Monthly Archive for February, 2020

BROKER AND POLICYHOLDER FACE POTENTIAL LIABILITY UNDER NEW JERSEY’S INSURANCE FRAUD PREVENTION ACT (New Jersey Federal)

The insurer sued to void two life insurance policies on the basis they were obtained through fraudulent statements and omissions. It also sought relief under New Jersey’s Insurance Fraud Prevention Act (IFPA).

A Trust was both the policyholder and beneficiary. In its initial complaint, the carrier alleged the insured decedent made false statements and material omissions concerning serious medical conditions concealed from the insurer, including Hodgkin’s Lymphoma.

The carrier wanted to amend its complaint by adding claims against the Trustee and its insurance broker for their alleged knowing involvement in this fraudulent conduct. The Trustee and broker opposed the motion to amend. The court granted the motion.

The court rejected the argument that the IFPA only applied to misconduct during the course of an insurance claim. The court recognized the IFPA also applies to conduct in the application process.

In granting the motion, the court relied upon allegations that the broker “was untruthful when he filled out the agent’s statement….” The court found this could violate N.J. Stat. Ann. § 17:33A-4(a)(3), which addresses concealing or knowingly failing “to disclose the occurrence of an event which affects any person’s initial or continued right or entitlement to (a) any insurance benefit or payment or (b) the amount of any benefit or payment to which the person is entitled.”

The court also looked to the allegation that both the broker and Trustee “knew of and conspired to conceal” the decedent’s medical visit to a longevity center and the results of that visit which referenced prior medical history. The court added that if the broker and Trustee “knew the Decedent was untruthful on the applications and failed to disclose that…, or actively participated in the Decedent’s alleged misconduct, it could demonstrate a violation of N.J. Stat. Ann. § 17:33A-4(a)(4) or (b).”

Section 17:33A-4(a)(4) addresses a person who “[p]repares or makes any written or oral statement, intended to be presented to any insurance company or producer for the purpose of obtaining: … (b) an insurance policy, knowing that the statement contains any false or misleading information concerning any fact or thing material to an insurance application or contract….”

Section 17:33A(4)(b) encompasses a person who “knowingly assists, conspires with, or urges any person or practitioner to violate any of the provisions of this act.”

Date of Decision: February 18, 2020

Symetra Life Ins. Co. v. Jjk 2016 Ins. Trust, U. S. District Court District of New Jersey Civil Action No. 18-12350 (MAS) (ZNQ), 2020 U.S. Dist. LEXIS 29291 (D.N.J. Feb. 18, 2020) (Quraishi, J.)

UIM JURY VERDICT NOT RELEVANT TO BAD FAITH CASE BECAUSE IT OCCURRED AFTER THE INSURER HAD COMPLETED ITS CLAIM EVALUATION (Philadelphia Federal)

In this UIM bad faith case, the insureds demanded UIM policy limits which the insurer did not pay. The insureds took their case to trial, and the jury verdict far exceeded policy limits. The insureds pursued a claim for bad faith, arguing among other things that the jury verdict could be used as evidence of bad faith.

The court disagreed. Bad faith can only be determined based on the insurer’s conduct in evaluating the claim when it was submitted and on “the information available to the insurer during the claims processing”. The jury verdict was rendered after the insurer had done its claim evaluation. Thus, the jury verdict was not relevant to bad faith.

The central legal issue in the case was whether the insureds had executed some version of an enforceable UIM policy limit sign down, below their liability coverage. The court’s detailed analysis revealed that the insured’s application, which would otherwise have effected an enforceable sign down, was ineffective because it made that decision contingent on another required form that was only signed over one month later. The accident at issue occurred during the interim. The court found that there was no effective sign down, and the UIM limits defaulted to the liability limits, a difference between $300,000 and $750,000.

The insureds claimed that asking them to sign the second document constituted bad faith. The insurer consistently took the position that the second document was not necessary to succeed on the sign down argument; rather, the application controlled and the second document was basically redundant.

Magistrate Judge Rice disagreed with the carrier’s position on the application as stated above, but still found no bad faith:

“Nor does the failure to have [the insured] sign the UIM coverage selection form until [one month after the application] constitute bad faith. [The insurer] consistently maintained that the … application established the UIM policy limit, and the [insureds] had access to all relevant documents at all times. My post-trial disagreement with that determination fails to establish … bad faith.”

Date of Decision: February 18, 2020

Gibson v. State Farm Fire & Cas. Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 18-4919, 2020 U.S. Dist. LEXIS 27531 (E.D. Pa. Feb. 18, 2020) (Rice, M.J.)

INSURER’S RELIANCE ON ADVICE OF COUNSEL, AMONG MANY OTHER FACTORS FAVORING THE INSURER, DEFEATS BAD FAITH CLAIM (Philadelphia Federal)

This case involves a head-spinning array of factual discrepancies between the insured’s claims to the carrier and the results of the insurer’s investigation. These range from whether the insured actually owned the property to whether the structure at issue collapsed from a sudden event or collapsed because of (uncovered) faulty construction. We leave you to the court’s lengthy and detailed narrative concerning these discrepancies, and the various coverage issues invoked by their presence. Of particular interest here is that in addition to involving an adjuster, SIU adjuster, supervisor and engineering expert, the insurer also puts its outside counsel’s coverage opinion on the record.  

The insured brought a bad faith claim, and the insurer moved for summary judgment after making a detailed record.  The insurer asserted various bases for why it was entitled to summary judgment. In granting summary judgment, the court stated that, at a minimum, there was a reasonable basis to deny coverage:

“The record indicates that [the insurer] conducted a thorough investigation of the claim and ultimately decided that coverage should be denied. Indeed, [a] property adjuster and an SIU adjuster inspected Plaintiff’s loss; the claim was reviewed by [a] supervisor; [the insurer] took the recorded statement of Plaintiff and reviewed relevant property documentation from the City of Philadelphia; [the insurer] obtained the services of a structural engineer; and [the insurer] then sent the structural engineer’s report, which opined on the cause of the loss, to independent legal counsel for an opinion on the coverage. Finally, relying upon independent legal counsel’s conclusion that coverage did not exist for Plaintiff’s loss, [the insurer] denied Plaintiff’s insurance claim. It cannot be said that [the insurer]’s investigation and decision-making process was ‘frivolous or unfounded,’ as required under Pennsylvania law to succeed on a bad faith claim.”

The court added, “the factual record is devoid of any ‘clear, direct, weighty and convincing’ evidence that would allow a factfinder to find ‘without hesitation’ that [the insurer] acted in bad faith in investigating and ultimately denying Plaintiff’s insurance claim.”

Moreover, even if the insured could make a case for unreasonableness, “the record is devoid of any evidence that [the insurer] either knew it had an unreasonable basis for denying coverage or recklessly disregarded its lack of a reasonable basis in denying Plaintiff’s claim or in the manner in which it investigated Plaintiff’s claimed loss.” The record shows the contrary. The insurer not only engaged a structural engineer, but also independent legal counsel to analyze coverage. It then “relied on the independent findings of both the expert and legal counsel in its ultimate decision to deny” the claim.

Date of Decision: February 14, 2020

Nguyen v. Allstate Insurance Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 18-5019, 2020 U.S. Dist. LEXIS 25789 (E.D. Pa. Feb. 14, 2020) (Kenney, J.)

 

STATUTORY BAD FAITH CLAIM BARRED BY TWO-YEAR STATUTE OF LIMITATIONS; PUTATIVE COMMON LAW BAD FAITH BARRED BY TWO-YEAR CONTRACTUAL LIMITATION; NO COMMON LAW BAD FAITH IN FIRST PARTY CASES (Middle District)

The insurer denied coverage on November 3, 2015. The insured sued for breach of contract and bad faith on September 20, 2019. The insurer moved to dismiss the contract claim based on a contractual two-year limitation period, and the bad faith claim under the controlling two-year statute of limitations. The relevant facts were evident on the face of the complaint. Therefore, the court could decide the issues on a motion to dismiss.

As to the contract claim, because the “policy had a 2-year suit limitation, there is no merit to plaintiff’s contention that Pennsylvania’s 4-year statute of limitations for contract claims under 42 Pa.C.S.A. §5501 should control in this case.” The insured nowhere alleged the insurer “led her to believe the two-year limitations period would not be enforced or that [the insurer] committed any actions that induced her to file her complaint after the two year deadline.” The contract claim was dismissed with prejudice.

As to the bad faith claim, “since ‘Plaintiff’s claim of bad faith is … based on Defendant’s denial of benefits to Plaintiff under the Policy, [the] Court can therefore consider the [November 3, 2015 denial of coverage letter] attached by Defendant to its Motion to Dismiss.” The court would not let the plaintiff escape the timing issue by simply leaving out the denial date and not attaching a document on which it relied in its complaint in pleading its case, where the defendant then attaches to its motion.

Further, the court found “[no] doubt that the two year statute of limitations for a bad faith suit begins to run when insured first learned that the insurance company was denying coverage.” Thus, the statutory bad faith claim was time barred.

[Note on statute of limitations triggers and the scope of the bad faith statute. The court observes that the two year bad faith statute of limitations begins to run at the time coverage is denied, and cites case law for this proposition, also phrased as when claims for benefits are denied. As noted previously on this blog, there are cases holding that the bad faith statute applies not only to coverage denial, but distinctly to various claims handling misconduct. Under this theory, the statute of limitations cannot begin to run at the time coverage is denied, because, e.g., no coverage may be due and bad faith is based solely on egregious claims handling failures. Does this mean that the statute of limitations case law makes clear that statutory bad faith must be based on a benefit denial, see one example here, and these bad faith claims handling cases are wrongly decided; or that there are other triggers for the two-year statute beginning to run wholly independent of a coverage denial?

The governing case on the statutory bad faith statute of limitations is the Pennsylvania Supreme Court’s decision in Ash v. Continental Ins. Co., 932 A.2d 877 (Pa. 2007). In Ash, a clear majority of Pennsylvania’s Supreme Court followed Chief Justice Cappy’s Toy v. Metropolitan Life Ins. Co. opinion. The Ash majority states: “The bad faith insurance statute, on the other hand, is concerned with “the duty of good faith and fair dealing in the parties’ contract and the manner by which an insurer discharge[s] its obligation of defense and indemnification in the third party claim context or its obligation to pay for a loss in the first party claim context.” See Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 199 (Pa. 2007). It applies only in limited circumstances–i.e., where the insured first has filed ‘an action arising under an insurance policy’ against his insurer, see 42 Pa.C.S. § 8371–and it only permits a narrow class of plaintiffs to pursue the bad faith claim against a narrow class of defendants.” An article discussing Toy and Ash can be found here.]

The insured attempted to claim there was somehow a common law bad faith claim, subject to the four-year contract statute of limitations. Aside from the fact that the complaint alleged statutory bad faith, common law bad faith is solely contract based in Pennsylvania, and merges with the breach of contract claim. Thus, it would be subject to the same two-year contractual limitations period.

Finally, the court stated that in any event, common law bad faith did not apply to first party property damage claims, as were at issue in this case. The court relied on Judge Munley’s 2009 Bukofski decision on this point.

Date of Decision: February 13, 2020

Mazzoni v. Travelers Home & Mutual Insurance Co., U.S. District Court Middle District of Pennsylvania CIVIL ACTION NO. 3:19-2169, 2020 U.S. Dist. LEXIS 25513 (M.D. Pa. Feb. 13, 2020) (Mannion, J.)

FAILURES TO COMMUNICATE WITH THE INSURED UNDERMINE INSURER’S SUMMARY JUDGMENT EFFORTS; INSURER MUST SHOW ACTUAL DISAGREEMENT OVER VALUE OCCURRED (Western District)

The court denied the insurer’s motion for summary judgment on plaintiff’s UIM bad faith. Key issues were the insurer’s having failed to adduce evidence explaining the basis for its denial, and not sufficiently adducing facts contrary to the claims handling allegations in the insured’s complaint. The carrier focused on the fact that the insured did not take discovery, but this was not as detrimental to plaintiff’s case as the insurer believed.

The insured received $50,000 from the tortfeasor’s carrier, and had $250,000 in UIM coverage under his own policy. The complaint alleged detailed facts supporting the position that the insured was highly cooperative in producing information, both independently and upon the insurer’s request. Moreover, the insured submitted to an examination under oath and an independent medical examination, and follow up requests after both.

The claim/investigation process went on for eight months, with the insured’s counsel repeatedly making policy limits demands, with no counteroffer. Ultimately, the insurer offered no payment of any kind to the insured.

During the claim/investigation process, the insured filed a writ of summons. The insurer ultimately responded with a rule to file a complaint, and after the complaint was filed it removed the action to federal court. [Note: Among the various legal principles governing bad faith claims the court recites, is “[t]he Third Circuit has also recognized that ‘using litigation in a bad faith effort to evade a duty owed under a policy [is] actionable under [Pennsylvania’s bad faith statute].’” The court did not amplify on that principle in this case.]

The court observed the carrier did not develop a factual record refuting the detailed claims handling history in the complaint. Thus, “[w]hether the undisputed facts in the Complaint are sufficient for Plaintiff to prove by clear and convincing evidence that [the insurer] acted in bad faith is for the jury to determine.” Further, there was no evidence in the record as to how, or if, the insurer provided the basis for its claim denial to the insured. At most, the rule to file a complaint functioned as the notice of denial; but even then, the insurer never gave the insured “any information about the basis for its decision.”

The insurer did include a copy of its medical expert’s reports in moving for summary judgment. These reports concluded that the insured “required no further care, treatment or limitations as a result of his motor vehicle accident.” On the other hand, the court found that the insured had apparently produced his own medical expert report during the litigation, opining that significant medical issues resulted in a “no work” restriction.

The court stated: “It may well be that [the insurer] relied upon the results of the independent medical examination or other valid grounds, but the record does not reflect that [this] report was supplied to Plaintiff or that [the insurer] relied on this report in denying Plaintiff’s claim.”

Generally, the court accepted that there might a been a reasonable basis for evaluating the claim for eight months and then denying it, but that reasoning was not disclosed in the record. The insurer attempted to frame the issue as merely a disagreement over value (apparently $250,000+ on the insured’s end and $0 on the insurer’s end).

However, “to prevail on its motion on the ground that the parties had a legitimate value disagreement, it is [the insurer’s] burden, [1] initially, to point to evidence illustrating not only that there was indeed a disagreement over the value of Plaintiff’s claim (as opposed to an outright denial), but [2] also that [the insurer] communicated that disagreement to Plaintiff, for example, by making a counter-offer. [The insurer] has not done so.”

In sum, “[b]ecause there are genuine issues of material fact regarding Plaintiff’s bad faith claim based upon the current state of the record, [the insurer] is not entitled to judgment as matter of law.”

Date of Decision: February 10, 2020

Baldridge v. Geico Insurance Co., U.S. District Court Western District of Pennsylvania, Civil Action No. 18-1407, 2020 U.S. Dist. LEXIS 22311 (W.D. Pa. Feb. 10, 2020) (Dodge, M.J.)

NO BAD FAITH WHERE COVERAGE ISSUES FAIRLY DEBATABLE; NO PUNITIVE DAMAGES WHERE NO BAD FAITH; NO RIGHT TO ATTORNEY’S FEES IN DIRECT ACTION (New Jersey Federal)

The insurer filed a declaratory judgment action concerning first party property damage to a commercial building. The insureds counterclaimed for breach of contract and bad faith, and the insurer moved to dismiss the bad faith counterclaim.

Under New Jersey law, “to establish a claim for bad faith in the insurance context, a [claimant] must show two elements: (1) the insurer lacked a ‘fairly debatable’ reason for its failure to pay a claim, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”

“To meet the ‘fairly debatable’ standard, a claimant must be able to establish, as a matter of law, a right to summary judgment on the substantive claim; if [claimant] cannot establish a right to summary judgment, the bad faith claim fails. In other words, if there are material issues of disputed fact which would preclude summary judgment as a matter of law, an insured cannot maintain a cause of action for bad faith.” “Thus, dismissal of the bad faith claim is proper when the insured cannot prevail on summary judgment for the underlying insurance claim.”

“[A] bad faith claim against the insurance company fails at the motion to dismiss stage if the claimant cannot establish a right to summary judgment on the substantive claim.”

The case involved an alleged partial building collapse. There were issues of fact as to what caused the collapse, the resolution of which were necessary to determine coverage under the policy. There were also issues concerning policy interpretation. The insureds took the position that the insurer’s policy interpretation position was irrelevant to bad faith, rather than arguing the insurer’s position was incorrect and taken in bad faith. The court found this argument fatal to the insured’s bad faith claim.

Moreover, the court concluded the insurer’s reading of the insurance policy provided a reasonable basis to deny the claims. It stated that denying benefits on the basis there was no coverage “is the ‘easiest to understand’ why the denial of insurance claims is ‘fairly debatable.’” Thus, the insureds failed to show the insurer lacked a fairly debatable reason to deny the claim. Further, “[b]ecause this deficiency cannot be cured by further amendment or through discovery, the Court dismisses Defendants’ claim for bad faith with prejudice.” (Emphasis in original)

The court also dismissed the insured’s punitive damages claim, with prejudice, stating “an insured who cannot state a claim for bad faith damages is necessarily unable to prevail on a claim for punitive damages under the higher standard of egregious circumstances.”

Finally, the court dismissed the claims for attorney’s fees and legal costs with prejudice, under either the contract or bad faith claims. “New Jersey law does not allow awards of attorney’s fees and costs ‘to an insured who brings direct suit against his insurer to enforce casualty or other direct coverage.’”

Date of Decision: February 10, 2020

Merchants Mutual Insurance Co. v. 215 14th St., LLC, U.S. District Court District of New Jersey Civil Action No. 19-9206 (ES) (SCM), 2020 U.S. Dist. LEXIS 23664 (D.N.J. Feb. 10, 2020) (Salus, J.)

COURT REFUSES TO STRIKE INSURER’S FRAUD IN THE APPLICATION DEFENSE; BUT DENIES MOTION TO SEVER AND STAY INSURED'S BAD FAITH CLAIM (Western District)

This case involves a homeowners’ fire loss claim. The carrier refused to pay on the basis that the insureds made material misrepresentations in applying for their policy. The insurer asserted affirmative defenses that the homeowners falsely stated that they did not have knob and tube wiring and that no insurer had ever cancelled the homeowners’ coverage, when in fact, they did have knob and tube wiring and a prior policy was cancelled.

The matters before the court were the insureds’ motion to strike the affirmative defenses as inadequately pleaded, and the insurer’s motion to sever and stay the insureds’ bad faith claim.

The Insurer Adequately Pleaded Fraud as an Affirmative Defense

The court denied the motion to strike. It found that affirmative defenses are measured by Rule 8(c) and do not have to be rigorously articulated. That being said, because fraud is pleaded, there are additional pleading requirements under Rule 9(b) to plead with particularity (other than intent).

Still, measured by these standards, the affirmative defenses are adequate. The insurer pleads that the insureds made written misrepresentations on the application, and that it would never have issued the policy if the insureds stated the true facts in their application. This was sufficiently specific to put the insureds on notice of the grounds for the affirmative defenses.

The Court Refuses to Sever and Stay the Bad Faith Claims

The insurer sought to sever the insureds’ bad faith claims from their breach of contract claim. The court found this unwarranted for the following reasons:

  1. The underlying issues in the two claims overlapped. The court recognized the ultimate issues were distinct on breach of contract and bad faith, but found “they are subject to the same sources of proof and concern the same underlying issues.”

  2. Trying the claims together would not unduly prejudice the insurer. The insurer “failed to show exactly how it would be prejudiced if [the insureds’] claims are tried together.” Further, if discovery disputes arise, the court could properly resolve them at that future time.

  3. Trying the claims together would promote judicial economy. The court stated that “judicial economy strongly disfavors severance in this case.” Turning one case into two cases “would require the Court to schedule deadlines separately for each case and hold two separate trials on claims stemming from the same dispute.” Moreover, the insurer did not provide any valid reason for severance.

Date of Decision: February 6, 2020

Walls v. American Modern Select Insurance Co., U.S. District Court Western District of Pennsylvania Case No. 3:19-cv-80, 2020 U.S. Dist. LEXIS 20088 (W.D. Pa. Feb. 6, 2020) (Gibson, J.)

EVEN THOUGH COVERAGE MIGHT BE DUE, INSURED COULD NOT ESTABLISH DENIAL WAS UNREASONABLE (Philadelphia Federal)

This case involved a wall collapse. The insured and carrier provided each other with expert reports on causation. The carrier’s expert analysis would result in a finding of no coverage under the policy, but the insured’s expert analysis would result in coverage. The insurer denied coverage, and the insured sued for breach of contract and bad faith.

After discovery, the insured moved for summary judgment on both counts. The court denied summary judgment on the contract claim, because issues of fact remained on causation that might allow for coverage, but granted summary judgment on the bad faith claim after finding that the insured could not meet her burden to show the insurer lacked a reasonable basis in denying coverage.

In addressing bad faith, the court observed that an insurer can defeat bad faith by showing there was a reasonable basis for its action. The court further made clear that at the summary judgment stage, the plaintiff’s obligation to prove its case at trial by clear and convincing evidence of bad faith was a necessary consideration. In this case, even taking the facts in the insured’s favor, the insurer had a reasonable basis to deny the claim.

The insurer’s denial was based on a reputable forensic engineer’s report that determined two causes of the collapse; both of which were excluded under the policy. The insured argued that the carrier should have rejected this report, and instead followed the analysis in the report provided by the insured’s expert. The court found this was not enough to make out a claim of bad faith because “the mere fact that the parties disagree about coverage is not enough to show bad faith.” The court cited Post v. St. Paul Travelers Ins. Co., for the proposition that there is no bad faith “when the plaintiff could only show the parties disagreed about coverage….”

The insured also argued bad faith because the insurer allegedly “ignored the possibility that [the insured’s] house would be demolished.” The court found this irrelevant to the bad faith claim.

“If the collapse was not covered under the insurance policy, [the insurer] would not have been obligated to pay [the insured] regardless of whether her house was later demolished. In other words, whether the house was demolished would have no impact on [the] coverage decision.” Thus, this argument did not go to the reasonableness of the coverage decision itself.

In sum, the insured did not adduce evidence that the insurer lacked a reasonable basis for its coverage decision, and summary judgment was granted on the bad faith count.

Date of Decision: January 31, 2020

Hentz v. Allstate Property & Casualty Insurance Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 19-2007, 2020 U.S. Dist. LEXIS 17379 (E.D. Pa. Jan. 31, 2020) (Sanchez, J.)

LACK OF COVERAGE CONSTITUTES UNDISPUTED EVIDENCE OF REASONABLE BASIS TO DENY CLAIM, AND WARRANTS REJECTION OF BAD FAITH CAUSE OF ACTION (Philadelphia Federal)

The loss at issue was the result of intentional conduct by the named insured’s son, in this tragic matter. The son was also an insured under the policy.

The court found the named insured (actually his estate) could not make out a prima facie case for coverage because the loss was not accidental, and the intentional conduct was the act of an insured. Alternatively, the court found the intentional loss exclusion applied. For these reasons, the court granted summary judgment on the breach of contract claim.

As to bad faith count, the court first reiterates that the insurance coverage claims are barred under the policy. Next, “[t]he Court therefore concludes that undisputed evidence demonstrates that defendant had a reasonable basis for denying plaintiff’s claim. The bad faith claim is therefore rejected.”

Thus, summary judgment was granted on all counts.

Date of Decision: January 30, 2020

Tartour v. Safeco Insurance Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 17-1896, 2020 U.S. Dist. LEXIS 16271, 2020 WL 489467 (E.D. Pa. Jan. 30, 2020) (DuBois, J.)

BAD FAITH EXPERT PERMITTED TO TESTIFY, WITHIN CERTAIN LIMITATIONS (Western District)

The court permitted plaintiff’s insurance bad faith expert to testify, within certain limitations as to what may be discussed or disclosed.

The case involved a first party property loss, arising out of fire damage to a commercial greenhouse sterilization system (the “ozone system”). The insured alleged the carrier (1) “wrongly denied coverage to replace the entire ozone system; (2) … wrongly denied coverage for crops that were damaged by ozone exposure caused by a mechanical breakdown of the ozone system; and (3) [the insured] was forced out of business as a result of the Defendant’s conduct.” The insured sued for breach of contract and bad faith.

The insured sought to use three experts, including a bad faith expert. The bad faith expert was an attorney and had over 20 years of experience as a claim adjuster. He was proffered “as a bad faith expert to offer opinions regarding: (1) insurance industry standards and practices; (2) Defendant’s handling of the insurance claim at issue; (3) Defendant’s compliance with insurance statutes and regulations; and (4) the interpretation of Defendant’s policy issued to Plaintiff.”

The insurer brought a Daubert motion to preclude the bad faith expert’s proposed testimony. The carrier argued that the expert attorney’s legal conclusions would not help a jury, and that at a minimum the expert “be precluded from testifying as to: (1) whether or not the Defendant violated statutes or regulations; and (2) the interpretation of Plaintiff’s insurance policy.”

The court observed “that the admissibility of expert testimony hinges on a ‘trilogy of restrictions’: qualification, reliability, and fit.” The testimony here hinged on fit. Federal Rule 702 the “expert testimony must ‘help the trier of fact to understand the evidence or to determine a fact in issue.’” “The standard for fit is ‘not that high,’ although it is ‘higher than bare relevance.’” The insurer argued that the bad faith expert’s “testimony does not ‘fit’ the claim at issue: bad faith is a legal concept of general application,  which does not require scientific, technical, or specialized knowledge to be presented to assist the jury.”

The Court thought otherwise. It found, with certain limitations, that the bad faith expert’s testimony would “assist the jury in determining what constitutes reasonable conduct when handling an insurance claim. In the Court’s estimation, [the expert’s] twenty-six (26) years of experience as a claims adjuster will be quintessentially helpful in providing the jury with guideposts as to what constitutes reasonable adjusting and claims handling conduct and will be substantially more useful than asking the jury to in essence ‘wing it’ as to reasonableness in this out-of-the-ordinary situation.”

This expert was “permitted to testify as to best practices in handling insurance claims of the type involved here. [He] may not discuss his legal training or experience. And he is not permitted to testify as to whether or not the Defendant violated statutes or regulations (but he is not barred from testifying as to what constitutes best practices regarding the handling of insurance claims, even if the genesis of such practices are statutes or regulations, which he cannot talk about).”

Date of Decision: January 27, 2020

Three Rivers Hydroponics, LLC v. Florists’ Mutual Insurance Co., U. S. District Court Western District of Pennsylvania No. 2:15-cv-809, 2020 U.S. Dist. LEXIS 12644 (W.D. Pa. Jan. 27, 2020) (Hornak, J.)