Opinion
CIVIL ACTION NO. 03-4482
February 17, 2004
MEMORANDUM ORDER
Presently before the Court is Plaintiff Rasaan Bell's Motion for Leave to Amend Plaintiff's Complaint (Doc. No. 3). Plaintiff seeks to amend the Complaint to add a claim against Defendant Allstate Insurance Company based upon Allstate's liability for the negligence of its "exclusive agent." (Mot. for Leave to Amend Pl.'s Compl. Ex. C at 6-7.) Defendant objects, arguing that leave should not be granted because the amendment would be fufile. (Def.'s Mem. in Opp'n to Mot. to Amend Compl. at 2.) For the following reasons we will grant Plaintiff's motion.
Standard for Granting Leave to Amend
After a responsive pleading has been filed, a party may amend its pleading only "by leave of the court or by written consent of the adverse party; and leave shall be given when justice so requires." FED. R. CIV. P. 15(a). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiff wishes to amend the Complaint to include a tort claim based on the alleged negligence of Defendant's exclusive agent for failing to give Plaintiff a copy of the subject insurance policy and for failing to advise Plaintiff that by not residing in the property he forfeited coverage on the property. (Mot. for Leave to Amend Pl.'s Compl. Ex. C at 6-7.) Defendant argues that leave should not be granted because such an amendment would be fufile under the "gist of the action" doctrine. (Def.'s Mem. in Opp'n to Mot. to Amend Compl. at 2.) "`Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citing Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). "In assessing futility, the District Court applies the same standard of legal sufficiency as [it] applies under Rule 12(b)(6)."Id.
The gist of the action doctrine bars tort claims arising solely from a contract between the parties. Galdieri v. Monsanto Co., 245 F. Supp.2d 636, 650 (E.D. Pa. 2002). The doctrine is based on the notion that "the important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus."Bohler-Uddeholm Am., Inc. v. Ellwood Group. Inc., 247 F.3d 79, 103-04 (3d Cir. 2001) (quoting Redevelopment Auth. of Cambria County v. Int'l Ins. Co., 685 A.2d 581, 590 ( Pa. Super. 1996) (en banc)). Under the "gist of the action" test, "to be construed as a tort action, the [tortious] wrong ascribed to the defendant must be the gist of the action with the contract being collateral." Id. If the claim alleges a breach of duty arising from the agreement between the parties it is contractual in nature. If on the other hand the claim alleges a breach of duty of the type imposed on individuals generally as a matter of social policy the claim is essentially a tort claim.
The question before us now is whether Defendant had an independent duty to plaintiff that arose outside of the contractual agreement. In Pressley v. Travelers Prop. Cas. Corp., 817 A.2d 1131, 1138 ( Pa. Super. 2003) the court implicitly held that licensed insurance agents are "required to exercise the skill and knowledge normally possessed by members of that profession and his failure to do so rendered him liable for any loss of coverage." Courts in this district have also recognized that "[a]n insurance broker is under a duty to exercise the care that a reasonably prudent businessman in the brokerage field would exercise under similar circumstances and if the broker fails to exercise such care and if such care is the direct cause of loss to his customer, then he is liable for such loss . . ." Amendolia v. Rothman, No. Civ. A. 02-8065, 2003 WL 23162389, *5 (E.D. Pa. 2003) (quoting Industrial Valley Bank Trust Co. v. Dilks Agency, 751 F.2d 637, 640(3d Cir. 1985).
In the instant case, Plaintiff's amended complaint alleges that Defendant, through its exclusive agent, was negligent in failing to provide the coverage that Plaintiff expected and in failing to give the Plaintiff a copy of the policy which would have enabled him to discover Defendant's error. At this juncture it appears that the duty that Defendant allegedly breached did not arise from the contract between Plaintiff and Defendant, rather it is an independent duty imposed on agents of defendant outside of the contract itself. Accordingly, the amendment of Plaintiff's Complaint is not fufile under the "gist of the action" doctrine.
An appropriate Order follows.
ORDER
AND NOW, this ___ day of February, 2004, upon consideration of Plaintiff's Motion for Leave to Amend Plaintiff's Complaint (Doc. No. 3), and all document filed in support thereof, and in opposition thereto, it is ordered that the Motion is GRANTED.IT IS SO ORDERED.