CATCH-ALL PROVISION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW RULED A STRICT LIABILITY PRIVATE RIGHT OF ACTION (Pennsylvania Supreme Court)

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Yesterday, Pennsylvania’s Supreme Court ruled, 4-3, that the Unfair Trade Practices and Consumer Protection Law’s (UTPCPL) prohibition on deceptive conduct creates a private right of action based on strict liability.  Justice Wecht’s majority opinion in Gregg v. Ameriprise Financial, Inc., can be found here.

73 Pa. Stat. Ann. § 201-2 (4)(xxi), the UTPCPL’s catch-all provision, states: “Unfair methods of competition” and “unfair or deceptive acts or practices” mean any one or more of the following: … (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” Section 201-9.2(a) gives consumers a private right of action to those harmed by deceptive conduct made unlawful by the catch-all provision.

The issue before the Supreme Court was whether actionable “deceptive conduct” had some sort of intent or due care requirement, or whether this was a strict liability statute.  The majority interpreted the statutory language to create a cause of action solely based on strict liability, regardless of the defendant’s intent.  A private plaintiff still needs to prove that the defendant’s conduct was deceptive and that the plaintiff justifiably relied on that conduct, but the intent or degree of carelessness behind that deceptive conduct, if any, is irrelevant.

The majority states:

The plain language of the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding. That is all that is required. The legislature required neither carelessness nor intent when a cause of action is premised upon deceptive conduct. Had the General Assembly intended to limit the catch-all provision to cover only common law misrepresentation claims, it would have done so directly by, for example, barring only fraudulent or negligent conduct. By choosing instead to bar “deceptive conduct,” the General Assembly signaled its intent to dispense with consideration of the actor’s mental state.

Accordingly, under the plain meaning of the statute, deceptive conduct during a consumer transaction that creates a likelihood of confusion or misunderstanding and upon which the consumer relies to his or her financial detriment does not depend upon the actor’s state of mind. Liberally construing the CPL as we must, the amended language places the duty of compliance with the CPL on commercial vendors, without regard to their intent. Without a state of mind requirement, the amended catch-all provision fairly may be characterized as a strict liability offense. ….

Justice Todd’s dissent, joined by Justices Saylor and Baer, would have created a negligence standard.  Justice Todd states:

Critically, unlike the majority’s construction, my interpretation gives meaning to all of the words in Section xxi and allows a plaintiff to prevail whenever the vendor either intentionally engages in fraud with respect to a consumer transaction, or whenever the vendor negligently engages in conduct that creates a likelihood of the type of harm that the CPL was intended to prevent – that is, confusion or misunderstanding on the part of a consumer. Stated another way, in my view, a vendor may be liable under Section xxi for deceptive conduct only when he knows, or reasonably should know, that his conduct, be it his actions or statements, is likely to cause misunderstanding or confusion in a consumer regarding the goods or services the vendor is selling. This standard, in my view, effectuates the paramount goal of the CPL — to eliminate unfairness and deception in consumer transactions — by proscribing, in addition to the intentional deception of consumers, conduct which vendors should recognize is likely to deceive reasonable consumers. However, in contrast to the strict liability standard embraced by the majority, this negligence standard also protects honest businesspeople from incurring unforeseen penalties for statements or acts that no consumer would have been confused or misled by.

For those interested in reading the dissent, a copy is provided here.

Date of Decision:  February 17, 2021

Gregg v. Ameriprise Fin., Inc., No. 29 WAP 2019, 2021 WL 607486 (Pa. Feb. 17, 2021)

SUPERIOR COURT AFFIRMS TRIAL COURT’S BAD FAITH VERDICT, AND ITS REFUSAL TO AWARD PUNITIVE DAMAGES (Superior Court of Pennsylvania) (Non-precedential)

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After a non-jury trial, the Blair County Court of Common Pleas found the insurer violated the bad faith statute, and awarded statutory damages in the form of attorneys’ fees and super-interest. It declined, however, to award punitive damages under the statute.  The insurer appealed the bad faith verdict, and the insured appealed the decision not to award punitive damages.  The Superior Court rejected both appeals and affirmed the lower court.

Facts

This is another UIM bad faith case.

The accident occurred in 2000, and the driver’s carrier agreed with the insured that the other driver was 100% liable, and paid its full $100,000 UIM limits to the insured.  The tortfeasor’s carrier paid $50,000.

Over two years later, the insured sought UIM coverage from her mother’s carrier, the defendant insurer in this action. The defendant was affiliated with the driver’s own insurer, and had access to its investigation files.  Its UIM limit was $600,000. It valued the claim at $200,000 and offered $50,000 to settle the claim ($150,000 already having been paid by the tortfeasor’s carrier and the first UIM insurer).

The insured rejected the offer, and initiated a bad faith action in 2003, which it held in abeyance while the UIM case was pending. The insurer paid the undisputed $50,000.

Later in 2003, the insured received a PTSD diagnosis and send additional medical records to the insurer.  The insurer received the medical records, but denied having received them. The defendant insurer took the position that the diagnosis was unrelated to the 2000 accident, and its $200,000 remain unchanged, having failed to receive any medical records (which it in fact had received, however). It then initiated the UIM arbitration process in 2004.

The defendant carrier informed its arbitration defense counsel the other driver was 100% at fault.  Months later the carrier’s counsel said he had spoken to the other driver, based on that interview the accident could have been the insured’s fault, and the arbitrator might rule for the carrier on the UIM claim.  The attorney’s opinion was based solely on the other driver’s rendition of the facts, and not any expert report or investigation other than interviewing the other driver.  The carrier itself did not obtain a reconstruction expert report on the accident.

The carrier, however, was sufficiently persuaded. It took the position in late 2004 that the insured might have comparative negligence up to 50%, but not more. By early 2005, however, the carrier took the position that the accident was 100% the insured’s fault.

The carrier delayed the arbitration by filing a declaratory judgment action seeking to limit the range of damages the arbitrator could award. This case was dismissed on preliminary objections. The carrier further delayed the arbitration by seeking evidence of the insured’s post-accident motor vehicle record, fall-downs, alcoholism and depression.

Eight years later, in 2013, the case finally went to arbitration, i.e., over 13 years after the accident and 8-9 years after the UIM arbitration process began. The arbitrator valued the insured’s injuries at $599,000, and awarded her $399,000. The arbitrator found no comparative negligence. [This was the same position the carrier had taken before late 2004.]

Arguments at trial

The bad faith case went to a non-jury trial in 2018, with a claim handler and the insurer’s UIM arbitration counsel as the sole witnesses.

The insured argued the carrier acted in bad faith when changing its position on the drivers’ comparative negligence, based solely on defense counsel’s interview of the other driver. The insured asserted that the carrier should have known the other driver was not credible, and should not have relied on his rendition of the facts to change its position because the other driver contradicted his own earlier statements to the investigators as to the accident’s cause. In response, the carrier appears to have asserted an advice of counsel defense.

The insured also argued bad faith in the carrier’s blanket refusal to consider subsequent psychological treatments, failure to conduct a full investigation by interviewing the investigating police officer before the UIM arbitration, failing to hire an accident reconstruction expert, and prolonging the proceedings for years in order to selectively reevaluate the claim after it learned the insured had various substance abuse issues, and a history of fall-downs, after the date of the underlying accident.

The trial court’s verdict

The trial court “found [the insurer] had acted recklessly and without a reasonable basis in continually valuing [the] claim at $200,000.” Further, the insurer “had improperly failed to reevaluate the claim to consider [the insured’s] psychological damages.” It was significant to the court that the insurer refused to consider the psychological claims based on the insured’s failure to transmit PTSD related documents, but “admitted at trial that it had received the medical records.”

The court also ruled against the carrier based on its changing positions as to the insured’s responsibility, rejecting the advice of counsel defense because the other driver’s 2004 rendition of the facts to defense counsel should not have been deemed credible based on that driver’s initial statements after the accident.

For nearly four years, after its own investigation and earlier interviewing the other driver, the insurer took the position that the insured bore no responsibility for the accident. The defendant insurer only began altering its liability position after defense counsel interviewed the underlying tortfeasor, who had changed his story.  Then, over a period of months, the insurer went from no comparative negligence, to maybe 50% comparative negligence at most, to a 100% negligence on the insured, solely based on the other driver’s interview with defense counsel.

The trial court observed the arbitrator ruled the other driver was not credible. Further, “[t]he trial court stated that although the arbitrator’s decision did not bind it, it recognized that the arbitrator was a ‘neutral, detached fact-finder’ and had not found [the insured] comparatively negligent at all.” The arbitrator also found substantial injuries. Thus, the “change of position on liability ‘represents a significant failure by [the insurer] in their ongoing responsibility to investigate and reconsider [its] position during [its] entire management of the claim.’”

The trial court further found the refusal to go above its $200,000 valuation for over a decade “was done with a purpose motivated by self-interest.” For example, the carrier failed to consider the psychological medical records admittedly in its possession.  It also failed to carry out a proper investigation and follow-up by not contacting the investigating police officer until the arbitration hearing, or hiring a reconstruction expert. Finally, the trial court found the carrier prolonged the proceedings in filing the declaratory judgment action based on the insured’s substance abuse and fall-downs after the 2000 accident.

Damages

The trial court awarded $24,650 in attorneys’ fees for the bad faith litigation, $125,000 in attorneys’ fees in connection with the UIM claim, and $125,000 in interest. It refused to award punitive damages.

Bad faith legal standards where insurer delays in paying benefits due

The Superior Court observed the following legal principles in rendering its verdict:

  1. “Ultimately, ‘[w]hen an insured obtains a bad faith verdict in a bench trial, appellate courts should only reverse in the most egregious of cases when the trial court has committed reversible error.’”

  2. “’The analysis of an insurance bad faith claim ‘is dependent on the conduct of the insurer, not its insured.’”

  3. Because ‘bad faith’ in this context stems from the duty of good faith and fair dealing implied in every insurance contract, the plaintiff need not prove the insurer acted with self-interest or ill-will.”

  4. “In order to prevail under the bad faith statute, 42 Pa.C.S.A. § 8371, ‘the plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.’”

  5. “An action for bad faith is not restricted to the outright denial of a claim, but rather encompasses ‘all instances of bad faith conduct by an insurer.’”

[Note: The Court cited the Superior Court’s decision Rancosky v. Washington National Insurance Co., and not the Supreme Court’s Rancosky decision, to support this point.  As discussed many times on this Blog, there is a real issue as to whether section 8371 encompasses claims that do not involve the denial of a benefit actually due, i.e., is there any cognizable statutory bad faith cause of action when the insurer does not actually owe the insured any duty to pay first party benefits, or to defend or indemnify third party claims.  See, e.g., this post.]

  1. The Superior court then added examples of bad faith, where a claim was not outright denied: “This includes a lack of good faith investigation, as well as ‘evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.’”

[Note: In this case, there is no dispute that some benefit was due from the insurer, just a dispute of how much was due and when.  In effect, the insured is arguing that there was a decade plus delay in paying a benefit actually due; and the court’s bad faith verdict is made in light of the insurer actually owing a benefit substantially greater than what the insurer offered to pay.]

  1. “An insurer must make a timely investigation in response to the claim, and not just for arbitration.”

  2. “Indeed, an insurer must reevaluate a claim when presented with new information.”

  3. “An insurer’s mere negligence does not constitute bad faith, and an insurer may make a low estimate of an insured’s claim, so long as it has a reasonable basis.”

  4. “[A]n insurer has committed bad faith where it ‘acted in a dilatory manner, and forced the insured into arbitration by presenting an arbitrary ‘low-ball’ offer which bore no reasonable relationship to the insured’s reasonable medical expenses,’ particularly where the ‘low-ball’ offer proved to be significantly lower than the arbitration award.”

Facts supporting the bad faith verdict

The Superior Court held the following facts supported the trial court’s finding of bad faith:

The insurer never changed its claim valuation over a ten year period from the claim’s submission through a UIM arbitration, “despite mounting evidence that [the insured’s] damages surpassed [that] $200,000 [valuation].” The trial court properly rejected the insurer’s argument that there was no valuation change over time because the insurer went from taking the position that the insured had no responsibility for her own injury, to being partially responsible, and finally to being deemed wholly at fault for her own injury.  The Superior Court agreed that the evidence did not show the valuation claim ever hinged on the insured’s alleged comparative negligence.

Rather, the record demonstrated that as the insurer’s “position on liability evolved, its valuation of the claim did not change. Rather, it put a $200,000 value on [the] claim from the outset, failed to consider evidence of her psychological damages, refused to modify the valuation, and now cites subsequent developments to justify its failure to adjust the valuation in light of the information it disregarded. That it may not have failed to consider the evidence and adjust the valuation purposefully or because of ill will does not undermine the trial court’s conclusion, as [the insured] did not need to prove such states of mind.”

Other factors collectively favoring bad faith were the insurer did not change its comparative liability position until preparing for the UIM arbitration; the insurer did not interview the police officer on the scene; and that the insurer “was unable hire a reconstruction expert for arbitration because too much time had passed is further indicative that it did not make adequate inquiry into the accident in a timely manner.”

The facts did not require the trial court to award punitive damages

The Superior Court ruled: “Although the [trial] court found [the insurer] acted in bad faith, and awarded attorneys’ fees and interest accordingly, we cannot say that it abused its discretion in not awarding punitive damages. The evidence was not such that we conclude that the court’s decision was manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.”

The Superior Court made the point that section 8371 does not compel the Courts of Common Pleas to award punitive damages simply because there is a bad faith verdict.  Rather, punitive damages remain within the trial judge’s discretion.  Ill-will, reckless indifference, or some other sign of malign action might provide evidence in proving statutory bad faith, but this level of intent is not a required element of a statutory bad faith claim.
Thus, just an insured can make out a bad faith claim without having to prove the level of evil intent or outrageous conduct that forms the basis for punitive damages, a finding of bad faith does not automatically encompass conduct that would mandate a finding of punitive damages.   Here, the trial judge did not find the carrier’s intent was so outrageous that punitive damages were warranted, even though the court found the carrier knew or recklessly disregarded the fact that it was unreasonably denying the insured benefits due her.

No error in limiting discovery of “post-denial” conduct

Finally, the insurer appealed the trial court’s granting a protective order as to certain requests for admissions concerning “post-denial” conduct, covering a time period beginning with the April 2004 initiation of the UIM arbitration process.  The trial court found this conduct irrelevant to the insurer’s bad faith in denying the claim. The Superior Court affirmed, finding no abuse of discretion.

The insurer had the burden to show how it was prejudiced by the trial court’s excluding this evidence, but it never “specified what evidence it sought under the admissions requests that it did not receive, and how that alleged evidence would have affected its case.”

Date of Decision:  February 4, 2021

Sartain v. USAA, Superior Court of Pennsylvania No. 4 WDA 2020, 2021 WL 401954 (Pa. Super. Ct. Feb. 4, 2021) (Bender, McLaughlin, Musmanno, JJ.) (Non-precedential)

NO COVERAGE DUE FOR COVID-19 CLAIMS, NO BAD FAITH CLAIM POSSIBLE (Middle District)

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Middle District Judge Jones ruled that no Covid-19 coverage was due under an all-risk policy.

He found no “direct physical loss of or damage to property,” eliminating the possibility of coverage for business income losses or claims that the business closure resulted from a government order.  Further, even if covered, the claims were subject to the policy’s virus exclusion.

Thus, Judge Jones held plaintiff failed to make out its claims for breach of contract, declaratory judgment, and breach of the implied duty of good faith and fair dealing, and granted the insurer’s motion to dismiss those claims.  Although not a bad faith case, Judge Jones observed in a footnote, “[s]imilarly, Pennsylvania courts have held that if the insurer properly denied a claim, the policyholder is unable to state a bad faith claim.”

Date of Decision: February 8, 2021

Kahn v. Pennsylvania National Mutual Casualty Insurance Company, U.S. District Court Middle District of Pennsylvania No. 1:20-CV-781, 2021 WL 422607 (M.D. Pa. Feb. 8, 2021)

THREE DISCOVERY OPINIONS OUT OF THE MIDDLE DISTRICT: (1) PLAINTIFFS CAN DEPOSE EXPERT USED TO INVESTIGATE CLAIM, NOT HIRED IN ANTICIPATION OF LITIGATION; (2) PLAINTIFFS CAN DEPOSE POLICE INVESTIGATOR; (3) PLAINTIFFS CAN DEPOSE UNDERWRITER WHO MAY HAVE HAD A ROLE IN CLAIM HANDLING (Middle District)

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Middle District Magistrate Judge Joseph F. Saporito, Jr. recently issued three discovery opinions arising out of a first party fire property damage case.  The insureds claimed a total loss, and sued for breach of contract and bad faith.

  1. Expert may be deposed when her investigation is part of ordinary claims handling, and not done in anticipation of litigation.

In the first opinion, Magistrate Judge Saporito addressed a subpoena directed to a fire analyst. This expert did not work directly for the insurer, but an independent investigation company. The insurer engaged this expert solely to determine the cause and origin of the fire.

The insurer argued that the fire analyst was not hired as a testifying expert, but as a non-testifying consulting expert. It moved to quash the subpoena “because she is an expert hired by it in anticipation of the possible litigation of the plaintiffs’ claim.” It relied on Federal Rule 26(b)(4)(D).

In opposition, the insureds argued this fire analyst was being deposed as a fact witness, not an expert witness, “regarding her communications with the defendant after the issuance of her expert report, her communications with the plaintiffs and their representatives, public authorities, including those associated with the City of Harrisburg Police and Fire Departments, and the Pennsylvania Department of Insurance.” Moreover, the insured contended the fire analyst was not retained in anticipation of trial, and thus Rule 26(b)(4)(D) did not apply.

Magistrate Judge Saporito first observed the liberal discovery standard and that “[t]he burden is on the objecting party to demonstrate in specific terms why a discovery request is improper. The party objecting to discovery must show that the requested materials do not fall within the broad scope of relevance or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”

The court found that the fire analyst’s work was not done in anticipation of litigation, and was thus outside Rule 26(b)(4)(D)’s protections.  While the expert did carry out a wide and ongoing investigation after the fire, this alone did not mean the investigation was done in anticipation of litigation.  Magistrate Judge Saporito cited a number of cases for the proposition that claim investigation and evaluation “is part of the regular, ordinary and principal business of insurance companies.”He further stated, “[g]enerally, documents and reports produced by or at the request of an insurer before arriving at a claims decision which consist of information reasonably related to the evaluation of a claim are presumed to have been produced or used for claims evaluation, not for litigation preparation.”

Magistrate Judge Saporito found on the facts that the fire analyst’s investigation, report, and communications all “clearly preceded a final claims decision by the defendant insurer.” (Emphasis in original) “Her investigation and report were an integral part of the insurer’s claims evaluation process, which ultimately culminated in a decision to pay the claim on or about May 1, 2019. Thus, it is presumed that [her] investigation was conducted, and her report was prepared, in the ordinary course of the defendant insurer’s business of claims evaluation, not in preparation for litigation.”

Magistrate Judge Saporito rejected the argument that given the circumstances of the fire, it was likely at the time of the expert’s retention coverage could be declined, which would then result in litigation. He found this argument “conclusory” and insufficient to overcome the presumption that the expert’s retention and work were to evaluate the coverage decision, and not to prepare a litigation defense.

Thus, he denied the motion to quash.

Date of Decision:  January 29, 2021

MAZER v. FREDERICK MUTUAL INSURANCE COMPANY, U.S. District Court Middle District of Pennsylvania No. 1:19-CV-01838, 2021 WL 311229 (M.D. Pa. Jan. 29, 2021) (Saporito, M.J.)

  1. Carrier lacks standing to challenge subpoena of police detective, nor can it obtain a protective order regarding his deposition testimony.

The second opinion involves a motion to quash, or for a protective, order involving plaintiff’s subpoena directed to the investigating police detective.  The insured alleged the detective “acted in concert with the defendant’s privately retained fire investigator during the investigation of the subject fire loss, and both had communications with representatives of the Pennsylvania Insurance Department.” The insureds argued this was part of their bad faith claim.

The legal issue was governed by Federal Rule 45, addressing subpoenas to non-parties.

First, Magistrate Judge Saporito found the insurer generally lacked standing to object to the subpoena.  Rule 45(d)(3)(A)(iii) provides a limited exception in circumstances where the objecting party “claims a property right or privilege in the disclosed information.” That exception, however, was inapplicable, and he denied the motion to quash.

Next, Magistrate Judge Saporito addressed the Rule 26(c)(1) motion for a protective order.  The insurer asked the court to limit deposition questions “to those which plaintiffs demonstrate are relevant to the outstanding issues in this matter.”This argument failed, with the court finding, “the defendant has not shown how it would be unduly burdened or harassed by preparing for and attending [the detective’s] deposition. Therefore, we will deny the defendant’s request for a protective order.”

Date of Decision:  January 29, 2021

MAZER v. FREDERICK MUTUAL INSURANCE COMPANY, U.S. District Court Middle District of Pennsylvania No. 1:19-CV-01838, 2021 WL 311231 (M.D. Pa. Jan. 29, 2021) (Saporito, M.J.)

  1. Insured allowed to take discovery of underwriter, whose role apparently went beyond underwriting.

On this third discovery motion, plaintiffs sought to depose one of the insurer’s underwriters.  The carrier moved for a protective order, arguing that any relevant testimony would be redundant with that of the claim handler to be deposed, and that there was no underwriting issued in the case so any testimony on that subject would be irrelevant.

The insureds argued the underwriter’s testimony was relevant “because she was involved in the handling and evaluation of their claim.” The insureds supported their position by referencing three emails the underwriter authored. The court concluded from these emails that the underwriter’s role did not appear to be limited to underwriting alone.

Thus, “[t]he plaintiffs should be permitted to take [the underwriter’s] deposition to determine the nature and extent of her role in this case. Moreover, the defendant has not shown how it would be unduly burdened by preparing for and attending [the] deposition.”

While the insurer’s motion was denied, “[h]owever, as plaintiffs’ counsel has previously offered to provide defense counsel with an outline of the topics and/or areas of inquiry in a notice of deposition, we will direct that they do so.”

Date of Decision:  February 2, 2021

MAZER v. FREDERICK MUTUAL INSURANCE COMPANY, U.S. District Court Middle District of Pennsylvania No. 1:19-CV-01838, 2021 WL 357333 (M.D. Pa. Feb. 2, 2021) (Saporito, M.J.)

IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM DISMISSED BECAUSE IT DUPLICATED BREACH OF CONTRACT CLAIM (New Jersey Federal)

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The court denied a motion to dismiss the insured’s breach of insurance contract claim, pleaded on a third party beneficiary basis.

New Jersey Federal Judge Wolfson, however, did dismiss the insured’s breach of the implied covenant of good faith and fair dealing count, agreeing that the plaintiff could not “maintain a cause of action for breach of the implied covenant of good faith and fair dealing because that claim is duplicative of [the] breach of contract claim.”

In circumstances “where it is undisputed that a valid and unrescinded contract governs the conduct at issue, breach of implied duty claims can be dismissed at the motion to dismiss stage.” Judge Wolfson further observed, “[w]here a party has breached a specific term of a contract, that party cannot be found separately liable for breaching the implied covenant of good faith and fair dealing when the two asserted breaches basically rest on the same conduct.”

The present bad faith claim met all the criteria for dismissal. The bad faith claim was based on a valid and unrescinded insurance policy. Further, the plaintiff’s  “Complaint does not even attempt to differentiate the allegations relating to the breach of contract claim … and the allegations relating to the breach of the implied covenant of good faith and fair dealing. Rather, the Complaint simply acknowledges that [the insurer’s] ‘aforementioned actions and inactions’ provide a basis for their breach of implied covenant claim ….”

Judge Wolfson concluded defendant’s alleged “actions and inactions” concerning bad faith were the same “actions and inactions” pleaded to support the breach of contract claim. She found simply adding an allegation that the same conduct was done in bad faith did not make out a plausible bad faith claim: “A conclusory statement that a breach of contract is done in bad faith is insufficient to state a [separate] claim for breach of the implied covenant of good faith.”

Thus, the bad faith claim was duplicative and merited dismissal.

Date of Decision:  January 28, 2021

760 NEW BRUNSWICK URBAN RENEWAL LLC v. NAVIGATORS SPECIALTY INSURANCE CO., U.S. District Court District of New Jersey No. CV 20-5877 (FLW), 2021 WL 287876 (D.N.J. Jan. 28, 2021) (Wolfson, J.)

BAD FAITH CLAIM SURVIVES WHERE INSUREDS ALLEGE CARRIER MISINTERPRETED THE POLICY, FAILED TO INQUIRE WITH THEIR OWN UNDERWRITERS ABOUT THE POLICY, AND FAILED TO ASSESS THE POLICY LANGUAGE IN ACCORDANCE WITH ESTABLISHED LEGAL PRINCIPLES (New Jersey Federal)

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Self-insured public entities sued their excess insurer for breach of contract and bad faith, claiming sums due for attorney’s fees and damages in sexual abuse suits.  The excess insurer claimed nothing was due, under its interpretation of the policy language applied to the facts at issue. The self-insureds survived a motion to dismiss the breach of contract claim and bad faith claims.

First, the court found coverage might be due, and the excess insurers could be liable to reimburse the self-insureds for sizable legal fees and for indemnification under the excess policies on the sexual abuse claims.

Next, the court observed that “[u]nder New Jersey law, in order to bring a successful bad faith claim against an insurer, an insured must show: ‘(1) the insurer lacked a ‘fairly debatable’ reason for its failure to pay a claim, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.’”

In this case, the self-insureds alleged the excess carrier “failed to ‘act in good faith in their assessment of the terms and conditions of [the Policies]’ and failed to reasonably ‘assess communications exchanged during the course of negotiations between representatives of the parties, assess the statements of their own underwriters, assess the underwriting documentation, or assess principles of law and accepted construction of the terms of art within the [Policies].” The court found these allegations sufficiently factual in nature to allow the bad faith claim to proceed.

Date of Decision:  January 26, 2021

SCHOOL EXCESS LIABILITY JOINT INSURANCE FUND v. ILLINOIS UNION INSURANCE COMPANY, U.S. District Court District of New Jersey No. CV 20-4951(SDW)(LDW), 2021 WL 248860 (D.N.J. Jan. 26, 2021) (Wigenton, J.)

NO BAD FAITH WHERE NO COVERAGE DUE; NO BAD FAITH WHERE LAW IS UNSETTLED ON SCOPE OF COVERAGE; KVAERNER INTERPRETATION OF OCCURRENCE CAN APPLY TO PROPERTY DAMAGE OUTSIDE THE SCOPE OF THE CONSTRUCTION CONTRACT (Middle District)

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There can be no bad faith where no coverage is due, or where coverage is a close question based on unsettled law.

Court Applies Kvaerner to ALL Reasonably Foreseeable Damages Resulting from Faulty Workmanship

Middle District Judge Brann addressed an expanding body of case law in Pennsylvania’s Superior Court that would appear to require coverage for damages flowing from faulty workmanship, even if the faulty workmanship itself is not covered.  He rejected, however, the Superior Court’s interpretation of what constitutes a covered occurrence under the Pennsylvania Supreme Court’s 2006 Kvaerner decision.

[We have previously posted on Kvaerner in the context of coverage and otherwise, with two case summaries in 2019, here and here, this 2018 case summary, this 2014 summary, in 2013 on the Superior Court’s Indalex decision in relation to Kvaerner, and in this 2009 summary.]

Judge Brann relied on Third Circuit precedent emphasizing that all reasonably foreseeable damages resulting from faulty workmanship do not constitute an occurrence, whether that is damage to the product being constructed or damages to property beyond the scope of the construction contract resulting from that faulty workmanship.

Thus, e.g., in Judge Brann’s and the Third Circuit’s perspective, if a contractor improperly installs a roof, the roof leaks, and other parts of the building or personal property are damaged, there is no occurrence for this other damage to third party property, even though it is beyond the contracted work itself, if that other damage is reasonably foreseeable.  By contrast, the new Superior Court cases would find this third party damage outside the scope of the actual construction work to be a covered occurrence, even if reasonably foreseeable.

Judge Brann observes, “Despite the caselaw that has emerged from the Superior Court, the [District] Court notes that it is not bound by these decisions. As the Third Circuit has explained, although courts should ‘give due deference to the decisions of intermediate state courts…[s]tate appellate decisions…are not controlling.’ Thus, ‘while [courts] may not ignore the decision of an intermediate appellate court, [they] are free to reach a contrary result if, by analyzing other persuasive data, [they] predict that the State Supreme Court would hold otherwise.’”

In the present case, Judge Brann held no coverage due to replace a roof that had been improperly constructed. Further, there was no coverage due to areas of the roof damaged that were outside the scope of the contracted roof work, which also had to be replaced as a result of the faulty construction, as these third party property damages were reasonably foreseeable. Thus, he granted judgment on the pleadings in favor of the insurer as to coverage.

No Bad Faith Where no Coverage Due

On the insured’s bad faith claim, Judge Brann likewise granted judgment on the pleadings. First, he observed that the insurer properly denied benefits. Thus, he found there could be no bad faith because the insurer “certainly had ‘a reasonable basis for denying benefits under the policy,’ meaning that [the insured] cannot demonstrate bad faith.”

Judge Brann then added, “even if this Court were incorrect in its decision that [the insurer] owes no duty to indemnify [the insured], the duty to indemnify is, at the very least, debatable, in light of the differing conclusions reached by the Superior Court and the Third Circuit. Given that the caselaw in this area does not establish a clear duty … to indemnify …, it cannot be said that [the insurer] had no reasonable basis to deny benefits.”

Date of Decision:  January 26, 2021

Berkley Specialty Insurance Company v. Masterforce Construction Corp., U.S. District Court Middle District of Pennsylvania No. 4:19-CV-01162, 2021 WL 254002 (M.D. Pa. Jan. 26, 2021) (Brann, J.)

INSURER NOT REQUIRED TO PRODUCE PERSONNEL FILE, BUT IS REQUIRED TO (1) PROVIDE CORPORATE DESIGNEE FOR DEPOSITION, (2) PRODUCE MANUALS AND TRAINING MATERIALS WITHIN CERTAIN TIME/GEOGRAPHIC LIMITS, AND (3) PROVIDE CLAIMS FILES TO THE COURT FOR IN CAMERA REVIEW ON PRIVILEGE AND WORK PRODUCT (Philadelphia Federal)

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The instant dispute involves the depositions of the claims handler and a corporate designee, as well as the scope of document discovery. The insurer made extensive objections to document requests accompanying the notices of deposition, and the any deposition of a corporate designee.  These are described in detail below.

This UIM bad faith case survived an earlier motion to dismiss, and was now proceeding on the merits before Magistrate Judge Perkin.  (Judge Leeson’s 2020 decision allowing the case to proceed is summarized here.)

General Discovery Principles

Magistrate Judge Perkin set out the basic principles guiding his decision:

  1. Rule 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]”

  2. “Relevance is a broad concept that encompass[es] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”

  3. “As an initial matter, therefore, all relevant material is discoverable unless an applicable evidentiary privilege is asserted. The presumption that such matter is discoverable, however, is defeasible.”

  4. “While the discovery rules are meant to be construed liberally, the responses sought [by a party] must comport with the traditional notions of relevancy and must not impose an undue burden on the responding party.”

  5. “To determine the scope of discoverable information under Rule 26(b)(1), the Court looks initially to the pleadings.”

  6. “In deciding which materials are discoverable and which are not, a district court must further distinguish between requests that ‘appear[ ] reasonably calculated to lead to the discovery of admissible evidence’ … and demands that are ‘overly broad and unduly burdensome.’”

Documents Requested in Connection with the Claim Handler’s Deposition

The insured did not object to the claim handler’s deposition, but did make multiple objections to the document requests accompanying the notice of deposition.

Manuals and Training Documents Subject to Limited Discovery

Plaintiff’s first request was for “[a]ny and all documents, policies, procedures, rules, regulations, manuals, training documents, or other documents or things relevant to the handling and/or evaluation of Underinsured Motorists claims during the period of 2015-2020.”

Plaintiff’s second request was for “[a] true and correct copy of the complete “Claims Manual/Claims Office Manual” or other such similar document(s) by whatever name or title used by Defendants for the handling of Underinsured Motorists benefits for the years 2015 through and including 2020.”

Plaintiff’s third request was for “[a] true and correct copy of the complete “Training Manual” or other such similar document(s) by whatever name or title used by Defendant for the purpose of training its employees in the handling of Underinsured Motorists benefits claims for the years 2015 through and including 2020.”

Plaintiff’s fourth request was for “[t]rue and correct copies of any and all claims bulletins, internal memoranda, letters, notices, or similar documents sent by management to the claims staff relating to the handling of Underinsured Motorists benefits claims for the years 2015 through and including 2020.”

The court found the first request relevant to both the breach of contract and bad faith claims, specifically ruling that manuals and other training materials are relevant to bad faith claims “where they contain instructions concerning procedures used by employees in processing claims.” Magistrate Judge Perkin added that “[t]raining materials ‘relevant to processing the claim in question’ are discoverable, as they may show, inter alia, ‘that agents of an insurance company recklessly disregarded standard interpretations of a particular contractual provision in denying coverage or deliberatively omitted certain investigatory steps.’”

However, Magistrate Judge Perkin agreed with the insurer that plaintiff’s requests were “overly broad in time, and should be limited to the period from when Defendant was first on notice of a UIM claim through the present.” First notice was when the insurer received correspondence from Plaintiff’s counsel informing Defendant of an anticipated underinsured motorist claim.

Magistrate Judge Perkin limited the geographic scope as well, “to those documents and materials governing underinsured motorist claims in Pennsylvania,” where the underlying accident occurred, where plaintiff resided, and the policy provided for UIM benefits under Pennsylvania law.

Magistrate Judge Perkin rejected the argument that the materials were trade secrets or proprietary in nature, pointing out there was no showing made to this effect but only “bare allegations that the information requested falls under this definition” which were insufficient “to protect such information from discovery.”

The court used the same analysis to address document requests 2-4.

Court Permits Discovery, with Limitations, of Claim Handling and Investigation Files

Plaintiff requested “[t]rue and correct copies of any and all letters, correspondence, documents, reports, or other records which relate to review, evaluation, and/or assessment of the causation or lack thereof of Plaintiff’s injuries following the underlying motor vehicle accident which was relied upon in the handling, assessment, investigation, and/or evaluation of Plaintiff’s UIM claim.”

Plaintiff also requested “[a]ny and all claims, notes, correspondence, records, recordings, documents, letters, phone logs, emails, or other communication writings or things pertaining to [the claim] from October 12, 2016 through present.”

Magistrate Judge Perkin observed that “an insurer, is not permitted to shield the discovery of its entire claims handling and investigation under the attorney-client privilege and work-product doctrine by hiring an attorney to perform its services. As Plaintiff noted in her brief, a bad faith claim may include “evidence of the insurer’s bad faith that occurred after the filing of the complaint.” The court reviewed the insurer’s privilege log and redacted documents, but could not determine whether the attorney-client privilege or work product doctrine actually applied. Thus, Magistrate Judge Perkin ordered the insurer to make the full documents available for in camera review, including “internal file notes regarding communications with legal counsel … ; UIM strategy and evaluation; claim handling[;] Amount of reserves and legal expenses on the UIM and Medical Payment claims[;] … Evaluation Report for Plaintiff’s UIM claim [;] … internal emails regarding receipt of this lawsuit, and assignment to legal counsel … [;] ISO Claim Search report[; and] Asset report regarding [the tortfeasor driver], for consent to settle/waiver of UIM subrogation purposes[.]”

The second request quoted above was also subject to in camera review for the same reasons. The court added that “[t]o the extent that Defendant maintains any of the requested material outside of the web-based system, it shall produce such information immediately to Plaintiff unless it is appropriately protected by a privilege.”

These were limited to the time period from the date the insurer first had notice, as described above.

The insurer also requested “[a]ny and all claim files concerning Plaintiff’s claim for underinsured motorist benefits, in paper, electronic, and/or other available format.” Magistrate Judge Perkin ruled that “[a]s with the previous two requests, this Court will conduct an in camera review to determine if Defendant properly withheld documents related to this request. Defendant is not required to perform forensic investigation into its computing devices or systems to locate information existing prior to when Defendant’s duty to preserve evidence arose which is no longer accessible. Similarly, Defendant does not need to produce the same ESI in more than one form. Fed. R. Civ. P. 34(b)(2)(E)(iii). If Defendant maintains any information responsive to the above request in non-electronic forms, it shall produce such information immediately to Plaintiff unless it duplicative of what has already been produced or properly protected by a privilege.” [Emphasis in original]

Insurer not Compelled to Produce Personnel Files

The insured requested “[p]ersonnel file, including applications for employment, evaluations, awards, commendations, complaints, reprimands, resumes, attendance records for the period of 2016-2018, tests, performance appraisals, documents reflecting job performance and/or employee conduct, letters of commendation, reprimands, letters of termination, personnel action notices, investigative files and reports concerning or substantially concerning [the specific] Claims Specialist, only.”

Magistrate Judge Perkin ruled “[t]he request for personnel information implicates the strong public policy against disclosure of such materials.” Thus, “[w]hile information relating to [the claim handler’s] employment and job performance may be relevant to Plaintiff’s bad faith claim, Plaintiff may learn this information through less invasive means, such as by deposition or interrogatory. … Accordingly, while Plaintiff may obtain the employment information it seeks by deposing [the claim handler], or through interrogatories, Defendant is not compelled to produce the materials relating to the above request.”

Deposition of Corporate Designee Permitted

The court observed that corporate designees are called to testify about their personal knowledge only, but also to speak for the corporation “about matters to which the corporation has reasonable access.” In this case, the insured’s bad faith claim included allegations beyond valuation, “but also claims that defendant mishandled, failed to properly investigate and evaluate the claim and otherwise acted in bad faith.” Plaintiff wanted the 30(b)(6) designee “to represent the collective knowledge of the corporation and to present its positions on certain topics [,] including … “the manner and method of how Defendant instructs, advises, directs, and incentivizes its employees to handle claims is directly related to what, if anything, the adjuster(s) did in handling this claim and why.”

Magistrate Judge Perkin refused to quash the corporate designee’s deposition, finding the insured was “entitled to depose the corporate representative and obtain an official explanation of the claims-handling policies used by” the insurer.

He did not, however, stop there.  Rather, Magistrate Judge Perkin addressed objections to individual matters designated for examination and individual document requests accompanying the subpoena.

  1. “1st Matter for Examination: The thoughts, analysis, evaluation(s), rationale(s), investigation, actions, research, review, and reasoning of the handling adjuster’s supervisor at Defendant insurance company who personally participated in the decision to offer $6,000 on or about October 25, 2019, to resolve Plaintiff’s claim. (The term “participated” as used in this paragraph includes, without limitation, reviewed any documents, analyzed and/or discussed the matter with anyone, approved the offer of compromise or provided any information or input whatsoever into the decision).”

Magistrate Judge Perkin reserved ruling on this area of examination until after he had conducted the in camera review described above.

  1. “2nd Matter for Examination: The existence and content of any writings, files, procedures, claims-handling procedures, guidelines, claims manuals, or documents of any kind including any material contained in any computer which existed at any time from 2015 to the present, applicable to the handling and adjustment of Plaintiff’s claim.”

Magistrate Judge Pekin permitted this area of examination, to allow for questioning on “[t]he existence and content of any writings, files, procedures, claims-handling procedures, guidelines, claims manuals, or documents of any kind which existed from March 16, 2017 through 2020, applicable to the handling and adjustment of Plaintiff’s claim.”

  1. “3rd Matter for Examination: Defendant’s claims handling manuals, guidelines, or any other documents used to instruct personnel on the claims handling and/or adjustment practice used by State Farm to instruct/train/educate/direct or otherwise teach its claims adjusters to adjust first-party Underinsured Motorists (“UIM”) claims as of October 1, 2015.”

The court found this area of questioning relevant, within time and geographic limits, stating “[d]efendant’s claims handling manuals, guidelines, or any other documents used to instruct personnel on the claims handling and/or adjustment practice used by [the insurer] to instruct/train/educate/direct or otherwise teach its claims adjusters to adjust first-party Underinsured Motorists (“UIM”) claims in Pennsylvania from March 16, 2017 through 2020.”

  1. “4th Matter for Examination: State Farm’s policy, practice and procedure for promotion of claims representatives and/or adjusters within State Farm as of October 1, 2015 through the present.”

The court found the insurer’s “policies, practices, and procedures for promotions of claims representatives and adjusters is relevant to its claim of bad faith. To the extent that there are employee incentives to close out insureds’ claims, or handle claims in a particular manner, such information could reveal facts relevant to the motivations of the employees who handled Plaintiff’s claim.” Discovery was thus allowed, within a limited time frame.

  1. “5th Matter for Examination: Defendant’s training materials, practices, and procedures for claims adjusters handling UIM claims as of October 1, 2015 through the present.”

The court permitted discovery within time and geographic limits, “Defendant’s training materials, practices, and procedures for claims adjusters handling UIM claims in Pennsylvania as of March 16, 2017 through 2020.”

  1. “6th Matter for Examination: Defendant’s methods, policies, procedures, and practices used to calculate the value of damages in a UIM claim as of October 1, 2015 through the present.”

Again, the court permitted discovery within time and geographic limits, “Defendant’s methods, policies, procedures, and practices used to calculate the value of damages in a UIM claim in Pennsylvania as of March 16, 2017 through 2020.”

  1. “7th Matter for Examination: Any and all materials provided to claims adjusters handling UIM claims for the purpose of training claims adjusters and/or representatives as to calculating, evaluation, assessing, and determining value of damages as of October 1, 2015 through the present.”

Again, the court permitted discovery within time and geographic limits, “Any and all materials provided to claims adjusters handling UIM claims in Pennsylvania for the purpose of training claims adjusters and/or representatives as to calculating, evaluation, assessing, and determining value of damages as of March 16, 2017 through 2020.”

  1. “8th Matter for Examination: The policies and procedures for evaluating, assessing, and investigating personal injuries to an insured in a UIM claim as of October 1, 2015 through the present.”

Again, the court permitted discovery within time and geographic limits, “The policies and procedures for evaluating, assessing, and investigating personal injuries to an insured in a UIM claim in Pennsylvania as of March 16, 2017 through 2020.”

The court next addressed the document requests accompanying the corporate designee’s notice of deposition.

  1. “Request 1: Any and all claims manuals, reference materials, training manuals, and/or guidelines for interpretation of the relevant insurance policy.”

Following his analysis in addressing the document requests accompanying the claim handler’s notice of deposition, Magistrate Judge Perkin found the request relevant to the bad faith claim, within the limited time period.  To the extent the response would be identical to the other request, however, he would not require a separate production; rather, the defendant could cross reference that earlier production to bates numbers.

  1. “Request 2: Any and all documents, materials, manuals, guides, claims manuals, handbooks, training materials or other items relating to the topics set forth above.”

Again following the same request to the claim handler, the documents were relevant to the bad faith claim within a limited time period, and the same process of cross-referencing to bates numbers could be followed.

  1. “Request 3: The personnel files of all company employees who worked on Plaintiff’s UIM claim.”

Again following the earlier analysis, the insurer was not required to produce written materials, leaving the insured to pursue that employment information through the deposition or interrogatories.

Date of Decision:  January 22, 2021

SOLANO-SANCHEZ v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, U.S. District Court Eastern District of Pennsylvania No. CV 19-4016, 2021 WL 229400 (E.D. Pa. Jan. 22, 2021) (Perkin, M.J.)

COURT FINDS 61 TO 1 RATIO OF PUNITIVE TO COMPENSATORY DAMAGES IMPLAUSIBLE (Philadelphia Federal)

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Plaintiff sued his dental insurer in federal court for breach of contract, bad faith, and various other claims.  He moved for permission to proceed in forma pauperis, and while the court granted that motion, it dismissed the claims for lack of subject matter jurisdiction. Specifically, the complaint could not make out a claim in excess of $75,000.

The actual damages alleged were $1,200.  The court recognized the bad faith statute allowed for punitive damages, which could be considered toward establishing the $75,000 jurisdictional minimum amount in controversy.  Judge Marston found this to mean the insured was seeking at least $73,800 in punitive damages on his $1,200 compensatory damages claim, an approximate 61:1 ratio.

“But, as the Supreme Court has explained, ‘in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.’” In this case, even allowing a punitive damages award nine times compensatory damages “is a mere $10,800—far below the jurisdictional amount.”

Relying on the Third Circuit’s unpublished opinion in Kalick v. Northwest Airlines, Judge Marston found there was no plausible claim that could reach $75,000, and dismissed for lack of subject matter jurisdiction.

Date of Decision:  January 22, 2021

Berkery v. Metropolitan Life Ins. Co., U.S. District Court Eastern District of Pennsylvania No. CV 21-26-KSM, 2021 WL 229320 (E.D. Pa. Jan. 22, 2021) (Marston, J.)

BAD FAITH CLAIM STATED WHERE COMPLAINT MAKES OUT CLAIM INSURER KNOWINGLY DENIED BENEFITS DUE (Philadelphia Federal)

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This case involves a discrepancy over whether an insured timely renewed his life insurance policy, two months before his death.  There was a dispute of fact over the date when the premium payment was mailed and received.

The carrier insisted the premium check was not mailed and received before the date necessary to maintain the policy. It deposited the insured’s payment check, but later returned the payment sum and deemed the policy lapsed on the basis the payment was outside the policy’s grace period. The beneficiary children, through their mother, alleged the check in fact was mailed and received within the grace period for premium payments. They sued for breach of contract and bad faith.

The insurer moved for judgment on the pleadings as to both counts.

First, the court denied judgment on the pleadings regarding the breach of contract claim. There was a dispute of fact over the mailing and receipt dates that could not be resolved via a motion for judgment on the pleadings.

Judge Slomsky then rejected the motion to dismiss the bad faith claim.

The plaintiffs alleged the insurer denied their claims without a reasonable basis, knowing that it had in fact received the insured’s premium payment during the grace period for continuing the policy. Further, the plaintiffs adequately alleged the insurer “knew of or recklessly disregarded the lack of reasonable basis because it knew [payment was timely] when it received and deposited the July Payment [from the deceased insured].”  Despite this knowledge, the insurer “refused to pay the Policy’s benefits and never issued a denial letter.”

In denying the motion, Judge Slomsky concluded that, “[a]t this stage, viewing the facts in the light most favorable to Plaintiffs, they are sufficient to raise an inference that [the insurer] refused to pay under the Policy in bad faith.”

Date of Decision: January 21, 2021

Mullin v. Reliastar Life Insurance Company, U.S. District Court Eastern District of Pennsylvania No. CV 20-1438, 2021 WL 210962 (E.D. Pa. Jan. 21, 2021) (Slomsky, J.)