Dayton v. The Automobile Insurance Company of Hartford, Connecticut et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Malachy E Mannion on 11/5/21. (ao)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ALAN DAYTON,

:

Plaintiff

:

CIVIL ACTION NO. 3:20-1833

:

(JUDGE MANNION)

v.
THE AUTOMOBILE INSURANCE
COMPANY OF HARTFORD,
CONNECTICUT, AUTOMOBILE
INSURANCE COMPANY OF
HARTFORD and THE
TRAVELERS COMPANIES, INC.,
Defendant

:
:
:
:

MEMORANDUM
Before the court is plaintiff Alan Dayton’s motion to remand (Doc. 8)
and

defendant

The

Automobile

Insurance

Company

of

Hartford,

Connecticut, Automobile Insurance Company of Hartford and The Travelers
Companies, Inc.’s1 (“Travelers”) partial motion to dismiss (Doc. 3) plaintiff’s

Defendant alleges its name as stated in plaintiff’s complaint is
incorrect and should be corrected to “The Automobile Insurance Company
of Hartford, Connecticut.” (Doc. 14 at 1). As neither of the parties to this case
has filed a motion to amend the defendant’s name, this court refrains making
such an amendment at this time.
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bad faith claims in Counts II and III2 of plaintiff’s complaint. (Doc. 1-8 at ¶¶3447). For the reasons provided herein, the court will deny plaintiff’s motion to
remand and grant defendant’s partial motion to dismiss.

I.

Background
On August 11, 2016, plaintiff was injured when a car driven by Jamie

Sharp allegedly collided with plaintiff’s vehicle. (Doc. 1-8 at ¶4). On the date
of this accident, plaintiff owned a motor vehicle insurance policy through
defendant (“Travelers policy”). Id. at ¶5. Plaintiff claims that his injuries
exceeded the liability limits of the tortfeasor’s liability policy and is entitled to
UIM benefits under his Travelers policy. Id. at ¶7. He submitted an UIM claim,
alleging Sharp’s vehicle was an underinsured motor vehicle. Id. On June 14,
2018, defendant denied plaintiff’s claim for UIM benefits based on the
following “regular use exclusion” under the Travelers policy:

Exclusions
B. We do not provide Uninsured Motorists Coverage or
Underinsured Motorists Coverage for “bodily injury sustained”:
The court notes that the plaintiff’s complaint mislabels counts as
“Count I,” “Count 11,” and “Count II.” (Doc. 1-8 at 5,9). In the interest of
clarity, the court refers to “Count 11” as stated in plaintiff’s complaint as
Count II, and “Count II” in plaintiff’s complaint as Count III.
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1. By you while “occupying” or when struck by, any motor vehicle
you own or that is furnished or available for your regular use
which is not insured for this coverage under this policy. This
includes a trailer of any type used with that vehicle.
Id. at ¶8; (Doc. 15-3 at 2).

Plaintiff contends that the Travelers policy’s “regular use exclusion” is
unenforceable because it violates the Pennsylvania Motor Vehicle Financial
Responsibility Law (“MVFRL”). 75 Pa.C.S. §1731; (Doc. 9 at 2).
On July 15, 2020, plaintiff commenced this action by filing his complaint
in the Court of Common Pleas of Lackawanna County, Pennsylvania,
asserting claims for declaratory relief (Count I), breach of contract and
common law bad faith (Count II), and statutory bad faith (Count III). (Doc. 18). Defendant on October 7, 2020 removed the action to this court. (Doc. 1).
Subsequently, defendant filed the instant partial motion to dismiss on
October 14, 2020 (Doc. 3) and a brief in support of the partial motion to
dismiss on October 28, 2020 (Doc. 6). Plaintiff responded with a brief in
opposition on November 11, 2020 (Doc. 13) and defendant filed a reply brief
on November 25, 2020 (Doc. 17).
Additionally, on November 4, 2020, plaintiff filed a motion to remand
and a brief in support of the motion. (Docs. 8-9). Defendant thereafter filed a
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brief in opposition on November 18, 2020 (Doc. 14) and plaintiff filed a reply
brief on November 25, 2020 (Doc. 17). Defendant’s motion to dismiss and
plaintiff’s motion to remand has each been fully briefed and is ripe for
discussion.

II.

Discussion
a. Plaintiff’s motion to remand
Plaintiff seeks declaratory relief pursuant to state law. Under the

Declaratory Judgment Act (“DJA”), “any court of the United States, upon the
filing of an appropriate pleading, may declare the rights and other legal
relations of any interested party....” 28 U.S.C. §2201. While a district court
may exercise its jurisdiction of a case pursuant to the DJA, it is not required
to do so. Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942).
Federal courts have substantial discretion in deciding whether to exercise
jurisdiction, and such discretion is bounded and reviewable. Reifer v.
Westport Ins. Corp., 751 F.3d 129, 146 (3d Cir. 2014).
In determining whether to exercise federal jurisdiction pursuant to the
DJA, “[t]he Supreme Court and [the Third] Circuit have long noted the
importance of pending parallel state proceedings as a consideration.” Reifer,
751 F.3d at 143. The absence of a parallel state proceeding creates a
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rebuttable presumption in favor of exercising jurisdiction. Rarick v. Federated
Serv. Ins. Co., 852 F.3d 223, 226 (3d Cir. 2017). Where there is no pending
parallel state proceeding, “[d]istrict courts declining jurisdiction should be
rigorous in ensuring themselves that the lack of pending parallel state
proceedings is outweighed by opposing factors.” Reifer, 751 F.3d at 144. In
Reifer, the Third Circuit identified several factors the court should
meaningfully consider to when deciding whether to award declaratory relief:
(1) the likelihood that a federal court declaration will resolve the
uncertainty of obligation which gave rise to the controversy;
(2) the convenience of the parties;
(3) the public interest in settlement of the uncertainty of obligation;
(4) the availability and relative convenience of other remedies;
(5) a general policy of restraint when the same issues are pending in a
state court;
(6) avoidance of duplicative litigation;
(7) prevention of the use of the declaratory action as a method of
procedural fencing, or as a means to provide another forum in a race for res
judicata; and

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(8) (in the insurance context), an inherent conflict of interest between
an insurer's duty to defend in a state court and its attempt to characterize
that suit in federal court as falling within the scope of a policy exclusion.
Reifer, 751 F.3d at 146. The eight factors described in Reifer, however,
is not an exhaustive list. Id. Notably, a federal court should be hesitant “in
exercising jurisdiction over declaratory judgment actions when the state law
involved is close or unsettled.” State Auto Ins. Companies v. Summy, 234
F.3d 131, 135 (3d Cir. 2000). “[D]istrict courts should give serious
consideration to the fact that they do not establish state law, but are limited
to predicting it.” Id.
As an initial matter, “[d]istrict 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. §1332. Here, the plaintiff is a citizen of
Pennsylvania and the defendant is both incorporated and has its principal
place of business in Connecticut. (Doc. 1; Doc. 1-6). Plaintiff seeks to recover
damages in excess of $75,000. (Doc 1-8 at ¶33). Accordingly, this court may
exercise diversity jurisdiction over this case and proceeds to consider
whether it will exercise jurisdiction.

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The court finds that there is no pending parallel proceeding in this case.
A pending parallel proceeding is “another proceeding…pending in a state
court in which all matters in controversy between the parties could be fully
adjudicated.” Reifer, 751 F.3d at 137 n. 9 (quoting Brillhart v. Excess Ins. Co.
of Am., 316 U.S. 491, 495 (1942)). Plaintiff contends Rush v. Erie Insurance
Exchange, 1443 EDA 2020 (Pa. Super. Ct. 2020) is a pending parallel case
as Rush also concerns whether a car insurance policy’s “regular use
exclusion” violates the MVFRL. The court disagrees. Because none of the
litigants in the instant case is a party to Rush, Rush cannot fully adjudicate
the matters in controversy between the parties in the instant case. See
Westfield Ins. Co. v. Icon Legacy Custom Modular Homes and Icon, No.
4:15–cv–00539 2015 WL 4602262, at *4 (M.D.Pa. July 30, 2015) (noting
state action could not fully adjudicate matters in controversy between instant
litigants because the plaintiff was not a party to the state action).
Furthermore, the Reifer factors weigh in favor of exercising this court’s
jurisdiction. Factor one favors federal jurisdiction as a declaration by this or
a state court will resolve the uncertainty of obligation that gave rise to this
controversy, and the instant case is already in federal court. Accord Martin
v. Zurich America, No. 1:15-cv-02118, 2016 WL 3551481 (M.D.Pa. June 30,
2016) (weighing first factor in favor of federal jurisdiction where there was no
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parallel state court case and a federal court decision would resolve the
underlying dispute). Likewise, the second factor weighs in favor of federal
jurisdiction as it would be more convenient for the parties, who are already
before us and have been permitted to begin discovery, to resolve the dispute
in this court. (Doc. 16).
Factors three and seven are neutral. Factor three is neutral as neither
party here has identified a public interest at stake, and it does not appear to
the court that there is a public interest in this matter. See Sullo v. Nationwide
Property and Casualty Insurance Co., No. 1:19-cv-00553, 2019 WL
3337059, at *3 (M.D.Pa. July 24, 2019) (finding public interest factor in an
insurance coverage dispute neutral). Factor seven, which cautions against
exercising jurisdiction when removal is mere procedural fending or forum
shopping, is neutral as there does not appear to be any suggestion that
removal here was driven by an improper motive.
Factors four, five, six, and eight are inapplicable here. The fourth factor
does not impact the court’s decision since there are no remedies other than
to exercise federal jurisdiction or remand to state court. Factors five, six, and
eight, which concern the potential for duplicative litigation or conflict of
interest in state court, are inapplicable as there is no parallel state action.

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Finally, the court disagrees with plaintiff’s argument that this case
involves unsettled state law. (Doc. 9 at 7). The Pennsylvania Supreme Court
has held in Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195 (Pa.
2011) that “regular use exclusions” are valid under the MVFRL and public
policy. Accordingly, courts in the Third Circuit Court of Appeals have applied
the analysis in Williams to cases turning on the enforceability of “regular use
exclusions” in automobile insurance contracts. See, e.g., Barnhart v.
Travelers Home and Marine Ins. Co., 417 F.Supp.3d 653, 657 (W.D.Pa.
2019); Nationwide Affinity Ins. Co. of Am. v. Fong, No. 19-2119, 2020 WL
2039720 (E.D.Pa. April 28, 2020).
As this case does not involve any pending parallel state court
proceedings and the Reifer factors also weigh in favor of exercising federal
jurisdiction, this court will exercise its jurisdiction over this case and consider
the defendant’s partial motion to dismiss.
b. Defendant’s partial motion to dismiss
Defendant moves to dismiss with prejudice plaintiff’s bad faith claims
pursuant to Fed.R.Civ.P.12(b)(6). (Doc. 3). This rule provides for the
dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim
upon which relief can be granted. Id. Dismissal is appropriate only if, upon
accepting all facts alleged in the complaint as true, the plaintiff has failed to
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plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (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 (2009) (citing Twombly, 550
U.S. at 556). The facts alleged must be more than speculative and “raise a
reasonable expectation that discovery will reveal evidence” of the plaintiff's
cause of action. Twombly, 550 U.S. at 547. Mere recital of the elements of a
cause of action, supported by conclusory statements, does not meet the
pleading standard. Iqbal, 556 U.S. at 678.
Defendant seeks dismissal of plaintiff’s common law and statutory bad
faith claims. (Doc. 1-8 at ¶¶34-47). Initially, there is no common law remedy
in Pennsylvania for bad faith on the part of insurers. UPMC Health System.
v. Metropolitan Life Ins. Co., 391 F.3d 497, 505 (3d Cir. 2004) (citing
D'Ambrosio v. Pa. Nat'l Mutual Cas. Ins. Co., 431 A.2d 966, 970 (Pa. 1981)).
Moreover, Pennsylvania courts have consistently held that because “the
common law duty of good faith and fair dealing is implied in every contract,”
a plaintiff cannot bring a common law bad faith claim in addition to a separate
breach of contract claim. See Pommells v. State Farm Ins., No. 18-5143,
2019 WL 2339992, at *6 (E.D.Pa. June 3, 2019) (quoting Tubman v. USAA
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Cas. Ins. Co., 943 F.Supp.2d 525, 529 (E.D.Pa. April 30, 2013)). Here,
plaintiff seeks relief for breach of contract in addition to common law bad
faith. (Doc. 1-8 at ¶¶ 24-43). Because plaintiff’s common law bad faith claim
is subsumed within his breach of contract claim, the former is dismissed with
prejudice.
Turning to the statutory bad faith claim, Pennsylvania law permits an
insured party to receive relief if the insurer acts in bad faith towards the
insured party. 42 Pa. Cons. Stat. §8371. The relevant statute states:
In an action arising under an insurance policy, if the [C]ourt finds that
the insurer has acted in bad faith toward the insured, the [C]ourt may take all
of the following actions:
(1) Award interest on the amount of the claim from the date the claim
was made by the insured in an amount equal to the prime rate of interest
plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
Id. To prevail on a bad faith claim pursuant to 42 Pa C.S. §8371, “the
plaintiff must present clear and convincing evidence (1) that the insurer did
not have a reasonable basis for denying benefits under the policy and (2)
that the insurer knew of or recklessly disregarded its lack of a reasonable
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basis.” Rancosky v. Wash. Nat'l Ins. Co., 170 A.3d 364, 365 (Pa. 2017).
(citing Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680 (Pa.
Super. Ct. 1994)). Proof of the insurer’s “knowledge or reckless disregard for
its lack of reasonable basis in denying the claim” is sufficient for
demonstrating bad faith under the second prong. Id. at 377. “Failing to plead
explanations or descriptions of what an insurer actually did, or why they did
it, is fatal to a bad faith claim.” Sherman v. State Farm Ins. Co., No. 17-cv4822, 2017 WL 5559911, at *2 (E.D. Pa. Nov. 17, 2017) (citing Myers v.
State Farm Mut. Auto. Ins. Co., No. 17-cv-3509, 2017 WL 3891968, at *3
(E.D. Pa. Sept. 6, 2017)).
Here, plaintiff failed to plead sufficient facts to support a plausible
inference that defendant acted in bad faith. 3 First, a review of the complaint
reveals that statements made at Paragraphs 40(a), 40(g), 40(i)-(q) and 40(r)(u) are purely conclusory statements, comprising of boiler-plate language
that courts have deemed insufficient to support a bad faith claim. See, e.g.,
Rosenthal v. American States Ins. Co., No. 1:18-cv-01755, 2019 WL
The court notes that plaintiff’s complaint does not directly present
factual pleadings relating to the statutory bad faith claim (Doc. 1-8 at ¶¶4547). It appears that plaintiff intended to incorporate by reference his common
law bad faith pleadings in Count II of the complaint to the statutory bad faith
claim in Count III. (Doc. 1-8 at ¶¶40, 45). In the interest of efficiency, this
court will consider plaintiff’s pleadings for the bad faith claim under common
law to be also alleged for the bad faith claim under Pennsylvania statute.
3

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1354141, at *4 (M.D.Pa. March 26, 2019); Moran v. United Servs. Auto.
Ass'n, 18-cv-2085, 2018 WL 6524385, at *3-4 (M.D. Pa. Dec. 12, 2018);
Rickell v. USAA Cas. Ins. Co., No. 18-1279, 2018 WL 5809865, at *3
(M.D.Pa. Nov. 6, 2018). Similarly, plaintiff’s assertion in Paragraph 40(h) that
defendant was “[c]onspiring with EMCC Insurance Company and/or their
agents, employees and servants to deny Plaintiff underinsured motorist
benefits” is insufficient without further explanation of what the defendant did
to commit the alleged conspiracy. See Sherman, 2017 WL 5559911, at *2
(“We cannot measure the reasonableness of the insurer’s conduct absent
facts. Legal conclusions are insufficient.”).
Plaintiff’s allegations in Paragraphs 40(b)-(c) and 40(e) regarding the
fairness and timeliness of defendant’s evaluation of plaintiff’s claim are also
conclusory without further factual support as to why plaintiff’s evaluation was
unreasonable. See Moran, 2018 WL 6524385, at *3 (finding defendant’s
alleged failure to “promptly and reasonably respond to plaintiff’s demands”
and “effectuate a prompt, fair and equitable settlement” do not support an
inference of bad faith without additional facts); see also Meyers v. Protective
Ins. Co., No. 3:16-CV-01821, 2017 WL 386644 (M.D.Pa. Jan. 17, 2017) (“an
allegation that a claim was not timely paid and investigated […], in and of
itself does not prove bad faith”). Likewise, plaintiff’s claim in Paragraph 40(d)
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that defendant failed to offer “fair and reasonable amount of underinsured
motorist benefits” cannot by itself constitute evidence of bad faith because
subjective belief as to the value of a claim may reasonably differ. (Doc. 1-8
at ¶40(d)). See Meyers, 2017 WL 386644, at *4; see also Pfister v. State
Farm Fire & Cas. Co., No. 11-799, 2011 WL 3163184, at *4 (W.D. Pa. July
26, 2011) (finding that a difference in litigants’ valuation of a claim not
evidence of bad faith).
Finally, plaintiff’s allegation in Paragraph 40(f) that defendant
discriminated against plaintiff by “paying claims of extremely similar situated
insureds including a claim made by Mary Barnhart for a July 15, 2015
collision” is insufficient to sustain a claim of bad faith without further
allegations to support plaintiff’s claim of discriminatory treatment. (Doc. 1-8
at ¶40(f)). Accordingly, plaintiff’s statutory bad faith claim will be dismissed
for failure to state a claim upon which relief can be granted, without prejudice
to plaintiff’s right to file an amended complaint that cures the deficiencies
identified.

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IV.

Conclusion
Plaintiff’s motion to remand (Doc. 8) is denied and defendant’s partial

motion to dismiss is granted. (Doc. 3). Plaintiff’s common law bad faith claim
is dismissed with prejudice. Plaintiff’s statutory bad faith claim is dismissed
without prejudice. A separate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: November 5, 2021
20-1833-01

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