KERR v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al

Filing 12

OPINION & ORDER granting 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as set forth in the opinion. Count III of Plaintiff's Complaint is dismissed, without prejudice, for failure to state a claim upon which relief can be granted. Plaintiff may file an amended complaint to reassert this claim.If Plaintiff chooses to file a curative amended complaint to reassert her dismissed claim, such amended complaint must be in accord with the Opinion accompanying this Order and be filed no later than fourteen (14) days from the date of this Order. Signed by Judge Marilyn J. Horan on 11/6/2018. (bjl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MACKENZIE KERR

)
)
Plaintiff,
)
)
v.
)
)
STATE FARM MUTUAL
)
AUTOMOBILE INSURANCE
)
COMPANY; STATE FARM
)
INSURANCE COMPANY;
)
STATE FARM FIRE AND CASUALTY )
COMPANY; and STATE FARM
)
GENERAL INSURANCE COMPANY )
)
Defendants.
)

Civil No. 18-309

OPINION AND ORDER
Plaintiff MacKenzie Kerr brings this insurance coverage action against Defendant State
Farm Mutual Automobile Insurance Company (“State Farm”) seeking recovery on the basis that
State Farm failed to fulfill its duties to pay Uninsured Motorist (“UM”) benefits under her
insurance policy after she was injured in a hit-and-run accident. Ms. Kerr originally filed a
Complaint in the Court of Common Pleas of Washington County on January 17, 2018, which was
served upon State Farm on February 12, 2018. ECF No. 1-1. State Farm timely removed the case
to this court on March 9, 2018, based upon diversity of the parties. ECF No. 1. Ms. Kerr alleges
claims for Breach of Contract (Count I), Statutory Bad Faith under 42 Pa.C.S. § 8371 (Count II),
and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”) under 73 P.S. § 201-2 et seq. (Count III). 1 Pending before the Court is State Farm’s

On March 16, 2018, the parties stipulated that (1) references to breach of fiduciary duty in Paragraphs 60, 64(h),
and 66 are stricken; (2) the claims for punitive damages, attorney’s fees, and statutory bad faith damages in Count I
are stricken; (3) plaintiff’s claim for compensatory damages in Paragraph 67 is stricken; and (4) plaintiff’s demand
for punitive damages at Count III is stricken.

1

motion to dismiss Count III pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. ECF No. 5. For the reasons stated below, State
Farm’s motion to dismiss Count III will be granted.
I.

BACKGROUND
The relevant facts as alleged in the Complaint are as follows. On or about August 10,

2014, at approximately 3:38 P.M., Plaintiff MacKenzie Kerr was lawfully driving her vehicle on
Weirich Avenue in Washington County, Pennsylvania. Compl. ¶¶ 10-11, 15. An unknown
driver traveling on the same roadway negligently swerved toward Ms. Kerr’s vehicle without
warning, causing Ms. Kerr to navigate her vehicle off the roadway where she struck a utility pole
and suffered injuries. Compl. ¶¶ 12-13, 15, 18. The unknown driver fled the scene. Compl. ¶¶
14, 17.
Ms. Kerr submitted a timely Uninsured Motorist (UM) claim to State Farm for bodily
injuries suffered in the motor vehicle accident. Compl. ¶ 16. State farm acknowledged the UM
claim, but never investigated the claim. Compl. ¶ 23. State Farm “asked Plaintiff to obtain the
police report and do an investigation,” and eventually “made extremely low and unreasonable
settlement offers which were not made in a good faith attempt to adhere to their duties as the
insurer of Plaintiff.” Compl. ¶ 24. On October 3, 2014, counsel for Ms. Kerr sent
correspondence to State Farm, again detailing the circumstances of the accident and requesting
that State Farm “officially open an Uninsured Motorist benefits claim” for Ms. Kerr. Compl. ¶
25. On October 14, 2014, State Farm acknowledged counsel’s representation of Ms. Kerr.
Compl. ¶ 26. On August 16, 2016, a new adjuster was assigned to Ms. Kerr’s claim. Compl. ¶
29. The new adjuster requested that Ms. Kerr’s counsel complete an investigation. Compl. ¶ 31.
2

By December 7, 2016, another new adjuster was assigned to the claim, who on January 18, 2017,
again asked Mr. Kerr’s counsel to provide State Farm with investigative materials. Compl. ¶ 37.
On March 23, 2017, State Farm offered $3,090.08 to resolve Ms. Kerr’s UM claim.
Compl. ¶ 40. On April 13, 2017, Ms. Kerr’s counsel sent correspondence to State Farm
requesting an accounting of how it had evaluated the UM claim to arrive at the settlement offer.
Compl. ¶ 41. On May 16, 2017, a new adjuster was assigned to the claim. Compl. ¶ 42. On
October 12, 2017, counsel submitted a second demand for satisfaction of Ms. Kerr’s UM claim,
which outlined the nature of Ms. Kerr’s injuries and ongoing treatments and requested a response
within thirty days. Compl. ¶ 44.
In correspondence, dated November 3, 2017, State Farm did not acknowledge the
October 12, 2017 demand letter or respond to the April 13, 2017 correspondence; instead, State
Farm requested additional information. Compl. ¶ 45. Ms. Kerr’s counsel called the adjuster on
November 9, 2017 and learned that the adjuster had received the second demand letter, which
she needed to review before providing a response. Compl. ¶ 46. On November 29, 2017, State
Farm responded by offering $1,500.00 in settlement of the claim. Compl. ¶ 48. On December
5, 2017, the adjuster acknowledged that State Farm had previously offered $3,090.08, and
increased the $1,500 offer to match the prior, higher offer. Compl. ¶ 49. State Farm, however,
failed to provide an accounting of how the claim value was calculated. Compl. ¶ 50.
The adjuster explained State Farm’s offer, as being based upon conflicting information as
to the causality of Ms. Kerr’s tinnitus. Compl. ¶ 51. On December 8, 2017, Ms. Kerr’s counsel
sent correspondence explaining, that State Farm had mischaracterized the medical records and
requesting a full and complete evaluation of the claim. Compl. ¶¶ 51-53. On December 29,
2017, via voice mail and correspondence, Plaintiff’s counsel again asked for a response and also
3

requested a certified copy of the subject insurance policy. Compl. ¶ 55. State Farm never
responded to counsel’s December 8, 2017 correspondence, or the December 29, 2017 request.
Compl. ¶¶ 54, 56. On January 8, 2018, Ms. Kerr filed a Complaint in the Court of Common
Pleas of Washington County.
II.

STANDARD OF REVIEW
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

the court must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting
Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Factual allegations of a complaint must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. A pleading party need not establish the
elements of a prima facie case at this stage; the party must only “put forth allegations that ‘raise a
reasonable expectation that discovery will reveal evidence of the necessary element[s].”’ Fowler
v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2009) (quoting Graff v. Subbiah Cardiology
Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)); see also Connelly v. Lane Const.
4

Corp., 809 F.3d 780, 790 (3d Cir.2016) (“Although a reviewing court now affirmatively disregards
a pleading’s legal conclusions, it must still . . . assume all remaining factual allegations to be true,
construe those truths in the light most favorable to the plaintiff, and then draw all reasonable
inferences from them.”) (citing Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d
Cir.2014)).
Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal
conclusions cast in the form of factual averments. Morse v. Lower Merion School District, 132
F.3d 902, 906, n. 8 (3d Cir.1997). The primary question in deciding a motion to dismiss is not
whether the Plaintiff will ultimately prevail, but rather whether he or she is entitled to offer
evidence to establish the facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d
Cir.2000). The purpose of a motion to dismiss is to “streamline [ ] litigation by dispensing with
needless discovery and factfinding.” Neitzke v. Williams, 490 U.S. 319, 326–327, (1989).
Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the court must next decide
whether leave to amend the complaint must be granted. The Court of Appeals has “instructed
that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative
amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236
(citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
III.

DISCUSSION
In claiming a violation of the UTPCPL in Count III, Ms. Kerr avers that “State Farm

engaged in fraudulent and/or deceptive conduct by [denying] a valid claim and by delaying,
failing to value and evaluating and denying payment of benefits and by creating confusion and/or
misunderstanding through Defendants’ claim representatives.” Compl. ¶¶ 74-75. State Farm
5

contends that Ms. Kerr may not maintain her UTPCPL claim for three reasons: (i) the UTPCPL
claim is barred by the economic loss doctrine; (ii) Ms. Kerr’s allegation of improper claim
handling is not actionable under the UTPCPL, and it is more properly asserted under the bad
faith statute; and (iii) Ms. Kerr has failed to plead sufficient facts to support a UTPCPL claim, as
there are no specific allegations of deceptive conduct, justifiable reliance, or ascertainable loss
necessary for recovery. As discussed below, the Court disagrees that the economic loss doctrine
prohibits Plaintiff’s UTPCPL claim, but it agrees that Ms. Kerr’s allegations as pleaded are more
properly brought under the bad faith statue. Further, Ms. Kerr has failed to plead sufficient facts
to support a UTPCPL claim, although she will be given leave to amend her Complaint to replead this claim if she chooses.
a. Economic Loss Doctrine
The economic loss doctrine bars a plaintiff from recovering tort damages for economic
losses stemming solely from a breach of contract. Werwinski v. Ford Motor Co., 286 F.3d 661,
671 (3d Cir. 2002). The economic loss doctrine prohibits claims if: (1) they arise solely from a
contract between the parties; (2) the duties allegedly breached were created by and grounded in
the contract; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a
breach of contract claim or the success of a tort claim relies on the terms of a contract. McGuckin
v. Allstate Fire & Cas. Ins. Co., 118 F. Supp. 3d 716, 720 (E.D. Pa. 2015) (quoting Pesotine v.
Liberty Mut. Grp., Inc., Civ. A. No. 14-784, 2014 WL 4215535, at *4 (M.D. Pa. Aug. 25, 2014).
Here, State Farm argues that Ms. Kerr’s UTPCL claim should be dismissed pursuant to
the economic loss doctrine. In doing so, State Farm relies on the holding in Werwinski, 286 F.3d
661. In that case, the United States Court of Appeals for the Third Circuit, in predicting how the
Pennsylvania Supreme Court would rule, held that the economic loss doctrine bars common law
6

intentional and statutory fraud claims, including those brought under the UTPCPL. Id. at 678,
681. In the absence of an intervening case by the Third Circuit or a Pennsylvania appellate
court, the Werwinski holding would control, and Count III of the Complaint would be dismissed
based upon the economic loss doctrine. However, in the intervening years, the Pennsylvania
Superior Court has twice ruled that UTPCPL claims are not barred by the economic loss
doctrine. See Dixon v. Northwestern Mutual, 146 A.3d 780, 790 (Pa. Super. Ct. 2016); and
Knight v. Springfield Hyundai, 81 A.3d 940 (Pa. Super. Ct. 2013).
The question then turns to whether this Court is bound by the precedent of the Third
Circuit Court of Appeals from Werwinski or by the subsequent Pennsylvania Superior Court
rulings in Knight and Dixon. One week before the Dixon decision was issued, a panel of the
Third Circuit Court again affirmed a District Court’s dismissal of a UTPCPL claim in an
unpublished, per curiam opinion on the basis of the economic loss doctrine, citing the binding
precedent of Werwinski. Berkery v. Verizon Commc'ns Inc, 658 F. App'x 172, 174 (3d Cir.
2016). The decision in Berkery is unpersuasive, because, in addition to being an unpublished
opinion, which is not binding precedent, neither the Third Circuit Court’s per curiam opinion nor
the District Court’s opinion acknowledged that the Superior Court had directly addressed and
ruled upon the issue in Knight. See Berkery v. Verizon Commc'ns, Inc., No. 2:15-CV-1085, 2015
WL 6599694 (E.D. Pa. Oct. 29, 2015).
The District Courts in this Circuit have split on whether to apply the Werwinski Federal
court ruling or the Superior Court ruling in Knight and Dixon. See e.g. Lovelace v. Nationwide
Mut. Ins. Co., No. CV 18-2701, 2018 WL 3818911, at *4 (E.D. Pa. Aug. 10, 2018) (“clear
pronouncement by the Pennsylvania Superior Court in Knight—subsequently followed
in Dixon—constitutes a clear change in law that has proved incorrect the Third Circuit’s
7

prediction in Werwinski”); Gusforff v. MNR Industries, 2018 WL 3328021 (E.D. Pa. July 6,
2018) (finding that Court was bound by the Third Circuit’s decision in Werwinski); Pansini v.
Trane Co., 2018 WL 1172461 (E.D. Pa. March 6, 2018)(“the economic loss doctrine does not
apply to claims under the UTPCPL”); Powell v. St. Joseph’s Univ., 2018 WL 994478 (E.D.
February 20, 2018)(following holding in Werwinski); Busch v. Domb, 2017 WL 6525779 (E.D.
Pa. Dec. 21, 2017)(economic loss doctrine does not bar UTPCPL claims); Doe v. Trustees of
Univ. of Pa., 270 F.Supp.3d 799 (E.D. Pa. September 13, 2017)(economic loss doctrine bars
UTPCPL claims); Landau v. Viridian Energy Pa, LLC, 223 F.Supp.3d 401 (E.D. Pa. November
30, 2016)(economic loss doctrine does not bar UTPCPL claim); Sosso v. Esb Bank, 2016 WL
3855031 (W.D. Pa. July 15, 2016) )(economic loss doctrine does not bar UTPCPL claim);
Roberts v. NVR, Inc., 2015 WL 3745178 (W.D. Pa. June 15, 2015)(economic loss doctrine does
not bar UTPCPL claim); McGuckin v. Allstate Fire & Cas. Ins. Co., 118 F. Supp. 3d 716, 720
(E.D. Pa. 2015)( economic loss doctrine bars UTPCPL claims).
In assessing this tension, this Court is mindful that, “in the absence of a clear statement
by the Pennsylvania Supreme Court to the contrary or other persuasive evidence of a change in
Pennsylvania law,” courts within the Third Circuit “are bound by the holdings of previous panels
of this court.” Debiec v. Cabot Corp., 352 F.3d 117, 131 (3d Cir. 2003). But that rule has “wellestablished exceptions,” including one “where there has been an intervening change in the law.”
Landau, 223 F. Supp. 3d at 412. (citing In re Pharmacy Benefit Managers Antitrust Litig., 582
F.3d 432, 439 (3d Cir. 2009)). The Third Circuit has noted that, “when we are applying state law
and there is persuasive evidence that it has undergone a change, we are not bound by our
previous panel decision if it reflected our reliance on state law prior to its modification.”
Robinson v. Jiffy Executive Limousine Co., 4 F.3d 237, 239–40 (3d Cir. 1993). Further,
8

“[a]lthough state intermediate appellate decisions are not automatically controlling where the
highest court of the state has not spoken,” the Court “must give serious consideration to the
decisions of the intermediate appellate courts in ascertaining and applying state law.” Id. at 242.
The UTPCPL and applicability of the economic loss doctrine appears to fit this criteria
where deference to the state’s intermediate courts is appropriate. The District Court in Landau
noted, “the panel in Werwinski was painting on a blank canvas,” and that fact alone “should give
pause because the intermediate appellate courts of Pennsylvania have [since] twice rejected
Werwinski.” Landau, 223 F. Supp. 3d at 413.

Likewise, one court observed “[w]e cannot

ignore what the Pennsylvania courts have decided and how the law in Pennsylvania has evolved
since Werwinski was decided.” Kantor v. Hiko Energy, LLC, 100 F. Supp. 3d 421, 428 (E.D. Pa.
2015). The Kantor Court further observed that, “when the Pennsylvania intermediate appellate
courts have ruled to the contrary and their decisions have not been overruled by the state's
highest court, we are no longer compelled to follow the Third Circuit's prediction.... It is state
law, not federal law, we must follow.” Id. at 427. These principles are well-grounded in
avoiding the perils of forum shopping. As the Landau Court noted, “[t]he current divergence
between the federal and state courts” on the question whether a UTPCPL claim survives the
economic loss doctrine “means that the outcome of a case is currently a function of forum.” 223
F. Supp. 3d at 414. Where this is the case, the Third Circuit has directed district courts to avoid
such a situation: “in all cases where a federal court is exercising jurisdiction solely because of the
diversity of citizenship of the parties, the outcome of the litigation in the federal court [should]
be substantially the same, so far as legal rules determine the outcome of a litigation, as it would
be if tried in a State court.” Chamberlain v. Giampapa, 210 F.3d 154, 158–59 (3d Cir. 2000)
(quoting Guar. Trust Co. v. York, 326 U.S. 99, 109 (1945)).
9

In the instant case, State Farm removed this matter from state court to federal court
pursuant to 28 U.S.C § 1332. Had the case remained in state court, the trial court would have
been compelled to follow the precedents of Knight and Dixon. This Court is persuaded that it
should also follow the precedents of Knight and Dixon. Therefore, the Plaintiff’s UTPCPL claim
is not barred by the economic loss doctrine. Accordingly, State Farm’s motion to dismiss Count
III, on the basis of the economic loss doctrine, is denied.
b. Legal and Factual Sufficiency of UTPCPL Allegations
Next, State Farm argues that Ms. Kerr’s claim of improper claim handling is either not
actionable under the UTPCPL, or in the alternative, that the UTPCPL claim is not pleaded with
sufficient facts. The purpose of the UTPCPL “is to protect consumers from ‘fraud and unfair or
deceptive business practices.’” Doherty v. Allstate Indem. Co., Civil Action No. 15-5165, 2016
WL 5390638, at *4 (E.D. Pa. Sept. 27, 2016) (citing Commonwealth ex rel. Corbett v. Peoples
Benefit Servs., 923 A.2d 1230, 1236 (Pa. Commw. Ct. 2007)). To that end, the UTPCPL
prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce,” as defined by other provisions of the statute. 73 Pa. Stat.
Ann. §§ 201-3 and 201-2(4). See 73 P.S. § 201-2(4). “To establish liability under the UTPCPL’s
catchall provision a plaintiff must present evidence showing: (1) a deceptive act that is likely to
deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and
(3) that the plaintiff’s justifiable reliance caused ascertainable loss.” Slapikas v. First Am. Title
Ins. Co., 298 F.R.D. 285, 292 (W.D. Pa. 2014) (Conti, J.) (citing Seldon v. Home Loan Sews.,
647 F. Supp. 2d 451, 470 (E.D. Pa. 2009).
Here, the Complaint asserts that State Farm “failed to properly and timely investigate and
approve the claim and, instead, unreasonably failed to place a value on the claim”; and “engaged
10

in fraudulent and/or deceptive conduct by denial of a valid claim and by delaying, failing to
value and evaluate and denying payment of benefits and by creating confusion and/or
misunderstanding through Defendants’ claim representatives.” Compl. ¶¶ 73-74. In reviewing
all of the allegations of the Complaint and construing it in the light most favorable to Plaintiff,
the Court finds that the Complaint fails to set forth factual content that could satisfy the required
elements of a UTPCPL claim.
First, Ms. Kerr has not pleaded any deceptive act or conduct on the part of State Farm.
For purposes of the UTPCPL, a deceptive act is understood as, “one that is ‘likely to deceive a
consumer acting reasonably under similar circumstances.’” Doherty v. Allstate Indem. Co., No.
CV 15-05165, 2016 WL 5390638, at *5 (E.D. Pa. Sept. 27, 2016) (quoting Seldon v. Home Loan
Servs., Inc., 647 F. Supp. 2d 451, 470 (E.D. 2009)). Notably, [i]n Belmont v. MB Inv. Partners,
Inc., 708 F.3d 470, 498 (3d Cir. 2013), the Third Circuit predicted how the Pennsylvania
Supreme Court would interpret “deceptive conduct.” In doing so, the court examined the
Pennsylvania Superior Court’s decision in Fazio v. Guardian Life Ins. Co., 62 A.3d 396 (Pa.
Super. Ct. 2012), and noted that the “district court decisions on which the Fazio Court relied
suggest that deceptive conduct does not require proof of the elements of common law fraud, but
that knowledge of the falsity of one’s statements or the misleading quality of one’s conduct is
still required.” Belmont, 708 F.3d at 498. The Belmont Court also cited Wilson v. Parisi, 549 F.
Supp. 2d 637, 666 (M.D. Pa. 2008), for the proposition that a deceptive act is “the act of
intentionally giving a false impression or a tort arising from a false representation made
knowingly or recklessly with the intent that another person should detrimentally rely on it.”
Belmont, 708 F.3d at 498 (internal quotations omitted).

11

Here, Ms. Kerr generally alleged elements under the UTPCPL without specific facts that
would support the same. “General allegations that defendant engaged in deceptive conduct
without specifying what that deceptive conduct actually was are insufficient; a plaintiff must
identify the specific act, omission or misrepresentation ‘in order to demonstrate that such
confusion or misunderstanding was caused by certain acts or omissions on the part of the
Defendants.’” Doherty, 2016 WL 5390638, at *6 (quoting Farmerie v. Kramer, No. 2071 WDA
2014, 2015 WL 6507844, at *9 (Pa. Super. Oct. 27, 2015)).
Second, Ms. Kerr has not pleaded facts that could establish her justifiable reliance on
State Farm’s alleged wrongful conduct. Fundamentally, the Complaint does not relate to the sale
of the UM policy at issue; rather, it concerns State Farm’s conduct during the claims handling
process. However, “[a]llegations of misconduct in the claims handling process are not actionable
under the UTPCPL.” Doherty, 2016 WL 5390638, at *8. Rather, such claims are properly
asserted under Pennsylvania’s bad faith statute, which the Plaintiff has alleged in Count II. See
Gibson v. Progressive Specialty Ins. Co., No. 15-1038, 2015 WL 2337294, at *4 (E.D. Pa. May
13, 2015) Accordingly, several district courts have dismissed UTPCPL actions premised only
upon alleged misconduct during the claims handling process. See, e.g., Doherty, 2016 WL
5390638, at *7; Murphy v. State Farm Mut. Auto. Ins. Co., No. 16–2922, 2016 WL 4917597, at
*6 (E.D. Pa. Sep. 15, 2016); Phillips v. State Farm Mut. Auto. Ins. Co., Civil Action No. 4:14CV-1919, 2015 WL 3454537, at *3-4 (M.D. Pa. May 29, 2015); Monck v. Progressive Corp.,
No. 15-250, 2015 WL 1638574, at *7 (M.D. Pa. Apr. 13, 2015); Smith v. State Farm Mut. Auto.
Ins. Co., No. CIV.A. 11-7589, 2012 WL 508445, at *4 (E.D. Pa. Feb. 16, 2012). Therefore,
while Ms. Kerr’s allegations may be properly asserted as a bad faith claim, her Complaint fails to
plead sufficient facts to state a viable claim for damages under the UTPCPL. The Court grants
12

the Motion to Dismiss Count III. Count III of Plaintiff’s Complaint is dismissed without
prejudice. Ms. Kerr is granted leave to file an Amended Complaint as regards said Count III and
in accord with this Opinion.
IV. CONCLUSION
For the reasons stated above, the Court grants State Farm’s motion to dismiss Count III,
without prejudice. Because we are granting the motion to dismiss for failure to state a claim
upon which relief can be granted, we “must permit a curative amendment, unless an amendment
would be inequitable or futile.” Phillips, 515 F.3d at 236. In this case, because the Court cannot
conclude that there are no set of facts that could support a UTPCPL claim a curative amendment
is permitted.

/s Marilyn J. Horan
Marilyn J. Horan
United States District Court Judge

Dated: November 6, 2018

ORDER
AND NOW, this 6th day of November, 2018, after careful consideration and for the
reasons set forth in the Opinion accompanying this Order, it is hereby ORDERED that
Defendant State Farm Mutual Automobile Insurance Company’s Motion to Dismiss (ECF No. 5)
is GRANTED.
Count III of Plaintiff’s Complaint is dismissed, without prejudice, for failure to state a
claim upon which relief can be granted. Plaintiff may file an amended complaint to reassert this
claim. If Plaintiff chooses to file a curative amended complaint to reassert her dismissed claim,
13

such amended complaint must be in accord with the Opinion accompanying this Order and be
filed no later than fourteen (14) days from the date of this Order.

/s Marilyn J. Horan
Marilyn J. Horan
United States District Court Judge

Dated: November 6, 2018

14