MARCH 2017 BAD FAITH CASES: COURT WOULD NOT BIFURCATE BAD FAITH CLAIMS FROM THE COVERAGE ACTION (Philadelphia Federal)

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The insurer sought to bifurcate the insured’s bad faith claim from its coverage claim. The crux of the insurer’s argument was that the bad faith claims were dependent on a finding of breach of contract and that it would impose unnecessary discovery burdens for claims that might be resolved through a finding of no coverage.

In denying the insurer’s motion, the court refused to find that the insured’s bad faith claim was dependent on the insurer’s coverage claim. Instead, the court held that bad faith claims can extend beyond a plain breach of contract. For example, an unreasonable delay in evaluating a claim may provide an independent basis for bad faith, even where the insurer’s assessment ultimately proves correct.

Further, the court also noted that judicial economy would best be served by litigating the two claims together, as bifurcation would essentially double the life of the action – requiring a second discovery period, more motions, and a completely separate trial.

Date of Decision: January 18, 2017

Eizen Fineburg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461, 2017 U.S. Dist. LEXIS 6985 (E.D. Pa. Jan. 18, 2017) (Slomsky, J.)

MARCH 2017 BAD FAITH CASES: COURT DENIES CARRIER SUMMARY JUDGMENT ON VOIDING POLICY FOR FRAUD, AND DENIES BOTH PARTIES’ MOTIONS ON BAD FAITH CLAIM BECAUSE NUMEROUS ISSUES REMAINED OPEN FOR FACT-FINDERS, INCLUDING LITIGATION CONDUCT CLAIMS (Western District)

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The insured, as an administrator of the estate of his son, filed suit against the insurer. His son was injured by a drunk driver, and later died of an accidental heroin overdose. The father alleged that the injuries suffered in the accident led his son into a downward spiral, eventually resulting in the son’s death.

Initially, the insured settled for the $10,000 limit of his medical payments coverage, and submitted a claim for underinsured motorist (“UIM”) coverage. The insurer set reserves at $30,000. During the lengthy claim process, the insured sought to settle for the $400,000 policy limit, relying on his son’s history of medical treatment, and the effect of the accident on the insured’s mental and physical health. The insurer never made a settlement offer.

The court went through the detailed history of the claim process in its 77 page opinion, reciting the back and forth between the insured’s counsel and the insurer’s agents and various counsel, identifying gaps in insurance activity, among other things, and identifying questions concerning communications among the insurer’s agents and counsel. The court also considered the conduct of the litigation at hand when eventually evaluating the bad faith claims.

The matter did not resolve, and the insured brought breach of contract and bad faith claims. The insurer asserted an affirmative defense that the claims were barred because the son intentionally misrepresented or concealed material facts concerning his illegal drug use during the claim investigation.

The insured filed for summary judgement on its breach of contract claim and bad faith claims. The insurer filed a cross motion for summary judgment: claiming the son violated the policy’s fraud provision, failure to cooperate, heroin use should bar recovery as a matter of public policy, death was not proximately caused by the accident, and the record did not reach the clear and convincing evidence standard on bad faith.

In addressing the insurer’s claim that the son violated the concealment or fraud provision, the court stated that “in the context of an insurer’s post-loss investigation, the materiality requirement is satisfied if the false statement concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding.” However, even though the son misrepresented his drug use and criminal record, at the time of the misrepresentations drug use was not part of the UIM claim. Thus, it “could not have been germane to the investigation as it was then proceeding.”

The court also rejected the duty to cooperate argument, and that heroin use should bar recovery as a matter of public policy. Additionally, the court held proximate cause was an issue for trial.

In addressing the insured’s bad faith claims, the court relied on Terletsky, and the current state of the law that self-interest and ill-will are not elements of the claim (a matter now pending before Pennsylvania’s Supreme Court). Under the applicable standards, genuine issues of fact existed precluding summary judgment for either side, which the court went through seriatim.

Among other issues, the fact-finder had to determine the reasonableness of the insurer’s refraining from making a settlement offer, and whether there was an intent to delay the claim process. In addition, there was an issue concerning the level of investigation of the son’s living situation in relation to the insured father as to whether the policy extended to the son, and the propriety of the carrier’s determining he was not covered. Further, there was an issue as to whether simply mailing a copy of the policy to the insured’s attorney qualified as meeting the carrier’s obligation to inform the insured about available coverage under a policy. The court also left open the possibility that the insurer’s pursuing the concealment and fraud defense was unreasonable and done in bad faith. Moreover, the court discussed the investigation conduct of the insurer’s attorneys and agents in the claim handling process, including both conduct toward the insured and his attorney, and communications internally among each other.

Date of Decision: September 28, 2016

Paul v. State Farm Mut. Auto. Ins. Co., No. CV 14-1382, 2016 U.S. Dist. LEXIS 133699 (W.D. Pa. Sept. 28, 2016) (Conti, J.)

 

MARCH 2017 BAD FAITH CASES: BAD FAITH CLAIM SUFFICIENT WHERE PLAINTIFF PLEADED SEVERE INJURY AND DAMAGES IN EXCESS OF $300,000 POLICY LIMIT, AND, AT MOST, INSURER OFFERED $7,500 NEARLY FOUR YEARS AFTER THE ACCIDENT (Philadelphia Federal)

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The insured pleaded that he was severely injured in an automobile hit and run. He had multiple surgeries and was still disabled and completely unemployed four years after the incident, at the time of the complaint. He sought the $300,000 uninsured motorist policy limit. The insurer alleged it made a $7,500 offer approximately four years after the incident, which the insured asserts was not made. In either event, the insured asserted bad faith because either there was no offer, or an unreasonably low offer was made. The court refused the insurer’s motion to dismiss the bad faith claim.

The court focused on the allegations that the insured remained completely unemployed; that there were no facts suggesting he was at fault in causing the accident; that he paid his premiums; that the applicable policy limit was $300,000; and that he was seriously injured as a result of the accident. The court stated that: “Viewing these facts in a light most favorable to the plaintiff, as I must, it does not matter whether [the insurer] made no offer at all or a $7,500 offer. Either offer would be unreasonably low given that [the insured] has been out of work for over four years and undergone multiple surgical procedures and other medical treatment in the interim. These facts point to [a] lack of a reasonable basis in its complete (or almost-complete) denial of benefits.” The court also observed that the offer, if made, was nearly four years after the accident. Thus, delay was placed at issue. The court further observed that the insured alleged his actual damages exceeded the $300,000 policy limits.

Date of Decision: January 10, 2017

Davis v. Nationwide Mut. Ins. Co., No. 16-3878, 2017 U.S. Dist. LEXIS 3583 (E.D. Pa. Jan. 10, 2017) (Stengel, J.)

MARCH 2017 BAD FAITH CASES: FINEMAN, KREKSTEIN & HARRIS OBTAINS SIGNIFICANT VICTORY FOR INSURER IN DEFEATING UIM BAD FAITH CLAIM AT TRIAL IN PHILADELPHIA’S COMMERCE COURT (Philadelphia Commerce Program)

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In a bad faith case that actually went to trial, in Philadelphia’s Commerce Court, Fineman, Krekstein & Harris won a finding in favor of the insurer in a hard fought case, involving a myriad of bad faith issues. The court issued a 37 page Findings of Fact and Conclusions of Law, vindicating the positions argued and case presented for the insurer.

The insureds argued, among other things, that there were undue delays in claims handling, adjusters did not keep claims files in accordance with policy manuals, and reserves were improperly set. Among other things, the insurer focused its arguments on the timing of the insureds first making a demand for payment; reliance upon competent counsel in reaching decisions; and that the insureds’ original demand for the $1,000,000 policy limits was never lowered through the course of the UIM case.

In its conclusions, among other things, the court observed there is no heightened duty to insureds in the UIM context, and that even negligence or bad judgments do not equate to bad faith. The court made clear that delay is not bad faith per se, and that evaluating delay includes an analysis of the reasonableness of denying a claim. Moreover, even if unreasonable, to constitute bad faith the delay must be knowing or reckless. Bad faith is measured from the time demand is made.

The court also stated that undervaluing a claim is not bad faith if there is a reasonable basis for the valuation. Thus, a low but reasonable valuation is not bad faith. A settlement offer in the insurer’s low range of estimated value also is not bad faith. On the facts of this case, the court observed that the insurer never took the position that it would pay nothing on the claim, and as described below, made a number of offers.

The court found it was reasonable under the circumstances for the insurer to decline mediation two weeks before the arbitration was to take place. The insurer’s counsel testified that it was too late to mediate, and that there was no indication the insureds would lower their demand. The court observed that in evaluating bad faith, courts weigh the insureds’ decision not to negotiate down from a policy limit demand, even though the insured is not required to negotiate. The court found that settlement almost always requires a mutual give and take, which did not occur in this case.

The insurer was required to pay $600,000 under the UIM arbitration award. The court found, however, there was no evidence the insureds would have accepted $600,000 to settle the case prior to arbitration.

The court also took into consideration the actual difference between the ultimate UIM arbitration award, the insurer’s final offer, and the insured’s demand. In this case, the insured’s final offer was approximately $182,000 below the ultimate award, but the insureds’ policy limit demand was $400,000 greater than the award. The court found the insurer’s final settlement offer was reasonable, and that earlier offers for lesser sums were permissible interim offers. The court explained the reasonableness of each offer in its context.

Among other facts addressed in the court’s conclusion of law, the court gave weight to the fact that the insurer’s UIM defense counsel received a report from his own expert that counsel had not requested. Furthermore, defense counsel disagreed with the report’s conclusions. However, instead of withholding the report, counsel and the insurer’s representatives produced it to the insureds.

Moreover, the insurer used a high-end number from this same report in coming up with the basis for its final offer. The arbitration panel also used that number, rather than the insureds’ expert’s even higher number, in coming up with its arbitration award. The court stated that the insurer did not have to base its decision upon the insured’s expert rather than the insurer’s own expert.

The court found the insurer’s investigation was lengthier than it should have been, but did not constitute bad faith. The court found the insurer’s request for an independent medical examination was not evidence of bad faith. Nor was this a case of setting a reserve and never moving from that number during the course of the claim. The court found no discrepancy in the manner of setting reserves and the nature of the investigation that showed intent or recklessness in undervaluing the claim. As to the claims handling, even if unduly lengthy or negligent, this did not constitute bad faith.

The court further found that the carrier’s representatives sought UIM defense counsel’s advice in good faith, and that counsel was competent to give advice on defense and valuation of the claim. Although this was not a strict advice of counsel defense, since the insurer’s representatives ultimately made their own decisions, the thorough nature of counsel’s advice, when considered as a component of their decision making, supported the reasonableness of their claims handling decisions.

Date of Decision: March 21, 2017

Richman v. Liberty Insurance Underwriters, Sept. Term 2014, No. 1552, Court of Common Pleas of Philadelphia (C.C.P. Phila. Mar. 21, 2017) (McInerney, J.) (Commerce Program)

S. David Fineman and Christina L. Capobianco of Fineman, Krekstein & Harris were defense counsel.

MARCH 2017 BAD FAITH CASES: BAD FAITH CLAIMS ARE PREDICATED ON A DENIAL OF BENEFITS (Western District)

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This dispute arose after an insurer denied underinsured motorist coverage to its insured. The Insured later sued for breach of contract and for violations of Pennsylvania’s Bad Faith Statute, 42 Pa. C.S. § 8371. The Court dismissed the breach of contract claim and held that because there was no coverage under the policy, the insured could not sustain a bad faith claim. The Court explained that because bad faith claims are predicated on a denial of benefits, an insurer cannot act in bad faith where there was no coverage, and the insurer was never obligated to pay.

Date of Decision: March 13, 2017

Bish v. American Collectors Insurance, Inc., NO. 2:16- 01434, 2017 U.S. Dist. LEXIS 35205 (W.D. Pa. Mar. 13, 2017) (Eddy, M. J.)

MARCH 2017 BAD FAITH CASES: SPLIT IN RELEVANT CASE LAW IS NOT AN ABSOLUTE DEFENSE TO A BAD FAITH INTERPRETATION OF POLICY LANGUAGE CLAIM, AS REASONABLENESS REMAINS THE MEASURE (Philadelphia Federal)

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The interesting part of this case involved the court’s subtle distinction when lack of clarity in the relevant case law on how to interpret the insurance policy language at issue provides a bad faith defense. The specific issue was application of an intentional act exclusion to a violent assault fact pattern, where the insured claimed he was too drunk to know what he was doing.

The insurer argued “that an insurer does not act in bad faith if it relies on a reasonable interpretation of unsettled case law,” and cited at least three opinions supporting its position that the exclusion applied to the fact pattern at issue. The court described this argument as “incomplete”.

The court stated: “Supporting authority, though highly relevant, does not automatically defeat a bad faith claim. This was made clear by J.H. France Refractories Co. v. Allstate Insurance Co., 534 Pa. 29, 626 A.2d 502 (1993). There, the Pennsylvania Supreme Court found that [the insurer] had not acted in bad faith in denying coverage where it had relied on an ‘excessive pluralism and disparity . . . in the decisions of the many courts which ha[d] entertained similar litigation.’ …. But the Court did not hold that the mere existence of disparate decisions precluded bad faith—instead, it took care to note both that it did ‘not regard the issues presented in this case as simple ones’ and that each of the varying approaches other courts had taken ‘seem[ed] reasonable from some point of view.’ …. Indeed, bad faith claims are highly ‘fact specific,’ … and their touchstone—‘reasonableness’—only ‘has meaning in the context of each case[.]’”

After observing this subtle distinction in how to analyze the effect of disparate case law on bad faith claims, the court still ruled in the insurer’s favor, finding its position reasonable. Thus, there was no bad faith.

Date of Decision: March 13, 2017

Allstate Ins. Co. v. Lagreca, No. 13-6039, 2017 U.S. Dist. LEXIS 35197 (E.D. Pa. Mar. 13, 2017) (McHugh, J.)

MARCH 2017 BAD FAITH CLAIMS: COURT LEFT OPEN POSSIBILITY OF BAD FAITH CLAIM ON THEORY THAT INSURER DID NOT FOLLOW THE “MAKE WHOLE” RULE BEFORE SEEKING SUBROGATION (Western District)

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The insured’s claim for coverage had three aspects: (1) claims that were covered and paid; (2) claims that were not covered; and (3) disputed coverage claims as to which no payment was yet made. Despite the fact that the insured and insurer were trying to iron out the third category, the insurer made clear it intended to pursue its subrogation rights as to the part of the claim that had been paid. The insured alleged this was impermissible under the “make whole” rule; and further constituted bad faith, as the insurer cannot pursue subrogation before it makes the insurer whole. The carrier argued it could pursue subrogation “contending that the ‘make whole rule, whatever it may mean, is limited to those circumstances in which the underlying tortfeasor does not have enough money to pay the balance of what it owes to the insured,” and SEC filings showed the instant tortfeasor had more than enough funds to pay any claims.

The court found that at the complaint/motion to dismiss stage there were open issues on the tortfeasor’s wherewithal and coverage. It also stated that: “the Pennsylvania Superior Court did not limit the reach of the ‘make whole’ rule to those circumstances in which the underlying tortfeasor had insufficient assets to cover both the subrogation claim and the claim by the tort victim for excess/uncovered losses. In reality, it stated both that the ‘make whole’ rule was the law of the Commonwealth, and that it had no such limitation.” In light of these factors, the court refused to dismiss the declaratory judgment claim, and stated that it was “not in a position to conclude that as a matter of law, the ‘bad faith’ claim is wholly lacking in merit….”

Date of Decision: January 13, 2017

Gillis v. State Auto. Mut. Ins. Co., No. 16-1285, 2017 U.S. Dist. LEXIS 5214 (W.D. Pa. Jan. 13, 2017) (Hornak, J.)

MARCH 2017 BAD FAITH CASES: SUMMARY JUDGMENT GRANTED TO INSURER WHERE ITS CLAIMS HANDLING DECISIONS AND CONDUCT WERE REASONABLE (Middle District)

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The court described the insured’s UIM bad faith claim as follows: “[the] bad-faith claim is predicated largely on his contention that [the insurer] conducted a dilatory and meandering investigation into his claim, despite having had sufficient information to evaluate the claim and make a coverage decision, which [the insured] argues was obvious given the severity of the injuries he suffered.” The insurer sought summary judgment on the bad faith claims, its position being “that the claim in this case was unusual and warranted a careful investigation, which suffered from a number of delays that cannot be attributed to the insurer.” Moreover, the insurer adduced evidence calling into doubt the insured’s policy limits demand and the viability of the insured’s claim based on his own conduct.

In granting the insurer’s summary judgment motion, the court observed that if an insurer can defeat the lack of a reasonable basis component of a bad faith cause of action, it can obtain summary judgment. Moreover, in light of the heavier burden of proof in bad faith cases, “the insured’s burden in opposing a summary judgment motion brought by the insurer is commensurately high because the court must view the evidence presented in light of the substantive evidentiary burden at trial.”

Further, “[i]t is not bad faith for an insurance company to conduct a thorough investigation into a questionable claim.” Thus, “courts applying Pennsylvania law have found that an insurer satisfies its burden by showing a reasonable basis’ for investigating a claim, and is thus entitled to judgment as a matter of law, where it demonstrates the existence of certain red flags which prompted it to further investigate an insured’s claim.”

In finding the insurer’s conduct reasonable, the court focused on the putative delays, the nature of the insured’s policy limit demand in light of another potential source of primary insurance, and the insured’s own culpability in the accident leading to his injury. The court went through the alleged delays, and who caused them, in detail. It also observed that while phrased as a $100,000 demand against the insured’s carrier, the tortfeasor’s insurer had a $500,000 limit, and settled the underlying claim for $240,000. Thus, in effect, seeking the $100,000 UIM limit when combined with the underlying available insurance made the personal injury claim a $600,000 claim, not a $100,000 claim; and again, the underlying claim was settled for far less than the underlying insurer’s policy limit. Moreover, the arbitrators found the insured 1/3 responsible for the accident leading to his own injuries, which provided some substantiation to the insurer’s position that the insured’s claim may not have been viable.

Date of Decision: November 29, 2016

Walter v. Travelers Pers. Ins. Co., No. 4:12-CV-346, 2016 U.S. Dist. LEXIS 164012 (M.D. Pa. Nov. 29, 2016) (Carlson, M.J.)

 

MARCH 2017 BAD FAITH CASES: TYING PAYMENT TO RELEASE OF BAD FAITH CLAIMS IS ONLY BAD FAITH IF THAT REQUEST IS PART OF INSURER’S REGULAR PRACTICE; REFUSAL TO EXTEND ONE-YEAR SUIT PERIOD WAS NOT BAD FAITH (Philadelphia Federal)

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The homeowner’s policy at issue provided a one-year period in which to bring suit. Some repair work was identified and paid, but the repairs needed on other sections of the home would go beyond the one-year period. The insured attempted to negotiate an extension or tolling of the one-year period, pending the repairs. As the one-year term was approaching, the insured filed a writ of summons to toll the period and the insurer filed a Rule to File a Complaint.

In response to the insured’s counsel continuing to seek a tolling agreement, the insurer’s “counsel responded that Plaintiff would have to release any bad faith claim … in order for [the insurer] to consider entering into a tolling agreement.” “Plaintiff’s counsel offered to waive any claims of past bad faith in exchange for a tolling agreement which would give Plaintiff an additional year to complete any necessary repairs.” In response, the insurer “sent a status letter reiterating the one-year suit limitation provision and did not respond to Plaintiff’s offer.” Plaintiff then filed a breach of contract and bad faith complaint.

The focus of the bad faith claim was the alleged unreasonable refusal to enter a tolling agreement. However, the pleading did not meet Twombly/Iqbal standards, and was dismissed without prejudice. The most the complaint said was that the insured had a homeowner’s policy, suffered a covered loss for which he received some benefits, and was refused an extension of the one-year suit period. The complaint did not offer any basis from which the court could conclude that the refusal to extend was not made on a reasonable basis.

More interestingly, the court then addressed the issue of the insurer’s tying a release of bad faith claims to its entering a tolling agreement. The insured argued that this violated Pennsylvania’s Unfair Insurance Practices Act (UIPA). The court accepted the Superior Court of Pennsylvania’s view that UIPA violations can be evidence of bad faith.

The regulation at issue “forbids insurers from ‘request[ing] a first-party claimant to sign a release that extends beyond the subject matter that gave rise to the claim payment,’ where it is shown that the insurer makes such requests ‘with a frequency that indicates a general business practice.’” Even though plaintiff alleged that the insurer conditioned its agreement on releasing bad faith claims, he “alleges no facts showing that [the insurer] had a regular practice of forcing insureds to release claims in this way….” Thus, the court could not “consider the potential violation of the regulation as a factor swaying against dismissal.”

Date of Decision: March 3, 2017

Jack v. State Farm Fire & Cas. Co., No. 16-5771, 2017 U.S. Dist. LEXIS 30136 (E.D. Pa. Mar. 3, 2017) (Baylson, J.)

OCTOBER 2016 BAD FAITH CASES: BAD FAITH CLAIM ADEQUATELY PLEADED, HOWEVER, UIPA VIOLATIONS CANNOT STATE A BAD FAITH CLAIM (Middle District)