United States District Court, Western District of Pennsylvania
ROBERT C. MITCHELL, United States Magistrate Judge.
Presently for disposition is Plaintiff’s, William Kapton’s, Motion to Remand [ECF No. 10]. For the following reasons, Plaintiff’s motion is hereby granted and the case will be remanded back to state court in accordance with 28 U.S.C. § 1447(c).
This case was originally commenced in the court of common pleas of Beaver County, Pennsylvania and removed to this Court pursuant to 28 U.S.C. § 1441. Plaintiff, William Kapton, is a citizen of Pennsylvania who was involved in a motor vehicle accident on May 5, 2011 on Pennsylvania Turnpike, State Highway 43. On May 5, 2011, Plaintiff was operating a bucket truck for his employer on the west berm of the southbound lane of Highway 43. He was struck by a Ford Explorer that travelled partially off of the travel lane and struck the rear of the bucket truck occupied by Plaintiff, resulting in substantially serious and permanent injuries to Plaintiff.
Defendant, Ohio Casualty Insurance Company (“Ohio Casualty”), is an insurance company licensed in Pennsylvania, and is a New Hampshire Corporation with its principal place of business located in Massachusetts in which Plaintiff’s company holds a commercial fleet automobile insurance policy with. Defendants Michael J. Radle and Julie Clerkin were claims representatives employed by Ohio Casualty to handle underinsured motorist claims, and were charged with handling plaintiff’s motor vehicle accident. Apparently, while the handling of Plaintiff’s claim was originally within Defendant Radle’s responsibility, Plaintiff’s claim was later delegated to Defendant Clerkin.
Plaintiff seeks damages in connection with an underinsured motorist claim for his injuries sustained. At the time of the accident, the tortfeasor was insured with a bodily injury limitation of $100, 000.00 and Plaintiff was paid the applicable policy limits by the tortfeasor’s insurance company. Plaintiff argues that the tortfeasor’s bodily injury policy limits were inadequate to compensate Plaintiff for his injuries and he seeks to invoke coverage under Ohio Casualty’s underinsured motorist provision.
Plaintiff claims that Ohio Casualty failed to pay any underinsured motorist benefits, and failed to do so in bad faith. He also claims that
Defendants Radle and Clerkin ignored Plaintiff’s documented damages, did not evaluate the claim or make any offer of settlement, did not communicate with the Plaintiff, conducted an inadequate, unfair, nonobjective and unreasonable investigation of the claim, refused to provide the Plaintiff a copy of his policy, and forced the Plaintiff to litigate his UIM claim despite the fact that Ohio Casualty’s obligation to pay UIM benefits was reasonably clear. [Plaintiff also alleges] that Defendant Clerkin intentionally delayed, dissuaded, obstructed or otherwise improperly handled the Plaintiff’s UIM claim.
Mot. for Remand [ECF No. 10] at ¶ 13.
The complaint was removed to this court on January 16, 2014 alleging four claims: (1) a breach of contract against Ohio Casualty Insurance Company, (2) a violation of the Pennsylvania bad faith statute, 42 Pa.C.S.A. § 8371, et al. against Ohio Casualty Insurance Company, (3) a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. against Michael J. Radle, and (4) a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq. against Julie Clerkin. See Compl. [ECF No. 1-2] at 5, 10, 18, 20.
Defendants removed this action pursuant to 28 U.S.C. § 1332 and allege that Defendants Radle and Clerkin were fraudulently joined and that all other parties are diverse for jurisdictional purposes because Plaintiff cannot state a claim against Defendants Radle and Clerkin. Plaintiff claims that removal was improper because this court does not have jurisdiction over the matter and the matter should be remanded to state court. Specifically, Plaintiff alleges that the following constitutes misfeasance under the UTPCPL on behalf of Defendant Radle:
Ignored documentation of Plaintiff’s damages provided on August 3, 2012; [f]ailed to evaluate Plaintiff’s claim for underinsured motorist benefits; [f]ailed to communicate with Plaintiff concerning his claim for underinsured motorist benefits; [c]onducted an inadequate, unfair, dilatory, nonobjective, and unreasonable investigation of the Plaintiff’s underinsured motorist claim; [f]ailed and refused to provide a copy of the insurance policy in effect on the date of the accident to the insured . . . after request for same; and [f]orced the Plaintiff to litigate his underinsured motorist claim when the insurer’s liability to pay underinsured motorist benefits under the policy had become reasonably clear.
Id. at ¶ 61. Additionally, Plaintiff alleges that the following constitutes misfeasance under the UTPCPL on ...