MEMORANDUM
Presently before the Court is a Motion to Dismiss filed by Defendant Allstate In
I. Background
The weil-pleaded facts as set forth in' Plaintiffs Complaint (Doc. 1-1) are as follows:
Plaintiff Samantha Sayles (“Sayles”) was insured under an auto insurance policy issued by Defendant Allstate (the “Policy”). (Compl. ¶ 13.) The Policy provided for, inter alia, first-party medical expense benefits up to $5000 per person. (Ex. A, Doc. 11-1.) Relevant to the instant dispute,' the Policy states under a subheading labeled “Proof of Claim; Medical Reports”:
As soon as possible, you [claimant] or any other person making claim must ■ give us [Allstate] written proof of claim including all details reasonably required by us to determine the amounts payable. The injured person may be required to take physical examinations by physicians selected by us, as often as we reasonably require. The injured person or his representative must authorize us to obtain medical reports and copies of records.
(Ex. A, Doc. 11-1) (the “examination requirement”). On December 11, 2015, Sayles was involved in a motor vehicle accident within the Commonwealth of Pennsylvania in which she sustained numerous physical injuries. (Compl. ¶ 14.) Sayles was treated by medical providers for these injuries. (Id. ¶ 15.) On May 20, 2016, Allstate sent a letter to Sayles’s counsel, Charles Kannebecker, concerning Sayles’s medical benefits under the Policy. (Id. ¶ 17.) The letter states in pertinent part:
Please be advised that we [Allstate] are requesting MES Solutions to perform an Independent Medical Exam (IME) on your client, Samantha Sayles.
Pursuant to our contract (policy) Section Proof of Claim: Medical Reports, an insured must submit to mental and physical examinations by physicians selected by Allstate when and as often as we may reasonably require.
During the time all pending bills won’t be paid until the Independent Medical Exam is completed. Once the review comes back, all bills will be processed per the results of the Independent Medical Exam review. This process will take approximately 60 days.
(Doc. 11-1 Ex. B.) In accordance with the letter, Allstate refused to pay Sayles’s medical benefits until the physical examination was completed. (Compl. ¶¶ 16, 18, 26.) At no point did Allstate petition a court to compel the physical examination of Sayles that it sought. (Id. ¶ 21.) Sayles alleges that Allstate’s examination requirement is a company-wide policy. (Id. ¶ 27.)
Sayles claims that the Policy’s examination requirement violates the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa. Cons. Stat. Ann. § 1701, et seq. (Compl. ¶ 41.) Section 1796 of the MVFRL entitled “Mental or Physical Examination of Person” states in relevant part:
(a) General rule. Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, á court of competent jurisdiction ... may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the, court orthe administrator may order that the person be denied benefits until compliance. ■■
Because Allstate did not petition a court to compel Sayles to submit to a physical examination, and consequently because there was no court order based upon a showing of “good cause” directing Sayles to submit to such an examination in accordance with the statutory specifications, Sayles claims that Allstate’s refusal to pay her medical benefits until she completed the physical examination that it requested violated the statute.
This putative class action was originally filed in the Court of Common Pleas of Pike County on June 20, 2016. (See Doc. 1.) On July 25, 2016, Allstate removed the action to federal court. (See Doc. 16.)
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. Í2(b)(6). When considering a Rule 12(b)(6) motion, the Court’s role is limited to determining1 if a plaintiff is entitled to offer eyidence in. support of her claims. See Semerenko v. Cendant Corp.,
A pleading that states a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus,
The inquiry at the motion -to dismiss stage is “normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike con-clusory allegations, and then (3) looking at the well-pleaded components of the complaint .and evaluating whether-all of .the elements identified in part one of the inquiry are sufficiently ¡alleged.” Malleus v. George,
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Twombly,
In deciding a motion to dismiss, the Court should consider the complaint, exhibits attached to the complaint, and matters of public record. Mayer v. Belichick,
III. Discussion
The Complaint seeks to bring claims on behalf of a class, which Sayles generally defines as:
All persons injured in motor vehicle accidents and insured under Pennsylvania auto insurance polices issued by [Djefen-dant which provided for medical benefits coverage whom [Defendant required or directed to submit to insurance physical exams without Court order directing insured to submit to physical exams.2
(Compl. ¶ 43.) The Complaint raises eight (8) counts seeking relief: (1) a request for a declaratory judgment declaring Allstate in violation of § 1796 of the MVFRL and that it must hereafter comply with the statute (id. ¶¶ 59, 128(B)); (2) claims for a violation of § 1796 of the MVFRL (id. ¶ 62); (3) claims for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Cons. Stat. Ann. § 201-1, et seq. (id. ¶ 71); (4) claims for violations of Pennsylvania’s Insurance Bad Faith Act, 42 Pa. Cons. Stat. Ann. § 8371 (id. ¶ 83); (5) claims for breach of the duty of good faith and fair dealing (id. ¶ 99); (6) claims for unjust enrichment (id. ¶ 108); (7) claims of intentional misrepresentation (id. ¶ 117); and (8) alternative claims for medical benefits (id. ¶ 124). Allstate filed the instant Motion to Dismiss on August 26, 2016. (Doc. 10.) Allstate’s Motion is premised chiefly upon the argument that Pennsylvania law permits parties to enter into an insurance contract like the one presently at issue, which contains a provision that requires the insured to submit to an IME as often as the insurer “reasonably requires.” (See Doc. 11, at 7-11.) Because Sayles did not attend the IME which Allstate required, Allstate contends that she breached the insurance contract. (Id. at 11.) Sayles filed her Brief in Opposition on September 20, 2016. (Doc. 23.) Allstate filed its Reply Brief on October 11, 2016. (Doc. 24.) Allstate’s Motion is now ripe for disposition.
A. Counts I and II: Section 1796 of Pennsylvania’s MVFRL
First, Allstate moves to dismiss Counts I and II of Sayles’s Complaint on the
The Pennsylvania Supreme Court has not addressed the predominant issue presently before the Court: whether a provision in an automobile insurance policy that requires an insured to submit to an IME by a physician selected by the insurer as often as the insurer reasonably requires in order to receive her first-party medical benefits conflicts with the MVFRL and, therefore, violates Pennsylvania public policy. Because the Court is sitting in diversity, and because the Commonwealth’s highest court has not issued an opinion on point, the Court is “charged with predicting how that court would resolve the question at issue.” Colliers Lanard & Axilbund v. Lloyds of London,
(1) what that court has said in related areas; (2) the decisional law of the state intermediate courts; (3) federal cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issue.
Id. “[L]ower state court decisions are not controlling on an issue on which the highest court of the state has not spoken,” however, “federal, courts must attribute significant weight to these decisions in the absence of any indication that the highest state court would rule otherwise.” Wisniewski v. Johns-Manville Corp.,
As this case turns largely on how the Pennsylvania Supreme Court would interpret § 1796 of the MVFRL, the "Court is also guided by the Pennsylvania rules of statutory construction. See Transguard Ins. Co. of Am., Inc. v. Hinchey,
Returning to the relevant statutory language, § 1796(a) of the MVFRL provides:
Whenever the mental or physical condition of a person is material to any claim for medical ... benefits, a court of competent jurisdiction ... may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate. notice of the time and date of the examination and shall state the manner, conditions ,and scope of . the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court ... may order that the person be denied benefits until compliance.
According to Allstate, the statute does not require Allstate to obtain a court order based upon a showing of good cause in order to have its insureds submit to an IME prior to receiving medical benefits. (Doc. 11, at 7.) Instead, Allstate contends that the statute merely provides when a court “may’ order a person to submit to an IME, and does not foreclose an insurer and an insured from entering into an insurance contract that includes a mandatory IME provision which the insurer may invoke in its. discretion. (See id.) In response, Sayles argues that the procedure prescribed by the statute applies to “any claim” for medical benefits “whenever” the mental or physical condition of a person is material to that claim, without exception. (See Doc. 23, at 3.) Sayles contends that allowing insurers to insert requirements, such as the examination requirement, into insurance policies would permit insurers to circumvent the procedure and protections the legislature afforded insureds in--enacting § 1796. (See id. at 4.)
1. . Allstate’s Examination Requirement Conflicts with the Plain Language of § 1796
The Court reads the plain language of § 1796 to prohibit precisely what Allstate allegedly did in this case. Section 1796 sets forth specific requirements that an insurer must satisfy in order to have its insureds submit to an IME in connection with any claim for medical'benefits: the insurer (1) must file a petition with a court, (2) satisfy its burden of demonstrating that the person’s mental or physical condition is “material” to her claim for benefits, and (3) satisfy its burden of demonstrating “good cause” for the IME. 76 Pa. Cons. Stat. Ann. § 1796(a); see State Farm Ins. Cos. v. Swantner,
The language of § 1796(a) unambiguously provides for a broad scope of the statute’s application: “Whenever” a person’s mental or physical condition 'is material to “any claim” for, inter alia, medical benefits. 75 Pa. Cons. Stat. Ann. § 1796(a). In that case, the statute authorizes a court to order such a person to submit to á mental or physical examination, but only upon a motion demonstrating “good cause.”
Therefore, the Court concurs with the well-reasoned opinion of the district court in Scott v. Travelers Commercial Insurance Co. and “read[s] § 1796 to- plainly ■require the insurer to petition the state court and- obtain an order: for an IME of
2. The Pennsylvania Supreme Court Has Found Other Provisions of the MVFRL to Prevail over Conflicting Language in Insurance Policies
In making its prediction, the Court considers what the Pennsylvania Supreme Court has held in related areas. Although the Commonwealth’s highest court has not resolved the specific question presently at issue, it has repeatedly held that “[a]s a general rule, stipulations in a contract of insurance in conflict with, or repugnant to, statutory provisions which are applicable to, and consequently form a part of, the contract, must yield to the statute, and are invalid, since contracts cannot change existing statutory laws.” Prudential Prop. & Cas. Ins. Co. v. Colbert,
In Colbert, for example, the court found an insurance policy that defined “insured” more narrowly than the MVFRL in conflict with the statutory language and thus unenforceable.
Subsequently in Generette, the court reiterated that, although declaring unambiguous provisions in an insurance contract void as against public policy comes with a “heavy burden,” Pennsylvania courts nevertheless “are obliged to find contractual language to be contrary to public policy when it violates statutory language[.]”
The Court reads these cases to demonstrate a willingness on the part of the Pennsylvania Supreme Court to void unambiguous provisions in insurance policies that conflict with the MVFRL to the detriment of insureds. The Colbert court voided an insurer-friendly contract provision that conflicted with and diminished the plain language of the MVFRL. Here, the examination requirement conflicts with and reduces the plain language of § 1796 to the benefit of the insurer, as it allows insurers to require insureds to submit to IMEs without demonstrating good cause to a neutral party and permits the insurer, rather than a court, to dictate the terms of the examination. Moreover, the Generette court found a policy provision void as against public policy based on the “structure” of the statutory definition of “under-insured motor vehicle,” despite the fact that the MVFRL does not specifically state that excess rather than gap UIM coverage is required. Similarly, although § 1796 is “silent” as to whether an insurer is permitted to include an IME provision in its policy (Doc. 24, at 8), the structure of the statutory provision makes clear that the procedural safeguards apply “[w]he-never the mental or physical condition of a' person is material to any claim for medical ... benefits.... ” § 1796(a) (emphasis added).
Separately and importantly, the Court notes that the Pennsylvania Supreme Court has long recognized that “[t]he traditional contractual approach fails to consider the true nature of the relationship between the insurer and its insureds. Only through the recognition that insurance contracts are not freely negotiated agreements entered into by parties of equal status; only by acknowledging that the conditions of an insurance contract are for the most part dictated by the insurance companies and that the' insured cannot ‘bargain! over anything more than the monetary amount of coverage purchased, does our analysis approach the realities of an insurance transaction.” Collister v. Nationwide Life Ins. Co.,
Accordingly, the Court considers these decisions in predicting that the Pennsylvania Supreme Court would similarly find Allstate’s examination requirement in conflict with § 1796.
3. Decisions from the Superior Court and Federal Courts Interpreting § 1796
Although the Court rejects Allstate’s arguments in support of its Motion to Dismiss Counts I and II, its position is not without support. Indeed, in concurring-with the decision of Magistrate Judge
Nevertheless, in making its prediction the Williams court accorded significant weight to the Fleming decision. See Williams,
In addition to its reliance on Fleming, the Williams court concluded that the challenged contractual provision was consistent with the two-fold purpose of § 1796: (1) protecting insureds from “harassment, untoward intrusion and unwarranted examination”; and (2) protecting insurers by providing checks designed to prevent insureds from “ignor[ing] reasonable limitations on treatment by.continuing in treatment without validation or justification.”
Furthermore, the Williams court’s reliance on the fact that “other states, acting within the framework of their own no-fault insurance statutes, have consistently enforced contractual provisions requiring an insured to submit to medical examinations as a condition precedent to coverage” appears to be misplaced.
In fact, although not considered by the Williams court, the Commonwealth of Kentucky has enacted a statutory provision that is similar to § 1796. See Ky. Rev. Stat. Ann. § 304.39-270.
In departing from the opinion of the Williams court, the Court finds the reasoning of Magistrate Judge Schwab more persuasive. In Scott v. Travelers Commercial Insurance Co., No. 1:14-CV-00535,
The Court agrees with the reasoning of the Scott court. To predict otherwise would allow insurers to circumvent the “good cause” requirement prescribed by the legislature. Moreover, it would permit interested insurers to transfer the relevant decision-making authority from the courts to themselves. Such a conclusion would render the protections afforded to insureds by § 1796 meaningless. Indeed, a contrary conclusion would allow insurers to effectively limit an insured’s coverage “by requiring the insured to either submit to the unilaterally compelled IME or be denied coverage.” Scott,
4. “Other Persuasive Data”
Considering that Pennsylvania case law has left the issue confronting the Court unresolved, the Court also finds it appropriate to turn to “other persuasive data” in making its prediction. Two opinions of the Honorable R. Stanton Wettick, Jr. of the Court of Common Pleas of Allegheny County persuasively addressed the exact issue at hand. In Erie Insurance Exchange v. Dzadony, 39 Pa. D. & C.3d 33,
Eleven years later, Judge Wettick had the opportunity to address this issue once again. In Nationwide Insurance Co. v. Hoch, 36 Pa. D. & C.4th 256,
The Court finds the opinions of Judge Wettick considerably more persuasive than the “implication” of Fleming. These two opinions are the only state-court decisions of which this Court is aware that engaged in any meaningful analysis of the issue presently before the Court.
Moreover, the Court agrees with the general principles set forth in Judge Wet-tick’s decisions. As explained previously, the Court concurs with Judge Wettick’s opinion that Fleming did not address the question presently before the Court and is unpersuasive on this issue. See Hoch, 36 Pa. D. & C.4th at 264. Additionally, the Court agrees with Judge Wettick’s conclusion that policy provisions like the examination requirement “impose additional burdens on an insured” before the insured may recover benefits to which she may be statutorily entitled, and therefore are “inconsistent” , with the legislative scheme prescribed by the MVFRL. Id. at 261 (quoting Erie, 39 Pa. D. & C.3d at 36). Furthermore, the Court finds considerable merit .to Judge Wettick’s commitment to preserving the balance of the interests struck . by the legislature in. enacting § m&. See id.
5. Decisions from Other Jurisdictions That Have Discussed the Issue
Finally, in making its prediction the Court turns to decisions from other jurisdictions that'have persuasively discussed this issue. As noted previously, the Kentucky Court of Appeals has analyzed statutory language that is quite - similar to § 1796 iri ‘the context of whether an insurer can require an insured to submit to an IME without first satisfying the “good cause” standard if such a requirement was included in an insurance policy. See Miller v. U.S. Fid. & Guar. Co.,
Were we to conclude that [the insurer] was nevertheless entitled to the independent medical examination by virtue of its policy provision, we would, in effect, im-permissibly delegate (indeed, abdicate) to [the insurer] the legislature’s role in enacting protective legislation. In enacting- the MVRA, the legislature clearly struck a balance, taking into account the needs and expectations of both the insured and the obligor,... The statute clearly sets forth the standard by which an insured can be forced to undergo independent medical examination and creates a statutory presumption of reasonableness of medical bills, as submitted. Public policy underlying that statutedictates that [the insurer] may not enforce an overreaching policy provision requiring an independent medical examination “when and as often as the company may reasonably require” in clear derogation of the statutory language.
Miller,
This analogous case law out of Kentucky fortifies the Court’s prediction that the Pennsylvania Supreme Court would find Allstate’s examination requirement in conflict with the MVFRL and thus void as against public policy.
6. The Court Predicts That the Pennsylvania Supreme Court Would Find Allstate’s Examination Requirement Void as Against Public Policy
In summation, the Court predicts that the Pennsylvania Supreme Court would find Allstate’s examination requirement, as alleged, in conflict with § 1796 of the MVFRL and thus void as against public policy. The examination requirement conflicts with the plain language of the statute and is inconsistent with the twin purposes of § 1796. Moreover, the Court is not persuaded by the “implication” of the Superi- or Court’s decision in Fleming and, consequently, departs from the conclusion reached by the district court in Williams. Instead, the Court finds it appropriate to rely on the opinion of the district court in Scott, as well as the opinions of Judge Wettick in Erie and Hoch. Additionally, the Court finds the analogous case law from the Commonwealth of Kentucky addressing a similar statutory provision under similar factual circumstances compelling.
Accordingly, in light of the above discussion, Allstate’s Motion to Dismiss will be denied with respect to Counts I and II of Sayles’s Complaint.
B. Count III: The Pennsylvania Unfair Trade Practices and Consumer Protection Law
Count III of Sayles’s Complaint alleges that Allstate violated the UTPCPL. See 73 Pa. Cons. Stat. Ann. § 201-1, et seq. Specifically, Sayles contends that Allstate “willfully and intentionally falsely stated to Plaintiff and class members” that the parties “were required to submit to [a] physical exam at the unilateral direction of Allstate, even without a showing of good cause to a court and without a court order directing [them] to submit to insurance physical exams.” (Compl. ¶ 73.) Sayles fur
Under Pennsylvania law, the economic loss doctrine “prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract.” Werwinski v. Ford Motor Co.,
Here, Sayles’s UTPCPL claim is clearly interwoven with her insurance contract. Her claim is premised entirely on allegations that Allstate told its insureds that they were required to submit to an IME per the terms of their insurance policy, and that Allstate would not pay medical benefits until the IME was completed. (Compl. ¶¶ 73-74.) This “communication from her insurance company was related to, and indeed was centered on, the substance of the contract of insurance Plaintiff maintained with Defendant,” and therefore is barred by the economic loss doctrine. Ridolfi,
Accordingly, Allstate’s Motion to Dismiss will be granted with respect to Count III of Sayles’s Complaint.
C. Count IV: Pennsylvania’s Insurance Bad Faith Act
In Count IV, Sayles alleges a bad faith claim pursuant to Pennsylvania’s insurance bad faith statute. See 42 Pa. Cons. Stat. Ann. § 8371. Sayles alleges that Allstate acted in bad faith when it falsely stated to its insureds that they were required to undergo IMEs at Allstate’s unilateral direction, and that Allstate could refuse to pay medical benefits until the exams were completed despite the fact that Allstate did not obtain a court order predicated upon “good cause” compelling such exams.
In order to state a claim of bad. faith against an insurer, the insured must allege: “(1) that the insurer did not have a reasonable basis for denying benefits under the policy; and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis in denying the claim.” Nw. Mut. Life Ins. Co. v. Babayan,
' Here, even when viewing all well-pleaded allegations as true, the Complaint fails to state a claim for bad faith. Allstate clearly had a -reasonable basis for denying Sayles’s medical benefits under the Policy. As the Court noted above, the Pennsylvania Supreme Court has not determined whether insurers can include mandatory IME provisions in their insurance policies without violating the MVFRL. Additionally, the district court in Williams reached a different conclusion than the Court does today, in. reliance on the Pennsylvania Superior Court’s decision in Fleming. It was reasonable for Allstate to rely on the holding in Williams, which supported Allstate’s decision to deny Sayles’s medical benefits based on her failure to submit to an IME per the terms of the Policy. Because Sayles’s bad faith claim is predicated entirely on the examination requirement, the Court finds that the Complaint alleges, only that Allstate made a “reasonable legal conclusion based on an area of the law that is uncertain or in flux.” Loos,
D. Count V: Breach of the Duty of Good Faith and Fair Dealing
Sayles next contends that Allstate breached its duty of good faith and fair dealing in requiring its insureds to submit to IMEs at its unilateral direction and representing that it could refuse to pay medical benefits until the IME was completed. (Compl, ¶ 99;) Allstate contends that Sayles’s claim fails as a matter of law because the implied covenant alleged conflicts with an express term of the Policy. (Doc. 11, at 19.) The Court agrees and will dismiss Count V with prejudice.
“The covenant of good faith and fair dealing %volve[s] an implied duty to bring about a condition or to exercise discretion in a reasonable way.’” USX Corp. v. Prime Leasing Inc.,
Sayles’s claim against Allstate for a breach of the duty of good faith and fair dealing relates entirely to the examination requirement in the Policy — an express term of the contract. Thus, Sayles cannot bring a claim for a breach of an implied covenant because an express term in the contract relates to this particular issue. Moreover, the allegations in Count V are essentially identical to those in Counts I and II, which seek a declaratory judgment and- allege a violation of 75 Pa. Cons. Stat. Ann. '§ 1796. Thus, there is no reason for the Court to “imply” a separate cause of action for breach of the duty of good faith and fair dealing. See Northview Motors, Inc.,
E. Count YI: Unjust Enrichment
Sayles’s Complaint also includes a claim for unjust enrichment based on the alleged savings Allstate secured in refusing to pay the medical benefits of its insureds based on the examination requirement. (Compl. ¶¶ 106, 107.) Allstate contends that Sayles cannot maintain a claim for unjust enrichment because' she has pled the existence of an express contract, which precludes a claim for unjust enrichment. ,(Doc. 11, at 19-20.) The Court finds that the Complaint fails to state a claim for unjust enrichment and will dismiss Count VI with prejudice.
In order to state a claim for unjust enrichment under Pennsylvania law, the plaintiff must allege that (1) she conferred a benefit on the defendant, (2) the defendant appreciated the benefit, and (3) it would be inequitable to allow the defendant to keep the benefit without paying for it. Curley v. Allstate Ins. Co.,
Sayles’s quasi-contractual claim fails, however, because the relationship between Sayles and Allstate is founded upon an express contract. “Pennsylvania law has long recognized that the doctrine of unjust enrichment is unavailable where, as here, ‘the relationship between parties is founded on a written agreement or express contract.’” Curley,
Here, although the Court has concluded that the examination requirement appears to be unenforceable as void as against public policy, the Complaint clearly states that Sayles and Allstate entered into an express contract for automobile insurance. (See, e.g., Compl. ¶¶ 1 (admitting that plaintiffs are “insureds covered by auto insurance policies issued by” Allstate “in accordance with Pennsylvania law”), 13 (admitting Plaintiff was an insured under Allstate’s insurance Policy at all relevant times), 43.) It is abundántly clear that the pertinent “relationship” between the parties is founded upon the Policy. As such, Pennsylvania’s “bright line rule” applies, and the quasi-contract theory of unjust enrichment is inapplicable. Skepton,
Because the relationship between the parties is founded on the Policy, Allstate’s Motion to Dismiss will be granted with respect to Count VI.
Lastly, Allstate moves to dismiss Sayles’s claims for intentional misrepresentation and medical benefits
The gist of the action doctrine forecloses a tort claim if: “(1) it arises solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in the contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.” Tennis v. Ford Motor Co.,
Applying the gist doctrine here with respect to the [misrepresentation] [c]laim, it is evident that the parties’ relationship and duties were framed by the insurance policy. [The insurer’s] alleged misrepresentations and subsequent failure to pay death benefits arose from the insurance contract between the parties and revolved around the provisions for payment, grace period, and lapse. Indeed, this case is ‘really about’ the policy provisions of the contract, and the claims and liability cannot be determined without looking to the terms of the contract. The alleged misrepresentations were directly related to the underlying contractual rights and obligations, and the District Court correctly concluded that the gist of the action sounded in contract and barred Smith’s [misrepresentation] claim.
Id. (internal citation omitted); see Yakubov v. GEICO Gen. Ins. Co., No. 11-3082,
Here, the Court finds it appropriate to apply the gist of the action doctrine to bar Sayles’s intentional misrepresenta
Accordingly, the Court will grant Allstate’s Motion with respect to Counts VII and VIIL
G. . Leave to Amend
The Third' Circuit has instructed that if a complaint is'vulnerable to á 12(b)(6)'dis-missal, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Phillips v. Cty. of Allegheny,
IV. Conclusion
For the above stated reasons, Defendant Allstate’s Motion to Dismiss (Doc. 10) will be granted in part and denied in part.
An appropriate order follows.
Notes
. Although not expressly alleged in the Complaint, when drawing all reasonable inferences in favor of the plaintiff, it is apparent that Sayles did not submit to the IME requested by Allstate. (See Compl. ¶¶ 41(f), 42-43, 57(f), 64-66; Doc, 11, at 1.)
. The Complaint includes three other variations on this class definition. (See Compl. ¶ 43.)
. Because the Court is only called upon to dispose of Allstate’s Motion to Dismiss, this opinion refrains from declaring the examination requirement void or otherwise finding in favor of the nonmoving party.
. Section 1921(b) provides:
When the words of statute are clear and free from ambiguity, the letter of it is not be disregarded under the pretext of pursuing its spirit.
. The showing of "good cause” under § 1796 requires the petitioner to állege reasons for an IME that "rise to a' level of specificity which will insure that a claimant will not be forced to submit to unnecessary examinations in bad faith.” State Farm Ins. Cos. v. Hunt,
. The MVFRL defines an "underinsured motor vehicle” as: "A motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa. Cons. Stat. Ann. § 1702. As explained by the Superior Court, the statutory language defines an underin-sured vehicle "as one for which the tortfea-sor’s liability limits are less than the victim’s losses and damages.” Allwein v. Donegal Mut.
. The "twin purposes” of § 1796 are to (1) protect, an.insured from "harassment, untoward intrusion and unwarranted examination”; and (2) ensure that an insured "could not ‘ignore reasonable limitations on treatment by continuing in treatment without validation or justification.' ” Williams v. Allstate Ins. Co.,
. The relevant statutory provision reads:
If the mental or physical condition of a person is material to a claim for past or future basic or added reparation benefits, the reparation obligor may petition the circuit court for an order directing the person to submit to a mental or physical examination by a physician. Upon notice to the person to be examined and all persons having an interest, the court may make the order for good cause shown. The order shall specify the time, place, manner, conditions, scope of the examination, and the physician by whom it is to be made.
Ky. Rev. Stat. Ann. § 304.39-270(1). Compare 75 Pa. Cons. Stat. Ann. § 1796(a).
. The Pennsylvania Supreme Court has subsequently described the MVFRL as a “comprehensive scheme for promoting financial responsibility in the motoring public....” Lewis v. Erie Ins. Exch.,
. As further explained by Judge Wettick, the MVFRL "specifies the benefits that must be provided and the benefits that must be made available; it requires various exclusions; and it provides for payment of benefits within 30 days after the insurance company receives reasonable proof of the amount of the benefits.” Erie, 39 Pa. D. & C.3d at 36 (internal citations omitted).
. As noted, Fleming expressly abstained from- analyzing- this issue. Moreover, aside from the opinions of Judge Wettick, the court is not aware of any other state trial court that has expressly addressed whether a policy pro- • vision like the examination requirement conflicts with the MVFRL. See, e.g., DiGiacinto v. Obelinas, 38 Pa. D. & C.5th 72,
. See Ky. Rev. Stat. Ann. § 304.39-270(1).
. As stated in Plaintiff's Complaint, ‘‘[t]he present matter arises under Pennsylvania Motor Vehicle Financial Responsibility Law 75 P.A.C.S.A. § 1796.” (Compl. ¶ 38.) Count II of the Complaint seeks damages exclusively for violations of § 1796. Defendant’s Motion to Dismiss Counts I and II is premised entirely on the argument that the examination requirement is enforceable notwithstanding § 1796, which the Court rejects. (Doc. 11, at 7-11.) Defendant has not challenged Plaintiff's ability to recover damages pursuant to a cause of action under § 1796. Cf., e.g., Richter v. Geico Indent. Co.,
. Subsequent to the Third Circuit’s decision in Werwinski, the Pennsylvania Superior Court held that UTPCPL claims are not subject to the economic loss doctrine because they are statutory and do not sound in negligence. Knight v. Springfield Hyundai,
. It is unclear upon what theory Plaintiff brings this claim. Based on the allegations raised in this Count, the Court assumes Plaintiff is attempting a claim that sounds in tort. (Compl. ¶¶ 124-127.)