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Allegrino v. Conway E & S

October 6, 2010


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer


I. Introduction

Presently before the Court is a motion to dismiss/motion to strike filed by Defendants Conway E & S, Inc. ("Conway") *fn1 and Associates of Risk Transfer, Inc., doing business as RTI Insurance Services*fn2 ("RTI," collectively "Defendants"). (Docket No. 193). Defendants seek dismissal of pro se Plaintiff Anthony Allegrino's*fn3 ("Plaintiff") negligence claims against them and further seek to strike his request for punitive damages and other of his allegations which they claim were either previously struck by the Court or are impertinent.*fn4 ( Id .). In a prior Memorandum Opinion, the Court addressed similar motions brought by Defendants, dismissing several claims against these entities, but granted Plaintiff leave to amend his request for punitive damages. See Allegrino v. Conway E & S, Inc. et al. , Civ. A. No. 09-1507, 2010 WL 1854125, 2010 U.S. Dist. LEXIS 40732 (W.D. Pa. May 5, 2010); (Docket No. 163). Plaintiff filed his Third Amended Complaint and this challenge followed. For the reasons set forth below, Defendants' Motion is granted, in part, and denied, in part.*fn5

II. Relevant Factual Background*fn6

Because this matter comes to this court on a Rule 12(b)(6) Motion to Dismiss, the factual allegations set forth in Plaintiff's Third Amended Complaint are accepted as true. Hemi Group, LLC. v. City of N.Y. , --- U.S. ---, 130 S.Ct. 983, 986-87 (2010)(citing Leatherman v. Tarrant County Narcotics and Intelligence & Coordination Unit , 507 U.S. 163, 164 (1993)). The pertinent facts are as follows.

A. The Property and the Purchase of the Insurance Policies

Plaintiff*fn7 owns real property and a building at 138 Aurilles Street, Duquesne, Pennsylvania.

The property was covered under an insurance policy issued by Defendants Certain Underwriters at Lloyd's, Advent Underwriting Limited, a/k/a Lloyd's Syndicate 780, and Omega Underwriting Agents Ltd., a/k/a Lloyd's Syndicate 958 ("Underwriters"), Policy Number CONW-51534-07, which insured the real property from May 9, 2007 to May 9, 2008.*fn8 (Docket No. 177-1, Exhibit "A"). He was also issued a vacancy permit for this period because the building was under construction and no one was onsite on a regular basis. (Docket No. 177 at ¶ 32). Plaintiff contends that prior to the issuance of said policy, Defendants RTI, Underwriters and Conway, conducted a pre-inspection of the property and charged Plaintiff a fee for the inspection. (Docket No. 177 at ¶ 23).

Plaintiff alleges that he had contacts with Byron Pryor, an agent of RTI, in April of 2008 regarding the insurance coverage for the property, building and his businesses. (Docket No. 177 at ¶¶ 143-146). Plaintiff avers that he requested that Pryor procure insurance on his behalf to protect the business property for the business activities that he intended to operate at that location including an "internet search engine" and "jeans manufacturing." ( Id . at ¶¶ 143, 144). He also requested "director and officer liability" coverage and "general insurance coverage for liability and property coverage." ( Id . at ¶¶ 145, 146). Plaintiff then purchased another policy from Underwriters, policy number CONW-51636-08, which provided insurance from May 9, 2008 to May 9, 2009. (Docket No. 177-2, Exhibit "B"). Plaintiff claims that despite his requests to Pryor and RTI, the requested coverage for his "internet search engine" and "jeans manufacturing" business activities and related business property, for "director and officer liability," and for "general insurance coverage for liability and property coverage" were not included in said policy. (Docket No. 177 at ¶¶ 143-146). Plaintiff further alleges that he made several requests for a copy of his policies, including in April and June of 2008, but that they were not produced by RTI until October of 2008. ( Id . at ¶ 158).

From April 2007 to November 2008, Plaintiff made substantial renovations to the building, installing new electric service and copper plumbing service to three of the apartments, at a cost of approximately $130,000. (Docket No. 177 at ¶ 24). He also stored some equipment related to the aforementioned businesses in the building.

B. Damage to the Building and Plaintiff's Business Property

Plaintiff claims that the building and his property contained in the building were damaged by separate instances of vandalism, windstorms and when a demolition team tore down an adjacent property.

Plaintiff asserts that he incurred multiple losses caused by vandalism to the real property at 138 Aurilles Street. ( Id. at ¶¶ 28, 29). The first instance of vandalism occurred between November 7, 2007 and April 10, 2008. ( Id. at ¶ 28). In November 2007, the subject property was allegedly flooded by Plaintiff's former contractor. ( Id. ). Specifically, the contractor intentionally smashed a toilet in one of the upstairs apartments, which caused the building to flood with 51,400 gallons of water. ( Id . at ¶¶ 30, 31). Plaintiff avers that the contractor was upset after he was fired by Plaintiff over a financial dispute and work issue between them. ( Id . at ¶¶ 30, 31). Plaintiff alleges he promptly reported the vandalism claims. ( Id. ). A second instance of vandalism allegedly occurred between May 23, 2008 and August 18, 2008. ( Id. at ¶ 28). In addition to the damage to the building, Plaintiff alleges that certain of his electronic business personal property was damaged by this vandalism.

Plaintiff also maintains that he incurred losses related to damage to his property caused by two windstorms, on July 20 and 22, 2008, respectively. ( Id . at ¶¶ 44, 45). As a result of the windstorms, all of the gutters were "blown off" the building. ( Id. at ¶ 46). The storm also caused other structural and non-structural damage. ( Id .).

On or about October 25, 2008, the property adjacent to 138 Aurilles Street, at building number 140, was demolished by the City of Duquesne, W & J Contractors and Twin Rivers Council of Government, through the use of heavy machinery and vehicles. ( Id . at ¶ 59). Specifically, Plaintiff attests that these entities used heavy equipment to destroy the basement and foundation on the neighboring property, thereby removing lateral support to Plaintiff's building. ( Id. at ¶ 61). Plaintiff avers that this demolition seriously damaged the foundation, floors, and walls of Plaintiff's building. ( Id . at ¶ 60). Consequently, Plaintiff alleges that these entities were negligent.*fn9 ( Id. at ¶ 61).

Finally, on October 12, 2009, certain of Plaintiff's electronic business personal property that was damaged by the alleged vandalism was moved from 138 Aurilles Street to 359 Broadway, Newburgh, New York for storage. ( Id . at ¶ 55). This property was subsequently discarded by a worker at the new location. ( Id . at ¶ 54).

C. Plaintiff's Insurance Claims

Plaintiff submitted insurance claims to Underwriters, Conway and RTI on August 18, 2008. (Docket No. 177 at ¶ 42). Byron Pryor of RTI assisted with the claims. ( Id . at ¶¶ 149-151, 156). Plaintiff advised Pryor that the damage was the result of a "windstorm" and Plaintiff submitted a claim with his insurance company alleging losses caused by windstorm damage. ( Id . at ¶ 149). At that time, Pryor informed Plaintiff that Underwriters would investigate the cause of the losses at a later date. ( Id . at ¶¶ 150, 151). In October of 2008, Pryor allegedly told Plaintiff that RTI "would review Plaintiff's policy completely and determine if any payment was due and what would be the covered causes of loss and appeals process and advise Plaintiff accordingly," but that little to no action was ever taken. ( Id . at ¶ 156). Subsequently, Plaintiff determined that his true losses were the result of vandalism. ( Id . at ¶¶ 152, 154). He reported this to Pryor in November of 2008, who informed him that Underwriters would likely deny the claim as untimely. ( Id .). Plaintiff then made a new claim to Underwriters in November of 2008, claiming loss as a result of vandalism. ( Id . at ¶ 154). Underwriters classified this claim as "late." ( Id . at ¶ 152). But, this claim has yet to be adjusted. ( Id . at ¶¶ 41, 62).

Plaintiff reported a potential insurance claim to RTI on or about December, 2008 as a result of the damage to his property resulting from the demolition of the adjacent building. ( Id . at ¶ 153). He alleges that RTI did not report or timely file an insurance claim with Lloyds/Underwriters. ( Id .). However, he also avers that he filed a claim for this damage with Underwriters, RTI and Conway on December 8, 2008. ( Id . at ¶ 56). Similarly, this claim has yet to be adjusted. ( Id . at ¶ 63).

Regarding the inadvertent disposal of the electronic business personal property, Plaintiff filed a report with Underwriters, RTI and Conway on November 10, 2009. ( Id . at ΒΆ 55). Like his other claims, ...

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