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Maki v. Travelers Companies, Inc.

United States District Court, N.D. New York

May 28, 2015

FRANK MAKI, Plaintiff,


THOMAS J. McAVOY, Senior District Judge.

Plaintiff commenced the instant action, alleging that Defendants breached an insurance contract with him, engaged in fraud, and violated federal anti-trust laws. Presently before the Court are Defendants' motions to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See dkts. ## 24, 37.


Plaintiff commenced this action by filing a Complaint and a motion to proceed in forma pauperis on January 3, 2014. See dkts. ## 1-2. Magistrate Judge David E. Peebles gave the Complaint an initial review pursuant to 28 U.S.C. § 1915(a)(1). Magistrate Judge Peebles issued a Report and Recommendation on April 3, 2014 that recommended that the Court dismiss Plaintiff's Complaint for failure to state a claim but also recommended that Plaintiff be granted leave to file an Amended Complaint. See dkt. # 4. The Magistrate Judge recommended that Plaintiff's federal claims be dismissed, and that the Court decline to exercise jurisdiction over Plaintiff's supplemental state-law claims. Id . The Court adopted the Report-Recommendation, and Plaintiff filed an Amended Complaint on June 2, 2014. See dkt. # 7, 6. After Plaintiff served Defendants with the Amended Complaint, Defendants William Halpin, LoVullo Associates, Michelle Meschke, Northland Insurance Company, The Travelers Companies, Inc., and Dawn Varga filed a motion to dismiss. See dkt. # 24. Defendants Barbara Fowler, Molly Janitz, Mang Insurance Agency, Melissa Prisco and Stephanie Tweedie also filed a motion to dismiss. See dkt. #37.[1]

Plaintiff's Amended Complaint alleges that Defendants injured him by the way they handled insurance and insurance claims for his commercial motor vehicle. See dkt. # 6. Plaintiff alleges that at the end of July 2008 he spoke with Defendant Stephanie Tweedie, an insurance broker for Defendant Mang Insurance Agency, regarding commercial insurance coverage for his class 8 tractor. Amended Complaint ("Amended Complt.") at ¶ 18. On August 4, 2008, Tweedie described to Plaintiff the terms of a policy that would provide him with bobtail liability and collision insurance coverage for his tractor. Id. at ¶ 19. The collision coverage was $11, 000. Id . Tweedie and Plaintiff made an appointment for August 7, 2008 to meet, review paperwork, and make an initial payment for the insurance. Id. at ¶ 20.

Plaintiff arrived at the Mang Insurance Office in Walton, New York on August 7, 2008 for the meeting. Id. at ¶ 21. When he arrived he met Defendant Melissa Prisco at the receptionist's desk. Id. at ¶ 22. Though she did not identify herself, Tweedie soon appeared and shook Plaintiff's hand. Id. at ¶¶ 23-25. Tweedie and Plaintiff went into an adjacent office where Tweedie showed Plaintiff an insurance binder. Id. at ¶¶ 26-27. Plaintiff read and signed the binder and gave it back to Tweedie. Id . Id. at ¶ 28. He then wrote out a check for the entire annual premium and gave it to Tweedie. Id. at ¶ 29.

Frank required an insurance card because he needed to drive to Indiana to begin a new lease agreement with CRST Malone. Id. at ¶ 30. Tweedie informed Plaintiff that "some time" would have to pass before Plaintiff could obtain the full insurance contract. Id. at ¶ 31. She promised, however, that Plaintiff could stop in a few days and pick up a New York State Insurance Identification Card, which would provide proof of insurance. Id . Tweedie told Plaintiff he could pick up the card from Defendant Molly Janitz. Id. at ¶ 32. Plaintiff assumed that Prisco was Janitz. Id. at ¶ 33. Tweedie also told Plaintiff he would need a copy of the lease agreement, and Plaintiff promised to bring in a copy as soon as he returned form his CRST Malone orientation in Indiana. Id. at ¶¶ 34-35. Tweedie told Plaintiff that he could drop off a copy with Janitz in the Walton office at any time. Id. at ¶ 36. This statement reinforced Plaitniff's confusion that Prisco was actually Janitz. Id . On August 12, 2008 Frank received a phone call from someone at the Mang Agency informing him that his insurance card was ready for pick up. Id. at ¶ 37. Plaintiff returned to the agency and received the card from Prisco, who he still believed was Janitz. Id. at ¶¶ 38-39.

Plaintiff left for orientation in Indiana later that day. Id. at ¶ 40. Plaintiff completed his orientation on August 15, 2008. Id. at ¶ 41. He also received a completed lease agreement, a permanent plate for his truck and a copy of the registration. Id . Plaintiff began working for CRST Malone as an over-the-road driver. Id. at ¶ 41. On August 27, 2008, Plaintiff returned to Walton, New York for the first time since August 12. Id. at ¶ 42. He made copies of the entire lease agreement and registration and dropped them off with Prisco at the Mang office in Walton. Id. at ¶ 43. He received a phone message thanking him for dropping off the paperwork later that day. Id. at ¶ 44.

Plaintiff left home for over-the-road work again on September 2, 2008. Id. at ¶ 45. Without Plaintiff's knoweldge, on September 22, 2008, Mang received a copy of the lease agreement and registration form Paula Wells of CRST Malone. Id. at ¶ 46. Plaintiff alleges that Defendants Tweedie and Prisco then removed pages 5, 6 and 8 from the lease agreement and forwarded the remaining fourteen pages to Mang's office in Binghamton, New York. Id. at ¶ 47. The document was to be forwarded on to Defendants LoVullo, Northland and Travelers. Id.

Plaintiff next returned to Walton, New York on October 4, 2008. Id. at ¶ 48. Included in his mail was a letter from Defendant Janitz dated September 11, 2008. Id. at ¶ 49. The letter, written on Walton office stationary, requested a copy of the lease agreement and registration. Id. at ¶ 50. As he had already provided this information, Plaintiff was "confused" by this request. Id. at ¶ 51. A phone message from Defendant Mang Insurance Agency informed Plaintiff that three pages were missing from the lease agreement. Id. at ¶ 52. Without those pages, the insurance contract would be incomplete and would not be in force. Id . Plaintiff, though perplexed by this request, made copies of the missing pages. Id. at ¶ On October 6, 2008, Plaitniff went to the post office, made copies of those three pages, and took them to Defendant Mang's office in Walton. Id. at ¶ 53. He handed Defendant Prisco the copies. Id. at ¶ 54. Plaintiff asked her if those were the copies the insurer had requested, and Prisco informed him they were, and that "there shouldn't be any more problems with the insurance contract." Id. at ¶¶ 54-55.

Plaintiff left Walton for another over-the-road assignment on October 14, 2008. Id. at ¶ 56. When he returned home on November 28, 2008 he found no communication regarding the insurance contract and no refund of the premium. Id. at ¶ 57. Plaintiff hoped to take time off of work. Id. at ¶ 58. He was tired, and business conditions were "aggravating." Id . Profits were hard to come by in over-the-road work. Id . Moreover, the differential in his truck had to be replaced, which cost him $1, 957. Id . He was short on cash. Id . These tight circumstances meant that Plaintiff needed to get back on the road as soon as possible to "keep his business thriving." Id. at ¶ 58. Thus, even though he was "uncomfortable" about driving without a copy of the insurance contract, he concluded "based on his past experiences with insurance contracts issued by Northland Insurance for his truck" that he could get back to work and prevent any financial problems. Id.

Plaintiff again left home for over-the-road work on December 1, 2008. Id. at ¶ 59. On December 6, 2008, he had an accident that damaged his truck beyond repair near Knoxville, Tennessee. Id. at ¶ 60. Plaintiff was himself seriously injured. Id . Plaintiff alleges that the anxiety and emotional distress created by the insurance situation "contributed to the mistake that [he] made that led to the accident." Id. at ¶ 61. Plaintiff was taken to the University of Tennessee Memorial Hospital and treated for his injuries. Id. at ¶ 62. He was released from the hospital and returned home on December 11, 2008. Id. at ¶ 63.

On December 12, 2008, Frank called Defendant Tweedie to report the accident and make a claim for the proceeds of his collision policy. Id. at ¶ 64. At the time, the truck was held at a vehicle towing facility that charged $50.00 a day for storage. Id. at ¶ 65. Defendant Tweedie informed Plaintiff that the insurance policy had been cancelled. Id. at ¶ 66. Sometime after December 15, 2008, Plaintiff received a premium refund check from Defendant Mang Insurance Agency. Id. at ¶ 67. The check was dated December 15, 2008, after Plaintiff informed Tweedie of his accident Id. at ¶¶ 67-68.

Shortly after Plaintiff received the refund check, he filed a complaint with the New York State Insurance Department. Id. at ¶ 69. The Department began an investigation. Id . Plaintiff sent Mang's Delhi, New York office a letter on January 2, 2009. Id. at ¶ 70. Plaintiff asked why the Agency had issued a refund check and reminded Mang that a contract for insurance existed which required that an appraiser be sent to the Tennessee wrecking yard for an appraisal. ...

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