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Courtney Fuscellaro v. Combined Insurance Group

September 29, 2011


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


This matter comes before the Court on a Motion to Dismiss by Defendants Personal Service Insurance Company and American Independent Insurance Company pursuant to Fed. R. Civ. P. 12(b)(2) and Fed. R. Civ. P. 12(b)(6). Subsequent to Defendants' Motion, Plaintiff voluntarily dismissed this action as to Defendant American Independent Insurance Company, Inc. Therefore, the Court addresses Defendants' Motion as to Personal Service Insurance Company. The Court has reviewed the written submissions of the parties. For the reasons stated below, Defendants' motion will be GRANTED.


This action arises out of an insurance claim that Plaintiff Courtney Fuscellaro filed pursuant to an automobile insurance policy seeking coverage for damages sustained in an automobile accident. Defendants Combined Insurance Group ("CIG") and Personal Service Insurance Company ("PSI") denied Plaintiff's claim alleging lack of coverage. Based on Defendants' denial of coverage, Plaintiff filed this Complaint alleging breach of contract, fraud, and bad faith. The facts as stated in Plaintiff's Amended Complaint are as follows.

On or about November 22, 2010, Plaintiff purchased a 2006 BMW automobile from Best Buy Motors, Inc. by way of a retail installment contract and security agreement. (Am. Compl. at ¶ 7.) Best Buy Motors transferred the agreement to Westlake Financial Services, which required proof of insurance with comprehensive coverage. (Id. at ¶ 9.) Plaintiff then sought to update her existing insurance policy with Defendant CIG to include her new vehicle. (Id. at ¶ 10.) CIG agreed to provide Plaintiff with coverage, including full comprehensive and collision insurance, and, through Defendant PSI, provided a declaration page confirming collision and comprehensive coverage effective as of November 23, 2010. (Id. at ¶¶ 13, 14.) Relying on the coverage produced by CIG, Plaintiff took delivery of the automobile. (Id. at ¶ 15.)

Shortly thereafter, on December 9, 2010, Plaintiff's BMW was involved in a collision and sustained serious damage. (Id. at ¶ 18.) The following day, Plaintiff reported the accident to PSI and American Independent Insurance Company ("AIIC"). (Am. Compl. at ¶ 19.) After reporting the accident, Plaintiff received numerous declaration pages and letters, including some documents that were dated prior to the date of the accident but post-marked after that date. (Id. at ¶ 20.) In a letter from a PSI claims adjuster dated December 14, 2010, PSI informed Plaintiff that Plaintiff's BMW did not have "collision/comprehensive" coverage and that AIIC would not pay the claim. (Am. Compl. at ¶23; Ex. "D.") On December 16, 2010, the adjuster called and told Plaintiff that there was never collision or comprehensive coverage on the vehicle. (Am. Compl. at ¶25.) Plaintiff believed this to be a mistake, given that the information on the declaration page indicated that she had coverage, and the adjuster advised Plaintiff to contact CIG. (Id. at ¶26.)

When Plaintiff contacted CIG, CIG informed her that the collision and comprehensive coverage had been canceled because Plaintiff had not taken the car in for a required photo inspection. (Id. at ¶ 27.) Plaintiff contended that at no time had anyone from CIG informed her of the photo inspection requirement, to which CIG's agent responded, "too bad have your lawyer call us." (Id. at ¶ 28.) Plaintiff then received several letters from CIG. Plaintiff received two identical letters from an agent of CIG dated December 15, 2010, in which the agent stated that he had been attempting to call Plaintiff to remind her that her comprehensive/collision coverage had been cancelled due to Plaintiff's failure have the photo inspection completed. (Am. Compl. at ¶ 29; Ex. "E.") On or about December 15, 2010, Plaintiff also received another letter from CIG that was identical to the December 15th letters, but dated November 16, 2010,*fn1 which was prior to the date on which Plaintiff purchased the vehicle. (Am. Compl. at ¶ 30; Ex. "F.") Prior to the date of the accident, however, the only correspondence Plaintiff received from the Defendants in any form was PSI's delivery of insurance identification cards representing the policy number listed on the declaration pages which PSI initially provided to Plaintiff. (Am. Compl. at ¶¶ 16, 17.)

Plaintiff also subsequently received correspondence from AIIC and PSI in the form of three declaration pages sent between December 16 and December 23, 2010. (Id. at ¶ 31.) Two of the three declaration pages, with effective dates of December 1, 2010, and December 7, 2010, respectively, indicate no comprehensive or collision coverage. (Am. Compl. ¶¶ 32, 33; Ex.'s "G," "H.") The third declaration page, also indicating an effective date of December 7, 2010, indicates both comprehensive and collision coverage. (Am. Compl. ¶34; Ex. "I.")

Plaintiff filed an Amended Complaint in this matter on March 1, 2011, alleging breach of contract (Count I), common law fraud (Count II), bad faith (Count III), and consumer fraud (Count IV) against all Defendants. The Amended Complaint seeks specific performance under the insurance policy and injunctive relief, as well as actual and punitive damages. On March 31, 2011, Defendants PSI and AIIC filed the present motion to dismiss for lack of jurisdiction as to AIIC pursuant to 12(b)(2) and failure to state a claim pursuant to 12(b)(6) as to both Defendants. Plaintiff dismissed this action as to AIIC on April 19, 2011, and filed a reply to Defendants' motion on April 25, 2011. As such, AIIC's motion will be dismissed as moot. Remaining at issue is Defendants' motion to dismiss Counts II, III, and IV of the Amended Complaint as to PSI pursuant to 12(b)(6). To date, CIG has not made an appearance in this matter. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332.


I. Standard of Review Under Rule 12(b)(6)

A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration.*fn2 See Chester County Intermediate Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). The question before the Court is not whether the plaintiff will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (2007). Instead, the Court simply asks whether the plaintiff has articulated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"A claim has facial plausibility*fn3 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. - - - , 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). "Where 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." Iqbal, 129 S. Ct. at 1950.

The Court need not accept "'unsupported conclusions and unwarranted inferences,'" Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and "[l]egal conclusions made in the guise of factual allegations . . . are given no presumption of truthfulness." Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) ("[A] court need not credit either 'bald assertions' or 'legal conclusions' in a complaint when deciding a ...

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