Archive for the 'PA – No coverage due, bad faith still possible' Category

BAD FAITH CLAIM BIFURCATED AND STAYED; REQUEST TO DEPOSE INSURER’S COUNSEL QUASHED AS COVERAGE COUNSEL COMMUNICATING WITH INSURED IS COMMONPLACE AND DOES NOT MAKE COUNSEL A FACT WITNESS (Middle District)

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In this first-party property damage case, Judge Conner addressed a motion to sever and stay a bad faith claim, as well as a motion for a protective order to quash the deposition of the carrier’s coverage counsel, who was also defending the breach of contract and bad faith action.

Motion to Sever and Stay Results in Bifurcation and Stay

Judge Conner first noted the difference between a Rule 21 motion to sever and stay, and a Rule 42 motion to bifurcate, observing that severance results in two separate and distinct actions, resulting in separate judgments. In this case, the insurer had moved to sever, but also included in its motion bifurcation as a form of relief.

“Severance is appropriate when the claims are ‘discrete and separate,’ each capable of resolution without dependence or effect on the other.” Factors include whether the two claims will require different evidentiary proof, judicial economy, and party prejudice. Judge Conner observed the wealth of case law addressing severance and bifurcation in insurance bad faith cases, but noting that the cases go both ways.

As in other cases, the insurer here argued, “irreparable prejudice from premature and potentially unnecessary disclosure of otherwise privileged information, inefficiency in litigating a secondary claim of bad faith that may be mooted by resolution of the coverage claim, and jury confusion and the potential loss of [the insurer’s] chosen counsel if the claims proceed together.”

  1. The court agreed that the breach of contract claim and bad faith claim are separate and distinct, with only minor overlap. For example, “[i]nformation concerning how [the insurer] investigated and evaluated the coverage claim, its claims-handling policies, and its attorney and personnel communications regarding denial of coverage … are simply immaterial to the issue of whether coverage is required under the policy.”

  2. The court also found the prejudice element favored the insurer’s position. The insurer focused on revealing its attorneys’ advice, opinions and strategy as providing an undue advantage in the insured’s contract case, where such information would not otherwise be discoverable. The insured focused on increased litigation expenses.

Judge Conner found “that although both parties have proffered potential prejudice, [the insurer’s] likely injury from denying separation of these claims outweighs the possible increased costs identified by [the insured]. As [the insurer] correctly notes, attorney-client privilege and the work product doctrine are long-held, venerated components of our legal system. …. Such protections are not absolute, but they should not be disregarded lightly. We do not dismiss [the insured’s] legitimate concern regarding litigation costs, but ultimately conclude that this factor also favors [the insurer].”

  1. On the judicial economy element, the court rejected the notion that a ruling denying coverage would moot the bad faith claim; instead observing that a bad faith claim can exist independently of a coverage denial. [Note: As recently reiterated on this Blog, there is a longstanding issue as to whether statutory bad faith can be pursued in Pennsylvania simply for poor claims handling, if there is no benefit due under the policy.] The court also rejected the notion that the likelihood of more complex discovery disputes if both actions are litigated together requires severance.

After weighing all factors, Judge Conner chose to bifurcate, rather than sever; and to stay discovery on the bad faith claim. He recognized other courts had ruled differently in insurance bad faith cases, but highlighted the fact that each case is unique, that judges have broad discretion, and that in “this” case bifurcation and stay were warranted.

Court denies insured’s request to depose the insurer’s counsel

The insured sought to depose the insurer’s defense counsel in the case, who was also involved in the underlying coverage dispute. The insurer moved to quash the deposition. As the only pending case was now the breach of contract claim, Judge Conner viewed the issue through that prism.

The insured argued that counsel acted as a claim investigator, and was thus a fact witness. However, it offered no support for that position. It sought to depose counsel to obtain his: “’thoughts and reasoning as to why certain information was or was not included in the denial letters,’ knowledge of the cause and extent of the loss, and reasons why ‘certain information was disregarded” and the claim ultimately denied.’” The court found this “either irrelevant to the breach of contract claim, privileged, discoverable through other means, or a combination thereof.”

“Furthermore, that [the insurer’s counsel] authored letters denying coverage and setting forth [the insurer’s] reasons for its denial has no bearing on whether his deposition is necessary on the breach of contract claim. The practice of insurers consulting with their attorney regarding coverage and having their attorney communicate with the insured is quite commonplace and does not transform [coverage counsel] into a fact witness.”

The court further recognized the potential issue that the deposition could result in counsel’s disqualification. This was another reason to quash the deposition in connection with the contract claim. Judge Conner did leave the door open for the insured to reassert its request to depose counsel in the bad faith case.

Dated: July 25, 2019

McFarland, LP v. Harford Mutual Insurance Cos., U. S. District Court Middle District of Pennsylvania CIVIL ACTION NO. 1:18-CV-1664, 2019 U.S. Dist. LEXIS 124038 (M.D. Pa. July 25, 2019) (Conner, J.)

Our thanks to Dan Cummins of the excellent Tort Talk Blog for bringing this case to our attention.

BAD FAITH STATUTE OF LIMITATIONS NOT TOLLED, OR RENEWED, BY CHANGE IN THE LAW ON COVERAGE; NO PLAUSIBLE CLAIM PLEADED; BAD FAITH POSSIBLE EVEN IF BENEFIT NOT DUE (Philadelphia Federal)

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This UIM case was stimulated by the Pennsylvania Supreme Court’s recent decision reversing precedent on the household vehicle exclusion. In dismissing the bad faith claim, the court found:

  1. The two-year statute of limitations was not tolled by a change in the law.

  2. The change in the law, which resulted in the insured renewing her demand for coverage, did not re-start the statute of limitations.

  3. Alternatively, the insured failed to plead sufficient facts to set forth a plausible bad faith claim; rather she only made a few conclusory allegations.

The court did have a significant footnote, which addresses the long-standing debate over whether there can be statutory bad faith where no coverage is due. Judge Pappert clearly comes down on the side that bad faith can still exist, noting that “a claim for bad faith pursuant to 42 Pa. C.S. § 8371 is a separate and distinct cause of action and is not contingent on the resolution of the underlying contract claim. … Thus, if 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.” As we have noted before on this blog, other courts dispute this view.

Date of Decision: July 3, 2019

O’Brien v. GEICO Employees Insurance Co., U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 19-01920, 2019 U.S. Dist. LEXIS 110914 (E.D. Pa. July 3, 2019) (Pappert, J.)

BAD FAITH CLAIM BROUGHT MORE THAN TWO YEARS AFTER NOTICE OF DENIAL DISMISSED ON STATUTE OF LIMITATIONS GROUNDS (Philadelphia Federal)

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A property loss coverage claim was dismissed under the policy’s two-year suit limitation provision, requiring that any suit be brought within two years of the date of loss. In dismissing this breach of contract claim, the court reiterated the Third Circuit’s holding that an insurer does not have to show prejudice in enforcing a suit limitation provision.

The insured also brought a statutory bad faith claim, and a breach of the covenant of good faith and fair dealing count. The insurer moved to dismiss the bad faith claim on statute of limitations grounds, arguing that the policy benefit was denied more than two years prior to suit. (It is well established that the bad faith limitations period is two years).

The insurer relied on a notice of denial, attached to its answer, in moving to dismiss. The insured asserted because this document was not attached to the complaint, it could not be considered on a motion to dismiss. Under the circumstances of this case, the court disagreed.

The court observed that courts handling motions to dismiss “may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Absent this exception, plaintiffs with legally deficient claims could simply omit attaching a document to avoid dismissal of claims that should be dismissed.

The court found the denial referenced in the complaint to be based on this notice of denial  document, and so considered it on the motion to dismiss.  The notice of denial was issued over two years before suit. Thus, the bad faith claim was independently time barred, and was dismissed on that basis.

[Note: This court ruled two weeks earlier that a bad faith claim could proceed even when the underlying breach of contract was dismissed because of a suit limitations provision, i.e., the bad faith claim could proceed even though no coverage was due. A link summarizing that opinion, and the viability of bad faith claims when no coverage is due, can be found here.]

Finally, the court dismissed the breach of the covenant of good faith and fair dealing as being subsumed within the breach of contract claim.

Date of Decision: May 23, 2019

Mail Quip, Inc. v. Allstate Insurance Co., U. S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 19-223, 2019 U.S. Dist. LEXIS 87923 (E.D. Pa. May 23, 2019) (Kenney, J.)

BAD FAITH CLAIM CAN PROCEED AFTER COVERAGE CLAIM DISMISSED AS UNTIMELY; PRO SE PLEADING ADEQUATE TO AVOID DISMISSAL (Philadelphia Federal)

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As we have discussed on this Blog for many years, case law is divided on whether statutory bad faith can exist if no coverage is due. We addressed this in some detail within this October 2018 post, summarizing a federal case where the court stated that Pennsylvania law allows for statutory bad faith even in the absence of any coverage obligation. In that October 2018 post, we additionally noted the presence of case law that would allow a bad faith claim to proceed where coverage is not due for procedural reasons, e.g., an otherwise covered claim is barred by a contractual limitations period. By contrast, this even more recent post summarizes an opinion, from the same federal court, finding there can be no bad faith if no coverage is due.

Linked here is a detailed article addressing whether Pennsylvania’s bad faith statute only addresses bad faith coverage denials and refusals to defend, and does not provide relief for poor claims handling or the like when these underlying benefits are not due. Under this view, poor claims handling or communications failures are evidence of statutory bad faith in denying benefits, but such conduct is not actionable (cognizable) statutory bad faith in itself.

BAD FAITH CLAIM CAN PROCEED EVEN IF COVERAGE NOT DUE UNDER CONTRACTUAL LIMITATIONS PROVISION

In the present case, arising out of the very same federal court as the aforementioned cases, the insured’s breach of contract claim was dismissed as time-barred by the policy’s suit limitation clause. The court, however, permitted the bad faith action to proceed. Specifically, the court stated: “Because Plaintiff asserts bad faith as to conduct beyond [the carrier’s] denial of coverage, the Court must consider the sufficiency of Plaintiff’s bad faith claim even though Plaintiff’s breach of contract claim is time-barred.”

The court quoted from footnote 3 of the 2017 Dagit case: “It is well established that a claim for bad faith brought against an insurer pursuant to 42 Pa. C.S. § 8371 is a separate and distinct cause of action and is not contingent on the resolution of the underlying contract claim. Thus, if 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.”

[Note: Dagit relies on cases such as Doylestown Electric Supply Co. v. Maryland Casualty Insurance Co., 942 F. Supp. 1018 (E.D. Pa. 1996), March v. Paradise Mutual Insurance Co., 646 A.2d 1254 (Pa. Super. Ct. 1994), and the Third Circuit’s unpublished opinion in Gallatin Fuels, Inc. v. Westchester Fire Ins. Co., 244 F. App’x 424 (3d Cir. 2007). As in the present case, Doylestown Electrical and March involved contractual suit limitations provisions barring coverage, and not lack of coverage under substantive policy provisions. Gallatin Fuels addressed the extraordinary situation where the policy was not in effect at the relevant time, but the court held the bad faith statute still applied because the insurer believed it had a policy in effect and acted poorly while holding that belief. These cases are addressed in the article linked here and above.]

INSURED ADEQUATELY PLEADS BAD FAITH

After finding the bad faith claim could proceed, the court still had to address the complaint’s adequacy. It found the bad faith claim adequately pleaded, stating:

[The insurer] argues that [the insured] does not provide any facts to support his allegation that [the insurer] acted in bad faith by denying him coverage under the insurance policy for the damage sustained to his home by the snowstorm. … To the contrary, [the insured] sets forth a myriad of facts to support his claim. For example, [the insured] alleges he was given contradictory information by [the insurer’s] agents as to the coverage of his policy and how he could collect under his policy and subsequently appeal [the insurer’s] denial of that coverage, which he relied upon to his detriment. … [The insured] also alleges that he was instructed to file multiple claims, which caused him to pay multiple deductibles and which ultimately discredited his claim. … In holding [the insured’s] Second Amended Complaint to a “less stringent standard,” as required of the Court in light of [his] pro se representation, the Court finds that [the insured] sufficiently alleged a claim for bad faith and Defendant’s Motion to Dismiss is denied as to this claim.

Date of Decision: May 10, 2019

Nguyen v. Allstate Insurance Co., U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 18-5019, 2019 U.S. Dist. LEXIS 79822 (E.D. Pa. May 10, 2019) (Kenney, J.)

COURT PERMITS BAD FAITH CLAIM TO PROCEED EVEN THOUGH NO COVERAGE IS DUE BECAUSE OF CONTRACTUAL LIMITATIONS PERIOD (Middle District)

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While the Court granted summary judgment on the breach of contract claimed based on a contractual limitations period, and reiterated its earlier position that the bad faith statute does not allow for actual or consequential damages, the court did allow the statutory bad faith claim to proceed.

The court looked to the Third Circuit’s 2015 Wolfe opinion, finding a statutory bad faith claim viable even if the underlying claim was fully paid, where a delay in making that payment arose from bad faith claims handling. If bad faith delays were not actionable, an insurer could consistently act in bad faith with no consequences, i.e., take an unreasonable position on coverage, knowingly or recklessly disregard its unreasonableness in delaying payment, and then finally relent in paying to obviate itself from the consequences of the bad faith delays in paying a valid claim.

Further, Wolfe observes that courts will deem nominal damages to exist if there is a breach of contract, which can then form the basis for statutory remedies under section 8371.

Under both of these theories, an injured plaintiff can still pursue statutory interest, punitive damages, and attorneys’ fees under the bad faith statute, even if no compensatory damages are due.

[Note 1: In this case, unlike the Wolfe scenario, there was no breach of contract and no coverage due. Thus, there is a genuine issue as to whether the Third Circuit’s reasoning in Wolfe applies, as it is premised on the principles that (1) coverage was due and there was a bad faith delay in payment, and that (2) there was a breach of contract for which nominal damages are due. Neither circumstance exists in this case. That being said, there has been at least some older case law allowing a bad faith claim to proceed where the contract claim is denied on procedural grounds like the statute of limitations, rather than on the substantive policy language, an argument that is not put forward in this opinion.]

[Note 2: Although the court observed that compensatory and consequential damages are not available under the bad faith statute, this opinion implicitly recognizes such damages can be available under other, common law, theories. These are not detailed, but the Supreme Court’s Birth Center case is cited in Pratts, which allows compensatory or consequential damages under breach of contract bad faith theories in certain circumstances.]

Date of Decision: May 2, 2019

Pratts v. State Farm Fire & Casualty Co., U. S. District Court Middle District of Pennsylvania NO. 3:16-CV-2385, 2019 U.S. Dist. LEXIS 74141 (M.D. Pa. May 2, 2019) (Caputo, J.)

The court’s earlier ruling in Pratts can be found here.

DECEMBER 2018 BAD FAITH CASES: NO BAD FAITH WHERE NO COVERAGE DUE, CLAIMS HANDLING WAS REASONABLE, AND BAD FAITH DISCOVERY WAS NOT PURSUED (Middle District)

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The insurer denied disability benefits because the source of plaintiff’s amputation was diabetes, rather than injury. The insured brought breach of contract and bad faith claims. The court allowed the contract claim to proceed, but granted summary judgment on the bad faith claim.

The court found the insurer “clearly had a reasonable basis” to deny the claim. The insurer had investigated the claim, and this investigation clearly showed that diabetes contributed to the amputation, which provides a reasonable basis to refuse paying the claim. The court did address the argument that bad faith could go beyond the proper denial of a benefit, if there was an inadequate or biased investigation. In this matter, however, the record showed no such inadequacy or bias during the investigation.

It was also significant to the court that the insured never deposed any of the insured’s employees, never requested a copy of the insurer’s claims handling guidelines or standards, and did not seek any admissions concerning how the claim was handled. In short, the insured did not pursue any evidence to establish a bad faith claim.

Date of Decision: November 27, 2018

Long v. Transamerica Life Ins. Co., U.S. District Court Middle District of Pennsylvania CIVIL NO.: 4:16-CV-00139, 2018 U.S. Dist. LEXIS 200451, 2018 WL 6178944 (M.D. Pa. Nov. 27, 2018) (Schwab, M.J.)

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.)

SEPTEMBER 2018 BAD FAITH CASES: COURT DISMISSES AMENDED COMPLAINT WITH PREJUDICE, AFTER GIVING INSURED ANOTHER OPPORTUNITY TO PLEAD AN ACTIONABLE BAD FAITH CLAIM (Middle District)

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In some contrast with today’s earlier post, this district court reiterated its prior legal restatement of bad faith law, that in addition to coverage denial being a basis for bad faith, “a plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a lack of a good faith investigation into facts, and failure to communicate with the claimant.” Even under that standard, the case was dismissed.

The court had previously dismissed the bad faith claims, with leave to amend. The amended complaint only added conclusory allegations. Thus, relying on the same principles set forth in its first opinion, the Court now dismissed the bad faith claim with prejudice. The court stated:

“The allegations of bad faith are virtually identical to those that I previously found insufficient. Again, Plaintiffs do not plead any facts to support a finding of bad faith. Instead, they rely solely on “bare-bones” conclusory allegations which are not sufficient to state a bad faith claim. … Moreover, insofar as the claim is predicated on Nationwide’s purported bad faith in soliciting the purchase of the insurance policy at issue, those allegations do not state a claim to relief under § 8371. … Since Plaintiffs fail to plead a plausible basis to support a finding of bad faith, that claim will be dismissed with prejudice.”

Date of Decision: September 4, 2018

Frantz v. Nationwide Insurance Company, U. S. District Court Middle District of Pennsylvania NO. 3:18-CV-0509, 2018 U.S. Dist. LEXIS 149898 (M.D. Pa. Sept. 4, 2018) (Caputo, J.)

BACK TO BASICS: SO WHAT IS BAD FAITH?

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We’ve recently posted summaries of five federal district court bad faith opinions, issued between May 15 and May 23, 2018. These opinions all include some discussion of what kind of conduct could constitute the basis for statutory bad faith under Pennsylvania law.

There is no question that denying benefits due may form the basis of a bad faith claim. Similarly, the strong consensus is that a delay in paying benefits due may lead to actionable bad faith claims. The interesting question is whether bad faith can exist when no benefit is due.

Take this example. The insured sues for breach of contract and bad faith. The bad faith claim is based on two theories: (1) the insurer unreasonably denied coverage based on a misinterpreted policy exclusion, and (2) unreasonable claim handling. The court finds the exclusion applies and dismisses the contract claim, as well as the bad faith claim based on benefit denial. Can the bad faith claim still proceed solely on the basis of poor claim handling, absent any indemnification or defense obligation? Or, in those circumstances, should any claim handling misconduct solely be subject to review by the Insurance Commissioner under the Unfair Insurance Practices Act or Unfair Claims Settlement Practices regulations?

We have posted on this subject in the past, but case law indicates that some courts will find actionable statutory bad faith for poor claim handling even in the absence of any benefit being due.

These five very recent cases, issued within 8 days of each other, appear to show that the range of bad faith standards currently used by courts includes viable bad faith actions where no benefit is due, along with claims for denial or delay in providing benefits. Whether or not these cases be reconciled into a single theory will have to be clarified by Pennsylvania’s Supreme Court, though it has been argued the Supreme Court already did so in the Toy case.

Here are links to our summaries of these five cases.

In this case, a Middle District Judge found a section 8371 claim handling bad faith case viable, even though no coverage was due.

In this case, an Eastern District Judge found no bad faith because no benefit had been denied.

In this case, another Middle District Judge found there could be no bad faith where there was no coverage due.

In these two opinions, issued on consecutive days by another Eastern District Judge, the court set out criteria for actionable statutory bad faith based on either (1) benefit denial (2) poor claims handling or (3) unreasonable delay.

 

 

MAY 2018 BAD FAITH CASES: COURT ALLOWS FOR POSSIBILITY OF SECTION 8371 BAD FAITH CLAIM FOR CLAIMS HANDLING, EVEN THOUGH NO COVERAGE IS DUE (Middle District)

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In this action, the Court found that there was no insurance coverage due for a variety of reasons, and dismissed an insured’s breach of contract claim. However, the Court still gave the insureds leave to file an amended complaint asserting common law and statutory bad faith claims.

The Court cited the general standard that a bad faith plaintiff has (1) to show that there was no reasonable basis to deny coverage and (2) the insurer knew or recklessly disregarded this fact. However, the Court then set forth a second standard: “A plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a ‘lack of a good faith investigation into facts, and failure to communicate with the claimant.” It appears to be this second standard, treated here as an independent basis for a section 8371 claim even if no coverage is actually due under the policy, on which an amendment was allowed. The Court did recognize that section 8371 does no cover alleged bad faith in soliciting a policy and dismissed that claim outright.

As to whether a bad faith claim can exist when no coverage is due under a policy, and there is no breach of any duty to defend or indemnify, see this article previously posted on our blog.

Date of Decision: May 15, 2018

Frantz v. Nationwide Insurance Co., U.S. District Court Middle District of Pennsylvania No. NO. 3:18-CV-0509, 2018 U.S. Dist. LEXIS 81817 (M.D. Pa. May 15, 2018) (Caputo, J.)

The plaintiff did file an amended complaint, including a new bad faith claim.  This claim was subsequently dismissed with prejudice on September 4, 2018.