Sentinel. The Bad Faith. Northern District Of Indiana Finds No Bad Faith Without A Dishonest Purpose

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1 INSURANCE PRACTICE GROUP SEPTEMBER 2011 Bad Faith Insurance Newsletter Contacts: Carolyn Due Matthew M. Haar Joseph C. Monahan Amy L. Piccola Thomas S. Schaufelberger CONTENTS Northern District Of Indiana Finds No Bad Faith Without A Dishonest Purpose pages 1-2 Insured Not Prejudiced By Insurer s Failure to Immediately Seek Declaratory Judgment On Underlying Claim pages 2-3 Kentucky Court Concludes Disparity In Initial Settlement Offer And Final Settlement Amount Leaves Open The Question Of Insurer s Reasonableness pages 3-4 Superior Court of Pennsylvania Holds that Attorneys Fees May be Awarded, Even Where Bad Faith Recovery is Barred pages 4-5 Southern District Of Ohio Holds That Joinder Of Or Suit Against The Negligent Party Is Not Prerequisite To UIM Action Unless The Policy Indicates Otherwise pages 5-6 The Bad Faith Sentinel Standing guard on developments in the law of insurance bad faith around the country Northern District Of Indiana Finds No Bad Faith Without A Dishonest Purpose Domsic v. Allstate Ins. Co., No. 2:09-cv-208-PRC, 2011 WL (N.D. Ind. Sept. 13, 2011) Under Indiana law, there is no bad faith where the insurer does not act with a dishonest purpose, moral obliquity, furtive design, or ill will. On September 5, 2005, William Domsic injured his ankle in a motor vehicle accident. The vehicle he was driving at the time of the accident was insured under a policy issued to his father by Allstate Insurance Company ( Allstate ). The policy provided coverage for medical treatments and also provided uninsured motorist coverage. The other vehicle was insured by United Automobile Insurance Group ( United Auto ), which settled Domsic s claims against its insured for the statutory minimum of $25,000. Allstate consented to the settlement and waived any subrogation claim with regard to funds paid under the medical payment coverage. By November 2007, Allstate had paid $43,021 of Domsic s medical expenses, including payment in June 2007 for his ankle surgery. On November 29, 2007, Allstate settled Domsic s uninsured motorist claim for $40,000. On June 29, 2009, Domsic filed a complaint against Allstate alleging that it had breached its duty of good faith and fair dealing by causing an unfounded delay in making medical payments, arbitrarily denying and delaying payment of medical bills, and exercising an unfair advantage to force Domsic to settle his uninsured motorist claim by failing to process it in a timely manner. On August 12, 2010, Allstate filed a motion for summary judgment claiming that Domsic s claims were barred by the statute of limitations. On August 19, 2010, the district court granted the motion in part and found the statute of limitations barred the first two claims. On May 26, 2011, Allstate filed a motion for summary judgment as to the final claim - that it breached its duty of good faith by exercising an unfair advantage to force plaintiff to settle his uninsured motorist claim. Allstate argued that it promptly paid Domsic s claim and did not breach the duty of good faith and fair dealing. Domsic argued that Allstate failed to timely process his uninsured motorist claim, removed the cost of a necessary surgery from the value of the uninsured motorist benefits in bad faith, and that the delay in processing his claim created an unfair advantage that pressured him to take the settlement. In Indiana, good faith and fair dealing requires that an insurer does not (1) make an unfounded refusal to pay policy proceeds; (2) cause an unfounded delay in making payment; (3) deceive the

2 insured; or(4) exercise an unfair advantage to pressure an insured into settlement of his claim. The district court articulated that poor judgment or negligence do not amount to bad faith; the additional element of conscious wrongdoing must also be present. A finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will. The district court found that the facts did not support Domsic s claims for bad faith. Domsic argued that Allstate should have investigated his uninsured motorist claim in 2006 when it received notice that he would be seeking those benefits and received medical records from him. The district court found that under the policy, Allstate was not obligated to make a payment until after the limits of liability were exhausted by payment of judgments or settlements. Domsic settled his uninsured motorist claim with United Auto in June 2007 and, therefore, Allstate had no obligation to pay uninsured motorist benefits until after June Furthermore, Domsic did not make a claim for uninsured motorist benefits until August 28, 2007 and Allstate settled the claim on November 29, Allstate argued that the three month delay was not in bad faith, but was necessary because Domsic did not provide all of the needed authorizations for his medical records until October 18, Accordingly, the district court found that the delay did not amount to bad faith and did not violate Allstate s obligation of good faith and fair dealing. Although Domsic argued that Allstate s delay in processing his uninsured motorist claim created an unfair advantage, when asked at his deposition what Allstate did to pressure him into settling, he replied, Nothing. Instead, Domsic argued simply that Allstate knew he was unable to work and was under significant financial pressure during the time of the negotiations of the uninsured motorist settlement. Domsic also claimed that the $40,000 settlement was far less than the actual value of his claim and that Allstate had deducted the cost of his anticipated surgery from the value of the claim. Allstate denied knowing about Domsic s financial difficulties and produced evidence that the amount for the surgery was properly omitted, as it would have come from the medical payment coverage. Furthermore, the uninsured motorist coverage had a $100,000 limit to be reduced by amounts paid under other coverages provided by the policy and by payments made by responsible parties. As such, the limit was reduced by the $25,000 settlement with United Auto and the $43,021 payment for medical coverage, which left $31,979 available under the uninsured motorist coverage. Allstate paid $8,021 more than the amount Domsic was entitled to under the policy. The district court acknowledged there was some dispute regarding whether Allstate knew of Domsic s financial difficulties, however, it found there was no genuine issue of material fact that would indicate Allstate exercised an unfair advantage as Domsic s own testimony indicated that Allstate never did or said anything to pressure him into settlement. Moreover, Domsic had received an amount greater than what he was contractually entitled to receive. Accordingly, the district court granted Allstate s motion for summary judgment on Domsic s claims for bad faith Insured Not Prejudiced By Insurer s Failure to Immediately Seek Declaratory Judgment On Underlying Claim OneBeacon America Ins. Co. v. Catholic Diocese of Savannah, No. CV , 2011 WL (S.D. Ga. Sept. 2, 2011). A Georgia district court held that an insured s decision to settle an underlying claim did not evidence prejudice of the type that barred insurer from seeking declaratory judgment clarifying its obligations under the policy. OneBeacon filed suit in May 2010 seeking a declaratory judgment to clarify its duties and obligations under certain insurance policies issued to the Catholic Diocese decades earlier. In response, the Diocese asserted a counterclaim against OneBeacon alleging bad faith. The coverage dispute related to an underlying lawsuit filed in South Carolina in which the plaintiff alleged that his priest sexually molested him from 1978 to The Diocese contended that certain of its insurance policies provided coverage for the suit. The Diocese moved for summary judgment, claiming that OneBeacon waived all coverage defenses by failing to immediately seek declaratory relief. OneBeacon filed a motion on the same day, arguing that

3 the Diocese failed to comply with the policies conditions precedent requiring notification to OneBeacon, the Diocese voluntarily compromised the underlying lawsuit and is not entitled to indemnification, and charitable immunity would have barred any claims covered by the policies. As to the Diocese s bad faith counterclaim, OneBeacon argued an insured cannot assert a claim against its insurer for bad faith failure or negligent failure to compromise in the absence of a jury verdict. The court first addressed the argument that OneBeacon waived its coverage defenses by failing to immediately seek declaratory relief. It explained the general rule in Georgia is that an insurer, upon learning of facts putting it on reasonable notice there may be grounds for noncoverage, must seek immediate declaratory relief, including a stay of the main case pending final resolution of the declaratory judgment action. The court also noted, however, that the requirement that an insurer seek declaratory judgment immediately is softened by the need for the insured to demonstrate he/she was prejudiced by the insurer s failure. In the case at hand the court concluded the Diocese was unable to show it was prejudiced by OneBeacon s failure to immediately seek declaratory judgment. The underlying suit was filed in 2006 and the Diocese first sought coverage in early OneBeacon denied coverage in October 2008 and the Diocese contested the denial by letter dated December 8, In June 2009, OneBeacon changed its position, issuing a reservation of rights letter and participating in the defense of the Diocese. In September 2009, the Diocese notified OneBeacon that it disagreed with the reservation of rights letter and OneBeacon s position on coverage and indemnification. The underlying lawsuit settled on October 27, The Diocese argued it was prejudiced because it paid $2,315,000 of its own money in order to settle the underlying lawsuit. The court held this type of claimed prejudice, going toward the insured s disagreement with the insurer s coverage decision, was not enough to bar OneBeacon from seeking declaratory judgment. The court also held the Diocese could not maintain a bad faith suit against OneBeacon. The Georgia statute under which the Diocese brought its claim holds liable an insurer who refuses in bad faith to pay a loss within an allotted time after demand has been made by the insured. Under Georgia law, a voluntary payment by an insured, such as one reached in settlement, does not constitute a legal obligation under the applicable insurance policy. Further, if there is a reasonable grounds for an insurer to contest the claim, there is no bad faith. The court concluded that OneBeacon reasonably contested liability and was correct in doing so, so the Diocese s bad faith claim failed. Kentucky Court Concludes Disparity In Initial Settlement Offer And Final Settlement Amount Leaves Open The Question Of Insurer s Reasonableness Nevels v. Deerbrook Ins. Co., Civil No NRT, (E.D. Ky. Sept. 6, 2011) Insurer may have acted in bad faith by relying on valuation software that did not take into account all available damages information. In October 2005, Michael Melton, while traveling southbound on U.S. Highway 27, braked suddenly and lost control of a utility trailer he was towing. The trailer entered opposing traffic and struck Patrick Scott s car. Cecil Nevels was a passenger in Scott s car at the time of the accident. After being hit by the trailer, Scott s car collided with a third vehicle. Shortly after the accident, Nevels and Scott sought medical treatment and attorney representation. After several months of correspondence, in May 2006, Scott s insurance company gave notice to Melton s insurer, Deerbrook Insurance Company ( Deerbrook ), of a Personal Injury Protection ( PIP ) lien for Nevels medical expenses. In August 2006, Nevels attorney served a demand package on Deerbrook that included a letter describing Nevels treatment for severe headaches and upper back, neck and right elbow pain. The package also included a copy of the police report, a copy of the PIP ledger indicating a $10,500 lien amount, and medical records. Deerbrook began evaluating the information provided, and entered the information into Colossus, a software program used to value unliquidated damages and provide estimated settlement ranges. The Colossus report for

4 Nevels claim recommended settlement between $4,900 and $6,200. A Deerbrook evaluation consultant authorized settlement in the amount of $6,000 and Deerbrook contacted Nevels attorney and made an initial offer of $5,000. In response, Nevels attorney sent a demand letter for the policy limits of $25,000 and filed suit shortly thereafter. After Nevels filed suit, Deerbrook retained an attorney who spoke with Melton about the accident. The attorney determined that it was worthwhile to investigate whether another vehicle (a so-called phantom vehicle ) pulled out in front of Melton, causing him to lose control of the trailer. Deerbrook proceeded with the investigation despite statements from the driver of the third vehicle that he did not see any phantom vehicle and a police report stating that no one else witnessed another vehicle cause the accident. Over a year later, the driver of the third vehicle was deposed and confirmed that he did not see a phantom vehicle and added that he noticed Melton s trailer weaving before the accident. This ended Deerbrook s belief that a jury could find in Melton s favor. In May 2008, Deerbrook, Nevels and Scott mediated the claims. Deerbrook settled with Scott for $25,000, but did not settle with Nevels. Soon after the mediation, Deerbrook produced another Colossus report and in June 2008, settled with Nevels for $21,700, the remaining policy limits. This second Colossus report had new inputs of (1) $770 in lost wages; (2) a $1,650 chiropractor bill; and the $10,500 PIP lien. The lost wages claim and chiropractor bill were provided in May 2007 and on the day of the mediation, respectively. In October 2008, Nevels filed suit against Deerbrook for bad faith, alleging that the delay in settling the case constituted violation of the Kentucky Unfair Claims Settlement Act ( KUCSPA ). Deerbrook moved for summary judgment, contending that in August 2006 it had a reasonable basis not to pay the policy limits. Deerbrook argued it did not know whether the accident caused all of Nevels injuries and did not have the necessary information to evaluate the claims properly. The court concluded that the question of whether Deerbrook was reasonable was still open, precluding summary judgment. The court noted that in August 2006, Deerbrook knew, by way of the PIP lien, that Nevels medical bills amounted to $10,500 and that he claimed pain and suffering. Yet, Deerbrook s initial offer was only $5,000. Two years later, Deerbrook s settlement offer increased more than fourfold despite the fact that the only new damages information were the $770 in lost wages and the $1,650 chiropractor bill. Deerbrook attempted to explain this increase be emphasizing that the deposition of the third driver influenced its view of the case. The court rejected this argument as inadequate for two reasons. First, the explanation did not account for the fact that one of the new inputs in Deerbrook s second Colossus evaluation was actually old information, i.e. the $10,500 PIP lien, meaning either the first Colossus report did not account for the PIP lien or substantially discounted it. Second, the decision to pursue a no-liability defense had nothing to do with the reasonableness of the initial offer. Deerbrook s attorney was hired after the initial offer, thus the decision to pursue the defense was made after the initial offer as well. The court concluded that Deerbrook had substantially the same information in August 2006 as it did in June 2008 and that it was difficult to understand why the case s settlement value was over $20,000 at one time but not the other. Superior Court of Pennsylvania Holds that Attorneys Fees May be Awarded, Even Where Bad Faith Recovery is Barred Herd Chiropractic Clinic, P.C., v. State Farm Mutual Auto. Ins. Co., No. 882 MDA 2010, 2011 WL (Pa. Super. Aug. 23, 2011) Pennsylvania Statute Bars Treble Damages for Bad Faith When Insurer Complies with Peer Review Decision, but Still Allows for Recovery of Attorneys Fees. Miriam Mitten had an automobile insurance policy with State Farm Mutual Automobile Insurance Company. Ms. Mitten was injured in a car accident and received chiropractic care at Herd Chiropractic Clinic ( Herd ). State Farm refused to pay for certain treatments performed by Herd based upon the decision of a peer review organization ( PRO ) that the chiropractic treatments were not medically

5 necessary. Herd filed suit against State Farm and sought the unpaid medical expenses, attorneys fees and treble damages. Under Pennsylvania law, an insurer that follows a PRO s determination cannot be found liable for treble damages. A provider of medical services, however, may challenge an insurer s refusal to pay for past or future medical services before a court pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law ( MVFRL ). Under the MVFRL, conduct considered to be wanton shall be subject to a payment of treble damages to the injured party. If the court determines that the medical treatment was medically necessary the insurer must pay the provider the outstanding amount plus interest at 12 percent, as well as the costs of the challenge and all related attorneys fees. Constance Foster, a partner at Saul Ewing and a former Pennsylvania Insurance Commissioner, testified as an expert regarding State Farm s conduct, but the trial court did not permit her to testify regarding the MVFRL. The trial court awarded Herd its medical expenses of $1,380.68, but did not award attorneys fees or treble damages. Herd filed a motion for reconsideration, after which the trial court awarded Herd its attorneys fees of $27, State Farm filed an appeal, asserting that the trial court erred or abused its discretion in awarding attorneys fees and erred in limiting Ms. Foster s testimony. State Farm argued that the purpose of amendments to the MVFRL was to limit recovery if the peer review procedure was followed and therefore, recovery of attorneys fees was precluded. The Superior Court of Pennsylvania found that State Farm had waived its objection to the limitation of Ms. Foster s testimony at trial. In affirming the fee award, the court based its decision on the plain language of the statute. The Superior Court held there was nothing in the statute that precluded attorneys fees where a peer review decision is challenged and the court finds the medical services were reasonable and necessary. Instead, section 1797(b)(6) of the MVFRL plainly states if the court determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12%, as well as the costs of the challenge and all attorney fees. The Superior Court affirmed the trial court s decision. Southern District Of Ohio Holds That Joinder Of Or Suit Against The Negligent Party Is Not Prerequisite To UIM Action Unless The Policy Indicates Otherwise Helms v. Nationwide Ins. Co., No , 2011 WL (10th Cir. Sept. 9, 2011) Under Ohio law, insureds do not have to bring suit against a negligent party prior to seeking uninsured motorist insurance from their own insurers. On February 23, 2010, William Helms was seriously injured in a car accident caused by the negligence of Joshua Sanders. At the time of the accident, Mr. Helms and his wife, Gail Helms, had an Uninsured Motorist policy with Nationwide Insurance Company of America ( Nationwide ). The policy had a $300,000 per person limit. Mr. Helms made a claim under the policy for economic damages he suffered as a result of his injuries from the accident and Mrs. Helms made a claim under the policy for loss of the companionship of her husband. On March 4, 2010 Nationwide advanced $100,000 in coverage to the Helmses pursuant to an agreement executed between the parties. The payment represented the amount of insurance available to Mr. Sanders under his policy with Progressive Casualty Insurance Company. The payment was conditioned upon the Helmses agreement to pay over to Nationwide any amounts they collected from Mr. Sanders. The Helmses later decided not to make a claim against Mr. Sanders based upon Nationwide s advance of the limits of Mr. Sander s policy. On February 18, 2011, the Helmses

6 demanded the remainder of their policy limit and Nationwide refused to pay the remainder. As a result, the Helmses brought suit against Nationwide for breach of contract and bad faith. Nationwide moved to dismiss the Helmses complaint for failure to join a necessary party under Rule 19 of the Federal Rules of Civil Procedure. Nationwide argued that Mr. Sanders was a necessary and indispensable party required to be joined such that the failure to join him required dismissal of the Helmses claims. Federal courts apply a three-part analysis to determine whether joinder is proper. The courts look to: 1) whether an absent party is necessary to accord complete relief, 2) if necessary, whether joinder is feasible, and 3) whether, if joinder would destroy jurisdiction, dismissal is required after consideration of the equities in the case. Under the policy, the Helmses could only claim their policy limits for damages that exceeded Mr. Sanders s coverage. The district court found that Mr. Sanders was not a necessary party merely to show the limits of his policy coverage. The district court recognized Nationwide s interest in joining Mr. Sanders to the extent that it could collect, through subrogation, sums for which Mr. Sanders might be liable to the Helmses. The court nevertheless noted that since Nationwide could file a third party complaint against Mr. Sanders to recover that sum, the claim by the Helmses against Nationwide did not require joinder of Mr. Sanders. The district court also looked to Ohio state law to determine whether Mr. Sanders was a necessary and indispensable party, as state law informs whether a party is necessary where the claims arise exclusively under state insurance law. Under Ohio law, claimants are not required to initiate suit against a tortfeasor prior to suing their own insurer for uninsured motorist coverage if the policy does not expressly require it. The policy stated merely that an insured may bring action against the tortfeasor for bodily injury and that after Nationwide makes payment under the policy that it may require the insured to take legal action against the tortfeasor. The district court found that since Nationwide had not demonstrated that it made a payment under the Helmses policy, as opposed to an advance under Mr. Sanders s policy, the policy left the decision as to whether to file suit against Mr. Sanders to the Helmses discretion. The Policy also stated the insured was required to do whatever is proper to secure such [subrogation] rights, and do nothing to prejudice them and to do whatever is necessary to recover for us payments made under this coverage. The district court found it could not determine whether the Helmses failure to file suit against Mr. Sanders had prejudiced or impeded Nationwide s subrogation rights yet. While it found that Nationwide had failed to show the Helmses were required to join or otherwise file suit against Mr. Sanders, it also concluded that the Helmses could not abandon their claim against Mr. Sanders in violation of their policy absent proof that: (1) Mr. Sanders was without assets; (2) that they were pursuing their claim in a manner so as to avoid prejudice; or (3) that some other circumstance existed avoiding prejudice to Nationwide. Accordingly, the district court denied Nationwide s motion to dismiss, but did so without prejudice so that Nationwide could bring the motion again upon further development of the record. 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 Boston, MA 131 Dartmouth St. Richard D. Gass 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 1919 Pennsylvania Ave, NW Mark L. Gruhin Edward R. Levin Wilmington, DE 222 Delaware Ave. Wendie C. Stabler William E. Manning

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