Bertucci v 21st Century Ins.

[*1] Bertucci v 21st Century Ins. 2016 NY Slip Op 50105(U) Decided on February 1, 2016 Supreme Court, Nassau County Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 1, 2016
Supreme Court, Nassau County

Michael Bertucci, Plaintiff, M

against

21st Century Insurance, Defendant.



602913/15



Riconda & Garnett, LLP Attorney for the Plaintiff753 West Merrick Road Valley Stream, New York 11580

Law Offices of Bryan M. RothenbergAttorney for the Defendant 90 Merrick Avenue, Suite 300 East Meadow, New York 11554

Danielle M. Medeiros, Esq. Assistant Law Clerk 100 Supreme Court Drive Mineola, New York 11501
Randy Sue Marber, J.

Upon the foregoing papers, the Defendant, 21st CENTURY INSURANCE's (hereafter "21st Century"), motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI's First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is determined [*2]as provided herein.

The Plaintiff, Michael Bertucci, brings this action seeking damages allegedly resulting from the denial of no-fault benefits by his insurer, the Defendant, 21st Century.

The Defendant issued an automobile insurance policy ("the Policy") to the Plaintiff at his Pennsylvania address located at 101 East Tamarack Court, East Stroudsburg, PA 18302. The Policy provides for the payment of medical bills for the insured.

On November 26, 2014, the Plaintiff was involved in an automobile accident on Deer Park Avenue, in the County of Suffolk, State of New York. As a result of his injuries from this accident, the Plaintiff sought treatment with medical providers in New York. In addition, the Plaintiff forwarded a timely application for no-fault benefits to 21st Century. The Defendant, however, refused to pay any of the Plaintiff's medical bills arguing that the Plaintiff's car was principally garaged in New York State rather than in Pennsylvania and thus the Plaintiff violated the conditions of the Policy. Ultimately, approximately seven months from the date of his accident, on June 25, 2015, 21st Century issued a denial of the Plaintiff's entire claim for no-fault benefits, including for the payment of his medical bills, claiming that the Policy conditions were violated.

This action was commenced seeking damages on the Plaintiff's First Cause of Action based upon a claim of negligence and a claim for breach of contract including a claim for punitive damages alleged in the Plaintiff's Second Cause of Action. The Plaintiff claims that his medical treatment has been delayed because of the Defendant's non-payment of his medical bills, which, in turn has resulted in the aggravation and exacerbation of his injuries. The Plaintiff submits that the Defendant's delay and failure to timely pay his no-fault benefits has resulted in the delay of his treatment which has complicated his recovery and is the basis of his claims in tort and for breach of contract and for punitive damages.

Specifically, in his First Cause of Action, the Plaintiff asserts that two of his healthcare providers refused to continue to provide services after learning from 21st Century that it would not pay for planned future treatments. In his Second Cause of Action, the Plaintiff alleges that the Defendant breached it contractual obligations under the Policy by failing to pay no-fault benefits required by the Policy and therefore he is entitled to, inter alia, an award of punitive damages.

In moving, post-answer, for an Order seeking to dismiss the negligence and punitive damages claims [FN1] , the Defendant argues that the Plaintiff fails to state a cause of action for either claim. Specifically, the Defendant argues that it is "under no legal duty to refrain from communicating with the Plaintiff's heath care providers regarding its intentions to not pay submitted bills" and that "any failure to pay health care providers is at most a simple breach of contract that is not actionable in tort" (See Affirmation In Support, ¶ 10). Thus, it argues, it is entitled to a dismissal of the Plaintiff's First Cause of Action. With respect to the claim for punitive damages in the Plaintiff's Second Cause of Action, the Defendant argues that the Plaintiff's allegations are insufficient to warrant an award of punitive damages as a matter of law.

On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the Court must accept as true, the facts "alleged in the complaint and submissions in opposition to the motion, and accord [*3]plaintiffs the benefit of every possible favorable inference," determining only "whether the facts as alleged fit within any cognizable legal theory" (Simkin v. Blank, 19 NY3d 46, 52 [2012]; Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Polonetsky v. Better Homes Depot, 97 NY2d 46, 54 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Indeed, the plaintiff has no obligation on a motion to dismiss to demonstrate evidentiary facts to support the allegations contained in the complaint. (Stuart Realty Co. v. Rye Country Store, 296 AD2d 455 [2d Dept. 2002]; Paulsen v. Paulsen, 148 AD2d 685, 686 [2d Dept. 1989])

However, conclusory averments of wrongdoing are insufficient to sustain a complaint. (DiMauro v. Metropolitan Suburban Bus Auth., 105 AD2d 236 [2d Dept. 1984]) Thus, bare legal conclusions and factual allegations "flatly contradicted by documentary evidence in the record are not presumed to be true, and [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action". (Deutsche Bank Natl. Trust Co. v. Sinclair, 68 AD3d 914, 915 [2d Dept. 2009] quoting Peter F. Gaito Architecture., LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept. 2007])

Here, the Plaintiff's attempt to assert a claim for negligence against the Defendant based upon its communications with his health care providers fails to withstand the Defendant's motion to dismiss. The law is settled. A claim for negligence requires the pleading of facts that impose a duty of care upon the defendant in favor of the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of plaintiff's injuries. (Pulka v. Edelman, 40 NY2d 781 [1976]; Akins v. Glens Falls School Dist., 53 NY2d 325, 333 [1981]) Absent a duty of care, there is no breach, and without breach there can be no liability. (Pulka v. Edelman, supra; Gordon v. Muchnick, 180 AD2d 715 [2d Dept. 1992]) Preliminarily, however, whether a duty of care is imposed upon the defendant in favor of the plaintiff under the circumstances alleged is an issue of law for the court to decide. (Church v. Callanan Indus., 99 NY2d 104 [2002])

Here, the Plaintiff has failed to specify or identify the duty that he claims the Defendant allegedly breached. This is fatal on a motion seeking to dismiss the negligence claim based on the failure to state a cause of action.

Indeed, even affording the Plaintiff a liberal construction of his claims, it is clear to this Court that insofar as the gravamen of the First Cause of Action is that health care providers refused to continue to provide service after learning from 21st Century that it would not pay for planned future treatments, the asserted duty, if any, lies in either the act of communication or in the content of the communication. As best determined from the papers submitted herein, including the Plaintiff's opposition papers, it is the Plaintiff's contention that his tort claim is based upon 21st Century's denial of his no-fault benefits claim without justification (i.e., the content of the Defendant's communication) (See Affirmation In Opposition, ¶¶ 16, 21). To that end, this Court finds that the decision of the insurance company to not pay for treatment does not establish a tort cause of action independent from the breach of contract claim. (Logan v. Empire Blue Cross & Blue Shield, 275 AD2d 187 [2d Dept. 2000]) As the Second Department held in Logan v. Empire Blue Cross & Blue Shield, supra:

[The insurer] d[oes] not owe the [individual insureds] a duty to perform its contractual obligations [*4]with reasonable care. The respective contracts of insurance between [the insurer] and the [individual insureds] d[oes] not create a relationship for which a duty is owed to the plaintiff separate from the contractual obligation' *** (Logan v. Empire Blue Cross & Blue Shield, supra at 192 [citations omitted]).

Thus, while the Plaintiff's attempt to enforce a claimed right to have the Defendant pay his medical bills may be valid under a contract theory, it does not form a basis for a negligence (tort) claim herein.

Moreover, even if this Court were to construe the Plaintiff's negligence claim as one based upon the Defendant having communicated with the Plaintiff's medical providers (regardless of the content of the communication), the act of communicating, also, can not form a basis for a negligence claim. Indeed, the Plaintiff has failed to identify any legal basis which proscribes the Defendant from communicating with a policyholder's health care providers regarding the status of its coverage investigation.

Therefore, the branch of the Defendant's motion seeking to dismiss the Plaintiff's First Cause of Action should be granted.

With regard to the branch of the Defendant's motion seeking to dismiss the claim for punitive damages contained in the Plaintiff's Second Cause of Action, initially, it is noted that no separate cause of action for punitive damages lies for pleading purposes. (Paisley v. Coin Device Corp., 5 AD3d 748 [2d Dept. 2004]; Crown Fire Supply Co. v. Cronin, 306 AD2d 430, 431 [2d Dept. 2003])

Moreover, in an action based on breach of contract, "punitive damages may be recoverable if necessary to vindicate a public right". (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 315 [1995]; citing Rocanova v. Equitable Life Assur. Socy., 83 NY2d 603, 613 [1994]) Punitive damages may not be used to remedy private wrongs. In addition, one of the necessary elements in such a case is that the "defendant's conduct must be actionable as an independent tort". (New York Univ. v. Continental Ins. Co., supra, at 316; Rocanova v. Equitable Life Assur. Socy., supra) A breach of contract can be an actionable independent tort when the nature of the contracting party's services is to protect people and property from physical harm. (New York Univ. v. Continental Ins. Co., supra at 317)

Here, in support of his claim for punitive damages, the Plaintiff asserts that 21st Century's actions were "wanton, willful, and in reckless disregard for the rights of plaintiff" (See Complaint, ¶ 61). Not only is this bare characterization without consequence and wholly deficient to withstand the Defendant's motion to dismiss (see generally, Barker v. Amorini, 121 AD3d 823, 824 [2d Dept. 2014]), by a simple reading, it is clear that none of the facts alleged establish a conduct on the part of the Defendant that is part of a pattern directed at the public generally. In addition, as noted above, because the Plaintiff has also failed to establish any independent basis for determining that the Defendant's conduct constitutes a tort independent of the insurance contract itself, the Plaintiff's demand for punitive damages requires dismissal. (New York Univ. v Continental Ins. Co., supra, at 320)

Similarly, that portion of the Plaintiff's claim, which is seeks punitive damages, as alleged in his Second Cause of Action, should be dismissed.

The parties' remaining contentions have been considered and do not warrant discussion.

Accordingly, it is hereby

ORDERED, that the Defendant, 21st CENTURY INSURANCE's motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI's First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is GRANTED.

This constitutes the Decision and Order of the Court.

DATED: Mineola, New York

February 1, 2016

________________________________

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:Despite the fact that this motion to dismiss, made pursuant to CPLR § 3211 (a) (7) is made shortly after serving of the Defendant's Answer and before any disclosure, this Court will nevertheless treat this application as a narrowly framed post-answer CPLR § 3211 (a) (7) motion.