United States District Court, D. New Jersey
Michael A. Shipp Michael A. Shipp United States District
matter comes before the Court on Defendants Brian Barbosa
("Barbosa") and Progressive Garden State Insurance
Company's ("Progressive") (collectively,
"Moving Defendants") Motion to Dismiss Count Two of
Plaintiff Ana Lidia Alpizar-Fallas's Complaint. (ECF No.
4.) Plaintiff filed opposition (ECF No. 9), and Moving
Defendants replied (ECF No. 10). The Court has reviewed the
parties' submissions and decides the matter without oral
argument pursuant to Local Civil Rule 78.1. After careful
consideration of the submissions, Moving Defendants'
Motion to Dismiss is GRANTED.
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 upon
which it rests.'" BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). In addressing a motion
to dismiss under Rule 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." Phillips v.
Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(citation omitted). While a complaint does not need to
contain detailed factual allegations to withstand a Rule
12(b)(6) motion to dismiss, a pleader must "provide the
'grounds' of [her] 'entitle[ment] to relief[,
]' [which] requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555; see
also Fed. R. Civ. P. 8(a)(2).
action arises from a motor vehicle accident with Defendant
Frank E. Favero ("Favero") and Progressive's
alleged conduct with respect to the accident. (See
generally Compl., ECF No. 1-3.) Count One is a
negligence claim against Favero and Count Two is brought
under the New Jersey Consumer Fraud Act ("CFA"),
N.J.S.A. 56:8-1, et seq. (Compl.) With respect to
Count Two, Plaintiff alleges that, after suffering injuries
in a motor vehicle accident with Favero, Progressive, through
a Progressive employee, Barbosa, contacted Plaintiff to set
up an in-person meeting. (Id. ¶27.) At the
time, Favero was also insured by Progressive. (Id.
¶ 12.) According to Plaintiff, "Barbosa expressly
represented to .. . Plaintiff and her husband, Jose Ovares,
that their signatures were necessary for [Progressive] to
expedite the processing of the property damage claim."
(Id. ¶¶ 30-32.) Plaintiff further alleges
that Barbosa represented "that the document he
prepared and delivered to her needed to be signed merely to
facilitate her receipt of the money for the damages to her
motor vehicle." (Id. ¶ 34.) Plaintiff
alleges that she relied on Barbosa's representations and
signed the document produced by Barbosa. (Id. ¶
33.) Plaintiff further alleges that Barbosa did not speak
Spanish, Plaintiffs native language, and that Barbosa
required Plaintiff to sign the release during the meeting
without advising Plaintiff that she could consult an attorney
prior to signing the release. (Id. ¶¶
to Plaintiff, the document she signed "was in fact a
broadly written comprehensive general release of any and all
claims." (Id. ¶ 35.) Plaintiff alleges
that "[t]he release contained language that released,
acquitted[, ] and forever discharged all claims against
[Favero] for any and all known and unknown personal injuries
resulting from the motor vehicle accident."
(Id. ¶ 36.) Plaintiff, accordingly, alleges
that Moving Defendants violated the Unfair Claims Settlement
Practices Act ("UCSPA") regulations codified at
N.J.A.C. 11:2-l 7, et seq., and the CFA.
(Id. ¶¶ 45-46.) As "there is no
private right of action for policyholders against their
insurers based on UCSPA violations or negligence, " the
Court dismisses Count Two to the extent Plaintiff attempts to
bring an action against Defendants based on a violation of
the UCSPA. The Court, accordingly, construes Count Two as
solely arising under the CFA. Nationwide Mut. Ins. Co. v.
Caris, 170 F.Supp.3d 740, 748 (D.N.J. Mar. 15, 2016).
reviewing the Complaint, the Court finds that Plaintiffs
allegations do not state a viable CFA claim. The Third
Circuit has determined that "New Jersey courts ... have
consistently held that the payment of insurance benefits is
not subject to the [CFA]." Granelli v. Chi. Title
Ins. Co., 569 F.App'x 125, 133 (3d Cir. 2014)
(citation omitted). Rather, in the insurance context, New
Jersey courts have applied the CFA only to the
"sale of insurance policies as goods and
services that are marketed to consumers." Id.
(quoting Lemelledo v. Beneficial Mgmt. Corp. of Am.,
696 A.2d 546, 551 (N.J. 1997)). Here, Plaintiffs allegations
only relate to obtaining insurance benefits that Plaintiff
believes she is entitled to for her personal injuries and the
misrepresentations that purportedly caused Plaintiff to
release her entitlement to those benefits. Plaintiffs
allegations do not concern the sale or marketing of the
insurance policy itself.
opposition, Plaintiff relies on an older decision by the
Third Circuit in Weiss v. First JJnum Life Ins. Co.,
482 F.3d 254 (3d Cir. 2007). After the Weiss
decision, however, the New Jersey Appellate Division issued a
published opinion, stating that "while the CFA
'encompass[es] the sale of insurance policies as goods
and services that are marketed to consumers, ' it was not
intended as a vehicle to recover damages for an insurance
company's refusal to pay benefits." Myska v.
N.J. Mfrs. Ins. Co., 114 A.3d 761, 777 (
N.J.Super.Ct.App.Div. 2015) (citation omitted).
Myska involved allegations of an insurance
company's "systematic practice of denying,
obfuscating coverage of, or otherwise avoiding claims by New
Jersey consumers, " similar to Plaintiffs allegations
that Progressive's practices are designed to minimize
coverage. (Id. at 767; Compl. ¶ 51 (pleading a
purported class action "[a]s a result of Defendants'
systematic practice of misleading injured insureds to sign
comprehensive general releases ... in order to prevent its
injured insureds from pursuing a claim against drivers who
were also insured by [Progressive] ... ."). Notably, the
Appellate Division in Myska did nor adopt the Third
Circuit's decision in Weiss, and instead
distinguished Weiss as involving the
"fraudulent discontinuation of previously authorized
benefits." Myska, 114 A.3d at 777. Accordingly,
the Court finds the Myska decision applicable to the
facts alleged by Plaintiff and predicts that the New Jersey
Supreme Court would find that the CFA does not extend to
Plaintiffs allegations. See Nationwide Mut, Ins,
Co., 170 F.Supp.3d at 747 ("[T]his Court finds
Myska well-reasoned and persuasive; the CFA does not
provide plaintiffs a remedy for Nationwide's failure to
foregoing reasons, the Court GRANTS Moving Defendants'
Motion to Dismiss without prejudice. An order consistent with
this decision will be entered.
Favero filed a separate motion to
dismiss, which the Court will address in a later decision.