Archive for the 'PA – Reverse Bad Faith' Category

COURT UPHOLDS DISMISSAL OF DRAGONETTI ACTION AGAINST INSURED (Superior Court of Pennsylvania) (Non-Precedential)

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

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

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

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

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

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

Date of Decision: February 28, 2020

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

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

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

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

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

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

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

Date of Decision: February 14, 2020

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

 

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

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

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

The Insurer Adequately Pleaded Fraud as an Affirmative Defense

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

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

The Court Refuses to Sever and Stay the Bad Faith Claims

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

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

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

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

Date of Decision: February 6, 2020

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

INSURED SANCTIONED UNDER 28 U.S.C. § 1927 FOR “ACTING IN BAD FAITH BY PERPETUATING A NONSENSICAL LAWSUIT AGAINST THE INSURER AT EVERY TURN”

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The court earlier found the insured, an attorney, prosecuted her suit against the carrier in bad faith. This case addressed sanctions against the insured and her one-time co-counsel under 28 U.S.C. § 1927, after finding Rule 11 inapplicable.

The Court had identified fifty-two filings evincing “an unreasonable and vexatious multiplication of the proceedings.” It ordered the insured and co-counsel “to pay the carrier’s reasonable excess costs, expenses and attorneys’ fees associated with those filings….”

The court found 217.3 hours of the insurer’s legal fees reasonable, totaling $39,114. The court, however, rejected the argument expert fees could be awarded under section 1927. It left open for a later date a request for court costs.

The court then looked at whether it should reduce the sanctions, after balancing the equities between the parties. The court found no basis to reduce the fee award, stating that the insured and her co-counsel “acted in bad faith by perpetuating a nonsensical lawsuit at every turn.” By contrast, the insurer handled itself with “professionalism”.

The court then looked at the respective equities as between the insured and her co-counsel in dividing their payment obligations. The court described the insured as “the ring master of this circus.” The court found: “She devised this suit ‘to try to con [the insurer] into paying for damage most likely caused by [her] own neglect of her properties.’”Moreover, the court found the insured’s “bad-faith conduct was borne of malice.”

On the other hand, the court observed: “To be sure, [co-counsel] willingly enabled [the insured’s] worst instincts, and he is neither as naïve nor as guiltless as he pretends to be.” However, counsel lacked the insured’s “malice, and his misconduct pales in comparison to [the insured’s].” The court also considered that co-counsel already had been disbarred for unrelated conduct, blunting the deterrent effect of present sanctions. By contrast, the court stated, the insured “will exploit her law license and continue abusing the civil justice system unless and until she is discouraged from doing so.”

For all of the court’s stated reasons, it required the insured to pay $35,000 and co-counsel to pay $4,114.

A motion to seal the insurer’s time record’s was denied without prejudice, as the insurer neither specified what documents should be placed under seal, nor provided the good cause basis for sealing any documents.

Date of Decision: December 17, 2019

Doherty v. Allstate Indem. Co., U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 15-05165, 2019 U.S. Dist. LEXIS 216253 (E.D. Pa. Dec. 17, 2019) (Pappert, J.)

Earlier Blog summaries concerning this case can be here (2016), and here (2017).

 

BAD FAITH NOT POSSIBLE WHERE THERE IS A REASONABLE BASIS TO DENY THE CLAIM (Philadelphia Federal)

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In this complicated coverage case, involving damages to a condominium unit through the actions of the insured’s own tenant, the court found no coverage due under the policy language in light of the circumstances. Further, the court ruled that the insured’s purchase of additional coverage for renters, even if otherwise applicable, was invalid because of concealment and mischaracterization in applying for that additional coverage.

Having determined no coverage was due, the court granted summary judgment on the bad faith claim. The court emphasized that a reasonable basis for denying coverage is all that is needed to overcome a bad faith claim. In this case, the carrier had a reasonable basis to deny the insured’s claims, and the “pertinent claims [were] not covered by the Policy.”

Date of Decision: June 11, 2019

Beautyman v. General Insurance Company of America, U. S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 17-5804, 2019 U.S. Dist. LEXIS 97526 (E.D. Pa. June 11, 2019) (Kelly, J.)

 

OCTOBER 2018 BAD FAITH CASES: POLICY CAN ONLY BE RESCINDED OR VOIDED ON BASIS OF FRAUDULENT OMISSION BY CLEAR AND CONVINCING EVIDENCE OF (1) INTENT AND (2) PROOF THAT DISCLOSURE WOULD HAVE MADE A MATERIAL DIFFERENCE IN ISSUING POLICY (Western District)

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The insurer sought a declaration that it had no duties under an attorney professional liability policy on the basis of an outside business exclusion, and further sought to rescind and avoid the policy. While successful on the coverage issue, the court would not grant summary judgment to void or rescind the policy, as issues of disputed fact remained.

“There are two distinct but similar grounds for rescission and voidance of an insurance policy under Pennsylvania law. First, an insurance policy is void ab initio for misrepresentation when the insurer can establish that (1) the representation was false, (2) the insured knew it to be false when made or acted in bad faith, and (3) the representation was material to the risk being insured.”

“Second, rescission is also available where an insurer can show clear and convincing evidence that the insured knowingly failed to disclose information which was material to the risk to be insured. … To rescind a policy on this ground, the insurer must prove a fraudulent intent to deliberately deceive.”

The insurer must make its case by clear and convincing evidence, which requires presenting evidence “so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” The court observed these cases are typically fact intensive.

“[T]he failure to furnish all details asked for [on an insurance application], where it appears there is no intention of concealing the truth, does not work a forfeiture, and a forfeiture does not follow where there has been no deliberate intent to deceive, and the known falsity of the answer is not affirmatively shown.” … [F]raud . . is never proclaimed from the housetops nor is it done otherwise than surreptitiously with every effort to conceal the truth of what is being done. So fraud can rarely if ever be shown by direct proof. It must necessarily be largely inferred from the surrounding circumstances.”

This was a case of alleged omission of material facts in the application. On the facts of record, the court found a material dispute over whether the insured knowingly and intentionally misled the carrier in applying for insurance.

The court also found a dispute over whether the nondisclosure was material.

It stated that a “misrepresentation on an insurance application is material if the ‘information would influence the decision of an issuer in the issuance of a policy, assessing the nature of the risk, or setting premium rates.’” For purposes of summary judgment, the record did not clearly establish that the omission would have influenced its decision to issue the policy, its risk assessment, or its premium rates.

The court stated although the insurer provided an affidavit that it “may have assessed the risk differently, it appears [the insurer] would have issued a substantially similar policy” even with the disclosure; and there was no allegation disclosure would have resulted in higher premiums.

Date of Decision: October 1, 2018

Westport Insurance Corp. v. Hippo Fleming & Pertile Law Offices, U.S. District Court Western District of Pennsylvania CIVIL ACTION NO. 3:15-cv-251, 2018 U.S. Dist. LEXIS 168756 (W.D. Pa. Oct. 1, 2018) (Gibson, J.)

In prior opinions, the court had refused to abstain from hearing the insurer’s claims in federal court, and had issued a discovery decision on underwriting materials and personnel files.  

 

OCTOBER 2018 BAD FAITH CASES: INSURERS INVESTIGATING EVIDENCE OF FRAUDULENT CLAIMS PRACTICES HAD REASONABLE BASIS TO DENY MEDICAL PROVIDERS’ CLAIMS (Philadelphia Federal)

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Medical providers brought bad faith claims under Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), alleging they were among a targeted set of medical providers whose claims for services were pre-ordained for denial. As set forth in yesterday’s post, the same insurers had brought claims against these same providers for insurance fraud.

The providers argued the insurers violated the “MVFRL by unreasonably and in bad faith denying all Defendants’ treatment claims submitted after the start of Plaintiffs’ … fraud action, without ‘any consideration of the actual treatment provided or injuries suffered by the patients.’”

“Under §1797 of the MVFRL, treble damages are available if the claiming party can prove ‘1) they submitted bills for reasonable and necessary treatment, 2) Plaintiffs did not challenge the bills before a Peer Review Organization (“PRO”), and 3) Plaintiffs’ conduct was ‘wanton’. … ‘Wanton and bad faith may be equated, because intentionally doing an unreasonable act (acting wantonly) is the equivalent of knowingly ignoring a lack of a reasonable belief for a denial (acting in bad faith).’”

The court ruled that the providers’ arguments that all of their claims were funneled to one adjuster was insufficient to show wanton or bad faith conduct. The court further found that the insurers had a reasonable basis to deny the claims; and that the conclusory allegation the insurance fraud assertions were a ruse to fend off legitimate claims was insufficient to make out a case for bad faith.

Rather, the court found the insurers “met their burden in showing there is no genuine dispute that they stopped payment to Defendants for post-litigation bills out of a ‘bona fide belief that Defendants’ bills were fraudulent,’ after ‘observing non-credible patterns in Defendants’ records’ indicating to Plaintiffs that the records had been falsified in order to induce payment.” Summary judgment was granted on this issue, as “[t]he record establishes beyond genuine dispute that Plaintiffs had a basis for denying Defendants’ claims submitted after the commencement of this litigation, when Plaintiffs were on alert that Defendants’ claims could be fraudulent.”

Date of Decision: September 28, 2018

State Farm Mutual Automobile Insurance Co. v. Stavropolskiy, U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NOS. 15-05929 and NO. 16-01374, 2018 U.S. Dist. LEXIS 167425, 2018 WL 4680241 (E.D. Pa. Sept. 28, 2018) (Joyner, J.)

OCTOBER 2018 BAD FAITH CASES: INSURANCE FRAUD CLAIMS NOT TIME BARRED SIMPLY BECAUSE INSURER HAD BEGUN INVESTIGATION OVER TWO YEARS BEFORE FILING SUIT, WHERE ALLEGED FRAUD WAS COMPLEX AND CONCEALED (Philadelphia Federal)

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The insurer brought claims under Pennsylvania’s Insurance Fraud Act, 18 Pa.C.S. § 4117, and common law fraud, among others, seeking to recover allegedly fraudulent payments to medical providers.

The medical providers argued on summary judgment that the statutory fraud claims were time barred. They made extensive arguments concerning a variety of fact patterns to support its claim that the insurer was on notice of the fraud prior to the statute of limitations running, and there should be no tolling. The court analyzed each set of facts closely, but concluded that even though the insurer had been investigating a potential fraud, there was an argument that it did not know there was an actual fraud, and thus tolling might be permitted.

Thus, the court found that “whether the two-year statute of limitations period for Plaintiffs’ statutory insurance fraud claim should be tolled is genuinely disputed. Here, a reasonable factfinder could find that despite Plaintiffs’ reasonable diligence in discovering their injury, they did not discover the alleged fraud until … after reviewing hundreds of Defendants’ records with the assistance of an expert medical reviewer and counsel.” Ordinarily, factual issues about notice and the plaintiff’s diligence are jury questions, and such genuine issues of material fact as to when the statute of limitations runs preclude summary judgment.

The court observed that tolling could be proper if the “Plaintiffs were unable to discover the alleged fraud as a result of the scheme’s complexity and Defendants’ efforts to conceal it.”

On the common law fraud claim, the defendants argued for similar reasons that the insurer could not have justifiably relied on the insureds’ misrepresentations because of its alleged knowledge of the insureds’ fraudulent representations. Again, this made for disputed issues of fact that could not be resolved on summary judgment.

Date of Decision: September 28, 2018

State Farm Mutual Automobile Insurance Co. v. Stavropolskiy, U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NOS. 15-05929 and NO. 16-01374, 2018 U.S. Dist. LEXIS 167425, 2018 WL 4680241 (E.D. Pa. Sept. 28, 2018) (Joyner, J.)

 

SEPTEMBER 2018 BAD FAITH CASES: INSURED’S FRAUD ON SMALL FRACTION OF TOTAL CLAIM RESULTS IN FORFEITURE OF ALL SUMS PAID, UNDER BOTH PENNSYLVANIA COMMON LAW AND NEW JERSEY STATUTORY LAW (Philadelphia Federal)

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The insurer sought damages and rescission under Pennsylvania common law and New Jersey’s Insurance Fraud Prevention Act. There was a fire at the insured’s New Jersey shore home, and allegedly subsequent theft of personal property from the home. The insured made a claim for lost personal property and submitted photographs of the lost items.

After investigation, the insurer concluded that the photographs were taken after the fire loss at issue, at a different home owned by the insured in Philadelphia. Thus, contrary to the insured’s sworn statement, these items were not lost or stolen from her shore home.

The policy provided there was no coverage “if, whether before or after a loss, an ‘insured’ has: 1. intentionally concealed or misrepresented any material fact or circumstance; 2. engaged in fraudulent conduct; or 3. made false statements relating to this insurance.”

The insurer denied the claims for the personal property in the photos on the basis that the insured “intentionally concealed and/or misrepresented material facts concerning [her] claim for personal property, and made false statements regarding the items that were allegedly lost due to the fire or theft.”

The insured brought breach of contract and bad faith claims, which were dismissed for lack of prosecution. The insurer’s fraud claims were raised as counterclaims. The insured did not file any opposition, and by the time the insurer moved for summary judgment, the insured was pro se.

On the Pennsylvania common law fraud claims, the court observed: “It follows, as the night follows the day, that [the insured] has suffered no personal property loss for the items photographed since she still had possession of those undamaged items after the fire and alleged theft.”

The court not only granted relief on the personal property damage claims for the allegedly lost items, but as to the entire loss, including the sum paid for the value of the home. The court stated:

“The record is clear that [the insurer] made payments … in reliance on what it believed at the time to be her truthful representations about her losses as a result of the fire and alleged theft. [The insurer paid] $351,767.17 in dwelling coverage and $10,000 in personal property coverage. As it turned out, there is no genuine dispute about the fact that [the insured] made materially false representations … in an effort to mislead it into paying her for personal property which she did not lose. … Under the terms of the insurance policy, no coverage is provided if the insured either before or after the loss intentionally concealed or misrepresented any material fact, engaged in fraudulent conduct, or made a false statement relating to their insurance. Clearly, [the insured] breached these provisions of the policy.”

Accordingly, we will enter summary judgment … against [the insured] on the counterclaim of common law fraud for $361,767.16, the amount …paid to her.”

The court also granted equitable rescission under Pennsylvania common law fraud principles, and granted relief under New Jersey’s Insurance Fraud Prevention Act. The court noted that the New Jersey statute includes recovery of reasonable investigation expenses, costs of suit and attorney’s fees. However, the court did not appear to award damages for investigation, costs or legal fees.

The Act itself provides for relief against an insured who “(1) Presents or causes to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy . . . knowing that the statement contains any false or misleading information concerning any fact or thing material to the claim; or . . . (3) Conceals or knowingly fails to disclose the occurrence of an event which affects any person’s initial or continued right or entitlement to (a) any insurance benefit or payment or (b) the amount of any benefit or payment to which the person is entitled[.] N.J.S.A. § 17:33A-4(a).(1, 3).”

The same facts supporting the common law fraud finding supported this statutory relief.

Finally, the court also awarded over $45,000 in prejudgment interest on the Pennsylvania claims.

Date of Decision: August 21, 2018

Pallante v. Certain Underwriters at Lloyd’s, London, U. S. District Court Eastern District of Pennsylvania CIVIL ACTION NO. 17-1142, 2018 U.S. Dist. LEXIS 141427 (E.D. Pa. Aug. 21, 2018) (Bartle, J.)

AUGUST 2018 BAD FAITH CASES: POLICY VOIDED BY JURY ON BASIS OF FRAUDULENT APPLICATION, AND DAMAGES AWARDED TO INSURER (Pennsylvania Superior Court) (Non-precendential)

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The insured sued based on a denial of benefits for a vandalism loss. During the course of pre-suit examinations under oath, the insurer concluded that the policy was obtained by fraud. Thus, in addition to denying the claim, the insurer counterclaimed for common law fraud, breach of contract, statutory insurance fraud and reverse bad faith, based on a false insurance application. The jury ruled for the insurer and voided the policy.

The court awarded damages of over $285,000 to the insurer for claims paid and claim expenses incurred under the now voided policy, subject to a reduction for the return of premiums paid. Post-trial motions were denied, and the verdict was affirmed on appeal.

In upholding the verdict, the Superior Court recognized that fraud required the highest standard of proof known in a civil setting. The jury did not err, however, in finding the standard met. The appellate court found “the record is replete with evidence that [the insured], through an agent, knowingly provided … false, misleading and incomplete information in his insurance application statement.”

The court stated the insured had misrepresented his loss history, failed to disclose a foreclosure complaint, failed to disclose tax judgments against him and failed to reveal “he incurred a federal conviction in the Eastern District of Pennsylvania for filing false corporate tax returns.”

The court also rejected arguments concerning the trial court’s evidentiary rulings. There was no error in allowing evidence relating to a prior conviction for underpaying corporate taxes, and previous tax liens. Nor was there error in allowing testimony from an underwriter to describe underwriting practices during the relevant time period.

Date of Decision: August 15, 2018

Smith v. United States Liability Insurance Company, Superior Court of Pennsylvania, No. 1287 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 2968 (Pa. Super. Ct. Aug. 15, 2018) (Lazarus, Panella, Strassburger, JJ.) (Not precendential)