Monthly Archive for May, 2011

MAY 2011 BAD FAITH CASES
PENNSYLVANIA SUPERIOR COURT REVERSES ORDER COMPELLING INSURED TO PRODUCE ATTORNEY FILES UNDER THE WORK-PRODUCT DOCTRINE (Pennsylvania Superior Court)

In Rhodes v. USAA Casualty Insurance Company, the insured was riding his brother’s motorcycle when another vehicle collided with him, causing serious injuries and leaving him in the hospital for days.  He recovered the $50,000 liability limit from the tortfeasor’s insurer, but his injuries caused damages totaling an amount greater than $50,000.  He then pursued an underinsured motorist claim with his insurer, and he provided medical records and other documents that led him to value his claim at $235,000.

The insurer’s claims examiner offered the insured only $5,000 after questioning the causes of one of the insured’s major injuries, and the insured was not satisfied.  A regional manager for the insurer took over the case, and after his evaluation, he realized that the insured’s claim was worth more than the initial $5,000 offer.  The insurer made a series of additional offers, including a final “bottom line” offer of $100,000, but the insured rejected all offers and instead proposed a settlement for $175,000.  The insurer eventually accepted the $175,000 offer after the threat of arbitration was imminent.

The insured filed a Complaint after the settlement, alleging that the insurer acted in bad faith throughout the process.  The trial court granted the insurer’s motion for summary judgment, but the Superior Court reversed that decision after determining that the insured raised a question of material fact to be resolved by the fact-finder at trial.

In the midst of those decisions, the insurer had filed a motion to compel the insured to respond to its interrogatories and request for production of documents.  The trial court granted this motion, and the insured appealed, which was before the court in this opinion.  The insured raised two issues on appeal:  1) whether the trial court committed an error of law when it directed the insureds to produce the work product of their attorneys, who were non-parties over whom they have no control, and 2) whether the trial court abused its discretion by ordering the insureds to produce their attorney’s entire work product, without identifying, performing a relevancy analysis, or examining any protected records.

The court determined that the first issue was outside the scope of its review, but it agreed with the insured that the motion violated the work product doctrine.  The insurer alleged that certain bad faith actions of the insured contributed to the insurer’s actions, but the court noted that “the outcome of a bad faith action is dependent on the conduct of the insurer, not its insured.”  The insurer could not find any case in Pennsylvania where the court ordered the insured’s attorney’s files to be discovered, and the court refused to make this the first case to do so.  It therefore reversed the trial court’s order and did not compel the disclosure of the insured’s attorney’s files to the insurer.

Date of Decision:  May 17, 2011

Rhodes v. USAA Cas. Ins. Co., No. 1861 WDA 2009, Superior Court of Pennsylvania, 2011 PA Super 105, 21 A.3d 1253, 2011 Pa. Super. LEXIS 612 (May 17, 2011) (Elliot, J.)

 

MAY 2011 BAD FAITH CASES
SUMMARY JUDGMENT TO INSURER, HOLDING THAT ALL DELAYS IN SETTEMENT OFFERS AND OTHER MATTERS ARE REASONABLE AND IT’S OVERALLHANDLING OF THE CLAIM IS ACCEPTABLE (Philadelphia Federal)

In Thomer v. Allstate Insurance Company, the insured was in a motor vehicle accident in April 2002, and all parties agreed that it was caused by the driver of another vehicle.  She suffered many injuries in the upper half of her body, but the extent and nature of injuries was in dispute.  The insured alleged that her injuries were permanent and that because of them, she was unable to earn an income.

Immediately after the accident, the insured did not receive medical treatment, as she instead waited two days to see a healthcare provider for her injuries.  In the three-and-a-half years after the accident, she visited various medical professionals and underwent numerous hospital visits.  About one year after the accident, the insurer had a Peer Review Organization (“PRO”) evaluate the case, and the PRO determined that maximum medical improvement had been achieved.  The insurer then stopped paying the bills submitted by the insured’s medical providers because it questioned the reasonableness and necessity of her treatments.  The insured filed suit against the insurer in 2004 based on this denial, and the parties eventually settled, with the insurer agreeing to pay the insured until she exhausted the $100,000 medical loss limit under the policy.

In July 2005, the insured submitted a claim for Underinsured Motorist (UIM) benefits, and she demanded the full $100,000 available under this section of the policy.  The insurer made a series of offers, the largest being for $85,000, but the insured refused each offer.  With the imminent threat of litigation, the insurer finally offered and paid the full $100,000 in UIM benefits in December 2008, but the insured filed the instant suit for bad faith in January 2010.

The insured alleged that the insurer acted in bad faith during the overall handling of her UIM claim by unreasonably delaying the resolution of her claim and by its overall handling of the claim.  She claimed that the insurer 1) unreasonably delayed an independent medical exam and statement under oath, 2) failed to include her wage loss and economic damage report, 3) failed to consider her treating physicians’ diagnoses, 4) unreasonably extended low offers for many years, and 5) wrongfully requested that she sign a release relating to her UIM settlement before actually settling for the policy limits.

Concerning the delays, the court determined that the insured and her counsel were responsible for some of the delays, and other delays were caused simply by the need for further investigation, so the insurer did not prove by clear and convincing evidence that there was no reasonable basis for the delay.

The court also found that the insurer had a reasonable basis for not including the wage loss and economic damage report in its evaluation because of conflicting medical records and it had a reasonable basis to question the diagnoses of certain treating physicians.  Additionally, the insurer extending higher offers was reasonable, as it could have done so because of the threat of additional litigation or upon learning of new evidence.  Finally, the insurer had a reasonable basis for requesting the insured to sign a release of the UIM claim before settling for the policy limits.  The court therefore held that the insurer did not demonstrate by clear and convincing evidence that the insurer acted in bad faith, and it therefore granted summary judgment in favor of the insurer.

Date of Decision:  May 9, 2011

Thomer v. Allstate Ins. Co., Civil Action No. 10-CV-375, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 49511,  790 F. Supp. 2d 360 (E. D. Pa. May 9, 2011) (Kelly, J.)

MAY 2011 BAD FAITH CASES
COURT GRANTS SUMMARY JUDGMENT ON BAD FAITH AND BREACH OF CONTRACT CLAIMS AFTER INSURED FAILS TO ASSERT DISPUTE OF MATERIAL FACT (Philadelphia Federal)

In D’Orazio v. Hartford Insurance Company, the insured was injured in a motor vehicle accident in 2007.  She had a policy with the insurer, under which the insurer would cover personal injury losses if incurred within two years of the date of the injury.  She applied for benefits approximately one month after the accident.

On her application, the insured listed the injuries she suffered.  She stated that she was unsure of the amount of medical bills generated so far and did not know how many further costs she would endure.  She also stated that she did not suffer any wage losses because she was looking for a new job at the time of the accident.  For almost the first nine months after the accident, the insurer covered all of the insured’s medical bills, but after an independent medical examination was performed at the request of the insurer, the insurer informed the insured that it would discontinue paying for medical benefits.

Plaintiff had started working as an architect in January 2008, and she alleged that she suffered wage losses for a month due to injuries resulting from the accident.  The insurer requested a disability note from her physician, but the insured never provided one, so the insurer never paid any wage loss claim.

The insured filed a Complaint in December 2008, which contained counts for breach of contract and bad faith.  The court sided with the insurer on all counts.  Concerning the breach of contract claim, the court stated that the insured provided no evidence that the insurer failed to pay any medical bills in the past that it was supposed to cover, and she did not demonstrate a dispute of material fact over coverage for any future medical treatment, so it granted the insurer’s Motion for Summary Judgment for that count.

With respect to the bad faith claim, the court noted that “the finding of a reasonable justification for [an insurer]’s action in terminating [an insured’s] benefits precludes, as a matter of law, a finding of bad faith.”  Here, the court ruled that the insurer did not breach the contract concerning past medical expenses, wage loss, or any other area, so the court had to also grant the insurer’s Motion for Summary Judgment on the bad faith claim.

Date of Decision:  May 5, 2011

D’Orazio v. Hartford Ins. Co., Civil Action No. 09-CV-0403, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 49418, (May 5, 2011) (Joyner, J.)

MAY 2011 BAD FAITH CASES
COURT REMANDS CASE TO STATE COURT WHEN DIVERSITY JURISDICTION IS DESTROYED THROUGH JOINDER OF INDIVIDUAL CLAIMS REP FOUND NOT FRAUDULENT (Western District)

In Ozanne v. State Farm Mutual Automobile Insurance Company, the insured was injured in a motor vehicle collision with another car, and the driver of that car was responsible for the accident.  The insured recovered the full $15,000 available from the other driver’s insurer under her third-party liability claims, but she felt that amount was not adequate to compensate her for the injuries she suffered in the collision.  She therefore pursued underinsured motorist (“UIM”) coverage from her insurer for the remainder of her claims.

The insured’s policy with the insurer provided for up to $250,000 of UIM coverage.  After evaluating the claim, the insurer made an offer of $80,000.  The insured rejected this, and the insurer increased its offer to $100,000 but said that if the insured rejected that offer, its final offer would revert back to $80,000.  The insured again rejected the offer, and the insurer subsequently paid her $80,000 in UIM benefits.

The insured filed a Complaint against for the insurer in state court asking for more UIM benefits, and a jury awarded her the full $250,000 available under the policy.  The insured was not satisfied, as she then filed a Complaint in state court containing one count against the insurer for bad faith and one count against an individual representative of the insurer for violating the Pennsylvania Unfair Trade Practices Act and Consumer Protection Law (“UTPCPL”).  The insurer removed this action to federal court, and the insured then filed a motion to remand the case to state court, which was before the court in this opinion.

The insurer alleged that the insured fraudulently joined the individual defendant, a resident of Pennsylvania, with the sole intention of destroying diversity jurisdiction.

In its analysis, the court noted that if the allegation against the individual was simply that he failed to pay the insured, then it would not be proper to add him as a defendant.  In this case, however, the insured alleged affirmative conduct on the part of the representative that made the addition of him as a defendant valid.  For example, the insured alleged that the representative chose the treat his UIM claim as a “test case,” consideration of which overcame the proper evaluation of the claim.  He also alleged that the representative “failed to perform a reasonable and prompt investigation” and had falsely implied that the insured had committed arson. 

Because adding the representative was a valid action by the insured, the court determined that the count against that representative in the Complaint was not wholly insubstantial and frivolous.  The claim was not dismissed, and diversity jurisdiction was therefore destroyed.  The court granted the insured’s motion to remand and sent the case back to state court.

Date of Decision:  May 5, 2011

Ozanne v. State Farm Mut. Auto. Ins. Co., 2:11-cv-00327-TFM, United States District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 48611, (May 5, 2011) (McVerry, J.)

MAY 2011 BAD FAITH CASES
SUMMARY JUDGMENT ON BAD FAITH CLAIM GRANTED BECAUSE INSURED FAILS TO DEMONSTRATE THAT INSURER LACKED A REASONABLE BASIS FOR DENYING CLAIM (Philadelphia Federal)

In El Bor Corporation v. Fireman’s Fund Insurance Company, the insured was a corporation that owned a gym.  The insurer covered the insured for up to $1,000,000 for risks of physical loss to the facility, with a few excluded causes of loss, including poor design, construction, or maintenance of the property.

In early 2009, the man who operated the gym noticed staining on the ceiling, but he did not initially report his findings to the insurer.  The ceiling started to leak shortly thereafter.  The insured eventually did contact the insurer in April 2009 after talking with a pubic adjuster, which notified the insured of its potential claims.  The public adjuster believed that the accumulation of snow and ice on the roof caused the damage.  On behalf of the insured, it then provided an estimate of over $125,000 of damages to the insurer, including the cost of replacing the roof.

The insurer hired an independent adjuster to inspect the property, and he concluded that the building had been “poorly constructed and inadequately maintained,” and that the accumulation of snow and ice was not enough to cause the observed damage.  Based on its findings, the insurer denied the insured’s claim but did agree to pay almost $10,000 to repair internal water damages.  After receiving this news, the insured filed a Complaint, containing counts for breach of contract and bad faith.  The insurer then filed a motion for summary judgment.

Concerning the breach of contract claim, the insurer argued that the insured failed to comply with portions of its policy regarding notice of the claim, protecting its property, permitting inspection of its property, and cooperating during the adjustment.  The court dismissed each of these arguments, however, and the breach of contract claim survived summary judgment.

The insured had also alleged that the insurer acted in bad faith by 1) ignoring its claim for months, 2) waiting several months to deny the claim after receiving the independent adjuster’s report, and 3) relying on policy exclusions that did not apply to this case.  The court first determined that there was no evidence that any delay was knowing or reckless.  It also decided that the insurer did not unreasonably rely on policy exclusions, as the independent adjuster determined that the roof was poorly constructed and maintained, which would fall under an exception if true.  Because the insured did not sufficiently demonstrate evidence that a jury could find that the insurer lacked a reasonable basis for denying benefits under the policy and knew or recklessly disregarded that basis, the court granted the insurer’s motion for summary judgment on the bad faith count.

Date of Decision:  May 9, 2011

El Bor Corp. v. Fireman’s Fund Ins. Co., Civil Action No. 09-5005, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 49579, (May 9, 2011) (Robreno, J.)

MAY 2011 BAD FAITH CASES
WESTERN DISTRICT REMANDS CASE TO STATE COURT AFTER DETERMINING THAT THE AMOUNT IN CONTROVERSY DOES NOT SATISFY DIVERSITY JURISDICTION REQUIREMENTS (Western District)

In Croft v. Nationwide Insurance Company of America, the insured had filed a Complaint including claims for breach of contract and bad faith.  The insurer removed the case to federal court on diversity jurisdiction, but the insured only alleged damages in the amount of $25,000, while the required amount to remove a case to federal court is $75,000.  The court issued a Rule to Show Cause on the amount in controversy, and counsel for the insured submitted a sworn affidavit, stating his belief that “there is no reasonable probability that the recoverable damages in this case would exceed the sum of $75,000.00.”  He even agreed to defer any amount in excess of $75,000.00 should the insurer receive damages in that amount.  Therefore, the court determined that it was without jurisdiction to hear the case, and it remanded the case to state court.

Date of Decision:  May 10, 2011

Croft v. Nationwide Ins. Co. of Am., 11cv0578, United States District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 50164, (May 10, 2011) (Schwab, J.)

MAY 2011 BAD FAITH CASES
BAD FAITH CLAIM SURVIVES MOTION TO DISMISS WHEN INSUREDS’ ALLEGED FACTS, IF PROVEN TRUE, SUPPORT A FINDING OF BAD FAITH (Western District)

In Craker v. State Farm Mutual Automobile Insurance Company, the insureds were driving when another automobile collided with them in a head-on collision.  They both suffered significant injuries that required surgeries, and they lost their jobs due to the accident.  The driver of the other automobile’s insurer paid the insureds $200,000 (the full amount available to them under its policy), but the insureds did not feel that it was enough to cover their losses from the accident.  The insureds then demanded an additional $400,000 from their insurer for underinsured motorist (“UIM”) benefits. 

After not hearing a definitive response from the insurer for four years, the insureds filed suit in state court against the insurer for breach of contract and bad faith.  The insurer then removed the action to federal court and filed a motion to dismiss the bad faith claim.

Before addressing the bad faith claim, the court ruled on the insureds’ motion to remand the case back to state court.  They alleged that the insurer had waived its right to remove by including a clause in its policy that permitted the insureds to file an action in state or federal court.  The court, however, determined that this was not a waiver of the right to remove a case to federal court, as the language of the policy did not force the insurer to agree to submit to the jurisdiction of any specific court, so it denied this motion.

Concerning the bad faith claim, the insurer had filed a motion to dismiss for failure to plead sufficient facts.  The court first noted that to survive a motion to dismiss, “a Complaint must contain sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face.”  Under Iqbal and Twombly, the facts alleged in the insured’s Complaint must be accepted as true and all reasonable inferences must be drawn in favor of the insureds.  The facts pled by the insureds in this case, if true, supported a finding of bad faith, as the insurer allegedly had refused to pay the insureds $400,000 for four years despite the insureds providing documentation of their injuries and losses and timely notifying the insurer of their demand.  The court therefore determined that the case should proceed to discovery, and it denied the insurer’s motion to dismiss the bad faith claim.

Date of Decision:  May 2, 2011

Craker v. State Farm Mut. Auto. Ins. Co., Civil Action No. 11-0225, United States District Court for the Western District of Pennsylvania, 2011 U.S. Dist. LEXIS 47342, (May 2, 2011) (Lancaster, J.)

MAY 2011 BAD FAITH CASES
COURT DISMISSES BAD FAITH CLAIM, BUT FOCUSES ON ILL-WILL IN FINDING ABSENCE OF INTENT OR RECKLESSNESS; AND IMPLIES POTENTIAL FOR BAD FAITH WITHOUT DENIAL OF BENEFIT (Philadelphia Federal)

In Treadways LLC v. Travelers Indem. Co., the insured, an LLC, had policies with the insurer for commercial automobile insurance, worker’s compensation insurance, and employer’s liability insurance.  An individual filed a lawsuit against the insured, and pursuant to the policy, the insurer hired attorneys to represent the insured in litigation.  Eventually, however, the insurer determined that it did not have to indemnify insured under the policy for this type of incident, so it denied coverage.
The insured eventually was held to be liable in the underlying lawsuit for $1,000,000, and it requested the insurer to cover that amount under the worker’s compensation policy, but the insurer denied coverage.  The insured then filed a two-count Complaint against the insurer for 1) acting in bad faith, and 2) breaching its duty to indemnify the insured.  The court denied both parties’ motions for summary judgment on the second count, as it concluded that the question of whether the insured relied to its detriment on the insurer’s conduct required an analysis of the disputed facts by a jury.
Concerning the bad faith claim, the insured alleged that the insurer, among other violations, failed to investigate in good faith, failed to communicate regarding coverage issues, failed to issue a reservation of rights letter and failed to investigate the fraud and misrepresentation allegations made against the insured in the underlying suit.
The defendants contended that because the insured never argued that defendants wrongfully denied benefits under the policies, the first prong of the bad faith test could not be satisfied, i.e. the insured could not prove that “insurer did not have a reasonable basis for denying benefits under the policy” since no benefits were denied. The carrier alleged that the insured did not even contend that defendants wrongfully denied coverage under the policies, and therefore defendants had a reasonable basis for denying coverage under the policies and plaintiff’s bad faith claim must fail.
The court in this case did not address that argument one way or the other, because the insured could not meet the second element of the bad faith claim, i.e. that the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim.  Although not clear from the opinion, the court apparently chose not to address this issue, which arguably should have been dispositive on its face, on the quoted principle that:
“Courts have clarified that bad faith may be found in circumstances other than an insured’s refusal to pay. As the Third Circuit Court of Appeals explained, “’[b]ad faith is a frivolous or unfounded refusal to pay, lack of investigation into the facts, or a failure to communicate with the insured.’” Gallatin Fuels, Inc. v. Westchester Fire Ins. Co., 244 Fed. Appx. 424, 433 (3d Cir. 2007) (not precedential) (quoting Frog Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 751 n. 9 (3d Cir. 1999)).”
The court determined that the insured did not satisfy the second prong of the test for bad faith under 42 Pa. Cons. Stat. Ann § 8371, which required the insurer to know of or recklessly disregard its lack of a reasonable basis for denying the claim.  The court relied upon Terletsky in this finding, stating that for bad faith to occur, an insurer must demonstrate “dishonest purpose and means a breach of a known duty . . . through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.”  Here, the insured’s allegations contained no evidence of any dishonest purpose on the insurer’s part and did not show that the insurer was motivated by any self-interest or ill will; and equated the absence of that with mere negligence, and thus the plaintiff failed to show knowing intent or reckless disregard and the bad faith case was dismissed.
However, the court made no reference to Greene v. USAA, where the Superior Court later held that self-interest and ill will in themselves were not elements of a bad faith claim, but were evidence as to whether or not there was an intentional or reckless disregard.
Date of Decision:  May 4, 2011
Treadways LLC v. Travelers Indem. Co., Civil Action No. 08-4751, United States District Court for the Eastern District of Pennsylvania, 2011 U.S. Dist. LEXIS 47708, (May 4, 2011) (Rueter, U.S.M.J.)
As to whether there can be bad faith without the denial of a benefit, see this blog entry for one discussion on that issue.

MAY 2011 BAD FAITH CASES
COURT DISMISSES BREACH OF CONTRACT AND BAD FAITH CLAIMS BECAUSE THEY ARE PRE-EMPTED BY ERISA (Middle District)

In Kirshy v. Life Insurance Company of North America, the plaintiff was employed as a phlebotomist by Quest Diagnostics from 2004 until 2008, when he had to quit because he was “emotionally and physically incapable of dealing with the stress related to his position.”  He applied for long-term disability benefits to Quest’s insurer, but the insurer denied the claim after determining that medical documentation did not support him remaining out of work any longer.

The insured then filed a Complaint against the insurer including counts for breach of contract and bad faith, but the insurer filed a motion to dismiss because it believed that the Complaint brought state law claims that were preempted by the Employee Retirement Income Security Act (“ERISA”).

The court agreed with the insurer, stating that “Section 514(a), the express preemption provision of ERISA, provides that ERISA ‘shall supersede any and all State laws insofar as they … relate to any employee benefit plan’ covered by the statute.”  The breach of contract and bad faith claims were both alleged under state law and directly related to the employee benefit plans, so the court dismissed the Complaint and gave the plaintiff 21 days to file an amended Complaint.

Date of Decision:  May 4, 2011

Kirshy v. Life Ins. Co. of N. Am., Civil Action No. 3:10-CV-2345, United States District Court for the Middle District of Pennsylvania, 2011 U.S. Dist. LEXIS 47686, (May 4, 2011) (Caputo, J.)

MAY 2011 BAD FAITH CASES
COURT GRANTS SUMMARY JUDGMENT TO INSURER ON BAD FAITH CLAIM AFTER DETERMINING THAT THE INSURER ACTED REASONABLY THROUGHOUT THE CLAIM PROCESS (Middle District)

In Rossi v. Progressive Insurance, the insured was driving when he turned left across a lane of incoming traffic, colliding with an oncoming vehicle.  He alleged significant injuries to his shoulders and lumbar and thoracic spines in the accident, and he claimed that he had seen various medical professionals as a result.  The insurer covered the insured with an automobile insurance policy, and it promptly assigned his claim to a specialist.

The claim specialist contacted the other driver’s insurer, which told him that the other driver’s coverage limit was $100,000 and the full value of the insured’s claim was only about $20,000-$25,000 at the time.  In addition, the insured’s attorney repeatedly failed throughout the process to respond to letters and phone calls from the insurer’s claim specialist that requested certain documentation.

A long additional string of events occurred over two years concerning the release of medical records, independent medical examinations, and liability for the accident.  The insurer had investigated the accident scene and determined that the light was red when the insured turned left immediately before the accident.  When ultimately determining liability for the accident, the insurer felt that the insured was 60-80% at fault.  The insurer eventually made a settlement offer for the policy limit of $30,000, but by that point the insured believed his claim was worth over $100,000.

The insured and his wife then filed a Complaint containing counts for breach of contract and bad faith.  The parties were able to settle the breach of contract claim but not the bad faith count.  The insurer then filed a motion for summary judgment on the bad faith claim, which was before the court in this opinion.

The court first noted a major mistake by the insured- after the insurer filed its own

statement of material facts, the insured was required to respond with his own statement of facts setting forth which facts were materially in dispute.  He never filed this statement, and the court therefore had to deem all of the insurer’s alleged facts in that statement to be admitted (while still viewing them in the light most favorable to the insured) [Thus, the facts mentioned above were put forth by the insurer.]

The court then determined that “no reasonable fact-finder could find that [the insured] has proven [the insurer’s] bad faith by clear and convincing evidence.”  It was reasonable to investigate liability for the accident because the insured failed to yield the right-of-way and it was reasonable to dispute the amount of damages and request numerous medical records and independent medical examinations before preparing an offer.  Therefore, because the insured failed (under the insurer’s alleged facts) to demonstrate that the insurer acted with an improper motive, the court granted the insurer’s motion for summary judgment on the bad faith claim.

Date of Decision:  April 25, 2011

Rossi v. Progressive Ins., Civil Action No. 3:09-CV-876, United States District Court for the Middle District of Pennsylvania, 2011 U.S. Dist. LEXIS 44097 (M.D. Pa. Apr. 25, 2011) (Caputo, J.)