Opinion
Civil Action 3:15-CV-329
06-20-2023
KERRY ODGERS, Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant.
Carlson Magistrate, Judge
ORDER
Robert D. Mariani, United States District Judge
AND NOW, THIS 20th DAY OF JUNE 2023, upon de novo review of Magistrate Judge Martin C. Carlson's Report and Recommendation ("R&R”) (Doc. 53), Defendant's objections thereto (Doc. 54), Plaintiffs response (Doc. 55), and all relevant documents, IT IS HEREBY ORDERED THAT:
1. Defendant's objections (Doc. 54) are OVERRULED in part and SUSTAINED in part.
a. Defendant's objection to the R&R's recommendation that summary judgment be denied as to Plaintiffs bad faith claim is overruled.
b. Defendant's objection to the R&R's recommendation that summary judgment be denied as to Plaintiffs negligence and negligerce per se claims (Doc. 54 at 2-6) is sustained based on the Court's conclusion that the gist of the action doctrine bars these claims. This Determination is
grounded in the Supreme Court of Pennsylvania's decision in Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014). Bruno noted that the general governing principle regarding the “gist of the action” question is “the nature of the duty alleged to have been breached, as established by the underlying averments supporting the claim in a plaintiffs complaint.” Id. at 68. It is the substance, not the label that matters. Id. Bruno further instructed:
If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract-i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract-then the claim is to be viewed as one for breach of contract.... If, however, the facts establish that the claim involves the defendant's violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort.
Id. The allegations contained in the negligence and negligence per so counts in Plaintiffs Complaint (Counts IV and V) relate to the duty to properly process and pay Plaintiffs claims for benefits. (See Compl. ¶¶ 185-197, Doc. 1-1 at 41-43.) Though Plaintiff was not a party to the contract, Defendant would not have been obligated to pay benefits to her “but for the existence of the contract.” Bruno, 106 A.3d at 68. Defendant's duty to Plaintiff did not “exist[ ] regardless of the contract.” Id. But for the contract of insurance between Defendant and the driver of the
vehicle which struck Plaintiff, Defendant would owe no duty to Plaintiff and Plaintiff would not be entitled to any claim for benefits. Therefore, the Court concludes that the gist of the action in this case is one based on contract rather than tort. Because the gist of this action sounds in contract under guiding Pennsylvania precedent, Plaintiffs claims for negligence and negligence per se, Defendant is properly granted summary judgment on these claims.
2. The R&R (Doc. 53) is ADOPTED as modified.
3. Defendant's Motion for Summary Judgment (Doc. 44) is GRANTED IN PART and DENIED IN PART:
a. The Motion is DENIED as to Plaintiffs bad faith claim;
b. The Motion is GRANTED in all other respects.
4. Trial in this matter shall be scheduled by separate Order.