United States District Court,

E.D. Pennsylvania.

Thomas McMILLAN

v.

WILKIE TRUCKING INC. et al.

 

Civil Action No. 13–7104.

Feb. 21, 2014.

 

Robert N. Braker, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, for Thomas McMillan.

 

Justin M. Cohen, Patrick C. Lamb, Marks O‘Neill O’Brien Doherty & Kelly PC, Philadelphia, PA, for Wilkie Trucking Inc. et al.

 

MEMORANDUM

SURRICK, District Judge.

*1 Presently before the Court is Plaintiff Thomas McMillan’s Motion to Remand (ECF No. 3). For the following reasons, Plaintiff’s Motion will be granted.

 

I. BACKGROUND

On September 24, 2013, Plaintiff Thomas McMillan filed a Complaint in the Court of Common Pleas of Philadelphia County against Defendant Wilkie Trucking Inc. and Defendant Randy Lovell alleging careless and negligent operation of Defendants’ tractor trailer. McMillan v. Wilkie Trucking Inc., Civ. A. No. 002782 (Pa. Ct. Com. Pl., filed Sept. 24, 2013). The case was removed to this Court on December 5, 2013. (Notice of Removal, ECF No. 1.) Plaintiff, a Pennsylvania resident, was riding his bicycle on Second Street in Philadelphia on May 16, 2013. (Compl. ¶¶ 1, 5, Mot. to Remand Ex. A, ECF No. 3.) Lovell, a New Jersey resident, was driving a tractor trailer owned and maintained by his employer, Wilkie Trucking, a business operating in New Jersey. At the corner of Second and Callowhill Streets, Lovell made a right turn and ran over Plaintiff and Plaintiff’s bicycle with the tractor trailer. (Id. at ¶¶ 2–4, 6–7.) Plaintiff alleges that he suffered catastrophic and life-altering permanent personal injuries as a result of the accident. (Id. at ¶ 11.) Plaintiff claims that Defendants were careless and negligent in the happening of this accident. (Id. at ¶ 10.) Plaintiff brought this action to recover from Defendants “jointly and severally, separate sums in excess of $50,000 in damages.” (Compl.) FN1

 

FN1. Damages alleged in an amount in excess of $50,000 is required in Pennsylvania state court and under the Local Rules for Philadelphia County to avoid mandatory referral to arbitration. See 42 Pa. Cons.Stat. § 7361(b)(2) (requiring arbitration referral unless the “amount in controversy, exclusive of interest and costs, exceeds $50,000”); PA Phila. Cnty. Local Rule 1301 (stating that “all cases having an amount in controversy, exclusive of interests and costs, of $50,000 or less, shall be assigned to the Compulsory Arbitration Program of the Court of Common Pleas of Philadelphia County”).

 

On November 1, 2013, Defendants filed an Answer to Plaintiff’s Complaint with New Matter in the Court of Common Pleas of Philadelphia County asserting that the recoverable damages in this case are less than $75,000. (Mot. to Remand; Notice of Removal Ex. B.) On November 26, 2013, Plaintiff filed a Response to Defendants’ New Matter, in which Plaintiff denied that his recoverable and claimed damages were less than $75,000. (Notice of Removal Ex. C.) On December 5, 2013, Defendants filed a Notice of Removal on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Notice of Removal.)

 

On December 6, 2013, Plaintiff filed the instant Motion to Remand. (Pl.’s Mot., ECF No. 3.) Defendants filed a response to the Motion on December 20, 2013. (Defs.’ Resp., ECF No. 4.)

 

II. LEGAL STANDARD

Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant … to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S .C. § 1441(a). To remove a lawsuit filed in a state court to a federal district court, a defendant must file a notice of removal within thirty days of the date a plaintiff serves the defendant with a copy of the original pleading or complaint that sets forth the claim for relief upon which the action is based. 28 U.S.C. § 1446(b)(1). However, where it is not apparent from the face of the initial pleading that a case is removable,

 

*2 a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

 

28 U.S.C. § 1446(b)(3). The purpose of 28 U.S.C. § 1446(b)(3) is to start “the running of the thirty day period once the defendant receives actual notice that the case has become removable.” McGhee v. Allstate Ins. Co., No. 05–1813, 2005 U.S. Dist. LEXIS 17995, at *6, 2005 WL 2039181 (E.D.Pa. Aug. 22, 2005).

 

A district court has subject matter jurisdiction over civil actions between citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000. 28 U .S.C. § 1332(a). The amount in controversy does not need to be stated in the initial pleading to trigger the running of the 30–day period for removal under 18 U.S.C. § 1446(b). “Rather, the thirty-day period begins to run when a defendant can reasonably and intelligently conclude from the pleadings that the amount in controversy exceeds the jurisdictional minimum.” Sims v. PerkinElmer Instruments, LLC, No. 04–3773, 2005 U.S. Dist. LEXIS 5300, at *8, 2005 WL 746884 (E.D.Pa. Mar. 31, 2005) (quoting Carroll v. United Airlines, Inc., 7 F.Supp.2d 516, 521 (D.N.J.1998)); see also Johnson v. Tesla Motors, Inc., No. 13–5106, 2013 U.S. Dist. LEXIS 155776, at *4, 2013 WL 5834442 (E.D.Pa. Oct. 30, 2013). Thus, a “pleading does not have to allege a specific dollar amount to give notice to the defendant of the existence of Federal jurisdiction.” Sims, 2005 U.S. Dist. LEXIS 5300, at *8, 2005 WL 746884 (quoting Carroll, 7 F.Supp.2d at 521).

 

A case removed to federal court may be remanded to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). The defendant as the removing party bears the burden of proving to a legal certainty that federal subject matter jurisdiction exists. Samuel–Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.2004). Because the removal statutes are strictly construed against removal, Boyer v. Snap–On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), all doubts must be resolved in favor of remand. Samuel–Bassett, 357 F.3d at 403.

 

III. DISCUSSION

Plaintiff argues that remand of this action is required because Defendants failed to file their Notice of Removal within thirty days of receiving a copy of the Complaint. Plaintiff filed the Complaint on September 24, 2013. Defendants filed their Notice of Removal on December 5, 2013, well beyond thirty days after the Complaint was filed. Defendants respond that their Notice of Removal was timely because it was filed within thirty days of being first put on notice that the action was removable. Specifically, Defendants argue that Plaintiff’s Complaint only demands recoverable damages in excess of $50,000, and that it was not until Defendants were in receipt of Plaintiff’s Answer to New Matter that Defendants became aware that the jurisdictional amount was greater than $75,000 and that federal court diversity jurisdiction existed.FN2 Defendants contend that because they were first put on notice that the action was removable upon the receipt of Plaintiff’s Answer to New Matter, the Notice of Removal was timely under 28 U.S.C. § 1446.

 

FN2. In their Answer to the Complaint with New Matter, Defendants stated that Plaintiff’s recoverable damages are less than the jurisdictional threshold of $75,000. Plaintiff filed an Answer to New Matter, wherein he denied the allegation that the recoverable damages were less than $75,000. Defendants claim that they were not on notice that the jurisdictional amount was $75,000 or greater until they received this denial from Plaintiff.

 

*3 Defendants frame the issue before us as whether or not Plaintiff’s Answer to New Matter triggered the start of the thirty-day time period within which Defendants were required to file a notice of removal. We agree with Defendants that Plaintiff’s Answer to New Matter constitutes an “other paper” for purposes of § 1446(b)(3). See Bishop v. Sam’s E., Inc., No. 08–4550, 2009 U.S. Dist. LEXIS 53082, at *12–13, 2009 WL 1795316 (E.D. Pa. June 23, 2009) (finding that the plaintiff’s reply to the defendant’s new matter in which plaintiff denied that her damages were not in excess of $75,000 constituted an “other paper” as contemplated by § 1446(b)). However, § 1446(b)(3) only comes into play if the allegations in the complaint fail to make it evident that a case is removable. Therefore, we must determine whether Plaintiff’s Complaint put Defendants on notice that the case was removable. If it is apparent from the face of the Complaint that federal jurisdiction existed, then the 30–day period to file a notice of removal commenced upon service of the Complaint, and Defendants’ Notice was untimely.

 

Here, the Complaint does not seek a specific amount of damages. Instead, it requests damages from Defendants “jointly and severally, in sums in excess of $50,000.” (Compl.) “Generally, whether the amount in controversy requirement has been satisfied is determined from the face of the plaintiff’s complaint.”   Sims, 2005 U.S. Dist. LEXIS 5300, at *8, 2005 WL 746884 (citing Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir.1993)). In cases such as this one, where the demand for damages is expressed in an indeterminate value, “ ‘the amount in controversy is not measured by the low end of an open-ended claim, but rather by reasonable reading of the value of the rights being litigated.’ ” Inaganti v. Columbia Props. Harrisburg LLC, No. 10–1651, 2010 U.S. Dist. LEXIS 51983, at *8, 2010 WL 2136597 (E .D.Pa. May 25, 2010) (quoting Angus, 989 F.2d at 146). The district court “must engage in an objective independent appraisal of the claim’s value to determine whether the amount in controversy is satisfied.” Id. at 8–9 (quoting Angus, 989 F.2d at 146). If a defendant “can reasonably and intelligently conclude from the pleadings that the amount in controversy exceeds the jurisdictional minimum,” then the thirty-day period to file the notice of removal begins to run.   Sims, 2005 U.S. Dist. LEXIS 5300, at *7–8, 2005 WL 746884 (quoting Carroll, 7 F.Supp.2d at 521).

 

The instant Complaint describes in great detail the “catastrophic, disabling, life-altering and permanent” injuries Plaintiff sustained. (Compl.¶ 11.) As a result of this accident, Plaintiff underwent multiple major surgeries; spent over two weeks in the hospital, and two additional weeks at an in-patient rehab facility; sustained multiple injuries to his skin, bones, muscles, nerves, tissues, and ligaments; has required physical therapy, pain medication, and diagnostic testing; and has and continues to suffer from agonizing aches and pains. (Id.) Paragraph 11 of the Complaint sets forth Plaintiff’s damages, and states specifically that

 

*4 [b]y reason of the carelessness and negligence of defendants, Wilkie Trucking Inc. and Randy Lovell, plaintiff, Thomas McMillan, was caused to sustain catastrophic, disabling, life-altering and permanent personal injuries: he sustained serious injuries and pain through his body for which he was required to remain in in-patient care at Hahnemann Hospital from May 16, 2013 through May 31, 2013; he was required to remain in in-patient care at Powerback Rehabilitation from May 31, 2013 through June 13, 2013; he sustained an open bilateral ischial superior and inferior public rami fracture for which he was required to undergo major surgeries in the form of a placement of an external fixator on May 16, 2013 at Hahnemann University Hospital, an interventional radiology procedure to embolize pudendal vessels that were bleeding on May 16, 2013 at Hahnemann University Hospital, and removal of an external fixator and open reduction and internal fixation of the pelvis on May 23, 2013 at Hahnemann University Hospital; he sustained a sacral fracture; he sustained a left sacroiliac joint diastasis; he sustained a pubic symphysis avulsion; he has suffered from severe bilateral hip pain; he sustained a scrotal laceration for which he was required to undergo major surgery in the form of a repair of testicular injury on May 16, 2013 at Hahnemann University Hospital; he has suffered from severe scrotal pain; he sustained right common femoral artery dissections; he has suffered from severe pain and injury to his right leg; he sustained left common femoral artery acute flow-limiting thrombosis; he has suffered from severe pain and injury to his left leg; he sustained severe wounding to his right knee; he suffered from painful abrasions throughout his body; he has been required to undergo extensive physical therapy; he has had difficulty walking; he has been required to take potent pain medication; he has suffered from extreme weakness throughout his body; he has sustained permanent scarring; he has sustained further injuries to the bones, muscles, nerves, tissues and ligaments of his body, the full extent of which is yet to be determined; he sustained other injuries to his nerves and nervous system; he sustained other orthopedic, neurologic and psychological injuries, the full extent of which is yet to be determined; he has in the past been required and may in the future continue to be required to submit to x-rays, MRIs and other diagnostic studies; he has in the past suffered and may in the future continue to suffer agonizing aches, pains, and mental anguish; he has in the past and may in the future continue to endure pain and suffering; he has in the past and may in the future continue to be disabled from performing his usual duties, occupations, avocations, all to his great detriment and loss.

 

(Compl.¶ 11.)

 

Defendants should have reasonably and intelligently concluded from a fair reading of the damages alleged in the Complaint, particularly in consideration of the extent of the injuries, the multiple surgeries Plaintiff underwent, the time he spent in the hospital and in rehab, the injuries not yet determined, and the loss of earnings, that the damages sought would well exceed the $75,000 jurisdictional amount. Plaintiff’s Complaint is not one that sets damages equivocally. See, e.g., McLain v. Wal–Mart Store # 5495, No. 13–979, 2013 U.S. Dist. LEXIS 50572, at *4–5, 2013 WL 1438254 (E.D.Pa. Apr. 8, 2013) (finding that jurisdictional amount was not clear from the face of the complaint where amount stated was “in excess of $50,000” but that plaintiff alleged that he had “suffered injuries which are or may be serious or permanent”) (alteration in original). Nor does the Complaint merely contain boilerplate language to describe Plaintiff’s injuries. See, e.g., Bishop, 2009 U.S. Dist. LEXIS 53082, at *10, 2009 WL 1795316 (finding that the complaint did not trigger the 30–day period for filing a notice of removal where it contained general boilerplate allegations of injury such as, plaintiff suffers from “ills and injuries”).

 

*5 Plaintiff’s injuries were described unequivocally. The damages sought were specifically alleged with significant details regarding the dates of surgeries and diagnoses and treatments that Plaintiff received. A fair reading of the Complaint should have put Defendants on notice that the damages sought certainly exceeded the jurisdictional amount. See Johnson, 2013 U.S. Dist. LEXIS 155776, at *13–14, 2013 WL 5834442 (“Aggregating the expense of surgery, the pain and suffering related to the surgery and to the initial accident, the loss of income, medical treatment of other injuries sustained, and the viable claim for punitive damages … this Court is convinced that the total value amount of her damages reasonably surpasses the $75,000 federal jurisdictional threshold.”); Sims, 2005 U.S. Dist. LEXIS 5300, at *10–11, 2005 WL 746884 (concluding that the defendants could “reasonably and intelligently conclude from the pleadings that the amount in controversy exceed[ed] the jurisdictional minimum” where the plaintiff alleged that she suffered “severe and disabling injuries to the bones, muscles, blood vessels, tissues, nerves and tendons of her right lower leg,” incurred medical expenses, and suffered pain, suffering and disfigurement); Peters v. Stop & Shop, No. 13–6085, 2013 U.S. Dist. LEXIS 153823, at *10, 2013 WL 5781199 (D.N.J. Oct. 26, 2013) (allegations that plaintiff suffered severe, permanent, and disabling injuries and will be forced to undergo extensive medical treatment was found sufficient to put the defendant on notice that the damages sought were over $75,000); cf McCall v. New Prime, Inc., No. 12–02442, 2012 U.S. Dist. LEXIS 124473, *2–3, 2012 WL 3782436 (D.N.J. Aug. 31, 2012) (finding that allegations of severe and permanent injury, including future medical expenses and loss of earnings, is sufficient to meet the jurisdictional threshold).FN3 Accordingly, Defendants’ Notice of Removal was not timely filed.

 

FN3. Although the Complaint does not specifically request punitive damages, as was the case in Johnson, we nonetheless find that the description of the injuries and medical costs incurred and to be incurred sufficiently put Defendants on notice that the damages sought would reasonably exceed $75,000.

 

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Remand will be granted, and the case will be remanded back to the Court of Common Pleas for the County of Philadelphia.

 

An appropriate Order will follow.

 

ORDER

AND NOW, this 21st day of February, 2014, upon consideration of Plaintiff’s Motion to Remand (ECF No. 3), and all documents submitted in support thereof and in opposition thereto, it is ORDERED, that the Motion to Remand is GRANTED. It is further ORDERED that this matter be REMANDED to the Court of Common Pleas for the County of Philadelphia.

 

IT IS SO ORDERED.

 

Supreme Court of Wyoming.

LEWIS HOLDING COMPANY, INC., a Wyoming Corporation, Appellant (Plaintiff),

v.

FORSBERG ENGERMAN COMPANY, a Colorado Corporation, NTA, Inc., an Indiana Corporation, and Lexington Insurance Company, Appellees (Defendants).

 

No. S–13–0093.

Feb. 21, 2014.

 

*823 Representing Appellant: James P. Castberg, Castberg Law Office, Sheridan, Wyoming.

 

Representing Appellee, Forsberg Engerman Company: Weston W. Reeves and Anna M. Reeves Olson, Park Street Law Office, Casper, Wyoming. Argument by Ms. Olson.

 

Representing Appellees, NTA, Inc. and Lexington Insurance Company: Jason A. Neville and David E. Shields, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Shields.

 

Before KITE, C.J., and HILL, VOIGT FN*, BURKE, and DAVIS, JJ.

 

FN* Justice Voigt retired effective January 3, 2014.

 

BURKE, Justice.

[¶ 1] In this insurance coverage dispute, the district court granted summary judgment in favor of defendants Lexington Insurance Company, NTA, Inc., and Forsberg Engerman Company, and against plaintiff Lewis Holding Company, Inc. Lewis Holding challenges that ruling on appeal. We will affirm.

 

ISSUES

[¶ 2] Lewis Holding presents two issues:

 

1. Did the trial court err in granting the defendants’ motions for summary judgment on the issue of estoppel?

 

2. Did the trial court err in granting the defendants’ motions for summary judgment*824 on the issue of breach of the covenant of good faith and fair dealing?

 

FACTS

[¶ 3] Lewis Holding is a Wyoming corporation engaged in the trucking business. Lexington is an insurance company, and NTA provides insurance adjusting services to Lexington. Forsberg is the insurance agency that helped Lewis Holding purchase insurance from Lexington.

 

[¶ 4] In October, 2010, one of Lewis Holding’s side-dump trailers was damaged while unloading. Details of the incident are unclear, but it is undisputed that the trailer partially turned over and its back wheels were lifted off the ground. Lewis Holding filed an insurance claim, which Lexington paid.

 

[¶ 5] In April, 2011, another of Lewis Holding’s side-dump trailers was damaged. Again, details are unclear, but it is undisputed that this trailer did not turn over and its wheels never left the ground. As before, Lewis Holding filed an insurance claim. NTA’s adjuster examined the trailer. Based on his report, NTA issued a reservation of rights letter on Lexington’s behalf, indicating that the damage may not be covered by the policy because it was due to mechanical failure or wear and tear. After the trailer was inspected a second time, Lexington denied the insurance claim on the basis that the damages were not the result of an upset or collision, but rather “the result of improper welding from previous repairs.”

 

[¶ 6] Lewis Holding filed suit against Lexington, NTA, and Forsberg. It claimed that the damage was covered by the insurance policy. It further claimed that the defendants had breached the covenant of good faith and fair dealing by failing to pay the claim.

 

[¶ 7] Lexington and NTA moved for summary judgment, pointing out that the insurance policy covered loss or damage caused by “upset,” but excluded coverage for loss or damage “resulting from wear and tear” or “mechanical … failure.” They explained that Lexington paid the 2010 claim because the wheels of the trailer were off the ground, which constituted an “upset.” They asserted that coverage was properly denied for the 2011 incident because the damage was due to “wear and tear” and “mechanical breakdown.” Forsberg also moved for summary judgment on the basis that it was not a party to the insurance contract between Lewis Holding and Lexington. Forsberg asserted that it could not be liable for the insurance claim because it was only an agent, not the insurer.

 

[¶ 8] The district court granted the defendants’ motions for summary judgment. Lewis Holding challenges that decision in this appeal.

 

STANDARD OF REVIEW

[1][2][3] [¶ 9] When reviewing a district court’s decision to grant summary judgment, we apply a familiar standard of review:

 

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo.2002). “A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted.” Id. Because summary judgment involves a purely legal determination, we undertake de novo review of a trial court’s summary judgment decision. Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo.2008).

 

Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128–129 (Wyo.2008).

 

DISCUSSION

I. Estoppel

 

A. Claims against Lexington Insurance Company and NTA, Inc.

 

[¶ 10] In support of their motion for summary judgment, Lexington and NTA submitted a copy of the insurance agreement between Lewis Holding and Lexington. Two of the policy’s provisions were highlighted. *825 The portion entitled “PERILS COVERED” included the following language:

 

Section A. Collision or Upset.

 

This Section covers loss of or damage to vehicle caused by accidental collision of the vehicle with another object, or by upset, provided always that the deductible specified in the Schedule shall be deducted from the amount of each loss or damage to each vehicle.

 

The portion entitled “EXCLUSION” provided that coverage under the policy did not apply to loss or damage “resulting from wear and tear, freezing or over-heating, mechanical or electrical breakdown or failure, unless such damage is [a] direct result of perils covered under this policy.”

 

[¶ 11] Paul Lewis, a former stockholder, director, and officer of Lewis Holding, testified in his deposition that the trailer almost tipped over in the 2010 incident, and the rear wheels were off the ground. Because this incident involved an “upset,” which is covered under the insurance agreement, Lexington paid the claim. Mr. Lewis also testified that, in the 2011 incident, the wheels of the trailer remained on the ground, and during normal operations, some part of the trailer broke. There was no “upset,” as had occurred in the earlier incident. Lexington provided the report of an expert in the inspection, examination, and investigation of mechanical systems, who concluded that the trailer involved in the 2011 incident had been “compromised due to improper welding techniques,” and the damage was due to mechanical failure. Because the insurance agreement excludes damages resulting from mechanical failure, Lexington declined to pay the insurance claim for the 2011 incident.

 

[4] [¶ 12] Lewis Holding does not dispute that the language of its insurance policy indicates that “upset” incidents are covered while “mechanical failure” is excluded. It insists, however, that the 2011 incident was “similar” to the 2010 incident, and because Lexington paid the 2010 claim, it is estopped from denying the 2011 claim. Lewis Holding cites several cases involving estoppel, including State Farm Mut. Auto. Ins. Co. v. Petsch, 261 F.2d 331, 335 (10th Cir.1958), in which the Tenth Circuit Court of Appeals explained as follows:

 

Estoppel is governed by equitable considerations. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse.

 

Lewis Holding argues that Lexington’s payment of the 2010 claim, “plus its failure to notify [Lewis Holding] that this type of loss might not be covered” are sufficient to establish Lewis Holding’s claim of estoppel.

 

[¶ 13] A careful reading of the State Farm decision reveals that it does not support Lewis Holding’s claim. Following its explanation of equitable estoppel, the court continued to say that “the coverage of an insurance policy may not be extended by waiver or estoppel. This is in accord with general law.” State Farm, 261 F.2d at 335. It is also in accord with Wyoming law:

 

In the case of Sowers v. Iowa Home Mutual Casualty Insurance Company, 359 P.2d 488 (Wyo.1961), the insured made estoppel and waiver arguments against the insurer on the basis of representations that had been made by the insurer’s agent. In that case we held, citing extensive authority, that conditions going to coverage could not be extended by acts of the insurer or its agent under the doctrines of estoppel and waiver. In stating this rule, we quoted “16 Appleman, Insurance Law and Practice, pp. 629, 630 (1944)” at length, including the following passages:

 

“It has been broadly stated that the doctrines of waiver and estoppel cannot be used to extend the coverage of an insurance policy or create a primary liability, but may only affect rights reserved therein. * * * [U]nder no conditions can the coverage or restrictions on coverage be extended by waiver or estoppel. * * *

 

“While a for[ ]feiture of benefits contracted for in an insurance policy may be waived, the doctrine of waiver or estoppel cannot create a liability for benefits *826 not contracted for. Nor may a contract, under the guise of waiver, be reformed to create a liability for a condition specifically excluded by the specific terms of the policy. * * *

 

“The doctrine of implied waiver or estoppel is not available to bring within the coverage of an insurance policy risks that are not covered by its terms or that are expressly excluded therefrom * * *.”

 

Sowers, 359 P.2d at 493. We have applied this principle in the more recent cases of Ricci [v. New Hampshire Ins. Co.], 721 P.2d 1081 [ (Wyo.1986) ], and Tadday v. National Aviation Underwriters, 660 P.2d 1148 (Wyo.1983). See also State Farm Mutual Automobile Insurance Company v. Petsch, 261 F.2d 331 (10th Cir.1958) (insurer’s agent’s express representation to insured that policy fully protected the insured against an employee’s claim did not estop the insurer from denying coverage where it was plainly excluded by the policy); and 16B J.A. Appleman and J. Appleman, Insurance Law and Practice § 9090 (1981) (reciting and describing the general rule).

 

St. Paul Fire & Marine Ins. Co. v. Albany County Sch. Dist., 763 P.2d 1255, 1261–1262 (Wyo.1988).

 

[¶ 14] In the current case, the insurance agreement between Lewis Holding and Lexington plainly and unambiguously excludes coverage for damages due to mechanical failure. The doctrine of estoppel cannot be used to extend the insurance coverage to include risks that are expressly excluded by the policy. The district court did not err in granting summary judgment in favor of Lexington and NTA.

 

B. Claim against Forsberg Engerman Company

[5] [¶ 15] The factual basis for Lewis Holding’s claims against Forsberg is that Lewis Holding “dealt solely with Forsberg,” and made its insurance payments to Forsberg. The insurance policy had been mailed to Lewis Holding from Forsberg’s office. While acknowledging that Lexington issued the insurance policy at issue, Lewis Holding contends that it had no direct dealings with Lexington. Lewis Holding has not, however, presented any legal authority that supports its claim that these facts are sufficient to render Forsberg liable under an insurance contract between Lewis Holding and Lexington.

 

[¶ 16] Forsberg, in contrast, cites cases from several jurisdictions applying the rule that an insurance agent who is not a party to an insurance contract cannot be held liable for insurance claims. For example, in Shrewsbery v. National Grange Mut. Ins. Co., 183 W.Va. 322, 395 S.E.2d 745, 748 (1990), the West Virginia court stated that an insurance agent “is not party to a contract with the insured; rather, he helps the company procure and service the company’s contract with the insured.” Forsberg also quotes Hogan v. Postin, 695 P.2d 1042, 1045 (Wyo.1985), for the principle that, “Absent an agreement to assume liability for nonperformance of a contract, an agent is not personally liable.” Hogan did not involve an insurance agent, but it provides general support for Forsberg’s assertion that an insurance agent cannot be held liable under an insurance contract to which it is not a party.

 

[¶ 17] We agree with Forsberg’s assertion. Forsberg was the agent who helped Lewis Holding obtain its insurance, but it is not a party to that insurance policy. Lewis Holding does not contend that Forsberg agreed to assume liability under the insurance policy, and it offers no other factual basis or legal theory for holding Forsberg liable under the insurance policy. The district court correctly granted Forsberg’s motion for summary judgment.

 

II. Covenant of Good Faith and Fair Dealing

[¶ 18] Lewis Holding also asserted claims against Lexington, NTA, and Forsberg for breach of the covenant of good faith and fair dealing. In the insurance context, we have held that “[t]o prove a claim for bad faith, a plaintiff must demonstrate (1) the absence of a reasonable basis for denying benefits of the policy and (2) the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.” *827Matlack v. Mountain West Farm Bureau Mut. Ins. Co., 2002 WY 60, ¶ 19, 44 P.3d 73, 81 (Wyo.2002). We have previously concluded that Lexington, NTA, and Forsberg were not liable to Lewis Holding under the insurance policy. This conclusion also establishes that these parties had reasonable bases for denying Lewis Holding’s claim. We therefore affirm the district court’s grant of summary judgment in their favor on Lewis Holding’s claim for breach of the covenant of good faith and fair dealing.