CICCO et al v. STATE FARM FIRE AND CASUALTY COMPANY
MEMORANDUM AND OPINION re 3 Defendant's MOTION to Dismiss Counts II and III of Plaintiffs' Complaint filed by STATE FARM FIRE AND CASUALTY COMPANY. Signed by Judge Arthur J. Schwab on 9-2-2011. (lmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEO AND CYNTHIA CICCO,
STATE FARM FIRE AND CASUALTY CO.,
MEMORANDUM AND OPINION
This case involves an insurance dispute between Plaintiffs, the insureds, and their
homeowner‟s insurer, State Farm Fire and Casualty Co., Defendant. Plaintiffs sued Defendant
alleging in their Complaint that Defendant breached its contract of insurance with them (count
one), engaged in bad faith with respect to its breach of contract (count two), and engaged in
statutory bad faith (count three). Doc. no. 1-2.
In response to the Complaint, Defendant filed a Partial Motion to Dismiss the Complaint
pursuant to Fed.R.Civ.P. 12(b)(6), arguing that counts two and three should be dismissed. Doc.
nos. 3 and 4. Defendant asserts that the claim for bad faith asserted in count two is redundant of
the breach of contract claim alleged in count one and the statutory bad faith claim alleged in
count three of the Complaint. Id. Defendant further asserts that Plaintiff failed to allege facts
sufficient to raise a claim for statutory bad faith alleged by Plaintiff in count three. Id.
In their Response to the Motion to Dismiss, Plaintiffs do not concede that their bad faith
claim set forth in count two of their Complaint is redundant with their statutory bad faith claim in
count three. Doc. nos. 6 and 7. In addition, Plaintiffs disagree that they failed to assert a
plausible cause of action for statutory bad faith in count three. Id. However, Plaintiffs indicated
a willingness to merge their two bad faith claims into one claim in light of the fact that there are
different factual allegations asserted in each count. Id.
For the foregoing reasons, the Court will grant in part and deny in part Defendant‟s
Motion to Dismiss, and will allow Plaintiff to file an Amended Complaint.
I. Standard of Review
In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed
to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires
only “„a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in
order to „give the defendant fair notice of what the …claim is and the grounds on which it
rests.‟” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)).
To survive a Motion to Dismiss, a party must allege sufficient facts that, if accepted as
true, state “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Twombly 550 U.S. at 570). A claim has facial plausibility when a party pleads
facts that allow the Court to draw the reasonable inference that the defendant may be liable for
the misconduct alleged. Id. at 1949. However, the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1950 (quoting Twombly 550 U.S.
at 555). In deciding a Motion to Dismiss, the Court must determine whether the Complaint or
Answer “pleads factual content that allows the court to draw the reasonable inference that the
defendant (or plaintiff) is liable for the misconduct alleged.” Pennsyl. Prison Soc. V. Cortes, 622
F.3d 215, 233 (3d Cir. 2010) (citing Iqbal, 129 S.Ct. at 1949). “While legal conclusions can
provide the framework of a Complaint, they must be supported by factual allegations.” Id.; See
also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11.
As recently discussed by the United States Court of Appeals for the Third Circuit, a
District Court must take three steps to determine the sufficiency of a complaint:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Second, the court should
identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.‟ Id. at 1950. Third, “whe[n] there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.‟ Id. This
means that our inquiry 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
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
When determining whether a party has presented facts sufficient to show a “plausible
claim for relief,” the Court must consider the specific nature of the claim presented and the facts
pled to substantial that claim. For example, in Fowler, a case predicated upon a violation of the
Rehabilitation Act, the Court of Appeals determined that “[t]he complaint pleads how, when, and
where [the defendant] allegedly discriminated against Fowler.” 578 F.3d at 212. The Court,
while noting that the Complaint was “not as rich with detail as some might prefer,” the “how,
when, and where” provided by the plaintiff was sufficient to establish plausibility. Id. at 211-12.
The facts alleged in the Complaint or Answer, but not the legal conclusions, must be
taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct.
at 1949; Twombly, 550 U.S. at 555. The Court may not dismiss a Complaint or Counterclaim
merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will
ultimately prevail on the merits. Id. at 556, 563 n.8. Instead, the Court must ask whether the
facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary
elements. Id. at 556. Generally speaking, a Complaint or counterclaim that provides adequate
facts to establish “how, when, and where” will survive a Motion to Dismiss. Fowler, 578 F.3d at
212; See Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir. 2009).
In short, the Motion to Dismiss should not be granted if a party alleges facts which could,
if established at trial, entitle him to relief. Id. at 563 n.8.
Based upon this standard, this Court has reviewed Defendant‟s Motion to Dismiss
As noted above, Defendant contends that Plaintiffs‟ bad faith claim set forth in count two
of the Complaint is redundant of counts one and three. Defendant also moves this Court to
dismiss count three claiming the Plaintiffs failed to raise a claim upon which relief can be
This Court begins by noting that count two of Plaintiffs‟ Complaint spans paragraph
numbers 47 through 66. See doc. no. 1-2. The Court also notes that paragraph numbers 49
through 54 of count two set forth, verbatim,1 the same allegations set forth in paragraph numbers
32 through 37, which comprise part of count one. Id. In addition, paragraphs 56 and 57 are
verbatim reiterations of paragraphs 40 and 41. Id. Thus, there are redundant factual allegations
and averments found within counts one and two. Id.
The remainder of count two indicates that Defendant was contractually obliged to
exercise good faith and fair dealing, but it allegedly breached this duty, along with its fiduciary
duty. Id. at ¶¶ 58-60. Paragraphs 61 through 63 detail exactly how those duties were allegedly
breached by Defendant, while paragraphs 64 through 66 describe the damage component of this
However, paragraph 49 does not contain the word “continual” as set forth in paragraph 32.
claim. Id. at ¶¶ 61-63. However, in count three, Plaintiffs also assert that Defendant breached its
fiduciary duty along with its duty to exercise good faith and fair dealing. See id. at ¶ 75.
only difference between the breach of duty allegations set forth in count two compared to those
set forth in count three is that in count two, Plaintiffs allege the duties arose out of a contract
with Defendant and Defendant breached the contract by allegedly failing perform its duties;
whereas in count three, Plaintiffs are asserting that Defendant was statutorily obligated to
perform those duties and failed to do so, thus violating the statute.
In light of the fact that Plaintiffs have adequately pled a breach of contract cause of action
in count one of their Complaint and given that this Court finds that the allegations set forth in
count three adequately raise a statutory bad faith claim (and thus, this Court will deny
Defendant‟s Motion to Dismiss count three), this Court concurs that most of what Plaintiffs
assert in count two is redundant.
To that end, this Court will grant Defendant‟s Motion to Dismiss count two of the
Complaint. However, in light of the fact that some of the detailed factual averments set forth in
paragraphs 61 through 63 of count two are not expressly pled elsewhere, this Court will allow
Plaintiffs time to amend its Complaint to incorporate those allegations and factual averments into
a revised two-count Amended Complaint.
Defendant‟s Motion to Dismiss count two of Plaintiffs‟ Complaint is granted, but
Plaintiffs will be given time to amend their Complaint to incorporate any relevant factual
averments set forth in paragraphs 61 through 63 into an Amended Complaint. Defendant‟s
Motion to Dismiss count three of Plaintiffs‟ Complaint is denied. An appropriate Order follows.
s/ Arthur J. Schwab
United States District Judge
All Registered ECF Counsel and Parties
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