National Specialty Insurance Company et al v. Tunkhannock Auto Mart, Inc.
MEMORANDUM (Order to follow as separate docket entry) re 27 MOTION to Dismiss filed by Tunkhannock Auto Mart, Inc. Signed by Honorable A. Richard Caputo on 5/12/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATIONAL SPECIALTY INSURANCE
COMPANY, GEMINI INSURANCE
COMPANY, JWB LOGISTICS CORP.,
TMD LOGISTICS CORP., and T.B.
CHOYA EXPRESS, INC.
CIVIL ACTION NO. 3:16-CV-00268
TUNKHANNOCK AUTO MART, INC.,
Presently before the Court is a Motion to Dismiss (Doc. 27) filed by Defendant
Tunkhannock Auto Mart, Inc. (“Tunkhannock”). In the instant action, Plaintiffs National
Speciality Insurance Company (“National”), Gemini Insurance Company (“Gemini”), JWB
Logistics, Corp. (“JWB”), TMD Logistics Corp. (“TMD”), and T.B. Choya Express, Inc. (“TB
Choya”) seek contribution from Tunkhannock for a payment made to settle a state-court
lawsuit. For the reasons that follow, Tunkhannock’s Motion will be denied.
The well-pleaded facts as alleged in Plaintiffs’ Amended Complaint (Doc. 24) are
Plaintiffs’ seek contribution from Tunkhannock for a payment made to settle a
state-court lawsuit stemming from a motor vehicle accident that occurred on October 27,
2010. Around 11:37 p.m. on the night of the accident, non-party Thomas W. Punko, who
Plaintiffs admit was acting as an agent of JWB and TMD, was operating a tractor trailer
on State Route 29 in Eaton Township, Wyoming County, Pennsylvania while making a
delivery to Tunkhannock. Pursuant to his delivery instructions, Mr. Punko was required
to pull into Tunkhannock’s parking lot, turn around in the rear of the building, and pull out
of the parking lot in a forward facing position after making the delivery. However, at the
time of the delivery, Mr. Punko was unable to pull into Tunkhannock’s parking lot due to
parked automobiles, orange cones, and/or concrete barriers that Tunkhannock had
placed in the lot. As such, Mr. Punko was forced to back his tractor trailer into
Tunkhannock’s lot in order to make his delivery. While he was backing the tractor trailer
into the lot, the trailer blocked the center turn lane and north bound trav el lane of State
Route 29. At this time, Jesse L. Prebola was driving a 1998 Buick Century Sedan
traveling northbound on State Route 29. Mr. Prebola struck Mr. Punko’s tractor trailer
blocking his lane of travel, causing Mr. Prebola to suffer permanent physical injuries.
Following the accident, Deborah Prebola, as Plenary Temporary Guardian of her
son, Jesse Prebola, an incapacitated adult, f iled suit in the Court of Common Pleas of
Luzerne County (the “Prebola Action”). On October 24, 2012, Ms. Prebola f iled an
amended complaint, dismissing various defendants and adding the instant Defendant
Tunkhannock as a defendant in the Prebola Action. The defendants named in the
amended complaint were the instant Plaintiffs JWB, TMD, and TB Choya, Defendant
Tunkhannock, and non-parties Mr. Punko; MFC Logistics, Inc.; Trucks on the Run Inc.,
a/k/a On the Run Delivery; River Street Idealease, LLC; Chopper Express, a/k/a
Chopper 79; Chopper 79, LLC; Chopper 79 Logistics, LLC; Chopper Automotive, LLC;
Chopper Express, Inc.; Chopper DDS, Inc.; and Chopper Express Transportation. (Ex.
B, Doc. 27-1.)
On April 16, 2013, the parties in the Prebola Action participated in a m ediation
which led to the full and final settlement of Prebola’s claims. At the mediation, Plaintiffs
National and Gemini, on behalf of their insureds JWB, TMD, and TB Choya, paid the
entire settlement amount accepted by Prebola.1 Tunkhannock did not contribute to the
The Settlement Agreement indicates that National and Gemini were the insurers
for all of the defendants originally named in the Prebola Action, including those
that were initially removed via a stipulation entered into on October 24, 2012 (see
settlement amount. On May 17, 2013, Prebola signed a Settlement and Release
Agreement under which Prebola received a settlement payment of $6,900,000.00 2 in
exchange for releasing all claims against all parties arising out of the accident. 3 (See
Settlement and Release Agreement §§ 1, 2, Doc. 24-1.). On June 7, 2013, Prebola
executed an Addendum to the Settlement and Release Agreement. The Addendum
states in part: “At the time of the Mediation it was fully contemplated by all parties and
counsel in attendance that, while the claims of Plaintiffs were being settled, the rights of
the settling Defendants as against the non-settling Defendant Tuckhannock [sic] Auto
Mart for contribution and or indemnification were being preserved.” (Addendum ¶ 3, Doc.
Compl. ¶¶ 20-21). (Settlement and Release Agreement § 2, Doc. 24-1.) National
and Gemini are not the insurers for Tunkhannock. (Id.)
National paid $1.9 million toward the settlement sum, and Gemini paid $5.0
million toward the settlement sum. (Settlement and Release Agreement § 2.)
The release executed by Prebola states in pertinent part:
The Plaintiffs [Prebolas], in consideration of the promises,
payments and other obligations as herein provided, fully
release and forever discharge the Defendants and Releasees
and all other persons, associations and corporations,
whether or not named herein . . . from any and all causes of
action, claims and demands of whatsoever kind on account
of all known and unknown injuries, losses and damages
sustained by the incapacitated Plaintiff, Jesse L. Prebola, as
a result of or arising from or in any way related to the
collision that occurred on October 27, 2010 on SR 29 in
Eaton Township, Wyoming County, Pennsylvania, which
collision was the subject of this action. The Plaintiffs do
understand and agree that the acceptance of all payments in
accordance with this Agreement are in full accord and
satisfaction of all claims arising out of the aforesaid
collision against the Defendants in the above-captioned
(Settlement and Release Agreement § 1.)
Tunkhannock indicates that there is a pending state-court action in the Court of
Common Pleas of Luzerne County in which all of the settling defendants in the Prebola
Action are seeking contribution from Tunkhannock.4 (Exs. F & G, Doc. 27-1.) Plaintiffs
do not dispute the fact that this state-court action is pending. (See Doc. 29, at 5, 7.)
II. Legal Standard
Federal Rules of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited
to determining if a plaintiff is entitled to offer evidence in support of her claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
A pleading that states a claim for relief must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere
More precisely, the caption of the attached state-court motion to redesignate
parties does not name four parties originally named as defendants in the statecourt action who were subsequently dismissed without prejudice via stipulation:
Commercial Trailer Leasing, Inc., Paul’s Truck Leasing, Inc., KVC Logistics
Corp., and Quick Transport Solutions, Inc. (See Compl. ¶ 20; Ex. G, Doc. 27-1.)
These four parties were, however, expressly referred to as “defendants” in the
Settlement Agreement. (Ex. A, Doc. 24-1.) Thus, to clarify, it does not appear that
all parties referred to as “defendants” in the Settlement Agreement are actively
seeking contribution from Tunkhannock in the pending state-court action.
conclusory statements will not do; “a complaint must do more than allege the plaintiff's
entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. While
legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he
touchstone of the pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to
raise a reasonable expectation that discovery will reveal evidence of’” each necessary
element. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). “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. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d
223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly
authentic” documents when the plaintiff's claims are based on the documents and the
defendant has attached copies of the documents to the motion to dismiss. Pension
Benefit Guar. Corp., 998 F.2d at 1196. The Court need not assume that the plaintiff can
prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn
Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a com plaint's “‘bald
assertions’” or “‘legal conclusions,’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30
(3d Cir. 1997)).
Pennsylvania Uniform Contribution Among Tortfeasors Act
Under Pennsylvania law, contribution is only available among joint tortfeasors.
EQT Prod. Co. v. Terra Servs., LLC, 179 F. Supp. 3d 486, 493 (W .D. Pa. 2016). The
Pennsylvania Uniform Contribution Among Tortfeasors Act (“the Act”), 42 Pa. Cons.
Stat. Ann. §§ 8321-8327, defines joint tortfeasors as “two or more persons jointly or
severally liable in tort for the same injury to persons or property, whether or not judgment
has been recovered against all or some of them.” Id. § 8322. Parties may be found
jointly liable for an injury “if their conduct ‘causes a single harm which cannot be
apportioned . . . even though [the actors] may have acted independently.’” Mattia v.
Sears, Roebuck & Co., 531 A.2d 789, 791 (Pa. Super. Ct. 1987) (quoting Capone v.
Donovan, 480 A.2d 1249, 1251 (Pa. Super. Ct. 1984)). “In other words, a party can
establish the joint tortfeasor relationship by showing either that both parties acted
together to commit the wrong, or that the parties' independent acts caused a sing le
injury.” U.S. Small Bus. Admin. v. Progress Bank, No. Civ.A. 03-3461, 2004 WL
2980412, at *10 (E.D. Pa. Dec. 22, 2004). T he burden is on the party seeking
contribution to establish a joint tortfeasor relationship. See id. (“Before seeking
contribution, a party must first establish that it and the defendant are joint tort-feasors.”).
In addition to demonstrating the existence of a joint tortfeasor relationship, a party
seeking contribution must further demonstrate that it is entitled to seek contribution
under the Act. When settlement occurs before the original plaintiff has proven his case
at trial, a settling tortfeasor may seek contribution from a non-settling party if the settling
tortfeasor: (1) demonstrates that he and the non-settling party are joint tortfeasors with
respect to the original plaintiff, (2) has discharged the common liability or paid more than
his pro rata share, and (3) has extinguished the liability of the non-settling joint tortfeasor
to the original plaintiff by virtue of the settlement. Swartz v. Sunderland, 169 A.2d 289,
291 (Pa. 1961); see 42 Pa. Cons. Stat. Ann. § 8324; see also Progress Bank, 2004 WL
2980412, at *10-*11; Nationwide Mut. Ins. Co. v. Phila. Elec. Co., 443 F. Supp. 1140,
1143 (E.D. Pa. 1977); Mattia, 531 A.2d at 791 (explaining that when a party seeks
contribution in a separate action against a purported joint tortfeasor, it “must stand in the
shoes of th[e] original plaintiff and prove that the new defendant was a joint tortfeasor in
that his tortious conduct also caused the harm at issue”). Furthermore, the settling
tortfeasor must also prove that the settlement figure was reasonable. Nationwide Mut.
Ins. Co., 443 F. Supp. at 1143.
“A joint tortfeasor’s right to contribution is distinct from the original action.” Pa.
Nat’l Mut. Cas. Ins. Co. v. Nicholson Constr. Co., 542 A.2d 123, 126 (Pa. Super. Ct.
1988). “The right of contribution is an equitable principle based on the understanding
that ‘as between the two tort-feasors [ ] contribution is not a recovery for the tort but the
enforcement of an equitable duty to share liability for the wrong done.’” Progress Bank,
2004 WL 2980412, at *10 (quoting Puller v. Puller, 110 A.2d 175, 177 (Pa. 1955)); see
also Matter of Reading Co., 404 F. Supp. 1249, 1251 (E.D. Pa. 1975) (no ting it is “wellsettled that in Pennsylvania recovery under the Uniform Contribution [Among
Tortfeasors] Act is a recovery in assumpsit or contract rather than in tort”). At bottom, the
Act recognizes that “[s]o long as the party seeking contribution has paid in excess of his
or her share of liability, it would be inequitable . . . to deny that party's right to
contribution from a second tortfeasor who also contributed to the plaintiff's injury.” Svetz
v. Land Tool Co., 513 A.2d 403, 407 (Pa. Super. Ct. 1986).
On February 16, 2016, instant Plaintiffs National, Gemini, JWB, TMD, and TB
Choya filed this diversity suit seeking contribution from Tunkhannock. (Doc. 1.) On June
3, 2016, Tunkhannock filed an Amended Motion to Dismiss. (Doc. 11.) On February 17,
2017, the Court granted Tunkhannock’s Motion and dismissed Plaintiffs’ Complaint, but
provided Plaintiffs leave to amend. (Doc. 23.) On March 3, 2017, Plaintiffs filed an
Amended Complaint. (Doc. 24.) On March 23, 2017, Tunkhannock filed the instant
Motion to Dismiss. (Doc. 27.) Plaintiffs filed their Brief in Opposition on April 6, 2017.
(Doc. 29.) The Motion is ripe for disposition.
The Doctrine of Lis Pendens
Tunkhannock argues primarily that the Court should dismiss Plaintiffs’ Amended
Complaint based on the state-law doctrine of lis pendens. Pennsylvania courts recognize
the defense of lis pendens, which may be raised as a preliminary objection based on the
pendency of a prior action. See Crutchfield v. Eaton Corp., 806 A.2d 1259, 1262 (Pa.
Super. Ct. 2002) (citing Pa. R. Civ. P. 1028(a)(6)). The doctrine allows a court to dismiss
or stay proceedings if a prior action is pending and certain “common law unities are
present.”5 Davis Cookie Co., Inc. v. Wasley, 566 A.2d 870, 874 (Pa. Super. Ct. 1989).
Tunkhannock contends that the unities are present here, and that it w ould be prejudiced
in having to defend itself in both the pending state-court action previously filed and the
present federal action. (See Doc. 27 ¶¶ 26-36.)
However, it has long been recognized “that the pendency of an action in the state
court is no bar to proceedings concerning the same matter in the Federal court having
jurisdiction, for both the state and Federal courts have certain concurrent jurisdiction
over such controversies, and when they arise between citizens of different states the
The party pleading the defense of lis pendens must show “that the prior case is the
same, the parties are the same, and the relief requested is the same.” Crutchfield,
806 A.2d at 1262 (citing Penox Techs., Inc. v. Foster Med. Corp., 546 A.2d 114,
115 (Pa. Super. Ct. 1988)).
Federal jurisdiction may be invoked, and the cause carried to judgment, notwithstanding
a state court may also have taken jurisdiction of the same case.” McClellan v. Carland,
217 U.S. 268, 282 (1910); see Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc.,
571 F.3d 299, 307-08 (3d Cir. 2009) (holding that only “extraordinary circumstances”
justify a federal court abstaining due to parallel state-court proceedings and noting the
six factors courts must consider in making this particular abstention determination, which
Tunkhannock does not address) (citing Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 818-19 (1976)); Manor Care of Camp Hill, PA, LLC v. Fleagle ex
rel. Fritz, No. 1:13-CV-02449, 2013 W L 6185604, at *2 (M.D. Pa. Nov. 25, 2013)
(“Abstention is the ‘extraordinary and narrow exception’ to the ‘virtually unflagging
obligation’ of the court to exercise its jurisdiction.” (quoting Colo. River, 424 U.S. at 813,
817)). Indeed, the Pennsylvania Superior Court has recognized that the “test for
determining the validity” of the defense of lis pendens is not the same when “the second
suit . . . [is] brought in federal court.” Davis Cookie Co., 566 A.2d at 874 (citing to a
district court case addressing Colorado River abstention).
Here, even assuming the proceeding in state court is indeed parallel to the
present action, Tunkhannock has failed to demonstrate “extraordinary circumstances”
justifying federal-court abstention based on parallel state-court proceedings. See
Nationwide Mut. Fire Ins. Co., 571 F.3d at 308-09 (noting that the “desirability of
avoiding piecemeal litigation” is “[b]y far the most important factor” that a federal court
should consider in deciding whether to abstain due to ongoing parallel state-court
proceedings, and concluding that this factor is satisfied only where the law in question
evinces “a strong federal policy against [such] litigation,” which is not the case here
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983)
and Spring City Corp. v. Am. Bldgs. Co., 193 F.3d 165, 172 (3d Cir. 1999))); Ryan v.
Johnson, 115 F.3d 193, 198 (3d Cir. 1997) (“The presence of garden-variety state law
issues has not, in this circuit, been considered sufficient evidence of a congressional
policy to consolidate multiple lawsuits for unified resolution in the state courts.”). The
Motion to Dismiss does not address the relevant abstention factors outlined by the
Supreme Court, and consequently Tunkhannock has not met its burden of
demonstrating the existence of exceptional circumstances warranting abstention. See
Moore v. John S. Tilley Ladders Co., Inc., No. CIV. A. 92-5902, 1993 W L 46684, at *2
(E.D. Pa. Feb. 23, 1993).
Furthermore, Tunkhannock has failed to address the interplay between the statelaw doctrine of lis pendens and the federal-court abstention doctrines announced by the
Supreme Court. As such, Tunkhannock has not persuaded this Court to abstain based
on the defense of lis pendens, especially considering that the application of this doctrine
would allow parties to circumvent the more demanding abstention test prescribed by the
Supreme Court in Colorado River and its progeny. See Spellman v. Express Dynamics,
LLC, 150 F. Supp. 3d 378, 388-89 (D.N.J. 2015) (declining to apply New Jersey’s firstfiled rule to co-pending state and federal cases because the rule conflicted with the
Supreme Court’s instructions in Colorado River); see also AXA Corp. Sols. v.
Underwriters Reins. Corp., 347 F.3d 272, 278 (7th Cir. 2003) (“[T]opics such as forum
non conveniens, lis pendens, and venue statutes. . . . address an organizational matter
that is governed by the law of the sovereign that established the forum. In the case of a
federal court, that sovereign is obviously the United States. We see no way for a federal
court simultaneously to follow the Supreme Court's Colorado River doctrine and to apply
[similar rules]. Given that conflict, and given the procedural nature of this problem, we
conclude that the state statute [authorizing dismissal where there is another action
pending between the same parties for the same cause] should not have played any role
in the decision whether to retain or dispose of this litigation.”).
Accordingly, Tunkhannock’s request for this Court to dismiss or stay this action
based on the doctrine of lis pendens is denied.
Rule 12(b)(7) and Rule 19 of the Federal Rules of Civil Procedure
Tunkhannock mentions Rule 19 in its Motion and supporting Brief, arguing that
the other defendants who settled in the state-court action are indispensable parties.
(See Doc. 27, ¶¶ 24, 41; Doc. 28, at 5, 7, 10.) However, Tunkhannock fails to
substantiate this basis for dismissal in any meaningful way. Indeed, although
Tunkhannock fleetingly invokes Rule 19 and the term “indispensable parties” in
miscellaneous portions of its Motion and Brief, it does not cite to any case law in support
of this ground for dismissal and does not even attempt the two-step analysis prescribed
by the Third Circuit to determine whether a party is subject to compulsory joinder under
Rule 19. See Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir.
2007). Tunkhannock has clearly failed to meet its “burden of showing why an absent
party should be joined under Rule 19.” Disabled in Action of Pa. v. Se. Pa. Transp.
Auth., 635 F.3d 87, 97 (3d Cir. 2011); see also Lombardi v. Allstate Ins. Co., No. 08-949,
2009 WL 1811540, at *4 n.3 (W .D. Pa. June 23, 2009) (“Arguments lacking any
substantive or meaningful analysis are deemed to be undeveloped and wholly
inadequate and may be disregarded by the court.”). As such, the Court will deny
Tunkhannock’s Motion to Dismiss pursuant to Rules 12(b)(7) and 19.
Rule 12(b)(6) of the Federal Rules of Civil Procedure
Lastly, Tunkhannock moves for dismissal on the ground that Plaintiffs have failed
to state a claim upon which relief can be granted. (Doc. 27 ¶¶ 45-52; Doc. 28, at 10-11.)
First, Tunkhannock contends that the Amended Complaint does not allege that National
and Gemini are joint tortfeasors. (Doc. 28, at 11.) Second, Tunkhannock argues that the
Settlement Agreement resolving the Prebola Action did not extinguish any liability on the
part of Tunkhannock. (Id.) Tunkhannock’s Motion to Dismiss based on these grounds
will also be denied. 6
Again, Tunkhannock cites to no case law in support of its Rule 12(b)(6)
In order to state a claim for contribution, a settling tortfeasor must allege that he:
(1) and the non-settling party are joint tortfeasors with respect to the original plaintiff, (2)
has discharged the common liability or paid more than his pro rata share, and (3) has
extinguished the liability of the non-settling joint tortfeasor to the original plaintiff by virtue
of the settlement. Swartz v. Sunderland, 169 A.2d 289, 291 (Pa. 1961); U.S. Small Bus.
Admin. v. Progress Bank, No. Civ.A. 03-3461, 2004 WL 2980412, at *10-*11 (E.D. Pa.
Dec. 22, 2004); 42 Pa. Cons. Stat. Ann. § 8324. T he Amended Complaint sufficiently
alleges that Plaintiffs JWB, TMD, TB Choya, and Defendant Tunkhannock are joint
tortfeasors with respect to the original plaintiff in the Prebola Action, that the Settlement
Agreement discharged the common liability, and that Tunkhannock’s liability to the
original plaintiff was extinguished by virtue of the Settlement Agreement, to which
Tunkhannock did not contribute. (See Compl. ¶¶ 24-29, 33-41.) At the motion to dismiss
stage, Tunkhannock’s contention that the Settlem ent Agreement did not extinguish any
liability on its part because Prebola did not believe that she had a viable claim against
Tunkhannock is unavailing, as the Court accepts all well-pleaded allegations as true and
considers the undisputedly authentic documents attached.
Moreover, Tunkhannock’s argument that there is no “factual support” for finding
National and Gemini to be joint tortfeasors is undeveloped and unclear. Tunkhannock
has presented the Court with no specific reason for why insurers cannot be named as
plaintiffs in a contribution action when their insureds are claiming a joint-tortfeasor
relationship with the defendant and the insurers have discharged the common liability by
paying to settle claims on behalf of all alleged joint tortfeasors. See, e.g., MIXX Ins. Co.
v. Epstein, 937 A.2d 469, 470 n.1, 471 (Pa. Super. Ct. 2007) (illustrating a case in which
an insurer and its insured brought an action seeking contribution in conjunction with one
another). Accordingly, the Court will deny Tunkhannock’s Motion to Dismiss for failure to
state a claim.
For the above stated reasons, the Court will deny Tunkhannock’s Motion to Dismiss.
An appropriate order follows.
May 12, 2017
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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