Opinion
CIVIL ACTION No. 03-3409 (related case No. 99-6638)
December 10, 2003
ORDER
AND NOW, this ___ day of December, 2003, upon consideration of Defendants' Motion to Dismiss Plaintiff's Complaint in its Entirety (Docket No. 2), Plaintiff's Response to Defendants' Motion to Dismiss (Docket No. 6), Defendants' Reply Brief in Support of their Motion to Dismiss (Docket No. 7), and Plaintiff's Response to Defendants' Reply (Docket No. 8), IT IS HEREBY ORDERED that Defendants' Motion is GRANTED IN PART and DENIED IN PART as follows:
Plaintiff brings this breach of insurance contract action alleging that he was wrongfully denied benefits under a disability insurance policy. Plaintiff admits that this action is substantially the same as another action pending before this Court under Civil Action No. 99-6638. Plaintiff filed this new action in order to preserve his right to damages that he claims may not be recoverable under the original action, even if he were to prevail in the original action.
In the instant motion, Defendants set forth two main arguments for dismissing the new Complaint. First, Defendants claim that the issues presented in the Complaint have already been decided by this Court for the original litigation in an Order dated January 23, 2002; and second, Defendants claim that Plaintiff is barred from recovering the damages he presently seeks under Pennsylvania case law.
The original action, Civil Action No. 99-6638, was filed on December 30, 1999, and is now in the trial pool awaiting a trial date. In that action, as in the present one, Plaintiff claims that the Defendants wrongfully terminated his disability payments. In September 1995, Plaintiff was found psychiatrically disabled and unable to perform the duties of his occupation. He began receiving monthly payments under his disability insurance policy. Those payments stopped in April 1999. Plaintiff filed the original action for breach of the insurance contract shortly thereafter.
During the proceedings of the first case, there was dispute among the parties regarding the extent of damages that Plaintiff was entitled to recover. On January 23, 2002, this Court ordered that Plaintiff is precluded from offering at trial "any evidence of future benefits." (Case No. 99-6638, Docket No. 126).
In the instant Complaint, Plaintiff is seeking to recover wrongfully denied monthly benefits for the period after he filed the original action. Defendant moves to dismiss the new action claiming that Plaintiff is attempting to "end around" the Court's January 23, 2002 Order in the original litigation. Specifically, Defendant claims that Plaintiff is using the new complaint to recover "future benefits," which is specifically what the Court's January 23, 2002 Order precluded Plaintiff from recovering.
When this Court precluded Plaintiff from presenting evidence of "future benefits," the Court was rejecting Plaintiff's claim that he was entitled to recover "his lifetime benefits, which exceed $2,000,000." See Pl.'s Response to Def.'s Mot. in Limine to Preclude Economic Report of Verzilli Verzilli and Consultants, Inc., and Evidence Regarding Future Benefits, at 9 (Case No. 99-6638, Docket No. 82). Thus, in the Order of January 23, 2002, the Court rejected Plaintiff's contention that he could recover his lifetime benefits all at once and precluded Plaintiff from presenting evidence of "future benefits" at trial. In this new action, Plaintiff is not seeking to recover "future benefits," or "lifetime benefits," within the meaning of the Court's Order. By filing a new complaint, Plaintiff seeks only to preserve his right to recover the monthly payments allegedly owed to him after December 1999 when he filed the original action. Accordingly, Defendants' motion to dismiss is denied as to Defendants' first argument.
Defendant also argues that under Summers v. Prudential Ins. Co. of Am., 319 Pa. 270 (1935), Plaintiff is entitled to recover only the monthly payments owed to him at the time the first action was commenced. Thus, Defendant argues, the new Complaint was filed in contravention of the laws of Pennsylvania. Summers may indeed stand for the proposition that an aggrieved insured is generally not entitled to lump sum payments for future benefits, absent a policy provision to the contrary, and that an insured's right to recover accrues on a month-to-month basis. See Summers, 319 Pa. at 273. However, Summers does not totally preclude a plaintiff from recovering monthly payments after a complaint is filed once those payments have been wrongfully denied. Courts in this federal judicial district have recognized that the Summers decision presents plaintiffs with a procedural conundrum. See, e.g., O'Shea v. Mutual Life Ins. Co., 226 F. Supp.2d 660, 662 (E.D. Pa. 2002) ("This court is aware of the odd predicament in which the Summers precedent places a plaintiff."); F.P. Woll Co. v. Valiant Ins. Co., 226 F. Supp.2d 688, 694 (E.D. Pa. 2002) ("This court has recently seen firsthand the bizarre repercussions of a strict interpretation of the Summers holding."). UnderSummers, in order to recover monthly payments wrongfully denied after litigation has been commenced, a plaintiff must either file new actions as the insurance policy is breached each month or seek leave of court to amend the initial complaint. Plaintiff has chosen the former option and has filed the instant law suit, Civil Action No. 03-3409. The fact that the Defendants disagree with Plaintiff's procedural decision does not render the instant complaint inappropriate. Accordingly, Defendants' Motion to dismiss the Complaint in its entirety is denied.
(1) Count IV of the Complaint is DISMISSED;
Plaintiff does not oppose certain parts of Defendants' Motion to Dismiss. Those parts of Defendants' Motion that are unopposed are granted.
(2) To the extent that Count II pleads causes of action for common law bad faith and breach of covenant of good faith and fair dealing, Count II is DISMISSED;
This portion of Defendants' Motion is unopposed.
(3) To the extent that Count II seeks future damages for repudiation of the insurance contract, Count II is DISMISSED; and
Plaintiff agrees with Defendant that subsection (h) of the damages clause of Count II seeks impermissible damages. Therefore, that portion of Count II is dismissed.
(4) The remaining portions of Defendants' Motion to Dismiss are DENIED.