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Barry Cummings and Harry Cummings, Jr., Administrator of Estate of v. Allstate Insurance Company

December 27, 2011


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is the Defendant, Allstate Insurance Company's ("Allstate") Motion to Dismiss the Second Amended Complaint submitted by Plaintiffs, Barry Cummings ("Plaintiff"), and Harry Cummings, Jr., as administrator of the Estate of Mary Louise Cummings (the "Decedent") (collectively, "Plaintiffs"). For the reasons set forth below, Allstate's Motion will be granted in part and denied in part.


Plaintiffs allege that the residence where Plaintiff Barry Cummings and the Decedent resided (the "Property") was insured under a Deluxe Homeowner's Policy (the "Policy") issued by Allstate at all times relevant to the Second Amended Complaint. (Second Am. Compl. ¶¶ 4-5.) Plaintiffs further allege that, on or about May 31, 2009, water escaped from a plumbing or heating system, which caused considerable damage to the floor of the Property. (Id. ¶ 5.) Additionally, Plaintiffs claim that they sent prompt notice of the loss to Allstate and that they otherwise complied with all terms and conditions of the Policy, but that, despite their diligence, Allstate refused to pay the claim. (Id. ¶¶ 6-7.) Plaintiffs claim that Allstate's refusal to pay the claim "ignor[ed] the results of its own investigation" and was done with knowledge that "the collapsed floor created an extremely dangerous condition to those who resided at the premises." (Id. ¶ 8.)

Without a reimbursement from Allstate, Plaintiffs claim that they were financially incapable of making the necessary repairs to the floor and that the floor remained in an unsafe condition. (Id. ¶ 9.) Plaintiffs allege that, on September 19, 2010, the Decedent tripped and fell on the collapsed floor, sustaining serious injuries to her left leg. (Id. ¶ 10.) Plaintiffs further allege that the Decedent's injuries required surgery to correct, which surgery the Decedent underwent on September 20, 2010. (Id. ¶ 10.) Moreover, Plaintiffs assert that, on September 22, 2010, while still hospitalized from surgery, the Decedent suffered cardiac arrest and died. (Id. ¶ 11.) According to Plaintiffs, the Decedent's death is solely attributable to Allstate's bad faith refusal to pay their claim.

At some point during discovery, it came to light that Plaintiffs hired a subcontractor, Dave Bonsall ("Bonsall"), to repair the floor after Allstate denied their loss claim. Bonsall testified at his deposition that he is the nephew of the Decedent and that he performed the work prior to the Decedent's slip and fall and her unfortunate death. Despite his admitted work to the floor, Plaintiffs have not named him as a defendant. Bonsall's absence from this case is the subject of the instant Motion.


This action was originally filed in the Court of Common Pleas of Philadelphia County on August 25, 2010, by filing a Complaint alleging breach of contract and bad faith. (Not. of Removal ¶ 3.) On March 29, 2011, Plaintiff was granted leave to amend the Complaint to add the Decedent's estate as an additional plaintiff. (Id. ¶ 6.) The Amended Complaint alleged breach of contract, statutory bad faith, and breach of good faith and fair dealings "pursuant to a survival action." (Id. ¶ 8.) On April 21, 2011, Allstate removed the case to this Court. (Doc. No. 1.) On April 28, 2011, Allstate filed a Motion to Dismiss Plaintiffs' breach of good faith and fair dealing claim and Plaintiffs' claim for compensatory damages under their statutory bad faith claim. (Doc. No. 3.) We granted Allstate's Motion to Dismiss on July 11, 2011, and ordered Plaintiffs to submit a Second Amended Complaint, which Plaintiffs timely filed. See Cummings v. Allstate Ins. Co., Civil Action No. 11-02-691, 2011 WL 2681517 (E.D. Pa. July 11, 2011). Plaintiffs' Second Amended Complaint is comprised of two counts. In Count I, Plaintiffs allege that Allstate breached the contract of insurance by denying benefits due under the Policy without a reasonable basis. (Second Am. Compl. ¶ 19.) Also in Count I, Plaintiffs demand damages for pain and suffering, mental distress anguish, and mental trauma suffered by the Decedent prior to her death pursuant to Pennsylvania's Wrongful Death Act, 42 Pa. C.S. § 8301*fn1 and damages for the loss of income and services of the Decedent pursuant to Pennsylvania's Survival Act, 42 Pa. C.S. § 8302.*fn2 In Count II, Plaintiffs assert a statutory bad faith claim pursuant to 42 Pa. C.S. § 8371.*fn3 Therein, they allege that Allstate acted in bad faith through its cursory investigation of the claim, its denial of coverage for the claim without a reasonable basis, its delay in paying the claim, its failure to keep them apprised of the claim status, and its myriad false representations regarding the Policy provisions. (Id. ¶ 26.) Allstate filed its Second Motion to Dismiss on August 5, 2011, seeking to dismiss the Decedent's estate from the litigation and to strike from the Complaint the Plaintiffs demand for damages relating to the Decedent's injuries. (Doc. No. 9.) On September 30, 2011, we denied Allstate's Second Motion to Dismiss finding that the Decedent was properly joined and that a ruling on damages was premature. See Cummings v. Allstate Ins. Co., Civil Action No. 11-02691, 2011 WL 4528366 (E.D. Pa. Sept. 30, 2011).

Allstate submitted its third Motion to Dismiss on October 20, 2011, arguing that we should dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(7)*fn4 for failure to join a party under Federal Rule of Civil Procedure 19(a), or, alternatively, that we should order that Bonsall be made a party. For the following reasons, we find that Bonsall must be joined as a party, and we order Plaintiffs to join him as a party to this action.


A. Motion to Dismiss Under Rule 12(b)(7)

To prevail on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(7), the movant must show that the plaintiff has failed to join a party under Federal Rule of Civil Procedure 19. Rule 19 specifies the circumstances in which the joinder of a particular party is compulsory. Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007). Rule 19 states in material part:

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1). Courts treat clauses (A) and (B) in the disjunctive just as the rule phrases them. Gen. Refractories, 500 F.3d at 312 (citing Koppers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 175 (3d Cir. 1998) ("As Rule 19(a) is stated in the disjunctive, if either subsection is ...

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