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Fabrizio v. Erie Insurance Co.

February 20, 2009

ANTHONG J. FABRIZIO, JR INDIVIDUALLY AND D/B/A BROOME AUTO SALES, PLAINTIFF,
v.
ERIE INSURANCE COMPANY AND ERIE INSURANCE COMPANY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff commenced the instant action against Defendants asserting claims of breach of contract, conversion, unjust enrichment, bad faith insurance practices, and breach of the covenant of good faith and fair dealing arising out of an insurance policy issued by Defendants to Plaintiff in connection with his auto sales business.

I. FACTS*fn1

The following facts are taken from the Complaint and the papers annexed thereto.

For purposes of Defendant's motion to dismiss now pending before the Court, these facts are assumed to be true.

Plaintiff Anthony J. Fabrizio, Jr. owns Broome Auto Sales in Binghamton, County of Broome, State of New York. Defendants issued to Plaintiff an insurance policy covering the vehicles on the premises at Broome Auto Sales. On June 27, 2006, while the policy was in effect, there was a flood in the area of Plaintiff's business. The flood waters caused physical damage to many of Plaintiff's automobiles in the amount of $96,825.00. The waters also damaged Plaintiff's office records. Plaintiff contends that he complied with all conditions specified in the insurance contract, including submitting a proof of claim and submitting to an examination under oath or, in the alternative, Defendants waived, or prevented Plaintiff from complying with, any such requirements.

Defendants sent investigators to Plaintiff's place of business. The investigators advised that Plaintiff should do the best he could in finding paperwork to substantiate the amount of the claimed damages. Plaintiff provided a list of damages to Defendants. Defendants then sought permission to take the vehicles from Plaintiff's lot. Defendants removed the vehicles to Adesa Impact in Schenectady, New York.*fn2 Defendants denied Plaintiff's claim.*fn3

Plaintiff then brought the instant action claiming that: (1) the refusal to pay under the terms of the policy constitutes a breach of contract; (2) Defendants' continued retention of the vehicles in Schenectady, New York and their ultimate sale caused additional damages to the vehicles, constituting a conversion; (3) Defendants' retention of policy premiums constitutes unjust enrichment; (4) Defendants acted arbitrarily and capriciously in failing to satisfy the terms of the policy, thereby constituting bad faith insurance practices; and (5) Defendants' actions constitute a breach of the covenant of good faith and fair dealing.

Defendants now move pursuant to Fed. R. Civ. P. 12 seeking judgment on the pleadings.

II. STANDARD OF REVIEW

"In deciding a Rule 12(c) motion, [the Court will] apply the same standard as that applicable to a motion under Rule 12(b)(6). . . ." Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006) (internal quotation marks omitted). The Court must determine whether the complaint has pled "enough facts to state a claim to relief that is plausible on its face." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). In making this determination, the Court will disregard the material outside the pleadings, see Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991), but may consider "documents attached to the complaint as an exhibit or incorporated in it by reference." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).*fn4

III. DISCUSSION

a. Breach of Contract

Defendants move to dismiss the breach of contract claim on the ground that Plaintiff failed to submit the requisite proof of loss and failed to appear for an examination under oath. Defendants contend that, by letter dated September 16, 2006, it wrote to Plaintiff seeking to conduct an examination under oath and requesting that Plaintiff complete a sworn statement of loss. Defendants state that Plaintiff failed to respond to this request, thereby permitting them to deny coverage. The ...


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