United States District Court, D. New Jersey
JOSEPH RABINOWITZ, on behalf of himself and all others similarly situated, Plaintiff,
AMERICAN WATER RESOURCES, LLC, Defendant.
OLIMPIO LEE SQUITIERI SQUITIERI & FEARON, LLP RAYMOND
NICHOLAS BARTO STEPHEN J. FEARON, JR. PAUL V. SWEENY
SQUIRIERI & FEARON LLP On behalf of Plaintiff
MICHAEL P. DALY DRINKER, BIDDLE & REATH, LLP DANIEL
ELLIOT BREWER DRINKER BIDDLE & REATH ONE LOGAN SQUARE On
behalf of Defendant
L. HILLMAN, U.S.D.J.
putative class action concerns claims by Plaintiff and all
similarly situated individuals arising out of water and sewer
line protection programs provided by Defendant. Pending
before the Court is the motion of Defendant to dismiss
Plaintiff's complaint and to strike certain allegations
in the complaint. For the reasons expressed below,
Defendant's motion will be denied.
Joseph Rabinowitz, owns a home in Brooklyn, New York. In
February 2013, Plaintiff enrolled in the water and sewer line
protection programs offered by Defendant American Water
Resources, LLC (“AWR”). AWR provides line
protection services to more than 1.4 million consumers across
the country. Plaintiff has paid approximately $150 a year for
February 2018, Plaintiff contacted AWR concerning a sewer
leak in his home. AWR claimed any damage to the sewer line
inside of the home was not covered under the line protection
agreements. Plaintiff then hired a plumber who, in order to
repair the interior line, had to open the exterior wall to
find a good piece of pipe to make a new connection. In doing
so he found that the exterior portion of the sewer line was
broken, clogged, or blocked due to extensive rotting,
erosion, cracking, and other damage. Plaintiff's plumber
implemented temporary measures to keep the sewer line
functioning pending a permanent solution.
February to March 2018, Plaintiff repeatedly contacted AWR
concerning repairs to his exterior sewer line, that is, the
portion of the sewer line the line protection agreements
oblige AWR to pay to repair. Despite its broad duty under the
line protection agreements to dispatch an independent
contractor to a home when there is a break, clog, or blockage
of the sewer line, AWR refused to do so citing nonexistent
exceptions, including that it would only dispatch an
independent contractor where there is an active backup or
where there is a crack to the bottom of the line (as opposed
to the top). AWR also informed Plaintiff it would not
dispatch an independent contractor to a home based on the
recommendation of a third-party, even though the line
protection agreements contain no provision to that effect.
eventually dispatched an independent contractor to
Plaintiff's home, but after the independent contractor
inspected the sewer line, AWR denied Plaintiff's claim in
late March 2018. AWR asserted that the repair was not covered
because Plaintiff's privately hired plumber had
purportedly caused the damage even though the substantial
deterioration and cracking of the exterior sewer line could
not have been caused by Plaintiff or a third-party.
claims that AWR violated its obligations under the line
protection agreements by delaying to dispatch an independent
contractor and ultimately denying Plaintiff's claim for
coverage of repairs to his exterior sewer line. The break,
clog, or blockage of Plaintiff's exterior sewer line
occurred after Plaintiff enrolled in the line protection
programs and resulted from normal wear and usage in the form
of extensive rot, erosion, cracking, and other damage.
Plaintiff claims that contrary to AWR's representations,
that damage could not have been caused by the one-time,
temporary repair of the in-home portion of Plaintiff's
sewer line, and AWR was obligated to pay for the cost of
repairs. In his complaint, Plaintiff states that his exterior
sewer line remains broken, blocked, or clogged, and he is
currently considering various contractors to undertake the
costly repair that was wrongly denied by AWR. Since he filed
his complaint, Plaintiff has paid to have the sewer line
claims that just like his experience, AWR regularly denies
covered claims for the payment of repairs without cause and
in violation of the terms and conditions of its line
protection agreements. By violating its contractual duties,
Plaintiff claims that AWR is able to enrich itself at the
expense of line protection program participants who have
dutifully paid their premiums and rightly expect coverage.
brings this action on behalf of himself and other similarly
situated homeowners across the United States. Plaintiff
alleges claims for (1) breach of contract; (2) a breach of
the implied covenant of good faith and fair dealing; (3)
violation of the New Jersey Consumer Fraud Act, N.J.S.A.
56:8-1, et seq. (“NJCFA”); and (4) New York
General Business Law § 349 (“NYGBL §
349”). Plaintiff seeks permanent injunctive relief, as
well as damages caused by AWR's practices.
moved to dismiss Plaintiff's complaint in its entirety.
AWR argues that Plaintiff has not pleaded the necessary
elements for a breach of contract claim. AWR also argues that
Plaintiff cannot maintain a parallel breach of implied
covenant of good faith and fair dealing if a valid contract
governs the parties' relationship. AWR further argues
that Plaintiff cannot transform this basic breach of contract
case into one for fraud, and even if he could, his fraud
claims are not properly pleaded and untimely, in addition to
the fact that the NJCFA does not apply to Plaintiff, who is a
citizen of New York. To the extent that any of
Plaintiff's claims may proceed, AWR seeks to strike
certain allegations in Plaintiff's complaint that AWR
contends have no possible relation to the controversy and may
either cause prejudice or confuse the issues. Plaintiff has
opposed AWR's motion.
Subject Matter Jurisdiction
Court has original jurisdiction over this case under the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
Minimal diversity exists between members of the class and
Defendant: AWR is a citizen of Delaware and New Jersey,
Plaintiff is a citizen of New York. The amount in controversy
in this action exceeds $5, 000, 000 and there are more than
100 members in the class.