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McCracken v. Allstate Insurance Co.

November 19, 2009

TED A. MCCRACKEN PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY ET AL. DEFENDANTS.



The opinion of the court was delivered by: Goldberg, J.

MEMORANDUM OPINION

This case stems from Plaintiff's claim that he contracted thyroid cancer from radiation exposure while driving in vehicles that were allegedly insured by Defendant insurance providers. Plaintiff has sued Progressive Insurance Company ("Progressive"), Allstate Insurance Company ("Allstate"), and McCool Insurance Agency, an insurance agent for Allstate ("McCool") (collectively, "Defendants"). This is not the first time Plaintiff has raised these types of claims*fn1 and we recently dismissed a similar lawsuit wherein Plaintiff had sued numerous gasoline companies raising similar theories of liability.*fn2

Defendants Allstate and McCool have filed a Motion to Dismiss, which generally asserts that Plaintiff has failed to properly state a cause of action. Defendant Progressive has sought dismissal on similar grounds. Defendant McCool also claims that the Complaint should be dismissed due to lack of personal jurisdiction (doc. nos. 9, 17).

After examining the individual counts in detail, we will grant Defendants' Motions to Dismiss.

I. Background

Plaintiff, Ted. A. McCracken, filed this pro se Complaint on July 9, 2008. He claims to have purchased automobile liability insurance from Defendants Allstate and Progressive and mobile home insurance from Defendant Allstate, which insured him against physical injury sustained while driving his motor vehicles and dwelling in his mobile home. Plaintiff alleges that he developed thyroid cancer and other physical ailments in 2005 based on exposure to increased levels of radiation that existed when driving in his insured vehicles. Although the Complaint never alleges that he submitted any type of insurance claims with Defendants, Plaintiff seeks payment of medical expenses related to his thyroid cancer and compensatory damages from Defendants. (See generally, Pl.'s Compl.)*fn3

As set forth above, there are two separate bases for dismissal of the Complaint: 1) Failure to state a claim; and 2) as it relates to Defendant McCool - lack of personal jurisdiction. We address each in turn below.

II. Failure to State a Claim - Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Fed. R. Civ. P. 8(a)(2) requires a pleading to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." According to the Supreme Court, the Rule 8 pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007)). The Iqbal Court recently summarized the pleading standard established in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Iqbal, 129 S.Ct. at 1949 (citations omitted).

The Iqbal Court articulated two principles that underlie Twombly's holding. First, a court must accept as true all of the factual allegations made in a pleading, but not the legal conclusions. Id. Second, only a complaint that states a "plausible claim for relief survives a motion to dismiss." Id. at 1950. Determining plausibility is a "context specific task." Id. In short, "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 shown-that the pleader is entitled to relief." Id. (citations omitted). The Third Circuit has found that in light of Twombly, it is no longer sufficient to make an unsupported statement asserting an entitlement to relief; instead a complaint must state a claim and the grounds supporting the claim. Phillips v. County of Allegheny, 515 F.3d 224, 233-34 (3d Cir. 2008) (citing Twombly, 127 S.Ct. at 1969, n.8).

A. Auto Insurance Liability (Count II - Allstate and McCool, Count IV - Progressive)

Plaintiff demands medical expenses, lost wages and compensatory damages from Allstate and Progressive under several automobile insurance policies. Defendants argue that "in order for Plaintiff to recover under an automobile insurance policy, Plaintiff must allege an injury arising out of the maintenance or use of the motor vehicle and not arising from an instrumentality or external ...


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