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Tracy R. Pavlick, As Executrix of the Estate of John J. v. Encompass

July 14, 2011

TRACY R. PAVLICK, AS EXECUTRIX OF THE ESTATE OF JOHN J. PAVLICK, AND TRACY R. PAVLICK, INDIVIDUALLY, PLAINTIFF,
v.
ENCOMPASS
INDEMNITY INSURANCE COMPANY AND STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANIES,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED MEMORANDUM OPINION

This is an underinsured motorist insurance coverage case.*fn1 Presently before this Court are Defendants‟, Encompass Indemnity Insurance Company ("Defendant Encompass") and State Auto Property and Casualty Insurance Company ("Defendant State Auto"), Motions to Dismiss Plaintiff‟s Amended Complaint. Defendant Encompass filed a Motion to Dismiss (doc. no. 15), and Defendant State Auto filed a Partial Motion to Dismiss (doc. no. 18) Plaintiff‟s Amended Complaint. See doc. no. 14. Defendant Encompass incorporated by reference its prior Motion to Dismiss Plaintiff‟s Complaint (doc. no. 6) and its Brief in Support (doc. no. 7) claiming the filing of the Amended Complaint did not cure the deficiencies previously noted. Defendant State Auto filed a new Brief in Support of its renewed Partial Motion to Dismiss. Doc. no. 19. Plaintiff filed a Brief in Opposition to Defendant Encompass‟ Motion to Dismiss the Amended Complaint (doc. no. 21) as well as a Brief in Opposition to Defendant State Auto‟s Partial Motion to Dismiss the Amended Complaint. Doc. no. 24.

The Court has reviewed: Plaintiff‟s Amended Complaint (doc. no. 14), Defendant Encompass‟ Motion to Dismiss the Amended Complaint (doc. no. 15), Encompass‟ Motion to Dismiss the [Original] Complaint and Brief in Support (doc. nos. 6, 7), Defendant State Auto‟s Partial Motion to Dismiss the Amended Complaint (doc. no. 18) and Brief in Support (doc. no.19). For the reasons that follow, Defendant Encompass‟ Motion to Dismiss and Defendant State Auto‟s Partial Motion to Dismiss shall be denied.

I.Legal Standard

In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only ""a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in order to "give the defendant fair notice of what the . . . claim is and the grounds on which it rests.‟" Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Building upon the landmark United States Supreme Court decisions in Twombly, and Aschroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009), the United States Court of Appeals for the Third Circuit recently explained that a District Court must take three steps to determine the sufficiency of a complaint:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth.‟ Id. at 1950. Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, No. 10-3539, 2011 F.3d WL 2044166, at *2 (3d Cir. May 26, 2011).

The third step of the sequential evaluation requires this Court to consider the specific nature of the claim(s) presented and to determine whether the facts pled to substantiate the claim(s) are sufficient to show a "plausible claim for relief." "While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations." Id.; See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

The Court may not dismiss a Complaint (or Counterclaim) merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 556, 563 n.8. Instead, the Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint (or Counterclaim) that provides adequate facts to establish "how, when, and where" will survive a Motion to Dismiss. Fowler, 578 F.3d at 212; See also Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir. 2009).

In short, the Motion to Dismiss should not be granted if a party alleges facts which could, if established at trial, entitle him to relief. Fowler, 578 F.3d at 563 n.8.

Based upon this standard, this Court has reviewed Defendant Encompass‟s Motion to Dismiss and Defendant State Auto‟s Partial Motion to Dismiss Plaintiff‟s Amended Complaint. Doc. Nos. 15, 18.

II.Factual Background

As noted above, under F.R.Civ.P. 12(b)(6), the Court accepts all of the factual allegations set forth in the Amended Complaint as true and draws all reasonable inferences in Plaintiff‟s favor. See Fowler, 578 F.3d ...


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