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Tubman v. Usaa Casualty Ins. Co.

United States District Court, E.D. Pennsylvania

April 30, 2013

KELLY E. TUBMAN, Plaintiff,
v.
USAA CASUALTY INSURANCE COMPANY, Defendant

Decided: April 29, 2013.

For KELLY E. TUBMAN, Plaintiff: JAMES C. HAGGERTY, LEAD ATTORNEY, HAGGERTY GOLDBERG SCHLEIFER & KUPERSMITH PC, PHILADELPHIA, PA; TURREY A. KEPLER, LEAD ATTORNEY, NORRISTOWN, PA.

For USAA CASUALTY INSURANCE COMPANY, Defendant: BRYAN M. SHAY, LINDSAY ANDREUZZI, LEAD ATTORNEYS, POST & SCHELL PC, PHILADELPHIA, PA; RICHARD L. MCMONIGLE, LEAD ATTORNEY, POST & SHELL PC, PHILADELPHIA, PA.

OPINION

Page 526

MEMORANDUM

ANITA B. BRODY, J.

Plaintiff Kelly E. Tubman brings suit against Defendant USAA Casualty Insurance Company (" USAA" ) for breach of contract (Count I), violation of statutory bad faith (Count II), breach of fiduciary duty (Count III), breach of common law bad faith (Count IV), and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count V). USAA moves to dismiss Counts III through V, and to strike any references to " fiduciary duty" in Tubman's amended complaint. I exercise diversity jurisdiction over Tubman's claims pursuant to 28 U.S.C. § 1332. Pennsylvania law applies. For the reasons stated below, I will grant USAA's motion for Counts III through V, and deny USAA's motion to strike.

Page 527

I. BACKGROUND[1]

On February 1, 2008, Kelly Tubman was a passenger in a car when the driver crashed into a tree. She was ejected from the car and sustained serious injuries. Tubman filed a claim with the driver's insurance and received the $15,000 limit for liability coverage under the driver's policy. As a resident of her father's home, she was also eligible to receive underinsured motorist (" UIM" ) coverage under her father's insurance policy with USAA. The policy included $300,000 in stacked UIM coverage for four vehicles. USAA consented to Tubman's settlement against the driver and agreed that Tubman could institute a timely action for recovery of UIM benefits within four years of the settlement. Tubman filed a claim within this time period, but she rejected USAA's offer, claiming that the amount was insufficient to compensate her for her injuries. She brings suit for breach of contract, claiming that she is entitled to recover $1,200,000. She also brings extra-contractual bad faith claims for statutory bad faith, breach of fiduciary duty, common law bad faith, and violation of the Unfair Trade Practices and Consumer Protection Law. For these claims she seeks consequential damages, punitive damages, interest, fees, costs and treble damages.

II. LEGAL STANDARDS

A motion to dismiss should be granted under Rule 12(b)(6) if the moving party " under any reasonable reading of the complaint . . . may be entitled to relief." Kerchner v. Obama, 612 F.3d 204, 207 (3d Cir. 2010) (internal quotation marks omitted). The complaint must allege facts sufficient to " raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rather, " a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In deciding a motion to dismiss under Rule 12(b)(6), a court must " accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). This " assumption of truth" is " inapplicable to legal conclusions." Iqbal, 129 S.Ct. at 1949-50.

Under Rule 12(f) a court " may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). " [S]triking a pleading is a 'drastic remedy' to be used sparingly because of the difficulty of deciding a case without a factual record." BJ Energy, LLC v. PJM Interconnection, LLC, Nos. 08-3649, 09-2864, 2010 WL 1491900, at *1 (E.D. Pa. Apr. 13, 2010) (quoting N. Penn. Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 158-59 (E.D. Pa.1994)). Therefore, while Rule 12(f) grants the court ...


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