Weir v. Progressive Advanced Insurance Company

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON W. WEIR,
Plaintiff,
v.
PROGRESSIVE ADVANCED
INSURANCE COMPANY,
Defendant.
CIVIL ACTION NO. 3:25-CV-00654
(SAPORITO, J.)
MEMORANDUM
The plaintiff, Brandon Weir, commenced this action on March 14,
2025, in the Court of Common Pleas of Luzerne County, alleging claims
for breach of contract, statutory bad faith under Pa. Const. Stat. Ann. §
8371, fraud and misrepresentation, and unjust enrichment against the
Progressive 	Advanced 	Insurance 	Company 	(“Progressive”) 	for
Progressive’s 	alleged 	refusal 	to 	provide 	insurance 	coverage 	for 	the
physical loss and damage to the plaintiff ’s automobile. (Doc. 1-1). The
plaintiff also seeks a declaratory judgment and specific performance
concerning that coverage. (
Id.). On April 11, 2025, Progressive timely
removed the case to the United States District Court for the Middle
District of Pennsylvania alleging subject matter jurisdiction under 28
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U.S.C. § 1132 (diversity jurisdiction). (Doc. 1). Now before the Court is
Progressive’s partial motion to dismiss for failure to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion has
been briefed by the parties (Doc. 14; Doc. 15; Doc. 16) and the matter is
ripe for review.
I. 	Background
While offering few details in his complaint concerning the events
leading up to this action (Doc. 1-3), the plaintiff alleges that on March 15,
2023, his automobile suffered significant damages from an unidentified
event. The plaintiff avers that at the time of the event, he held an
automobile insurance policy from Progressive that provided coverage for
his claim.1 The plaintiff contends that he immediately reported and
provided a written notice of the damage and loss to Progressive, but after
undertaking an investigation into his claim, Progressive refused to pay
the plaintiff his alleged owed benefits under the policy. The plaintiff
alleges that he has paid all necessary premiums and otherwise has
satisfied all conditions required to recover benefits from the policy.
1 Neither party has provided a copy of the insurance policy to the
Court.
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II. 	Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a
defendant to move to dismiss “for failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Moreover, “a motion to
dismiss may be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most favorable to the
plaintiff, a court finds the plaintiff ’s claims lack facial plausibility.”
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Courts may
consider the facts alleged on the face of the complaint in addition to
“documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.”
Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). While it must accept all allegations
in the complaint as true, the Court does not have to accept “unsupported
conclusions and unwarranted inferences, or a legal conclusion couched as
a factual allegation.”
Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)
(quoting
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).
III. 	Discussion
Progressive has moved to dismiss the plaintiff ’s claims for statutory
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bad faith (Count II), fraud and misrepresentation (Count III), declaratory
judgment 	(Count 	IV), 	specific 	performance 	(Count 	V), 	and 	unjust
enrichment (Count VI).
A. Statutory Bad Faith
The plaintiff has alleged a statutory bad faith claim pursuant to 42
Pa. Const. Stat. Ann. § 8371 against Progressive. The statute provides
that:
In an action arising under an insurance policy, if the
court finds that the insurer has acted in bad faith
toward the insured, the court may take the following
actions:
(1) Award interest on the amount of the claim from
the date the claim was made by the insured in
an amount equal to the prime rate of interest
plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the
insurer.
42 Pa. Cons. Stat. Ann. § 8371. Under Pennsylvania law,
The term bad faith includes any frivolous or unfounded
refusal to pay proceeds of a policy. For purposes of an
action against an insurer for failure to pay a claim, such
conduct 	imports 	a 	dishonest 	purpose 	and 	means 	a
breach of a known duty (i.e., good faith and fair dealing)
through some motive of self-interest or ill will; mere
negligence or bad judgment is not bad faith. Therefore,
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in order to recover under a bad faith claim, a plaintiff
must 	show 	(1) 	that 	the 	defendant 	did 	not 	have 	a
reasonable basis for denying benefits under the policy;
and 	(2) 	that 	the 	defendant 	knew 	or 	recklessly
disregarded its lack of reasonable basis in denying the
claim.
Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 225 (3d Cir. 2000)
(citations and internal quotation marks omitted). “These two elements–
absence of a reasonable basis for denying a claim under the policy and
knowledge or reckless disregard of the lack of such reasonable basis–
must be proven by clear and convincing evidence.”
	Cozzone v. AXA
Equitable Life Ins. Soc. of the U.S., 858 F. Supp. 2d 452, 458 (M.D. Pa.
2012) (citing
Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233
3d Cir. 1997)).
In deciding whether an insurer had a reasonable basis for denying
benefits, a court must examine what factors the insurer considered in
evaluating the claim.
See Terletsky v. Prudential Prop. & Cas. Ins. Co.,
649 A.2d 680, 688–89 (Pa. Super. Ct. 1994). “Bad faith claims are fact
specific and depend on the conduct of the insurer vis à vis the insured.”
Condlio v. Erie Ins. Exch., 899 A.2d 1136, 1143 (Pa. Super. Ct. 2000)).
“[M]ere negligence is insufficient for a finding of bad faith under Section
8371….”
Rancosky v. Washington Nat’l Ins. Co., 170 A.3d 364, 374 (Pa.
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2017). Recklessness on the part of the insurer, however, can support a
finding of bad faith.
Id.
Progressive moves to dismiss the plaintiff ’s bad faith claim on the
basis that it fails to contain factual allegations sufficient to the claim
above a speculative level. Upon review of the plaintiff ’s complaint, even
viewing it in light most favorable to the plaintiff, we find that the
complaint has failed to allege sufficient allegations to make plausible
that Progressive is liable under Pennsylvania’s bad faith statute.
The plaintiff ’s complaint features approximately seven general
averments that the plaintiff argues constitutes bad faith. These include
the following:
25. 	Upon information and belief, the Defendant
possesses no evidence that the automobile damage
did not occur as reported by the Plaintiff.
26. 	Upon information and belief, the Defendant
posses no evidence that the damage did not occur
in such a way as is covered under the terms of the
insurance 	contract 	and/or 	all 	applicable
endorsements.
27. 	Upon information and belief, the Defendant
has 	no 	reasonable 	and 	sufficient 	basis 	for 	its
conclusion 	that 	the 	damage 	to 	the 	Plaintiff ’s
automobile 	is 	not 	a 	covered 	loss 	under 	the
insurance contract.
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28. 	The Defendant acted in bad faith toward the
Plaintiff when it denied the Plaintiff ’s claim.
29. 	Defendant’s 	conduct 	and 	actions 	in
employing, 	using 	and 	relying 	upon 	its
investigation 	and 	adjustment 	of 	the 	Plaintiff ’s
claim and determination of the amount of damages
and monetary amount of loss to the Plaintiff ’s
automobile, constitutes bad faith on the part of
Defendant toward its insured.
(Doc. 1-3, ¶¶ 25–29). Moreover, the plaintiff ’s complaint also features ten
direct allegations of conduct that the plaintiff alleges constitute bad faith
on part of Progressive. These include allegations that Progressive:
a. Failed 	to 	promptly 	and 	reasonably 	respond 	to
Plaintiff ’s demands for prompt payment of Plaintiff ’s
insurance claims after Defendant had been provided
with loss documentation that clearly established that
immediate payment of such insurance benefits was
justifiable and warranted;
b. Unreasonably and vexatiously delayed payment of
insurance benefits to the Plaintiff when it was clear
that 	immediate 	payment 	of 	the 	insurance 	policy
benefits was justified and warranted;
c. 	Failed 	to 	make 	a 	reasonable 	settlement 	offer 	or
payment to the Plaintiff, thereby compelling Plaintiff
to institute the instant action and incur additional
costs to recover those benefits rightly due to him;
d. Failed 	and/or 	refused 	to 	pay 	the 	full 	amount 	of
Plaintiff ’s 	insurance 	policy 	benefits 	and 	damages
without a reasonable foundation to do so;
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e. Forced Plaintiff to unnecessarily incur significant
debt 	by 	failing 	to 	promptly 	pay 	insurance 	policy
benefits that were rightly to him;
(
Id., ¶¶ 30(a)–(e). But these allegations are simply conclusory allegations
and legal conclusions devoid of any factual support.
See Morrow, 719 F.3d
at 165 (emphasizing that the Court does not have to accept “unsupported
conclusions and unwarranted inferences, or a legal conclusion couched as
a factual allegation.”). The plaintiff has not only failed to allege how
Progressive’s specific conduct or actions amounted to bad faith, but he
has also failed to identify a single action taken by Progressive in the
entirety of the complaint.
See Toner v. GEICO Ins. Co., 262 F. Supp. 3d
200, 208 (E.D. Pa. 2017) (“Bad faith claims are fact specific and turn on
the specific conduct of the insurer toward the insured.”);
Id. (holding that
allegations that “Defendant engaged ‘in dilatory and abusive claims
handling’ 	but 	providing 	no 	examples 	of 	how 	Defendant 	handled
Plaintiff ’s claim” are legal conclusions);
Condlio, 899 A.2d at 1143 (“Bad
faith claims are fact specific and depend on the conduct of the insurer vis
à vis the insured.”). Moreover, the plaintiff ’s brief in opposition features
this same weakness. We cannot locate a single action undertaken by
Progressive in the brief ’s twenty-five pages of analysis.
See (Doc. 14).
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We find that the plaintiff ’s complaint is made up of boilerplate and
generic allegations that courts in this District have routinely dismissed
due to insufficient factual support that rise to level of a reasonable
inference necessary to survive a motion to dismiss.
See, e.g., Marks v.
State Farm Fire & Cas. Co., 2021 WL 3022637 (M.D. Pa. July 16, 2021);
Debree v. Am. States Ins. Co., 2021 WL 1227929 (M.D. Pa. Mar. 1, 2021);
Wyoming Valley Fraternal Order of Police v. Selective Ins. Co., 2019 WL
626460 (M.D. Pa. Feb. 14, 2019);
Moran v. United Serv. Auto. Ass’n, 2019
WL 626440 (M.D. Pa. Feb. 14, 2019);
Winslow v. Progressive Specialty
Ins. Co., 2018 WL 6527323 (M.D. Pa. Dec. 12, 2018);
Meyers v. Protective
Ins. Co., 2017 WL 386644 (M.D. Pa. 2017).2 Indeed, the court in
Winslow
found that the
identical language used by the plaintiff in his complaint
was conclusory, explaining that “[allegations that Insurer] failed ‘to
properly investigate and evaluate Plaintiff ’s … claim’ and that ‘defendant
knew or recklessly disregarded the fact that it had no reasonable basis
for its above conduct’ are conclusory statements and recitations of the
elements of the claim that need not be accepted as true.”
Winslow, 2018
2 Progressive has also directed the Court to twenty-four additional
cases in the Eastern and Western District Courts of Pennsylvania with
similar holdings. (Doc. 4, at 11–12).
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WL 6527323, at *4 (quoting
Rickell v. USAA Casualty Insurance Co., Civ.
A. No. 1:18-CV-1279, 2018 WL 5809865 at *3 (M.D. Pa. Nov. 6, 2018);
See
also Smith v. State Farm Mut. Auto. Ins. Co., 506 F. App’x 133, 136 (3d
Cir. 2012) (holding that allegations that the defendant insurer had
“engaged in unfair settlement negotiations,” “mispresented facts” about
the plaintiff ’s insurance policy, and “failed to properly investigate” the
plaintiff ’s 	underinsured 	motorist 	claim 	were 	legal 	conclusions).
Therefore, Progressive’s motion to dismiss will be granted as to this
claim. The plaintiff, however, will be granted leave to amend.
B. Fraud and Misrepresentation
The plaintiff has alleged a claim of fraud and misrepresentation
against Progressive. To plead a
prima facie case of fraud, a plaintiff must
show: “(1) a misrepresentation of material fact, (2) scienter, (3) intention
by the maker of the misrepresentation to induce the recipient to act, (4)
justifiable reliance by the recipient upon the misrepresentation, and (5)
damage to the recipient as a proximate result.”
Quinn Constr., Inc. v.
Skanska USA Bldg., Inc., 730 F. Supp. 2d 401, 415 (E.D. Pa. 2010)
(quoting
Kuehner v. Parsons, 107 Pa. Commw. 61, 64, 527 A.3d 627, 629
(1987)). Moreover, the Federal Rules of Civil Procedure require that
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allegations of fraud be pled with particularity.
See Fed. R. Civ. Pro 9(b).
“Rule 9(b) may be satisfied by describing the circumstances of the alleged
fraud with precise allegations of date, time, or place, or by using some
means of injecting precision and some measure of substantiation into
allegations of fraud.”
Ohama v. Markowitz, 434 F. Supp. 3d 303, 310 (E.D.
Pa. 2020 (citing
	Bd. of Trs. of Teamsters Loc. 863 Pension Fund v.
Foodtown, Inc., 296 F.3d 164, 173 n. 10 (3d Cir. 2002)). Progressive moves
to dismiss the plaintiff ’s claim on the basis that the plaintiff has failed to
plead fraud with the requisite specificity needed for that claim and the
plaintiff has failed to establish that he justifiably relied upon any of
Progressive’s fraudulent conduct..
The plaintiff has alleged that:
33. 	At 	all 	times 	relevant, 	Defendant 	has
marketed itself as a company which its insured
could rely on for prompt and fair evaluation and
prompt payment of claims.
34. 	Defendant represents the above image to its
insureds, and represented that image to Plaintiff
in order to induce the Plaintiff, Brandon W. Weir,
to purchase insurance with Defendant.
35. 	The plaintiff did, in fact, rely upon and was
induced 	by 	aforesaid 	representations 	made 	by
Defendant 	and 	made 	its 	decision 	to 	purchase
insurance from Defendant on the basis of that
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reliance and inducement.
36. 	When 	Defendant 	made 	the 	above
representations 	to 	the 	Plaintiff, 	those
representations were false.
(Doc. 1-3, ¶¶ 33–36). But similar to the plaintiff ’s statutory bad faith
claim, the 	plaintiff ’s claim of fraud and misrepresentation 	features
general boilerplate language without any factual support. The plaintiff
has failed to make clear exactly what was misrepresented to him by
Progressive 	or 	how 	he 	justifiably 	relied 	on 	that 	misrepresentation.
Indeed, when faced with
	identical allegations concerning a claim for
fraud and misrepresentation, the court in
Winslow held:
[Plaintiff] 	must 	plead 	fraud 	with 	particularity. 	He
certainly has not done so here nor has he satisfied
general federal pleading requirements discussed [prior].
The statements regarding how Progressive marketed
itself are vague and conclusory as are the statements
about 	Plaintiff ’s 	reliance 	on 	the 	marketing, 	his
inducement to purchase insurance from Progressive,
and the falsity of representations. Such statements do
not satisfy the relevant pleading standard. [Plaintiff ’s]
incorporation of certain elements of the claims at issue
in 	his 	conclusory 	assertions 	are 	unavailing 	in 	that
recitation of the elements of a claim are not entitled to
the assumption of truth for pleading purposes.
Winslow, 2018 WL 6527323, at *6 (internal citations omitted). We find
that the court’s analysis in
	Winslow equally applies to this action.
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Therefore, 	Progressive’s 	motion 	to 	dismiss 	as 	to 	this 	claim 	will 	be
granted.3 The plaintiff, however, will be granted leave to amend.
C. Declaratory Judgment
The 	plaintiff 	seeks 	a 	declaratory 	judgment, 	requesting 	a
determination of his “rights, obligations, and coverages under the subject
policy.” 	(Doc. 	1-3, 	¶ 	39). 	He 	further 	seeks 	“a 	declaration 	that 	the
insurance policy provides full insurance coverage for all damages to the
insured’s property, and loss of use.” (
Id., ¶ 40). Progressive moves to
dismiss the plaintiff ’s claim for declaratory judgment on the basis that it
is unnecessarily duplicative of the plaintiff ’s breach of contract claim.
The federal Declaratory Judgment Act, 28 U.S.C. § 2201, provides
that “[i]n a case of actual controversy within its jurisdiction … any court
of the United States … may declare the rights and other legal relations
of any interested party seeking such declaration, whether further relief
is or could be sought.” 28 U.S.C. § 2201(a). “District courts possess
discretion in determining whether and when to entertain an action under
the Declaratory Judgment Act, even when the suit otherwise satisfies
3 Progressive has also argued that the plaintiff ’s claim is barred by
the gist of the action doctrine. We need not analyze this argument,
however, due to our dismissal of the plaintiff ’s claim.
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subject matter jurisdictional prerequisites.”
Wilton v. Seven Falls Co.,
515 U.S. 277, 282 (1995). Moreover, the Act is “an enabling Act, which
confers a discretion on the courts rather than an absolute right upon the
litigant.”
Id. at 287 (internal quotations and citations omitted).
However, courts “generally decline granting declaratory relief when
the claim for declaratory judgment is entirely duplicative of another
claim in the cause of action.”
Butta v. GEICO Ca. Co., 400 F. Supp. 3d
225, 233 (E.D. Pa. 2019). These include duplicative breach of contract
claims.
See Winslow, 2018 WL 6527323 at * 7 (“[D]istrict courts have
dismissed declaratory judgment claims at the motion to dismiss stage
when they duplicate breach of contract claims within the same action.”);
Brugler v. Unum Group and Provident Life and Accident Ins. Co., Civ. A.
No. 4:15-CV-1031, 2018 WL 5734680 at *2 n.12 (M.D. Pa. Nov. 2, 2018);
Morris v. American Nat. Ins. Corp., Civ. A. No. 4:13-CV-2236, 2015 WL
4092393, at *8 n.7 (M.D. Pa. July 7, 2015);
In re Lincoln Nat’l COI Litig.,
269 F. Supp. 3d 622 (E.D. Pa. 2017);
Landau v. Viridian Energy PA LLC,
223 F. Supp. 3d 401, 421–22 (E.D. Pa. 2016). Here, the plaintiff ’s breach
of contract claim and his declaratory judgment claim are duplicative;
both claims are premised on the plaintiff ’s assertions that he is owed
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insurance benefits and coverage for the damage to his vehicle. Therefore,
the plaintiff ’s claim for a declaratory judgment will be dismissed with
prejudice, as providing leave to amend this claim would prove futile.
D. Specific Performance
The plaintiff seeks specific performance of the insurance contract
between himself and Progressive on the basis that he “performed his end
of the bargain.” (Doc. 1-3, ¶ 43). Specifically, it appears that the plaintiff
only requests the proceeds that he believes he is owed under the policy.
Progressive has moved to dismiss the plaintiff ’s claim on the basis that
specific performance does not apply to claims for monetary damage.
A request for specific performance is an appeal to the
court’s equitable powers. Specific performance generally
is described as the surrender of a thing in itself, because
that thing is unique and thus incapable–by its nature–
of duplication. A decree of specific performance is not a
matter of right, but of grace. Such a decree will be
granted only if a plaintiff clearly is entitled to such
relief, there is no adequate remedy at law, and the trial
court believes that justice requires such a decree.
Oliver v. Ball, 136 A.3d 162, 166 (Pa. Super. Ct. 2016) (internal quotations
and citations omitted). Here, the plaintiff has failed to explain why he
has no adequate remedy at law. Indeed, courts have dismissed claims for
specific performance where the plaintiff also seeks monetary damages for
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breach of contract because such damages constitute an adequate remedy
at law.
See O’Shea v. Mut. Life Ins. Co. of New York, 2002 WL 32348944,
at *2 (E.D. Pa. Jan. 22, 2002) (“As an action for breach of contract
provides an adequate legal remedy to [Plaintiff] in the instant case, she
may not pursue her claim for specific performance.”);
Winslow, 2018 WL
6527323 at *8 (dismissing the plaintiff ’s specific performance claim in
identical circumstances where the plaintiff sought money damages under
an insurance policy and asserting a breach of contract claim). Therefore,
the plaintiff ’s claim for specific performance will be dismissed with
prejudice, as providing leave to amend this claim would prove futile.
E. Unjust Enrichment
The 	plaintiff 	brings 	an 	unjust 	enrichment 	claim 	against
Progressive for Progressive’s alleged failure to “pay the proceeds owed to
the Plaintiff for the insured damage to his insured property.” (Doc. 1-3, ¶
45). But as Progressive points out, it is well established that the doctrine
of unjust enrichment is inapplicable when the relationship between the
parties is founded on a written agreement or express contract.
See Third
Nat’l Bank & Trust Co. of Scranton v. Lehigh Valley Coal Co., 44 A.2d
571, 	574 	(Pa. 	1945) 	(“[U]njust 	enrichment 	… 	[is] 	a 	principle 	of
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quasicontract [and] is not applicable to agreements deliberately entered
into 	by 	parties.”);
	see 	Winslow, 	2018 	WL 	6527323 	at* 	8 	(“Under
Pennsylvania law, no basis exists for an action of unjust enrichment when
the plaintiff has a direct contractual relationship with the defendant
insurance company”) (citing
Benefit Trust Life Ins. Co. v. Union Nat.
Bank of Pittsburgh, 776 F.2d 1174, 1177 (3d Cir. 1985)). Therefore, we
will dismiss the plaintiff ’s unjust enrichment claim with prejudice, as
providing leave to amend this claim would prove futile.
F. Attorney Fees
Progressive moves to strike the plaintiff ’s request for attorney fees
in his breach of contract claim. Progressive argues that attorney fees are
not 	available 	for 	breach 	of 	contract 	absent 	express 	statutory
authorization, clear agreement between the parties, or a clear exception.
(Doc. 4, at 22) (citing
Bayne v. Smith, 965, A.2d 265, 267 (Pa. Super. Ct.
2009)). The plaintiff has failed to address this argument in his brief in
opposition and therefore, the plaintiff “shall be deemed not to oppose such
motion.” M.D. Pa. L.R. 7.6. Therefore, the plaintiff ’s request for attorney
fees is stricken from his breach of contract claim.
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IV. 	Conclusion
For the foregoing reasons, Progressive’s partial motion to dismiss
will be granted in its entirety. The plaintiff ’s request for attorney fees in
his breach of contract claim (Count I) will be stricken. The plaintiff ’s
statutory bad faith claim (Count II) and his claim for misrepresentation
and fraud (Count III) will be dismissed without prejudice. The plaintiff ’s
request for declaratory judgment (Count IV), his request for specific
performance (Count V), and his claim for unjust enrichment (Count VI)
will be dismissed with prejudice.4
4 We must note that plaintiff ’s counsel filed a nearly identical
complaint in this action as he did in a separate case,
Brandon W. Weir v.
Progressive 	Advanced 	Insurance 	Company, 	No. 	3:25-CV-1504-RDM,
involving the same parties and the same general claims, though based on
separate losses.
See (Doc. 1-2), No. 3:25-CV-1504. Moreover, plaintiff ’s
counsel filed the same identical brief in opposition to Progressive’s motion
to dismiss in that matter as he did here, even though the cases seek
different damages for two different automobile accidents.
Compare (Doc.
14)
with (Doc. 16), No. 3:25-CV-1504. While counsel’s decision to file
identical briefs in two separate cases does not factor into our analysis
concerning this memorandum, we shall presume that it was merely the
inadvertent result of the pendency of two cases involving the same
plaintiff 	and 	the 	same 	insurance 	company 	rather 	than 	counsel’s
conscious decision.
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An appropriate order follows.
Dated: January 23, 2026
	s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States District Judge
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