In Krugh v. State Farm Insurance Company, the court considered a carrier’s motion to dismiss an insured’s complaint. The complaint alleged bad faith, violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), breach of contract, breach of fiduciary duty of good faith and fair dealing, and negligence.
Addressing each count individually, the court noted that the insured party alleged facts sufficient to state plausible bad faith, UTPCPL, and breach of contract claims. As such, the court denied the carrier’s motion to dismiss the first three counts, permitting them to proceed to discovery. However, the court dismissed the insured’s claim for punitive damages under its breach of contract claim.
With respect to the UTPCPL claim, the court held that the insured must prove that it “justifiably relied on the [carrier’s] wrongful conduct or representation and that [it] suffered harm as a result of that reliance.” Recognizing that this was merely a motion to dismiss, the court ruled that the UTPCPL count should be tested more thoroughly after discovery is conducted.
With respect to Count IV, the breach of implied covenant of good faith and fair dealing allegation, the court dismissed the insured’s claim. It reasoned that such a claim is “tantamount to a breach of contract” allegation, making Count IV redundant in conjunction with the insured’s additional bad faith and breach of contract claims. As such, the court dismissed Count IV of the complaint.
Turning to Count V, the negligence allegation, the court held that the “gist of the action” doctrine operates to bar tort claims rooted in a contractual suit. The court reasoned that, because Count V merely alleges that the carrier failed to “to exercise reasonable case in the handling of claims made under the Policy,” it is clear that the claims are “purely contractual,” arising only under the parties’ insurance policy.
Therefore, the court denied the insurer’s motion to dismiss with respect to Counts I-III, permitting the claims to proceed to discovery. However, the court granted the motion to dismiss with respect to Count IV, Count V, and the claim for punitive damages under Count III.
Date of Decision: January 17, 2012
Krugh v. State Farm Ins. Co., No. 2:11-cv-1484, 2012 U.S. Dist. LEXIS 4999 (W.D. Pa. Jan. 17, 2012) (Fischer, J.)
In Vinski v. State Farm Mutual Automobile Insurance Company, the court examined an insured’s motion to remand to state court for lack of subject matter jurisdiction. The case stemmed from the insured’s claim for under-insured motorist (“UIM”) benefits after a car accident. After the insured filed suit in state court, for the UIM benefits and for breach of fiduciary duty in processing the claim, the carrier removed to federal court on the basis of diversity jurisdiction.
However, the insured opposed this removal and moved the district court to remand the case because the amount in controversy did not exceed $75,000. The insured’s original complaint alleged damages “in a sum in excess of” $25,000.00. Based upon this valuation, the insured took the position that the carrier could not maintain its claim for diversity jurisdiction.
In support of its argument, the insured argues that there was a pending offer to settle the claim for UIM benefits for the sum of $50,000. The insured claims that this offer is “valuable evidence of a reasonable estimate of the value of their claims.” However, the insured does not put forth an upper limit on recovery, should this case go to trial. As such, the court held, the insured failed to meet its burden that the jurisdictional limit could not be met as a legal certainty. Accordingly, the court denied the motion to remand.
Date of Decision: January 10, 2012
Vinski v. State Farm Mut. Auto. Ins. Co., No. 11-1326, 2012 U.S. Dist. LEXIS 2567 (W.D. Pa. Jan. 10, 2012) (Bissoon, J.)
In L.R. Costanzo Company v. American Fire and Casualty Insurance Company, the court heard a defendant’s motion for summary judgment on the issue of whether it was a proper party to the suit. The suit commenced after the insured was sued for property damage upon conclusion of a project. As a result, the insured sued the carrier in the Lackawanna County Court of Common Pleas for a defense against the original suit. The insured allegedly possessed a commercial general liability policy with the carrier. Under the policy, the carrier’s duty to defend would be triggered by an “occurrence,” which means “an accident, including continuous exposure to substantially the same general harmful conditions.” The carrier removed the case to federal court.
The carrier, Ohio Casualty Insurance Company (“OCIC”) moved to dismiss, arguing that it did not issue the insurance policy in question, meaning that there was no contract between itself and the insured, but the Court denied the motion. After discovery, the carrier filed motions for summary judgment, seeking resolution upon the insured’s breach of contract and bad faith claims.
There were three primary issues before the court: 1) whether OCIC, the alleged carrier, is a proper defendant, 2) whether the carrier breached a duty to defend the insured in the underlying case, and 3) if so, whether the carrier acted in bad faith by not defending the insured.
First, the court found that American Fire (“AFCC”) issued the policy, not OCIC. Discovery had revealed that AFCC underwrote the policy – the insured’s insurance agent testified that AFCC underwrote the policy, while OCIC underwrote the umbrella policy. Much of the confusion also comes from the similarity of its name to Ohio Casualty Group (“OCG”). OCG is the parent company of AFCC, OCIC, and ten other insurance companies, and it is the trademark umbrella under which these subsidiary companies operate. Moreover, OCG’s letterhead says “Ohio Casualty,” “Ohio Casualty Group,” or “Ohio Casualty™.” The insured does not provide any evidence to dispute these findings. The only evidence that suggests OCIC is the underwriter is the initial denial of coverage letter that stated, “We have investigated this claim and have determined that the allegations fall outside of the coverage provided by your liability policy carried with Ohio Casualty Insurance Company.”
Second, the court held that there was no “occurrence” under the policy to trigger the carrier’s duty to defend. In the underlying complaint, the insured alleged that faulty workmanship was the basis for its claims. As such, the carrier’s duty to defend depends upon whether the faulty workmanship qualified as an “occurrence,” or “an accident, including continuous exposure to substantially the same general harmful conditions” under the policy. Relying on relevant precedent, the court ruled that faulty workmanship is not an occurrence, meaning that the carrier had no duty to defend.
Lastly, the court ruled that the carrier did not act in bad faith. First, the court held, because there was no “occurrence” under the policy, the carrier did not act in bad faith in denying a defense to Plaintiff in the underlying case. Second, the court recognized that the record shows that the carrier engaged in a thorough inquiry before determining there was no duty to defend. The insured’s main argument for bad faith was that the carrier conducted an inadequate investigation before declining to defend the insured in the underlying suit. As such, the court granted summary judgment to the carrier.
Date of Decision: January 6, 2012
L.R. Costanzo Co. v. Am. Fire & Cas. Ins. Co., No. 3:10-CV-774, 2012 U.S. Dist. LEXIS 1655 (M.D. Pa. Jan. 6, 2012) (Mariani, J.)
In Seto v. State Farm Insurance Company, the court heard a carrier’s motion for summary judgment in response to an insured’s claim for breach of contract and bad faith. The case arose from two fires that destroyed the insured’s home. The insured sought to recover under its homeowner’s insurance policy. After a year of investigation, the carrier proposed $116,321.67 in benefits, which represented the actual cash value (“ACV”). However, the insured’s contractor found that the replacement cost value (“RCV”) was $208,061.01.
Soon thereafter, there was a second fire in the insureds’ home, which caused additional damages. The carrier issued $43,635.02 to the insureds for the damages caused by the second fire. The insureds acquired a second estimate, but did not apprise the carrier until after the suit was filed.
In late 2009, the carrier tendered $157,717.00 to the insureds and also paid additional life expenses (“ALE”) benefits totaling $30,425.01. The insureds then brought suit for bad faith and breach of contract. The carrier moved for summary judgment.
First, the court examined the insureds’ allegation that the carrier delayed in tendering payment under the policy, amounting to bad faith. Specifically, the insureds argue that although the carrier was provided with the second estimate in 2009, it did not respond until 2011. The record, however, indicates that the insureds never personally submitted the second estimate. In fact, the carrier only received a copy when the insureds served their complaint in late 2010. The court, therefore, found that the delay was directly caused by insureds’ failure to personally delivery the estimate to the carrier.
Second, the court analyzed the insureds’ claim that the carrier low-balled its offer that was significantly lower than other estimates the insureds obtained. After the first fire, the carrier immediately inspected the property, created an itemized estimate of damages, and promptly paid $116,321.67 to Plaintiffs. Then, when the carrier received a higher estimate from the insured’s contractor, it agreed to review and consider that estimate. However, before the carrier could consider the estimate, a second fire occurred. Because the second fire appeared to be purposeful, an investigation ensured. Afterwards, the carrier paid an additional $43,635.02 to the insureds for their home. Thereafter, the carrier reviewed and considered the second estimate and issued a supplemental payment of $29,000.00.
In support of their claim for additional benefits, the insureds procured an expert report on the quality of the carrier’s valuation loss, finding it “incomplete in the extreme.” However, the expert’s report was not supported by an affidavit or declaration, and under Third Circuit case law this was required to consider an expert report in the context of a summary judgment motion. As such, the court deemed the report “not competent to be considered.” Even if considered, the court found that the expert report would not have created a material issue of fact on bad faith.
Lastly, the court heard the insured’s argument for additional ALE while they were living in Florida. The court denied this claim, finding the carrier’s denial of additional ALE benefits to be objectively reasonable. Because the insured failed to produce sufficient documentation to support their claim for additional ALE benefits, they were not entitled to their claim. Therefore, the court granted summary judgment to the carrier on all counts.
Date of Decision: January 11, 2012
Seto v. State Farm Ins. Co., No. 2:10-cv-00505, 2012 U.S. Dist. LEXIS 3306, (W.D. Pa. Jan. 11, 2012) (McVerry, J.)
In Church of the Forgotten Souls v. NGM Insurance Company, the insured brought breach of contract and bad faith claims. At issue in this opinion is the insured’s seeking discovery of the insurer’s adjustment agent’s mental impressions, conclusions or opinions and whether this was protected from discovery under Pa.R.C.P. 4003.3. The issue was whether such arose in anticipation of litigation.
The insured argued that the filing of suit should provide a bright line test for when anticipation of litigation is triggered. The court cited Judge Wettick’s decision in Mueller v. Nationwide Mutual Ins. Co., 31 D. & C.4th (C.C.P. Allegheny 1996) in rejecting that test, as “Rule 4003.3 protects any mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense.” Such could have been developed where the insurer and adjuster clearly envisioned litigation could be instituted, even prior to any initiation of suit.
Thus, the key issue is when the insurer and adjuster envisioned litigation vs. a time when they had not contemplated that litigation could arise. The burden would be on the carrier, as the party opposing discovery, to make its case. The court ordered the carrier and adjuster to create a privilege log as to any such materials as to which they were asserting work product, with the matter being remanded to the discovery master to review such materials for the work product privilege in the first instance.
Date of Decision: October 5, 2011
Church of the Forgotten Souls d/b/a Heaven Help Us Thrift Store v. NGM Ins. Co., C.C.P. Lackawanna No. 10 CV 7078 (Oct. 5, 2011).
In Leporace v. New York Life & Annuity, the court was faced with a carrier’s motion to dismiss an insured’s suit for breach of contract, declaratory judgment, and bad faith. In 1995, the insured purchased an insurance policy from the carrier. In early 1996, he suffered a traumatic event that caused emotional and mental instability, leading to his filing a claim with the carrier. In 2005, the carrier stopped paying the insured’s monthly benefits, claiming that he no longer fit the definition of disabled in his policy.
In 2010, the insured sought a reinstatement of the benefits. The carrier denied reimbursement for the period between 2005 and 2010 and did not honor the insured’s request for continued benefits. In early 2011, the insured filed suit against the carrier, to which the carrier responded with a motion to dismiss.
The subject of the instant opinion was the carrier’s contention that the insured’s claims are untimely. Pennsylvania has a four-year statute of limitations for contractual and declaratory judgment claims and a two-year statute of limitations for bad faith claims.
The insured countered the carrier’s claims by arguing that the language of the policy itself, not Pennsylvania law, determines the applicable statute of limitations. In response, the carrier argued that the insured’s reliance on precedent favorable to its case is misplaced because the case is not about the “Legal Actions” or “Proof of Loss” clauses in the insurance policy.
Examining a series of applicable Third Circuit cases to discern the applicable statute of limitations, the court first noted that, in a contractual suit arising from the denial of insurance benefits, the cause of action accrues when the insured first knows that its claim has been denied. This is the point where an insured could have first maintained a lawsuit to a successful conclusion.
However, the court also gauged the applicability of Hofkin v. Provident Life & Accident Ins. Co., a precedential Third Circuit opinion that considered whether an insured’s claims were timely by interpreting the “Proofs of Loss” and “Legal Actions” provisions contained in his insurance contract. The insured in this case argued that Hofkin governs and signals that its claim was timely, based upon the language of the contract it signed with the carrier. The court disagreed, finding that Pennsylvania’s usual statute of limitations on contracts governed, and was not based upon the Proofs of Loss and Legal Actions provisions contained in his insurance contract, which would be governed by 40 P.S. § 753.
The court examined Hofkin’s progeny, as well as opinions from other Circuit Courts, in finding that the denial of benefits evinced in this case, the fact that the Proof of Loss and Legal Action based claims were not at issue, and other factors did not follow the fact scenario found in Hofkin, and so did not warrant its application. The court concluded that the analysis applied in the Hofkin line of cases demonstrates that when the Proof of Loss and Legal Actions provisions are not at issue, the breach of contract statute of limitations period still applies.
Therefore, the court granted the carrier’s motion to dismiss.
Date of Decision: December 21, 2011
Leporace v. New York Life & Annuity, NO. 11-2000, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 147056 (E.D. Pa. Dec. 21, 2011) (Baylson, J.)
In Cummings v. Allstate Insurance Company, the court was faced with a carrier’s motion to dismiss for failing to join a necessary party. The case was brought by the estate of a decedent insured that died following surgery needed to correct injuries caused by a faulty floor. The insured alleges that a faulty floor, ruined by water that escaped from a heating system, was covered under a Deluxe Homeowner’s Policy issued by the carrier. After the carrier refused to cover the damage, the decedent tripped and fell, requiring surgery, which ultimately lead to her fatal heart attack. The insured alleges that the decedent’s cardiac arrest is solely attributable to the carrier’s bad faith refusal to pay their claim.
The insured filed suit in Philadelphia County and the carrier removed to federal court. During discovery, however, it came to light that the insured hired a subcontractor to repair the floor. The carrier therefore filed the instant motion, claiming that the absent subcontractor is a necessary party.
The insured’s complaint contained two counts, alleging first that the carrier breached its insurance contract and is liable for damages for pain, suffering and mental anguish. The insured’s second count alleges that the carrier acted in bad faith by conducting only a cursory investigation of its claim.
However, the court primarily addressed the carrier’s motion to dismiss, examining the necessity of joining the insured’s former subcontractor as a defendant to the suit. The carrier argued that the absent party was necessary because, in the event the court denies the insured’s breach of contract claim, compensation would be unavailable to the insured without the subcontractor’s inclusion. The court highlighted the fact that the subcontractor claimed in his deposition that he completed the work before the carrier denied the insured’s claim. This fact, the court held, would be a critical point later in the apportionment of damages.
Furthermore, the court recognized that, if it later finds that the damage to the floor was a covered loss and that the carrier did breach its contract, then the subcontractor’s joinder is still necessary to determine whether the damages relating to the insured’s death were foreseeable. The court also reasoned that it may be the case that the subcontractor’s repairs to the floor constitute a break in the chain causation, meaning that he is ultimately liable to the insured. Given these facts and the potential factual determinations that may arise at a later point in the suit, the court found that the subcontractor was a necessary party. However, it denied the insured’s motion to dismiss.
Date of Decision: December 27, 2011
Cummings v. Allstate Ins. Co., No. 11-02691, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 148273 (E.D. Pa. Dec. 27, 2011) (Kelly, J.)
This case was also addressed in October 2011 and August 2011 on this Blog.
In Craker v. State Farm Mutual Automobile Insurance Company, the court heard a motion to compel discovery related to an insured’s claim for underinsured motorist benefits (“UIM”). Specifically, the insured moves to compel the carrier to release documents related to reserve information and information regarding the attorney actions as an insurance adjuster.
The court previously granted a similar motion on the reserve information, wherein the carrier had argued that such discovery, as well as discovery of mental impressions and evaluations, was premature because the UIM claim should be decided first; an argument the court rejected. In this second round, the carrier argued that the reserved information was irrelevant under any circumstances. The court rejected that second effort as well, and required production of reserve information, as well as the mental impressions and evaluations of the UIM claim, just as it did the first time.
However, the insureds were not successful on the second part of their motion, wherein they took the position that the carrier’s communications with counsel were not privileged because counsel was acting as an adjuster, not an attorney. This was based on the theory that the attorney “was not acting as an attorney before the complaint was filed, and was only discussing underlying facts at the time.”
The court ruled that the motion was both untimely and unsound. First, in connection with raising this motion at the end of the discovery period, the plaintiff had the carrier’s privilege log for some time and there were no new facts that justified any basis to raise this argument late in the day, rather than promptly upon receiving the privilege log. The court reasoned that “no further explanations from [the carrier] on subsequent Privilege Logs could change the fact that the communications occurred before the complaint was filed.” As such, the court disagreed with the insured because it had no reason to wait more than two months before filing a motion to compel on this basis.
The court also held that this portion of the insured’s motion was “substantively baseless.” Although the insured did not file a complaint in state court until 2011, they had been represented by counsel in this dispute since at least 2007. The insured’s attorney has communicated with the carrier and its counsel since that time. Therefore, this factual backdrop indicates that both parties were represented by counsel and preparing for litigation as early as 2007. There is no dispute that all of the controverted communications that the insured now seek occurred months after they sent their formal demand to the carrier in February of 2008.
Therefore, the court granted the insured’s motion to compel on the reserve information, but denied the insured’s request for additional documents relating to communications with the carrier’s attorney.
Date of Decision: December 9, 2011
Craker v. State Farm Mutual Automobile Insurance Company, No. 11-0225, United States District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 141811 (W.D. Pa. Dec. 9, 2011) (Lancaster, J.)
In Feingold v. Liberty Mutual Group, a bad faith action was raised in federal district court. The present issue is plaintiff’s motion to disqualify defense counsel in the federal action.
The motion to disqualify had its roots in a claim made by the decedent-insured’s estate for uninsured motorist (“UM”) benefits under a policy with the carrier. An arbitration panel awarded the insured $90,000, but found that the carrier was only obligated to pay a third of the award if it was determined that the insured had other available insurance coverage. As such, the carrier rejected the award. After several years, the insured petitioned the Court of Common Pleas of Philadelphia County to confirm the award. The court granted the petition and entered judgment in the amount of $90,000 plus interest in the insured’s favor. The carrier appealed to Pennsylvania’s Superior Court. This case involves a separate bad faith action based on diversity jurisdiction.
Plaintiff moves to disqualify current defense counsel based on the actions of an attorney now in the defense firm, who was previously employed by the carrier, and who had appeared as counsel on the insurer’s behalf in the Court of Common Pleas action. However, he withdrew his appearance in the state court action on August 2, 2011 and has never appeared on behalf of the carrier during the pending federal court litigation.
The insured first argues that the defense counsel is engaged in a “dual advocacy role” by reason of one of the firm’s attorney’s past involvement in the underlying state court action. The insured also claims that the defense counsel “has acquired confidential information from plaintiffs which is material to the defense in the present bad-faith litigation.”
Contrary to the insured’s assertions, there is no reason to believe that defense counsel has “acquired confidential information from plaintiffs” through one of its attorney’s involvement in the state court action. That attorney did not represent plaintiff in the first action, and any information provided by that attorney could not have been privileged or “confidential” because he was opposing counsel.
The court also held that there is no reason to disqualify defense counsel based on the insured’s statement that the attorney and possibly other members of the firm will be “necessary witnesses” at trial. The insured claims that defense counsel should be disqualified because of “its own potential liability exposure.” He argues that defense counsel will be exposed to a malpractice action by the controverted attorney’s omissions while working as an employee of the defendant.
The court flatly rejected this claim, ruling that the “mere possibility of a potential malpractice claim against an attorney does not result in automatic disqualification.” Where claims against an attorney are largely speculative, the court held, disqualification is not necessary. Therefore, the insured’s motion was denied.
Date of Decision: December 6, 2011
Feingold v. Liberty Mutual Group, NO. 11-5364, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 140336 (E.D. Pa. Dec 6, 2011) (Bartle III, J.)
In Portside Investors, L.P. v. Northern Insurance Company, the Superior Court heard cross appeals from the Court of Common Pleas of Philadelphia County, which awarded the insured $1.2 million dollars following a non-jury trial. The insured argued that the court erred by finding for the carrier on its bad faith claim. The carrier’s cross-appeal challenges the verdict awarded to the insured in a jury trial on the breach of contract claim. Specifically, the carrier argues that the evidence fails to support various factual findings, that the insured’s valuation expert was unqualified and articulated an improper formula for determining value, and that the court erred by estopping the carrier from asserting the policy’s limitation of suit provision.
The initial suit arose from the collapse of pier 34 on the Delaware River in Philadelphia. After the insured was denied coverage, it sought a bifurcated trial for bad faith, tried by a judge, and breach of contract, tried by a jury. (See this blog). The judge in the bad faith action rejected the insured’s bad faith allegations, but a jury awarded the insured $1.2 million dollars for the carrier’s breach of contract.
The court first examined the insured’s sole claim on appeal, which challenged the summary judgment entered in favor of the carrier on the insured’s bad faith count. The carrier had originally claimed that it could not proceed with the claim without an examination under oath of Michael Asbell, the owner of the pier that had recently been indicted for his pre-collapse knowledge of the pier’s underwater decay. Asbell had chosen to exert his Fifth Amendment rights and did not testify at all during the course of his criminal case. However, under the insured’s policy, coverage was unavailable for a loss caused by “decay” unless the decay was “hidden decay.” As the criminal indictment gave reason to believe that Pier 34’s collapse resulted from something other than “hidden decay,” the carrier’s decision to insist on a statement from Asbell as to what he knew prior to collapse was not an exercise in statutory bad faith. Therefore, the court denied the insured’s appeal.
Turning to the carrier’s cross-appeal, the court first examined the contention that the carrier is entitled to judgment notwithstanding the verdict regarding the Actual Cash Value (“ACV”) of the damaged portion of Pier 34 because the insured’s expert, an insurance adjuster, neither was qualified to offer an informed opinion on ACV nor actually offered one at trial.
At trial, the expert testified that the replacement value of the pier was $13 million. However, in light of the policy limit of $4.9 million, replacement would be impossible. Therefore, the expert sought to determine the ACV of the lost section of the pier. He listed several factors to consider when making such a calculation, including depreciation, maintenance, and replacement cost value, and gave a thorough explanation to the court. The carrier’s cross-examination at trial consisted of attacks upon the expert’s training and experience. The carrier also introduced testimony to prove that the ACV was really $0.
However this court reasoned that the carrier’s cross-examination and experts never established that the insured’s ACV/depreciation methodology was unreliable, lacked a foundation in fact, or, most important, conflicted with either accepted industry practice or the insurance policy’s specific definition of ACV. The court therefore denied the carrier’s post-trial motion for a judgment notwithstanding the verdict.
Next, the court focused on the carrier’s argument that the two-year statute of limitation period was applicable to the insured’s lawsuit. The policy stated that (1) the insured has complied with all terms of the “Coverage” part; and (2) the action is brought within two years after the date on which direct physical loss or damage occurred. It is undisputed that the December 6, 2002 date on which the insured commenced the breach of contract action was more than two years after the May 18, 2000 collapse in question. The court examined statements made by the carrier that implied that it would consider the insured’s claim without the suit limitation clause. This correspondence was part of the record established at around the time of Ashbell’s criminal trial. The carrier essentially was telling the insured that it would resume action in the civil case after the criminal trial had concluded.
Lastly, the carrier alleged that the trial court erred by awarding pre-judgment interest to the insured. That party contended that the insured caused several delays in moving forward on its claim by: deferring suit until almost 14 months after the carrier refused to pay on the claim without an EUO of Michael Asbell; obtaining a stay of two years and eight months to accommodate criminal proceedings against Michael Asbell; and waiting another 11 months to resume discovery after the stay was lifted. The court agreed with this contention and remanded the issue solely for calculation of pre-judgment interest. As for the rest of the claims, the court affirmed the judgment of both the non-jury and jury trials.
Date of Decision: November 23, 2011
Portside Investors, L.P. v. Northern Insurance Company, 2011 PA Super 252 (Pa. Super. Ct. Nov. 23, 2011) (Stevens, P.J.)