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German Yakubov v. Geico General Insurance Co

October 24, 2011

GERMAN YAKUBOV, PLAINTIFF,
v.
GEICO GENERAL INSURANCE CO., DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Plaintiff German Yakubov brings this action against his insurer, Defendant GEICO General Insurance Company ("GEICO"), to obtain uninsured motorist and income loss benefits under an automobile liability insurance policy issued by GEICO. Presently before the Court is GEICO's Motion to Dismiss Claims for Punitive Damages and Misrepresentation From the Amended Complaint. *fn1 For reasons that follow, the Motion will be granted in part and denied in part.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

On April 24, 2009, at approximately 1:30 p.m., Plaintiff was seriously injured in a motor vehicle accident involving his own vehicle and a vehicle driven by an uninsured motorist. *fn2

Plaintiff alleges that the uninsured motorist was factually and legally responsible for causing the accident. *fn3 At the time of the accident, Plaintiff was insured under an automobile liability insurance policy (the "Policy") issued by GEICO. *fn4 Plaintiff submitted a claim to GEICO for Uninsured Motorist ("UM") benefits and income loss benefits under the Personal Injury Protection ("PIP") coverage of the Policy. *fn5 Beginning in May 2009, Plaintiff received income loss payments from GEICO in the amount of $2,500 per month. *fn6 These payments continued for seven months, but then stopped without notice in December 2009. *fn7 By letter dated November 3, 2010, GEICO issued a denial of further income loss benefits to Plaintiff. *fn8 In addition, GEICO has refused to pay Plaintiff the $300,000 UM benefits to which Plaintiff claims he is entitled. *fn9
This action was originally filed by Plaintiff in the Court of Common Pleas of Philadelphia County. On May 10, 2011, GEICO filed a timely Notice of Removal with this Court, *fn10 followed by a Motion to Dismiss Punitive Damages Claims from the Complaint. *fn11 On June 1, 2011, Plaintiff filed an Amended Complaint, thereby rendering the first Motion to Dismiss moot. *fn12

GEICO then timely filed the Motion to Dismiss The Amended Complaint.

The Amended Complaint contains five Counts: a claim for UM benefits (Count I); a claim for income loss benefits (Count II); a claim alleging a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") (Count III); *fn13 a claim of bad faith (Count IV); and a claim alleging intentional misrepresentation (Count V). GEICO moves to dismiss Count V, arguing that the claim is not plead with the particularity required by Federal Rule of Civil Procedure 9(b) and that it is barred by the "gist of the action" doctrine. In addition, GEICO seeks dismissal of the claim for punitive damages contained in Count III, asserting that UTPCPL does not provide for an award of punitive damages.

II. S TANDARD OF R REVIEW

Dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" does not possess enough substance to show that plaintiff is entitled to relief. *fn14 In

determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn15 Courts are not, however, bound to accept as true legal conclusions couched as factual allegations. *fn16 Something more than a mere possibility of a claim must be alleged; plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." *fn17 The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." *fn18 The court has no duty to "conjure up unpleaded facts that might turn a frivolous . . . action into a substantial one." *fn19

III. D ISCUSSION

A. Intentional Misrepresentation (Count V) *fn20

Plaintiff alleges that GEICO represented to him that his Policy provided income loss coverage and charged a premium for income loss coverage, but that GEICO's promise to pay income loss benefits was "wholly illusory" and GEICO never intended to pay income loss benefits. *fn21 GEICO argues that Plaintiff is attempting to recast his breach of contract claim as a ...


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