1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD E. LONG, : Case No. 4:16-cv-00138

:

Plaintiff, :

:

v. : (Judge Brann)

:

HARTFORD LIFE AND :

ACCIDENT INSURANCE CO. :

:

Defendant. :

MEMORANDUM

August 29, 2016

Pending before this Court is a motion to dismiss1pursuant to Federal Rule of 

Civil Procedure 12(b)(6), filed by Defendant Hartford Life and Accident Insurance 

Co. (hereinafter “Hartford”) against Plaintiff Ronald Long (hereinafter “Mr. 

Long”), wherein Hartford seeks to dismiss Mr. Long’s complaint in its entirety. 

This Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 

1332(a)(1) as the amount in controversy exceeds $75,000 and the parties are 

citizens of different states. The motion has been fully briefed and is ripe for 

disposition. For the reasons discussed, Hartford’s motion is granted in part and 

denied in part.

 

1 ECF No. 8.

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I. BACKGROUND

This matter arises from an insurance contract entered into by the parties. In 

2012, Mr. Long, who has type I diabetes, purchased Hartford’s Accidental Death 

and Dismemberment Policy (hereinafter “the Policy”) after viewing brochures in 

which Hartford promoted the fact that no medical questions or exams were 

required to obtain the coverage. Over the next year, Mr. Long honored his 

obligations under the contract and paid the premiums due under the Policy in a 

timely manner.

On February 9, 2013, Mr. Long slipped and fell on rocks near his home in 

Clinton County, Pennsylvania, injuring his left ankle and the lower portion of his 

left leg. After seeking medical attention several later, Mr. Long was advised that he 

was suffering from multiple infections and that amputation of his leg below the 

knee would be required to control an infection from spreading further into his 

body. On March 21, 2013, Mr. Long’s left foot and lower leg were amputated.

Mr. Long subsequently sought coverage from Hartford under the Policy, 

which offers coverage in the amount of $100,0002for the loss of one foot. Mr. 

Long was denied coverage and he brought the instant action.3In his complaint, Mr. 

 

2 Mr. Long alleges that the coverage was in the amount of $50,000. After review of the policy itself, however, it is 

clear that the policy was one with a principal sum of $200,000 and that the recovery of loss of “either hand or foot” 

was “50% of the Principal Sum.” ECF No. 7-1.

3 Mr. Long also brought an action against another insurance company, Stonebridge Life Insurance Co., based on the 

same incident. See Docket No. 4:16-cv-00139. The defendant in the Stonebridge action also brought a motion to 

dismiss based on the same arguments as the pending motion in the Hartford matter. Accordingly, the Memoranda 

Opinions and Orders that follow in each case mirror each other. 

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Long brings counts for breach of contract (Count I) and bad faith under 42 Pa.C.S. 

§ 8371 (Count II) (hereinafter referred to as the “§ 8371 bad faith claim”).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

by dispensing with needless discovery and factfinding.”4“Rule 12(b)(6) authorizes 

a court to dismiss a claim on the basis of a dispositive issue of law.”5This is true of 

any claim, “without regard to whether it is based on an outlandish legal theory or 

on a close but ultimately unavailing one.”6

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

motions.7In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

“signal[ing] to lower-court judges that the stricter approach some had been taking 

was appropriate under the Federal Rules.”8 More specifically, the Court in these 

 

4

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) (quoting Szabo v. 

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). Neitzke v. Williams, 490 U.S. 

319, 326–27 (1989).

5

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

6

 Neitzke, 490 U.S. at 327.

7

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313 (2012).

8

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

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two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.9

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’”10 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”11 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”12 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”13

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”14 No matter 

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent 

with’ a defendant’s liability, it ‘stops short of the line between possibility and 

 

9

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that Twombly retired the 

Conley no-set-of-facts test”).

10

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

11

 Iqbal, 556 U.S. at 678.

12

 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. Jan. 11, 2016) (Jordan, J.) (internal quotations and 

citations omitted).

13

 Twombly, 550 U.S. at 556.

14

 Iqbal, 556 U.S. at 679.

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plausibility of entitlement to relief.’”15

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”16 However, “the tenet that a court 

must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”17 “After Iqbal, it is clear that conclusory or ‘bare-bones’ 

allegations will no longer survive a motion to dismiss.”18 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”19

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a 

claim. Second, it should identify allegations that, because they are no 

more than conclusions, are not entitled to the assumption of truth. 

Finally, [w]hen there are well-pleaded factual allegations, [the] court 

should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.20

 

 

15

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

16

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

17

 Iqbal, 556 U.S. at 678 (internal citations omitted).

18

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

19

 Iqbal, 556 U.S. at 678.

20

 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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III. DISCUSSION

In its motion to dismiss, Hartford seeks to dismiss both counts of Mr. Long’s 

complaint for failure to meet pleading standards. It alternatively seeks to dismiss 

Count II to the extent that it is based on conduct preceding the execution of the 

Policy. Mr. Long, on the other hand, argues that he has pled sufficient facts to 

support his breach of contract claim and that he has also pled sufficient facts to 

support a § 8371 bad faith claim based on predatory marketing.

As this matter is before this Court based on diversity jurisdiction pursuant to 

28 U.S.C. § 1332(a)(1), the law of the Commonwealth of Pennsylvania applies.

21

A. Count I: Breach of Contract

Hartford argues that Mr. Long has failed to meet the pleading requirements 

because he has failed to identify any specific Policy provision that Hartford has 

breached. Mr. Long argues that he has pled sufficient facts to establish the claim. 

To state a claim for breach of contract in Pennsylvania, a plaintiff must

allege the following: 1) the existence of a contract, including its essential terms, 2) 

that the defendant breached the contract, and 3) that the plaintiff suffered damages 

as a result.22 The contract need not be filed with the complaint.23 In fact, “[w]hen a 

plaintiff pleads a contract according to its legal effect, the complaint does not need 

 

21 Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the Federal Constitution or by 

acts of Congress, the law to be applied in any case is the law of the state.”).

22Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003); see also Discover Bank v. Stucka, 33 A.3d 82, 86 

(Pa. Super Ct. 2011) (citing McShea v. City of Philadelphia, 995 A.2d 334, 340 (2010)).

23 AM Logistics Inc. v. Sorbee Intern., 2014 WL 99451 (E.D. Pa. January 9, 2014).

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to resort to a formulaic recitation of the elements of the alleged contract; rather, the 

complaint must allege facts sufficient to place the defendant on notice of the 

contract claim in such a way that the defendant can reasonably respond.”24

Mr. Long’s complaint makes clear that a contract existed between the two 

parties and that the contract was for an accidental death and dismemberment 

insurance policy. Mr. Long also pleads facts indicating that he suffered an accident 

and developed an infection, which required the amputation of his lower left leg. He 

goes on to plead that he was denied coverage after submitting a claim under the 

Policy.

While Mr. Long’s complaint is relatively sparse, Mr. Long also attached the 

five page Policy itself to the complaint.

25 The Policy states that if an “injury” 

results in one of the stated losses, including the loss of “[e]ither hand or foot,” the 

Policy will cover the loss at the sum stated.26 It goes on to define “injury” as: 

[B]odily injury resulting directly from accident and independently of 

all other causes which occurs while the Covered Person is covered 

under the Policy. Loss resulting from : a) sickness or disease, except a 

pus-forming infection which occurs through an accidental wound; or 

b) medical or surgical treatment of a sickness or disease; is not 

considered as resulting from injury.27

The Court agrees that Mr. Long has provided sufficient facts in his

complaint, particularly when considered in conjunction with the attached Policy at 

 

24 Id. citing Transport Int'l Pool, Inc. v. Ross Stores, Inc., 2009 WL 1033601 (E.D. Pa. April 15, 2009).

25 ECF No. 7-1.

26 Id. at 2.

27 Id. at 3.

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issue, to place Hartford on notice of the claim in such a way that it can reasonably 

respond. Whether Mr. Long’s loss was attributed to his accident or his type I 

diabetes is an issue to be considered in a motion for summary judgment, after 

discovery has occurred.

B. Section 8371 Bad Faith Claim

1. Mr. Long has pled sufficient facts to survive a motion to dismiss on his § 8371 

bad faith claim.

Hartford alleges that Mr. Long has failed to plead any bad faith conduct or 

any facts to support the conclusion that Hartford did not have a reasonable basis 

for denying benefits or that it knew or recklessly disregarded its lack of reasonable 

basis in denying the claim. 

Pennsylvania’s bad faith statute allows a plaintiff to recover interest, 

punitive damages, court costs and attorney fees if the insurer has acted in bad faith 

in handling the plaintiff’s claim.28 Bad faith includes “any frivolous or unfounded 

refusal to pay proceeds of a policy” and is “a breach of a known duty [of good faith 

and fair dealing] through some motive of self-interest or ill will; mere negligence 

or bad judgment is not bad faith.”29 To recover on a claim of bad faith, the plaintiff 

must demonstrate that: (1) the defendant did not have a reasonable basis for 

 

28 42 Pa.C.S.A. § 8371.

29 Keefe v. Prudential Prop. And Cas. Ins. Co., 203 F.3d 218 (3d Cir. 2000) (citing Terletsky v. Prudential Property 

and Casualty Insurance Co., 649 A.2d 680, 688 (1997)).

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denying benefits under the policy; and (2) the defendant knew or recklessly 

disregarded its lack of reasonable basis in denying the claim.30

In considering the first prong of this analysis, the “court should examine 

what factors the insurer considered in evaluating a claim. Bad faith claims are fact 

specific and depend on the conduct of the insurer vis à vis the insured.”31 Under the 

second prong of the analysis, mere negligence or bad judgment does not constitute 

bad faith.32 A showing of recklessness is sufficient, however, to prove bad faith 

under the statute.33

After disregarding the conclusory statements, Mr. Long pled the following 

facts to support his § 8371 bad faith claim: 1) Hartford failed to conduct a proper 

investigation of the claim as evidenced by the fact that Hartford failed to obtain 

Mr. Long’s podiatric and family physician records; 2) Hartford inaccurately denied

Mr. Long’s claim based upon his death and not the loss of his limb; 3) Hartford 

made a finding that Mr. Long suffered from Type II diabetes when he actually 

suffered from Type I diabetes; 4) Hartford made a finding that Mr. Long had 

previously had a toe amputated due to his diabetes, a fact that Mr. Long alleges is 

not correct; 5) Hartford relied only on medical records that supported Hartford’s 

 

30 Keefe, 203 F.3d at 225 (citing Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir. 1997)); see 

also Terletsky v. Prudential Property and Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1994).

31 Padilla, 31 F.Supp.3d at 675 (quoting Condio v. Erie Ins. Exchange, 899 A.2d 1136, 1143 (Pa. Super. Ct. 2006).

32 See Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 751 (3d Cir. 1994); see also Condio, 899 A.2d at 1143 

(citing Williams v. Nationwide Mutual Ins. Co., 750 A.2d 881, 887 (Pa. Super. Ct. 2000)).

33 Polselli, 23 F.3d at 751.

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decision to deny coverage and ignored medical records that did not support denial; 

6) and Hartford referred to Mr. Long as Robert Long instead of Ronald Long.34

In light of the foregoing, I conclude that Mr. Long has pled sufficient facts 

to support his § 8371 bad faith claim. Mr. Long’s complaint adequately states facts 

that suggest that Hartford’s decision to deny Mr. Long the benefits under the 

Policy was reached through an unreasonable or inadequate investigation and that 

raise an inference that Hartford may have acted with reckless disregard considering

its lack of reasonable basis in denying the claim.

2. Pennsylvania law does not provide for recovery on a § 8371 bad faith claim

when it is based on violations of the Pennsylvania Unfair Insurance Practices 

Act.

Hartford further argues that Mr. Long’s bad faith claim should be dismissed 

to the extent that it is based on conduct preceding the execution of the Policy, 

namely, that the claim cannot be based on Hartford’s marketing practices. Hartford 

contends that Pennsylvania law does not grant relief for a bad faith action against 

an insurer engaged in unfair or deceptive practices in soliciting the purchase of a 

policy. 

Mr. Long argues conversely that he has pled sufficient facts to assert a claim 

of bad faith based on violations of the Pennsylvania Unfair Insurance Practices Act 

(hereinafter “the UIPA”). He contends that Hartford’s marketing practices, through

 

34 ECF No. 1 at ¶ 25(f).

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which the Policy was marketed to targeted customers with pre-existing medical 

conditions, led him to the reasonable expectation that he would be covered for 

accidental death or dismemberment despite his pre-existing diabetes. He claims 

that this reasonable expectation continued after he purchased the policy and, 

therefore, Hartford’s marketing of the Policy to consumers with a pre-existing 

condition went beyond conduct preceding the execution of the Policy. 

Each party cites a case in support of its argument. Hartford cites Toy v. 

Metropolitan Life Insurance Company,

35 in which the court held that a plaintiff 

may not recover under § 8371 against an insurer who engages in unfair or 

deceptive practices in soliciting the purchase of an insurance policy.

36 Mr. Long

cites Hayes v. Harleysville Mutual Insurance Company,

37 for the contention that 

“an insurer may be liable for bad faith conduct if the insurer has violated the 

[UIPA].”38

The holding in Toy, however, is controlling in this case. Toy was decided by 

the Supreme Court of Pennsylvania, whereas Hayes was decided four years earlier 

 

35 928 A.2d 186 (Pa. 2007).

36 Id. at 200.

37 841 A.2d 121 (Pa. Super. Ct. 2003) (citing O’Donnell v. Allstate Insurance Company, 734 A.2d 901 (Pa. Super. 

Ct. 1999)).

38 Hayes, 841 A.2d at 125. Mr. Long also cites a long list of cases supporting Pennsylvania’s Doctrine of Reasonable 

Expectations, which states that an insurer may not use the explicit language of its insurance policy to defeat the 

reasonable expectations of an insured. See Tran v. Metropolitan Life Ins. Co., 408 F.3d 130, 139 (3d Cir. 2005). 

Only two of the cases cited by Mr. Long, however, deal with bad faith claims arising under § 8371. The two that do

contain a claim under § 8371 are distinguished from the case at bar. The first is, curiously, the Pennsylvania 

Superior Court’s decision in Toy, which was appealed and decided by the Supreme Court and discussed above. The 

second is Knouse v. General American Life Ins. Co., 391 F.3d 907 (8th Cir. 2004) (applying Pennsylvania law), a 

case in which the court did not reach the merits of the § 8371 claim, discussing instead only the statute of limitations 

of the claim. Therefore, if Mr. Long seeks to establish a claim under this doctrine, he must do so in a count separate 

from his § 8371 bad faith claim by amending his complaint, after seeking leave of Court. 

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by the Superior Court of Pennsylvania. Furthermore, in Toy, the Pennsylvania 

Supreme Court engaged in a thorough review of the legislative and common law 

history of § 8371 and that of other states with similar provisions. In doing so, it

explained:

Presently, Toy adopts the trial court's perspective, arguing that the 

Legislature did not articulate the reach of a bad faith claim under § 

8371, and intended the statute to remedy any act that is prohibited to 

insurers under Pennsylvania's common or statutory law. Thus, Toy 

argues, if an insured alleges that an insurer violated a provision of the 

UIPA, as she has, the insured necessarily states a bad faith claim 

under § 8371.

We disagree. In 1990, at the time that the General Assembly enacted § 

8371 to provide a remedy to an insured when his insurer “‘acted in 

bad faith toward [him],’the term ‘bad faith’ had acquired a ‘peculiar 

and appropriate meaning’ in this context.” When we incorporate that 

meaning into § 8371, as the Act instructs, and also consider that § 

8371 speaks to an action “arising under an insurance policy,” and 

grants an award based on the “amount of the claim from the date the 

claim was made by the insured,” we need go no further than the words 

of the statute to ascertain that the Legislature did not intend to provide 

Toy with a remedy under § 8371 for the deceptive or unfair practices 

in which she alleges Metropolitan engaged in soliciting her purchase 

of the Policy.39

Accordingly, Mr. Long’s § 8371 bad faith claim must be dismissed, with 

prejudice, to the extent that it rests on violations of the UIPA. 

 

39 Toy, 928 A.2d at 195-6 (internal citations omitted).

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IV. CONCLUSION

In accordance with the foregoing analysis, Hartford’s motion to dismiss40 is 

denied in part and granted in part. Mr. Long’s § 8371 bad faith claim is dismissed 

to the extent that it is based on a violation of the UIPA.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

40 ECF No. 8.

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