ALBIN DEVELOPMENT COMPANY INC. v. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN
| ALBIN DEVELOPMENT COMPANY INC. |
| FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN |
| 2:2022cv01789 |
| December 13, 2022 |
| US District Court for the Western District of Pennsylvania |
| Christy Criswell Wiegand |
| Insurance |
| 28 U.S.C. § 1441 Notice of Removal - Breach of Contract |
| Both |
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| Filing 21 ANSWER to Complaint and Affirmative Defenses by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Monahan, Patricia) |
Filing 20
ORDER re #18 Motion for Reconsideration by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. On 1/26/2023, this Court denied FOREMOST's #9 Motion for Partial Dismissal, which asked the Court to dismiss Counts II (unfair trade practices under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL")) and III (breach of contract) of the [3-2] Complaint filed by ALBIN DEVELOPMENT COMPANY, INC. See ECF No. 17. FOREMOST had argued that Count II should be dismissed based on numerous district court decisions holding that a UTPCPL claim is viable only if premised on conduct that predates contract formation and Count III should be dismissed because of a limitations clause in the relevant agreement. The Court rejected those arguments "as presently presented" because FOREMOST failed to address the Third Circuit's decision in Horowitz v. Fed. Kemper Life Assur. Co., 57 F.3d 300, 307 (3d Cir. 1995), a case relied on by ALBIN that contemplates a UTPCPL claim based on "the improper performance of a contractual obligation," and because of the parties' apparent agreement that Count III's viability turned on the viability of Count II. FOREMOST now argues that the Court should reconsider its ruling, offering new arguments for why Horowitz, 57 F.3d 300, does not foreclose its positionarguments that were notably absent from its reply brief. See ECF No. 16. Granting a motion for reconsideration is appropriate in three limited circumstances: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion... ; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). FOREMOST argues that the court committed a "clear error of law" by holding that Horowitz, 57 F.3d 300, "permits a UTPCPL claim arising out of post-contract claim handling." ECF No. 19 at 1. But the Court never made that conclusive determination. Instead, it rejected FOREMOST's argument "as presently presented" because FOREMOST failed to address binding precedent that at least superficially undermined its position. Rejecting an underdeveloped argument is not a "clear error of law." See, e.g., Phillips v. Potter, 2010 WL 2640136, at *4 (W.D. Pa. June 30, 2010); Chevron Intell. Prop. LLC v. Golden Oil Co., 2010 WL 1714034, at *3 (W.D. Pa. Apr. 27, 2010). It is therefore ORDERED that FOREMOST's Motion for Reconsideration is DENIED. While the Court's "as presently presented" qualifier was intended to allow FOREMOST to better develop its argument at a later stage of the case, at which point the Court would consider it, it was not an invitation to file a motion for reconsideration given the standard applicable to such motions. FOREMOST had the opportunity to address Horowitz, 57 F.3d 300, in its reply after ALBIN relied on the case, but elected not to. Signed by Judge Christy Criswell Wiegand on 2/7/2023. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (jmm)
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| Filing 19 BRIEF in Support re #18 Motion for Reconsideration filed by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Monahan, Patricia) |
| Filing 18 MOTION for Reconsideration by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Attachments: #1 Proposed Order) (Monahan, Patricia) |
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Filing 17
ORDER re #9 Motion for Partial Dismissal by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. This case arises from Defendant FOREMOST's denial of an insurance claim made by Plaintiff ALBIN DEVELOPMENT COMPANY INC. after a pipe burst in its rental property on or about January 14, 2021. FOREMOST moves to dismiss, under Federal Rule of Civil Procedure 12(b)(6), Counts II (unfair trade practices) and III (breach of the insurance policy) of ALBIN's Complaint. Rule 12(b)(6) authorizes the Court to dismiss a claim that has not been plausibly alleged, after construing the pleadings in the light most favorable to the opposing party. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d. Cir. 2008). Here, the Court cannot accept FOREMOST's arguments as presently presented and will therefore DENY its Motion. As to Count II, ALBIN's claim for unfair trade practices alleges violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). FOREMOST contends that Count II fails as a matter of law because it is premised on alleged flaws in FOREMOST's claim handling and caselaw holds that in the insurance context the UTPCPL applies only to pre-formation misconduct concerning the sale of an insurance policy. See, e.g., Doherty v. Allstate Indem. Co., No. CV 15-05165, 2016 WL 5390638, at *8 (E.D. Pa. Sept. 27, 2016). FOREMOST's argument, however, ignores binding Third Circuit precedent acknowledging the validity of UTPCPL claims predicated on insurer malfeasance, i.e., "the improper performance of a contractual obligation." Horowitz v. Fed. Kemper Life Assur. Co., 57 F.3d 300, 307 (3d Cir. 1995). Without further argument for why ALBIN's allegations do not amount to malfeasance, the Court cannot accept FOREMOST's motion to dismiss Count II. Turning to Count III, FOREMOST argues that ALBIN's claim for breach of contract must be dismissed under the policy's limitations clause, which provides that ALBIN has one year from the date of loss to bring suit against FOREMOST, because ALBIN did not file suit until April 2022. ALBIN responds, in part, that successfully establishing a violation of the UTPCPL would mean that the limitations clause is not binding on ALBIN, such that deciding the issue is premature. FOREMOST does not address this argument in its reply, and so the Court will assume that FOREMOST accepts, for the purposes of the instant Motion only, ALBIN's premise: that if the Court allows ALBIN's UTPCPL claim to proceed, it should do the same for ALBIN's breach of contract claim. That being the case, and because the Court has rejected FOREMOST's arguments for dismissing Count II, the Court will also reject FOREMOST's arguments for dismissing Count III. For the foregoing reasons, it is hereby ORDERED that FOREMOST's Motion is DENIED. It is further ORDERED that FOREMOST shall answer ALBIN's Complaint on or before 2/9/2023. Signed by Judge Christy Criswell Wiegand on 1/26/2023. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (pca)
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| Filing 16 REPLY BRIEF re #15 Brief in Opposition - Other filed by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Monahan, Patricia) |
| Filing 15 BRIEF in Opposition to #9 Partial MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by ALBIN DEVELOPMENT COMPANY INC.. (Black, Rebecca) |
| Filing 14 RESPONSE IN OPPOSITION to Defendant's Partial Motion to Dismiss filed by ALBIN DEVELOPMENT COMPANY INC.. (Black, Rebecca) |
| Filing 13 Disclosure Statement identifying None as corporate parent or other affiliate, by ALBIN DEVELOPMENT COMPANY INC.. (Black, Rebecca) |
| Filing 12 Certificate of Meet and Confer by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN re #9 Motion to Dismiss for Failure to State a Claim (Monahan, Patricia) Modified on 12/27/2022 (kss). |
| Filing 11 BRIEF in Support re #9 Motion to Dismiss for Failure to State a Claim filed by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Monahan, Patricia) |
| Filing 10 Errata re #9 Motion to Dismiss for Failure to State a Claim by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. Reason for Correction: Motion was missing Exhibit 1. (Monahan, Patricia) |
| Filing 9 Partial MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Attachments: #1 Proposed Order) (Monahan, Patricia) Link added to Errata filed at #10 . Modified on 12/28/2022 (keh). |
| Filing 8 Disclosure Statement identifying None as corporate parent or other affiliate, by ALBIN DEVELOPMENT COMPANY INC. (Black, Rebecca) |
| Filing 7 AT&T SCHEDULING NOTICE FOR ALL TELEPHONIC CONFERENCES. Every Telephonic Conference conducted will be via an AT&T call-in number which requires participants to dial-in and provide an access code. When a Telephonic Conference is scheduled you will be instructed to refer back to this Notice. This document has a security setting of "Case Participants Only," so only those individuals will have access to view the document. (jmm) |
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Filing 6
ORDER re Federal Rule of Civil Procedure 12(b) Motions to Dismiss as more fully stated in said order. Signed by Judge Christy Criswell Wiegand on 12/15/2022. (jmm)
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| Filing 5 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (jmm) |
| Filing 4 Disclosure Statement identifying None as corporate parent or other affiliate, by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. Pursuant to LCvR 7.1(a)(2)(A), Defendant Foremost Insurance Company Grand Rapids, Michigan is incorporated in the state of Michigan and for federal court jurisdiction/diversity of citizenship disclosure purposes, the principal place of business is Michigan. (Monahan, Patricia) Modified on 12/27/2022 (jd). |
| CLERK'S OFFICE QUALITY CONTROL MESSAGE re #3 Notice of Removal. ERROR: Party did not file disclosure statement identifying citizenship pursuant to FRCvP 7.1(a)(2), which took effect on December 1, 2022. CORRECTION: Attorney advised to file statement within 7 days under Civil > Other Filings > Other Documents > Disclosure Statement (LR 7.1.A and/or FRCvP 7.1(a)(2)). Disclosure Statement due by 12/21/2022. (jd) Modified on 12/14/2022 (jd). Modified on 12/28/2022 (jd). |
| Filing 3 NOTICE OF REMOVAL from ALLEGHENY COUNTY, case number GD-22-004839 with Plaintiff Copies attached: Lower Court Complaint, Exhibits (Filing fee, including Administrative fee, $402, receipt number APAWDC-7441351), filed by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Civil Cover Sheet) (jd) |
| Filing 2 Disclosure Statement identifying None as corporate parent or other affiliate, by FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN. (jd) |
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| Plaintiff: ALBIN DEVELOPMENT COMPANY INC. | |
| Represented By: | Rebecca L. Black |
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| Defendant: FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN | |
| Represented By: | Patricia A. Monahan |
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