July 11th, 2022 by Rieders Travis in Insurance

Ford v. Progressive Specialty Ins. Co., 2022 U.S. Dist. LEXIS 36389 (E.D. Pa. March 2, 2022) (Slomsky, J.)  In this case, Plaintiff Michael Ford (“Plaintiff’) was driving his motorcycle and collided with an underinsured vehicle. He received the $15,000 in liability coverage from the insurance company insuring the underinsured vehicle. Plaintiff also had two of his own insurance policies: one at Progressive Preferred Insurance Company covering his motorcycle and another at a different insurance company, Defendant Progressive Specialty Insurance Company (“Defendant”). Two other vehicles were insured by Defendant. The company insuring the motorcycle paid the full amount of coverage, $25,000. However, Defendant declined to pay any underinsured benefits, claiming that Plaintiff waived inter-policy stacking under 75 Pa. C.S. § 1738(d) by signing the waiver. Thereafter, Plaintiff, on behalf of himself and putative class members, commenced this action, seeking a declaratory judgment in Count I and asserting a claim for breach of contract in Count II against Defendant for breaching the insurance policy by not paying the stacked coverage under its insurance policy. Given the Donovan holding, the parties agree in this case that the facts here are similar to those in Donovan and that Donovan would ordinarily apply and resolve liability coverage. Defendant contends, however, that the holding in Donovan is not retroactive because it creates a new rule of law and therefore the signed stacking waiver is enforceable. Plaintiff claims that Donovan applies retroactively. If Donovan is retroactive, Plaintiff has sufficiently alleged a valid claim for breach of contract at the motion to dismiss stage.  In the same Motion, Defendant submits that the request for a declaratory judgment in the Complaint is duplicative of the breach of contract claim and should be dismissed. Although the Court disagrees with Defendant on the retroactivity issue, it agrees with Defendant that the declaratory judgment action is duplicative of the breach of contract claim and should be dismissed. A nearly identical issue was addressed in Butta, 400 F.Supp.3d at 231. The plaintiff in Butta brought a breach of contract claim and sought a declaratory judgment, both of which were premised on the denial of underinsured motorist benefits because the insurance policy at issue was subject to a household vehicle exclusion. Id. at 228-229. The insurance company moved for summary judgment on the declaratory judgment claim, stating that it was duplicative of the breach of contract claim. Id. at 231. The court agreed:


Courts generally decline granting declaratory relief when the claim for declaratory judgment is entirely duplicative of another claim in the cause of action. Judges in our district decline to issue a declaratory judgment when the claim for breach of contract would necessarily involve adjudication of the issues implicated in the claim for declaratory relief.


Id. at 233.

This Court agrees with Butta and will dismiss the declaratory judgment action because it is duplicative of the breach of contract claim. If Plaintiff wishes to seek class certification, he may still may do so under the claim for breach of contract. He has sought class action status in the Complaint under Count II (“breach of contract”).


Ford v. Progressive Specialty Ins. Co., 2022 U.S. Dist. LEXIS 36389 (E.D. Pa. March 2, 2022) (Slomsky, J.)

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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