“Pennsylvania courts have often stressed that the insured has both the capacity and the duty to inquire about the scope of insurance coverage, rather than rely on ‘hand holding and substituted judgment.’”
How later courts described this case
- “Pennsylvania courts have often stressed that the insured has both the capacity and the duty to inquire about the scope of insurance coverage, rather than rely on ‘hand holding and substituted judgment.’”
- “An agreement to agree is incapable of enforcement, especially when it is stipulated that the proposed compact shall be mutually agreeable.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KRISTINE VLIET CIVIL ACTION
v. NO. 21-3766
LIBERTY MUTUAL PERSONAL
INSURANCE COMPANY
MEMORANDUM RE: DEFENDANT’S MOTION TO DISMISS
Baylson, J. March 14, 2022
Defendant Liberty Mutual Personal Insurance Company has filed a Motion to Dismiss
(ECF 13) in this case arising from a dispute over insurance coverage. Plaintiff Kristine Vliet brings
claims alleging breach of contract, negligence, negligent misrepresentation, and violation of
Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL). Defendant
seeks to dismiss all but one of these claims. The Court will grant Defendant’s Motion.
I. Background and Factual Allegations
As alleged by Plaintiff, the events giving rise to this case are as follows. Kristine Vliet is
a Pennsylvania resident who purchased a property insurance policy from Liberty Mutual Personal
Insurance Company. (Am. Compl. ¶¶ 1–5.) Some time after purchasing the policy, the insured
property was damaged by a fallen tree. (Id. ¶ 6.) Upon notifying Liberty Mutual of the damage
and seeking benefits under the policy, Vliet learned that the policy would not fully cover her loss.
(Id. ¶¶ 8–9.)
Plaintiff filed suit against Defendant in Pennsylvania state court, alleging that Liberty
Mutual had misled her into purchasing an inadequate insurance policy and failed to pay benefits
she is owed. (Id. ¶¶ 8–29.) Defendant removed the action to federal court (ECF 1). Plaintiff filed
an Amended Complaint (ECF 11), bringing the following claims:
1. Count I: Breach of contract for failure to pay insurance benefits;
2. Count II: Breach of contract for failure to obtain adequate insurance;
3. Count III: Negligence;
4. Count IV: Negligent misrepresentation; and
5. Count V: Violation of the UTPCPL, 73 P.S. § 201-1, et seq.
Defendant seeks to dismiss Counts II, III, IV, and V for failure to state a claim. Plaintiff
filed a Response (ECF 14), and Defendant filed a Reply (ECF 15).
II. Legal Standard
In considering a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren
Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings
Ltd., 292 F.3d 361, 374 n.7 (3d Cir.2002). To survive the motion, a plaintiff must “plead
‘sufficient factual matter to show that the claim is facially plausible,’ thus enabling ‘the court to
draw the reasonable inference that the defendant is liable for misconduct alleged.’” Warren Gen.
Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009)).
Importantly, “threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. Discussion
a. Breach of Contract (Count II)
“It is well-established that three elements are necessary to plead a cause of action for breach
of contract: (1) the existence of a contract, including its essential terms, (2) a breach of the contract;
and, (3) resultant damages.” Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. L. Firm of
Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016).
Plaintiff alleges that Defendant violated a contractual duty “to procure and provide proper
and sufficient insurance coverage for Plaintiff in accordance with her request and needs.” (Am.
Compl. ¶ 30). Plaintiff has not properly alleged, however, that any contract existed between Vliet
and Liberty Mutual that imposed this duty on Liberty Mutual prior to Vliet even purchasing a
Liberty Mutual insurance policy. What Plaintiff describes is, at most, more akin to an “agreement
to agree” than an enforceable contract. See Moody v. Allegheny Valley Land Tr., 976 A.2d 484,
495 n.5 (Pa. 2009) (“An agreement to agree is incapable of enforcement, especially when it is
stipulated that the proposed compact shall be mutually agreeable.”). The Court will therefore
dismiss Count II, without prejudice and with leave to amend.
b. Negligence
To plead a negligence claim, a plaintiff must establish that 1) the defendant owed the
plaintiff a duty of care, 2) the defendant failed to uphold that duty of care, and 3) the defendant’s
failure to uphold the duty of care injured the plaintiff. R.W. v. Manzek, 888 A.2d 740, 746 (Pa.
2005). “[A] duty consists of one party's obligation to conform to a particular standard of care for
the protection of another.” Id.
Plaintiff contends that Liberty Mutual had a “duty of care to properly investigate Plaintiff’s
insurance needs and to make proper recommendations for insurance coverage in accordance with
Plaintiff’s needs.” (Am. Compl. ¶ 38.) The Court disagrees. The alleged negligence occurred
prior to Vliet becoming a Liberty Mutual customer and consisted of Liberty Mutual allegedly
recommending an insurance policy to Vliet that was ultimately not well-suited for Vliet’s needs.
At that time, Vliet’s relationship to Liberty Mutual appears to have been simply that of a
prospective customer visiting Liberty Mutual’s website and exploring policy options.
Based on the facts alleged, the Court concludes that Liberty Mutual did not owe Vliet the
substantial affirmative duty that Plaintiff alleges. See Wisniski v. Brown & Brown Ins. Co. of PA,
906 A.2d 571, 579 n.6 (Pa. 2006) (“Pennsylvania courts have often stressed that the insured has
both the capacity and the duty to inquire about the scope of insurance coverage, rather than rely
on ‘hand holding and substituted judgment.’”). The Court will therefore dismiss Count III, without
prejudice and with leave to amend.
c. Negligent Misrepresentation
To sustain a claim for negligent misrepresentation, a plaintiff must plead “(1) a
misrepresentation of a material fact; (2) made under circumstances in which the actor should have
known of its falsity; (3) with an intent to induce another to act on it; (4) thereby causing injury to
a party who justifiably relied upon the misrepresentation.” Gregg v. Ameriprise Fin., Inc., 245
A.3d 637, 646 (Pa. 2021)
Plaintiff’s allegations on this point are highly conclusory. (See Am. Compl. ¶¶ 41–42.)
Plaintiff does not allege specific false factual assertions made by Liberty Mutual, nor does she
make non-conclusory allegations to support the premise that Liberty Mutual made these alleged
misrepresentations with the intent that Vliet purchase the particular policy at issue rather than one
that would have adequately served Vliet’s needs. Because the Amended Complaint does not
contain “sufficient factual matter” to enable “the court to draw the reasonable inference that the
defendant is liable for misconduct alleged,” Fowler, 578 F.3d at 210, the Court will dismiss Count
IV, without prejudice and with leave to amend.
d. Unfair Trade Practices and Consumer Protection Law
To state a claim under the UTPCPL, a plaintiff must establish that 1) they purchased or
leased goods or services for a personal, family or household purpose; 2) they suffered a loss of
money or property; 3) the loss occurred because of a method, act, or practice unlawful under the
UTPCPL; and 4) the plaintiff justifiably relied upon the unlawful practice when making the
purchasing decision. Gregg, 245 A.3d at 646 (citing 73 P.S. § 201-9.2(a)).
Plaintiff’s allegations regarding her UTPCPL claim are very conclusory. Plaintiff appears
to be bringing her UTPCPL claim pursuant to the statute’s “catchall provision,” which makes it
unlawful to “engag[e] in any other fraudulent or deceptive conduct which creates a likelihood of
confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi); see also Gregg, 245 A.3d at 646–47
(discussing the catchall provision). Plaintiff does not allege with any particularity what deceptive
acts Liberty Mutual engaged in. See Home Loan Servs., Inc., 647 F. Supp. 2d 451, 470 (E.D. Pa.
2009) (Yohn, J.) (“First, [to state a UTPCPL claim,] a plaintiff must allege facts showing a
‘deceptive act,’ that is ‘conduct that is likely to deceive a consumer acting reasonably under similar
circumstances.’ (quoting Black's Law Dictionary 455 (8th ed. 2004)). The Court will therefore
dismiss Count V, without prejudice and with leave to amend.
Conclusion
For the foregoing reasons, the Court will grant Plaintiff’s Motion, without prejudice and
with leave to amend. An appropriate Order follows.
O:\CIVIL 21\21-3766 Vliet v. Liberty Mutual Personal Ins. Co\21cv3766 Memorandum re MtD.docx