United States District Court, M.D. Pennsylvania
M. MUNLEY, JUDGE.
the court for disposition is Defendant Progressive Advanced
Insurance Company's (hereinafter “defendant”)
motion to dismiss Count II of plaintiff's complaint. The
parties have briefed their respective positions and the
matter is ripe for disposition.
Colleen Deluca owned a Saab automobile covered under a policy
of automobile insurance issued by defendant. (Doc. 1-1,
Compl. ¶ 4). On August 28, 2017, plaintiff was involved
in an automobile accident in Fairview Township, Luzerne
County, Pennsylvania. (Id. ¶ 7-8). A vehicle
turned in front of plaintiff's vehicle suddenly and
without warning and then fled the scene. (Id. ¶
8). The accident was solely caused by the unidentified driver
of this vehicle. (Id. ¶ 9). The accident caused
the following injuries in plaintiff: concussion, head and
neck injury, back and spine injury, sleeplessness, headaches,
loss of memory, extreme pain and suffering and soft-tissue
injuries throughout her body. (Id. ¶ 16). She
suffered, inter alia, pain, discomfort, frustration,
and embarrassment, which is expected to continue for an
indefinite time into the future. (Id. ¶ 10).
She received medical treatment for her injuries and will need
future medical treatment. (Id. ¶ 11).
automobile insurance policy provided uninsured motorist
(hereinafter “UM”) coverage of $300, 000.00.
(Id. ¶ 17). Defendant has refused to pay
plaintiff these benefits. (Id. ¶ 21).
Accordingly, plaintiff filed the instant two-count complaint.
Count I is a cause of action for breach of insurance contract
and Count II is a cause of action for insurance bad faith
pursuant to 42 Pa. Cons. Stat. Ann. § 8371 (hereinafter
“section 8371”). Defendant has moved to dismiss
Count II pursuant to Federal Rule of Civil Procedure
12(b)(6), bringing the case to its present posture.
court has jurisdiction pursuant to the diversity statute, 28
U.S.C. § 1332. Plaintiff is a citizen of Pennsylvania.
(Doc. 1, Notice of Removal ¶ 5). Defendant is a citizen
of Ohio. (Id. ¶ 8). Defendant Progressive
Insurance is incorporated under the laws of the State of Ohio
with its principal place of business in Mayfield Village,
Ohio. (Id. ¶ 7) Additionally, the amount in
controversy exceeds $75, 000. Because complete diversity of
citizenship exists among the parties and the amount in
controversy exceeds $75, 000, the court has jurisdiction over
this case. See 28 U.S.C. § 1332
(“district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75, 000, exclusive of interest and costs,
and is between . . . citizens of different
states[.]:”); 28 U.S.C. § 1441 (A defendant can
generally move a state court civil action to federal court if
the federal court would have had original jurisdiction to
address the matter pursuant to the diversity jurisdiction
statute). As a federal court sitting in diversity, the
substantive law of Pennsylvania shall apply to the instant
case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d
Cir. 2000) (citing Erie R.R. v. Tomkins, 304 U.S.
64, 78 (1938)).
filed its motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The court tests the
sufficiency of the complaint's allegations when
considering a Rule 12(b)(6) motion. All well-pleaded
allegations of the complaint must be viewed as true and in
the light most favorable to the non-movant to determine
whether, “‘under any reasonable reading of the
pleadings, the plaintiff may be entitled to
relief.'” Colburn v. Upper Darby Twp., 838
F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey
by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir.
1985)). The plaintiff must describe “‘enough
facts to raise a reasonable expectation that discovery will
reveal evidence of' [each] necessary element” of
the claims alleged in the complaint. Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). Moreover, the plaintiff must allege facts that
“justify moving the case beyond the pleadings to the
next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint the court may also
consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record
of the case.” Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994)
(citations omitted). The court does not have to accept legal
conclusions or unwarranted factual inferences. See
Curay-Cramer v. Ursuline Acad. of Wilmington, Del.,
Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
federal rules require only that plaintiff provide “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” a standard which
“does not require detailed factual allegations, ”
but a plaintiff must make “a showing, rather than a
blanket assertion, of entitlement to relief that rises above
the speculative level.” McTernan v. N.Y.C.,
564 F.3d 636, 646 (3d Cir. 2009) (citations and internal
quotations and quotation marks omitted). The “complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). Such
“facial plausibility” exists “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. (citing
Twombly, 550 U.S. at 556). “[T]he factual
detail in a complaint [cannot be] so undeveloped that it does
not provide a defendant the type of notice of claim which is
contemplated by Rule 8.” Phillips, 515 F.3d at
232 (citation omitted). “Though a complaint ‘does
not need detailed factual allegations, . . . a formulaic
recitation of the elements of a cause of action will not
do.'” DelRio-Mocci v. Connolly Props.,
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (quoting
Twombly, 550 U.S. at 555).
8371 authorizes recovery for an insurance company's bad
faith towards an insured. It provides for several remedies
upon a finding of bad faith: (1) an award of “interest
on the amount of the claim” at a rate equal to
“the prime rate of interest plus 3%”; (2) an
award of “punitive damages against the insurer”;
and/or (3) an assessment of “court costs and attorney
fees against the insurer.” Pennsylvania courts have
adopted the following definition of “bad faith”
on the part of an insurer:
[A]ny frivolous or unfounded refusal to pay proceeds of a
policy; it is not necessary that such refusal be fraudulent.
For purposes of an action against an insurer for failure to
pay a claim, such conduct imports a dishonest purpose and
means a breach of a known duty
(i.e., good faith and fair dealing), through some motive of
self-interest or ill will; mere negligence or bad judgment is
not bad faith. Perkins v. State Farm Ins. Co., 589
F.Supp.2d 559, 562 (M.D. Pa. 2008) (citing Terletsky v.
Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688
(Pa. Super. Ct. 1994) (quoting Black's Law Dictionary 139
(6th ed. 1990)) (citations omitted); see also Nw. Mut.
Life Ins. Co. v. Babayan, 430 F.3d 121, 137 (3d Cir.
2005) (predicting the ...