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Gidley v. Allstate Insurance Co.

October 6, 2009

JANET GIDLEY AND NORMAN GIDLEY,
v.
ALLSTATE INSURANCE COMPANY



The opinion of the court was delivered by: O'Neill, J.

MEMORANDUM

Plaintiffs Janet Gidley and Norman Gidley filed a complaint in the Pennsylvania Court of Common Pleas of Northampton County and the case was subsequently removed to this Court on August 13, 2009. I have before me now defendant's motion to dismiss counts II and IV of plaintiffs' complaint, plaintiffs' response and defendant's reply.

BACKGROUND

Plaintiffs allege that on February 18, 2005, they were riding together in their car when they were struck head-on by another car and suffered numerous serious injuries. Prior to the accident, plaintiffs allege that they obtained an automobile insurance policy from defendant which provided medical payments coverage and underinsured motorist coverage. Plaintiffs allegedly provided timely notice to defendant of their medical claims related to the accident and defendant, after conducting a peer review of those claims, denied all of plaintiffs' medical claims. Plaintiffs accepted defendant's offer to pay plaintiff, Mrs. Gidley the full policy limit of $100,000.00 under the underinsured motorist policy, and rejected defendant's offer to pay plaintiff, Mr. Gidley $40,000.00 under the underinsured motorist policy. Plaintiffs' complaint alleges claims for breach of contract (count I), breach of duty of good faith and fair dealing (count II), bad faith acts (count III), violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (count IV), and underinsured motorist coverage (count V). Plaintiffs seek$50,000.00 plus reasonable attorneys' fees and costs, as well as punitive damages. In addition, they request that their damages be trebled as permitted under the UTPCPL.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though a plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id., citations omitted. The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556.

The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, No. 07-4285, 2009 WL 2501662, at * 4 (3d Cir. 2009). The Court of Appeals also set forth a two part-analysis for reviewing motions to dismiss in civil actions in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at *5, quoting Iqbal, 129 S.Ct. at 1950. The Court of Appeal explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.

DISCUSSION

Defendant moves to dismiss counts II and IV of plaintiffs' complaint. In their response, plaintiffs concede that their second count for breach of duty of good faith and fair dealing is subsumed by their claims for breach of contract and bad faith. Because plaintiffs concede this matter, I will dismiss count II.

With respect to count IV, plaintiffs allege defendant violated Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. § 201-1 et seq. (UTPCPL). Defendant moves to dismiss this claim arguing that plaintiffs failed to identify which provision of the UTPCPL defendant allegedly violated, failed to identify the elements of a UTPCPL claim, and failed to plead any facts demonstrating plaintiffs' justifiable reliance.

The UTPCPL prohibits any person from engaging in "[u]nfair methods of competition and unfair or deceptive acts or practices." 73 Pa. Stat. § 201-3. It sets forth twenty-one separate definitions of "unfair methods of competition" and "unfair or deceptive acts or practices." 73 Pa. Stat. § 201-2(4)(i)-(xxi). Courts are to construe the UTPCPL "liberally to effect its object of preventing unfair or deceptive practices." Creamer v. Monumental Properties, Inc., 329 A.2d 812, 817 (Pa. 1974). A private cause of action is available under the UTPCPL for "[a]ny person who purchases or leases goods or services... and thereby suffers any ascertainable loss..., as a result of the use or employment by any person of a method, act or practice declared unlawful."

73 Pa. Stat. § 201-9.2(a). "Because the loss must occur 'as a result of' unlawful conduct under the UTPCPL, 'a private plaintiff pursuing a claim under the statute must prove justifiable reliance' on the unlawful conduct, not merely that the wrongful conduct caused the plaintiff's injuries." Seldon v. Home Loan Services, Inc., No. 07-04480, 2009 WL 2394182, at * 11 (E.D. Pa. Aug. 4, 2009), quoting Hunt v. U.S. Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008).

Plaintiffs' UTPCPL claim not only fails to identify which type of unfair method of competition or unfair and deceptive act defendant allegedly committed, it also lacks supporting factual allegations demonstrating plaintiffs justifiably relied on defendant's representations or conduct. Plaintiffs' complaint broadly ...


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