The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Deborah Rubin ("Plaintiff") brings this action for payment of underinsured motorist ("UIM") benefits under a policy of motor vehicle insurance issued by State Farm Mutual Automobile Insurance Company ("Defendant"). Initially, Plaintiff filed her complaint in the Court of Common Pleas of Allegheny County alleging bad faith, violation of Unfair Trade Practices and Consumer Protection Law, breach of contract, breach of fiduciary duty of good faith and fair dealing, and negligence. Docket No. 1-1. On December 10, 2010, this case was timely removed to this Court based upon diversity of parties. Doc. No. 1. Thereafter, on December 17, 2010, Defendant filed a Motion to Dismiss Plaintiff‟s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 5. Plaintiff filed a response to Defendant‟s Motion to Dismiss on January 5, 2011. Doc. No. 11. Based upon this Court‟s Order, Plaintiff filed an amended complaint. Doc. No. 13.*fn1
For the subsequent reasons, Defendant‟s Motion to Dismiss (Doc. No. 5) will be granted as to Counts I, II, IV, and V of Plaintiff‟s Complaint.*fn2 Defendant‟s Motion to Dismiss will be denied as to Count III, alleging breach of contract.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, at this stage the Court accepts all of the factual allegations in the complaint as true and all reasonable inferences are drawn in Plaintiff‟s favor. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Therefore, the facts of the case are as follows:
On or about August 25, 2008, Plaintiff was involved in an automobile accident in Monroeville, Pennsylvania, when she was struck from behind by a third-party driver. Doc. No. 13, ¶ 3. As a result, Plaintiff suffered various potentially permanent physical injuries. Id. at ¶ 5. At the time of the accident, Plaintiff was insured under a policy issued by the Defendant which provided underinsured motorist coverage in accordance with and subject to the policy‟s terms, conditions, limitations and exclusions and the Pennsylvania Motor Vehicle Financial Responsibility Law. Id. at ¶ 7.
Plaintiff reported the accident to Defendant in a timely fashion and
made a claim for benefits under her insurance policy. Doc. No. 13, ¶
8. The tortfeasor tendered an offer which Plaintiff accepted and
Defendant approved. Id. at ¶ 10. The benefits from this offer were
exhausted, but Plaintiff‟s injuries and damages were not fully
compensated. Id. at ¶ 11. Plaintiff then initiated a claim
for underinsured motorist benefits through her
insurance policy with Defendant. Id. at ¶ 12.
In regards to underinsured motorist coverage, Plaintiff‟s policy provides in relevant part*fn3
Insuring Agreement-Coverages W and W3
We will pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an underinsured motor vehicle. The bodily injury must be:
1. Sustained by an insured; and
2. Caused by an accident that involves the ownership, maintenance, or use of an underinsured motor vehicle as a motor vehicle.
Deciding Fault and Amount- Coverages W and W3
1. a. The insured and we must agree to the answers to the following two questions:
2. Is the insured legally entitled to recover compensatory damages from the owner or driver of the underinsured motor vehicle?
3. If the insured and we agree that the answer to 1.a. above is yes, then what is the amount of the compensatory damages that the insured is legally entitled to recover from the owner or driver of the underinsured motor vehicle?
b. If there is no agreement on the answer to either question 1.a. above, ...