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Bolus v. Nationwide Property and Casualty Co.

United States District Court, M.D. Pennsylvania

March 26, 2018

ROBERT C. BOLUS Plaintiff,



         I. Introduction

         Pending before the Court is a second motion to dismiss brought by Defendants. Doc. 42. On May 11, 2016, Defendants filed a motion to dismiss Plaintiffs original Complaint. Doc. 8. On February 17, 2017, Magistrate Judge Carlson issued a Report and Recommendation recommending dismissing the breach of contract, intentional infliction of emotional dismiss, and fraud claims with prejudice as time-barred, and dismissing the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") claim without prejudice for failing to state a cause of action. Doc. 34. On March 20, 2017, this Court adopted Magistrate Judge Carlson's Report and Recommendation. Doc. 36. Plaintiff subsequently filed an Amended Complaint alleging a single UTPCPL claim. Doc. 41. Defendants moved again to dismiss the Amended Complaint. Doc. 42. For the reasons that follow, Defendant's motion will be granted.

         II. Factual Allegations and Procedural History

         On April 5, 2016, Plaintiff Robert Bolus initiated the action against Defendants Nationwide Property and Casualty Company and Nationwide Mutual Insurance Company ("Nationwide") in the Court of Common Pleas of Lackawanna County, almost five years after the insurance policy between them was cancelled. Doc. 2. Nationwide removed the action to this Court on May 4, 2016. Doc. 1.

         The underlying factual events of this case take place in 2011, when Bolus discovered that his personal vehicle, a 2007 Volvo XC 90, sustained damage from ice forming on the Volvo's floor. Doc. 41 ¶¶ 7, 10. "At its then location, the Volvo was examined by a claims adjuster" of Nationwide. Id. ¶ 11. A claim number was assigned to Bolus for the claim. Id. ¶ 12. Bolus then instructed one of his employees to tow the Volvo to the Santo Lincoln Mercury Volvo dealership in Moosic, Pennsylvania. Id. ¶ 13. It is unclear from the Amended Complaint why Bolus wished to tow the Volvo to the dealership, but it is implied that it was towed there so that Nationwide may examine and/or repair the Volvo at that location. However, the employee erroneously had the Volvo towed to Bolus' business, not the dealership. Id. ¶ 14. Believing that the Volvo was towed to the dealership as he instructed, Bolus submitted an invoice for the cost of towing to Nationwide (the "inaccurate claim submission"). Id. ¶¶ 16, 17. After learning of the mistake, Bolus requested the invoice to be deleted and explained to Nationwide "the nature of how the error occurred." Id. ¶¶ 18, 22. Bolus also alleges that "[i]t is believed and therefore averred that the Defendants, Nationwide knew that the Volvo was later towed to [the dealership] and given an estimate for repairs [by the dealership]." Id. ¶ 21. However, the Amended Complaint does not provide any allegations providing a basis for this belief, nor does it explain who eventually towed the Volvo to the dealership, or when this occurred. Reading between the lines of the Amended Complaint, it may be hypothesized that Bolus towed the Volvo to the dealership after discovering his employee's mistake, but it is unclear how Nationwide could have learned that "the Volvo was later towed to [the dealership]." Id.

         Bolus alleges that "[w]ithout a proper investigation, " Nationwide determined that his inaccurate claim submission was fraudulent, because the Volvo was not at the dealership at the time Bolus submitted his claim for towing costs; Nationwide then denied the claim and cancelled Bolus' policy. Id. ¶¶ 23-25. Prior to its cancellation, Bolus maintained the policy with Nationwide for five years. Id. ¶ 31. Pursuant to its determination of a fraudulent claim, Nationwide referred the claim to the Pennsylvania Office of Attorney General and the Pennsylvania Insurance Commission. Id. ¶ 27. Bolus alleges that the Pennsylvania Office of Attorney General ultimately withdrew criminal charges against him. It is also alleged that the Pennsylvania Insurance Commission dismissed Nationwide's action against Bolus, and ruled that Nationwide erred in cancelling his insurance policy. Id. ¶¶ 28, 29. In short, the crux of Bolus' claim is that Nationwide did not properly investigate his inaccurate claim submission, despite his efforts to clear up the error and request that the claim be deleted. And instead, Nationwide determined the inaccurate claim submission was not an innocuous error, but a fraudulent claim, and cancelled Bolus' policy as a consequence.

         The Amended Complaint alleges that these actions by Nationwide constitute a UTPCPL claim, because Nationwide's "representatives and marketing materials and promotions...actively deceived [Bolus] into thinking that...Nationwide would pay claims its customers submitted against the policies it sold, and stand behind their customers." Id. ¶ 33. Specifically, Bolus alleges that he relied on Nationwide's advertisements with the slogans "such as, but not limited to 'Nationwide is on your side, '" to his detriment. Id. ¶ 32. Bolus claims he "justifiably relied on the statements by and marketing materials" of Nationwide, and that his justifiable reliance caused him to suffer an "ascertainable loss" because he was "compelled to pay for costs associated with repairing and restoring the Volvo, " which should have been covered by Nationwide. Id. ¶¶ 34-36.

         In its motion to dismiss, Nationwide argues that the Amended Complaint fails to plead the requisite elements of a UTPCPL claim, including deceptive conduct or justifiable reliance, and in the alternative, that the claim is barred by the economic loss doctrine. Doc.

         III. Standard of Review

         A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations, alterations, and quotations marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citation, alteration, and quotation marks omitted). Thus, "the presumption of truth attaches only to those allegations for which there is sufficient 'factual matter' to render them 'plausible on [their] face.'" Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id.

         "Although the plausibility standard 'does not impose a probability requirement, ' it does require a pleading to show 'more than a sheer possibility that a defendant has acted unlawfully.'" Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting Iqbal, 556 U.S. at 678). "The plausibility determination is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 786-87 (quoting Iqbal, 556 U.S. 679).

         IV. ...

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