Monthly Archive for November, 2020


In this UIM action, with a history reaching back over a decade, the court applied the statute of limitations to dismiss plaintiff’s section 8371 claim, and rejected plaintiff’s attempts to assert the discovery rule.

Bad Faith Statute of Limitations Standards

  1. Section 8371 claims are subject to a two-year statute of limitations.

  2. “The statute of limitations starts to run when the plaintiff’s ‘right to institute and maintain the suit arises; lack of knowledge, mistake, or understanding do not toll the running of the statute of limitations.’”

  3. Thus, a “claim accrues when a plaintiff is harmed and not when the precise amount or extent of damages is determined.”

  4. “A bad faith claim, in particular, accrues when the insurer definitively denies coverage.”

  5. “Thus, where an insurer clearly and unequivocally puts an insured on notice that he or she will not be covered under a particular policy for a particular occurrence, the statute of limitations begins to run and the insured cannot avoid the limitations period by asserting that a continuing refusal to cover was a separate act of bad faith.”

  6. In addition, “[r]epeated or continuing denials of coverage do not constitute separate acts of bad faith giving rise to a new statutory period.”

Statute of Limitations Bars the Bad Faith Claim

In this case, the plaintiff first challenged the carrier’s coverage decision in 2004. There was a petition to compel arbitration and transfer in 2004. “Thereafter, Plaintiff took no action until November 15, 2011, when she filed the Second Petition to Appoint Arbitrator and Compel Arbitration in the Philadelphia Court of Common Pleas.” Another motion to transfer was filed, and plaintiff appealed, with the Superior Court affirming in January 2014.

“Just prior to that January ruling, Defendant filed the Third Petition to Appoint Arbitrator. Arbitration was ordered and the arbitration panel decided in favor of Defendant on November 3, 2014. The trial court then entered a judgment in Defendant’s favor on December 10, 2014.”

“In light of these facts, the December 10, 2014 entry of judgment, affirming the arbitration award, clearly put Plaintiff on notice that she would not obtain her requested coverage under the policies issued by Defendant. Accordingly, her bad faith claim accrued on that date. … Plaintiff’s failure to file her federal complaint until more than five years later violates the statute of limitations and requires dismissal of the claim as time barred.”

Discovery Rule Does not Save the Case

Plaintiff argued her claim should be saved by the discovery rule.

  1. The discovery rule only tolls the “limitations period until ‘the plaintiff knows or reasonably should know (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.’”

  2. On the other hand, “once a plaintiff possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.”

  3. Further, “it is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to initiate suit within the prescribed period.”

The insured attempted to argue there was a fraud that occurred while she was in Utah, and she only learned of the fraud upon returning to Pennsylvania to participate in a sham arbitration proceeding.  She was pro se and claimed lack of notice.

The court rejected the discovery rule’s application. “First, other than a general allegation that Plaintiff was in Utah during the pendency of the Third Petition to Appoint Arbitrator, Plaintiff fails to provide any basis for her failure to exercise a modicum of diligence with respect to her ongoing insurance claim. Moreover, even giving Plaintiff the benefit of the doubt that she could not have discovered the entry judgment against her in 2014, it is undisputable that Plaintiff had notice of that judgment when her attorney filed, on her behalf, a Petition to Strike, Set Aside and Open Judgment, Award, and all Actions of the Arbitrators on December 6, 2016. Yet, Plaintiff waited more than three years thereafter to initiate this action in federal court.”

Thus, the court rejected the discovery rule argument and dismissed the claim.

Date of Decision: November 23, 2020

McAteer v. State Farm Insurance Company, U.S. District Court Eastern District of Pennsylvania No. CV 20-101, 2020 WL 6870604 (E.D. Pa. Nov. 23, 2020) (Goldberg, J.)


The central issue in this Superstorm Sandy case was whether coverage was due for a “collapse.” Collapse was a defined term, but the defining language itself opened the door to multiple disputes over the meaning of individual words and concepts. For example, the court had to determine possible meanings of “caving in” and whether “abrupt” meant a matter of seconds or some longer period.  The parties argued the fine details of both the policy language and the facts, including competing expert reports, and the court went through a step-by-step analysis addressing the meaning of each relevant sub-term.

While the insurer made some plausible arguments, the court ultimately had to follow the principle that where the policy language reasonably could be interpreted in more than one way, the interpretation that favors coverage must be applied. Thus, at the end of the day, the trial court and Appellate Division found coverage was due.

On the other hand, the insured’s bad faith claim failed on the same record.

The court observed generally that in first party property damage cases, “the insured must demonstrate that coverage was so clear it was not ‘fairly debatable.’”  If a claim is fairly debatable, there can be no bad faith. Thus, “a plaintiff must show the lack of a reasonable basis for denying the claim or unreasonably delaying its processing, and the insurer’s knowledge or reckless disregard that it was acting unreasonably.”

Relevant to this case, “[a]n insurer’s denial of coverage may be fairly debatable if the insurer was ‘not acting in derogation of well settled New Jersey law’ and there was a split among other jurisdictions on a legal question pertaining to coverage.” Here, there was no clear New Jersey law interpreting the multiple disputes over policy language the insurer raised in denying coverage. “On that basis, [the] decision to deny coverage was fairly debatable, as there was no binding New Jersey precedent interpreting [the insurer’s] policy form.”

Moreover, there was a split in the case law among other jurisdictions concerning the scope of coverage under this same policy language. The Appellate Division favored one line of case law interpreting the policy form at issue, resulting in coverage. This did not change the reality that there was a split of authority and other courts would find no coverage. This lack of clear consensus likewise precluded a finding of bad faith.

Date of Decision: November 19, 2020

Parko Properties, LLC v. Mercer Ins. Co. of New Jersey, Superior Court of New Jersey Appellate Division No. A-4137-17T2, 2020 WL 6799137 (N.J. Super. Ct. App. Div. Nov. 19, 2020) (Oster, Vernola, JJ.)


The homeowner insured’s amended complaint asserted a breach of contract claim after the carrier denied coverage for a fire loss. The original complaint included a bad faith count that was dismissed without prejudice. The insured did not pursue that bad faith claim in his amended complaint. A summary of the earlier decision can be found here. The court had also rejected an earlier motion for judgment on the pleadings, a summary of which can be found here.

The insurer sought summary judgment on the amended breach of contract claim. Among other grounds for summary judgment, the insurer claimed there was “no duty to cover losses under the Policy” because the insured and his mother made misrepresentations of material facts relevant to coverage.

The policy only provided coverage if the insured resided at the property. The insurer asserted both that the plaintiff did not reside at the property, and made misrepresentations of material facts as to residence, ownership and the property’s condition. The insured took the position he did reside at the property and made no such misrepresentations.

Magistrate Judge Mehalchick conducted a thorough analysis of Pennsylvania case law on the meaning of “residence”, and applied that case law to the detailed facts in the case. She concluded, “[k]eeping in mind that the term ‘residence’ carries a more transitory meaning than the term ‘domicile,’ the record evidence is sufficient to allow a reasonable jury to conclude that Plaintiff resided at the Property at the time of the fire.” Thus, summary judgment was denied on the basic coverage issue.

Alternatively, the insurer sought summary judgment for material misrepresentation on the basis that the mother and son’s statements that he resided with the mother must have been false, if he in fact resided at the property.  Put another way, the carrier argued that there was no coverage because the insured did not reside at the premises. If he did reside at that premises, however, there would still be no coverage because the insured and his mother made false statements that he did not reside at the premises.

“For an insurance carrier to avoid coverage due to misrepresentation, the insurer must establish that the insured’s representation: (1) was false, (2) was made with the knowledge that the representation was false when made or was made in bad faith, and (3) was material to the risk being insured.” Moreover, “[t]he insurer must show that the insured made the misrepresentation with a deliberate intent to deceive.”

There were sworn and unsworn statements from the insured and his mother indicating that plaintiff resided with his mother at certain times, while also sleeping over at the property during other times.  The insurer attempted to construe these statements to mean the insured and his mother told the carrier that the insured did not reside at the property, which was false if he did in fact reside at the property, as pleaded in the amended complaint.

The court found the insurer failed to establish that the mother and son knowingly made false statements that he did not reside at the property, and failed to show such statements were made with a deliberate intent to deceive.

“Defining and determining the term ‘reside’ is a complicated endeavor. … [The insurer] identifies no record evidence that the [insured and his mother] knew the meaning of ‘reside.’ …  It is unknown if the [insured and his mother] even knew that an individual could simultaneously reside at two locations.”

Thus, statements that his mother’s home was the insured’s full time residence, rather than the property at issue, is not definitive because it is unclear that the insured or his mother knew that to be false. As such, there would also be no intent to deceive.

Moreover, as stated above, it remains for the jury to decide if the insured resided at the property. Thus, the insurer could not even establish at this point whether any alleged misrepresentation about the insured’s residence was false.

Therefore, summary judgment was denied on the issue of material misrepresentation.

Date of Decision: November 16, 2020

Bloxham v. Allstate Insurance Company, U.S. District Court Middle District of Pennsylvania No. 3:19-CV-00481, 2020 WL 6710427 (M.D. Pa. Nov. 16, 2020)



The insurer denied coverage under a “regular use exclusion” in this UIM case. The complaint included a breach of contract claim, but no statutory bad faith claim. Plaintiff wanted to depose plaintiff’s corporate designee. The carrier argued the proposed deposition subjects were irrelevant to coverage, absent a bad faith claim, and moved for a protective order.

Middle District Magistrate Judge Saporito found that plaintiff could pursue certain limited discovery on underwriting, even absent a statutory bad faith claim. This was based primarily on the insurer raising the “regular use exclusion” as an affirmative defense, and the insureds alleging that the carrier owed “a fiduciary, contractual and statutory obligation to investigate, evaluate, and negotiate [her] UIM claim in good faith and to arrive at a prompt, fair, and equitable settlement.” [The reference to “statutory obligation” was not interpreted to mean plaintiffs were pleading a section 8371 statutory bad faith claim.]

Plaintiff had already deposed the carrier’s adjuster, but wanted a corporate designee to testify on the regular use exclusion and underwriting practices. This included the following subjects:

  1. The underwriting procedures in place … for the period January 1, 2017[,] through the current date;

  2. The underwriting regulations necessary to obtain the status of “preferred driver” under a … policy of insurance;

  3. The determinative factors and costs associated with UIM coverage …;

  4. The determinative factors and costs associated with UM coverage …;

  5. The determinative factors and costs associated with stacking of UIM coverage…;

  6. The determinative factors and costs associated with stacking of UM coverage …;

  7. The factors [the insurer] utilizes in determining whether a vehicle is available for the “regular use” of an insured;

  8. How the term “regular use” is defined in the applicable … policy and related documents;

  9. Whether the … regular use exclusion must be accompanied by a stacking waiver;

  10. All steps and measures [the insurer] takes to explain to its insureds the effect of the “regular use exclusion,” “household exclusion,” “family car exclusion,” and “unlisted driver exclusion”;

  11. How the regular use exclusion is discussed in the [insurer’s] Claims Manual; and

  12. Any facts supporting [the insurer’s] legal theories and defenses.

The court found that although the insureds did not allege statutory bad faith, they did plead breach of the contractual duty of good faith and fair dealing. Magistrate Judge Saporito found this sufficient to open the door to some greater discovery compared to a simple breach of contract case.  He relied on three cases permitting discovery on the carrier’s decisionmaking process, even in the absence of a statutory bad faith count. Rau v. Allstate, Swientisky v. American States, and Craker v. State Farm.

The court found the following areas of inquiry relevant and discoverable: factors used to determine “whether a vehicle is available for the ‘regular use’ of an insured”; “[h]ow the term ‘regular use’ is defined in the applicable … policy and related documents”; whether the “regular use exclusion must be accompanied by a stacking waiver”; “[h]ow the regular use exclusion is discussed in the [insurer’s] Claims Manual”; “[a]ny facts supporting [the insurer’s] legal theories and defenses”; and “[a]ll steps and measures [the insurer] takes to explain to its insureds the effect of the ‘regular use exclusion….”

On the other hand, discovery was not permitted on matters “irrelevant to the issue regarding the application of the ‘regular use exclusion,’ as they relate to underwriting procedures, underwriting regulations necessary to obtain the status of ‘preferred driver,’ and the determinative factors and costs associated with UIM and UM coverage as well as stacking for those coverages.” Discovery concerning other exclusions was also irrelevant.

Thus, discovery was specifically barred for “[t]he underwriting procedures in place … for the period January 1, 2017[,] through the current date”; underwriting regulations necessary to obtain preferred driver status;  “[t]he determinative factors and costs associated with UIM coverage”; “determinative factors and costs associated with UM coverage”; “determinative factors and costs associated with stacking of UIM coverage”; and “determinative factors and costs associated with stacking of UM coverage….”

Magistrate Judge Saporito further found the permitted discovery proportional, stating “the amount in controversy represents two-thirds of the total available insurance; [the insurer], as the drafter of the policy, has ready access to all relevant information especially regarding the denial of the claim; the importance of the discovery may be determinative of the issue whether the plaintiffs are entitled to any UIM benefits under the policy; and the burden of producing one witness is outweighed by the benefit in answering the questions about the validity of [the insurer’s] affirmative defense of the regular use exclusion.”

Date of Decision: November 4, 2020

Evanina v. The First Liberty Insurance Corporation, U.S. District Court Middle District of Pennsylvania No. 3:20-cv-00751, 2020 WL 6494883 (M.D. Pa. Nov. 4, 2020) (Saporito, Jr., M.J.)


Plaintiff’s godfather died in a hospital, of what plaintiff claimed was medical malpractice. Plaintiff attempted to sue the hospital’s insurer for bad faith. He alleged the insurer failed to negotiate a good faith settlement of the godson’s malpractice claim against the insured hospital. The trial court found plaintiff had no standing to bring such a claim.

The Appellate Division agreed that, absent an assignment by the insured hospital, a third party like plaintiff had no standing to bring a direct bad faith claim against an insurer. Quoting from the Law Division’s opinion, the court observed, e.g., “public policy does not mandate that the injured party in an accident should be deemed the intended beneficiary of an insurer’s contractual duty to its insured to act in good faith regarding settlement.” The Appellate Division reiterated that even if plaintiff were a beneficiary under this godfather’s will, “plaintiff is precluded from filing a direct claim against defendant absent an assignment of rights.”

The court also made clear it disagreed with plaintiff’s “assertion on appeal that he is an implied or expressed third-party beneficiary who can pursue his claims under a common law theory of tort liability.” The record demonstrated “the essential prerequisites for a finding of common law tort liability are entirely absent. There was nothing demonstrating the insurer breached any duty to the third party/godson.

In summing up, the Appellate Division found “no basis, including public policy considerations, on which to conclude that plaintiff is a third-party beneficiary, who was owed a duty by defendant.”

Date of Decision: October 28, 2020

Yew v. Penn National Insurance, Superior Court of New Jersey Appellate Division No. A-1526-19T4, 2020 WL 6301366 (N.J. Super. Ct. App. Div. Oct. 28, 2020) (Firko, Rose, JJ.)


This long ongoing litigation involved a dispute over whether a subcontractor’s poor workmanship could be a covered “occurrence”. During the pendency of this litigation, the matter went up to New Jersey’s Supreme Court in separate lengthy litigation. The Supreme Court ultimately established law in plaintiff’s favor. In the interim before that decision, however, faced with the uncertainly of coverage, the present insured itself settled with a number of plaintiffs who sued for faulty workmanship.

The case involved multiple insurers and different policy periods.  The insured sought reimbursement in connection with the litigation and settlement sums paid.  The insured also asserted every policy was triggered by an “occurrence” during each policy period. The plaintiff moved for summary judgment on the bases that the insurers were estopped and that there were covered occurrences. The Law Division denied this motion in significant part.

The trial judge did find the policies were implicated and coverage was triggered. However, that judge also “concluded there were material factual disputes as to the reasonableness of the settlements, both as to the ‘various liabilities of the insurers[,]’ and whether defendants were ‘entitled to a diminution of’ their share of the settlements ‘based on covered claims as opposed to uncovered claims.’” Thus, the trial court denied plaintiff summary judgment.

Plaintiff and defendants then entered a “high-low” settlement. This involved a consent order for judgment, where plaintiff reserved the right to appeal the summary judgment denial, to address the insurers’ indemnification obligations. Per the consent judgment, if the Appellate Division affirmed the trial judge, the insurers would pay the low settlement sum; however, if the Appellate Division reversed the Law Division in its entirety, then the insurers would pay the high settlement sum.

On appeal, “plaintiff contended that because defendants ‘wrongfully refused coverage[,]’ causing plaintiff to defend itself against claims covered by the policy and ultimately settle those claims, defendants were liable for the entire settlement amounts if they were ‘reasonable and … made in good faith[.]’” Plaintiff relied on the seminal case of Griggs v. Bertram.

The Appellate Division framed the issue as, “having denied coverage, must defendants pay the full settlement amounts if reasonable and entered in good faith? Or, despite their denial of coverage under the policies, are defendants entitled to an allocation determination, both temporally and substantively, i.e., whether the homeowners’ claims were for ‘property damage’ covered under the policies?”

The court denied plaintiff relief, distinguishing Griggs. It then affirmed the trial court’s decision, thus resulting in the low settlement sum being due.

Unlike Griggs, in this case the defendant insurers had issued timely coverage denials. Their arguments proved successful during the very early stages of the litigation in the Law Division, and even the Appellate Division left the coverage issue open.

Thus, the court found “no basis to apply equitable principles of estoppel to bar defendants’ challenge to coverage, including a temporal and substantive allocation of covered and uncovered claims.” Rather, “a good-faith challenge to coverage is not a breach of an obligation to defend.” Further, the defendant insurers “were entitled ‘to dispute coverage based upon the language’ of the policies.”

Thus, there was no equitable basis, under Griggs, to prohibit the carriers from asserting contractual coverage defenses.  It then fell on plaintiff prove that coverage was due, and the insurers were wrong to deny coverage.  “[I]f there is a factual dispute that, once resolved, may indicate that an occurrence is not covered, and it is unlikely to be resolved at trial, an insurer may deny coverage and await judicial resolution.”  If the insured can ultimately make out its case, the carrier would have to reimburse “plaintiff for its costs and the settlement amounts, assuming they were reasonable and entered in good faith.”

The court again observed, however, “defendants were well within their rights to contest the coverage issues.” It found there were disputed issues of fact over “the nature, extent and timing of the damages” at issue. This could not be decided on summary judgment, and these factual issues “were properly left for a factfinder to conclusively resolve.”

Thus, “[r]esolution of those factual issues was necessary to determine coverage under the policies, and as a result, whether defendants’ denial of coverage was wrongful. Under controlling precedent and the facts of this case, only defendants’ wrongful denial of coverage would translate into a duty to reimburse plaintiff for reasonable settlements it entered into with the homeowners in good faith.” As there was no unequivocal reversal, plaintiff was left with the low settlement sum at the end of the day.

Date of Decision: October 5, 2020

Bob Meyer Communities, Inc. v. Ohio Casualty Insurance Company, New Jersey Superior Court Appellate Division No. A-4526-18T3, 2020 WL 5887025 (N.J. Super. Ct. App. Div. Oct. 5, 2020) (Messano, Smith, JJ.)

Developments in Pennsylvania and Philadelphia Commerce Courts; Philadelphia Commerce Court Allows Covid-19 Business Interruption Coverage Claim to Proceed

Yesterday, November 3, 2020, Governor Wolf signed a bill into law permitting the Superior Court and Courts of Common Pleas to create specialized Commerce Court dockets within their jurisdictions.  If the Superior Court creates a Commerce Court docket, it will be the first specialized appellate business court in the United States.

As many readers of this blog know, Philadelphia’s Commerce Court regularly hears commercial general liability coverage cases, including bad faith claims. Presumably, new Commerce Courts may include these types of disputes within their jurisdiction as well.

A summary of this significant development can be found on the Business Courts Blog, here.

We also note that Philadelphia Commerce Court Supervising Judge Gary S. Glazer recently addressed preliminary objections seeking to dismiss a restaurant’s claim for breach of contract and bad faith against its insurer.  The insured’s claims were based on the carrier’s denying business interruption losses resulting from Governor Wolf’s executive order closing non-essential businesses during the COVID-19 pandemic.

Judge Glazer overruled the preliminary objections, and allowed the case to proceed.  A summary of Taps & Bourbon on Terrace, LLC v. Certain Underwriters at Lloyd’s, London can be found on the Business Courts Blog, here.


The court recently permitted the UIM bad faith claim to proceed in this case. The defendant insurer then moved to bifurcate the breach of contract and bad faith claims, and to stay discovery on the bad faith claims. Middle District Magistrate Judge Carlson denied both motions.

Parties can move to sever under Federal Rule 21, and bifurcate under Federal Rule 42(b). Courts balance various factors in weighing bifurcation, and must be concerned whether “there is even a fair possibility that the stay would work damage on another party.” The four factors considered are: “(1) whether the issues are significantly different from each other; (2) whether they require separate witnesses and documents; (3) whether the non-moving party would be prejudiced by bifurcation; and (4) whether the non-moving party would be prejudiced if bifurcation is not granted.”

As to the first two factors, Magistrate Judge Carlson found “the factual allegations supporting [the] breach of contract claim and … bad faith claim significantly overlap.” The contract claim was premised on an alleged failure to fairly and objectively evaluate plaintiff’s UIM claim, and a failure to make prompt and reasonable settlement efforts. “Thus, the plaintiff’s breach of contract claim will focus on her injuries, as well as the defendant’s investigation of the claim and attempts to settle the claim.”

The court observed that the vast majority of the claim file would be common to both counts, and the bad faith case would “only require a few additional witnesses who will discuss evidence of the plaintiff’s damages that will likely be admitted in conjunction with the breach of contract claim.”

In supporting this conclusion, the court cited Dunleavy v. Encompass Home for the principle that a defendant’s good faith “must be determined by reference to the circumstances surrounding the automobile accident and the nature of” plaintiff’s injuries. The court also cited a number of cases refusing to bifurcate breach of contract and bad faith claims: Griffith v. Allstate, Newhouse v. GEICO, Craker v. State Farm, and Cooper v. MetLife.

Magistrate Judge Carlson also rejected the insurer’s work product prejudice argument. The court observed that a claim file “generally includes correspondence from plaintiff’s counsel, medical records, wage-loss records, logs indicating what material has been received, and notes from the claims adjuster regarding his or her impression of the claim’s value. … [and] only the claim adjustor’s notes or other impression may qualify as work product.” Relying on Dunleavy, Magistrate Judge Carlson found “the procedural safeguards [of asserting the work-product privilege] are sufficient to protect defendant’s interests from prejudice.”

In addition, the court found trying these matters together would not unfairly prejudice the insurer. The concern over plaintiff’s counsel having to testify was ameliorated because plaintiff changed counsel. In any event, citing Craker, “[t]he possibility that counsel will be called to testify is a ‘risk of litigation’ and does not require bifurcation.”

Further, bifurcation would not promote judicial economy. Instead, it would create “two discovery periods, additional potential dispositive motions, and a completely separate trial for each claim. Given that the underlying factual allegations and potential discovery will significantly overlap, we conclude that judicial economy would be better promoted by trying these claims together.”

Upon denying the motion to bifurcate, Magistrate Carlson states, “Because we are denying the motion to bifurcate, we further conclude that the defendant’s motion for a protective order, which seeks to prevent the plaintiff from obtaining discovery related to her bad faith claim, be denied.”

Date of Decision: October 29, 2020

Yohn v. Selective Insurance Company of America, U.S. District Court Middle District of Pennsylvania No. 3:20-CV-565, 2020 WL 6343138 (M.D. Pa. Oct. 29, 2020) (Carlson, M.J.)