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ProCentury Insurance Co. v. Harbor House Club Condominium Association

August 19, 2009

PROCENTURY INSURANCE COMPANY, PLAINTIFF/COUNTERDEFENDANT,
v.
HARBOR HOUSE CLUB CONDOMINIUM ASSOCIATION, INC., DEFENDANT/THIRD-PARTY PLAINTIFF/COUNTERCLAIMANT,
v.
THOMAS H. HEIST INSURANCE AGENCY, INC., MELISSA TOLAN, COWLES & CONNELL, CENTURY SURETY COMPANY, MEADOWBROOK INSURANCE GROUP, INC., THIRD-PARTY DEFENDANTS,
THOMAS H. HEIST INSURANCE AGENCY, INC., MELISSA TOLAN, CROSS-CLAIMANTS,
v.
COWLES & CONNELL, CENTURY SURETY COMPANY, MEADOWBROOK INSURANCE GROUP, INC. CROSS-DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter involves an insurance coverage dispute concerning storm damage to the wharves and piers appertinent to the Harbor House condominiums in Ocean City, New Jersey. Pending before the Court are: (1) the motion of ProCentury Insurance Company ("ProCentury") to dismiss Harbor House Club Condominium Association, Inc.'s ("Harbor House") counterclaim, (2) the cross-motion of Harbor House to dismiss ProCentury's claims in admiralty and for sanctions, (3) Cowles & Connell's motion to dismiss Harbor House's third-party complaint, and (4) Century Surety Company and Meadowbrook Insurance Group, Inc.'s motion to dismiss Harbor House's third-party complaint and for sanctions. All motions have been opposed. For the reasons expressed below, the motions of ProCentury, Harbor House, and Century Surety and Meadowbrook will be denied, and the motion of Cowles & Connell will be granted.

BACKGROUND

On May 13, 2008 a storm damaged the wharves and piers*fn1 at the Harbor House condominiums in Ocean City, New Jersey. That day, Harbor House filed a notice of claim under its Commercial Ocean Marine Insurance policy with ProCentury, which had an effective period of February 7, 2008 through May 1, 2009. On November 8, 2008, Harbor House submitted a statement of proof of loss. On December 5, 2008, ProCentury denied Harbor House's claim and refunded Harbor House its policy premium. ProCentury denied Harbor House's claim and returned its premium because it found that Harbor House materially misrepresented the risk to be insured.

Specifically, ProCentury found that prior to offering a quote for the policy, it received a form application - a form of an unrelated insurance company, Great American Insurance Group - which included a representation that Harbor House did not contemplate any structural alterations or demolition during the proposed policy period. Upon investigation following Harbor House's notice of claim, ProCentury found that as early as October 2007 and then again in February 2008, Harbor House's retained engineering firm corresponded with the Army Corps of Engineers regarding permit applications for the reconstruction of the breakwaters on all four piers. Harbor House never informed ProCentury of its permit applications and proposed reconstruction, and on December 5, 2008, ProCentury determined that this constituted a material misrepresentation of the risk insured. On that same day, ProCentury filed its declaratory judgment action with this Court, seeking a judgment declaring the insurance policy as fully rescinded/void ab initio and Harbor House's claim as properly denied.

Harbor House filed its answer on January 12, 2009, and asserted counterclaims against ProCentury. Harbor House denies that it made a material representation to ProCentury. Its counterclaim seeks a declaratory judgment in its favor declaring that ProCentury is obligated to pay its claim under the policy. Harbor House also asserts a counterclaim for breach of the duty of good faith and fair dealing.

Harbor House also filed a third-party complaint against Thomas H. Heist Insurance Agency ("Heist"), Melissa Tolan, Cowles & Connell, Century Surety Company, and Meadowbrook Insurance Group. Tolan is the insurance broker employed by Heist who submitted the Great American form to Cowles & Connell, ProCentury's agent, as part of the application for the ProCentury insurance policy. The policy issued by ProCentury identifies the issuing carrier on the declarations page for piers and wharves coverage as Century Surety Company, which appears on the record before us to be, like ProCentury, a subsidiary of ProCentury Group. ProCentury Group is presumably a insurance holding company that operates insurance subsidiaries, in this case Century Surety and ProCentury. On July 31, 2008, Meadowbrook acquired the ProCentury Group, along with its subsidiaries. Harbor House's claims against Century Surety and Meadowbrook are for breach of the insurance contract and bad faith. Its claim against Heist, Tolan and Cowles & Connell is for negligence in obtaining the insurance policy.*fn2

As set forth above, pending before the Court are: (1) the motion of ProCentury to dismiss Harbor House's counterclaim, (2) the cross-motion of Harbor House to dismiss ProCentury's claims in admiralty and for sanctions, (3) Cowles & Connell's motion to dismiss Harbor House's third-party complaint, and (4) Century Surety Company and Meadowbrook's motion to dismiss Harbor House's third-party complaint and for sanctions. Each will be addressed in turn.

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. ProCentury also alleges that jurisdiction exists in admiralty pursuant to 28 U.S.C. § 1333.

B. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). If any other matters outside the pleadings are presented to the court, and the ...


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