The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court is the MOTION SEEKING DISMISSAL OF THE SECOND AND THIRD COUNTS OF DEFENDANTS' COUNTERCLAIM PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) ON BEHALF OF LIBERTY INSURANCE CORPORATION (Document No. 22).*fn1 Plaintiff Liberty Insurance Corporation ("Liberty") has filed a brief in support of the motion, Defendants-Counterclaimants PGT Trucking, Inc., Sudbury Express, Inc. and Innerlink Strategic Solutions, Inc. (collectively "PGT") have filed a response and brief in opposition to the motion, Liberty has filed a reply brief, and the motion is ripe for disposition.
Factual and Procedural Background
This case involves a retrospective insurance premium arrangement by which Liberty administered PGT's workers compensation program from December 2005 through December 2009. In such an arrangement, the insurance premium is adjusted after-the-fact based on the cost of claims actually paid by the insurer under the policy during the relevant time period. In the underlying four-count Complaint, Liberty seeks a declaration of its rights under the insurance policies it provided to PGT, and recovery of unpaid premiums of $183,495.00, as calculated pursuant to the Large Risk Alternative Rating Option Endorsement/Retrospective Rating Plan ("LRARO") set forth in the parties' contract.
PGT filed an Answer, Affirmative Defenses and a three-count Counterclaim against Liberty. The Counterclaim contains 61 paragraphs, many of which contain sub-parts. The Counterclaim is substantially identical to the Amended Complaint filed by PGT at Civil Action No. 11-274.*fn2 Count I of the Counterclaim, which Liberty does not seek to dismiss, asserts a claim for breach of contract. Count II asserts a statutory claim for insurer Bad Faith pursuant to 42 Pa.C.S.A. § 8371. Count III alleges that due to the unique relationship created by a retrospectively-rated policy, Liberty owed a fiduciary duty to PGT. Liberty seeks dismissal of Counts II and III of PGT's counterclaim. Contemporaneously with filing its motion for partial dismissal, Liberty filed an Answer to the Counterclaim (Document No. 20, re-docketed after errata at Document No. 23).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the legal sufficiency of the Complaint filed by Plaintiff. The United States Supreme Court has held that "[a] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alterations in original).
The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009).
However, nothing in Twombly or Iqbal has changed the other pleading standards for a motion to dismiss pursuant to Rule 12(b)(6). That is, the Supreme Court did not impose a new, heightened pleading requirement, but reaffirmed that Federal Rule of Civil Procedure 8 requires only a short, plain statement of the claim showing that the pleader is entitled to relief, not "detailed factual allegations." See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 552-53). Additionally, the Supreme Court did not abolish the Rule 12(b)(6) requirement that "the facts alleged must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. (citing Twombly, 550 U.S. at 553). As described in Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009), the Court must first distinguish between factual allegations and legal conclusions in the complaint and then determine whether the well-pleaded factual allegations and favorable inferences drawn therefrom show an entitlement to relief.
Liberty contends that the breach of fiduciary duty claim (Count III) is legally flawed because Pennsylvania law does not recognize a fiduciary duty in the context of a contractual insurer-insured relationship. As to PGT's Pennsylvania statutory bad faith claim (Count II), Liberty concedes that it is cognizable in theory but contends that the Counterclaim fails to allege sufficient facts. In particular, Liberty contends that Paragraph 103 contains only a long laundry list of bald assertions and sweeping legal conclusions, without any supporting facts to show that Liberty acted in bad faith. PGT, in response, contends that the unique relationship created by a retrospective insurance policy creates a fiduciary duty and that its Counterclaim is sufficiently detailed.
A. Breach of Fiduciary Duty Claim
The Court turns first to the question of whether PGT's breach of fiduciary duty claim is viable. There does not appear to be a directly-applicable, binding precedent under Pennsylvania law as to whether a retrospective premium policy creates a fiduciary duty on the insurer. The parties have summarized two conflicting lines of cases. The Court must predict how the Pennsylvania courts would reconcile these competing authorities.
Liberty correctly recites the general rule that insurers are not subject to tort claims. The principle that contractual relationships do not give rise to tort claims is sometimes referred to as the "gist of the action" doctrine. "In Pennsylvania, there is no separate tort-law cause of action against an insurer for negligence and breach of fiduciary duty: such claims must be brought in contract." Ingersoll-Rand Equipment Corp. v. Transportation Ins. Co., 963 F.Supp. 452, 453-54 (M.D. Pa. 1997) (citing Greater N.Y. Mut. Ins. Co. v. North River Ins. Co., 872 F.Supp. 1403, 1406, 1409 (E.D.Pa.1995), aff'd, 85 F.3d 1088 (3d Cir.1996); D'Ambrosio v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 494 Pa. 501, 507--08, 431 A.2d 966, 969--70 (1981); Gedeon v. State Farm Mut. Auto. Ins. Co., 410 Pa. 55, 58, 188 A.2d ...