or that it constitutes bad faith, for the same insurance claim representative to handle both liability claims and medical/income loss claims arising from the same accident." Def's Brief at 6. The Court has reviewed the cases cited by Plaintiff in her Response and said cases simply do not support a cause of action for a "bad faith" conflict of interest based on the same claims representative's handling of both first party benefits and third party liability. Moreover, Plaintiff's attempt to analogize this situation to a conflict of interest in the context of an attorney-client relationship is inapposite. Finally, as explained infra, ...