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Bukofski v. USAA Casualty Insurance Co.

June 9, 2009


The opinion of the court was delivered by: Judge Munley


Before the court for disposition are the following: a motion to dismiss portions of the complaint for failure to state a claim; a motion for a more definite statement; and a motion to strike redundant, immaterial, impertinent or scandalous matter. The matters have been briefed and are ripe for disposition.


Plaintiff Suzanne Bukofski (hereinafter "plaintiff") was involved in a motor vehicle accident on October 11, 2007. (Doc. 4-2, Compl. ¶ 12). Plaintiff sustained injuries in the accident. (Id. at 16).*fn1 At the time of the accident plaintiff was covered by an automobile insurance policy issued by Defendant USAA Casualty Insurance Company (hereinafter "defendant"). (Id. at ¶ 15). The insurance policy provided ten thousand dollars ($10,000) in medical coverage and underinsured motorist coverage of one hundred thousand dollars ($100,000) stacked on two vehicles. (Id.). Plaintiff asserts that the defendant wrongly withheld medical benefits and underinsurance motorist benefits with regard to the accident. She thus filed the instant ten-count complaint that asserts the following claims: Count I, Breach of Contract; Count II, Bad Faith, 42 PENN. CONS. STAT. ANN. § 8371; Count III, Unfair Trade Practices and Consumer Protection Law, 75 PENN. STAT. § 201-1, et seq.; Count IV, good faith and fair dealing; Count V, breach of fiduciary duty; Count VI, negligence Count VII, negligent infliction of emotion distress; Count VIII, fraudulent misrepresentation/concealment; Count IX, negligent misrepresentation; and Count X, vicarious liability.

Plaintiff filed the lawsuit in the Luzerne County, Pennsylvania Court of Common Pleas. Defendant removed the case to this court on the basis of diversity jurisdiction, and subsequently filed the motions that are now before the court for disposition.


This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiffs are citizens of Pennsylvania, and the Defendant is a Texas corporation with a principal place of business in San Antonio, Texas. (Doc. 1, Notice of removal, ¶ ¶ 5, 6). The amount in controversy exceeds $75,000. (Id. at ¶ ¶ 8, 9). Because we are sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).


The defendant raises six (6) issues, and we will address them in seriatim.

I. Count II

First, the defendant claims that Count II of the complaint, bad faith, should be dismissed for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Standard of review

When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

Defendant moves to dismiss Count II of the complaint on several grounds. We will address each separately.

A. Preemption

Count II of the claim presents a bad faith claim pursuant to 42 PENN. CONS. STAT. § 8371 (hereinafter section 8371), which provides as follows:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

Plaintiff claims that the defendant violated the policy's implied covenant of good faith and fair dealing, and as such committed bad faith under section 8371. Plaintiff avers that Defendant breached its duty of good faith and fair dealing by trying to strengthen its defense of the UIM Claim in the following manner:

1) failing to pay the first party benefits to plaintiff;

2) failing to objectively and fairly evaluate plaintiff's first party medical benefit claim;

3) refusing to effectuate a prompt and fair resolution of plaintiff's first party benefit claim;

4) retaining the Peer Review Organization to challenge the reasonableness and necessity of plaintiff's medical treatment so as to force her health care provides to stop treatment necessary for the accident-related injuries; and 5) misrepresenting Pennsylvania ...

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