United States District Court, M.D. Pennsylvania
ROBERT C. BOLUS Plaintiff,
NATIONWIDE PROPERTY AND CASUALTY COMPANY and NATIONWIDE MUTUAL INSURANCE COMPANY Defendants.
D. IVTARIANI UNITED STATES DISTRICT JUDGE
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
Factual Allegations and Procedural History
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.
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.
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.
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.
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.
Standard of Review
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).
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.
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.