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Cosby v. Safeco Insurance Co. of America

United States District Court, N.D. New York

October 28, 2014


PATRICIA A. COSBY, Pro Se Plaintiff, Bennington, Vermont,

MARSHALL T. POTASHNER, ESQ, JAFFE, ASHER LAW FIRM, New York, Attorney for Defendant.


RANDOLPH F. TREECE, Magistrate Judge.

On May 29, 2014, Safeco Insurance Company of America (hereinafter "Safeco") filed a Notice to remove this matter from the New York State Supreme Court, Rensselaer County to this District. Dkt. No. 1, Notice of Removal, dated May 29, 2014. Attached to the Notice is pro se Plaintiff Patricia Cosby's (hereinafter "Cosby") Complaint. Dkt. No. 1-1, Compl. On June 4, 2014, Safeco filed a Motion for a More Definite Statement, pursuant to FED. R. CIV. P. 12(e). Dkt. No. 5, Def.'s Mot., dated June 4, 2014. On July 8, 2014, Cosby filed a Response to Safeco's Motion, Dkt. No. 9, to which Safeco filed a Reply, Dkt. No. 10. On August 5, 2014, Cosby submitted a Supplemental Filing. Dkt. No. 12. Once the Motion was fully briefed, the Honorable Gary L. Sharpe, Chief United States District Judge, determined that a motion for a definite statement is non-dispositive and accordingly referred the Motion to this Court. Dkt. No. 13, Text Order, dated Oct. 15, 2014.

Cosby's Complaint approximates a paragraph, possibly two. Dkt. No. 1-1. Safeco contends that the Complaint is "unintelligible" and "impossible to determine on what basis or on what facts plaintiff claims any right of action against [it]." Dkt. No. 5-1, Marshall T. Potashner, Esq., Aff., dated June 4, 2014, at ¶ 4. Safeco cannot tell from the Complaint whether Cosby is pleading that it has breached a settlement or if she is attempting to compel it to enter into a settlement of a claim. Id. Though Cosby refers to this matter as a "misrepresentation" by Safeco, Safeco notes that there are no facts nor legal basis to support a cause of action sounding in either a fraud or misrepresentation. Id. at ¶¶ 4-6.

The Court concurs with Safeco's observations that Cosby's Complaint does not meet the requirements of Federal Rules of Civil Procedure 8 and 10 and, moreover, in its current state, is virtually incomprehensible to follow. As best that the Court can discern, Cosby is claiming to be a victim of Safeco's "unprofessional conduct, " and is seeking a "settlement of $7, 200, 000[.]" Dkt. No. 1-1 Compl. Without more, Safeco is unable to respond appropriately to the Complaint.

Federal Rule of Civil Procedure 12(e) states that
[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

Even extending special solicitude to this pro se Plaintiff as well as viewing her Complaint with exceptional liberality, her pleading is vague, ambiguous, and woefully deficient.

As suspected, Cosby's Response confirms that she is seeking to compel Safeco to engage in settlement regarding injuries sustained from a car accident. Dkt. No. 9, Pl.'s Resp. Accepting the Response as true, Cosby was injured on December 4, 2009 in a "high speed accident" caused by a "Drunken Driver." Id. at p. 1. Apparently, this errant driver's insurance company is Safeco who may have opened a claim file pertinent to this accident. Cosby seems confounded that Safeco would be asking her for medical and social security authorizations, when she surmises that Safeco already had obtained those records. In her view, additional requests for medical authorizations is "unprofessional" and deceitful. Id. [1]

Cosby's Complaint suffers from both substantive and procedural deficiencies. Accepting that Cosby is seeking to compel Safeco to settle with her, she may not have either a statutory or common law cause of action. The New York Court of Appeals, addressed the question whether a "stranger" to an insurance policy - an injured party - can bring an action against the tortfeasor's insurance company for a determination of coverage issues. The Court of Appeals answered in the negative concluding that,

[u]nder the common law, "an injured person possessed no cause of action against the insurer of the tort feasor" ( Jackson v Citizens Cas. Co., 277 N.Y. 385, 389 [1938]). When a plaintiff acquired a judgment against the insured and the insured failed to satisfy the judgment due to insolvency, the plaintiff could not sue the insurance company directly because there was no privity of contract between plaintiff and the insurance carrier ( Burke v London Guar. & Acc. Co., 47 Misc. 171 [Kings County 1905], affd 126 A.D. 933 [2d Dept 1908], affd 199 N.Y. 557 [1910]). A direct suit by an injured party against the tortfeasor's insurer was thus unknown to the common law ( Thrasher v United States Liab. Ins. Co., 19 N.Y.2d 159, 166 [1967]).

Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 353 (N.Y. Ct. App. 2004).

And this Court knows of no common law right to compel anyone to settle a matter with an aggrieved party. There is a very limited statutory exception to this common law rule. In a case where a judgment has been rendered against the tortfeasor-insured and it remains unsatisfied for more than thirty days, then an action may be maintained against the insurance company. N.Y. INS. ...

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