Yearly Archive for 2011

DECEMBER 2011 BAD FAITH CASES SUPERIOR COURT AFFIRMS DENIAL OF BAD FAITH BECAUSE CARRIER RIGHTFULLY DELAYED INVESTIGATING CLAIM UNTIL KEY TESTIMONY AVAILABLE (Superior Court)

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.)

DECEMBER 2011 BAD FAITH CASES
NO BAD FAITH WHERE MATERIAL BREACHES OF COOPERATION OBLIGATIONS AND REASONABLE TO INVESTIGATE ARSON (Middle District)

The court was faced with a carrier’s motion for summary judgment on an insured’s breach of contract and bad faith claims. The suit arose from a fire that occurred at a property rented by the insured. At the time of the incident, the insured had renter’s insurance with the carrier.

The insured moved into the rental home and shortly thereafter a fire erupted at the property. The fire marshal investigating the matter ruled that the fire was the result of arson. The insured began the claims process by filling out an inventory form, as required by the carrier. The forms indicated a large amount of valuable items, many of them less than two years old.

The carrier was put in contact with the investigating fire marshal, who ruled the fire arson and told the carrier that he did not see very much person property at the residence. He also reported that the insured had previously been involved in arson of another property. The carrier then decided to have the matter further investigated.

The carrier requested that the insured party sign various authorization forms, as required under the policy, requesting phone and financial records. The insured refused. The carrier also hired a salvage company to begin working on the damaged property, but the insured’s landlord denied entrance to their home for several weeks. The carrier subsequently sent the insured a Reservation of Rights letter, citing questions over the cause of the fire and whether the insured misrepresented their claims. The carrier hired an outside party to conduct an Examination under Oath, but the insured again refused to cooperate with the investigation. After the carrier denied coverage, the insured filed suit.

The court first examined the insured’s bad faith claim, finding that the carrier acted reasonably and did not delay or stall the investigation of the insured’s claim. Specifically, several significant “red flags” provided a reasonable basis for investigating the claim, including: the fire being ruled an arson; the claim being on a policy less than six months old; and the history of late payments on the policy.

Moreover, the insured refused to turn over the records they were contractually obligated to provide. Without the requested financial and telephone records, which were critical to determining the insured’s motive and opportunity for setting the fire, the carrier could not complete the investigation. Therefore, the court concluded that summary judgment was appropriate on the bad faith claim.

The court also granted summary judgment on the insured’s breach of contract claim. The insured was contractually bound to provide any documents requested by the carrier. The refusal to do so was a significant departure from the terms of their policy and substantially prejudiced the carrier’s investigation of the claim. Therefore, the court disposed of the matter because the insured’s material breach of the terms of its policy precluded any finding of liability on the part of the carrier.

Date of Decision: November 23, 2011

Verdetto v. State Farm Fire and Casualty Company, NO. 3:10-CV-1917, U.S. District Court for the Middle District of Pennsylvania, 2011 U.S. Dist. LEXIS 135287 (M.D. Pa. Nov. 23, 2011) (Caputo, J.)

NOVEMBER 2011 BAD FAITH CASES
JUDGMENT WHERE INSURED DID NOT SEND PREMIUM DURING LIFETIME & MISREPRESENTED HEALTH INFORMATION ON APPLICATION (Middle District)

The court was faced with a carrier’s motion for summary judgment to dispose of an insured’s claim seeking benefits under a life insurance policy.

The case arises from a life insurance policy purchased by the decedent insured. In 2010, the carrier sent the insured a questionnaire asking several health-related questions. As a part of the document, the decedent wrote that she had not used nicotine in over 12 months and signed the form. Moreover, the carrier requested that the insured submit her initial premium payment. The insured submitted credit card information, but the carrier was unable to process the information. The insured was notified that she would be sent an invoice.

The insured died before submitting payment, however. Three days later, the insured’s estate informed the carrier that it would be submitting payment and requested information in order to submit a claim under the policy. The carrier, having already been apprised of the insured’s death, refused to process the insured’s premium and declined payment to the insured’s estate under the life insurance policy. The insured commenced this action in the Court of Common Pleas for Pike County and the carrier removed to federal court.

The court first addressed the issue of the first premium as a condition precedent to the policy. In this case, it was undisputed that the insured must comply with the first premium payment in order to trigger policy coverage. The insured claimed that the policy was in effect because it intended to pay the premium, but was unable to submit payment via credit card. The court disagreed, likening the insured’s attempted payment to a bounced check. It found that a payment is not actually made until the carrier receives the money.

The court also found that the second attempted payment, made after the insured’s death, was invalid because the individual had already died, nullifying any offer of coverage. Furthermore, the court dismissed the insured’s claims that the carrier’s issuance of an insurance certificate created coverage. The fact that the insured did not pay the first premium within 31 days of the offer of insurance, as required under the policy, was enough in itself to void any suggestion that the decedent was insured. The court concluded that summary judgment was appropriate on this issue.

Next, the court addressed the insured’s misrepresentations about smoking on her application for coverage. Specifically, the carrier alleged that the decedent lied when she claimed no use of nicotine within twelve months on the application. On the day of her death, however, the insured’s husband told emergency medical personnel that she smoked “a lot.”

The insured also reported on her application that she had never sought treatment for high blood pressure, tumors, or chest pain. Yet, medical records reveal that the decedent was in fact treated for these ailments prior to submitting its application to the carrier. The carrier claims that, had the insured applied for insurance in good faith, it would have likely been denied.

The estate contested these claims, arguing that she never had a tumor, but a benign nodule that did not result in any treatments. The estate also alleged that her medical records reporting other health issues were incorrect. The court disagreed, finding that, even viewed in a light most favorable to the insured, the instant facts supported a grant of summary judgment to the carrier.

Accordingly, the court denied the claims brought by the insured’s estate and granted summary judgment to the carrier.

Date of Decision: November 21, 2011

Estate of Genovese v. AAA Life Insurance Company, NO. 3:11-CV-348, U.S. District Court for the Middle District of Pennsylvania, 2011 U.S. Dist. LEXIS 134254 (M.D. Pa. Nov. 21, 2011)(Conaboy, J.)

NOVEMBER 2011 BAD FAITH CASES
CARRIER’S CLAIMS MANUAL IS DISCOVERABLE AS IT IS PERTINENT TO INSURED’S BAD FAITH CLAIM (Philadelphia Federal)

The court was faced with an insured’s motion to overrule the carrier’s objection to discovery requests. Specifically, the insured sought to discover manuals that the carrier used to process its claims. The carrier objected on grounds that the discovery request was overly broad, burdensome, and irrelevant to the proceedings.

The original suit stemmed from a car accident during which the insured was struck by a car driven by an individual insured by the carrier. The injured party sought damages under Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. § 1701 and Pennsylvania’s Bad Faith Statute, 42 Pa. C.S. § 8371.

With respect to the parties’ discovery issues, the insured claims the “manuals and desk books” pertaining to her claims are discoverable. Her counsel also pledged to keep these materials confidential. However, the carrier objected, arguing that the discovery request contained nothing more than boilerplate language.

The district court examined several pertinent cases as precedent. First, under Garvey v. National Grange Mutual Insurance Company, 167 F.R.D. 391 (E.D. Pa. 1996), the district court previously held that claims manuals were not discoverable to prove that the carrier may have “strayed from its internal procedures” because this alone does not “establish bad faith on the part of the [carrier] in handling the [insured’s] loss.”

However, in other circumstances, the court has specifically acknowledged that claims manuals are pertinent to bad faith claims. In Kaufman v. Nationwide Mutual Insurance Company, 1997 WL 703175 (E.D. Pa. Nov. 12, 1997), the court recognized the rule in Garvey, but held that “there may be circumstances when such discovery would be relevant,” such as situations where “a claims manual…requires an adjustor to take certain investigative steps before adjusting a claim and [the insured] can show that these steps were deliberately omitted.” The court recognized that “this fact alone would not be enough to establish bad faith,” but it would be “probative evidence” for the insured to ultimately prove bad faith.

Since Garvey, the district court has specifically ruled that, “any material which pertains to instructions and procedures for adjusting claims and which was given to the adjusters who worked on plaintiffs’ claim may be relevant to the action and must be produced.”

The court in the instant case held that the insured’s request closely mirrored that in Kaufman and overruled the carrier’s objection to the insured’s discovery requests. Because the insurance claims manual might be relevant to the insured’s bad faith claim, the court permitted discovery, pending absolute confidentiality on behalf of the insured.

Date of Decision: November 16, 2011

Platt v. Fireman’s Insurance Fund Company, NO. 11-4067, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 132570 (E.D. Pa. Nov. 16, 2011) (Buckwalter, J.)

NOVEMBER 2011 BAD FAITH CASES
BREACH OF CONTRACT AND BAD FAITH DISMISSED BECAUSE CARRIER HAD ALREADY PAID POLICY LIMITS (Philadelphia Federal)

The court was faced with a set of facts stemming from an insured’s duty to defend a claim against its carrier. The carrier moved to dismiss the action and the district court granted the motion, holding that the carrier had already paid to the policy limits.

The federal suit arose after the insured engaged in state court litigation to determine the true directors of the church. In 1938, the St. Nicolas Brotherhood purchased a parcel of land to be used by the Holy Ghost Church as a place of worship. The Brotherhood rarely met, but existed to ensure the perpetual ownership of the property by the Church. As of 2008, no new directors of the Brotherhood had been elected, although one member of the Brotherhood was still alive. In 2008, the Church devised a plan to sell part of the land to developers as a means of raising money for the Church. The Church sought to quiet title and attain a decree that the Church could act on behalf of the Brotherhood. The claim was denied and the membership of the Brotherhood was still undecided.

Soon after, several members of the Church appointed themselves directors of the Brotherhood without the knowledge of the actual surviving member. The newly constituted Brotherhood executed an agreement of the sale of land and granted an easement to AT&T. Representatives of the original Brotherhood filed suit in state court. The Court of Common Pleas of Chester County ruled that all members of the Church were members of the Brotherhood. The judge also held that the officers and directors of the Brotherhood and the Church were identical. Therefore, the sale of land by the self-appointed directors of the Brotherhood was binding.

The self-appointed directors then filed suit against the carrier, seeking a declaration that the carrier had a duty to defend them in the initial state court action. The multi-peril policies held by the insured contained Director and Officer Coverage (“D&O Coverage”), which included the following language: “We will pay on your behalf those sums that any of your Directors, Officers or Trustees become legally obligated to pay for loss arising from any claim or claims because of injury arising out of a wrongful act to which this insurance applies…and we will have the right and duty to defend the insured against any suit seeking payment for loss and to pay for the defense expenses.”

However, the policy contained several exclusionary provisions and endorsements. For instance, coverage for disputes over “any claim involving title to the Named Insured’s property” were explicitly excluded under policy exclusion (f). In addition, the D&O coverage was modified by the “Affiliated Entity Dispute Legal Defense Coverage Endorsement Clause,” which limits defense coverage to $25,000 in suits brought against the directors and officers of the insured by affiliated entities.

First, the court sought to determine if the policy issued to the insured applied at all in this case. The court found that because the Brotherhood was the only named Plaintiff in the state court action, the insured was not entitled to defense coverage for the underlying lawsuit. Therefore, the court only needed to adjudicate coverage under the policy issued to the Church itself, not the Brotherhood.

Second, the court determined that exclusion (f) of the policy did not apply to the dispute because the state court action was not a “claim to settle questions of property ownership…but to settle questions of membership in and leadership of the Brotherhood.” The action, therefore, was not a “claim involving title” to the named insured’s property as required for exclusion under the policy.

Third, the court recognized that the state action was fundamentally a dispute about the appointment or election of directors, officers or trustees. Therefore the instant dispute “falls within the scope of the Affiliated Entity Endorsement,” which “modifies the right to benefits under the D&O provisions.” However, the insured was not entitled to additional benefits under the D&O policy, over and above the policy limits already tendered.

Lastly, the court interpreted the policy to mean that recovery under the “Legal Defense provision” is precluded where defense costs are covered by the “Affiliated Entity Endorsement” provision, as they are in this case. The court therefore concluded that, because “the Legal Defense coverage is limited to $5,000 per defensible incident, and [the carrier] has already paid $25,000,” it was not required to pay any additional monies to the insured.

In conclusion, the court held that the carrier had satisfied its duties under the insured’s policy and dismissed the insured’s declaratory judgment, breach of contract, and bad faith claims.

Date of Decision: November 14, 2011

Holy Ghost Carpatho-Russian Greek Catholic Church of the Eastern Rite of Phoenixville, PA v. Church Mutual insurance Company, NO. 11-1800, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 131449 (E.D. Pa. Nov. 14, 2011) (Rufe, J.)

NOVEMBER 2011 BAD FAITH CASES
3d CIRCUIT AFFIRMS DISMISSAL, FINDING THAT POLICY OCCURRENCE LIMITS ARE GOVERNED BY AGGREGATE MONETARY LIMITS WITHIN A GIVEN POLICY PERIOD (Third Circuit)

The Third Circuit heard an appeal from the district court’s dismissal of an insured’s complaint. The insured is a transportation company whose bus collided with a tractor in July 2006. The numerous personal injury claims stemming from the incident have been resolved. This instant action involves a dispute over the insured’s coverage limits under a policy with its carrier.

Under the “coverage” provision of the policy, the insured had a $4,000,000 aggregate policy limit. The policy defined several pertinent terms, which the insured challenges on appeal. First, the “policy is subject to an aggregate limit of liability… which will be paid under this policy for all losses in excess of the underlying policy limits.” Second, the policy states, “Subject to the above provision respecting aggregate, the Limit of Liability stated in the Declarations as per occurrence is the total limit of our liability for ultimate net loss… as a result of any one (1) occurrence.” Third, the policy holds that “it shall cease to apply after the applicable limits of liability have been exhausted by payments of defense costs and/or judgments and/or settlements.”

Pursuant to these provisions, the carrier paid about $4,000,000 to the insured to effectuate the various settlements arising from the 2006 car accident. After paying however, the carrier informed the insured that it had reached its policy limits. The insured responded by filing suit in the Philadelphia Court of Common Pleas, seeking a declaration of its rights and damages for breach of contract and bad faith. The carrier removed to federal court, which the insured unsuccessfully moved to remand. The district court also dismissed the insured’s substantive claims. The insured filed two appeals to the Third Circuit.

First, the court examined its jurisdiction to decide the instant appeals. The court found that it possessed jurisdiction to hear the insured’s appeal from the dismissal of its case, but found that it lacked jurisdiction to hear the insured’s appeal from the rejected motion to remand.

The Third Circuit approached the substantive issues by distinguishing between the controverted policy terms. It found that “aggregate limits” set the “maximum amount which will be paid under this policy for all losses… occurring during the policy period, while the occurrence limit is the total limit of the carrier’s liability for ultimate net loss.”

Next, the court addressed the insured’s claims. First, it found that the insured’s argument that the policy contained no occurrence limit was unreasonable. As indicated by its annual $9,000 premium, the insured could not be entitled to unlimited coverage. Second, the court found that the insured was attempting to unfairly twist the language of the “limits of liability” provision. The court ruled that the occurrence limit “is subject to… rather than completely subsumed by, as the insured contended the stated aggregate limit, or the maximum amount that” the insured would pay in any policy period.

Therefore, the court ruled, the insured may bring liability claims for an infinite number of occurrences per policy period, but the coverage for each occurrence is limited to $4,000,000, as the carrier argued.

Date of Decision: November 8, 2011

Yellowbird Bus Company v. Lexington Insurance Company, No. 10-3396, No. 10-3859, U.S. Court of Appeals for the Third Circuit, 2011 U.S. App. LEXIS 22574 (3d Cir. Nov. 8, 2011) (Chagares, J.)

NOVEMBER 2011 BAD FAITH CASES
THIRD CIRCUIT REVERSE ON CHOICE OF LAW RULES, & APPLIES PENNSYLVANIA LAW PROVIDE INSURED BENEFIT OF STACKING UNDERINSURED MOTORIST BENEFITS (Third Circuit)

The Third Circuit faced an insured’s appeal from the Middle District of Pennsylvania.  The district court had granted summary judgment to the carrier on a bad faith claim and choice of law dispute, applying New Jersey law to the insured’s policy.

In 2007, the insured purchased a policy from the carrier in New Jersey, but moved to Pennsylvania in early 2008.  The insured apprised the carrier of its relocation and was told to get a Pennsylvania license and register its two cars in Pennsylvania before obtaining a rewritten policy. Before doing so, the insured was involved in a fatal traffic accident in Pennsylvania, caused by an underinsured motorist, that triggered the policy claim.

In 2009, the carrier sought declaratory relief in the Superior Court of New Jersey, believing that New Jersey law applied to the insured’s policy.  Under New Jersey law, an insured may not “stack” benefits on multiple vehicles, while in Pennsylvania an insured is permitted to “stack” benefits. The insured removed to the District of New Jersey, which sua sponte transferred the case to the Middle District of Pennsylvania.

The choice of law and bad faith claims were submitted to a Magistrate, who applied Pennsylvania’s choice of law rules and concluded that New Jersey law applied to the policy.  It also recommended denial of summary judgment on the bad faith claim.  The Middle District of Pennsylvania adopted the R&R and the insured appealed.

The Third Circuit first addressed the choice of law issue, applying the choice of law rules of New Jersey.  Then, it applied New Jersey law, which instructs courts to use the “most significant relationship” standard in choice of law disputes.  This standard seeks to examine each state’s contacts, such as place of contracting, location of subject matter of the contract, domicile and residence, “according to relative importance.”

The court recognized that, with respect to the “stacking” issue, a conflict of laws existed between Pennsylvania and New Jersey.  Because an actual conflict existed, the Third Circuit looked to precedential case law detailing the Simmons approach.  The court focused on New Jersey Manufacturer’s Insurance Company v. MacVicar, which factually resembled the instant dispute.

That case also decided between applying New Jersey and Pennsylvania law in a dispute over an insured’s entitlement to the “stacking” of underinsured motorist benefits.  Though MacVicar was never removed to federal court, the trial court found for the carrier on the choice of law issue during the summary judgment phase.  In that case, the New Jersey Appellate Court later reversed the grant of summary judgment, applying Simmons and the “most significant relationship” test.

The standard led that court to conclude that the “justified expectations of the parties shifted” when the insured moved to Pennsylvania.  Because the “location of the insured risk” moved with the insured party, Pennsylvania had the most “natural interest” in the application of its law.  Moreover, the MacVicar court held that Pennsylvania had the most significant governmental interest in the controversy, given the firm public policy of affording residents the benefit of “stacked” underinsured motorist policies.

The Third Circuit’s decision echoes this rationale; it ruled that the carrier no longer had a justified expectation that New Jersey remained the principal location of the insured risk. The court reversed the Middle District’s grant of summary judgment to the carrier on the choice of law issue and applied Pennsylvania law.  The case was remanded so that the insured could receive the benefit of “stacked” underinsured benefits.

Lastly, the court addressed the insured’s bad faith claim, which alleged that the carrier failed to adequately investigate its claim and improperly denied them “stacked” benefits under their policy.  The court upheld the Middle District’s grant of summary judgment to the carrier, finding that the carrier’s adjuster was reasonable to believe that New Jersey law would apply at the beginning of the dispute.

Date of Decision: September 8, 2011

Amica Mutual Insurance Company v. Fogel, 656 F.3d 167 (3d Cir. 2011) (Ambro, J.)

NOVEMBER 2011 BAD FAITH CASES
BAD FAITH COULD EXIST EVEN IF SETTLEMENT OFFER MADE, THOUGH NOT IN THIS CASE; DISCUSSIONS WITH UNREPRESENTED WITNESS WERE NOT IMPROPER(Philadelphia Federal)

The court considered a carrier’s motion for summary judgment to dispose of an insured’s claim for breach of contract and bad faith.  The suit stemmed from an automobile accident in which the insured’s son was struck and killed by an unidentified driver while walking on the side of the road.  The decedent was with his girlfriend at the time of the accident.

In September 2007, the insured filed an uninsured motorist claim with the carrier.  During the following two years, the carrier investigated the claim.  First, the carrier requested proof of the decedent’s residency, proof of death, papers of administration, the police report, and a witness statement from the decedent’s girlfriend.

The insured provided this information to the carrier in mid-2008.  In 2009, the carrier was advised that the insured had changed attorneys.  The carrier later spoke with the insured’s former attorney, who told the carrier that neither the decedent, nor his girlfriend, were living with the insured’s family at the time of the accident.  This information would affect the insured’s entitlement to benefits.

In June of 2009, the carrier offered $75,000.  Days later, the insured filed this suit.  The carrier responded with a $100,000 offer and moved for summary judgment on the insured’s bad faith claim.

The insured’s suit alleged three counts of bad faith, claiming that (1) the carrier offered less than 25% of the insured’s original $400,000 claim, (2) the carrier spoke with the insured’s former attorney after its new attorney had taken over representation, and (3) the carrier’s attorney engaged in bad faith by speaking with the decedent’s girlfriend before her deposition, where she would have had counsel present.

The carrier first argued that a bad faith claim requires that it refused to pay the insured’s claim.  However, the court disagreed, stating that bad faith claims do not require the carrier’s refusal to pay an insured’s claim.  The court cited Third Circuit case law where bad faith claims were considered, regardless of a carrier’s refusal to pay a claim.  The court reasoned that this case really turned upon the reasonable basis behind the carrier’s decision-making, not its payment or non-payment of the insured’s claim.  As such, the court ruled, a jury could not conclude that the carrier acted in bad faith.

First, the carrier was aware of the decedent’s limited income prior to his death and the fact that he did not live with his family when he died, raising questions about coverage.  Furthermore, there was evidence that the decedent may have been negligent at the time of the accident.  The court therefore found that the $100,000 offer was not made in bad faith.

As to the other two counts, the parties’ reports of the events that occurred prior to the girlfriend’s deposition were not contradictory and the court accepted the representations as true.  There was some confusion about whether a third party witness would or would not speak to the carrier’s counsel without having her own lawyer present.  Defense counsel had told the witness she could speak to him without her a lawyer present if she wanted, at which point either she or the insured became upset and Plaintiff’s counsel joined them.  The conversation between the witness and the carrier’s counsel seems to have gone no further than whether she wanted to speak to him with counsel or not.  The court ruled that these actions did not amount to an impropriety or bad faith.

Date of Decision: October 25, 2011

Carcarey v. GEICO General Insurance Company, No. 10-3155, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 123679 (E.D. Pa. Oct. 25, 2011) (McLaughlin, J.)

NOVEMBER 2011 BAD FAITH CASES: AMBIGUOUS POLICY LANGUAGE AND CARRIER’S TWO MONTH DELAY IN PAYMENT OF CLAIMS ARE NOT ACTIONABLE FOR BAD FAITH (Philadelphia Federal)

The court adjudicated a carrier’s motion for summary judgment that sought to dispose of an insured’s breach of contract and bad faith claims.  The suit relates to a claim that the insured submitted under a commercial insurance policy after a vehicle at its automotive repair garage combusted, causing great damage.  The carrier paid the insured for its claims, but withheld $64,118.86 on the basis of policy provisions that required the insured to first effectuate repairs and then submit receipts for repair costs before receiving benefits for depreciation.

The insured sued in state court in Philadelphia County, asserting breach of contract (Count I), detrimental reliance and misrepresentation (Count II), unfair insurance practices pursuant to 42 Pa. Cons. Stat. § 8371 (Count III), and violation of Pennsylvania’s Unfair Trade Practices Act, 73 Pa. Stat. § 201-2(4) (Count IV).

In 2010, the carrier removed the case and the insured responded by moving to remand.  After the court denied the motion to remand, the carrier successfully moved for dismissal.  The court dismissed the insured’s claims for punitive damages and attorneys fees in Count I, Count II in its entirety, and Count IV in its entirety.  In 2011, the carrier moved for summary judgment on the remaining Counts I and III.

First, the court recognized the ambiguity inherent in the policy, finding that its vague language warranted the denial of summary judgment.  The insured and the carrier both disputed over which policy provision would apply to the recovery of depreciation funds.  The insured argued that their claim fell under the Loss Payment provision, while the carrier argued that the Replacement Cost provision governed the claim for depreciation funds.

The Loss Payment provision stated that the carrier will “pay the value of the lost or damaged property,” cross-referencing the policy’s Valuation provision.  This provision provided that the valuation of claims must be on an Actual Cash Value basis.  Because the Actual Cash Value specifically excludes depreciation, the insured could not recover under the Loss Payment provision.

On the other hand, the Replacement Cost provision allowed the insured to receive an Actual Cash Value payment and file a supplemental claim for depreciation within 180 days.  This finding, the court held, was supported by the insured’s Sworn Proof of Loss Statements, which provided that it was entitled to an Actual Cash Value payment, but first must file a supplemental claim pursuant to the Replacement Cost provision.  The court proceeded to analyze the claim under the Replacement Cost portion of the policy and not the Loss Payment provision.

The Replacement Cost provision limits recovery to “[t]he amount actually spent that is necessary to repair or replace the lost or damaged property.”  However, the Court found that there was a genuine issue of material fact as to whether the insured actually spent such money.  Moreover, there was a dispute of fact as to whether the insured even needed to provide documentation of these expenditures within a supplemental claim.

The carrier could only point to the “books and records” provision for support of its argument that the insured was required to submit proof of its repairs.  Under this provision, the carrier is permitted to audit the insured during and after the policy period.  However, the court found that this was ambiguous as a matter of law because the provision would necessarily preclude recovery for depreciation if the insured’s records were lost or unavailable.  The court denied summary judgment for Count I, finding that the matter should proceed to trial for determinations of fact.

The court then analyzed Count III of the insured’s complaint, which alleged bad faith.  The insured claimed that the confusing and contradictory nature of the policy amounted to bad faith.  The insured also argued that the denial of its claim for benefits was unreasonable.  The court rejected this argument, finding that the carrier was reasonable to rely upon the “books and records” provision as requiring the insured to provide documentation of its repair expenditures.  The court also held that the carrier did not act in bad faith by delaying payment of the insured’s claim, citing case law where a carrier waited as long as forty-two months before paying an insured’s claim.

The court lastly addressed, sua sponte, a potential remand to state court.  After dismissing the insured’s bad faith claims, the amount in controversy fell below $75,000, the amount required for diversity jurisdiction.  However, in the interest of judicial economy, the court exercised its discretion and declined to remand the case.

Date of Decision: October 24, 2011

Mitch’s Auto Service Center v. State Automobile Mutual Insurance Company, No. 10-3413, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 123119 (E.D. Pa. Oct. 24, 2011) (Robreno, J.)

OCTOBER 2011 BAD FAITH CASES
COURT DENIES AND GRANTS PORTIONS OF MOTION TO DISMISS BAD FAITH CLAIMS IN UM/UIM CONTEXT (Western District)

The court ruled upon a carrier’s motion to dismiss an insured’s breach of contract and bad faith claims.  The action stemmed from a 2008 car accident, during which the insured passenger suffered several injuries.  After the accident, the insured was unable to recall who was driving the vehicle.  The car was insured under a policy, issued in Ohio, by the owners of the vehicle.  The complainant was also insured by the same carrier, but in Pennsylvania.  The carrier refused to cover the insured under either policy.

The insured subsequently brought claims for Uninsured and/or Underinsured Motorist (“UM/UIM”) coverage under both policies in the Court of Common Pleas of Allegheny County.  The carrier removed to federal court in the Western District of Pennsylvania and moved to dismiss the insured’s seven-count amended complaint.

Count I alleged that the carrier breached the policy held by the insured because it failed to issue UM/UIM benefits.  As to the UM coverage, the court highlighted language in the policy that the carrier would pay damages that the insured is entitled to recover from the owner of an uninsured automobile.  However, the policy conditioned that recovery be a part of a “hit-and-run motor vehicle.”  As such, the court held that the insured did not state a plausible claim for UM benefits under its own policy.

With respect to the UIM benefits, the insured’s policy covered damages that exceed “the bodily injury protection in effect at the time of the accident.”  However, the insured had yet to ascertain the precise amount of damages he sustained, warranting discovery on the issue.  The court therefore denied the carrier’s motion to dismiss the suit for UIM benefits.

Counts II and III included bad faith claims under Pennsylvania and Ohio law.  The court disposed of the Ohio bad faith claim in count III because the insured’s own policy was issued in Pennsylvania.  The court denied the motion to dismiss with respect to the Pennsylvania bad faith claim because the insured’s allegation that he was improperly denied coverage was plausible and warranted discovery.

Count IV contained a breach of contract claim under the car owner’s UM/UIM coverage.  The court began by noting that, according to the owner’s policy, Ohio law would apply.  Specifically, under Pennsylvania’s flexible “contacts/interest” methodology, the court would apply law of the state with the greatest interest in the underlying tort.  The court decided that Ohio law should apply because the car owner’s policy was executed and delivered in Ohio to two Ohio residents.  Moreover, Ohio has the most substantial contacts with the car owner’s policy.  Pursuant to the policy’s choice of law provision, the court ruled that Ohio law should govern the owner’s policy.

With respect to count IV, the carrier argued that, under the policy, “An Uninsured Auto Is Not: a motor vehicle which is insured under the Automobile Liability Insurance of this policy.”  Because the car involved in the accident was listed as the insured vehicle on the owner’s policy, it was not an uninsured vehicle for the purposes of the insured’s claim.

However, the insured insisted that Ohio’s Revised Code § 3937.18(B) contravenes the language of the policy, stating that “an ‘uninsured motorist’ is the owner or operator of a motor vehicle if…[t]he identity of the owner or operator cannot be determined, but independent corroborative evidence exists to prove that the bodily injury… of the insured was proximately caused by…the unidentified operator of the motor vehicle.”  The court disagreed, citing case law where Ohio courts have applied the language of similar UM policies over that of the statute.  Moreover, the court agreed with the carrier that the owner’s policy only provides UIM coverage in limited circumstances, where there is a “uninsured” auto.  Yet, the owner’s policy provides that a vehicle insured under the policy cannot also be deemed “an uninsured auto,” so it does not qualify for coverage under the policy’s UIM provision.  The court therefore dismissed count IV.

The court then examined counts V and VI, which alleged bad faith under Pennsylvania and Ohio law, respectively.  The court immediately dismissed count V because the owner’s policy was governed by Ohio law.  As for count VI, the court dismissed the Ohio bad faith claim because, as discussed in reference to the counts I-IV, the carrier had a “reasonable justification” for believing that the insured was not entitled to coverage under the owner’s policy.

Lastly, the carrier claimed that count VII, alleging negligence on behalf of the anonymous driver, should be dismissed or severed.  It argued that suits against fictitious, unidentified defendants are disfavored in Pennsylvania.  However, the court recognized the need for this claim to proceed to discovery, affording the insured an opportunity to identify the driver.  The court rejected the carrier’s motion on count VII, noting that it would revisit a possible severance of the negligence claim prior to trial.

Date of Decision: October 19, 2011

Flaherty v. Allstate Property & Casualty Insurance Company, No. 11-440, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 120698 (W.D. Pa. Oct. 19, 2011) (Mitchell, U.S.M.J.)