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Javorski v. Nationwide Mutual Insurance Co.

August 2, 2006

MELISSA JAVORSKI, PLAINTIFF,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Richard P. Conaboy United States District Judge

JUDGE CONABOY

MEMORANDUM

In this Memorandum, we consider the two pending motions in this case: Defendant's Motion to Dismiss, (Doc. 2), and Plaintiff's Motion to Remand, (Doc. 3). In the underlying action, Plaintiff raises claims of Breach of Contract and Bad Faith against Defendant premised on Defendant's handling of Plaintiff's underinsured motorist claim she filed with Defendant following an automobile accident in which she was injured. (Doc. 1 Attachment.)

Because it is jurisdictional, we will first consider Plaintiff's Motion to Remand, (Doc. 3), which requires us to address the issue of whether and when removal is appropriate where no specific amount in controversy is pled in a plaintiff's complaint filed in state court. Having reviewed the parties' filings and relevant law, we conclude that diversity jurisdiction is proper in this case because both the citizenship diversity and amount in controversy requirements of 28 U.S.C. § 1332 are met. Therefore, we deny Plaintiff's Motion to Remand.

Having confirmed jurisdiction, we consider Defendant's Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 2). Defendant asserts that the record demonstrates that Plaintiff's claim was properly investigated and settled in a timely and professional manner and Plaintiff's Complaint, as a matter of law, cannot support her claims. (Docs. 7, 11.) For the reasons discussed below, we do not find as a matter of law that Plaintiff's Complaint fails to state a claim upon which relief may be granted and, therefore, we deny Defendant's Motion to Dismiss.

I. Background

A. The Accident and Plaintiff's Condition

The following facts are derived from Plaintiff's Complaint, (Doc. 1 Att.). Plaintiff was injured in an automobile accident on April 26, 2004, in Wyoming County, Pennsylvania. While traveling south on Route 29 en route to College Misericordia, Abdul Hussain, M.D., entered State Route 29 from a parking lot and, for unknown reasons, traveled across the northbound lane into the southbound lane striking the car behind Plaintiff's driven by Raymond Kuzma. After striking the Kuzma vehicle, Hussain's vehicle continued traveling northbound in the southbound lane and struck Plaintiff's vehicle head-on.

At the time of the accident, Plaintiff was operating a 1990 Toyota Camry owned by her father, John Javorski. There were also two other vehicles in the household owned by her mother, Ann Marie Javorski. All three vehicles were insured by Nationwide.

Plaintiff was treated at the scene by the Tunkhannock Community Ambulance. She was found in the driver's seat and had not moved. The ambulance crew described her as appearing confused and she complained of chest pain, left knee pain and bilateral wrist pain. She was immobilized on a backboard, extricated from the vehicle on the backboard and taken by ambulance to the Tyler Memorial Hospital Emergency Room.

Complaining of right rib and shoulder pain and left knee pain, Plaintiff's diagnosis was multiple contusions and Plaintiff was provided with Darvocet for pain. She was instructed to do deep breathing exercises and not to attend classes at College Misericordia for several days.

Two days later, Plaintiff went to her treating physician, John Gardner, M.D., whose diagnosis was chest pain, rule out fracture, shoulder contusion and left knee pain.

On June 3, 2004, Plaintiff went to the Geisinger Clinic Nephrology Department for a follow-up visit with Evan Norfolk, M.D., regarding kidney problems which pre-dated the accident. Plaintiff's kidney problems were related to long-term health problems. She was diagnosed with Wegener's Granulomatosis in 1992 - a disease which caused pulmonary problems and eventually destroyed both of her native kidneys.*fn1 Plaintiff had a kidney transplant at Geisinger Medical Center in the Spring of 1994. After several hospitalizations in 1994, she was hospitalized at Geisinger in 1997 and then again three years later from December 15, 2000, through December 22, 2000, at Stanford University Hospital in California. Following her return from California, Plaintiff was hospitalized at First Hospital from February 27, 2001, through March 7, 2001, with a diagnosis of major depression and social anxiety disorder. A renal scan performed on August 3, 2001, was interpreted as normal with normal profusion of the transplanted kidney. With this finding, Plaintiff had experienced no kidney difficulties for nearly four years.

In January 2002, Plaintiff had some renal problems. At March, April and September 2002 follow-up visits, Plaintiff's nephrology exams were normal.*fn2

During a visit to Dr. Norfolk on August 11, 2003, Plaintiff complained of some syncope,*fn3 and Dr. Norfolk referred her to her primary care physician. Otherwise, her renal function was normal. Her last visit to Dr. Norfolk before the accident occurred on April 6, 2004. At that time she complained of knee pain and problems with ambulating. Plaintiff's renal functioning was reportedly fine and she was referred to the Orthopaedic Department for her knee complaints.

At her next visit on June 3, 2004 - the first after the accident which occurred on April 26, 2004 - Plaintiff's Creatinine level was above normal and she complained of chronic fatigue. Because of the increased Creatinine level, Dr. Norfolk scheduled her for a renal biopsy. She was admitted to Geisinger as an inpatient on June 3rd and was released on June 4th. The biopsy was positive for rejection according to the discharge summary.

Plaintiff returned to be evaluated by Dr. Norfolk on June 11, 2004. He reviewed the pathology reports which resulted in his diagnosis of rejection as well as chronic nephropathy.*fn4 Dr. Norfolk indicated Plaintiff was suffering from a recent rejection with increased pain and Creatinine levels.

From the time of this diagnosis, Plaintiff has regularly been seen and treated for rejection and related and other medical problems including fibromyalgia. At times Plaintiff was treated on an inpatient basis. In the summer of 2005, Plaintiff was also diagnosed with shizophrenia paranoid type and bulimia nervosa. She was hospitalized for these conditions on both a voluntary and involuntary basis.

Some time between August of 2005 and January of 2006 Plaintiff was required to start dialysis treatments - treatments which continued at the time the Complaint was filed in this case on May 26, 2006. At the time the case was filed, Plaintiff was awaiting a donor kidney for transplant.

B. Nationwide's Conduct

At the time of the accident, Plaintiff was an insured under two automobile policies issued by Nationwide. Policy 5837C649497 provided underinsured motorist limits of $100,000/$300,000. The policy was stacked and covered two vehicles. Policy 5837B225456 had the same limits, was stacked and covered one vehicle. Therefore, Plaintiff was entitled to a maximum of $300,000 underinsured motorist benefits.

Plaintiff placed Defendant on notice of Plaintiff's underinsured motorist claim on December 7, 2004. Defendant denied coverage under one of the policies by letter dated January 13, 2005. By letter dated January 17, 2005, Plaintiff informed Defendant that the lack of coverage was not conceded and more investigation was necessary. By letter postmarked February 25, 2005, ...


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