Servedio v. State Farm Insurance Company
Filing
51
MEMORANDUM & ORDER: Plaintiff's motion for reconsideration 38 of its September 6, 2012 order is DENIED for the reasons stated in the attached memorandum & order. Ordered by Judge Frederic Block on 12/18/2012. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------x MEMORANDUM AND ORDER
DOMINICK SERVEDIO, on behalf of himself Case No. 10-CV-1458 (FB)
and others similarly situated,
Plaintiff,
-againstSTATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
-------------------------------------------------------------x
Appearances:
For the Plaintiff:
HARRY I. KATZ, ESQ.
61-25 Utopia Parkway
Fresh Meadows, NY 11365
For the Defendant:
EVAN H. KRINICK, ESQ.
MICHAEL P. VERSICHELLI, ESQ.
MAX S. GERSHENOFF, ESQ.
Rivkin Radler LLP
926 RXR Plaza
Uniondale, NY 11556
BLOCK, Senior District Judge:
On September 6, 2012, the Court granted the motion for reconsideration filed
by Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) and
dismissed Plaintiff Dominick Servedio’s (“Servedio’s”) claim for violation of section 349 of the
New York General Business Law. As this claim was Servedio’s last remaining cause of action,
the Court then proceeded to dismiss the complaint in its entirety. Servedio now moves for
reconsideration of the Court’s decision. For the below stated reasons, his motion is denied.
I
As has been discussed previously, Servedio purchased from State Farm
automobile insurance that included both mandatory Personal Injury Protection (“PIP”) as well
as optional additional PIP coverage. The mandatory PIP benefit provided for coverage up to
$50,000 in total payments. The optional PIP benefit provided added coverage by expanding
the definition of an “eligible injured person” to include any passenger (regardless of residence
or accident location) in any vehicle operated by the insured or his or her relatives.
Importantly, the optional PIP benefit did not increase the total dollar amount of coverage. For
this optional PIP coverage Servedio paid a premium in addition to the amount paid for the
mandatory PIP coverage. In this lawsuit, Servedio claims that State Farm deceived him into
believing that the optional PIP benefit provided for financial coverage above the $50,000
limitation, and that he was unaware of the expanded “eligible injured person” definition until
his commencement of the current proceedings.
In dismissing Servedio’s last remaining claim, the Court found that he “c[ould
not] plausibly allege an injury for which section 349 provides a remedy.” Sept. 6, 2012 Order
at 6. Recognizing that “section 349 does not entitle a consumer to a refund of the price of a
good or service whose purchase was allegedly secured by deception,” the Court went on to
address whether Servedio could identify a cognizable injury where the “deceptive practice
caused him to pay more than the good or service he actually received was worth.” Order at
3, 5. Finding that this theory of injury was unavailable to Servedio because of the “filed rate
doctrine,”1 the Court explained that the doctrine establishes “that the value of the coverage
1
The “filed rate doctrine” provides that “any ‘filed rate’–that is, one approved by the
governing regulatory agency–is per se reasonable and unassailable in judicial proceedings
brought by ratepayers.” Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994). As this
Court previously found, the doctrine is fully applicable to insurance premiums set by the New
York Department of Insurance. See Minihane v. Weissman, 640 N.Y.S.2d 102, 103 (1st Dep’t
1996) (holding that the doctrine barred plaintiff’s claim that health insurers defrauded the DOI
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Servedio obtained—an expanded definition of ‘eligible injured person’—was precisely equal
to the premium he paid.” Order at 5. On this basis the Court concluded that the filed rate
doctrine “precludes [Servedio] from claiming that the coverage he [] receive[d] was worth less
than the premium he paid for it,” and thus he could not allege an injury for which section 349
provided a remedy. Order at 6. Accordingly, the Court dismissed the section 349 claim.
II
On reconsideration Servedio claims that the Court misconstrued his argument,
and that rather than contending that the optional PIP coverage was “worth less” than the
amount he paid, it was actually “worthless.” Pl.’s Reply Br. at 4. In other words, Servedio
claims that he “did not receive anything of value” from State Farm under the additional PIP
coverage because he misunderstood the nature of the benefit. Pl.’s Mot. for Recons. at 6. This
argument fails as it is merely an extension of the argument Servedio previously made and
which was rejected by the Court.
Initially, Servedio’s insistence that he failed to receive anything of value for the
additional premiums he paid does not call into question the applicability of the filed rate
doctrine. As the Court previously explained, this doctrine conclusively establishes “that the
value of the [additional PIP] coverage Servedio obtained . . . was precisely equal to the
premium he paid.” Order at 5. Servedio cannot plausibly contend that he “failed to receive
anything of value” where he himself has conceded that he received a benefit from State Farm
in the form of the expanded definition of “eligible injured person.” See Pl.’s Opp’n to Def.’s
into approving higher premiums).
3
Mot. to Dismiss at 1 (“The benefit [the additional PIP coverage] did provide was . . . an
expansion of the definition of who is a covered person.”); Pl.’s Opp’n to Def.’s Mot. for
Recons. at 10 (“Plaintiff’s claim is . . . that he received an insurance that was different from
what he expected, i.e., a broader definition of an insured, as opposed to an increased dollar
amount of coverage.”); Order at 5 (discussing the value obtained by plaintiff to be “an
expanded definition of ‘eligible injured person’.”). Finally, Servedio does not claim that State
Farm failed to properly provide benefits under the additional PIP coverage provision. See
Sokoloff v. Town Sports Int’l, 778 N.Y.S.2d 9, 10 (1st Dep’t 2004) (holding court properly
dismissed plaintiff’s section 349 claim where she “d[id] not claim that defendant failed to
deliver the services called for in the contract”); Bildstein v. Mastercard Int’l, Inc., 329 F. Supp.
2d 410, 416 (S.D.N.Y. 2004) (finding plaintiff failed to allege facts establishing actual injury on
a section 349 claim where he did not allege that the defendant “failed to deliver the service
[plaintiff] paid for”). Accordingly, Servedio has not demonstrated a basis for finding error
in the Court’s determination that he failed to allege an injury for which section 349 provides
a remedy. See Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“The standard for
granting [] a motion [for reconsideration] is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.”).
4
III
For the foregoing reasons, the Court denies Servedio’s Motion for
Reconsideration of its September 6, 2012 Order.
SO ORDERED.
_________________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 18, 2012
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