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Herbert Flaherty, Jr v. Allstate Property and Casualty Insurance Company

October 19, 2011

HERBERT FLAHERTY, JR., PLAINTIFF,
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, AND JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: Mitchell, Magistrate Judge:

MEMORANDUM OPINION AND ORDER

Presently before the Court is a motion to dismiss the amended complaint submitted by defendant Allstate Property and Casualty Insurance Company ("Allstate Property"). For reasons discussed below, Allstate Property‟s motion to dismiss (Document No. 17) will be granted as to Counts III-VI and denied in all other respects.

The plaintiff, Herbert Flaherty, Jr., has filed an amended complaint, alleging that Allstate Property breached two contracts of automobile insurance and acted in bad faith under Pennsylvania and Ohio law in handling his claims for uninsured and underinsured motorist benefits. Also named as a defendant is an unidentified "John Doe" individual, who is said to be liable for negligence. The Court‟s jurisdiction is invoked pursuant to 28 U.S.C. § 1332.*fn1

On May 8, 2008, the plaintiff was injured in a single motor vehicle accident involving a 2000 Dodge Neon owned by Christian and Andrea Jaeger. The 2000 Dodge Neon was insured under an automobile insurance policy issued by Allstate Property in Ohio to Christian and Andrea Jaeger (Policy No. 926358561 02/10, hereinafter, the "Jaegar Policy"). The plaintiff makes claims for Uninsured and/or Underinsured Motorist ("UM/UIM") benefits under both the Jaegar Policy, and another automobile insurance policy issued by Allstate Property in Pennsylvania to his father, Herbert Flaherty, Sr. (Policy No. 0908437343 12/21, hereinafter, the "Flaherty Policy").

With respect to the two insurance policies and the accident at issue, the plaintiff alleges as follows: that at all times material hereto, he resided with his father, Herbert Flaherty, Sr., in Pittsburgh, PA; that his father had an automobile insurance policy with Allstate Property (the Flaherty Policy) which provided $200,000 in UM/UIM benefits on two vehicles with stacked benefits; that on May 8, 2008, at approximately 3:16 a.m., the plaintiff was a passenger in the Dodge Neon vehicle owned by Christian and Andrea Jaeger which was driven by defendant John Doe with the permission of Meghan Jaeger; that at that time, defendant Doe was driving at an unsafe speed, and he negligently crashed the Dodge Neon into a telephone pole on Greentree Road in Pittsburgh, PA, causing the plaintiff numerous injuries; and that the Dodge Neon was insured under a policy of automobile insurance with Allstate Property (the Jaeger Policy) which provided $25,000 or $75,000 in UM/UIM benefits.

The plaintiff contends that as a result of the accident, he suffered numerous injuries, including a concussion, scalp laceration, rib fractures, hemoperitoneum of the pelvis, right leg hemorrhage, cerebral contusion, pulmonary contusion, neck pain, mildly displaced nasal bone fracture, liver laceration and splenic laceration. In addition, the plaintiff insists he incurred a lack of memory caused by his injuries in the crash, such that he cannot determine the identity of the "John Doe" driver; that he continues to be plagued by persistent pain and limitations; and that he will have to continue receiving medical care and attention.

The plaintiff asserts that by oral and written communication, he requested UM/UIM benefits under both of the aforesaid policies, but Allstate Property refused his requests without reason. The plaintiff also avers that Allstate Property has refused to negotiate with him, or offer him any remuneration despite his serious injuries and significant medical bills.

In the amended complaint, the plaintiff asserts causes of action against Allstate Property as follows: as to Policy No. 908437343 12/21 (the "Flaherty Policy"), which was issued in Pennsylvania, the plaintiff claims that Allstate Property is liable for breach of contract (Count I), bad faith under Pennsylvania law (Count II), and bad faith under Ohio law (Count III). With respect to Policy No. 926358561 02/10) (the "Jaeger Policy"), which was issued in Ohio, the plaintiff claims that Allstate Property breached the contract (Count IV) and acted in bad faith under Pennsylvania law (Count V) and Ohio law (Count VI). As to John Doe, the plaintiff claims that he is liable for negligence (Count VII).

Allstate Property has moved to dismiss the amended complaint pursuant to F.R.Civ.P. 12(b)(6). In support of its motion, Allstate Property argues that the breach of contract claims against it in Counts I and IV should be dismissed, as the plaintiff is not entitled to UM or UIM benefits under the terms of the policies at issue. Allstate Property asserts that having failed to set forth a valid breach of contract claim against it, the plaintiff‟s claims for bad faith in Counts II, III, V and VI fail as a matter of law.

Concerning the negligence claim against John Doe in Count VII, Allstate Property argues that the claim should be dismissed, since suits against fictitious, unidentified defendants are not favored under Pennsylvania law. In the alternative, Allstate Property requests that the negligence claim against John Doe be severed from this case during trial, as it believes his alleged tortious conduct may be unfairly imputed to it.

In reviewing a Rule 12(b)(6) motion to dismiss, the Court "must accept all of the complaint‟s well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC, 578 F.3d 203, 210-11 (3d Cir. 2009), citing Ashcroft v. Iqbal, -- U.S. -- , 129 S.Ct. 1937, 1949 (2009). The court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟" Fowler, 578 F.3d at 211, quoting Iqbal, 129 S.Ct. at 1950. To be "plausible‟, a complaint‟s factual allegations must "permit the court to infer more than the mere possibility of misconduct." Id. That is, "a complaint must do more than allege the plaintiff‟s entitlement to relief"; it "has to "show‟ such an entitlement with its facts." Fowler, 578 F.3d at 211.

Before ruling on Allstate Property‟s motion to dismiss, we note that no choice-of-law determination has been made in this case between Pennsylvania and Ohio law, the jurisdictions which are said to have the greatest interest in this litigation.

A federal district court exercising diversity jurisdiction is to apply the choice of law rules of the forum state to determine which state‟s substantive law will apply. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir. 2007). Under Pennsylvania law, "courts generally honor the intent of the contracting parties and enforce choice of law provisions in contracts executed by them." Kruzits v. Okuma Machine Tool, Inc., 40 F.3d 52, 55 (3d Cir. 1994). Indeed, in Kruvitz, our Court of Appeals stated that "Pennsylvania courts will only ignore a contractual choice of law provision if that provision conflicts with strong public policy interests." Id. at 56.

Both the Flaherty Policy and Jaegar Policy contain a provision titled "What Law Will Apply". In the Flaherty Policy, the "What Law Will Apply" provision is set forth in pertinent part as follows:

This policy is issued in accordance with the laws of Pennsylvania and covers property or risks principally located in Pennsylvania. Subject to the following paragraph [which is inapplicable here, as it pertains only if a covered auto accident, or other occurrence for which coverage applies happens outside Pennsylvania], any and all claims or disputes in any way related to this policy shall be governed by the laws of Pennsylvania. (Flaherty Policy at Auto Amendatory Endorsement -- AU10781-1, p. 1.).*fn2

The plaintiff does not dispute that Pennsylvania law applies to the Flaherty Policy. He also does not claim that the Flaherty Policy is ambiguous. Under Pennsylvania law, when "the language of an insurance contract is clear and unambiguous, a court is required to enforce that language." J.C.Penney Life Ins. Co. v. Pilosi, 393 F.3d 356, 363 (3d Cir. 2004).

Motion to dismiss breach of contract claim in Count I:

In Count I of the amended complaint, the plaintiff contends that Allstate Property breached the Flaherty Policy by refusing to offer any amount of UM/UIM benefits to compensate him for his loss. In moving to dismiss this claim, Allstate Property argues that the plaintiff has failed to plead facts to establish his entitlement to UM/UIM benefits under the terms of the Flaherty Policy.

As to Uninsured Motorist (UM) coverage, the Flaherty Policy provides in pertinent part: . we will pay damages to an insured person for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured auto. (Flaherty Policy at Part 3, p. 11.) (Emphasis added.)

An uninsured auto is defined in the Flaherty Policy as:

1. A motorvehicle which has no bodily injury liability bond or insurance policy in effect at the time of the accident.

2. A motorvehicle for which the insurer denies coverage, becomes insolvent, or is involved in insolvency proceedings.

3. A hit-and-run motorvehicle which causes bodilyinjury to an insured person as the result ...


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