Amica Mutual Ins. Co v. Levine

Filing 30

ORDER granting the Defendant's 13 Motion to Dismiss for Lack of Subject Matter Jurisdiction. See the attached memorandum of decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 3/21/2014. (Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

AMICA MUTUAL INSURANCE COMPANY,
Plaintiff,
v.
SUSAN B. LEVINE,
Defendant.

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CIVIL ACTION NO.
3:13-CV-00716 (VLB)

March 21, 2014

MEMORANDUM OF DECISION GRANTING
DEFENDANT’S MOTION TO DISMISS [Dkt. 13]

I.

Introduction
The Plaintiff, Amica Mutual Insurance Company (“Amica”), a Rhode Island

corporation with its principal place of business in Lincoln, Rhode Island, brings
this action for a declaratory judgment pursuant to 28 U.S.C. § 2201 against the
Defendant, Susan B. Levine, a Connecticut resident, related to an insurance claim
dispute. The Defendant filed this motion to dismiss for failure to state a claim
upon which relief may be granted pursuant to Fed R. Civ. P. 12(b)(6) and for lack
of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and Local Rule 7.
For the reasons that follow, Defendant’s Motion to Dismiss is GRANTED.
II.

Background
The following facts and allegations are taken from the Plaintiff’s complaint

(the “Complaint”) and supporting materials. [Dkt. 1, Complaint]. Amica issued an
automobile insurance policy with the number 911206-22PV (the “Policy”) to the
Defendant for the period between December 1, 2010 and December 1, 2011. [Dkt.
1

1, ¶ 6]. The Policy provides, among other things, “Medical Payments Coverage.”
[Id. at ¶ 7]. On or about September 6, 2011, the Defendant was involved in a
motor vehicle accident in which she claims to have sustained personal injuries.
[Id. at ¶ 8]. As a result, she made a claim for medical payments coverage under
the Policy. [Id. at ¶ 9]. The Policy provides, in relevant part:
Part E—DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under this policy if
the failure to comply with the following duties is
prejudicial to us:
….
B.

A Person seeking any coverage must:
1. Cooperate with us in the investigation,
settlement or defense of any claim or suit.
2. Promptly send us copies of any notices or legal
papers received in connection with the accident
or loss.
3. Submit, as often as we reasonably require:
a. To physical exams by physicians we select.
We will pay for these exams.
b. To examination under oath and subscribe
the same.
4. Authorize us to obtain:
a. Medical reports; and
b. Other pertinent records.
5. Submit proof of claim when required by us.

[Id. at ¶ 10]. In accordance with the Policy conditions, Amica requested that the
Defendant undergo a medical examination, but the Defendant refused. [Id. at ¶¶
11, 12]. As a result, Amica claims to have been prejudiced in its ability to
2

properly evaluate the Defendant’s claim for medical payments benefits (“med
pay”). [Id. at ¶ 13]. Amica further alleges that since the Defendant breached the
Policy by refusing to undergo the requested medical examination, Amica has no
duty to provide coverage for her claim. [Id. at ¶ 14].
III.

Legal Standard
“‘To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. United States, 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations omitted). “Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (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.” Id. (citations
and internal quotation marks omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
3

conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
A. Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter jurisdiction under
Rule 12(b)(1) when the district court lacks the statutory or constitutional power to
adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A
plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.” Id. (citing Malik v. Meissner, 82
F.3d 560, 562 (2d Cir. 1996)). On a Rule 12(b)(1) motion, “‘the court must take all
facts alleged in the complaint as true and draw all reasonable inferences in favor
of plaintiff.’” Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.
2006) (quoting Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000)). “However,
where jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the pleadings,
such as affidavits.” LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999).
This action was filed in this Court pursuant to its diversity jurisdiction.
Diversity jurisdiction is conferred on a district court in all civil actions between

4

citizens of different states “where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). Neither
party contests the residency prong of the statute, but the parties disagree as to
whether the amount-in-controversy requirement is met.
The court measures “the amount in controversy as of the date of the
complaint.” Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397
(2d Cir. 2003). Moreover, “[a] party invoking the jurisdiction of the federal court
has the burden of proving that it appears to a reasonable probability that the
claim is in excess of the statutory jurisdictional amount.” Id. (citations and
internal quotation marks omitted). “This burden is hardly onerous, however, for
we recognize a rebuttable presumption that the face of the complaint is a good
faith representation of the actual amount in controversy.” Id. (citations and
internal quotation marks omitted). “To overcome the face-of-the-complaint
presumption, the party opposing jurisdiction must show to a legal certainty that
the amount recoverable does not meet the jurisdictional threshold.” Id. (citations
and internal quotation marks omitted). “Our cases have set a high bar for
overcoming this presumption. The legal impossibility of recovery must be so
certain as virtually to negative the plaintiff’s good faith in asserting the claim.” Id.
(citations and internal quotation marks omitted).
In declaratory judgment actions based on diversity jurisdiction, “the
amount in controversy is measured by the value of the object of the litigation.”
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347, 97 S. Ct. 2434, 53
L.Ed.2d 383 (1977); Garanti Finansal Kiralama A.S. v. Aqua Marine and Trading
5

Inc., 697 F.3d 59, 68 (2d Cir. 2012). In declaratory judgment cases involving “the
applicability of an insurance policy to a particular occurrence, the jurisdictional
amount in controversy is measured by the value of the underlying claim—not the
face amount of the policy.” Hartford Ins. Group v. Lou-Con, Inc., 293 F.3d 908,
911 (5th Cir. 2002); see also Budget Rent-A-Car, Inc. v. Higashiguchi, 109 F.3d
1471, 1473 (9th Cir. 1997) (“Because the applicability of Budget’s liability
coverage to a particular occurrence is at issue, the amount in controversy is the
value of the underlying potential tort action.”); Infinity Ins. Co. v. Sevilla Guerrero,
No. CIV F 07-583(AWI)(TAG), 2007 WL 2288324, at *3 (E.D. Cal. Aug. 8, 2007)
(citing several cases from various jurisdictions for the same proposition); 14B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 3710 (3d ed.1998) (hereinafter “Wright & Miller”) (same). However, if
the “substance of the declaratory judgment action seeks to determine the validity
of an insurance policy, then the policy limit is the amount in controversy.”
Infinity Ins. Co., 2007 WL 2288324, at *3; see also Hawkins v. Aid Ass’n for
Lutherans, 338 F.3d 801, 805 (7th Cir. 2003) (“when the validity of a policy (as
opposed to the insurer’s obligation to pay) is in dispute, the face value of that
policy is a proper measure of the amount-in-controversy.”); Mass. Cas. Ins. Co. v.
Harmon, 88 F.3d 415, 416-17 (6th Cir. 1996) (“the clear federal rule is that where
the validity of an insurance policy containing disability benefit provisions is
involved in a diversity action in a federal district court, future potential benefits
may be considered in computing the requisite jurisdiction amount . . . . In
contrast, future potential benefits may not be taken into consideration in the

6

computation of the amount in controversy in diversity actions in Federal District
Courts involving disability insurance where the controversy concerns merely the
extent of the insurer’s obligation with respect to disability benefits and not the
validity of the policy.” (citations and internal quotation marks omitted)); Budget
Rent-A-Car, Inc., 109 F.3d at 1473 (“Budget’s maximum liability under the Rental
Agreement is relevant to determining the amount in controversy only if the
validity of the entire insurance policy is at issue . . . .”).
The Defendant argues that the proper valuation of the amount in
controversy here is the medical benefits due at the time the Complaint was filed
because the Plaintiff is not contesting the validity of the Policy, just the
interpretation of the requirements under the contract in providing benefits related
to a specific claim. [Dkt. 13-6, Memorandum of Law in Support of Defendant’s
Motion to Dismiss, p. 15-17]. The Plaintiff objects to this characterization stating
that the Defendant has repudiated the contract entirely by refusing to submit to
an independent medical examination, and, therefore, this anticipatory breach has
placed into question the entire validity of the Policy. [Dkt. 17, Plaintiff’s Objection
to Defendant’s Motion to Dismiss, p. 4-9].
As support for its position, the Plaintiff cites the well-established principle
that refusal to submit to an independent medical examination when required by
an insurance contract constitutes a breach of the contract and prevents recovery
under the policy. See Mowers v. Paul Revere Life Ins. Co., 204 F.3d 372, 374-75
(2d Cir. 2000) (“Courts in other jurisdictions have universally held that a disability
claimant’s failure to accede to an insurance company’s reasonable request for an
7

[independent medical examination] constitutes the failure to perform a condition
precedent and may absolve the insurer of further obligations under the
contract.”); see also Thammavongsa v. Nationwide Mut. Ins. Co., No.
CV03081625S, 2006 WL 853221, at *2 (Conn. Sup. Ct. March 16, 2006) (“‘In the
absence of estoppel, waiver or other excuse, cooperation by the insured in
accordance with the provisions of the policy is a condition the breach of which
puts an end to the insurer’s obligation.’” (quoting O’Leary v. Lumbermen’s Mut.
Cas. Co., 178 Conn. 32, 420 A.2d 888 (1979)).
Both the Plaintiff and the Defendant rely heavily on cases based on
disability insurance contracts as the issue before the Court has not seemed to
arise in the context of med pay provisions. This Court can discern no relevant
distinction between these two categories of casualty insurance coverage, except
to the extent discussed below, and will thus analyze and apply the precedent
established in the context of disability coverage to the claim for coverage here.
In Acierno v. First Unum Life Ins. Co., the court held that the plaintiff’s refusal to
submit to a second independent medical examination constituted a “breach by
anticipatory repudiation” of the long-term disability insurance contract in issue
and, therefore, found that the insurance company was not liable for the plaintiff’s
claim for disability benefits. Acierno v. First Unum Life Ins. Co., No.
98CV3885(SJ), 2002 WL 1208616, at * 2-4 (E.D.N.Y. March 31, 2002). That court
relied on a rather broadly worded ruling from the First Circuit. In VanHaaren v.
State Farm Mut. Auto. Ins. Co., the First Circuit found that an insurance company
was not liable to provide medical benefits under an uninsured motorist policy
8

when a plaintiff refused to submit to an independent medical examination.
VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 6-7 (1st Cir. 1993). The
court stated that “[a]n [independent medical examination] clause is a condition
precedent which imposes a duty of performance on the insured. A contracting
party’s insistence, ‘willfully or by mistake,’ on preconditions to performance not
stated in the contract, constitutes a breach by anticipatory repudiation.” Id. at 6.
The Plaintiff would have this Court read that language to mean that an insured’s
refusal to cooperate with a specific claim of benefits under an insurance contract
constitutes an anticipatory repudiation of the entire policy such that the contract
is deemed a nullity. While the language employed by the First Circuit could be
read to reach such a result, the conclusion of the case proves otherwise. Even
after stating that the insured breached the contract by refusing to submit to a
medical examination, the court held that “State Farm’s obligation to cover
VanHaaren’s claim for the alleged occurrence was excused upon VanHaaren’s
unequivocal repudiation.” Id. at 7. The court nowhere stated that the contract
was completely repudiated, it only stated that on that “occurrence,” payment was
excused due to the breach. Reading these together, the case does not stand for
the proposition that a refusal to submit to a medical examination constitutes a
repudiation of the entire agreement; instead, all that results is a breach of the
agreement relieving an insurer from an obligation as to that specific occurrence
or claim for specific benefits.
The two remaining cases cited by the Plaintiff are also of little support
because they specifically address claims arising under disability insurance
9

contracts and they do not support the Plaintiff’s theory that refusal to submit to a
medical examination invalidates an insurance contract. Initially, it is important to
highlight the difference in nature between disability insurance contracts and the
Policy in this case. A disability insurance contract is an agreement that provides
for disability insurance should the insured become permanently disabled or
otherwise injured, as detailed in the policy. If the sole relationship between the
parties is one that relates to the claim for disability benefits, it could be plausible
that refusing to submit to an independent medical examination would be
sufficient in nature to constitute a complete repudiation of the contract and
relieve an insurer of all future obligations under the contract because the entire
contractual relationship revolves around one possible claim: whether or not the
party is disabled. Med pay provisions in automobile insurance policies, however,
do not provide the entire basis for the relationship between the insured and the
insurer, but merely establish one subset of responsibilities and liabilities under
the contract.
Even ignoring this difference, neither case cited by the Plaintiff held that
refusing to submit to an independent medical examination invalidates the entire
insurance policy. Instead, the courts found that due to the insured’s breach, the
insurer had no obligation to pay the benefits requested. For example, in Acierno,
the plaintiff’s claim was for “long-term disability benefits under the [insurance
plan] on the basis of chronic pain.” Acierno, 2002 WL 1208616, at *1. The court
ruled in favor of the defendant because the insurer failed to submit to an
independent medical examination. Id. at *4. However, the court nowhere stated
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that the underlying policy was completely repudiated by the insured’s refusal to
submit to a medical examination, it just excused the defendant from paying those
benefits at issue in the case.
The Second Circuit faced a similar question in Mowers v. Paul Revere Life
Ins. Co., 204 F.3d 372 (2d Cir. 2000). In deciding whether an insured’s refusal to
submit to a functional capacity examination constituted a breach of the insurance
contract, the court stated that the issue had not been squarely addressed by New
York state courts, but those courts have “found that an insured’s failure to
submit to an examination under oath with respect to fire insurance claims is
grounds for an insurer’s refusal to pay under the policy.” Id. at 375 (emphasis
added). The court nowhere stated that failure to submit to a required examination
would result in the complete repudiation of the contract, but in New York, it could
permit the insurer to refuse payment under the policy with respect to that claim.
Id. Indeed, the Supreme Court noted, when discussing the effect of lapse of
premium payments on an insurance contract, that “[t]hroughout the plaintiff’s
argument the declaration of a lapse is treated as equivalent to a declaration that
the contract is a nullity. But the two are widely different under such a policy as
this. The policy survived for many purposes as an enforceable obligation, though
default in the payment of premiums had brought about a change of the rights and
liabilities.” New York Life Ins. Co. v. Viglas, 297 U.S. 672, 677 (1936). Therefore, a
breach of the agreement, such as the failure to pay premiums or the failure to
submit to a medical examination, does not nullify the contract, but merely
redefines the rights and liabilities of the parties.
11

Unlike in the cases cited by the Plaintiff, the underlying Policy here is not
one for disability insurance, but for uninsured motor insurance. The Defendant
selected, as part of her automobile policy, to include a med pay provision. In
Connecticut, unlike other states, this coverage is optional, not statutorily
mandated. See Jones v. Riley, 263 Conn. 93, 106 (2003) (“individual insureds
could decide for themselves whether to purchase med pay coverage as part of
their automobile insurance.”). So, the Policy at issue is one that has at least two
different parts, the first being insurance for automobile-related issues and the
second for med pay benefits. The Plaintiff’s argument would have this Court hold
that the entire Policy is invalid because the Defendant refused to submit to an
independent medical examination related to a claim for specific benefits arising
only under the med pay provision. As detailed above, this position is incredibly
broad, and this Court can find no authority to support the principle that refusal to
submit to a medical examination under an insurance policy constitutes a breach
of the agreement, relieving the insurer from all of its obligations under the policy
as distinguished from its obligation to pay medical expenses for the diagnosis
and treatment as to which the insured refused to submit to an examination. Just
as the Supreme Court noted, this lapse or breach in one aspect of the insurance
contract cannot mean that the contract is a nullity because the contractual
relationship between the Plaintiff and Defendant remained enforceable for many
other purposes, such as for those claims that could still be timely submitted
under the uninsured motorist provision. See Voris v. Middlesex Mut. Assur. Co.,
297 Conn. 589, 604-605 (Conn. 2010) (finding valid a statute which states that

12

“[n]o insurance company doing business in this state may limit the time within
which any suit may be brought against it or any demand for arbitration on a claim
may be made on the uninsured or underinsured motorist provisions of an
automobile liability insurance policy to a period of less than three years from the
date of accident . . . .” Conn. Gen. Stat. § 38a-36(g)(1)).
In Am. Standard Ins. Co. of Wis. v. Rogers, the insurer brought a
declaratory judgment against the driver of an automobile seeking a declaration
that it need not indemnify or defend the driver because the auto policy “was not
in force at the time of the accident because the premiums had not been paid.”
Am. Standard Ins. Co. of Wis. V. Rogers, 123 F. Supp. 2d 461, 464 (S.D. Ind. 2000).
The court held that it would not use the face value of the policy “to determine the
amount in controversy in this case because this dispute involves the applicability
of the insurance policy to a particular occurrence, not (as in cases involving
allegations of fraudulent statements that would avoid the contract) the validity of
the entire policy.” Id. It then stated that it was
satisfied that American Standard does not deny the
validity of the insurance contract per se; it merely
denies that the policy was in force after a certain date:
the policy might apply to an accident before the policy
lapsed. This suit relates to American Standard’s duty to
defend and indemnify with respect to a particular
accident that occurred after the alleged lapse of
coverage, so we must examine the underlying claim to
determine the amount in controversy.
Id. at 464-65. Even though that decision is not binding on this Court, it is
persuasive. Here, the Plaintiff is not really arguing that the entire contract is void
ab initio, but rather that it is not obligated in this instance to pay med pay benefits
13

because the Defendant refused to submit to a medical examination. Even though
that contention may be perfectly correct, the issue before this Court is whether
the amount-in-controversy requirement is satisfied so that the Court has subject
matter jurisdiction over the action. The Plaintiff nowhere alleges in the Complaint
that the entire agreement is void or puts into question the existence of the
contract, such as through the misrepresentation or fraudulent inducement
doctrines. Instead, the Plaintiff specifically requests a “declaratory judgment that
it has no duty to provide medical payments benefits to the defendant.” [Dkt. 1, p.
5]. Accordingly, the Plaintiff is not asking for a declaration that the alleged
breach amounted to a repudiation of the entire contract, just that it need not
provide med pay benefits to the Defendant resulting from the September 6, 2011
accident. Furthermore, in the Plaintiff’s Response to the Defendant’s motion to
dismiss, the Plaintiff argues that the total value of the amount in controversy as
measured by the face value of the Policy is $100,000. [Dkt. 17, p. 7]. Even though
the Plaintiff claims its argument is based on a complete repudiation of the Policy,
$100,000 is not the face value amount of the overall Policy, it is just the total
amount of the med pay portion. The Plaintiff cannot have it both ways, arguing
that the entire insurance Policy has been repudiated, but the value in dispute is
limited merely to a portion of the overall Policy. Therefore, there is no real
allegation placing the validity of the entire insurance Policy in question. See
Conzo v. SMA Life Assur. Co., No. 02-civ-11243(DLC), 2003 WL 21018823, at *2
(S.D.N.Y. May 6, 2003) (“A court may only consider the entire value of an
insurance policy or other installment contract in its determination of the amount

14

in controversy if the validity of the policy or contract itself is at issue. . . . The
plaintiff has not alleged that the insurance policy is itself invalid or that the
defendant has repudiated the policy.”); see also Hartford Ins. Grp., 293 F.3d at
911 (“Hartford seeks a judicial declaration that its policy does not extend to LouCon employees who sustained asbestos-related injuries while working for
Murphy Oil. It is not seeking to void the entire insurance contract. Accordingly,
the district court properly measured the jurisdictional amount in controversy by
the value of the underlying claim.”).
Even though the law on this issue clearly indicates that the Plaintiff’s
reading of the amount-in-controversy requirement is not correct, it also should
fail as a matter of policy. Courts should be hesitant in creating sweeping rules of
law that would create de facto areas of federal jurisdiction. Burks v. Acceptance
Cas. Ins. Co., 11CV00148(JLH), 2011 WL 3475485, at *2 (E.D. Ark. Aug. 9, 2011) (“If
the Court [permitted the total value of an insurance policy to be the amount in
controversy per se in diversity actions] . . .the decision of this Court would be
authority for asserting federal jurisdiction in any . . . suit involving a liability
insurance policy with applicable coverage over [the requisite jurisdictional
amount] no matter how small the claim actually being made.”). If the Court were
to follow the Plaintiff’s interpretation, it would “federalize” insurance claims
where the amount actually in dispute is less than $75,000. That would be patently
contrary to the limited diversity jurisdiction conferred on this Court by Congress.
Having determined that the amount in controversy is measured by the
value of the Defendant’s damages claim, the Court must now quantify that claim.
15

The Defendant has averred that between September 6, 2011 and August 13, 2013,
the Defendant incurred medical expenses totaling $46,905.24. [Dkt. 13-8, Affidavit
of Susan B. Levine in Support of Defendant’s Motion to Dismiss, ¶ 12]. The
Plaintiff does not allege that the Defendant has not achieved maximum medical
improvement, that she has a permanent disability, or that she is still being treated
for her injuries. Accordingly, there are no facts from which the Court could infer
that the Defendant will continue to incur expenses and endure pain, suffering and
loss of life’s enjoyment or submit any other claims for reimbursement under the
Policy. Given the fact that the Plaintiff’s only allegation tending to establish the
amount in controversy is the generic claim in the Complaint that the amount
“exceeds $75,000.00, exclusive of interest and costs” is not only unsupported by
the record but contradicted by the Defendant, this Court cannot find that the
Plaintiff has established the requisite amount in controversy to meet the
jurisdictional threshold. [Dkt. 1, ¶ 5]. Therefore, the Defendant has shown to a
legal certainty that the amount in damages at the time the Complaint was filed
was below the requisite jurisdictional amount. See Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 570-71 (2004) (noting that under the “time of filing” rule,
“all challenges to subject-matter jurisdiction premised on diversity of citizenship
[are measured] against the state of facts that existed at the time of filing . . . .”);
Correspondent Servs. Corp. v. First Equities Corp. of Fla., 442 F.3d 767, 769 (2d
Cir. 2006) (“We have observed that the amount in controversy is calculated from
the plaintiff’s standpoint; the value of the suit’s intended benefit or the value of
the right being protected or the injury being averted constitutes the amount in

16

controversy when damages are not requested.”) (citations and internal quotation
marks omitted); Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394,
399 (2d Cir. 2003) (noting that the amount in controversy for a complaint seeking
an injunction for defendant’s failure to pay disability payments was for payments
due until the date the complaint was filed, even though the plaintiff alleged she
was permanently disabled).
While one could venture that the Defendant’s damages continue to mount,
“[f]or breach short of repudiation or an intentional abandonment equivalent
thereto, the damages under such a policy as this do not exceed the benefits in
default at the commencement of the suit.” N.Y. Life Ins. Co., 297 U.S. at 678.
Therefore, even assuming that future benefits may accrue, the Court “would
necessarily need to engage in impermissible speculation—evaluation without the
benefit of any evidence [proving] the value of individual claims.” Auto-Owners
Ins. Co. v. Scott, 9-cv-166(HL), 2009 WL 3011244, at *2 (M.D. Ga. Sept. 16, 2009);
see also Toler v. State Farm Mut. Auto. Ins. Co., 25 F. App’x 141, 144 (4th Cir.
2001) (“Although the policy limit under this provision is $100,000, there is no
evidence or allegations regarding the extent of Teresa’s ‘bodily injury’ and
‘property damage’ other than her $39,000 in medical bills.”); Lewis v. Auto Club
Family Ins. Co., No. CIV.A. 11-169-D-M2, 2011 WL 3444312, at *4 (M.D. La. July 7,
2011) report and rec. adopted, No. CIV.A. 11-169-JJB-CN, 2011 WL 3444224 (M.D.
La. Aug. 8, 2011) (finding that in declaratory action brought for the denial of med
pay benefits, “the amount in controversy . . . is to be measured based upon the
actual monetary value of the med pay claims that were submitted and denied
17

based upon the excess coverage exclusionary provision, rather than by totaling
the remaining policy limits for the policies applicable to those claims.”).
Furthermore, any future benefits that might be claimed would accrue subsequent
to the time of filing, and “[j]ust as subsequent events cannot divest a court of
jurisdiction, subsequent events cannot vest a court with jurisdiction that did not
exist at the time the . . . complaint was filed.” Spradlin v. Pikeville Energy Grp.,
LLC, No. Cv. 12-111(ART), 2012 WL 6706188, at *8 (E.D. Ky. Dec. 26, 2012); see
also Correspondent Servs. Corp. v. J.V.W Inv., Ltd., No. 99 CIV.8934(RWS), 2004
WL 2181087, at *8 (S.D.N.Y. Sept. 29, 2004), judgment entered sub nom., 232
F.R.D. 173 (S.D.N.Y. 2005) and aff'd sub nom., 442 F.3d 767 (2d Cir. 2006) (finding
that the court did not have subject matter jurisdiction when the object of the
litigation was the ownership of a certificate of deposit and the certificate of
deposit was alleged to be worthless at the time of filing even though the plaintiff
claimed an injury of $10 million); Walker v. Walker, 267 F. Supp. 2d 31, 33 (D.D.C.
2003) (holding that, to the extent the plaintiff was seeking declaratory relief
regarding the ownership of certain stock, the amount in controversy was the
value of the stock at the time of filing).
It could be the case that the Defendant’s medical benefits ceased accruing
on August 13, 2013, thereby rendering speculative the future amount of any
claim. Accordingly, the Plaintiff has not proven by a preponderance of the
evidence that the jurisdictional amount-in-controversy requirement has been met.
Therefore, the case is DISMISSED for lack of subject matter jurisdiction.

18

B.

Failure to State a Claim Upon Which Relief Could be Granted

The Defendant also argues that the Plaintiff does not adequately plead the
factual predicate for its claim. [Dkt. 13-6, p. 20-24]. The Plaintiff responds that it
has sufficiently alleged that the Defendant breached her obligations because she
failed to submit to an independent medical examination when asked by the
company and that the Defendant should have made a motion for a more definite
statement if she believes that the prejudicial nature of the Defendant’s refusal is
not clear. [Dkt. 17, p. 9-12].
The Policy states, in relevant part, that the Plaintiff has “no duty to provide
coverage under this policy if the failure to comply with the following duties is
prejudicial to us: . . . submit, as often as we reasonably require: . . .[t]o physical
exams by physicians we select.” [Dkt. 1, ¶ 10]. The Plaintiff alleges that it
“requested that the defendant undergo medical examinations,” but the
“defendant has refused to undergo the requested medical examinations.” [Id. at
¶¶ 11-12]. “As a result,” the Plaintiff alleges that it “has been prejudiced in its
ability to properly evaluate the defendant’s claim for medical payments benefits.”
[Id. at ¶ 13]. Since the “defendant is seeking benefits under an insurance policy,
the terms of that contract controls.” [Dkt. 17, p. 10]. There is no rule of law
completely independent of the terms of the contract that states that an insurer is
in breach of its insurance policy by failing to undergo a requested medical
examination. If any breach is to be found, it must be based on the terms of the
specific insurance policy in question. Here, the Policy specifically states that the
Plaintiff is only relieved of its duties to provide coverage if it is prejudiced by the
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insured’s refusal to submit to a medical examination. In the Complaint, the
Plaintiff alleges that it was prejudiced “in its ability to evaluate the defendant’s
claim for medical payments benefits.” [Id. at ¶ 13]. The Plaintiff has claimed that
it has been harmed by the Defendant’s refusal to abide by the Policy and afford
the Plaintiff an opportunity to assess the nature and extent of the Defendant’s
injuries. Without the ability to do so, Amica is left with two choices. The first is
to pay the Defendant whatever she and her doctors request, and the second is to
pay nothing. In either event Amica is harmed by the Defendant’s refusal. In the
first instance, it may pay more than it is legally obligated to pay, and in the
second, it is exposed to suit and possibly punitive damages under Connecticut’s
Unfair Insurance Practices Act. Indeed, Amica is harmed by having to bring this
action. The Defendant seeks to use that which she has wrongfully withheld as
the basis for challenging the sufficiency of the Plaintiff’s pleading. The
allegations of the Complaint are, therefore, sufficient as a matter of law to state a
claim upon which relief can be granted.
As to the Plaintiff’s second argument, that the Defendant should have filed
a motion for a more definite statement under Rule 12(e) instead of its motion to
dismiss, the Court finds that argument meritless. [Dkt. 17, p. 12]. Rule 12(e)
provides that “[a] party may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response.” Nothing in this rule requires
that a party move for a more definite statement before moving to dismiss the
complaint. On the contrary, the language of the rule makes clear that such a
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motion is permissive. In any event, the purposes of a motion for a more definite
statement and for a motion to dismiss are different. A more definite statement is
used when the responding party cannot discern the claim to which a response is
required while a motion to dismiss is used when the pleading party has failed to
sufficiently allege facts supporting the elements of its claim. It is entirely
possible that a motion to dismiss could be granted even though the opposing
party understands the nature of the underlying claim against it. In any event, the
Court would find that the Plaintiff has sufficiently pled a cause of action, and the
Defendant’s motion to dismiss would be DENIED on this basis.
IV.

Conclusion
The court having found that it lacks subject matter jurisdiction, Defendant’s

[Dkt. 13] Motion to Dismiss is GRANTED.
IT IS SO ORDERED.

_________/s/_____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 21, 2014 

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