Monthly Archive for December, 2010

DECEMBER 2010 BAD FAITH CASES
EVEN ABSENT BAD FAITH, DELAY DAMAGES PERMITTED BEYOND POLICY LIMITS, AND ARE TO BE BASED ON JURY VERDICT EVEN IF GREATER THAN THE POLICY LIMITS (Superior Court)

In Marlette v. State Farm Mutual Auto Insurance Company, the insured was injured in an automobile accident.  He had stopped in traffic when another car hit his car, causing serious physical injuries as well as lost wages and impairment of his earning capacity.  The driver at fault was not insured, and the insured was covered by the insurer under a policy that provided stacked uninsured motorist coverage of $250,000.  The insured and his wife filed a suit against the uninsured driver and their insurer, and while the jury returned a verdict awarding the insureds $700,000 ($550,000 for the insured driver and $150,000 for his wife), the court molded the verdict to reflect the insureds’ uninsured motorist policy limits of $250,000.

The insureds’ then successfully appealed in an attempt to recover delay damages on the verdict.  The court awarded delay damages in the amount of $28,223.76, which was calculated based on the molded verdict of $250,000.  Both sides appealed this award:  the insureds claimed that the award was not enough, as the court should have awarded damages based on the $700,000 verdict instead of the $250,000 molded verdict, and the insurer claimed that it should not have to pay any amount greater than the $250,000 it already was required to pay.

The court did acknowledge that under Pennsylvania law, an insurer cannot be held liable for damages in excess of its policy limits absent a finding of bad faith.  However, the court noted that the policy imposed a limit on damages for bodily injury only.  Pre-award interest or delay damages were “not specifically mentioned in the uninsured motorist context; however, the Policy provide[d] that they [we]re recoverable in the liability context.”  Therefore, the court upheld the trial court’s awarding of delay damages to the insured.

In addition to upholding the validity of the delay damages, the court determined that, in the absence of bad faith, a determination of delay damages against an insurer should be calculated based upon the award of the jury before the amount is adjusted to the policy limits.  The court therefore held that the amount of damages should be increased to reflect the jury’s award of $700,000 compensatory damages, even if the policy limits dictated that the insureds only actually recover $250,000.

Date of Decision:  December 10, 2010

Marlette v. State Farm Mutual Auto. Ins. Co., No. 623 WDA 2009, No. 703 WDA 2009, Superior Court of Pennsylvania, 2010 PA Super 227; 2010 Pa. Super. LEXIS 4606, (Dec. 10, 2010) (Musmanno, J.)

DECEMBER 2010 BAD FAITH CASES
AFTER DISMISSING CONTRACT CLAIM COURT STILL ADDRESSED, & DENIED, FIRST PARTY BAD FAITH CLAIM AS LACKING EVIDENTIARY SUPPORT (Western District)

In Hampton v. GEICO General Insurance Company, the insured was operating her automobile when it was rear-ended by another driver.  She sustained personal injuries, and she sought medical attention immediately after the accident.  She was initially diagnosed with a cervical and lumbar strain and sprain with pain noted in her left shoulder and arm.  The pain did not subside quickly, however, and the insured proceeded to undergo many further tests and treatments to help manage her pain and injuries.  She underwent multiple therapy programs and took many medications over the next year.

Under an automobile insurance policy, the insurer provided the insured first party medical benefit coverage of $100,000 and extraordinary medical benefits for up to $1,000,000 in available medical coverage for injuries sustained in an automobile accident.  After the accident, the insurer paid for the insured’s medical expenses for approximately six months without questioning the reasonableness or medical necessity of the treatment.  Upon eventually requesting a peer review of the medical treatment and receiving the results (which indicated that the insured should have achieved maximum medical improvement by the time of the report), the insured notified the insurer’s medical providers that it would not be considering payment of any of their medical bills for future services rendered.  Despite receiving this notification, the insured continued to seek treatment and undergo physical therapy because her pain did not subside.

The insured filed a complaint against the insurer for breach of contract and bad faith in early 2009, two years after the insurer notified her that it would not be covering her medical expenses any longer.  The court outlined the relevant portions of the policy, which included procedures for using peer review organizations (“PROs”) to determine the insured’s need for further medical treatment.  It recognized that “clearly, the Policy requires [the insurer] to pay for all reasonable and necessary medical expenses, and by incorporation of the Motor Vehicle Financial Responsibility Law (“MVFRL”), such payment continues unless the medical treatment and rehabilitative services are determined to be unnecessary by a state approved PRO.”

It determined that because the insurer had clearly acted in compliance with the policy and the MVFRL, and the undisputed facts showed that the insurer had covered all payments to medical providers until receiving the results of the PRO, the insurer did not, as a matter of law, breach its duty to pay first party benefits to the insured.

The court then discussed the bad faith claim at length.  The insured had alleged that the insurer acted in bad faith by repeatedly selecting a specific organization that was biased in its favor to conduct the PROs.  It also argued that the insurer denied the insured payment of first party medical benefits without any reasonable basis.

The court first concluded that the insured’s statutory bad faith claim was neither precluded by the court’s grant of summary judgment on the breach of contract claim nor preempted by the MVFRL.  However, it still ruled in favor of the insurer.  It held that the insured’s bad faith allegation based on the denial of first party benefits without any reasonable basis was foreclosed by the court’s ruling that the insurer did not breach its contract with the insured.

Concerning the claims that the insurer repeatedly chose the same organization to conduct the PROs, the court first determined that these allegations fell under Pennsylvania’s Bad Faith statute, 42 Pa. Cons. Stat. §8371, and were not preempted by any provisions of the MVFRL.

It then held, however, that the insurer’s actions did not constitute bad faith as a matter of law.  The insured presented no evidence to support its allegations that the PRO had a financial incentive to provide a biased determination, that it continuously provided reports to the insurer, and that the insurer and the PRO were too closely associated for the PRO to conduct an objective evaluation.

Because the insured’s allegations lacked any supporting evidence, the court granted the insurer summary judgment on the bad faith claims against it in addition to the breach of contract claim.

Date of Decision:  November 26, 2010 (Report and Recommendation), adopted December 13, 2010

Hampton v. GEICO Gen. Ins. Co., Civil Action No. 09-327, United States District Court for the Western District of Pennsylvania, 2010 U.S. Dist. LEXIS 131450, 759 F. Supp. 2d 632 (Nov. 26, 2010) (Lenihan, J.),

This Report and Recommendation was adopted by the District Court.

 

DECEMBER 2010 BAD FAITH CASES
BAD FAITH CANNOT OCCUR WHEN AN INSURER PROPERLY DENIES COVERAGE UNDER AN EXPLICIT EXCLUSION OF THE INSURANCE POLICY (Middle District)

In Amitie One Condominium Association v. Nationwide Property & Casualty Insurance Company, the insured was a non-profit homeowner’s association for a condominium complex that suffered damage from subsidence of the underlying land.

One of the properties in the complex began to suffer damages in 1992.  Between then and 1994, portions of the building suffered from vast structural damage, including a large vertical crack in a wall, movement of the building due to the foundation of the land below changing, and other structural damages.  A dispute existed over whether the structural problems persisted between 1994 and 2006, but in 2005-2006, the same problems existed that first arose more than a decade earlier.  The damages to the building present in 2006 led to the lawsuit.

In 2006, the insured hired a geotechnical and structural engineering consultant to evaluate the property.  It discovered sinkhole activity, and it concluded that the sinkhole caused the damages to the property.  It determined that it would be necessary to “stabilize the condition to prevent further damage” and recommended that the insured stabilize the rear foundation and the soil upon which it bears.”

The insurer covered the insured under a Business Provider Insurance Policy, which provided insurance against the risks of direct physical loss and losses or damages caused by collapse of a building or any part of a building in the complex.  There was an explicit exclusion in the policy for any damage caused by “earth movement.”  The insured filed a claim for coverage under the insurance policy to pay for the necessary and recommended repairs to the property, but the insurer denied the claim after investigating and determining that this situation fell within the policy’s “earth movement” exclusion.

In late 2006, the insured filed a complaint against the insurer that included claims for breach of contract and bad faith denial of coverage.  The main issue was whether the damages caused by the sinkhole actually fell within the policy’s exclusion.  The United States Magistrate Judge first addressed the issues in a report and recommendation in 2007.

In this R&R, the magistrate judge concluded that the policy at issue was not an “all risks” policy, which meant that it did not cover all damages to the property unless specifically excluded, but instead only covered the specific damages mentioned in the policy.  The magistrate judge also determined that the ongoing and gradual increase in damages resulting from sinkholes fell within the policy’s exclusion for damages caused by “earth movement,” and therefore recommended that the insurer’s motion for summary judgment be granted on all counts.

The district judge’s subsequent opinion differed in some aspects, but eventually reached the same result.  The court held that the policy was in fact an “all risks” policy, determining that the language of the policy suggested that it covered all losses to the property unless the contract explicitly limited or excluded them.  The district judge did not sway from the magistrate judge’s overall recommendation, however, concluding that the “earth movement” exception to the coverage clearly applied to this dispute.

The court thus granted the insurer’s motion for summary judgment, determining that the insurer did not breach its insurance contact with the insured and therefore could not have acted in bad faith.

Date of Decisions:  December 7, 2010 (District Judge opinion) and August 31, 2010 (U.S.M.J. report and recommendation)

Amitie One Condo. Ass’n v. Nationwide Prop. & Cas. Ins. Co., Civil Action No. 1:07-CV-1756, United States District Court for the Middle District of Pennsylvania, 2010 U.S. Dist. LEXIS 129103, (Dec. 7, 2010) (Conner, J.)

Amitie One Condo. Ass’n v. Nationwide Prop. & Cas. Ins. Co., Civil Action No. 1:07-CV-1756, United States District Court for the Middle District of Pennsylvania, 2010 U.S. Dist. LEXIS 129077, (Aug. 31, 2010) (Prince, U.S.M.J.)

DECEMBER 2010 BAD FAITH CASES
BAD FAITH CANNOT EXIST WHEN INSURER DENIES COVERAGE AFTER EXPLICITLY RESERVING ITS RIGHTS TO EXCLUDE COVERAGE BASED ON A POLICY EXCEPTION (Western District)

In Western World Insurance Company v. Delta Property Management, the insured owned and managed apartment buildings.  One of the tenants at one of the insured’s properties stabbed another tenant to death.  The insured promptly notified its general liability insurer.  The insurer responded with a letter to the insured, highlighting an exclusion in the policy for assault and battery that prevented the insurer from having to defend or indemnify the insured in any claim arising out of an assault and/or battery or any act or failure to act to prevent an assault and/or battery.  This initial letter informed the insured that there was a strong possibility that no coverage would be provided should any claim arise against the insured.

Some time after the incident occurred, the estate of the stabbing victim filed a wrongful death and survivor action against the insured, and the insured promptly notified the insurer of the lawsuit.  The insurer initially provided a defense and agreed to select its own counsel, but a few months later the insurer sent another letter to the insured, this time notifying the insured that it was declining coverage for all claims in the wrongful death suit, although it would continue to provide a defense until the Court ruled on a complaint for a declaratory judgment that it intended to file.

The insured responded with a claim against the insurer, asserting that because the insurer sent an initial letter stating its intention to represent the insured after the lawsuit originated, it waived its right to assert the exclusion for assault and battery at a later date.  It also alleged that the insurer acted in bad faith in denying coverage and a defense.

Concerning the assault and battery exclusion, the Court determined that because the insurer’s initial letter right after the incident “explicitly and unambiguously reserved its rights” under the exclusion, it did not waive its right at a later date to deny coverage based on that exclusion.  The actions and words of the insurer between this initial letter and the denial of coverage may have indicated that it intended to provide some form of coverage.

The court stated, however, that at best, those words and actions only “suppl[ied] some meager support for an implied waiver” of the policy.  By no stretch of the imagination could a jury ever rule that the insurer actually waived its rights to deny coverage.  Because the insurer never breached any agreement in denying coverage and therefore properly handled the claim, the Court also ruled that the insurer could not have acted in bad faith.  Therefore, the insurer was granted summary judgment on its declaratory judgment action, and it was relieved from any obligation to further defend the insured.

Date of Decision:  November 29, 2010

Western World Ins. Co. v. Delta Prop. Mgmt., No. 10cv0279, United States District Court for the Western District of Pennsylvania, 2010 U.S. Dist. LEXIS 125296 (W.D. Pa. Nov. 29, 2010) (Schwab, J.)

DECEMBER 2010 BAD FAITH CASES
BAD FAITH CLAIM SURVIVES SUMMARY JUDGMENT WHEN INSURED PRESENTS GENUINE ISSUES OF MATERIAL FACTS ON DENIAL OF BENIFITS (Philadelphia Federal)

In Bybel v. Metro Life Insurance Company, the insured was an obstetrician/gynecologist at a hospital until she suffered a shoulder injury while delivering a baby when an obese patient pushed her.  She tried receiving treatment without surgery, but that was unsuccessful, so the insured eventually had surgery, which was also ineffective.  At the time of the court’s decision, the insured still suffered from constant shoulder pain and weakness.

The insured returned to work after her surgery, but she could only work part-time and could not perform major surgeries and other important procedures.  She eventually was terminated from her position.  The insured then filed an unsuccessful claim for wrongful termination, as the board ruled that she was properly terminated because she was physically unable to work.

The insured had a disability insurance policy with the insurer, and she notified the insurer of her disability a little more than a year after her last full day of work.  The insurer initially completely denied the insured’s claim for disability, but it later determined that the insured was actually residually disabled for a period of six months after her last day of work.  The insurer paid the insured 50% of the total disability benefits for that period.

Despite receiving some benefits under her policy, the insured proceeded to sue the insurer for breach of contract and bad faith.  She alleged that the insurer breached its duty under the policy to pay full disability benefits and exhibited bad faith by denying her claim for benefits without a reasonable basis and recklessly disregarded that lack of a reasonable basis.

Concerning the breach of contract claim, the court determined that because a genuine issue of material fact existed as to whether the insured was fully disabled under her policy with the insurer, it had to deny the insurer’s Motion to Dismiss the claim.

Regarding the bad faith claim, the insured had alleged that the hospital’s decision to terminate her ignored “the functional limitations that were repeatedly and consistently set in place in her treating physicians’ reports, her occupational evaluation, her functional capacity evaluations, and her two independent medical examinations.”

The insured was able to present evidence that the insurer “failed to consider all the evidence before it, failed to provide all available information it had to the consultants it retained to evaluate [the insured’s] claim, and misrepresented the evidence it had in describing [the insured’s] condition to its key consultant.  The insurer, on the other hand, did not present any significant evidence to refute the insured’s claim, instead simply relying on its position that the insured was not entitled to total disability or residual disability benefits.

The court thus determined that there were genuine issues of material fact with respect to the insured’s bad faith claim, and it therefore denied the insurer’s Motion.

Date of Decision:  November 18, 2010

Bybel v. Metro. Life Ins. Co., Civil Action No. 09-570, United States District Court for the Eastern District of Pennsylvania, 2010 U.S. Dist. LEXIS 122367, (Nov. 18, 2010) (Stengel, J.)