Wednesday, January 12, 2011

A Growing Trend in Post-Koken Pleadings?

On January 7, 2010, Judge Arthur J. Schwab of the United States District Court for the Western District of Pennsylvania issued a post-Koken decision in the case of Rubin v. State Farm, slip copy 2011 WL 61175, 10 CV 1651 (W.D.Pa. Jan. 7, 2011, Schwab, J.)(mem. op.) in which the court denied the UIM carrier's Fed.R.C.P. 12(b)(6) Motion filed in response to the Plaintiff's breach of contract claim based upon the carrier's failure to pay UIM benefits.

The court basically found that, in reviewing the Complaint in a light most favorable to the plaintiff, it was readily apparent that the plaintiff had stated a valid cause of action upon which relief may be granted.

Of note is the fact that, during the proceedings, the plaintiff's counsel withdrew the stated claims for bad faith and violations of the Unfair Trade Practices and Consumer Protection Law as being "premature."

The plaintiff also chose to abandon a claim that the carrier breached of a fiduciary duty of of utmost good faith and fair dealing by not including the same in the Amended Complaint that was under consideration in this matter. The Plaintiff also abandoned a negligence asserting claim asserting that the carrier had acted negligently in handling the UIM claim presented.

This case evidences a push-back by carriers, in the form of filing 12(b)(6) motions in federal court and preliminary objections in state court, in response to being faced with multiple claims at the outset in post-Koken cases, some of which claims may be arguably premature or even inapplicable under the circumstances presented.

It remains to be seen whether the trend in post-Koken cases of plaintiffs taking a streamlined approach and simply filing an initial breach of contract count on the UIM claim, as opposed to taking a shotgun approach and including any and all possible or potential claims against a UIM carrier, will continue.

I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for sending this case to my attention.

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