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

June 19, 2012


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 Fourth Amended Complaint submitted by the Plaintiffs, Barry Cummings and Harry Cummings, Jr., as administrator of the Estate of Mary Louise Cummings ("Decedent") (collectively, "Plaintiffs"). For the reasons set forth below, we grant Allstate's Motion to Dismiss.

I. FACTS*fn1

This case involves claims for breach of contract and bad faith against Allstate in relation to an insurance policy (the "Policy") issued by Allstate for a residence (the "Property") owned by Plaintiff Barry Cummings and the Decedent. Plaintiffs allege that the Property was covered by the Policy at all times relevant to the Fourth Amended Complaint. (Fourth Am. Compl. ¶¶ 4-5.)

Plaintiffs further aver that, on or about May 31, 2009, water escaped from a plumbing or heating system causing significant damage to the floor of the Property. (Id. ¶ 5.) Plaintiffs claim that they sent prompt and timely notice to Allstate of the damage. (Id. ¶ 6.) Allstate denied the claim, and refused to pay any money under the policy. (Id. ¶ 7.) Consequently, Plaintiff and Decedent were unable to pay for repairs to the damaged floor. (Id. ¶ 9.) Sometime after Allstate's denial of the claim, Plaintiff and Decedent hired their nephew, David Bonsall ("Bonsall"), a sub-contractor, to make repairs to the floor. (Bonsall Dep. 25:8, Sept. 28, 2011.) Bonsall completed emergency repairs to the floor on January 29, 2010, and believed the floor to be safe. (Id. at 43:16.) He subsequently observed the Decedent and, Plaintiff Barry Cummings, walking on the repaired floor. (Id. at 43:19.)

Almost eight months later on September 19, 2010, the Decedent tripped and fell on the partially repaired floor and sustained a comminuted angulated fracture of the left leg which required surgery. (Fourth Am. Comp. ¶ 10.) Surgery was performed on September 20, 2010. (Id.) Two days later, Decedent, while hospitalized, suffered cardiac arrest and expired. (Id. ¶ 11.)


Plaintiffs originally filed a Complaint in the Court of Common Pleas of Philadelphia County on August 25, 2010, against Allstate 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 dealing "pursuant to a survival action." (Id. ¶ 8.) On April 21, 2011, Allstate removed the case to this Court. (Doc. No. 1.) Seven days later, 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,*fn2 and damages for the loss of income and services of the Decedent pursuant to Pennsylvania's Survival Act, 42 Pa. C.S. § 8302.*fn3 In Count II, Plaintiffs assert a statutory bad faith claim pursuant to 42 Pa. C.S. § 8371.*fn4 Therein, they allege that Allstate acted in bad faith through its cursory investigation of the claim, its denial of coverage without a reasonable basis, its delay in paying the claim, its failure to keep them apprised of the claim status, and its myriad of 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 Plaintiffs' Second Amended Complaint pursuant to Rule 12(b)(7) for failure to join a necessary party under Rule 19(a), or, alternatively, that we should order that Bonsall be made a party to the lawsuit.*fn5 On December 27, 2011, we denied Allstate's Motion to Dismiss, but granted their alternative Motion ordering that Bonsall be joined to this action as a co-defendant.

Plaintiffs filed a Third Amended Complaint on January 25, 2012, adding Bonsall, but failing to set forth a cause of action against him.*fn6 In response, Allstate filed a Motion to Dismiss the Complaint due to the Plaintiffs' failure to state a cause of action against Bonsall and to add him as a party. Before we could make a ruling, the Plaintiffs filed a Fourth Amended Complaint. Thus, we denied Allstate's Motion to Dismiss as moot. On February 28, 2012, Allstate again filed a Motion to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(7) based upon Plaintiffs' failure to properly join Bonsall as ordered by this Court. Oral argument on this Motion was held on May 25, 2012.


Compulsory joinder is an exception to the general rule that the plaintiff has the right to choose whom to sue. See 7 Fed. Prac. & Proc. Civ. § 1602 (3d ed.). Rule 19 promulgates the considerations a court must undertake to properly ascertain whether a party's joinder is necessary, and empowers the court to order such action be taken if feasible. See Fed. R. Civ. P. 19; see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 107 (1968); Shetter v. Amerada Hess Corp., 14 F.3d 934, 938 (3d Cir. 1994).

Federal Rules of Civil Procedure 12(b)(7) and 19, acting in conjunction, allow a court to dismiss a case for failure to join a party in whose absence the court cannot accord complete relief, or whose interest in the dispute is of such a nature that to proceed without their presence could prejudice that party or others. See Fed. R. Civ. P. 12(b)(7) and 19. The moving party bears the burden to show that dismissal is proper. Disabled in Action v. Se. Pa. Transp. Auth., 635 F.3d 87, 97 (3d Cir. 2011).

In reviewing a motion made under Rule 12(b)(7), a court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Pitts. Logistics Sys., Inc. v. C.R. England, Inc., 669 F. Supp. 2d 613, 618 (W.D. Pa. 2009) (citing Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 65 Fed. Appx. 803, 805 (3d Cir. 2003)). Furthermore, a court may consider "relevant, extra-pleading evidence" when ruling on a Rule 12(b)(7) motion. Citizen Band Potawatomi Indian Tribe of OK v. Collier, 17 F.3d 1292, 1293 (10th Cir. 1994) (citation omitted); see also Davis Cos. v. ...

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