Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Excelsior Insurance Co. v. Incredibly Edible Delites

December 17, 2009

EXCELSIOR INSURANCE COMPANY
v.
INCREDIBLY EDIBLE DELITES, INCREDIBLE FRANCHISE CORP. AND EDIBLE ARRANGEMENTS INTERNATIONAL, INC.



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

MEMORANDUM

I have before me Excelsior Insurance Company's motion to dismiss Incredibly Edible Delites ("IED") and Incredible Franchise Corp.'s ("IFC") third, fourth and fifth counterclaims or in the alternative to bifurcate, IED and IFC's response, Excelsior's reply and IED and IFC's sur-reply.

BACKGROUND

I. Procedural Background

On July 20, 2009, Excelsior filed a complaint against IED, IFC and Edible Arrangements International, Inc. ("EAI") seeking declaratory relief pursuant to 28 U.S.C. § 2201 and a determination by this Court of the rights and responsibilities of the parties under an insurance policy issued by Excelsior. Pursuant to a stipulation, EAI was dismissed as a defendant by my Order dated September 8, 2009. IED and IFC filed their answer, affirmative defenses and counterclaims on October 9, 2009. Excelsior now moves to dismiss IED's and IFC's third counterclaim (breach of contract), fourth counterclaim (breach of covenant of good faith and fair dealing) and fifth counterclaim (statutory bad faith, 42 Pa. Cons. Stat. § 8371).

II. Factual Background*fn1

IED and IFC allege that "[i]n 2006 and 2007, IED and IFC, through their insurance broker, obtained a policy of insurance from Excelsior for commercial general liability coverage." Counterclaim ¶ 5. They further allege that,

8. In the paperwork provided by Excelsior at the time the Policy was entered into, IFC, the entity that issues franchises on behalf of IED, was described as an 'Additional Insured -Grantor of Franchise.

9. IED and IFC reasonably understood this designation to indicate that IFC was an Additional Insured under the Policy and to describe its role in the enterprise as granting franchises.

10. At no time has IFC granted a franchise to IED, and any policy limiting coverage to franchises granted by IED would be an absurdity and a dead letter.

Counterclaim ¶ 8-10.

EAI instituted litigation against IED and IFC in Connecticut and EAI alleges in that litigation that "IFC used EAI's confidential 'innovative marketing programs' to harm EAI's interests by 'compet[ing] directly against' EAI." Counterclaim ¶ 11 and 14. IED and IFC allege that they have "incurred defense costs and made claims for defense under the Policy to Excelsior in accordance with the Policy" and that they "are entitled to have Excelsior defend the EAI litigation under the terms of the Policy so long as there is any potentially covered claim in the action." Counterclaim ¶ 12-13.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.