On Defendant 21st Century Centennial Company's Partial Motion to Dismiss.
Eldridge A. Nichols Jr., Esquire, Attorney for Defendant.
Gary W. Alderson, Esquire, Attorney for Plaintiffs.
Defendant 21st Century Centennial Company ("21st Century") has moved to partially dismiss Plaintiffs Dale Peterson ("Mr. Peterson") and Regina Peterson's ("Mrs. Peterson") (collectively the "Petersons") Complaint pursuant to Del. Super. Ct. R. 12(b)(2), or in the alternative, pursuant to Del. Super. Ct. R. 9(b). Defendant seeks to dismiss Plaintiffs' claims brought under 21 Del. C. § 2118B for punitive damages and attorney's fees, Plaintiffs' claims under 18 Del. C. § 2304(16), and 6 Del. C. § 2513 with prejudice, and to dismiss Mrs. Peterson as a plaintiff in this action for lack of standing to make a claim. For the following reasons, Defendant's 21st Century's Partial Motion to Dismiss is GRANTED.
The Petersons were named as insureds under a 21st Century automobile insurance policy. In 2014 Mr. Peterson was allegedly injured in an automobile accident. Mr. Peterson subsequently tendered claims for personal injury protection ("PIP") benefits under the policy to 21st Century regarding treatment for his alleged injuries sustained in the automobile accident. On October 20, 2014, 21st Century had Mr. Peterson examined by an independent physician, Dr. Robert Smith. On November 6, 2014, 21st Century notified Mr. Peterson that his PIP benefits would be terminated on November 11, 2014, based on Dr. Smith's independent medical evaluation report. Mr. Peterson requested 21st Century reconsider its termination of his PIP benefits, and on December 14, 2015 21st Century provided Mr. Peterson with Dr. Smith's independent report. In the beginning of January, 2015, Mr. Peterson's treating physician, Dr. Arnold Glassman, provided 21st Century with a report in rebuttal to Dr. Smith's findings. On January 19, 2015, the Petersons filed a Complaint alleging that 21st Century willfully, wantonly, recklessly, and/or negligently violated 21 Del. C. § 2118B by terminating Mr. Peterson's PIP benefits, without consideration of Dr. Glassman's recommendation. The Complaint also alleges that the termination of Mr. Peterson's PIP benefits constituted a breach of contract, breach of the covenant of good faith and fair dealing, and violated 18 Del. C. §2304(16) and 6 Del. C. § 2513 of the Delaware Consumer Fraud Act.
Defendant 21st Century has brought this Partial Motion to Dismiss, asserting that Mrs. Peterson should be dismissed from this action because she is not a "claimant" under 21 Del. C. § 2118B, and thus, Mrs. Peterson has no standing as a plaintiff in this action. Moreover, 21st Century asserts that Mrs. Peterson should be dismissed because her only claimed injury is, by its nature, merely speculative, as Mrs. Peterson has claimed no present injury. Defendant also asserts that Mr. Peterson's claim under 18 Del. C. §2304(16) should be dismissed because this Court has repeatedly held that § 2304(16) does not provide a private cause of action.
Furthermore, 21st Century asserts that Mr. Peterson's claim for punitive damages and attorney's fees should be dismissed because, even assuming the allegations of the Complaint are true, Mr. Peterson cannot show bad faith by 21stCentury, as required under 21 Del. C. § 2118B(d) to recover attorney's fees or punitive damages. Finally, 21st Century asserts that Mr. Peterson's claim under 6 Del. C. § 2513(a) should be dismissed pursuant to Del. Super. Ct. R. 12(b)(6), because Mr. Peterson had made no claim that 21st Century's alleged illegal behavior was "in connection with the sale, lease or advertisement of any merchandise." Alternatively, 21st Century argues that Mr. Peterson's § 2513(a) claim should be dismissed pursuant to Del. Super. Ct. R. 9(b) for failure to plead fraud with particularity because Mr. Peterson has made no claim of "deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression, or omission of any material fact."
The Petersons' primary response to each of 21st Century's arguments is that any dismissal of these claims or Mrs. Peterson as a plaintiff at this junction is premature because discovery has not yet been conducted. The Petersons concede that 21st Century's argument that Mrs. Peterson lacks standing may eventually have merit, but assert that such argument has been raised prematurely because all that is required of them at this junction is to put 21st Century on notice of the claim being brought against it. The Petersons also argue that 21st Century's assertion regarding bad faith is premature because there is nothing in the record on this issue except the Petersons' prima facie claim of bad faith and discovery must be conducted for Plaintiffs to discover evidence supporting this allegation. Finally, the Petersons argue that 21st Century's motion prematurely attacks the validity of their claims under § 2513 and §2304(16) because the claims under these statutes in the Complaint have put 21st Century on notice of the precise misconduct with which they are charged. Moreover, the Petersons assert that, even if §§ 2513 and 2304(16) do not provide a private cause of action, they are still entitled to cite these statutes to allege a common law claim of negligence per se.
Standard of Review
The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion to dismiss is whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. All well-pled allegations in the complaint will be assumed to be true. The complaint must be without merit as a matter of fact or law to be dismissed. The Court will draw every reasonable factual inference in favor of the non-moving party. Rule 9(b) additionally requires that the circumstances constituting fraud be stated with particularity.
I. Regina Peterson Lacks ...