Monthly Archive for March, 2020

INJURED PARTY HAS NO STANDING TO BRING DIRECT THIRD PARTY BAD FAITH CLAIM, EVEN IF AN ADDITIONAL INSURED; BAD FAITH COVERAGE DENIAL CANNOT BE BASIS FOR PUNITIVE DAMAGES (New Jersey Federal)

The plaintiff stored its food products in the insured’s warehouse. The products were damaged and plaintiff made demand for the damages. The insured sought indemnification from its carrier, which refused coverage based on a care, custody and control exclusion.

The plaintiff sued, and the insured joined its insurer as a third party defendant seeking indemnification against plaintiff’s claims. The injured plaintiff itself also brought third party claims against the same insurer for declaratory judgment and bad faith, both for third party liability and bad faith, and for first party claims. The defendant was an additional insured under the policy. [Though not discussed below, the plaintiff also joined the insured’s agent for failing to obtain proper coverage.]

The insurer sought summary judgment on the insured’s liability claims and plaintiff’s third party claims. The insurer also sought to dismiss the plaintiff’s punitive damages claim against the insurer on the first party claims.

As to the insured’s liability claim, the court denied summary judgment based on a reasonable expectations argument that required more discovery of the facts on what the insured sought and what the carrier led the insured to believe.

As to the plaintiff’s direct third party and bad faith claims against the defendant’s insurer, the court granted summary judgment. While plaintiff was an additional insured, it was not seeking a defense or coverage for claims made against it. Rather, it was seeking to force the insurer to indemnify the insured against the plaintiff’s own claims. Under the policy, and New Jersey law, the plaintiff had no standing to bring direct indemnity claims prior to any settlement or judgment; and it had no standing to bring bad faith claims that only belonged to the insured.

The insurer did not seek summary judgment on plaintiff’s first party claims, but only sought to dismiss the punitive damages claim associated with that count.

The court framed this as follows: “Plaintiff submits that its Third Party Complaint sufficiently supports an award based on egregious and wonton willful disregard by [the insurer] because it shows that [the insurer] denied [the insured] first party coverage in contravention of the terms of the policy and insurance agent’s understanding of the policy.” [It is not clear why the plaintiff had standing to bring a first party claim on the basis that the insurer denied coverage to another party, the insured, which was also a party to the case and was well able to bring such a claim if it were viable.]

The court held that even if the insured denied the first party coverage claim in bad faith, this was insufficient to state a punitive damages claim. The court observed that New Jersey’s Supreme Court does not allow for punitive damages in wrongful refusal to pay first party claims absent egregious circumstances, and an alleged bad faith breach of the insurance contract does not by itself reach that level. “Therefore, here, even if the Third Party complaint supports the inference that [the insurer’s] denial was wrongful or in bad faith, the allegation[s] do not support Plaintiff’s conclusion that denying liability on the basis that the policy did not cover damage to property of others was egregious conduct.”

Date of Decision: March 18, 2020

Pavino v. Cold Storage, U.S. District Court District of New Jersey Civil Action No. 18-14596, 2020 U.S. Dist. LEXIS 46562 (D.N.J. Mar. 18, 2020) (Rodriguez, J.)

BROKERS AND AGENTS ARE NOT INSURERS SUBJECT TO STATUTORY BAD FAITH CLAIMS (Western District)

This is Magistrate Judge Eddy’s Report and Recommendation on the issue of whether certain statutory bad faith defendants were insurers subject to the bad faith statute. The case was voluntarily dismissed the same day the R&R was issued, and it was never reviewed by the District Court.

Two sets of the defendants moved to dismiss the bad faith claim on the basis they were not insurers. Magistrate Judge Eddy observed that insurers are entities that issue policies, collect premiums, or agree to accept others’ liability in exchange for consideration. Further, insurers are also defined “as the underwriter or insurance company with whom a contract of insurance is made.”

The plaintiffs alleged that the moving defendants were brokers or insurance agents. They argued, however, that the moving defendants were “insurers of some form,” because these defendants “failed to make reasonable efforts to identify the policies of insurance and account for the premium payments made by Plaintiffs to Defendants….” Specifically, plaintiffs alleged these agents or brokers became insurers by telling the insured the claim could not be submitted to insurance, by denying aid to plaintiffs, by unreasonably failing to identify plaintiffs’ insurance policies, and by failing to account for premiums.

The reality was that the defendants at most sold the plaintiffs insurance as agents or brokers. “An entity that only sells an insurance policy is not an insurer pursuant to the statute.” There are no allegations “that these entities collected their insurance premiums in exchange for assuming the risks associated with the policy.” Further, there were no allegations these defendants were underwriters or insurers, but all allegations and documents indicated they were brokers or agents.

Thus, Magistrate Judge Eddy recommended the motion to dismiss be granted. As stated above, the case was dismissed that same day and thus the issue was never finally resolved by the District Court.

Date of Decision: March 5, 2020

McKinney v. Boser, U.S. District Court Western District of Pennsylvania 2:19-CV-00771, 2020 U.S. Dist. LEXIS 39001 (W.D. Pa. Mar. 5, 2020) (Eddy, M.J.) (Report and Recommendation)

(1) NO BAD FAITH WHERE COVERAGE LAW UNCERTAIN (2) BAD FAITH POSSIBLE FOR DELAY AND DENIAL OF ALLEGEDLY UNADDRESSED CLAIM (Philadelphia Federal)

This case involved a highly disputed factual issue on coverage, with no clear guidance in the case law. The court denied summary judgment on the insured’s breach of contract claim, and rendered a split decision on the two bad faith claims.

The Close Coverage Call

Coverage existed if a roof was damaged by wind, allowing water to enter a building. The issue was whether a tarp could be considered part of a roof. The insurer denied coverage on the basis the tarp at issue was a temporary stopgap when blown off during a windstorm. The insured argued the tarp was sufficiently stable and integrated to be part of a roof system when it was blown off.

The court looked at local and national case law on when a tarp might be part of a more permanent structure, and thus part of a roof. The court found the issue highly fact-driven under this case law, and inappropriate for summary judgment. A jury had to decide the issue after hearing the disputed evidence and expert opinions.

The Bad Faith Claims

On the bad faith claims, the court stated that both denial of a benefit and/or improper investigative practices could constitute bad faith.

[As we have written on this Blog ad naseum, the idea that statutory bad faith covers anything other than benefit denials arguably runs contrary to Pennsylvania Supreme Court case law. In the 2007 Toy v. Metropolitan Life decision, Pennsylvania’s Supreme Court strongly appears to state that only denial of a benefit creates a cognizable statutory bad faith action, whereas matters like poor claims handling would be evidence of bad faith. See this article.

A few months later, the Supreme Court seems to confirm this conclusion. In Ash v. Continental Insurance Company, citing Toy, the Supreme Court 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.’” (Emphasis added)

While it appears highly likely Pennsylvania’s Supreme Court made clear 13 years ago that section 8371 is limited to claims for denying benefits, numerous subsequent opinions conclude that there can be other bases for statutory bad faith. These cases typically do not address Toy or Ash in reaching this conclusion.]

In the present case, the insured allegedly made two separate claims, 19 days apart. The first had to do with wind damage to roof shingles, and the second addressed the issue concerning the tarp and interior water damage.

Bad Faith Possible for Undue Delay

On the first claim, the insured alleged it gave proper notice of loss, and the insurer failed to respond at all to the claim. The insurer alleged it had no notice, but in any event took the position that its denial letter addressed both the roof shingle and tarp claims.

The court found that there was an issue of whether the insurer had constructive notice of the first claim, even without formal notice. The adjuster was made fully aware of the event, but it is unclear if the insurer thought of this as a distinct event or just part of the continuum in a single claim. It was also unclear whether the denial letter actually addressed the shingle damage as such.

Thus, bad faith had to go to the jury. “If a jury were to conclude that Defendant was aware that Plaintiff had made a claim for the April damage, but ignored it, that could be seen as an objectively unreasonable, frivolous, intentional refusal to pay (or to otherwise resolve the claim in a timely fashion).”

[While there are certainly claims handling issues here regarding delay and responsiveness to an insured, this claim ultimately includes the denial of a benefit. Thus, the issue of whether there can be statutory bad faith without the denial of a benefit is not actually before the court.]

No Bad Faith where Governing Law is Uncertain

As to the second claim, the insurer won summary judgment. This gets back to the dispute over whether the tarp constitutes a roof. “An insurer who makes a reasonable legal conclusion based on an uncertain area of the law has not acted in bad faith.” Thus, “[w]ith no binding guidance from the Pennsylvania Supreme Court or the Third Circuit, and numerous fact-intensive cases on the subject, Defendant reasonably interpreted the membrane, and not the tarp, to be the roof. Even if that call is ultimately found to have been incorrect, Defendant did not act in bad faith by denying the claim.”

Date of Decision: March 18, 2020

Harrisburg v. Axis Surplus Ins. Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 19-1213, 2020 U.S. Dist. LEXIS 48115 (E.D. Pa. Mar. 18, 2020) (Beetlestone, J.)

MARCH 2020 HAS BEEN A TIME TO ADMONISH PLAINTIFFS ABOUT BARE-BONES BAD FAITH PLEADINGS IN THE EASTERN DISTRICT (Philadelphia Federal)

In line with other recent case law from the Eastern District, two more Eastern District judges recently dismissed bad faith claims for failure to plead adequate facts beyond bare-bone allegations.

In Ridpath v. Progressive, Judge Pratter dismissed the insured’s bad faith claim because it rested “entirely on conclusory and bare-bones allegations.” Leave to file an amended complaint was given, provided the insured could rectify the deficient pleadings.

The complaint merely alleged, with no additional facts, that the insurer failed to negotiate the claim, failed to properly investigate and evaluate the claim, and failed to request a defense medical examination. The court looked to Judge Slomsky’s Kiessling and Toner decisions as guidance for the dismissal, as well as Judge Gardiner’s Atiyeh decision, Judge Leeson’s Krantz decision, Judge Caputo’s Sypeck decision, and Judge Baylson’s Eley decision.

Date of Decision: March 16, 2020

Ridpath v. Progressive Advanced Automobile Insurance Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 19-5871, 2020 U.S. Dist. LEXIS 44796 (E.D.Pa. Mar. 16, 2020) (Pratter, J.)

Three days later, Eastern District Judge Darnell Jones dismissed a bad faith claim for failing to meet pleading standards.  In that case, the insurer cited 10 other cases dismissing insurance bad faith claims.

Judge Jones cited to Judge Leeson’s Soldrich opinion for the proposition that when alleging unreasonable delay, specific facts must be alleged concerning the length of any allegedly unreasonable delay between notification and response. Judge Jones also cited to the Mozzo, Atiyeh, Blasetti and Eley cases as examples of conclusory bare-bones allegations with no factual support.  Like the complaints in those cases, the instant complaint was lacking.

For example, the insured only made bare bones allegations that the insurer “failed to complete a prompt and thorough investigation of Plaintiff’s claim” and “fail[ed] to promptly provide a reasonable factual explanation of the basis for the denial of Plaintiff’s claim,” without alleging facts relating to the alleged delay, e.g., the length of time between the date of notice of the insured’s claim and the date the insurer responded.

The insured did not attempt to distinguish the insurer’s authorities. Rather, she relied upon a single case, 1009 Clinton Properties v. State Farm (discussed at length in this post), to argue her position. More than that, her complaint used the exact language found in the Clinton Properties complaint, verbatim. 

Judge Jones stated, “While the court in [Clinton Properties] deemed those allegations sufficient, it surely did not intend to create a rule whereby all future plaintiffs could simply parrot the exact same allegations in order to survive a motion to dismiss.” Judge Jones then cited the basic pleading standards set out in Twombly and its progeny, and dismissed the bad faith claim without prejudice to amend that claim if the insured so chooses.

Date of Decision: March 19, 2020

Clapps v. State Farm Insurance Cos., U.S. District Court Eastern District of Pennsylvania Civil Action No. 19-3745, 2020 U.S. Dist. LEXIS 47800 (E.D. Pa. Mar. 19, 2020) (Jones, II, J.)

For those wanting to research further examples of federal pleading standards case law, here are this Blog’s category links to adequate and inadequate pleading cases.

 

WHERE THERE IS NO DUTY TO DEFEND THERE IS NO STATUTORY BAD FAITH; NO COMMON LAW BAD FAITH WHERE NO BREACH OF CONTRACT (Western District)

The court determined there was no coverage due under an additional insured endorsement. Thus the insured lost on its breach of contract and declaratory judgments claims. It likewise failed to salvage its bad faith claims.

In addressing the bad faith claim, the court relied on the Third Circuit’s recent decision in 631 N. Broad Street v. Commonwealth Land Title, observing “that where there is ‘no duty to defend, there could be no [statutory] bad faith claim against’ the insurer.”

The insured tried to evade this result by asserting it still had a common law bad faith claim. However, the only common law bad faith cause of action available in Pennsylvania arises out of the insurance contract. If the contract claim fails, the common law bad faith claim fails of necessity. Thus, “[b]ecause the Court dismisses [the] breach-of-contract claim based on lack of potential for coverage, so too must it dismiss a subsumed claim of common law bad faith.”

On the common law bad faith holding, the court relied upon the Eastern District decisions in CRS Auto Parts and Tubman, and the Middle District decisions in Bukofsi and Porter.

Date of Decision: March 13, 2020

NVR, Inc. v. Mutual Benefit Insurance Co., U.S. District Court Western District of Pennsylvania No. 2:19-cv-26-NR, 2020 U.S. Dist. LEXIS 44135 (W.D. Pa. Mar. 13, 2020) (Ranjan, J.)

NEW JERSEY CONSUMER FRAUD ACT DOES NOT APPLY TO REFUSING TO PAY INSURANCE BENEFITS (New Jersey Federal)

This New Jersey District Court decision reiterates that New Jersey’s Consumer Fraud Act “is not implicated by the payment of insurance benefits.” Denying insurance benefits that an insured believes are due is not “an unconscionable commercial practice.” Moreover, even where an insurer allegedly violates New Jersey’s Unfair Claims Act regulations, “the alleged violations do not constitute fraudulent or misleading commercial practices.”

Date of Decision: March 13, 2020

Jones-Singleton v. Illinois Mutual Life Insurance Co., U.S. District Court District of New Jersey Case No. 3:19-cv-14220 BRM ZNQ, 2020 U.S. Dist. LEXIS 44613 (D.N.J. Mar. 13, 2020) (Martinotti, J.)

 

WHETHER DELAY AMOUNTED TO BAD FAITH MUST GO TO JURY (Middle District)

Middle District Judge Robert Mariani denied the insurer’s summary judgment motion on this UIM bad faith claim.

The court went into a lengthy recitation of the relevant facts, as well as a lengthy summary of statutory bad faith case law in Pennsylvania (though not citing the Rancosky decision). For immediate purposes, we focus solely on the court’s conclusions about whether a delay could amount to reckless indifference.

There was an undisputed delay in opening a file and starting the claim handling process, which the insurer argued amounted to negligence at most. Negligence cannot be the basis for statutory bad faith in Pennsylvania. The insurer cited cases where an internal mix-up in opening a file caused some delay. The court found it could not make a factual determination at this point attributing the delay solely to this level of negligence.

The court cited to facts from which a jury could find recklessness by clear and convincing evidence. The insured’s counsel wrote to the insurer making a claim, but no file was opened and no response was sent to counsel. Counsel sent another letter making a demand and asking for documents. Again, counsel received no response and still no UIM claim file was opened. Only after the insured called directly and asked to speak to an adjuster was a file opened and an adjuster assigned. Between then and the time of suit, the claim log showed no activity concerning the UIM claim. This all occurred over a six month period.

The court found this lack of responsiveness and activity over a six-month period could amount to reckless indifference, and should go to a jury to determine negligence vs. recklessness.

As the bad faith claim was allowed to proceed, the court did not address other allegations concerning alleged bad faith claims handling once the file was being actively adjusted.

Date of Decision: March 11, 2020

Angeli v. Liberty Mutual Insurance Co., U.S. District Court Middle District of Pennsylvania No. 3:18-CV-703, 2020 U.S. Dist. LEXIS 43159 (M.D. Pa. Mar. 11, 2020) (Mariani, J.)

COURT UPHOLDS DISMISSAL OF DRAGONETTI ACTION AGAINST INSURED (Superior Court of Pennsylvania) (Non-Precedential)

The insured’s representatives sued the insured’s carrier and its claims adjuster for bad faith. The complaint alleged bad faith in claims handling and in refusing to defend the insured.

The claims adjuster, though the carrier, brought a Dragonetti action against the insured’s representative and her counsel for bringing the bad faith claim against the adjuster. The court described it as a wrongful use of civil proceedings claim. The trial court dismissed the wrongful use claim on preliminary objections, and the matter was on appeal in the Superior Court.

First, the appellate court found that the insurer/adjuster waived all issues on appeal regarding dismissal of the Dragonetti action.

Next, even if not waived, the Superior Court ruled dismissal was proper.

The trial court found that because the allegations against the adjuster were based on the adjuster’s conduct as a claims handler, and not as a private citizen, the wrongful use claim should be dismissed. The Superior Court agreed under these circumstances that “it was not unreasonable … to name the insurance claims adjuster who denied [the] claims for coverage.”

[Note: The court apparently was not faced with the issue that a statutory bad faith claim against an adjuster must be dismissed in the first instance because the bad faith statute does not apply to adjusters, only insurers themselves. For example, see Judge Savage’s opinion in Reto, Judge Nealon’s opinion in Fertig, Judge Surrick’s opinion in Kofsky, and Judge Bartle’s decision in the 2013 Feingold case.]

Date of Decision: February 28, 2020

Philadelphia Contributionship Ins. Co. v. Kiely, Superior Court of Pennsylvania No. 3111 EDA 2018, 2020 Pa. Super. Unpub. LEXIS 725 (Pa. Super. Ct. Feb. 28, 2020) (Colins, Panella, Strassburger, JJ.)

Courts Use of Telephones and Videoconferencing to Reduce Risk from the Covid-19 Virus

The Business Courts Blog has provided an updated list of Courts across the United States directing or encouraging the use of remote teleconferencing and videoconferencing in lieu of appearing in-person for conferences and hearings, to limit health risks.  You can find that post here.

TWO EASTERN DISTRICT CASES ON INADEQUATE PLEADINGS - (1) BARE-BONES CLAIM WITH NO FACTUAL SUPPORT DISMISSED EVEN THOUGH CONTRACT CLAIM PROCEEDS; (2) COMPLAINT DEVOID OF FACTUAL SPECIFICITY CANNOT STAND

Case 1

In Park v. Evanston Insurance Company, the insureds successfully pleaded a breach of contract claim, but not a bad faith claim.

The insured alleged the nature of the loss, putative damages, and the policy covered the loss. The court agreed these allegations withstood the insurer’s motion to dismiss the breach of contract claim. Though not detailed in the opinion, the court obviously concluded that the facts as pleaded would fall within the policy’s coverage terms.

On the bad faith claim, however, no plausible claim was pleaded.  The court dismissed the claim without prejudice, giving leave to amend if possible.

The flawed complaint asserted that the insurer had no reasonable and sufficient basis to deny coverage, but did “not contain any factual allegations that relate to why Defendants’ alleged acts or omissions were unreasonable.” The court cited a number of decisions for the proposition that “bare-bones allegations of bad faith such as these, without more, are insufficient to survive a motion to dismiss.” These include the Third Circuit’s Smith decision, and the Eastern District decisions in McDonough and Atiyeh.

Date of Decision: March 4, 2020

Park v. Evanston Ins. Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 19-4753, 2020 U.S. Dist. LEXIS 37778 (E.D. Pa. Mar. 4, 2020) (Schiller, J.)

Case 2

In Shetayh v. State Farm Fire & Casualty Company, the insureds alleged the insurer fraudulently denied coverage, falsely alleging a property was used for business purposes. They sued for breach of contract and bad faith.

The insureds alleged that the insurer knew the business purpose allegation “was false, fraudulent and misleading and made solely for the purpose of denying coverage and preventing Plaintiffs from obtaining the benefits owed under their policy of insurance.” The insureds remaining bad faith averments were generic in nature, e.g., the insurer was unreasonable in withholding benefits, conducted an unfair investigation, failed to keep the insureds adequately advised, etc.

As the insurer stated in moving to dismiss the bad faith count, “these generic averments … could fit any category of insurance claim….” In response, the insureds simply repeated the allegation that the insurer’s agent knew his statement about business purposes was false, as adequately underpinning the entire bad faith claim.

The court agreed with the insurer.

Bad faith plaintiffs “must plead specific facts as evidence of bad faith and cannot rely on conclusory statements.” Judge Leeson cited the Third Circuit’s Smith decision, just as Judge Schiller did in Park. Judge Leeson found the complaint “devoid of factual specificity”, relying solely on conclusory allegations. Thus, the complaint could not survive a motion to dismiss.

As in Park, dismissal was without prejudice and with leave to amend. The court made clear, however, that “any amended complaint must specifically include facts to address who, what, where, when, and how the alleged bad faith conduct occurred.”

Among other cases, Judge Leeson relied on the following decisions in reaching his conclusion: MBMJ (which had virtually identical paragraphs in the bad faith count); Rosenberg; Fasano; and Alidjani.

Date of Decision: March 6, 2020

Shetayh v. State Farm Fire & Casualty Co., U.S. District Court Eastern District of Pennsylvania No. 5:20-cv-00693, 2020 U.S. Dist. LEXIS 39036 (E.D. Pa. Mar. 6, 2020) (Leeson, J.)