ALLEGRINO v. CONWAY E S, INC. (W.D.Pa. 10-6-2010)

z v. Rockefeller Co., 258 F.3d 62, 82 n. 4 (2d. Cir. 2001) (quoting Harbulak v. Cnty. of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)), accord, e.g., Glatzer v. Barone, 614 F.Supp.2d 450, 451 n. 1 (S.D.N.Y. 2009); see also Taylor v. Alvarez, Civ. A. No. 07-23003, 2008 U.S. Dist. LEXIS 108847, at *1 n. 2 (S.D. Fla. Apr. 21, 2008).

B. Consideration of Matters Outside the Pleadings

At the motion to dismiss stage, a court may generally only consider documents attached to a complaint without converting the motion into a motion for summary judgment. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). But, in evaluating a Rule 12(b)(6) motion, a court "may look beyond the complaint to matters of public record, including court files and records . . . and documents referenced in the complaint or essential to a plaintiff's claim which are attached to either the [c]omplaint or the defendant's motion." Spence v. Brownsville Area Sch. Dist., Civ. A. No. 08-0626, 2008 U.S. Dist. LEXIS 55026, at *7, 2008 WL 2779079 (W.D. Pa. July 15, 2008) (citing Pension Benefit, 998 F.2d at 1196)).

With his Response to Defendants' motion, Plaintiff submitted his own affidavit. (Docket No. 209). Defendants have objected to the Court's consideration of this affidavit in adjudicating the present motions. (Docket No. 214). In resolving a Rule 12(b)(6) motion, this Court is not permitted to consider an affidavit of one of the parties without converting the motion to a motion for summary judgment. Greer v. Smith, 59 Fed. Appx. 491, 492 (3d Cir. 2003) (not precedential) (citing Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000) (affidavits filed in opposition to a motion to dismiss "clearly comprise [] a matter outside the pleadings."). Accordingly, the Court will not consider Plaintiff's affidavit in its decision on the present motion.

V. Discussion

A. Plaintiff's Negligence Claims

A federal court sitting in diversity must apply the substantive law as decided by the state's highest court. Travelers Indem Co. of Illinois v. DiBartolo, 131 F.3d 343, 348 (3d Cir. 1997) (citations omitted). The parties here do not dispute the application of Pennsylvania law to this matter; therefore, Pennsylvania law will be applied. See Compagnie des Bauxites v. Argonaut-Midwest Ins. Co., 880 F.2d 685, 689-91 (3d Cir. 1989).

To demonstrate a claim under Pennsylvania law for negligence, a plaintiff must allege enough factual matter showing: (1) a duty of care owed by the defendant, (2) a breach of that duty, (3) a causal connection between the defendant's conduct and the claimant's injury, and (4) actual harm or damage suffered. Faylor v. Szupper, Civ. A. No. 08-996, 2010 U.S. Dist. LEXIS 30611, at *35, 2010 WL 1257467 (W.D. Pa. Mar. 30, 2010) (citing Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)).

Defendants contend that Plaintiff has failed to sufficiently allege either RTI or Conway owed a duty to him or, if such a duty is present, Plaintiff has failed to sufficiently allege that he has suffered harm or actual damage as a result of any breach of those duties. (Docket No. 194). Each seeks dismissal of the negligence claim against it. Plaintiff maintains that he has alleged sufficient facts to state a claim upon which relief may be granted. (Docket No. 209).

See n. 4, supra.

Plaintiff has similarly alleged that each of these Defendants "owed Plaintiff a duty of care in arranging for and recommending an appropriate insurance policy and appropriate coverage to protect Plaintiff's business interests and in processing Claims referenced in this Amended Complaint." (Docket No. 177 at ¶¶ 138, 140). Under Iqbal and Twombly, these averments are legal conclusions which this Court will not credit when evaluating Plaintiff's allegations and Defendants' motions to dismiss. See Fowler, 578 F.3d at 210-11. Thus, the Court must determine if a duty was owed to Plaintiff from the non-conclusory allegations in Plaintiff's Third Amended Complaint.

In order to ascertain whether any duty exists, the Court's first inquiry is to determine the relationships between the parties. The Court has previously discussed the relationship between Plaintiff and these two entities in the context of the insurance purchased by Plaintiff from Underwriters. Based on Plaintiff's allegations, RTI acted as an insurance broker, which is "a middle man between the insured and the insurance company." Rich Maid Kitchens, Inc. v. Pa. Lumbermens Mut. Ins. Co., 641 F.Supp. 297, 303 (E.D. Pa. 1986) (citing 3 COUCH ON INS. 2d § 25:93-94 (1984)), aff'd 833 F.2d 307 (3d Cir. 1987). "The general rule in Pennsylvania is that the insurance broker is an agent of the insured." Comcast Spectator L.P. v. Chubb Son, Inc., 2006 U.S. Dist. LEXIS 55226, at *37, 2006 WL 2302686 (E.D.Pa. 2006); see also 3 COUCH ON INS. § 45:1 ("[a] representative of the insured is known as an `insurance broker.'"). An insurance broker solicits, procures and places insurance. Comcast, 2006 U.S.Dist.LEXIS 55226, at *59. Meanwhile, as evidenced by the policies and Plaintiff's allegations, Conway acted as an insurance agent on behalf of Underwriters. 3 COUCH ON INS. § 45:1 ("an `insurance agent' represents an insurer under an exclusive employment agreement by the insurance company."). Neither of these entities are insurers or acted as an insurance company in relation to the transactions in dispute. Thus, they cannot "issue" coverage as Plaintiff alleges. See Century Indem. Co. v. Certain Underwriters at Lloyd's, London, 584 F.3d 513, 519 (3d Cir. 2009) ("insurance companies issue policies under which the insurer assumes certain risks in exchange for premiums that the policyholders pay."). Instead, these entities acted as intermediaries to facilitate the purchase of insurance by Plaintiff, through Liberty, from Underwriters. In addition, RTI may have had a role in submitting claim documents to Underwriters.

"Courts are to balance several factors in determining whether a duty exists: "`(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.'" Star Spa Services, Inc. v. Robert G. Turano Ins. Agency, Inc., 595 F.Supp.2d 519, 527 (M.D.Pa. 2009) (quoting Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (2000)).

The Court understands that generally the question of whether a person or entity is an insurance agent or an insurance broker may be a question of fact for resolution by a jury at trial. See Rich Maid Kitchens, 641 F.Supp. at 304. And, an insurance broker may also be a dual agent; both an agent of the insured and the insurer. See Comcast, 2006 U.S.Dist.LEXIS 55226, at *38. However, the allegations in the Second Amended Complaint, and the policies themselves, support a finding that RTI acted only as an insurance broker, while Conway acted as an insurance agent for the insurance carrier in the transactions in this case. Therefore, RTI and not Conway possibly owed Plaintiff a duty.

Title 31, Insurance, of the Pennsylvania Administrative Code defines "broker" as "[a] person, partnership or corporation, not an officer nor appointed as an agent of an entity, who, for compensation, acts or aids in obtaining insurance for a person other than oneself." 31 PA. CODE § 37.1. Of course, Byron Pryor acted as a broker as well, through his actions as an employee of RTI.

Title 31, Insurance, of the Pennsylvania Administrative Code defines "agent," in relevant part, as:

(i) Inclusions. Means one or more of the following:

(A) A person authorized in writing by an entity to do one of the following:

(I) Solicit risks and collect premiums and to issue or countersign policies in its behalf.

(II) Solicit risks and collect premiums in its behalf.

(B) A person, not a licensed insurance broker, who, whether or not for compensation does one of the following:

(I) Solicits insurance on behalf of an entity.

(II) Transmits for a person other than himself an application for a policy of insurance to or from the entity.

(III) Offers or assumes to act in the negotiation of this insurance.

(IV) Aids in transacting the insurance business of an entity by negotiating for or placing risks or delivering policies or collecting premiums for the entity.

31 PA. CODE § 37.1.

At the motion hearing, Plaintiff acknowledged that he was not attempting to allege that RTI and Conway were insurers, but that he misused the term "issued" in his pleadings. The Court agrees that his pleadings are inartful, although, he has alleged that "Plaintiff's policy documents listed `certain underwriters at Lloyds' as the insurer," and he has not argued otherwise. (Docket No. 177 at ¶ 20).

In sum, the duties owed by RTI and Conway to Plaintiff, if any, must be determined from the relationships between the parties and the Court will analyze the duties owed by RTI, as an insurance broker, and by Conway, as an insurance agent. As noted, Plaintiff argues that these entities owed him a duty to recommend appropriate coverage, arrange and procure appropriate coverage, and to properly process his claims. (Docket No. 177 at ¶¶ 138, 140).

1. Negligence Claim against RTI

With respect to Plaintiff's claims against RTI, "for ordinary negligence purposes, the relationship between an insurance broker and client is an arm's length relationship." Wisniski v. Brown Brown Ins. Co. of PA, 906 A.2d 571, 579 (Pa.Super.Ct. 2006). In the context of an insurance transaction, the insured is presumed to know what type of coverage he/it needs or wants, and an insurance broker is not under an affirmative duty to inspect a property and recommend insurance to a client, id., or to advise a client regarding the extent of coverage, Stern Family Real Estate P'ship v. Pharmacists Mutual, Civ. A. No. 06-130, 2007 U.S.Dist.LEXIS 22296, at *10-16, 2007 WL 951603 (W.D.Pa. Mar. 27, 2007). But, an insurance broker may be held liable if he/it affirmatively undertakes such duties and then negligently performs, or if a special relationship is present between the parties. Stern, 2007 U.S.Dist.LEXIS 22296, at *19-20. Moreover, "[a] plaintiff acquires a cause of action against his broker . . . where the broker neglects to procure insurance, or does not follow instructions" from a client, "or if the policy is void or materially defective through the agent's fault." Laventhol Horwath v. Dependable Ins. Assoc., Inc., 579 A.2d 388, 391 (Pa.Super.Ct. 1990) (quotation omitted). The duty of care owed is to obtain the coverage that a reasonably prudent professional would have obtained under the circumstances, "unless the [insured] is also guilty of failure to exercise care of a reasonably prudent businessman for the protection of his own property and business which contributes to the happening of such loss." Northwestern Mut. Life Ins. Co. v. Babayan, Civ. A. Nos. 03-717, 03-1622, 2004 U.S. Dist. LEXIS 17155, at *59-60, 2004 WL 1902516 (E.D. Pa. Aug. 25, 2004) (quoting Consol. Sun Ray, Inc. v. Lea, 401 F.2d 650 (3d Cir. 1968), cert. denied, 393 U.S. 1050 (1969)).

See n. 14, supra. The Court further notes that to the extent that RTI acted as a dual agent in this case, the fact that RTI may have acted as an agent of Underwriters would not change the Court's analysis. Here, Plaintiff claims negligence as a result of the alleged breach of duties owed to him by RTI and is not seeking to hold Underwriters liable under an agency theory, wherein any potential agency between RTI and Underwriters could possibly be relevant. See Luber v. Underwriters at Lloyd's, Civ. A. No. 92-2200, 1992 WL 346467, at *3-4 (E.D.Pa. Nov. 16, 1992) (finding that an insurer is not liable for actions of an insurance broker absent some evidence of an agency relationship under Pennsylvania law).

As this Court recognized in a prior Memorandum Opinion, see Allegrino v. Conway, Civ.A. No. 09-1507, 2010 WL 1687558, at *9 (W.D.Pa. April 26, 2010), Plaintiff is presumed to have read and understood the terms of his insurance policies. Schoble v. Schoble, 349 Pa. 408, 37 A.2d 604 (Pa. 1944); see also Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174-75 (E.D.Pa. 2000). This is particularly true given Plaintiff's prior status as an attorney licensed to practice law in California. See n. 3, § 4.IV., supra.

In Stern, the District Court noted that "general allegations of reliance on an agent's expertise or knowledge regarding insurance coverage are insufficient to establish a special relationship" but that a special relationship may be present if the agent "holds himself or herself out as an insurance specialist, consultant or counselor and is receiving compensation for consultation and advice apart from premiums paid by the insured." Stern, 2007 WL 951603, at *4 n. 10 (internal citations and quotations omitted). Here, there are no allegations that would support a special relationship in this context. Moreover, at the motion hearing, Plaintiff stated to the Court that he contacted RTI after finding its contact information on the Internet and was not aware of Conway until he saw its contact information on his policies. See Trans. Hr'g 7/29/10 at 51.

Here, Plaintiff alleges that he contacted Byron Pryor at RTI in April 2008 and requested coverage for his business activities of operating an "internet search engine," and "jeans manufacturing" and the business property to be used during those operations in his renewal policy — the policy which went into effect in May of 2008. (Docket No. 177 at ¶ 143, 144). He also requested that "director and officer liability insurance" and general liability and real property insurance be procured prior to renewal. ( Id. at ¶ 146). Plaintiff claims that Pryor and RTI failed to add these coverages to his policy, despite his requests. ( Id. at ¶¶ 143-146). Therefore, Plaintiff has sufficiently alleged that RTI undertook a duty to procure coverage for the above types of property and breached that duty by failing to procure the requested coverage in his renewal policy. See Laventhol, 579 A.2d at 391.

RTI further argues that Plaintiff has not sufficiently alleged that he was harmed by these failures and suffered any injury as a result. (Docket No. 194). The Court disagrees. Plaintiff avers that he requested coverage for certain business activities from RTI, the requested coverage was not provided or included in the insurance policy he purchased, property that was allegedly used in furtherance of those business activities was destroyed and given the lack of coverage, his claim was denied or will be denied. (Docket No. 177 at ¶¶ 143-144). Likewise, he maintains that he requested other types of coverage, including for director and officer liability, general liability and real property, which were not provided, that he made insurance claims and that these claims will likely be denied. ( Id. at ¶¶ 145-146). These allegations are sufficient under Pennsylvania law and Twombly/Iqbal to state a plausible claim for negligence against RTI based on the alleged breach of its duty to procure requested insurance coverage prior to the issuance and/or renewal of the insurance policy.

However, the Court does not find that Plaintiff has sufficiently pled facts that RTI owed or breached any other duty to Plaintiff, including supposed duties to recommend appropriate insurance or to properly process his insurance claims.

As noted, an insurance broker, such as RTI, does not have a general duty to recommend insurance and Plaintiff has not alleged any facts which would suggest that it or Pryor gratuitously undertook an obligation to recommend insurance to Plaintiff and then negligently performed. See Wisniski, 906 A.2d at 579; Stern, 2007 U.S.Dist.LEXIS 22296, at *10-16. Plaintiff's bare allegation that all of the Defendants, including RTI, Conway and Underwriters, conducted an inspection of the property prior to his purchase of insurance from Underwriters, does not, by itself, create any duty owed by RTI to Plaintiff. (Docket No. 177 at ¶ 23). Moreover, Plaintiff makes no allegations that the business property that was destroyed was present in the property when it was inspected or any other fact which would possibly tend to show that the inspection of a three-unit apartment building by these entities somehow triggered a duty to RTI to recommend that he seek out coverage for that property. Indeed, the only allegations that any entity was put on notice of these alleged activities was that Plaintiff requested the coverage from RTI in April of 2008. ( Id. at ¶¶ 143-146). Thus, based on the allegations in Plaintiff's Third Amended Complaint, Plaintiff has not pled sufficient facts to demonstrate that such a claim is plausible.

Plaintiff has also not sufficiently alleged that RTI breached a duty to process his insurance claims. The insurer in this case, Underwriters, is obligated under its insurance contract with Plaintiff to act in good faith and adjust Plaintiff's claims, paying any claims lawfully due under the policies. See Smith v. Lincoln Ben. Life Co., Civ. A. No. 08-1324, 2009 WL 789900, at *11 (W.D.Pa. Mar. 23, 2009) (citing Condio v. Erie Ins. Exch., 899 A.2d 1136, 1144 (Pa.Super. 2006) ("In Pennsylvania, a duty of good faith and fair dealing is implied in an insurance contract.")), aff'd, No. 09-2098, 2010 WL 3730196 (3d Cir. Sep. 24, 2010) (not published). In this case, Underwriters is also under a contractual duty to Plaintiff to "pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss." (Docket No. 177-1 at 12, 42). As his insurance broker, RTI has no such duty. See Allegrino v. Conway E S, Inc. et al., Civ. A. No. 09-1507, 2010 WL 1854125, at *6 (W.D.Pa. May 5, 2010) (holding that Conway and RTI are not insurers and granting summary judgment in their favor on Plaintiff's breach of contract claims). Based on Plaintiff's allegations (Docket No. 177 at ¶¶ 149-151, 156), it appears that RTI undertook some duty by assisting and/or advising Plaintiff regarding his insurance claims and a duty may be established. However, even if RTI undertook such a duty, Plaintiff's allegations neither establish that any such duty was breached nor that he was harmed by any of RTI's conduct. Plaintiff alleges that every document he has submitted to RTI for the purpose of having his claim processed by Underwriters was likewise provided to Conway and Underwriters. Thus, to the extent that RTI had a duty to provide information to the insurer in this case, Plaintiff's allegations demonstrate that all such information was provided and there was no breach of this duty, nor any harm to him.

The Court notes that the terms "Covered Property" and "Covered Causes of Loss" are specifically defined under section A.1 and A.3 of the policies and Covered Causes of Loss is further defined in "Causes of Loss — Basic Form." (Docket No. 177-1 at 12-13, 20-24, 42-43, 50-54).

Likewise, Conway has no such duty. Indeed, the Certificate attached to the policy expressly provides that Conway is the Correspondent and that "[t]he Correspondent is not an Insurer hereunder and neither is nor shall be liable for any loss or claim whatsoever." (Docket No. 187-1 at 33; 187-2 at 4).

Plaintiff's other allegations do not set forth a plausible claim of negligence against RTI. He avers that he requested that RTI mark his claim as "windstorm damage" in August 2008 because he believed at the time that windstorm damage caused his losses. (Docket No. 177 at ¶ 149). His claim was then submitted to the insurer as windstorm damage. ( Id.). He later requested that his claim be changed to "vandalism" but was told by RTI that his claim was not timely and would likely be denied. ( Id. at 152, 154). In any event, he submitted the vandalism claim to his insurer, and although it was "classified as late" by the insurer, the claim has yet to be adjusted or denied. ( Id. at ¶¶ 41, 62, 152, 154). Based on these averments, there are simply no facts that would support the breach of any duty by RTI, an insurance broker, for submitting Liberty's insurance claim in the manner requested by Plaintiff.

2. Negligence Claim Against Conway

Plaintiff has also failed to plausibly state a claim for negligence against Conway. Although Conway is an insurance agent, specifically, an agent of Underwriters in the context of the instant transactions, much of the above analysis is equally applicable to Plaintiff's claims against Conway. Moreover, to the extent that Plaintiff argues that he has stated a claim against Conway as a result of the supposed partnership between RTI and Conway, Plaintiff's allegations regarding Conway are mere conclusions that the policies were "jointly sold" to him by both RTI and Conway and that these entities acted as "partners." See Allegrino v. Conway E S, Inc., Civ. A. No. 09-1507, 2010 WL 1854125, at *6 (W.D.Pa. May 5, 2010) (holding that similar allegations that RTI and Conway were "partners" with Lloyds did not allege a partnership"). He offers no further facts regarding the supposed relationship between these entities. Instead, these allegations are mere legal conclusions which are not credited by the Court when evaluating Plaintiff's Third Amended Complaint. See Fowler, 578 F.3d at 210-11. Therefore, Plaintiff cannot rely on either a "partnership" or "joint actor" theory in order to establish a duty owed to him by one of these entities that is not otherwise present.

Further, Plaintiff's bare allegations against Conway fall woefully short of sufficiently stating a claim of negligence against that entity. Plaintiff alleges only that Conway was one of the entities that conducted the initial inspection; that Charles Conway did not return any of his phone calls in August 2008; and later provided him with some information in November 2009. (Docket No. 177 at ¶¶ 23, 163, 164). Based on Plaintiff's pleadings, it is clear that Conway never undertook any duty to recommend insurance to Plaintiff nor did it negligently process any of his insurance claims — which have been submitted to the insurer. See Stern, 2007 WL 951603, at *3 ("insurance agent is not under a general duty to advise the insured as to the type or amount of available coverage, or to obtain total/full coverage, or explain the policy and its coverages and/or exclusions, absent a special relationship."); Kilmore v. Erie Ins. Co., 595 A.2d 623, 626-27 (Pa.Super.Ct. 1991) ("we find no justification in the law to impose the additional burden on insurers that they anticipate and then counsel their insured on the hypothetical, collateral consequences of the coverage chosen by the insured."). Thus, Plaintiff's negligence claim against Conway is dismissed, with prejudice.

B. Plaintiff's Request for Punitive Damages

The Court previously dismissed Plaintiff's request for punitive damages against both Defendants as a result of their alleged negligence, but granted Plaintiff leave to amend his request. See Allegrino, 2010 WL 1854125, at *8; (Docket No. 163). Defendants have moved to strike Plaintiff's request for punitive damages on grounds that Plaintiff's allegations offer no more support for punitive damages than was previously set forth in his Amended Complaint. (Docket No. 194). Plaintiff believes that his allegations are sufficient. (Docket No. 209). The Court agrees with Defendants and will strike the request for punitive damages.

The Court notes that to the extent that Defendants' motion is more properly analyzed under Rule 12(b)(6), Iqbal and Twombly, the Court also would dismiss Plaintiff's request for punitive damages under that standard.

First, because the Court has already dismissed Plaintiff's cause of action for negligence against Conway, Conway's motion to strike Plaintiff's request for punitive relief against it is denied, as moot. As to the request for punitive damages against RTI, under Pennsylvania law, punitive damages may be awarded for negligent conduct that is outrageous due to the defendant's evil motives or "reckless indifference to others." Sabric v. Martin, Civ. A. No. 09-12237, 2010 U.S. Dist. LEXIS 12502, at *17 (M.D. Pa. Feb. 12, 2010) (citing Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990)). In Sabric, the plaintiff alleged the defendants' conduct was outrageous based on their conscious disregard of six specific incidents averred by the plaintiff. Sabric, 2010 U.S. Dist. LEXIS 12502, at *17. The court found that these "specific allegations" were sufficient to make out a claim for punitive damages. Id.

Here, as in his earlier pleading, Plaintiff has simply pled that Defendants were "reckless and careless" in breaching their duty to Plaintiff in arranging for and recommending an appropriate insurance policy. (Docket No. 3 at 21; Docket No. 177 at ¶¶ 165, 166). Similarly, he has now pled in a conclusory fashion that RTI "intentionally misled Plaintiff with an evil intent and motive to defeat Plaintiff's Claim and protect their claim rate and standing with Lloyds." (Docket No. 177 at ¶¶ 152, 154). Moreover, the factual allegations proffered in support of his assertions of "reckless and careless" conduct and "evil intent and motive" on RTI's behalf are not sufficient to support a claim for punitive damages. See Allegrino, 2010 WL 1854125, at *8 (dismissing Plaintiff's request for punitive damages against RTI). If anything, as discussed above, Plaintiff has alleged mere negligent conduct by RTI, through Pryor's actions. Plaintiff's negligence claim against RTI will survive the present motion to dismiss. However, in the Court's estimation, Plaintiff has not sufficiently pled a claim for punitive damages against RTI pursuant to Twombly and Iqbal. See Fowler, 578 F.3d at 210-11. Therefore, said request for relief is stricken and dismissed, with prejudice.

C. RTI's Motion to Strike

In addition to its motion to dismiss, RTI has moved to strike certain of the paragraphs in Plaintiff's Third Amended Complaint under Rule 12(f). RTI requests that the Court strike paragraphs 143-146 and 157 because Plaintiff erroneously avers in those paragraphs that it "issued" certain types of insurance. (Docket No. 194). RTI also moves to strike paragraphs 141 and 161 on grounds that Plaintiff has failed to adequately allege a partnership between RTI and Conway. ( Id. at).

Upon consideration of these paragraphs, the Court does not find that they consist of "redundant, immaterial, impertinent, or scandalous matter[s]." FED.R.CIV.P. 12(f). Moreover, as discussed above, the Court finds that Plaintiff's use of "issued" and like terms in reference to RTI's actions, results from inartful pleading and does not necessitate striking the cited paragraphs. Plaintiff simply does not argue that RTI is an insurer as is suggested by RTI. Further, the Court has found that Plaintiff's allegations in paragraphs 141 and 161 related to the supposed partnership between RTI and Conway are legal conclusions and did not accept these allegations as true when evaluating Plaintiff's Third Amended Complaint. Accordingly, RTI's motions to strike are denied.

D. Leave to Amend

As indicated, the claims and requests for punitive damages that are dismissed or stricken will be dismissed, with prejudice. Plaintiff is presently on his Third Amended Complaint and he has to this point failed to plead a plausible negligence claim against Conway or a claim for punitive damages against RTI. ( See Docket Nos. 1, 3, 169, 170, 177). He was also provided with an opportunity to clarify his claims at the motion hearing, but failed to offer any additional factual support for these claims. See Paschal v. Billy Beru, Inc., 373 Fed.Appx. 213 (3d Cir. 2010) (permitting the Court to consider pro se plaintiff's testimony to clarify claims in his complaint). Given the state of the pleadings, and the record before this Court, it is clear that any further amendment of Plaintiff's negligence claim against Conway or his punitive damages claim against RTI would be futile. See Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). Thus, Plaintiff's negligence claim against Conway and his request for punitive damages against RTI are dismissed, with prejudice.

Plaintiff has also attempted to interject certain facts by way of an "affidavit" attached to his response to Defendants' motions. (Docket No. 209-1). These new facts include that Plaintiff was told by Pryor that RTI and Conway were partners in the insurance business. These additional conclusory allegations would not undermine the Court's earlier holding that based on Plaintiff's allegations, RTI and Conway are not partners in the context of this case, nor that Plaintiff has failed to plausibly state a claim of negligence against Conway.

VI. Conclusion

For the above reasons, Defendants Conway and RTI's Motion to Dismiss and to Strike Plaintiff's Amended Complaint #3 (Docket No. 193) is GRANTED, IN PART and DENIED, IN PART. Conway's Motion to Dismiss the sole claim against it, negligence, is granted and said claim, including the request for punitive damages is dismissed, with prejudice. Therefore, as no claims remain against Conway, it is dismissed from this action, with prejudice. RTI's Motion to Dismiss the negligence claim against it is denied, but its Motion to Strike the punitive damages claim is granted, and the punitive damages request is dismissed, with prejudice. RTI's Motion to Strike paragraphs 143-146 and 157 because RTI is not an insurer and paragraphs 141 and 162 for failing to allege a partnership relationship between Conway and RTI is denied. An appropriate Order follows.

Date: October 6, 2010.