Sentinel. The Bad Faith. Tenth Circuit finds insureds bad faith claim was not frivolous despite full payment by insurer

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1 INSURANCE PRACTICE GROUP FEBRUARY 2011 Bad Faith Insurance Newsletter Contacts: Joseph C. Monahan Thomas S. Schaufelberger Matthew M. Haar Amy L. Piccola Carolyn Due CONTENTS Tenth Circuit finds insureds bad faith claim was not frivolous despite full payment by insurer pages 1-2 Pennsylvania court holds threadbare recitals of the elements of bad faith insufficient to support a claim for bad faith pages 2-3 Oklahoma court: if it acts like insurance, it is insurance pages 3-4 Pennsylvania court concludes abuse of IME process may be bad faith pages 4-5 Court concludes insurer did not act in bad faith by delaying appointment of appraiser when newly discovered coverage questions came to light pages 5-6 The Bad Faith Sentinel Standing guard on developments in the law of insurance bad faith around the country Tenth Circuit finds insureds bad faith claim was not frivolous despite full payment by insurer Blakely v. USAA Casualty Ins. Co., No , 2011 WL , (10th Cir. Jan. 25, 2011). Despite receiving full appraised value of damaged property, insureds still had a valid bad faith claim against their insurer. In August 2002, a fire caused by a flooring contractor caused significant damage to the Blakelys home and personal belongings and the family was forced to temporarily find alternate housing. At the time of the fire, the Blakelys were insured under a homeowners insurance policy issued by USAA. The policy insured against losses sustained to the dwelling itself and to the Blakelys personal property, as well as against expenses incurred to obtain temporary living arrangements. Blakely timely reported the fire and resulting losses to USAA and USAA sent an adjuster to inspect the damage and a contractor to repair the damage to the Blakelys home. Ultimately, USAA paid out $93, Throughout the process, however, the Blakelys were dissatisfied with the work on their home and the extent to which their personal property was cleaned and/or replaced. Because USAA refused to authorize additional expenses, the Blakelys did the work (and paid for it) themselves. In 2005, approximately two and a half years after the fire, the Blakelys invoked an appraisal demand clause in the policy and notified USAA of their appraiser. USAA timely responded and named its appraiser. An umpire was selected and a final appraisal award was issued in October The award totaled nearly $300,000. After a credit for the $93, it had already paid, USAA paid the Blakelys the amount in the umpire s appraisal. In March 2006, the Blakelys filed a lawsuit against USAA asserting four claims: breach of contract, bad faith, breach of industry standards and statutes and intentional infliction of emotional distress. In relevant part, the Blakelys allege USAA filed to make adequate and timely repairs, reimbursements, and investigations under the policy, and that they suffered both financial and emotional damages as a result. USAA sought summary judgment on all claims except for the bad faith claim. The district court dismissed the Blakelys claims for breach of industry standards and statutes and for intentional infliction of emotional distress

2 During the final pretrial conference, USAA suggested that the district court dismiss the bad faith claim as frivolous under Federal Rule of Civil Procedure 16. USAA contended the evidence demonstrated that its view of the loss was fairly debatable and thus the Blakelys could not succeed on their claim. The district court agreed with USAA s position and dismissed the claim. The Blakelys appealed. The Court of Appeals for the Tenth Circuit concluded that the Blakelys bad faith claim was not frivolous. The Court explained the Blakelys alleged and put forth sufficient evidence suggesting that USAA acted unreasonably in taking its initial position regarding the loss amount. This evidence included: the appraisal award was nearly three times more than USAA s initial payout; USAA s adjuster refused to communicate with the Blakelys; USAA s adjuster claimed that he could not smell smoke when the smell proved noticeable in the house three years later; USAA delegated adjustment of the contents claim to a non-adjuster; and USAA refused to pay for any repairs other than structural ones. Although the Court noted that it was not expressing an opinion on the ultimate merits of the bad faith claim or whether the evidence was sufficient to withstand any other type of dispositive motion, it ruled, it is abundantly clear that [the] claim is not wholly incredible as required for dismissal under Rule 16. Pennsylvania court holds threadbare recitals of the elements of bad faith insufficient to support a claim for bad faith Eley v. State Farm Ins. Co., No. 10-cv-5564, 2011 WL (E.D. Pa. Jan. 31, 2011). Relying on recent precedent, the Eastern District of Pennsylvania dismisses bad faith suit. Tanya Eley was injured in a motor vehicle collision with an uninsured driver. She and her husband filed a claim with State Farm Insurance Company for her injuries and for Mr. Eley s loss of consortium. Three days after filing the claim, the Eleys sent a letter to State Farm demanding a settlement amount of $195,000. State Farm declined to settle or refer the claim to arbitration. The Eleys then filed suit alleging breach of contract and bad faith. State Farm moved to dismiss, arguing that the Eleys failed to allege sufficient or specific facts from which the Court could determine whether or not State Farm acted in bad faith. The allegations of bad faith contained in the Eleys complaint stated: 18. There was no reasonable basis for the following acts and omissions of defendant: (a) Failure to negotiate plaintiffs [UIM] claim in good faith. (b) Failure to properly investigate and evaluate plaintiff[s ] insurance claim. (c) Such other acts to be shown through discovery. 19. The defendant knew or recklessly disregarded the fact that it had no reasonable basis for its above conduct in handling plaintiffs [UIM] claim. 20. Defendant s conduct in handling plaintiffs [UIM] claim constituted bad faith within the meaning of 42 Pa.C.S.A Defendant acted in reckless disregard of plaintiffs claims and rights and its conduct was willful, wanton and outrageous. In opposition to State Farm s motion to dismiss, the Eleys cited to Conley v. Gibson, 355 U.S. 41, 47 (1957) to argue that State Farm did not meet the burden of proving beyond doubt that [Plaintiffs] can prove no set of facts in support of [their] claim that would entitle [them] to relief. The District Court for the Eastern District of Pennsylvania found that the United States Supreme Court s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) rejected the Conley v. Gibson no set of facts language in favor of a height

3 ened pleading standard. The Twombly decision was supported by the United States Supreme Court s subsequent decision in Ashcroft v. Iqbal, 129 S.Ct (2009). Under this heightened standard a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), the Third Circuit found that the Iqbal decision required a two-part analysis for motions to dismiss: (1) the court should separate the facts from the legal conclusions asserted in the complaint and the court must take the facts as true, but may disregard the legal conclusions; (2) the court must determine whether the facts are sufficient to support the plaintiff s claim. Pursuant to Fowler, the Court in Eley separated the facts from the plaintiffs legal conclusions and found that [a]ccepting all wellpleaded facts as true, this Court can merely conclude that (1) Plaintiffs insurance policy with Defendant provided UIM coverage, (2) Plaintiffs suffered injury and/or loss of consortium as a result of Ms. Eley s collision with a negligent underinsured motorist, (3) Plaintiffs complied with the terms of the insurance policy in seeking coverage, and (4) Defendant has declined to settle Plaintiffs claim. The facts thus separated, the Court found that the Eleys allegations of bad faith lacked factual specificity and that the bad faith allegations were threadbare recitals of the elements of a cause of action, supported by mere conclusory statements. Without facts from which the Court could determine whether or not State Farm breached its duty of good faith, the Court granted State Farm s motion to dismiss the Eleys bad faith claim. This decision is consistent with two other recent cases in the Eastern District of Pennsylvania where the plaintiffs allegations were found to be bare bones conclusory allegations and without facts sufficient to support a claim of bad faith. (See Robbins v. Metropolitan Life Ins. Co. of Connecticut, No , 2008 WL (E.D. Pa. Dec. 29, 2008) and Atiyeh v. National Fire Ins. Co. of Hartford, No. 07-cv , 2010 WL (E.D. Pa. Sept. 27, 2010)). Oklahoma court: if it acts like insurance, it is insurance McMullan v. Enterprise Financial Group, Inc., No , 2011 WL (Okla. Jan. 31, 2011). An Oklahoma Court concluded that a vehicle service contract provider can be liable for bad faith conduct. Henry McMullan, III purchased a Ford Mustang Cobra from a Hyundai dealership along with a vehicle service contract from Enterprise Financial Group, Inc. The vehicle service contract indemnified McMullan for certain repair costs if a mechanical breakdown occurred before 48 months or before the vehicle s odometer reached 50,000 miles. Approximately six-months into the contract, McMullan submitted a claim to Enterprise for a mechanical breakdown of the Cobra. Enterprise denied the claim and McMullan filed an action for breach of contract and bad faith breach of contract. Enterprise argued that the vehicle insurance contract was not an insurance contract and therefore, it could not be subject to the duty of good faith imposed on insurers. The trial court granted Enterprise s motion for partial summary judgment on the matter. The Supreme Court of Oklahoma reversed this decision. The Supreme Court began its analysis of whether a vehicle service contract provider should be held to have the same duty of good faith as an insurer by looking to the Oklahoma Insurance Code and the Service Warranty Insurance Act. The Court analyzed the definitions of insurance, insurer, and indemnity contained in the Code and the Act. The Code defined insurance as a contract whereby one undertakes to indemnify another or to pay a specified amount upon determinable contingencies. It defined insurers as every person engaged in the business of making contracts of insurance or indemnity. The Service Warranty Insurance Act defined indemnity as undertaking repair or replacement of a consumer product. The Act also defined insurers as any property or casualty insurer duly authorized to transact business in Ohio and service warranty associations as any person, other than an insurer, who issues service warranties

4 The Court also looked to decisions by the Supreme Court and other state courts in its analysis. In Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205 (1979), the United States Supreme Court stated that [t]he primary elements of an insurance contract are the spreading and underwriting of a policy-holder s risk. In looking to state courts, the Supreme Court of Oklahoma took note of a decision by the Ohio Supreme Court, which determined that vehicle service contracts did not substantially amount to insurance, (Griffin Systems, Inc. v. Ohio Dept. of Ins., 61 Ohio St.3d 552 (1991)), but found decisions by the Arizona Supreme Court and the Utah Court of Appeals that disagreed to be persuasive. In Jim Click Ford, Inc. v. City of Tucson, 154 Ariz. 48 (1987), the Arizona Supreme Court articulated five elements of an insurance contract: (1) an insurable interest; (2) a risk of loss; (3) an assumption of risk by the insurer; (4) a general scheme to distribute the loss among the larger group of persons bearing similar risks; and (5) the payment of a premium for the assumption of risk. The Arizona Supreme Court found that a vehicle services agreement met those five elements. The Utah Court of Appeals also found that a vehicle services contract was an insurance contract for purposes of awarding fees for breach of the duty of good faith. In Pugh v. North American Warranty Services, 2000 UT APP 121 (2000), the Utah Court of Appeals stated that the sole purpose of a vehicle service contract was to shift the risk of financial loss from the consumer to the service contract provider, which served the same purpose as insurance. The Court stated that although vehicle service providers may not be subject to the same regulations as insurance companies, the purpose of the contract is to provide indemnity and shift risk. Since vehicle service contracts served the same purpose as an insurance policy to indemnify a consumer, who pays a premium to shift the risk to the provider the Court held that vehicle service contract providers should be subject to the same duty of good faith imposed upon insurers. Pennsylvania court concludes abuse of IME process may be bad faith Roppa v. GEICO Indemnity, Co., No , 2010 WL (W.D. Pa. Dec. 29, 2010); Roppa v. GEICO Indemnity Co., No. 2:10-cv-1428, 2011 WL (W.D. Pa. Jan. 19, 2011) Pennsylvania s Motor Vehicle Financial Responsibility Act does not preempt bad faith claims premised on insurer s alleged abuse of independent medical exam process. In 2001, Roppa, a GEICO insured, was involved in a motor vehicle collision that caused various injuries to his back, legs and feet. Eight years after the accident, Roppa s doctor suggested a new course of treatment, which included three spinal injections and left lumbar nerve blocks. The day after his doctor made the recommendation for a change in his treatment, Roppa underwent an independent medical evaluation at GEICO s request. GEICO s selected doctor concluded that Roppa had reached maximum medical improvement. GEICO consequently denied payment for Roppa s medical treatment, including the spinal injections and nerve blocks, obtained on and following the date of the IME. Roppa sued GEICO alleging breach of contract and bad faith for the refusal to pay outstanding first party medical benefits. GEICO filed a motion to dismiss Roppa s bad faith claim arguing that the Pennsylvania legislature intended the Motor Vehicle Financial Responsibility Act ( MVFRL ) to provide the exclusive remedy for alleged bad faith denials of first party benefits by insurance companies. Because the Pennsylvania Supreme Court has not yet addressed the issue of whether the MVFRL preempts Pennsylvania s bad faith statute where the insured alleges misuse or abuse of the peer review process, the Magistrate Judge had to predict how the state s high court would rule if faced with the issue

5 The Magistrate Judge noted that a split exists among the courts on the issue of whether preemption applies in the case of abusive practices. The Magistrate Judge concluded that the scope of the MVFRL is limited to claims challenging an insurer s denial of first party benefits predicated on the reasonableness and necessity of medical treatment. Thus, the MVFRL does not bar a statutory bad faith claim where the peer review process set forth in the MVFRL is not actually followed. Because Roppa alleged that GEICO utilized the IME process for an improper purpose, i.e. to create an artificial basis upon which [it] could terminate [Roppa s] first party benefits and put[] its own financial and monetary interests ahead of its insured s [interests] to the detriment of the insured, the Magistrate Judge found that Roppa pled sufficient facts to state a plausible claim for statutory bad faith based on abuse of the peer review process. In January 2011, the Western District of Pennsylvania adopted the opinion of the Magistrate Judge and denied GEICO s motion to dismiss. Court concludes insurer did not act in bad faith by delaying appointment of appraiser when newly discovered coverage questions came to light Portside Investors, L.P., et al v. Northern Ins. Co. of New York, December Term 2002, No. 889 (Ct. Com. Pl. Jan. 5, 2011). A Pennsylvania court determined that an Insurer, relying on information revealed in federal criminal indictment, reasonably delayed appraisal to reassess coverage issues. On May 18, 2000, a pier on the Delaware River in Philadelphia collapsed, causing three deaths and injuries to others. At the time of the collapse, Pier 34, owned by Portside Investors, contained a restaurant and nightclub. Portside filed a claim for the loss with Northern, its insurer. Portside hired a public adjuster for the loss and Northern hired a consultant to investigate the cause of the collapse. In October 2000, Portside submitted a Sworn Proof of Loss seeking in excess of $15 million. The Proof of Loss identified the cause and origin of the loss as hidden decay and included the cost of replacement for the building on the pier, debris removal and one year of lost rental income. Portside did not include an estimate of the actual cash value of the damaged property. In February 2001, Northern informed Portside that first party property coverage was available under the policy for certain property damage and related business interruption and extra expense resulting from the collapse. Since the pier was not going to be replaced, Northern directed its consultant to determine the actual cash value of the pier as required under the policy. In April 2001, after a comprehensive qualified investigation which included an underwater survey, a review of historical records and a model of the pier and its condition at the time before it collapsed, Northern s consultant concluded that the physical structure of the pier had far exceeded its useful life, had been poorly maintained, was worthless at the time of the loss and therefore had no actual cash value. Northern paid Portside approximately $2.7 million in settlement of many of Portside s claims, including the loss of the building on the pier, the costs of debris removal and lost income for one year. Despite the determination that the pier had no actual cash value, Northern also made a $200,000 payment for the pier structure itself. Portside informed Northern that it disagreed with Northern s conclusion regarding the actual cash value of the pier and demanded an

6 appraisal under the policy. Notwithstanding its demand, Portside itself never designated an appraiser, nor did it apply to the Court to require designation of an appraiser by Northern. On the day Portside demanded an appraisal, a grand jury in Philadelphia indicted Portside s two principals for involuntary manslaughter and other offenses relating to their conduct in ignoring prior warnings of engineers and others as to the unsafe nature and imminent collapse of the pier in the months, days and hours before its ultimate failure. The presentation filed in support of the indictment indicated that the insureds had knowledge of continued movement by the pier, cracking in various parts of the structure, and even that they discussed with their insurance broker a concern that the pier was sinking. In fact, on the morning of the collapse, a construction contractor informed Portside s principals that the pier was in a state of failure and would probably collapse at the next low tide, which was to occur that evening. Northern, after learning of the indictment, informed Portside that it was reopening its investigation as to both coverage and value of the loss and requested that Portside s principals appear for an examination under oath before it would appoint an appraiser. Three months later, Portside sued Northern, asserting claims for breach of contract and bad faith. Portside s bad faith claim was premised on an allegation that Northern s request for examination under oath after some of the claims presented had been paid and after a request for an appraisal had been made was a pretext and constituted a denial for no good reason of Portside s right to an appraisal. Portside s bad faith claim was tried non-jury in October 2009 and the court found that Northern s conduct did not amount to bad faith under Pennsylvania s bad faith statute. Portside subsequently filed a motion for post trial relief. On review, the Court agreed that in some circumstances Northern s failure to abide by the terms of the policy and select an appraiser might constitute bad faith. The Court concluded, however, that because coverage itself again became a potential issue when the indictment was filed, the failure was not bad faith and it was appropriate for Northern to demand an examination before undertaking the appraisal process. The Court further noted that Portside itself failed to appoint an appraiser or seek court assistance to compel the appointment of an appraiser so that it was reasonable for Northern to conclude that Portside had abandoned its request. This publication has been prepared by the Insurance Practice Group for information purposes only. The provision and receipt of the information in this publication (a) should not be considered legal advice, (b) does not create a lawyer-client relationship, and (c) should not be acted on without seeking professional counsel who have been informed of the specific facts. Under the rules of certain jurisdictions, this communication may constitute Attorney Advertising Saul Ewing LLP, a Delaware Limited Liability Partnership. ALL RIGHTS RESERVED Baltimore, MD 500 East Pratt St. Charles O. Monk, II Chesterbrook, PA 1200 Liberty Ridge Dr. Michael S. Burg Harrisburg, PA 2 North Second St. Eric L. Brossman Newark, NJ One Riverfront Plaza Stephen B. Genzer New York, NY 400 Madison Ave. John J. Jerome Philadelphia, PA 1500 Market St. Bruce D. Armon Princeton, NJ 750 College Rd. E Marc A. Citron Washington, DC 2600 Virginia Ave. NW Mark L. Gruhin Edward R. Levin Wilmington, DE 222 Delaware Avenue Wendie C. Stabler William E. Manning

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