Monthly Archive for September, 2011

SEPTEMBER 2011 BAD FAITH CASES
COURT MAINTAINS THAT INDEPENDENT CONTRACTOR’S ALLEGATIONS DO NOT STATE CAUSE OF ACTION UNDER PA BAD FAITH STATUTE (Philadelphia)

The trial judge trial issued an opinion to support his December 2, 2010 decision, which has been appealed.  The case stems from an accident that occurred in 2009, when a driver, operating a taxi as an independent contractor, suffered personal injuries in a car accident.

The driver sought first party benefits under his employer’s insurance policy.  Days after notifying the carrier of this claim, the driver was apprised that he was excluded from coverage and was not permitted to drive vehicles insured by the carrier.

The driver submitted a doctor’s note to the carrier, requesting that he be permitted to operate a taxi under the policy.  His request was denied.  The driver continued to operate a taxi and was involved in a second accident three weeks later.

In February 2009, the driver filed a complaint, alleging that the carrier’s actions, which including prohibiting the driver from operating a taxi and excluding him from coverage under the policy, constituted bad faith..

The carrier filed objections to these claims and the driver subsequently filed an amended complaint.  In the amended complaint, the driver alleged that the carrier excluded him from coverage “in order to dissuade [the driver] from availing himself of benefits for reasonable and necessary medical treatment.”  The driver also claimed that the carrier had “no legitimate basis to exclude him from…operating his taxi,” when he was cleared by a physician to do so.  The trial court dismissed these arguments as contained within the amended complaint.  That ruling is now the subject of a pending appeal.

The trial court ruled that the driver had not specifically claimed that he was denied payment of medical benefits by the carrier.  Moreover, to the extent that the driver was  asserting his right to medical benefits, the only available benefits “would be first party benefits pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law 75 Pa.C.S.A. § § 1711.”

The court reasoned that, under both state and federal precedent, the MVFRL is the applicable statute in these circumstances, not Pennsylvania’s bad faith statute.  The court concluded that the Pennsylvania legislature intended the “PMVFRL to provide the exclusive first party remedy for bad faith denials by insurance companies.”

The court also addressed the driver’s second claim – that there was no legitimate basis to exclude him from coverage under the policy and prohibit him from driving a taxi.  The court held that the driver’s “ability to drive has no connection whatsoever to any benefit or coverage provided by the policy.”  Moreover, the driver’s ability to operate a taxi  cannot amount to the denial of any benefit provided under the policy.

The court therefore concluded that the driver’s allegations did not fall within the scope of a proper a bad faith claim.

Date of Decision: December 2, 2010

Nantieh v. First Keystone Risk Retention Group, Inc., Feb. Term 2010, No. 3276, Common Pleas Court of Philadelphia County, Pennsylvania, Civil Trial Division, 2010 Phila. Ct. Com. Pl. LEXIS 405,20 Pa. D. & C.5th 13 (Dec. 2, 2010) (Tereshko, J.)

SEPTEMBER 2011 BAD FAITH CASES
COURT REJECTS INSURED’S CLAIM THAT CARRIER WAS ADVERSARIAL IN ITS INVESTIGATION (WESTERN DISTRICT)

The case arose in June 2008 from a water leak caused by a broken water pressure gauge in the insured’s basement.  After submitting its claim to the carrier, the insured began to move damaged items and attempted to salvage clothing that had been soaked by washing them in the laundry room.

Later in June 2008, a property restoration company arrived at the insured’s residence to begin removing damaged items.  While the workers began to discard damaged items, the insured sat and watched, giving approval of items to discard and taking note of everything that was being thrown away.

The insured submitted a claim for $37,979.61.  The carrier determined that the actual cash value of the claim was $24,682.91.  The carrier advanced $3000.00 to the insured while it reviewed the claims.  The carrier also sought records of the insured’s purchases during 2007 and 2008.  However, the insured claimed that these records were destroyed in the loss and told the carrier she could provide other financial records.

In September 2008, representatives of the carrier met with the insured.  At that time, the insured attempted to submit an additional list of items that had been destroyed in the loss.  This list exceeded $10,000.00.  According to the insured, the carrier told her that these items were documented and would be reimbursed.  On September 10, the carrier sent a check to the insured for the remaining $21,682.91.

On September 23, the insured submitted an additional list of damaged items to the carrier.  During this time, relations between the carrier’s representatives and the insured soured.  On September 29, the carrier submitted the insured’s additional claim to its Special Investigative Unit.  This investigation yielded some doubt as to the additional list of items damaged in the loss.  For example, the carrier was concerned about the large amount of clothing that was claimed on the additional list, as this clothing was in the laundry room when the restoration company arrived.  Moreover, the restoration company testified that it had been instructed by the insured to discard items showing little or no damage.

The carrier then requested that the insured submit to an examination under oath.  The insured claimed that an injury prevented her from taking the examination.  Before the EUO could be scheduled, the insured filed suit against the carrier.  The carrier moved for summary judgment on the bad faith count.

The crux of the insured’s claim is that the carrier treated “the claim investigation process as an adversarial process” by “treating [the insured] as adversaries rather than as policyholders.”

Citing precedent, the court reasoned that, where a carrier has reason to suspect fraud, it is permitted to examine the insured under oath to determine the truthfulness of its claim.  Moreover, the court held that the carrier did not lack a reasonable basis for denying the insured’s additional claim.  Moreover, the carrier conducted a thorough investigation of the insured’s loss, even looking into the additional claim.

As such, the magistrate recommended to the District Court that it should grant summary judgment to the carrier on the bad faith count.  The District Court adopted the Magistrate Judge’s Report and Recommendation.

Date of Decision: August 12, 2011 (Report and Recommendation)

September 19, 2011 (Adopted by District Court)

Schmitt v. State Farm Ins. Co., No. 09-1517, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 105834 (W.D. Pa. Aug. 12, 2011) (Lenihan, J.), adopted in Schmitt v. State Farm Ins. Co., No. 2:09cv1517, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 105836 (W.D. Pa. Sept. 19, 2011) (Cercone, J.)

SEPTEMBER 2011 BAD FAITH CASES
BAD FAITH CLAIM DISMISSED BECAUSE CARRIER PROPERLY RELIED UPON LAWYER’S POTENTIAL LIABILITY TO DENY COVERAGE (WESTERN DISTRICT)

The court was faced with cross summary judgment motions stemming from the carrier’s denial of professional liability coverage.  The insured brought declaratory judgment, breach of contract, and bad faith claims against its carrier after being denied coverage for its alleged professional misconduct.

In 1995, the insured drafted and executed a power of attorney on behalf of its client.  Years later, the power of attorney assignee inquired whether it was authorized to create a charitable trust in the decedent’s name.  The insured drafted a memorandum which informed the assignee that it was able to create a trust, but that the trust might be challenged in the future.  The assignee was made executrix of the estate and created a trust, through which she expended more than $1.8 million.

In 2007, a state trial judge issued a decision which surcharged the executrix for the expenditures she made while she controlled the estate.  In response, the insured sent a letter to the former executrix, explaining that she now had a potential claim against him and he was forced to apprise his liability insurance carrier.  Consequently, the insured ended its representation of the former executrix.

In January 2008, the insured applied for liability insurance with the carrier in this action.  In response to a question on the insurance application, the insured wrote that he did not know of “any circumstance…that could result in a professional liability claim” against him.  Yet, the insured later acknowledged that at the time of application, he thought the former executrix might make a claim for return of the fees paid to him, but that it did not amount to professional liability.  The carrier subsequently issued a professional liability insurance policy to the insured.

The former executrix’s attorney contacted the insured in June 2008 and told him that he should reimburse the former executrix for the amounts surcharged by the state trial judge.  As such, the insured put his carrier on notice that he might be subject to a malpractice claim.  The carrier responded that it had no duty to defend the insured and that he was not covered because “he had a reasonable basis to believe that his acts, errors or omissions created a potential claim against him prior to the inception of his insurance policy,” in violation of the policy’s conditions.

The former executrix filed suit against the insured in early 2009.  The insured contacted his carrier, demanded that they provide him with representation for his defense.  When the carrier refused, citing the language of the policy, the insured filed a claim against the carrier.  Both parties filed for summary judgment.

The court looked to Third Circuit precedent for the resolution of these claims, which hinged upon whether the “insured party had a reasonable basis to believe in the existence of facts which would act to exclude policy coverage.”  This test has both a subjective and objective component, which attempt to examine the insured’s knowledge that he would be subject to malpractice action by his former client.  Thus, a court will look to the insured’s subjective knowledge of facts, and then weigh whether there is an objective basis for a reasonable belief that a claim could arise.

The court found that an issue of credibility remained as to the scope of the insured’s subjective knowledge of relevant facts.  It therefore refused to grant summary judgment on the carrier’s duty to defend or indemnify because no determination could be made on the subjective knowledge prong at the summary judgment stage.  Thus it never reached the objective component of the test.

However, the court did grant summary judgment to the carrier on the bad faith count because the insured failed to provide clear and convincing evidence that the carrier failed to conduct a proper investigation of his claim.

Date of Decision: September 20, 2011

Foster v. Westchester Fire Ins. Co., No. 09-1459, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 106726 (W.D. Pa Sept. 20, 2011) (Conti, J.)

SEPTEMBER 2011 BAD FAITH CASES
COURT UPHOLDS SUMMARY JUDGMENT TO CARRIER BECAUSE IT THOROUGHLY INVESTIGATED A QUESTIONABLE INSURANCE CLAIM (THIRD CIRCUIT)

The Third Circuit was faced with an appeal from the district court’s grant of summary judgment to the carrier.  In the initial action, the insured sought damages for bad faith after the carrier waited over a year to contact the insured’s maintenance employee in reference to its claim.

In January 2008, the insured discovered that a sprinkler pipe had ruptured inside of its property, damaging its building and some electrical equipment it had stored there.  The insured subsequently submitted a claim for insurance benefits to its carrier.

The carrier hired an independent adjustment firm to investigate the damage.  The adjuster sought to determine if the insured had maintained heat at its property, as required under the insurance policy.  The adjuster was particularly concerned about this issue because many windows were broken, rendering it difficult to heat the property.  Moreover, it appeared that much of the water damage was caused by water that had entered through these broken windows and pre-existing leaks in the roof.

When the adjuster sought confirmation that heating oil had been delivered to the property, it noticed that the last documented delivery occurred in March of 2007.  When questioned about its purchase of heating oil, the insured claimed that he had received 2500 gallons of heating oil in the fall of 2007.  However, this claim was unsubstantiated by the insurance adjuster.

In March 2008, the insured suggested that its maintenance employee would attest to the state of the premises.  However, the carrier and its adjuster failed to contact the maintenance employee until the time of his deposition in June 2009.  During this deposition, the employee testified that the property had always been heated.  Despite its concerns, the carrier decided not to dispute coverage and it mailed a check in the amount of $78,511.84.

The court reasoned that the insured’s claim was highly questionable because “(1) the [insured] could not provide documentation showing a recent oil delivery to the premises, (2) the property had numerous broken windows, such that it would have been difficult to heat it, and (3) while [the insured] claimed to have received a delivery of oil from another company, it could not recall the name of the company, and [its employee’s] attempts to confirm the delivery were unsuccessful.”

Citing Third Circuit precedent in Northwestern Mut. Life Ins. Co. v. Babayan, the court ruled that “it is not bad faith to conduct a thorough investigation into a questionable claim.”  The court therefore concluded that summary judgment in favor of the carrier was appropriate at the trial stage.

Date of Decision: September 19, 2011

3039 B Street Assocs. v. Lexington Ins. Co., No. 10-3881, U.S. Court of Appeals for the Third Circuit, 2011 U.S. App. LEXIS 19311 (3d Cir. Sept. 19, 2011) (Barry, J.)

SEPTEMBER 2011 BAD FAITH CASES
COURT REJECTS EFFORT TO BIND EMPLOYER’S CARRIER TO COVER EMPLOYEE’S OTHERWISE UNCOVERED ACTS UNDER RESPONDEAT SUPERIOR THEORY (THIRD CIRCUIT)

The Third Circuit was faced with an appeal from the district court’s grant of summary judgment to the carrier.  In 2005, the claimant was involved in a car accident with a physical therapist employed by a home care company.  The employee was driving a personally owned car at the time of the accident.  In 2007, the claimant filed suit in state court, where the employee’s personal insurer defended him on the claim.  Although the home care employer was not a party to the action, the employee’s counsel alerted the employer to the suit and inquired about coverage under its own insurance policy.

The employer’s carrier determined that that the employee was not covered because he was driving his own vehicle at the time of the accident.  However, the carrier informed the employer that it could be covered if it had been sued under a respondeat superior theory.  Any claim against the employer was beyond the statute of limitations, however. The underlying plaintiff joined the employer via an amended complaint, but subsequently stipulated to the employer’s dismissal while the employer’s summary judgment motion was pending.

The employee and the complainant then entered arbitration, which resulted in an award of $375,000.  Through a settlement, the employee agreed to pay $100,000 and allowed the complainant to act as an assignee against his employer’s carrier.

In 2009, the complainant commenced this action for breach of contract and bad faith, which the employer’s carrier removed to federal court.  The carrier filed a counter-claim seeking a declaratory judgment that it was not obligated to insure the employee and sought summary judgment.  The court granted summary judgment to the carrier on the complaint, and awarded a declaratory judgment in favor of the carrier.

With respect to the breach of contract claim, the district court ruled that the employee was excluded from his employer’s policy because he was driving a personally owned vehicle.  On appeal, the assignee accepted this rationale and argued that the employer’s policy covered the employee under a theory of respondeat superior.

The assignee argued that the employer and employee were “indivisible and inseparable” parties, rendering the employer’s carrier responsible.  However, the appellate court rejected this theory on grounds that the complainant misconstrued relevant precedent.

The Circuit Court held that, contrary to the assignee’s claim, “vicarious liability” deals with compensating the victim of an injury “caused by the act of a single tortfeasor.”  Respondeat superior, however, meets the need of compensating victims by providing “two funds from which a plaintiff may recover.”  Any such claim was extinguished when the employer was dismissed from the action in 2009.

Lastly, the Court rejected the bad faith claim because the carrier had no duty to defend the employer based upon the terms of its policy.

Date of Decision: September 14, 2011

Kelly v. National Liability & Fire Insurance Company, No. 10-3307, U.S. Court of Appeals for the Third Circuit, 2011 U.S. App. LEXIS 19025 (3d Cir. Sept. 14, 2011) (Sloviter, J.)

SEPTEMBER 2011 BAD FAITH CASES
COURT REQUIRES COMMON LAW BAD FAITH CLAIM TO BE PLEADED AS PART OF BREACH OF CONTRACT CLAIM (Western District)

The court ruled upon a partial motion to dismiss by the carrier, which claimed that two counts of the insured’s three-count bad faith claim were redundant.  The insured originally sued the carrier for breach of contract, contractual bad faith, and statutory bad faith under Pennsylvania law.  The carrier moved to dismiss, claiming that the insured’s second allegation is redundant in light of the first count for breach of contract.  The insured refused to concede to the redundancy of its complaint, but indicated a willingness to merge its two bad faith claims into one.

The court found that the insured’s second claim was redundant because it contained, verbatim, the same allegations set forth in counts one and three.  Therefore, the court held that, because the insured adequately pled a breach of contract cause of action in count one, and that the allegations set forth in count three adequately raise a statutory bad faith claim, count two of the insured’s complaint was redundant.

Accordingly, the court denied the carrier’s motion to dismiss count three and gave the insured time to amend counts one and two of its complaint to properly incorporate its allegations and factual averments into an amended complaint.

Date of Decision:  September 2, 2011

CICCO v. STATE FARM FIRE & CASUALTY CO., No. 11cv0946, U.S. District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 99161, (W.D. Pa. Sept. 2, 2011) (Schwab, J.)

SEPTEMBER 2011 BAD FAITH CASES
COURT RULES FOR INSURED ON BREACH OF CONTRACT CLAIM, BUT FINDS THAT CARRIER’S NEGLIGENCE WAS NOT BAD FAITH (Philadelphia Federal)

The court was faced with breach of contract and bad faith claims that arose from the carrier’s denial of coverage for property damage at the insured’s place of business.  In early 2008, the insured returned to one of his warehouses to find that water had entered the building through the roof and soaked some of the contents.  The insured did not notify the carrier, but replaced the damaged roofing on his own.  Later in 2008, the insured notified the carrier that its property had sustained an estimated $104,676.70 worth of damages from severe wind.

Soon after, a roofer made temporary repairs to the warehouse roof and took photos that documented the damage before and after repair.  An adjuster for the carrier found that the damage was from wear, noting that the damage fell below the insured’s policy deductible.  However, an agent of the carrier never acknowledged receipt of the before and after photographs taken by the adjuster.  As a result, the carrier denied coverage.  In early 2009, the property sustained additional damages from strong winds and the insured submitted a second claim to the carrier.

Prior to trial, the carrier found the before and after photos and agreed that the damage from early 2008 would cost $14,195 to repair.  The carrier also concluded that the price for repairing the interior damage was $27,358.41.  However, the insured argued that it was owed $1,013,032.88 for water damage that the contents of the warehouses incurred.  The carrier disagreed and found that cleaning, repairing and salvaging the damaged items would cost $18,469.44.

During a bench trial, the court found that the insured’s testimony regarding the initial 2008 damages was not credible.  However, the court gave credence to the testimony of the adjuster and found that $15,845 worth of damages to the roof had actually occurred in 2008.

With respect to the interior damage, the carrier agreed that it owed $27,358.41 to repair the damaged property.  However, the court reasoned that, because the insured never documented the initial damage that its building sustained in 2008, its testimony regarding the events was unpersuasive.

The court concluded that the contents of the warehouse had only sustained $18,469.44 worth of damages.  The court reasoned that the insured could not show that there was damage to the building’s contents beyond what the adjusters and the carrier had found attributable to the early 2008 incident.

Although the insured was unable to recover its desired amount, the court still ruled that the carrier breached its insurance contract by failing to pay $15,845 for damage to the roof, $27,358.41 for damage to the interior of the building and $18,469.44 for damage to the building’s contents.

As for the insured’s bad faith claim, the court held that the carrier may have been negligent in not reviewing the before and after photos when it received them, but its conduct did not rise to the level needed to find bad faith.  As soon the carrier saw the photos, it agreed to cover the damage to the insured’s property, even though the insured had been less than diligent in notifying the carrier of its loss.  Therefore, the court rejected the insured’s bad faith allegations.

Date of Decision: August 24, 2011

MOORE’S HOME IMPROVEMENT, INC. v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE CO., NO. 10-CV-0161, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 96199 (E.D. Pa. Aug. 24, 2011) (Joyner, C.J.)

SEPTEMBER 2011 BAD FAITH CASES
NO COVERAGE WHERE INSURED DID NOT RESIDE IN HOME; NO REASONABLE EXPECTATION OF COVERAGE WHERE INSURED MISLEAD CARRIER (Philadelphia Federal)

The court was faced with cross-summary judgment motions stemming from the carrier’s alleged breach of contract and bad faith.  During 2009, the insured obtained a homeowner’s insurance policy for a newly purchased property.  At the time of purchase, the insured informed the carrier’s agent that he would be moving into the property within “the next few weeks.”  The next month, a fire seriously damaged the insured property, revealing a total of $183,058.77 in damages.  An investigation that the insured had not been living at the property full time and had misled the carrier when purchasing the homeowner’s policy.  The carrier denied coverage upon discovering that 1) the insured had not been residing at the property and 2) that the insured misrepresented material facts relevant to the insurance claim – both in violation of the specific terms of the policy.

In early 2010, the insured filed bankruptcy.  As a part of his filing, he denied that any “business, organization” owed him money.  Moreover, the insured denied any “losses from fire, theft.”  Seizing this testimony, the carrier sought to estop the insured from offering any contrary representations in this litigation.  However, the court held that estoppel was inappropriate because the insured’s bankruptcy filing was dismissed and did not qualify as that court’s acceptance of the insured’s factual or legal position.

With respect to the insured’s breach of contract claim, the carrier first argued that it was not required to cover the fire damages because the insured property was not actually the insured’s “dwelling,” as required by the terms of the policy.  Second, the carrier claimed that the insured made “multiple misrepresentations of material fact, thereby foreclosing his entitlement to coverage” under the terms of the policy.

The court held that “residency at the insured premises was a condition precedent to [the insured’s] entitlement to coverage,” and the term “residency” is not ambiguous as a matter of law.  Applying Third Circuit precedent under Gardner v. State Farm Fire & Casualty Co. to the insured’s testimony, the court ruled that the insured property was not the insured’s “residence” as defined by Pennsylvania law and consequently not covered by the insured’s policy.

However, the insured claimed that coverage was warranted under Pennsylvania’s reasonable expectations doctrine, which permits coverage if a carrier created in the insured a reasonable expectation of coverage under the purchased policy.  The court dismissed this argument because the insured never resided in the property – the carrier only implied that the property would be covered if the insured moved into the home within thirty days of the agreement.  The insured’s false representation that he intended to move within the thirty day period was what prompted the carrier’s statements.  Absent such an intention on behalf of the insured to move into the home, the court held, any potential reliance on the reasonable expectation doctrine was foreclosed.  Consequently, the court granted summary judgment to the carrier on the breach of contract claim.

Lastly, the court granted summary judgment to the carrier on the bad faith count because the insured was unable to meet the initial element, that the carrier lacked a reasonable basis for denying benefits.  The court held that the carrier’s denial of benefits was “not only reasonably, but correct” under the plain language of the policy.

Date of Decision: August 17, 2011

MU’MIN v. ALLSTATE PROPERTY & CASUALTY INSURANCE CO., No. 10-7006, U.S. District for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 94365 (E.D. Pa. Aug. 17, 2011) (Buckwalter, J.)

SEPTEMBER 2011 BAD FAITH CASES: APPELLATE COURT AFFIRMS AWARD OF ATTORNEY’S FEES UNDER SECTION 1797 OF PENNSYLVANIA’S MOTOR VEHICLE FINANCIAL RESPONSIBILITY LAW (Superior Cout)

The court was faced with a carrier’s appeal from the trial court’s award of attorney’s fees to a chiropractor that had treated the insured.  The insured suffered injuries following a car accident and sought medical care, including chiropractic treatment.  Pursuant to § 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law, the carrier submitted the insured’s bills to a peer review organization for review.  The peer review deemed the insured’s chiropractic treatments not medically necessary and the carrier refused to pay.

The chiropractor filed suit against the carrier, seeking unpaid medical expenses, as well as attorneys’ fees and treble damages for bad faith.  After a non-jury trial, the trial court found that the chiropractic treatment was necessary and allowed unpaid medical expenses of $1,380.68, but refused to award treble damages and attorneys’ fees.  The chiropractor filed a motion for reconsideration and the court awarded $27,047.50 in attorneys’ fees.

The carrier filed this appeal and raised three issues: “(1) Whether an error of law was committed where the Court of Common Pleas interpreted . . . § 1797 . . . to allow imposition of attorneys fees even though it was held that [the carrier] complied . . . in conducting a peer review”; “(2) Whether an error of law was committed where the Court of Common Pleas failed to recognize and follow the mandatory authority of the Superior Court’s opinion in Barnum v. State Farm . . . disallowing attorney’s fees where an insurer follows the peer review process; and “(3) Whether the court erred or abused its discretion where the court limited the testimony of [an expert witness] to whether [the insured’s] conduct was “wanton,” and . . . [to the law’s] intention of limiting recovery to the outstanding bills plus interest where an insurer complies with the peer review process.”

The court began by analyzing the carrier’s compliance with § 1797, finding that, since the carrier engaged in the peer review process it could not be liable for bad faith under the statute.  Because the trial court properly denied treble damages for bad faith, the court found no error in the trial court’s reasoning.  Examining the text of §1797, the court held that “There is nothing in the language of the statute that specifically precludes attorneys’ fees where a peer review decision is challenged and the court finds the treatment reasonable and necessary.”

The court also rejected the carrier’s reliance on Barnum, finding that the case did not address the issue of attorney’s fees, but stands for the proposition that an insurer who follows the peer review process cannot be liable for treble damages for bad faith.

Lastly, the court discarded the carrier’s claim that the trial court abused its discretion by limiting the testimony of an expert witness.  The court noted that the chiropractor’s motion to exclude this testimony was denied, subject to a limitation of the testimony to the issue of the carrier’s “wanton conduct.”  At that time, the carrier waived its objection, preventing any opportunity to raise the issue on appeal.  As a result, the appellate court affirmed the judgment of the trial court.

Date of Decision: August 23, 2011

HERD CHIROPRACTIC CLINIC, P.C v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., No. 882 MDA 2010, Superior Court of Pennsylvania, 2011 Pa. Super. LEXIS 2243 (Pa. Super. Aug 23, 2011) (Lazarus, J.)

SEPTEMBER 2011 BAD FAITH CASES: INSURER’S MOTION TO DISMISS DENIED BECAUSE THE UNDERLYING TORT ALLEGATIONS FALL WITHIN THE SCOPE OF THE INSURED’S POLICY COVERAGE (PHILADELPHIA FEDERAL)

The court was faced with declaratory judgment, breach of contract, and bad faith claims by an insured against its carrier, which denied its duty to defend the insured in an underlying negligence action.  The carrier moved the court to dismiss the insured’s claims.

The insured is a property management company that operates an apartment complex.  In 2009, an employee of the insured was driving while intoxicated and struck a nine year old girl, who sustained serious physical and psychological injury.

The insured owned a general liability policy from the carrier.  In response to a negligence claim by the accident victim, the insured sought coverage under this policy.  The carrier denied its duty to defend the insured on the basis of the “auto exclusion,” which excludes coverage for “bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, auto or watercraft owned or operated by or rented or loaned to any insured.”

However, the insured does not dispute the applicability of  the auto exclusion – if the intoxicated driver was acting in the scope of his employment at the time of the accident, the exclusion bars policy coverage.  Instead, the insured argues that, despite the exclusion, it is entitled to coverage because the underlying negligence claim also contains several counts of “‘independent’ allegations of negligence.”  The underlying negligence action alleges that the insured is independently liable for failing to implement proper procedures to maintain a safe environment for its tenants, failing to prevent employee alcohol consumption, and failing to provide adequate security to protect its tenants given the prior history of employee alcohol consumption.

The underlying negligence complaint also alleges that the driver was not acting in the scope of his employment.  Therefore, the court ruled, even if the driver is not covered, because he was acting outside the scope of his employment, the insured is still covered by the policy for the independent negligence allegations listed in the underlying complaint.

Because the underlying negligence suit alleged that the insured’s failure to maintain a safe environment on its premises created the foreseeable risk that injury would occur, the court concluded that the complaint brought this claim within the insured’s scope of coverage.  As a result, the carrier owes a duty to defend.

Date of Decision: August 18, 2011

JAGER MANAGEMENT, INCORPORATED v. COLUMBIA CASUALTY COMPANY, NO. 11-2372, U.S. District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 93277 (E.D. Pa. Aug 18, 2011) (Stengel, J.)