The opinion of the court was delivered by: The Honorable Sylvia H. Rambo
Before the court is Defendant Westfield Insurance Company's ("Westfield") Motion to Dismiss Count II (Doc. 2) of the complaint. For the reasons that follow, the motion will be denied.
This case arises out of a car accident that occurred on October 1, 2009, in York County, Pennsylvania, between Plaintiff Tammy Goshorn and an individual named Eric Meisenhelder. (Compl. ¶¶ 5, 6.) Meisenhelder was insured by a policy with liability limits of $100,000. Plaintiff's case against Meisenhelder settled for $97,000 - an amount sufficiently covered by the policy limits, but insufficient to wholly cover Plaintiff's alleged injuries making her claim one against an underinsured motorist. (Id. ¶ 6.)
Plaintiff claims that as a result of this accident she sustained the following injuries: "Aggravation to Plaintiff's lumbar spine requiring surgical intervention in the form of a lumbar fusion at L5-S1 with instrumentation and bone grafting with laminectomy at L5 and partial laminectomy at S1."*fn1 (Id. ¶ 8.) As a result of the accident and subsequent injuries, Plaintiff claims she now suffers from the following: " extreme pain, inconvenience, and mental anguish"; "permanent scarring"; " general health, strength, and vitality [impairment]"; "future medical treatment"; and other general losses. (Id. ¶ 9.)
At the time of the accident, Plaintiff was insured by Westfield under policy number WNP4466460, which provided underinsured motorist benefits up to $300,000. (Id. ¶ 11.) This policy was stacked on three motor vehicles, for a total policy payout maximum of $900,000. (Id.)
On March 25, 2011, Plaintiff sent to Westfield the police report from the accident as well as all relevant medical documents. (Id. ¶ 15.) On April 21, 2011, Plaintiff's counsel contacted James Erickson, the assigned claims adjuster from Westfield, and inquired about the status of Plaintiff's underinsured motorist ("UIM") claim. (Id. ¶ 16.) The complaint alleges that Erickson replied that Plaintiff's claim was "on the pile" but had not yet been evaluated. (Id.)
On June 1, 2011, Westfield granted consent to Plaintiff to settle the third-party claim with Meisenhelder as it appeared Meisenhelder had no attachable assets. (Id. ¶ 17 & Ex. B.) Having heard nothing about her own claim with Westfield, Plaintiff's counsel called Erickson on June 17, 2011, and July 7, 2011. (Id. ¶ 18.) Plaintiff's counsel left telephone messages but received no response. (Id.)
On August 5, 2011, and September 6, 2011, Plaintiff's counsel wrote letters to Westfield, but again, received no response. (Id. ¶ 18.) Plaintiff's counsel once again tried calling Erickson on September 16, 2011, and twice on September 23, 2011. (Id. ¶ 19.) During the second call, Plaintiff's counsel left a message asking Erickson to return the calls so that Erickson's supervisor would not have to be contacted. (Id.) Later on September 23, 2011, Erickson left a message with Plaintiff's counsel explaining that he would be sending Plaintiff's MRI films to a medical expert for review. (Id. ¶ 20.) Subsequently, on October 20, 2011, Plaintiff's counsel wrote to Erickson asking for an update on the status of Plaintiff's claim. (Id. ¶ 21.) On October 25, 2011, Westfield, through Erickson, sent a letter to Plaintiff's counsel indicating they were effectively denying the claim. (Id. ¶ 22.) Westfield based its decision on a report from Michael L. Brooks, who holds both a medical and a law degree, who had examined Plaintiff's MRI films and determined that Plaintiff had not suffered any injury related to the October 1, 2009 automobile accident. (Id.) On November 9, 2011, Plaintiff's counsel wrote to Westfield expressing surprise and dismay that the claim had been denied; Westfield never responded to this letter. (Id. ¶ 23.) Therefore, Plaintiff alleges Westfield has breached its contractual obligations to Plaintiff and has acted in bad faith pursuant to 42 Pa. Cons. Stat. § 8371.
This case was originally filed in the York County Court of Common Pleas, but was removed to this court by Defendant on March 21, 2012. (Doc. 1.) On March 28, 2012, Defendant filed the instant motion to dismiss count two of the complaint, and brief in support. (Docs. 2, 3.) Plaintiff filed a brief in opposition on April 11, 2012, (Doc. 5), to which Defendant responded on April 25, 2012, (Doc. 7). Therefore, the motion is now ripe for disposition.
Based on the facts alleged above, Plaintiff bring claims for breach of contract and bad faith under 42 Pa. Cons. Stat. § 8371. Defendant at this stage has only moved to dismiss the claim for bad faith. ...