                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2006

Amato v. Atty Gen PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3011




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Amato v. Atty Gen PA" (2006). 2006 Decisions. Paper 934.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/934


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                     No. 05-3011


                                   GARY AMATO,

                                                Appellant

                                           v.

               PENNSYLVANIA OFFICE OF ATTORNEY GENERAL;
               PENNSYLVANIA OFFICE OF ATTORNEY GENERAL
                       INSURANCE FRAUD SECTION;
                 DAVID A. WAUGAMAN; MICHELLE KONDRAD




                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 04-cv-01782)
                      District Judge: Hon. Terrence F. McVerry


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 30, 2006

                    BEFORE: SMITH and COWEN, Circuit Judges,
                         and THOMPSON*, District Judge

                                 (Filed: June 8, 2006 )




*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                         OPINION


COWEN, Circuit Judge.

       Gary Amato appeals the order of the district court granting Special Agent David

Waugaman’s motion to dismiss Amato’s malicious prosecution action brought pursuant to

42 U.S.C. § 1983. We will affirm.

                                             I.

       The parties are familiar with the facts, which are only briefly recited. Amato had

an automobile insurance policy with State Farm Mutual Automobile Insurance Company

(“State Farm”). The policy provided, inter alia, first party benefits for wage loss and

medical expenses for bodily injury arising out of the maintenance or use of a motor

vehicle.

       Agent Waugaman filed a criminal complaint and an affidavit of probable cause

against Amato for insurance fraud and attempted theft by deception pursuant to 18 Pa.

Cons. Stat. Ann. §§ 4117(a)(2) and 901(a). According to the affidavit of probable cause,

Amato called 911 twice due to an altercation with Marci Casselhoff-Feinberg on April 8,

2002. Sergeant Michael Shirey responded to the scene and took statements about the

incident from Casselhoff-Feinberg and Amato. Casselhoff-Feinberg told Sergeant Shirey

that she and Amato were arguing inside his residence when she struck him on the forearm

with a dog collar. Amato stated that he was going to call the police. Casselhoff-Feinberg

                                             2
left the residence and got into her car. Amato tried to prevent her from leaving by

holding her car door. When Amato released the car door, Casselhoff-Feinberg drove

down the driveway. When she got to the end of the driveway she decided to stay so she

could provide the police with her version of the incident. When asked whether she hit

Amato with her car, she emphatically denied hitting him.

       Amato provided Sergeant Shirey with a similar version of the altercation. He

stated, however, that Casselhoff-Feinberg attempted to run him over with her car. When

asked whether he was hit by the car, Amato responded, “No.” Sergeant Shirey observed

the red welt on Amato’s arm from being hit with a dog collar. He did not observe any

other injuries.

       The affidavit of probable cause further states that Amato submitted a claim to State

Farm, alleging that he was injured after being hit by an automobile. Amato also contacted

the police department two days after the altercation, and stated that he was being treated

at the hospital for a fractured hip and tail bone. Sergeant Shirey was surprised by

Amato’s injuries because Amato stated previously that he was not hit by the car. The 911

tapes were then reviewed by Sergeant Shirey and Agent Waugaman. Amato did not state

in either call that he had been hit by the car. Furthermore, a review of Amato’s medical

records, including x-rays, did not reveal any fractures or dislocations.

       After the criminal complaint and affidavit of probable cause were filed, an arrest

warrant was issued. Amato turned himself in to the police. On November 20, 2002, a



                                              3
preliminary hearing was held by Senior District Justice Frank Delbane. At the end of the

hearing, District Justice Delbane dismissed the charges.

       Amato then filed a malicious prosecution action with the district court. Agent

Waugaman filed a motion to dismiss contending that probable cause to arrest existed and

that he was entitled to qualified immunity. On May 10, 2005, the district court granted

the motion to dismiss, finding that probable cause existed based on Amato’s conflicting

statements regarding whether he was hit and injured by Casselhoff-Feinberg’s car. In the

alternative, the district court held that Special Agent Waugaman was entitled to qualified

immunity.

                                             II.

       The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We exercise

appellate review pursuant to 28 U.S.C. § 1291. We have plenary review over a district

court's grant of a motion to dismiss for failure to state a claim. See Lum v. Bank of Am.,

361 F.3d 217, 223 (3d Cir. 2004). “To decide a motion to dismiss, courts generally

consider only the allegations contained in the complaint, exhibits attached to the

complaint and matters of public record.” Pension Benefit Guar. Corp. v. White Consol.

Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). A motion to dismiss pursuant to Federal

Rule 12(b)(6) should be granted only if, accepting as true the facts alleged and all

reasonable inferences that can be drawn therefrom, there is no reasonable reading upon

which the plaintiff may be entitled to relief. See Lum, 361 F.3d at 223.



                                              4
       The first issue to consider is whether Agent Waugaman had probable cause to file

a criminal complaint for insurance fraud.1 A person commits insurance fraud if he or she

“[k]nowingly and with the intent to defraud any insurer or self-insured, presents or causes

to be presented to any insurer or self-insured any statement forming a part of, or in

support of, a claim that contains any false, incomplete or misleading information

concerning any fact or thing material to the claim.” 18 P A. C ONS. S TAT. A NN. §

4117(a)(2). Probable cause exists if the facts and circumstances within the arresting

officer's knowledge are sufficient to warrant a prudent person to conclude that the suspect

has committed, is committing, or was about to commit a crime. See Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979).

       Agent Waugaman had probable cause to believe that Amato committed insurance

fraud because of his inconsistent statements regarding whether he was hit by Casselhoff-

Feinberg’s car and the conflicting evidence regarding his injuries. When Sergeant Shirey

first arrived at the scene, Amato said he was not hit by the car. This statement conflicts

with his subsequent claim made two days later that he was hit by the car. As to his

injuries, there is no indication that he informed Sergeant Shirey of an injured tail bone

and hip at the scene. Two days later, Amato claimed that he fractured his hip and tail

bone. The x-rays did not support his claim. Based on the information within Special

   1
     An essential element of a malicious prosecution claim is that the “proceeding [be]
initiated without probable cause.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.
2003). Stated differently, if probable cause is established, a malicious prosecution claim
fails as a matter of law.

                                             5
Agent Waugaman’s possession, a prudent person would reasonably believe that Amato

made false statements material to his claim for first party benefits.

       Amato contends that the district court misinterpreted the word “claim” in 18 Pa.

Cons. Stat. Ann. § 4117(a)(2). He asserts that his alleged false statements are immaterial

to the ultimate question of coverage for first party benefits because all he has to establish

is an injury generated in connection with a motor vehicle. He argues that nothing in the

affidavit suggests that his medical bills were generated in connection with an occurrence

other than the incident with Casselhoff-Feinberg’s vehicle. We disagree. To determine if

an insured is entitled to benefits under the policy, an individualized inquiry must be

conducted to determine if the specific facts and circumstances alleged provide for

recovery. Amato’s specific statements regarding the source and type of injuries sustained

are material to his claim for first party benefits. The district court did not err by finding

that Amato’s contradictory statements regarding whether he was hit by the car and the

conflicting evidence as to the type of injuries he sustained were material to his claim for

first party benefits.

       Amato further contends that Waugaman made a material omission in the affidavit

of probable cause because he failed to include a differential diagnosis from an emergency

room record. The differential diagnosis provided: “Fx L-spine, Fx pelvis, Fx coccyx, and

[i]lian [c]rest Fx.” (Appellant Br. at 9.) We disagree. Amato’s x-rays revealed no

fractures or dislocations, thus, the differential diagnosis was not a material omission.



                                               6
Even if Agent Waugaman included the differential diagnosis in the affidavit of probable

cause, Amato still made inconsistent statements about whether he was hit by Casselhoff-

Feinberg’s car. The inconsistent statements alone were sufficient to establish probable

cause for insurance fraud.

      For the foregoing reasons, the judgment of the District Court entered on May 10,

2005, will be affirmed.




                                            7
