2. Even if this Court were able to reach the substance of Plaintiff's claims, those claims are unlikely to survive Defendant's Motion to Dismiss because they either fail as a matter of law, or fail to allege facts sufficient to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff's first claim, alleging only that Defendant's late payment "constitutes an unconscionable commercial practice" in violation of New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, et seq. ("CFA"), (Compl. ¶ 22), fails to meet the heightened pleading standard required of fraud claims. See FED. R. CIV. P. 9(b); see also Frederico v. Home Depot, 507 F.3d 188, 200-01 (3d Cir. 2007). Furthermore, it is well-established that disputes over insurance payments are not subject to the CFA. See, e.g., Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 168 (3d Cir. 1998); Myska v. New Jersey Mfrs. Ins. Co., 440 N.J.Super. 458, 485 (App. Div. 2015).
Plaintiff's second claim, alleging violations of the New Jersey Insurance Fraud Prevention Act ("IFPA"), N.J.S.A. 17:33-4(a)(3), (Compl. ¶ 26), is barred because suits under this provision may only be brought by insurance companies, not individuals. See N.J.S.A. 17:33A-7.
Plaintiff's third claim alleges that Defendant violated the Truth-In-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J.S.A. 56:12-15, et seq. TCCWNA states in relevant part that "[n]o seller . . . shall in the course of his business . . . enter into any written consumer contract" that "includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller" as established by state or federal law. N.J.S.A 56:12-15; see also Matijakovich v. P.C. Richard & Son, No. CV2161506WHWCLW, 2016 WL 3457011, at *2 (D.N.J. June 21, 2016). This claim also fails because Plaintiff does not allege an improper provision that violates state or federal law in either the Allstate policy or General Release that Plaintiff and Allstate's insured entered into. See Matijakovich, 2016 WL 3457011, at *2.
Plaintiff's fourth claim, for conversion, alleges that "Defendant improperly and illegally converted moneys, and interest, that rightfully belong to Plaintiff and the Class." (Compl. ¶ 36.) In order to avoid turning breach of contract actions into tort actions, conversion claims regarding money are strictly limited to instances where the funds at issue belonged to the injured party. See Chicago Title Inc. Co. v. Ellis, 409 N.J.Super. 444, 455-56 (App. Div. 2009). Plaintiff pleads only she received late payment of her claim, not that that payment belonged to her and was wrongfully converted. See id. at 456.
Plaintiff's fifth and seventh claims, alleging a violation of the duty of good faith and fair dealing and breach of contract, respectively also fail because there is no indication that a contract existed between the parties. See, e.g., Bishop v. Okidata, Inc., 864 F.Supp. 416, 426 (D.N.J. 1994); Wade v. Kessler Inst., 172 N.J. 327, 345 (N.J. 2002).
Plaintiff's sixth claim alleges "unconscionable advantage over the Plaintiff and the Class." (Compl. ¶¶ 43-44.) "Unconscionable advantage," however, is not an independent cause of action, but is rather an element of constructive or common law fraud. See Clark v. Prudential Ins. Co. of Am., 289 F.R.D. 144, 184 (D.N.J. 2013).
Plaintiff's eighth claim, alleging that Defendant was unjustly enriched by its failure to timely pay moneys which are due to Plaintiff and the Class, (Compl. ¶ 51), is unsustainable because Plaintiff fails to show a direct relationship between Plaintiff and Defendant. See, e.g., Callano v. Oakwood Park Homes Corp., 91 N.J.Super. 105, 109 (App. Div. 1966).
Plaintiff's final claim, that Defendant tortiously interfered with the settlement Plaintiff negotiated with Allstate's insured, (Compl. ¶ 54), fails to plead intent or malice on behalf of Defendant as required under New Jersey common law. See Zippertubing Co. v. Teleflex, Inc., 757 F.2d 1401, 1407 (3d. Cir. 1985).
