Archive for the 'PA – Choice/Conflict of Law' Category

OCTOBER 2018 BAD FAITH CASES: COURT FINDS BAD FAITH POSSIBLE EVEN WHEN NO COVERAGE IS DUE (BUT OVERALL, THE LAW ON THIS ISSUE REMAINS UNCLEAR) (Philadelphia Federal)

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This case may provide the clearest statement of the view that Pennsylvania permits statutory insurance bad faith claims to proceed where no benefit is due under the policy. As we have observed previously on this Blog, there is an argument that the Supreme Court’s Metropolitan v. Toy case requires that a benefit be denied as a predicate to bringing a statutory bad faith claim. There are some rare cases where no benefit is due for a purely procedural reason and bad faith claims were permitted to proceed, e.g., the contract claim was time barred. However, the principle set forth in this case, and others like it, appears to go beyond that narrow proposition.

Specifically, the court in this case did a choice of law analysis between Pennsylvania and Wisconsin law. It found a conflict because Wisconsin law requires that “first-party bad faith cannot exist without some wrongful denial of benefit under the insurance contract.” Looking at Pennsylvania law, the court stated, “On the other hand, Pennsylvania’s bad faith statute, 42 Pa. C.S.A. § 8371, has been interpreted to provide that when ‘bad faith is asserted as to conduct beyond a denial of coverage, the bad faith claim is actionable as to that conduct regardless of whether the contract claim survives.’”

The court summed up: “So, while a party may bring a viable bad faith claim under Pennsylvania law based on the insurer’s lack of investigation or failure to communicate even when the purported insured is not covered by the policy see Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 751 n.9 (3d Cir. 1999), such a claim is not viable under Wisconsin law ….” By contrast, in another recent district court case finding no breach of the insurance contract, the court found no bad faith possible, likewise citing Frog Switch: “Count II of Plaintiff’s Amended Complaint … for Insurance Bad Faith is hereby dismissed. In light of the dismissal of the Breach of Contract claim, the Bad Faith claim cannot survive. Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 751 n.9 (3d Cir. 1999) (‘[W]here there was no duty to defend, there was good cause to refuse to defend against a suit.’).”

Under the categories “No coverage due, bad faith still possible” and “No coverage duty, no bad faith”, we list summaries of cases addressing the split on this issue, and a few general comments concerning that split.

In the present case, the court determined Wisconsin law applied, and that there could be no bad faith because no coverage was due under the contract.

Date of Decision: October 22, 2018

Achenbach v. Atlantic Specialty Insurance Co., U. S. District Court for the Eastern District of Pennsylvania CIVIL ACTION NO. 17-534, 2018 U.S. Dist. LEXIS 181146 (E.D. Pa. Oct. 22, 2018) (Beetlestone, J.)

OCTOBER 2017 BAD FAITH CASES: APPLYING CALIFORNIA LAW, MOTION TO DISMISS DENIED WHERE ALLEGATIONS SUPPORT BREACH OF CONTRACT, BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, AND TORTIOUS BREACH OF THE IMPLIED COVENANT CLAIMS (Philadelphia Federal)

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This action is similar to other life insurance litigation recently before Judge Pappert.  This case was determined under California law.

The insureds had flexible premium universal life insurance policies, and alleged breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious breach of the implied covenant of good faith and fair dealing. Under these policies, policyholders may adjust both the amount and frequency of their premium payments, so long as they maintain sufficient funds in the account to cover a monthly deduction. The monthly deduction is comprised of a cost of insurance (“COI”) charge and other related expenses.

According to the insureds, the COI is the “largest and most significant charge” of the monthly deduction. A policyholder may elect to pay a premium in excess of the monthly deduction, and the policy provides that those excess funds will accrue interest at a rate of at least 4%. However, if the monthly deduction exceeds the value of the premium paid, the policy value is reduced.

The insureds allege that the insurer breached the policies by increasing the COI, because the COI rate increase was not based on a list of enumerated factors in the policies. The insureds further argued that the increase was not applied on a uniform basis for insureds of the same rate classes. The insurer moved to dismiss.

Specifically, the parties disagreed as to the proper interpretation of the insurer’s COI Notice Letter, which states, “the amount of the COI rate change depends upon the product, underwriting class and duration.” While the parties provided different explanations for their understanding of the terms in the Notice Letter, the Court stated that the insureds’ allegations are sufficient to state a claim for breach of contract.

The Notice Letter also contained language stating the COI increase was necessary because the insurer “was ‘operating in a challenging and changing environment as we continue to face nearly a decade of persistently low interest rates, including recent history lows, and volatile financial markets.’”

Based upon this language, and other statements made to brokers and agents, the Court held that the insureds stated plausible allegations to support their breach of contract claim.

After conducting a choice of law analysis, the Court then addressed the insureds’ breach of the implied covenant of good faith and fair dealing claim. The insureds argued that the insurer deliberately attempted to force the insureds to either pay exorbitant premiums that the insurer knew would not justify the ultimate benefits of the policy, or force the insureds to surrender the policies upon lapse.

The Court held again that the insureds’ allegations were adequate to allege that the insurer breached the implied covenant with its actions that were “unreasonable and unfair . . . with the bad faith intent of inducing lapses, frustrating policyholders’ expectations and depriving them of the benefit of the agreement.”

While Pennsylvania law does not recognize a cause of action for tortious breach of the implied covenant, California law does recognize such a claim where the plaintiff shows “(1) [that] benefits due under the policy were withheld; and (2) the reason for withholding the benefits must have been unreasonable or without proper cause.”

To support this claim, the insureds alleged that the insurer’s COI increase was unlawful, excessive, and denied the insureds the benefit of their policies. Citing its previous reasoning, the Court held the insureds’ allegations were sufficient to state a claim for tortious breach of the implied covenant. The Court also declined to dismiss the insureds’ punitive damages claim at this stage of the litigation.

In sum, the Court denied the insurer’s motion to dismiss the breach of contract and both breach of the implied covenant claims.

Date of Decision: September 22, 2017

EFG Bank AG v. Lincoln National Life Ins. Co., No. 17-02592, 2017 U.S. Dist. LEXIS 154985 (E.D. Pa. Sept. 22, 2017) (Pappert, J.)

MARCH 2017 BAD FAITH CASES: IN INSURANCE CHOICE OF LAW ANALYSIS, LOCATION OF INSURED IS MOST IMPORTANT FACTOR (Western District)

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This insurance bad faith case involved: (1) a physical loss in West Virginia; (2) an Illinois insurer; (3) an insured with its principal place of business in Pennsylvania and place of incorporation in Delaware; and (4) an insurance policy with a New Jersey choice of law provision. The issue before the Court was which state’s bad faith law to apply. The insured had pleaded statutory and common law bad faith under West Virginia law, as well as a New Jersey bad faith claim. The West Virginia law conflicted with Pennsylvania bad faith law.

In conducting its choice of law analysis, the Court looked to the Third Circuit’s decision in Hammersmith v. TIG Ins. Co., 480 F.3d 220 (3d Cir. 2007), on how to apply Pennsylvania choice of law principles in the insurance context. Pennsylvania law has a flexible approach combining the Restatement (Second) of Conflicts of Laws, and a government interest analysis. Courts look at factors in Restatement sections 188 and 193 (which focuses on the location of the risk). However, this court concluded that the law has evolved to the point where the dominant factor in determining which state’s law applies in insurance actions is the insured’s location. This is because the public policy goal is to protect the insured’s interests.

Applying these principles, the Court rejected application of West Virginia and New Jersey law, and gave the insured’s leave to amend their complaint to plead bad faith claims under Pennsylvania law.

Dates of Decision: January 26, 2017 (Report and Recommendation), February 27, 2017 (adopted by District Court).

Kvaerner N. Am. Constr. Inc. v. Allianz Global Risks US Ins. Co., No 15-460, 2017 U.S. Dist. LEXIS 11635 (W.D. Pa. Jan. 26, 2017) (Mitchell, M.J.) (Report and Recommendation)

Kvaerner North Am. Constr., Inc. v. Allianz Global Risks US Ins. Co., No. 15-460, 2017 U.S. Dist. LEXIS 26757 (W.D. Pa. Feb. 27, 2017) (Bissoon, J.) (adopting Report and Recommendation as decision of the Court)

 

NOVEMBER 2016 BAD FAITH CASES: FOR CHOICE OF LAW PURPOSES IN BAD FAITH CASE, PLACE OF LOSS IS INSURED’S BUSINESS LOCATION; INSURER’S TREATING SIMILAR CLAIMS DIFFERENTLY IS NOT A PER SE BASIS TO SHOW BAD FAITH (Middle District)

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The insured failed to allege a plausible bad faith claim in this case.

The insurer had defended the insured under a reservation of rights in two state actions. The insurer brought suit for declaratory relief in Pennsylvania on those two claims, seeking a ruling that it had no duty to defend or indemnify. It denied coverage in a third state (Vermont) action, apparently without any agreement to defend under a reservation of rights, and amended its Pennsylvania declaratory judgment action to cover this third case as well. The insured brought a counterclaim for bad faith for this last denial of coverage, focusing on the different treatment between the third action and the first two actions.

The Court first had to address a choice of law analysis. Although the states’ bad faith laws at issue were likely not in conflict, the court carried out the analysis to be thorough. The Court found that a key element was where the insurance benefit was denied, in cases where an insured is claiming breach of contract and bad faith. The denial is located at the insured’s place of business, since this is where the economic impact of the denial occurs. In this case, that was Pennsylvania. Further, there were other factors favoring application of Pennsylvania law.

The Court then addressed the insurer’s motion to dismiss the bad faith claim. The following allegations failed to set out a plausible claim under Pennsylvania bad faith law:

The insurer does not have a good faith basis for its denial of a defense to [the insured] in the Vermont Action.

The insurer agreed to defend the New York and Massachusetts Actions based on similar allegations as those contained in the Vermont Action and has at all times continued to defend the New York and Massachusetts Actions.

The insurer’s decision to deny a defense to [the insured] in the Vermont Action while agreeing to defend the New York and Massachusetts Actions is arbitrary, capricious and/or frivolous.

The Vermont Plaintiff’s claim for property damage and/or bodily injury falls within the Policy’s coverage and the products completed operations coverage and [the insured] is entitled to a defense for the claims asserted by the Vermont Plaintiff.

The insurer’s denial of coverage for the Vermont Plaintiff’s claim was made in bad faith.

The insured is entitled to recover damages for the insurer’s bad faith handling of the Vermont claim regardless of the law that applies.

The Court found that, even where claims are similar, denying some claims and covering others is not per se bad faith. The court gave the example that there could be 5 similar claims, none of which the insurer believed in good faith merited coverage. However, it might offer coverage for a subset of those cases “based upon a calculated business judgment, risk avoidance, litigation forecasts, etc.” Thus, “’similarity’ among claims is a poor predictor of bad faith denials in cases where either the claims’ alleged similarity or the claims’ coverage under the policy is not clearly established.”

The Court went on to observe that the insured “points out that coverage of the prior two claims to which [insured] compares the instant action was actually made under a reservation of rights. I consider it a poor use of judicial resources to create judicial rules that make it costlier for insurers to offer initial coverage under a reservation of rights letter. Were Defendant’s argument accepted, insurers would be less willing to offer coverage while a claim was initially being investigated for fear that one coverage decision might be viewed as an admission as to that claim or a comparable one in related litigation. Similar policy justifications underlie determinations by the Federal Rules of Evidence mandating that subsequent remedial measures and offers to pay initial medical or hospitalization costs be deemed irrelevant in associated legal proceedings.”

Finally, the Court found that “most damning for Defendant’s bad faith counterclaim, [the insurer] has provided the Court a copy of its coverage denial letter. Plaintiff has accurately characterized its declination letter as ‘detailed.’ The ten-page, single-spaced letter sets forth, from Plaintiff’s perspective, the applicable choice-of-law analysis, the pertinent policy definitions, the facts surrounding the claim, the justifications that it provides for why those facts do not trigger coverage, and various legal decisions that it suggests support its denial of the claim.”

The Court referenced the fairly debatable standard from other jurisdictions, in observing this was not a basis for bad faith. It looked at Pennsylvania case law on the existence of the insurer’s “reasonable basis” to deny a claim, to the same effect. As stated, it found that the insured had not met the Twombly/Iqbal pleading standards.

Unlike many dismissals for failure to plead a plausible action, however, this bad faith claim was dismissed with prejudice, the Court finding that amendment would be futile.

Date of Decision: August 29, 2016

Westfield Insurance Company v. Icon Legacy Custom Modular Homes, 2016 U.S. Dist. LEXIS 115214 (M.D. Pa. Aug. 29, 2016) (Brann, J.)

We also remind you of Judge Brann’s decision of the same date, as one of the relatively few cases in the last 9 years addressing the Supreme Court of Pennsylvania’s important bad faith decision in Toy v Metropolitan.

MARCH 2016 BAD FAITH CASES: PHILADELPHIA COURT (1) APPLIES PENNSYLVANIA LAW TO STATUTORY BAD FAITH CLAIM AFTER CONDUCTING CHOICE OF LAW ANALYSIS; (2) FINDS GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO WHETHER INSURER’S CLAIMS HANDLING OVER PAYMENTS OF DEFENSE COUNSEL FEES AMOUNTED TO BAD FAITH; (3) DISMISSES INSURED’S BREACH OF FIDUCIARY DUTY CLAIM AFTER FINDING IT WAS REDUNDANT OF BAD FAITH CLAIM (Philadelphia Commerce Court)

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In IMS Health Inc. v. Zurich American Insurance Company, the insured brought action against its insurer.  Suit previously had been filed in Philadelphia’s federal district court against the insured for tortious interference with contract and unfair competition under Pennsylvania common law. The insured tendered the defense, and the insurer agreed to defend the Philadelphia federal action under a reservation of rights.

After an attorney fee rate dispute between the insured and the insurer, the insurer filed a declaratory judgment action in the United States District Court for the District of Connecticut concerning coverage as well as rates payable to the insured’s two sets of attorneys. Shortly thereafter, the insured filed the instant action in the Philadelphia Commerce Court against the insurer, and both parties filed partial motions for summary judgment in the Commerce Court.

The Commerce Court first addressed the insured’s claim that application of a 10% discount by the insurer on already reduced rates predetermined by the insurer constitutes a breach of the duty to defend and is bad faith. As a question of fact existed as to whether the insurer applied the discount improperly, the court refused to grant summary judgment on this issue.  Next, the court found that Connecticut law applied on the issue of whether the insurer could seek recoupment of attorney’s fees paid to defend the insured, a remedy not available under Pennsylvania law.

The court reached a different decision on the applicability of Pennsylvania law on bad faith, on the issue of bad faith in claims handling in the non-payment of defense costs for the Philadelphia federal action.

The insurer argued that Connecticut law should apply to the bad faith claim, while the insured argued that Pennsylvania law should apply. The court found that a true conflict existed, as Connecticut recognizes a common law bad faith claim based on breach of an implied covenant of good faith and fair dealing as well as two statutory claims, but does not recognize a tort of bad faith based on claims mishandling.

However, Pennsylvania provides for a private cause of action for bad faith insurance disputes under its bad faith statute, which can include a bad faith claim for claims handling.  In this case, the claims handling at issue was the calculation and payment of attorneys’ fees to the insured’s defense counsel in the federal action.

After conducting a conflict of law analysis, the court found Pennsylvania had the greater interest in applying its bad faith statute to “curtail certain bad faith acts by insurers” by “formally imposing a duty of good faith on insurers based on the apparent determination that such a provision was necessary to deter bad faith.”

The court went on to deny summary judgment under Pennsylvania law, as genuine issues of material fact existed as to whether the insurer’s claims handling concerning the attorney’s fees amounted to bad faith.

Finally, the court granted the insurer’s motion for summary judgment on the breach of fiduciary duty claim filed by the insured, reasoning that Pennsylvania law “does not recognize a separate tort-law cause of action for breach of fiduciary duty against an insurer” aside from certain exceptions, and that Pennsylvania courts have dismissed claims for breach of fiduciary duty in the insurance context as “duplicative of statutory bad faith claims.”

Here, the insured’s claim for breach of fiduciary duty arose from the same allegations of misconduct concerning the claims handling as to attorneys’ fees. Accordingly, the breach of fiduciary duty claims was found to be redundant of the bad faith claim and dismissed.

Date of Decision:  December 15, 2015

IMS Health Inc. v. Zurich Am. Ins. Co., April Term 2014, NO. 2046, 2015 Phila Ct. Com. Pl. LEXIS 387 (Phila. C.C.P. December 15, 2015) (McInerney, J.) (Commerce Program)

JANUARY 2016 BAD FAITH CASES: COURT DISMISSES BAD FAITH CLAIM BASED ON THIRD CIRCUIT PRECEDENT AFTER CONDUCTING CHOICE-OF-LAW ANALYSIS TO APPLY PENNSYLVANIA LAW EVEN IN THE FACE OF A NORTH CAROLINA CHOICE OF LAW PROVISION (Western District)

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In Alcantarilla v. State Farm Mutual Automobile Insurance Company, the insureds brought an action for breach of contract and bad faith arising out of a claim for underinsured motorist (“UIM”) coverage benefits filed by the insureds. The insureds had renewed their auto policy with the insurer while they were residents of North Carolina. The policy was identified as a “North Carolina” policy and contained a choice-of-law provision stating that the policy was governed by North Carolina state laws.

The insureds ultimately moved to Pennsylvania while the policy was still in force, and were involved in an accident in which one of the insureds was struck by a motor vehicle. The insured’s medical expenses exceeded the amount ultimately recovered from the driver that struck him, and the insured made a claim for UIM benefits under his insurance policy. The insurer refused to pay because the insureds’ UIM coverage did not exceed the driver’s policy limit.

The insureds filed suit, claiming that while the decision to deny coverage may be correct under North Carolina law and the terms of the policy, the more expansive definition of “underinsured” utilized by Pennsylvania should be applied, which would entitle the insureds to a greater amount of coverage. The insureds argued in the alternative that if Pennsylvania law did not apply, then the insurer misrepresented that nothing needed to be done to bring the policy into compliance with Pennsylvania law prior to the insureds’ move. The complaint set forth claims of; inter alia, breach of contract, and breach of fiduciary duty against the insurer and its agent. The claims against the agent were dismissed for lack of personal jurisdiction and the insurer moved to transfer venue from Pennsylvania to North Carolina.

After conducting a choice-of-law analysis, the court concluded that private factors weighed in favor of applying Pennsylvania law, as the insureds now reside in Pittsburgh and chose to litigate there. The court also found that public factors weighed in favor of Pennsylvania law, as no practical considerations existed that would suggest the case should be transferred.

The court ultimately decided that irrespective of the choice-of-law provision in the policy, Pennsylvania law should govern the policy terms as Pennsylvania had the most relevant contacts to the coverage dispute and the greatest interest in having its law applied. In view of that, the court refused to dismiss the breach of contract claim.

The court did dismiss the bad faith claim after noting that the Court of Appeals addressed almost identical allegations of bad faith under Pennsylvania law in another case and found that “the conduct alleged simply does not amount to bad faith.”

The breach of fiduciary duty claim that was plead in the alternative was also dismissed since the court determined that the insurer was required to provide excess coverage under the policy, and accordingly it could not be said that the insurer’s agent misrepresented the terms of the policy when the insureds contacted his office after they had moved to Pennsylvania.

Date of Decision:  December 15, 2015

Alcantarilla v. State Farm Mut. Auto. Ins. Co., No. 2:15-cv-1155, 2015 U.S. Dist. LEXIS 167623 (W.D. Pa. December 15, 2015,) (McVerry, J.)

AUGUST 2015 BAD FAITH CASES: COURT FINDS THAT SUBSTANTIVE LAWS OF NEW YORK APPLY BASED ON CHOICE OF FORUM CLAUSE IN POLICY, EVEN THOUGH NEW YORK, UNLIKE PENNSYLVANIA (1) DOES NOT RECOGNIZE ACTION FOR BAD FAITH DENIAL OF INSURANCE CLAIMS AND (2) DOES NOT REQUIRE INSURED HAVE SCIENTIR FOR INSURER TO SEEK RESCISSION (Western District)

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In H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., the insured and the insurer sought a declaration from the Court as to the insurer’s obligations under a policy issued to the insured, and the insurer moved for the policy to be rescinded. The issue before the Court was whether the substantive laws of Pennsylvania or New York applied, and the Court found that New York law governed the case.

The underlying action is an insurance coverage dispute between the insurer, which has a principal place of business in Pittsburgh, and the insured, which is incorporated in Texas, with a principal place of business in New York.  The insurance policy at issue contained a “Choice of Law and Forum” provision, which states that the policy would be governed by the laws of New York. The policy also contained a Service of Suit Endorsement, which provides that in the event of the insurer’s failure to pay the amount claimed to be due under the policy, the insurer would consent to the jurisdiction of any Court chosen by the insured.

The language of the endorsement also set forth that any dispute in the chosen forum would be conducted “in accordance with the law and practice of such Court.” The parties disagreed as to the interpretation of the policy and disputed the effect of the endorsement upon the Choice of Law clause.

The Court first determined whether the Service of Suit Endorsement superseded or modified the Choice of Law Clause. After an analysis under Pennsylvania’s choice of law provisions, the Court determined that the parties intended to have the substantive laws of New York apply to any legal dispute that arose with regards to the policy.

The Court pointed out a conflict in the substantive laws of Pennsylvania and New York relating to rescission and bad faith. In Pennsylvania, the standard for rescission is more stringent because it “imposes a burden on a party to demonstrate that the insured knew the representation at issue was false when it was made or the insured made the representation in bad faith.” The Court noted that New York does not have a similar scientir requirement for rescission.

The Court next acknowledged the conflict between the laws of Pennsylvania and New York particularly with regards to bad faith, in that “Pennsylvania permits a party to recover punitive damages, attorneys’ fees, and interest from an insurer if a claim is denied in bad faith, while New York does not recognize a cause of action for bad faith denial of insurance claims.” The Court noted that the competing interests between the two states are “Pennsylvania’s interest in protecting insureds and allowing them recovery of monetary funds in cases of bad faith and New York’s interest in preventing recovery from insurers, which inevitably encourages business in New York, amongst other considerations.”

Because Pennsylvania did not have a “materially greater” interest in the litigation, the Court determined that the Choice of Law provision in the policy should not be disturbed, and the substantive laws of New York should govern.

Date of Decision: July 31, 2015

H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., CIVIL ACTION NO. 15-cv-00631, 2015 U.S. Dist. LEXIS 100580 (W.D. Pa. July 31, 2015) (Schwab, J.)

JUNE 2015 BAD FAITH CASES: FIRST PARTY CONTRACTUAL BAD FAITH CLAIM ADEQUATELY PLEADED UNDER NEW JERSEY LAW; PENNSYLVANIA STATUTORY BAD FAITH CLAIM DISMISSED AFTER CONFLICT OF LAW ANALYSIS (New Jersey Federal)

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In Bridgewater Wholesalers, Inc. v. Pennsylvania Lumbermens Mutual Insurance Company, the Court denied a motion to dismiss an insured’s bad faith claim under New Jersey law.  However, after conducting a conflict of law analysis, it did dismiss plaintiff’s claims for relief under Pennsylvania’s bad faith statute.

In this case, the insured was a commercial supplier of goods that suffered losses in Hurricane Sandy.  It settled a property damage claim with the insurer, but alleged that the insurer failed to make full payment on the loss of business income claim. The insurer “paid a limited amount and denied further liability despite [the insured’s] requests to obtain additional payment.” The insured subsequently sued the insurer, alleging breach of contract, violations of the implied duty of good faith (Count II), and violation of Pennsylvania’s Bad Faith Statute, 42 Pa. C.S. § 8371 (Count III).

The insurer filed a motion to dismiss Counts II and III. The Court refused to dismiss Count II, holding that it was “adequately pled and cannot be dismissed at this early stage.” The Court further reasoned that “additional discovery is necessary to determine whether [the insurer] had a reasonable basis for not adjusting the insurance claim.”

The insurer argued that Count III should be dismissed because the Pennsylvania statute was inapplicable, and New Jersey law governed the bad faith claim. The Court conducted a conflict of law/choice of law analysis, applying New Jersey’s legal principles as the forum state (the “most significant relationship” test). The first step was to determine if an actual conflict between the laws of Pennsylvania and New Jersey existed. The Court found that a genuine conflict existed because the Pennsylvania and New Jersey “bad faith” standards demonstrated a clear distinction.

After the Court established that a true conflict existed, it determined which state had the most significant relationship to the claim, which it found to be New Jersey.  Hurricane Sandy caused direct physical damage to the insured’s New Jersey facility. The insurance claim was processed in New Jersey. New Jersey is the place where the insured is incorporated and has corporate headquarters, and where the insurer is an insurance carrier. Because the Court found that New Jersey’s interests prevailed, and its insurance laws applied to the bad faith claims, the court dismissed the insured’s Pennsylvania statutory claim.

Date of Decision: May 29, 2015

Bridgewater Wholesalers v. Pa. Lumbermens Mut. Ins. Co., Civil Action No. 2:14-cv-3684-SDW-SCM, 2015 U.S. Dist. LEXIS 69409 (D.N.J. May 29, 2015) (Wigenton, J.)

SEPTEMBER 2014 BAD FAITH CASES: NO BAD FAITH UNDER PENNSYLVANIA LAW WHERE INSURED FAILED TO DISCLOSE FACTS TO DISABILITY INSURER; NO BREACH OF FIDUCIARY DUTY UNDER NEW JERSEY LAW FOR SAME REASON (Philadelphia Federal)

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In Hayes v. American International Group, a case involving a disability insurance claim, the Magistrate Judge concluded in her Report and Recommendation that there could be no statutory bad faith under Pennsylvania law where the carrier paid total disability benefits for over four years until it learned that the insured had been working over the entire period.

Further, a subsequent investigation of the insured, his work-related activities and his earned income, as well as his failure to provide relevant financial information, led to the insurer’s decision to terminate benefits.

The insured did not present sufficient evidence to support that the insurer lacked a reasonable basis for denying total or residual disability benefits, or that the insurer disregarded a lack of a reasonable basis for doing so.

The insured also brought a claim for breach of fiduciary duty. The court observed that there was a difference in Pennsylvania and New Jersey law, with Pennsylvania law recognizing only a very limited fiduciary duty in insurers, and New Jersey law recognizing a broader fiduciary duty from insurers to insureds in the processing of first party claims.

The court did a conflict of laws analysis, setting out, however, that both parties to the insurance contract owe a fiduciary duty to the other under New Jersey law. In light of that, New Jersey law was not contrary to Pennsylvania’s governmental interests, the conflict was false, and New Jersey law applied.

For the reasons set out above, there could be no breach of fiduciary duty. The insured had repeatedly and consistently reported his lack of income and inability to perform anything but sedentary activities to the insurer. Thus, the court stated that “it cannot be said that [the insurer] exercised bad faith in discontinuing benefits when confronted by evidence that Plaintiff was earning more from his private practice than he was earning before he allegedly became disabled.”

Date of Decision: July 29, 2014

Hayes v. Am. Int’l Group, CIVIL ACTION NO. 09-2874, 2014 U.S. Dist. LEXIS 103564 (E.D.Pa. July 29, 2014) (Hey, U.S.M.J.) (Report and Recommendation)

Adopted by District Court on September 11, 2014.

OCTOBER 2013 BAD FAITH CASES: INSURER’S MOTION TO DISMISS ON CHOICE-OF-LAW GROUNDS DENIED WHERE DELAWARE HAD NO ACTUAL INTEREST IN APPLICATION OF ITS LAW, WHICH LACKED STATUTORY BAD FAITH CLAIM SIMILAR TO PENNSYLVANIA (Middle District)

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Plaintiff brought suit against the defendant-insurer alleging statutory bad faith for defendant-insurer’s handling of her UIM claim. Plaintiff was a citizen of Delaware at the time she purchased the policy and at the time of the underlying accident, and at all relevant times the insurer was a Maryland insurance company. However, prior to filing the UIM claim, plaintiff became a Pennsylvania citizen.

Therefore, when it received plaintiff’s complaint, the insurer filed a motion to dismiss, basing its legal argument on the position that the applicable choice-of-law grounds rules boded in favor of Delaware law, which did not provide an equivalent bad faith remedy to that found in Pennsylvania.

In resolving conflict of law issues, Pennsylvania applies a “flexible, interests/contacts methodology to contract choice-of-law questions.” When applying this methodology, the Courts first determine whether the states’ laws are actually in conflict. In this case, the parties agreed a conflict existed because Pennsylvania provides a statutory remedy to bad faith, including punitive damages and attorneys’ fees, and Delaware provides no similar remedy, only allowing plaintiffs to pursue a breach of contract action.

If a conflict does exist, the court must characterize the conflict as a ‘true conflict,’ ‘false conflict,’ or ‘unprovided for situation.’ A ‘true conflict’ occurs where both jurisdictions’ interests would be impaired by allowing application of the opposing jurisdiction’s law. A ‘false conflict’ occurs where the conflict is more apparent than real.

The Court determined this case exhibited a ‘false conflict’ because Pennsylvania was the only jurisdiction with any interest in seeing its laws enforced in this case. The insurer failed to identify any interest Delaware could possibly have in having its common law applied to the case, particularly because such an application would effectively only preclude plaintiff from recovering attorney fees and make it more difficult for her to be awarded punitive damages.

Furthermore, because the insurer is not a Delaware corporation, the Court could find no reason why Delaware would have an interest in having its law applied in a dispute involving two non-Delaware parties. This was particularly true because the plaintiff was the only party with any connection to Delaware, and certainly Delaware would not want to see its law applied in an effort to take away a former citizen’s rights.

Finally, the Court found even if it applied the ‘true conflict’ method of evaluation, the connections with Pennsylvania were sufficient to mandate application of Pennsylvania law. At the time the claim against the insurer accrued, plaintiff was a resident of Pennsylvania.

The auto accident that formed the basis of the suit occurred in Pennsylvania with a tortfeasor from Pennsylvania. Furthermore, the medical treatment plaintiff received occurred in Pennsylvania, and her UIM claim was initiated by a Pennsylvania attorney. Thus, the Magistrate Judge recommended the insurer’s motion to dismiss be denied and the District Court judge adopted the recommendation.

Dates of Decision:  June 27, 2013 and July 18, 2013

Davis v. GEICO Gen. Ins. Co., No. 1:12-CV-2332, 2013 U.S. Dist. LEXIS 101359 (M.D. Pa. June 27, 2013) (Carlson, M.J.) adopted by Davis v. Geico Gen. Ins. Co., 2013 U.S. Dist. LEXIS 100384 (M.D. Pa. July 18, 2013) (Conner, J.).