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Babalola v. Donegal Group

August 26, 2008


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)


Before the Court is Defendants' motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 4.) The motion has been briefed and is ripe for disposition. For the reasons that follow, the Court will grant Defendant's motion to dismiss and will give Plaintiff leave to file an amended complaint consistent with the following opinion.


Plaintiff Gbolagade Babalola filed the instant action on April 7, 2008, alleging that Defendants Donegal Group, Inc., and Donegal Mutual Insurance Company (collectively "Defendants") breached the terms of a homeowners insurance policy (the "policy") that Plaintiff had purchased from them. Specifically, Plaintiff claims that Defendants improperly and in bad faith refused to defend him in a separate lawsuit pending before this Court.

The underlying action for which Plaintiff sought coverage is Bickford v. Babalola, No. 1:07-CV-2169 (hereinafter Bickford or the "underlying action"), brought against him by his former co-worker Kelly Bickford and her husband Warren Bickford. Ms. Bickford alleges that Plaintiff sexually assaulted, molested, and harassed her when both she and Plaintiff were employed at Waynesboro Hospital in Waynesboro, Pennsylvania. In the complaint, Ms. Bickford sets forth various alleged instances of inappropriate sexual touching by and interaction with Plaintiff, and she describes the overwhelming emotional and psychological impact that Plaintiff's alleged conduct had on her. Ms. Bickford states that she is being treated by a family physician and psychiatrist to help her cope with the mental and emotional trauma she continues to suffer as a result of Plaintiff's attacks. The complaint raises claims of: battery, assault, outrageous conduct causing severe emotional distress, false imprisonment, invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and loss of consortium.

Plaintiff maintains that the Bickfords' claims are entirely without merit. Moreover, he contends that some of the claims-in particular, those sounding in negligence-should be covered by his homeowners insurance policy. Plaintiff tendered the Bickford complaint to Defendants, but they refused to defend him against the suit, prompting the instant action.

As relief for Defendants' denial of coverage, Plaintiff seeks monetary damages for breach of contract, treble damages, pre and post judgment interest, punitive damages, and fees and costs. (Compl. at 4.) Plaintiff also seeks an order directing Defendants to pay the costs and fees of defending him in the underlying action "solely for the Bickfords' claims of negligence against Plaintiff." (Id.)

Defendants filed the instant motion to dismiss on April 28, 2008. (Doc. No. 4.) Before his briefing obligation had been triggered under the Local Rules, see M.D. Pa. L.R. 7.6, Plaintiff filed a brief in opposition. (Doc. No. 6.) Defendants subsequently filed their brief in support of the motion and reply brief on May 12 and May 19, 2008, respectively. Plaintiff sought leave to file a sur-reply brief (Doc. No. 10), which was granted (Doc. No. 12). During a case management conference held on June 2, 2008, Defendants sought leave to supplement their arguments on the motion to dismiss, explaining that they had not been able to adequately address certain matters "newly" raised in Plaintiff's sur-reply brief. Defendants and Plaintiff filed supplemental briefs on July 10, 2008. (Doc. Nos. 18 & 19.)


A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted); see also Kost, 1 F.3d at 183 (A plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist.") (citation omitted). Moreover, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotation marks omitted) (quoting Twombly, 127 S.Ct. at 1964-65).

Plaintiff would limit the Court's review solely to the face of his complaint. (Doc. No. 6-2, at 2-3.) The Court, however, has considered the Bickford v. Babalola complaint, as well as the complete copy of the homeowners insurance policy provided by Defendants (Doc. No. 4-4). While it is true that review on a Rule 12(b)(6) motion is generally limited to the allegations of the complaint, a court "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d. Cir. 1997); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Furthermore, a court may properly rely upon "documents that form the basis of a claim," that is, any document "integral to or explicitly relied upon in the complaint." Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004). The Third Circuit has explained that "considering such a document [at this stage] is not unfair to a plaintiff because, by relying on the document, the plaintiff is on notice that the document will be considered." Id. Thus, the Court's reliance on the complaint in Bickford (a public record) and the homeowners insurance policy (a document forming the basis of Plaintiff's claim) does not convert the instant motion to dismiss into one for summary judgment.


As an initial matter, Defendants argue, and Plaintiff concedes, that Donegal Group was not a party to the homeowners insurance policy and, therefore, owed Plaintiff no duty. In light of this concession, the motion to dismiss will ...

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