1 2013 PENNSYLVANIA BAD FAITH AND INSURANCE LAW REVIEW Notable Bad Faith Verdicts BAD FAITH REVIEW Grossi v. Travelers Personal Insurance, 79 A.3d 1141 (Pa. Super. Ct. 2013). The Pennsylvania Superior Court upheld a bad faith verdict, including almost $1.3 million in punitive damages, which was entered by Judge Kwidis in Beaver County following a non-jury trial. Specifically, the Superior Court rejected the insurer s argument that it had a reasonable basis for questioning the insured s future earnings loss claim because allegations of future wage loss are inherently speculative. The Superior Court found that the insurer had not conducted an independent evaluation of the future earning loss claim and to accept the insurer s position would justify rejection of any UIM claim simply on the basis of inherent uncertainly when estimating damages, without engaging in any particularized analysis or investigation of the individual claim. The Superior Court also held that the length of time the insurer took to investigate was bad faith due to inexcusable periods of inactivity, unreasonable assumptions, and inadequate communication. Furthermore, while arbitration is an adversarial process that takes time, the Superior Court concluded that the insurer ultimately developed its own independent information not to review or justify its denial of [the insured s claim] and establishment of the low reserve, but to prepare for arbitration. Rhodes v. USAA Casualty Insurance Company, Docket No GN 2279 (Blair C.C.P. July 18, 2013). Following a bench trial, the court entered a verdict in favor of an insurer as to the insured s claim for Section 8371 bad faith after finding that the insured failed to prove by clear and convincing evidence that the insurer acted in bad faith by refusing to meet the insured s settlement demand for UIM benefits sooner than it did. The court found that all of the alleged delays were as a result of the pace of litigation and none were unreasonable. The court also held that a low but reasonable offer is not bad faith where the insurer made a reasonable and honest estimate of the insured s losses. Davis v. Fidelity National Insurance, Docket No. 10-cv-8868 (Lackawanna C.C.P., Aug. 15, 2013). Following a bench trial on a Section 8371 bad faith claim, Judge Minora of the Court of Common Pleas of Lackawanna County found in favor of an insured and entered a verdict of more than $2 million, including nearly $1.6 million in punitive damages. The court found that the insurer acted in bad faith by delaying the resolution of a claim asserted against the insured that ultimately settled
2 for $50,000. Judge Minora characterized the inaction of the [insurer] as being outrageous and recklessly indifferent to the rights of its insured, especially because the insurer failed to respond to multiple inquiries from the insured regarding the status of the claim and it took the filing of the bad faith lawsuit to motivate the insurer to authorize the resolution of the claim. Procedural/Evidentiary Issues No Cause of Action Against Claim Professional Scheerer v. Progressive Advanced Insurance Company, Docket No. 2:13-cv-2919 (E.D.Pa. Aug. 9, 2013). The court confirmed that an insured s claims asserted against claim professionals, personally, for breach of contract and Section 8371 bad faith were wholly insubstantial and frivolous. Accordingly, the court granted the claim professional s motions to dismiss. The court also denied the insured s motion to remand his claims against the out-of-state insurer (the claim professionals employer) after finding that the insured had fraudulently joined the claims against the claim professionals in order to defeat diversity jurisdiction. Bifurcation Cooper v. Metlife Auto & Home, 2013 WL (W.D.Pa. Aug. 6, 2013). The court held that bifurcation of a trial for breach of contract for UIM benefits and statutory bad faith pursuant to 42 Pa.C.S.A was not appropriate because the factual bases for both claims were not significantly different i.e., they both arose out of a dispute regarding the value of the insureds claim for UIM benefits. Motions In Limine Scott v. GEICO General Ins. Co., 2013 WL (M.D.Pa. Nov. 15, 2013). The court granted an insurer s motions in limine to exclude evidence of a UIM arbitration award, the insurer s post-arbitration internal memorandum, and testimony from the insured s bad faith expert from the trial of a subsequent statutory bad faith claim. The court reasoned that regardless of the arbitration outcome, the key issue for the jury is whether the defendant made an offer in bad faith when the extent of the Plaintiff s injuries had become clear and acted knowingly and recklessly without reasonable basis. The court held that the arbitration award and the majority of the post-arbitration report were irrelevant or more prejudicial than probative on the issue of whether the insurer had a reasonable basis for its offers.
3 Schifino v. Geico General Ins. Co., 2013 WL (W.D.Pa. May 31, 2013). The court granted motions in limine and precluded expert testimony regarding whether the insurer acted in bad faith, concluding that expert testimony on this issue was not necessary. The court stated that [a] reasonable juror certainly possesses the requisite knowledge to assess the bad faith allegation, which is equally neither complex nor scientific Rather, that claim involves whether [the insurer] has a reasonable basis for the manner in which it handled plaintiff s claim, an issue within the province of the jury as its role as fact finder. Mirarchi v. Seneca Specialty Ins. Co., 2013 WL (E.D.Pa. Mar. 22, 2013). The court refused to admit an expert report in support of the insured s bad faith claims. The court found that the report was largely comprised of legal argument and contained legal conclusions throughout, which were not admissible because they went to the ultimate issue to be decided by the court. Removal to Federal Court Mazza v. Peerless Indemnity Ins. Co., 2013 WL (E.D.Pa. Aug. 7, 2013) The court remanded a lawsuit to state court after finding that the $75,000 amount in controversy required for diversity jurisdiction was not satisfied where the insured claimed compensatory damages of $11, and the insurer could not establish to a legal certainty that the $75,000 amount in controversy requirement would be met. The court noted that there was insufficient evidence that over $63,000 in punitive damages would be recoverable in the action to meet the jurisdictional amount in controversy. The court also held that the insured s refusal to sign a stipulation stating that no more than $75,000 in damages could be recovered was not sufficient to establish the amount in controversy. Coates v. Nationwide Ins. Co., 2013 WL (E.D.Pa. Sept. 16, 2013). The court remanded a case which had been removed to federal court after finding that the amount in controversy in the insured s UIM-related breach of contract and statutory bad faith action did not meet the $75,000 jurisdictional threshold because (1) the possibility that an appeal of an arbitration award could result in a verdict in excess of $75,000 is not sufficient to establish the amount in controversy, and (2) the insured stipulated to limit any verdict to a maximum of $75,000. Minissale v. State Farm, 2013 WL (E.D.Pa. Dec. 20, 2013). The court found the insurer s notice of removal was untimely because the insurer should have ascertained that the insured s claim would meet the amount in controversy for removal to federal court when the complaint was filed, based on its prior receipt of the insured s property damage estimate in the amount of $55,300 as well as the inclusion of a bad faith claim in the Complaint.
4 UM/UIM Claims Dispute Over Causation/Value Schifino v. Geico, 2013 WL (W.D.Pa. Dec. 13, 2013). The court granted judgment in favor of an insurer following a bench trial on the insured s claim for Section 8371 bad faith. Despite finding that the insurer s conduct in investigating the underlying UIM claim was certainly not free from criticism in its initial handling because the insurer could have made a more thorough inquiry into Plaintiff s pre-existing post-accident medical condition, the court held that the insurer s investigation was reasonable. The court noted that the insurer s position on causation was supported by an IME report. Further, while the insured argued that the insurer acted in bad faith by making low settlement offers and failed to offer the entire reserve amount, there was no evidence that the insurer s offers were motivated by selfinterest or ill will to support a conclusion that [the insurer] was reckless and [the insurer] disregarded its lack of reasonable basis. Rather, the court found that there was an honest dispute between the parties regarding the value of the claim and causation. Richardson v. United Financial Casualty Company, 2013 WL (E.D.Pa. May 30, 2013). The court granted summary judgment in favor of an insurer after finding that the insurer had a reasonable basis to dispute causation and proceed to UIM arbitration when there was evidence that the insured had a pre-existing condition and the accident involved a minor impact, despite the entry of a $625,000 arbitration award. Katta v. Geico Ins. Co., 2013 WL (W.D.Pa. Jan. 24, 2013). The court granted summary judgment in favor of the insurer with respect to the insured s Section 8371 statutory bad faith claim. The court determined that the insured failed to present clear and convincing evidence that the insurer s evaluation of the insured s claim for UM benefits was unreasonably low because the evaluation was based on the information available to the insurer. The insurer described its claim handling process and the factors it reasonably considered when evaluating the claim. It was only after the insurer conducted its initial evaluation and the insured filed the lawsuit that the insured presented evidence of his lost wages, changing the evaluation of the claim. Alleged Delay Deibler v. Nationwide Mutual Insurance Co., 2013 WL (W.D.Pa. Aug. 23, 2013). The court granted summary judgment to an insurer after finding that the insured failed to establish clear and convincing evidence of Section 8371 bad faith based on the insurer s investigation of the insured s claim for UIM benefits, where the delays in the investigation were attributable to the
5 insured and third parties, as well as the insurer. The court found the scope and duration of the insurer s 30-month investigation to be reasonable and attributed all delays as reasonably related to the insurer s need for further investigation. The court also noted that during the course of its UIM claim investigation, the insurer was prohibited from contacting the insured because he was represented by counsel. As a result, the court found that the insurer s failure to obtain a statement could not serve as evidence of bad faith. Schlegel v. State Farm Mut. Auto. Ins. Co., 2013 WL (M.D.Pa. Aug. 8, 2013). The insureds brought an action, including claims for statutory bad faith and violations of Pennsylvania s Unfair Trade Practices and Consumer Protection Law, after the insurer requested medical documentation of the insured s injuries and ongoing medical treatment prior to processing a UIM claim. The court dismissed the bad faith and UTPCPL violation claims, finding that the insurance Policy included clauses which allowed the insurer to request medical documentation when evaluating a claim for UIM benefits and the insurer had a reasonable basis to request updated records because the claim was for ongoing medical treatment. Lublin v. American Financial Group, Inc., 2013 WL (E.D.Pa. June 20, 2013). The court granted summary judgment in favor of an insurer and determined that in the context of the insured s claim for UIM benefits, the insurer s investigation of the insured s claims for wage loss and loss of earning capacity, its evaluation of the insured s damages, and alleged misrepresentations relating to the identity of the insurer during the processing of the insured s claim could not constitute clear and convincing evidence of Section 8371 bad faith. Mirarchi v. Seneca Specialty Ins. Co., 2013 WL (E.D.Pa. Mar. 22, 2013). The court granted the insurer summary judgment as to the insured s claims for statutory bad faith, breach of contract and violation of the UIPA after finding that the insurer did not unreasonably delay payment. The court found that any delays stemmed from a genuine dispute over claim valuation and the insured s failure to timely respond to the insurer s requests for additional information. Property Damage Claims Reasonable Basis for Coverage Position Dunn v. Scottsdale Insurance Company, 2013 WL (M.D.Pa. Aug. 1, 2013). The court granted an insurer s motion for summary judgment as to the insureds Section 8371 bad faith claim, ruling that no reasonable jury could find that the insurer lacked a reasonable basis to deny underlying property damage claims where the denials were based on the reports of two independent claims adjusters which supported the insurer s coverage position.
6 Weinberg v. Nationwide Cas. And Ins. Co., 2013 WL (E.D.Pa. June 12, 2013). The court held that the insurer s denial of coverage for external property damage to their home was not unreasonable because reports by the adjuster and the insureds contractor attributed the cause of the external damage to faulty workmanship. However, there were triable issues of fact related to the insureds breach of contract claim specific to coverage for necessary repairs to protect the interior property. Calandrello v. Sentinel Ins. Co. Ltd., 2013 WL (M.D.Pa. June 7, 2013). The court granted the homeowners insurer s motion to dismiss relative to the insured s Section 8371 bad faith claim, finding that the insured s amended complaint alleged a mere dispute over value regarding an alleged property damage in connection with Hurricane Irene and thus failed to state a claim for statutory bad faith. The court held that a triable issue of fact regarding whether all of the alleged damages were covered by the homeowners policy existed such that the insured s breach of contract claim survived the motion to dismiss. Donahue v. Burns, 2013 WL (E.D.Pa. May 13, 2013). The court determined that the insured sufficiently pled a claim for bad faith arising from the insurer s denial of coverage for damage arising from a sewage back-up. The denial was based upon the Policy s flood water exclusion, despite a back-up sewer endorsement which provided coverage for such an occurrence. The holding adhered to Pennsylvania law in which concurrent cause exclusions are unenforceable in the presence of an affirmative grant of coverage. Investigation of a Questionable Claim Verdetto v. State Farm Fire and Casualty Company, 2013 WL (3d Cir. (Pa.) Jan. 17, 2013). The United States Court of Appeals for the Third Circuit affirmed summary judgment in favor of an insurer on the insureds breach of contract and Section 8371 bad faith claims in relation to a denial of a fire damage claim based on lack of cooperation because the insureds repeatedly failed to provide the insurer with authorization to obtain financial and telephone records in accordance with the your duties after loss provision of a renters insurance policy. The Third Circuit held that it is not bad faith for an insurance company to conduct a thorough investigation into a questionable claim. Hasan v. Allstate Ins. Co., 2013 WL (E.D.Pa. Apr. 24, 2013). The court found that the insurer had a reasonable basis to deny coverage for a fire loss claim with respect to a three-unit owner-occupied apartment building and dismissed the insured s Section 8371 bad faith claim. However, the court found genuine issues of material fact regarding whether alleged material misrepresentations were actually misrepresentations or whether they were only poorly-phrased statements from the non-native English-speaking insureds that were taken out of
7 context. Given the questions surrounding the alleged misrepresentations, the court denied summary judgment as to the insureds breach of contract claim. Duty to Advise Insured of Policy Provision Albert v. Erie Ins. Exchange, 2013 WL (Pa. Super. Ct. 2013) The Pennsylvania Superior Court affirmed the dismissal of a complaint for breach of contract and bad faith after holding that an insurer had no affirmative duty to advise its insured of any right to reimbursement for expenses incurred in connection with the defense of a lawsuit. Specifically, the Superior Court held that the insured could not maintain a Section 8371 claim in the absence of a viable breach of contract claim. The Complaint stemmed from allegations that the insurer failed to reimburse the insured s expenses pursuant to the policy s additional payments clause when the insured traveled and missed work for a deposition in a case in which the insured was a defendant. Attorneys Fees for Challenges to Denials of PIP Claims Herd Chiropractic Clinic, P.C. v. State Farm Mut. Auto Ins. Co., 64 A.3d 1058 (Pa. Feb. 20, 2013). The Pennsylvania Supreme Court reversed the Superior Court s decision and held that a medical provider cannot recover attorney s fees pursuant to Section 1797(b) of the Pennsylvania Motor Vehicle Financial Responsibility Law following a successful appeal of a peer reviewer s finding that medical treatment is not reasonable and necessary, because 1) Pennsylvania follows the American rule that attorney s fees are not collectable absent agreement or express statutory authority, and 2) the applicable statute does not expressly authorize an award of attorney s fees in cases where the insurer has challenged the reasonableness and necessity of treatment before a peer review organization. Levine v. Travelers, 69 A.3d 671 (Pa. Super. Ct. May 24, 2013). The Pennsylvania Superior Court upheld the trial court s order awarding attorneys fees to an insured based upon its finding that the automobile insurer had failed to follow the peer review process prior to denying payment for the insured s first-party medical expenses. The Superior Court noted that in Herd v. State Farm, the Pennsylvania Supreme Court held that 75 Pa. C.S.A. 1797(b)(4) authorizes the award of attorneys fees only in the event that the insurer has not invoked the peer review process. Because the insurer did not submit that treatment and charges to the scrutiny of the peer review process, the court found that the attorneys fees were properly awarded.
8 Violation of the UTPCPL The Insurance Law & Bad Faith Practice Group Tubman v. USAA Cas. Ins. Co., 2013 WL (E.D.Pa. Apr. 30, 2013). The court dismissed the insured s claims for breach of fiduciary duty, breach of common law bad faith, and violation of Pennsylvania s Unfair Trade Practices and Consumer Protection Law on the bases that (1) because of its hybrid nature involving elements of both first-party and third-party claims, a UIM claim does not involve a fiduciary duty; (2) the insured s common law bad faith claim was subsumed within the insured s breached contract claim; and (3) the insured s UTPCPL was barred by the economic loss doctrine. Attorney-Client Privilege CAMICO Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, 2013 WL (E.D.Pa. Jan. 28, 2013). The court denied an insurer s motion to compel documents that the insured claimed were subject to the attorney-client privilege after finding that the attorneys the insurer paid to defend the insured did not conduct a joint representation of the insured and insurer. While the co-client exception to the attorney-client privilege applies when two or more clients share the same attorney, the court rejected an absolute rule that an insurer is a co-client in every case in which it retains an attorney to represent an insured in an underlying action. The court concluded that a fact-based inquiry into the circumstances of the representation is required, particularly how the parties interact with the joint attorneys and with each other. Miscellaneous Pelagatti v. Minnesota Lawyers Mutual Insurance Co., 2013 WL (E.D.Pa. June 25, 2013). The court granted summary judgment in favor of an insurer and determined that the insured failed to show by clear and convincing evidence that the insurer lacked a reasonable basis to deny the insured s claim for defense and indemnification with respect to a legal malpractice claim. The court determined that the insurer s denial was appropriate because the insured attorney failed to provide timely notice of a potential claim under a claims-made policy, even though the insured had knowledge that (1) his client s claims had been dismissed due to his failure to comply with the statute of limitations, (2) the client s appeal was dismissed because of the insured s untimely filing, and (3) the client spoke with the insured about a potential legal malpractice claim against him.
9 Reginella Constr. Co., Ltd. v. Travelers Cas. and Sur. Co. of America, 2013 WL (W.D.Pa. May 31, 2013). The court predicted that the Pennsylvania Supreme Court would not recognize common law bad faith or breach of fiduciary duty claims by a principal against its surety to be valid where the terms of the surety contract between the parties govern the conduct at issue. The court held that because the claims against the surety arose entirely out of the surety s alleged non-compliance with the surety contract, the principal s common law bad faith claim was barred by the gist of the action doctrine. The court also noted that Pennsylvania law differentiates surety bonds from insurance contracts as instruments of commercial guarantee, rather than policies of insurance. Thus, no fiduciary duty is imparted on a surety under Pennsylvania law by operation of the surety contract. Reservation of Rights INSURANCE LAW REVIEW Babcock & Wilcox Co. v. American Nuclear Insurers, 76 A.3d 1 (Pa. Super. Ct. 2013) The Superior Court of Pennsylvania held that when an insurer tenders a defense subject to a reservation of rights, an insured may either 1) accept the defense and remain bound by the consent to settlement provisions of the policy, or 2) reject the insurer s defense and bind the insurer to a settlement to which the insurer did not consent, so long as the settlement is fair, reasonable, and non-collusive. The Superior Court remanded the case to the trial court to determine whether 1) the insureds in fact rejected the insurer s defense and 2) whether the insurer acted in bad faith in failing to provide consent. Allocation Between Covered and Non-Covered Claims Executive Risk Indemnity, Inc. v. Cigna Corporation, 74 A.3d 179 (Pa. Super. Ct. 2013). The Pennsylvania Superior Court confirmed that an insured has the burden of proving how to apportion settlement funds between covered and non-covered claims and fails to meet that burden when the evidence shows that the insured specifically chose not to allocate. Because the parties were equally sophisticated entities and the insured drafted the settlement agreement, chose counsel to participate in the settlement negotiations, controlled the underlying litigation and defense, and had better access to the relevant information and intentions of the parties, it was not only reasonable, but logical, that the insured bear the burden to allocate. Occurrence Zurich Am. Ins. Co. v. R. M. Shoemaker Co., 519 Fed. Appx. 90 (3d Cir. 2013). The United States Court of Appeals for the Third Circuit affirmed the district court s determination that the insurers commercial general liability policies did not afford coverage to the insured for a
10 New Jersey lawsuit that alleged faulty workmanship and negligent supervision of a subcontractor. The Third Circuit applied the Pennsylvania Supreme Court decision of Kvaerner and the Pennsylvania Superior Court decision of Gambone in determining that the allegations against the insured did not establish an occurrence under Pennsylvania law. The alleged damages, including water damage, were a foreseeable result of the faulty workmanship such that an occurrence was not established. Indalex Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 2013 PA Super 311 (Pa. Super. Ct. Dec. 3, 2013). A panel of the Pennsylvania Superior Court reversed the trial court s grant of summary judgment in favor of an insurer that found that claims arising out of allegedly defective off-the-shelf windows and doors constituted claims for faulty workmanship, and did not constitute an occurrence under the commercial umbrella policy issued by National Union or trigger National Union s duty to defend. The panel drew a distinction between claims arising out of faulty workmanship performed pursuant to a contractual undertaking and claims arising out of off-the-shelf products that fail and allegedly cause property damage and personal injury. The Superior Court concluded that neither Kvaerner, Gambone, nor Abbott, bar coverage, where off-the-shelf products are involved and the claims can be construed as an active malfunction, and not merely bad workmanship. Identification of Insurer at Trial Stepanovich v. State Farm, et. al., 78 A.3d 1147 (Pa. Super. Ct. 2013). The Superior Court held that identifying the insurer as a party to a UIM claim would not necessarily have run afoul of Pennsylvania Rule of Evidence 411, which prohibits the introduction of liability insurance into evidence. However, the Superior Court further held that the plaintiff was not entitled to a new trial because there was no evidence that the failure to identify the insurer as a defendant prejudiced the plaintiff. The Superior Court noted that to prove prejudice, plaintiff would have to show that but for the jury s ignorance of the insurer s identity, this jury would have found the driver to be negligent. Because neither the trial court nor plaintiff provided any legal and logical connection between the two, the Superior Court held that plaintiff could not demonstrate prejudice and a new trial was not warranted. Policy Renewals Indian Harbor Insurance Company v. F & M Equipment Ltd., 2013 WL (E.D.Pa. Aug. 15, 2013). The court determined that an insurer is not contractually obligated to offer its insured a renewal policy with terms and conditions identical to the original policy. The original insurance policy included a Cancellation and Non-Renewal Modification Endorsement which stated that the insurer could refuse to offer a renewal extension only for proscribed reasons, including a material change
11 in the operations or lack of operations performed by the [insured], which changes the [insurer s] assessment of the risk of insuring the location(s) listed The court found that the original policy s use of the term renewal was constructed to mean that a renewal of a policy is, unless otherwise expressed, on the same terms and conditions as were contained in the original policy. Anti-Abuse Provisions of the UIPA Lynn v. Nationwide Insurance Company, 70 A.3d 814 (Pa. Super. Ct. 2013). The Pennsylvania Superior Court held, on what it noted was an issue of first impression, that the anti-abuse provisions of the Unfair Insurance Practices Act ( UIPA ), 40 P.S (a)(14), prohibit the denial of insurance claims made by an innocent co-insured where the loss was caused by the intentional acts of another insured. Motor Vehicle Financial Responsibility Law Definition of Insured McWeeney v. Estate of Strickler, 61 A.3d 1023 (Pa. Super. Ct. 2013). The Pennsylvania Superior Court held that a listed driver is neither a named insured nor an insured under an automobile insurance policy as those terms are defined in the Pennsylvania Motor Vehicle Financial Responsibility Law and is therefore not bound by the named insured s limited tort election. Statute of Limitations for UM/UIM Claims Hopkins v. Erie Ins. Co., 65 A.3d 452 (Pa. Super. Ct. 2013). The Pennsylvania Superior Court affirmed the trial court s denial of the insureds petition to appoint arbitrators and compel arbitration after finding that the four-year statute of limitations on the insureds UIM claim had expired. The Superior Court held that the statute of limitations began to run when the insureds settled with the tortfeasor.
12 Notice Requirements and Prejudice Vanderhoff v. Harleysville Insurance Company, 78 A.3d 1060 (Pa. 2013). The Pennsylvania Supreme Court held that the insurer s investigation was prejudiced by the insured s failure to report a phantom vehicle s involvement in an accident within the 30-day time limit set forth in the insurance policy such that the insured was not entitled to UM benefits. The Supreme Court reasoned that the insurer s inability to promptly investigate a claim, when the evidence and witness recollections are fresh, was a factor that indicated prejudice. However, the Court was unwilling to assume that prejudice would exist in all late notice cases and held instead that late notice prejudice cases must be addressed on a case-by-case basis wherein the court balances the extent and success of the insurer s investigation with the insured s reason for the delay.