Monthly Archive for June, 2020
As in the two Eastern District cases summarized earlier this week, Middle District Judge Jennifer P. Wilson dismissed a bad faith claim with leave to amend. Judge Wilson also struck fiduciary duty allegations from the complaint in this uninsured motorist case.
The complaint fails to allege bad faith
The insured alleged the insurer was “supplied with documentation sufficient to fully and fairly evaluate the uninsured motorist claim, but [the insurer] failed to do so.” Judge Wilson found the insured failed to plead specific facts as to what might qualify as bad faith conduct. Plaintiff simply alleges the bad faith elements, and “does not lay out ‘any facts that describe who, what, where, when, and how the alleged bad faith conduct occurred.’” Judge Wilson cited Western District Judge Bissoon’s Mondron opinion to support her conclusion, though she did allow plaintiff leave to amend.
No fiduciary duty in UM/UIM context
The insurer also successfully moved to strike allegations that it owed a fiduciary duty.
The court observed that the insured’s breach of contract claim was based on the UM policy benefits. In Pennsylvania, there is no fiduciary duty arising out of insurance contracts that goes beyond the duty of good faith and fair dealing “until an insurer asserts a stated right under the policy to handle all claims asserted against the insured. … These are not the circumstances in an uninsured motorist claim.”
Rather, the Pennsylvania Supreme Court makes clear in the UM/UIM context “an insurance company’s duty to its insured is one of good faith and fair dealing. It goes without saying that this duty does not allow an insurer to protect its own interests at the expense of its insured’s interests. Nor does it require an insurer to sacrifice its own interests by blindly paying each and every claim submitted by an insured in order to avoid a bad faith lawsuit.”
Thus, plaintiff’s allegations of a fiduciary duty were “not pertinent to her breach of contract claim, which only requires an insurer to act in good faith and fair dealing towards the insured.” As allowing the fiduciary duty allegations would only confuse the actual issues in the case, the motion to strike those allegations was granted.
Date of Decision: June 17, 2020
Miller v. State Farm Mutual Automobile Insurance Co., U.S. District Court Middle District of Pennsylvania Civil No. 1:20-CV-00367, 2020 U.S. Dist. LEXIS 105766 (M.D. Pa. June 17, 2020) (Wilson, J.)
In these two Philadelphia federal opinions issued last week, bad faith claims were dismissed without prejudice. In one case, this was based on a set of pleadings that has been repeatedly held conclusory in nature. In the other, after stripping away the conclusory allegations, the court found that the remaining factual allegations simply did not make out a bad faith case.
There have been at least 10 prior opinions out of Pennsylvania’s Eastern District this year similarly dismissing bad faith claims for inadequate pleading.
-
Lopez v. Selective Insurance Co. of South Carolina (Judge Schiller, Eastern District)
In Lopez v. Selective Insurance, Judge Schiller found the complaint set out only conclusory allegations, and that these allegations “did not logically follow from any facts alleged in the Complaint.” These included the following 13 separate allegations, all of which failed:
“[S]ending correspondence falsely representing that Plaintiff’s loss caused by a peril insured against under the Policy was not entitled to benefits due and owing under the policy . . . failing to complete a prompt and thorough investigation of Plaintiff’s claim before representing that such claim is not covered under the Policy . . . failing to pay Plaintiff’s covered loss in a prompt and timely manner . . . failing to objectively and fairly evaluate Plaintiff’s claim . . . conducting an unfair and unreasonable investigation of Plaintiff’s claim . . . asserting Policy defenses without a reasonable basis in fact . . . flatly misrepresenting pertinent facts or policy provisions relating to coverages at issue and placing unduly restrictive interpretations on the Policy and/or claim forms . . . failing to keep Plaintiff or their representatives fairly and adequately advised as to the status of the claim . . . unreasonably valuing the loss and failing to fairly negotiate the amount of the loss with Plaintiff or their representatives . . . failing to promptly provide a reasonable factual explanation of the basis for the denial of Plaintiff’s claim . . . unreasonably withholding policy benefits . . . acting unreasonably and unfairly in response to Plaintiff’s claim . . . unnecessarily and unreasonably compelling Plaintiff to institute this lawsuit to obtain policy benefits for a covered loss, that Defendant should have paid promptly and without the necessity of litigation.”
In describing what the complaint lacked, Judge Schiller observed, “[t]he Complaint does not contain any factual allegations that relate to why or how Defendant’s basis for denying the claim was unreasonable. Indeed, the Complaint does not include any facts related to Defendant’s purported basis for denying the claim or Defendant’s actions or omissions in conducting an investigation. Plaintiff’s Complaint does not describe the cause or extent of the alleged loss, the provisions of the insurance policy at issue, the date on which Plaintiff made Defendant aware of the loss, or the date on which Defendant initially denied the claim. Plaintiff’s conclusory allegations are not supported by specific facts sufficient to state a plausible claim for relief. Courts consistently hold that bare-bones allegations of bad faith such as these, without more, are insufficient to survive a motion to dismiss.”
Plaintiffs relied on the 1009 Clinton Properties opinion, but consistent with a number of other recent decisions, Judge Schiller found Clinton Properties to be an “outlier” and rejected the insureds’ argument. Clinton Properties has similarly been deemed an outlier by Judge Marston in her Cappuccio decision, Judge Darnell Jones in Clapps, and Judge Leeson in Shetayh. These cases rejected very similar allegations in each instance.
Date of Decision: June 17, 2020
Lopez v. Selective Insurance Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 20-1260, 2020 U.S. Dist. LEXIS 105733 (E.D. Pa. June 17, 2020) (Schiller, J.)
-
Graves v. USAA General Indemnity Co. (Judge Gallagher, Eastern District)
The insureds brought UIM breach of contract and bad faith claims. The court dismissed for failing to plead anything other than conclusory allegations or facts that could not constitute bad faith.
After stripping away the conclusory allegations, the court found the following factual allegations, even assuming their truth, failed “to support a claim that Defendant adjusted the UIM claim in bad faith.”
“1) Plaintiff was operating a motor vehicle which was insured under a USAA insurance contract and which provided for UIM benefits; 2) the accident was caused by the third party; 3) Plaintiff suffered severe injuries as a result of the accident; 4) Plaintiff submitted a claim for UIM benefits; 5) Plaintiff complied with the policy’s requirement to obtain Defendant’s consent to settle her claim against the third party; 6) Plaintiff forwarded her medical documentation to Defendant; and 7) Defendant has not paid the UIM claim.”
Graves v. USAA General Indemnity Co., U.S. District Court Eastern District of Pennsylvania Civil No. 2:20-cv-00786-JMG, 2020 U.S. Dist. LEXIS 105123 (June 16, 2020) (Gallagher, J.)
The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog is celebrating its 14th anniversary.
We’ve posted nearly 1,700 case summaries since June of 2006, with hundreds of thousands of views. We have taken a matter of fact approach, with our focus on presenting judges’ opinions as explained by the judges themselves, only occasionally with editorial comment.
Our view is that seeing and understanding what the courts are actually saying is vital not only for attorneys pursuing or defending bad faith actions, but essential for parties to understand how the courts will interpret their conduct. This allows, e.g., for insurers to get a handle on the parameters of good faith claim management in Pennsylvania and New Jersey to avoid bad faith claims before they arise. It also provides an understanding to insureds that bad faith will not be measured solely from an insured’s viewpoint, which may be subject to the frustration, fear or anger naturally arising from a loss or being sued, but objectively from the totality of the circumstances, including the insurer’s perspective as well as the insured’s.
We certainly expect to see bad faith case law developing around Covid-19 coverage claims in the coming months and next few years, and will be reporting on those cases as they arise.
But most of all, we wish safety and good health for all of you.
Fineman, Krekstein & Harris
In this case, the insured made a water damage claim, as well as claims for roof damages. She hired a public adjuster to pursue the claims. The insured alleged her public adjuster met with the carrier’s adjuster, and the carrier’s adjuster authorized the insured to proceed with remediating the water damage. Five months later, the carrier sent out its own contractor to inspect the insured’s roof, and that contractor informed the public adjuster that the insured’s roof claims were covered.
The carrier subsequently denied all coverage and refused to pay on any claims. Once the insured retained counsel, however, the carrier agreed to pay part of the claim (for water damage).
The insured sued for breach of contract and bad faith, along with a variety of other claims. (The court allowed a negligent misrepresentation claim to stand against the carrier, rejecting the carrier’s gist of the action argument, on the basis that duties outside the contract were assumed and potentially violated.)
The carrier moved to dismiss the bad faith claim. It asserted that its contractor had no power to bind on coverage, and that it offered to pay the insured’s water damage losses after the insured retained counsel. The court rejected these arguments and allowed the bad faith claims to proceed.
The insured first pleaded coverage was due and her claim was denied. She then specifically alleged that two of the carrier’s representatives agreed coverage was due, establishing that the insurer was without a reasonable basis to deny coverage. This met the first bad faith element.
Next, as to proving the second element concerning the insurer’s intent, plaintiff had alleged the carrier’s two “representatives, upon reviewing [the] insurance claim and/or observing the Property, determined that the damage at issue was covered under the Policy. … These facts, if true, support a finding that [the insurer] knew or recklessly disregarded that it lacked a reasonable basis to deny [the] insurance claim, i.e. that [it] knew, through its representatives, that the damage at issue was covered under the Policy but still chose to deny benefits.”
Eventually offering to pay part of the insured’s claim did not eliminate potential bad faith, as the insured pleaded there was no reasonable basis to deny the entire claim.
The court did agree that the insured could not recover compensatory damages for unpaid insurance benefits under the bad faith statute, but this relief was available under other counts.
Date of Decision: June 3, 2020
Nelson v. State Farm Fire & Casualty Co., U.S. District Court Western District of Pennsylvania 2:19-cv-01382-RJC, 2020 U.S. Dist. LEXIS 97239 (W.D. Pa. June 3, 2020) (Colville, J.)
This New Jersey federal case involved breach of contract and bad faith claims. The carrier successfully moved to sever and stay the bad faith claims.
General Bad Faith Principles
The court first stated general principles of New Jersey bad faith law.
-
“A breach of the implied covenant of good faith and fair dealing, which is synonymous with a bad faith claim, focuses on the conduct of the insurer in its review and processing of a claim under an existing policy.”
-
“It is a distinct cause of action from a policyholder’s breach of contract claim against an insurer.”
-
“The breach of insurance contract claims concern policy coverage while bad faith claims concern the insurer’s general claims handling procedures, its claims conduct in the case at issue, and its knowledge and state of mind about the grounds for denial of coverage.”
-
“Coverage is a necessary precondition to maintaining a bad faith claim predicated on a denial of benefits.”
-
“If the insured is unable to establish a right to the coverage claimed, the bad faith claim must be dismissed.”
-
“Beyond the mere existence of coverage, ‘the plaintiff must show that no debatable reasons existed for denial of the benefits.’”
-
“Under the ‘fairly debatable’ standard, ‘a claimant who [cannot] establish[] as a matter of law a right to summary judgment on the substantive claim [cannot] . . . assert a claim for an insurer’s bad faith refusal to pay the claim.’”
-
“In other words, ‘a question of fact permits an insurer to ‘fairly debate’ an insured’s claim.’”
-
“If factual issues exist as to the underlying claim (i.e., questions of fact as to whether plaintiff is entitled to insurance benefits—plaintiff’s first cause of action), the Court must dismiss plaintiff’s second cause of action—the ‘bad faith’ claim.”
-
“To ultimately prevail, the plaintiff must also establish ‘the defendant’s knowledge or reckless disregard of the lack of a reasonable basis in denying the claim.’”
-
“Bad faith can take the form of more than just improper denial of benefits.”
-
“In the case of processing delay, bad faith is established by showing that no valid reasons existed to delay processing the claim and the insurance company knew or recklessly disregarded the fact that no valid reasons supported the delay.”
-
“Although the ‘fairly debatable’ and ‘unreasonable delay’ tests apply in different circumstances, the analysis under both formulations is essentially the same.”
General Principles Concerning Severing and Staying Claims
-
“Severing claims under Rule 21 is appropriate where the claims to be severed are discrete and separate in that one claim is capable of resolution despite the outcome of the other claim.”
-
“The effect of ordering severance is to separate the claims into ‘independent actions with separate judgments entered in each.’”
-
“On the other hand, this Court can bifurcate claims for discovery and trial pursuant to Rule 42(b).”
-
“Courts consider the same factors in deciding a motion to sever under Rule 21 as they do in resolving a motion to bifurcate under Rule 42(b).”
-
“Courts consider the following prior to making this discretionary determination:
(1) whether the issues sought to be tried separately are significantly different from one another,
(2) whether the separable issues require the testimony of different witnesses and different documentary proof,
(3) whether the party opposing the severance will be prejudiced if it is granted, and
(4) whether the party requesting severance will be prejudiced if it is not granted.”
Applying Law to the Facts in a Bad Faith Case
The court observed “that [because] the ‘fairly debatable’ standard necessitates a ruling on coverage prior to the adjudication of a bad faith claim, courts in this district have opined that it is ‘[n]o surprise, then, that severance and stay of bad faith claims has been called the ‘prevailing practice’ in both the state and federal courts of New Jersey.’” Anticipating the outcome here, the court added that “[i]t is common practice in both state and federal court to sever breach of insurance contract claims from bad faith claims . . . and . . . [to] proceed[] with the bad faith claims [only] if necessary following the adjudication of the contract claim.” (internal quotation marks omitted).
Specifically, in this case, the court found:
The bad faith claim was significantly different than the contract claim.
-
The bad faith claim goes to the carrier’s state of mind.
-
By contrast, the carrier’s “intent is wholly irrelevant to the otherwise straight-forward questions” concerning payments due from the carrier under the contract.
-
Bad faith discovery will distract from, and “undoubtedly delay, the resolution of the primary focus of the case, i.e., whether plaintiff’s . . . claim should be paid.”
-
Here, the court first has to resolve coverage, and even if there is coverage, it “can only reach the bad faith claim if it finds that there are no factual issues pertaining to Plaintiffs’ entitlement to coverage ….”
Thus, “[d]iscovery on the bad faith claim should therefore wait until the question of coverage is resolved.”
The bad faith claim and contract claim involve different discovery.
-
First, the court agreed with the majority of prior precedent that “bad faith claims regularly demand different witnesses and documentary proof from breach of contract claims.”
-
For example, “’[d]iscovery relating to claims personnel, claims handling procedures and guidelines, and best practices is not directly relevant to the contract claims …, [e.g.,] ‘classic bad faith discovery such as information concerning defendant’s claims handling policies and procedures, and the experience and work evaluations of its claims personnel . . . is irrelevant to plaintiff’s . . . breach of contract claims’”
-
In this case, the insureds wanted discovery of the insurer’s: entire underwriting file; claims manuals concerning the coverage subject at issue; information and documents regarding policy underwriting, drafting, selling, pricing, issuing, preparing, delivering or assembling the policy; and information and documents regarding the carrier’s decisionmaking in not making certain payments under the policy.
-
The court found these “categories of documents … largely irrelevant to the breach of contract claims, which hinge on whether the parties abided by the terms of the Policy.”
There is no prejudice in granting a stay and severance.
-
The prejudice issue is “ultimately one of judicial economy.”
-
In this case, “the expedient resolution of the breach of contract claim best serves the interests of both parties as the expansive and contentious discovery necessitated by the bad faith claim may distract from the coverage questions at the foundation of this case.”
-
Thus, the coverage claim should be the initial focus.
-
Defendant would suffer significant expenditures of time and money, which could be rendered unnecessary if it prevails on coverage.
-
Further, “[i]t promotes judicial economy and efficiency by holding in abeyance expensive, time-consuming, and potentially wasteful discovery on a bad faith claim that may be rendered moot….”
Date of Decision: June 2, 2020
J. Fletcher Creamer & Son, Inc. v. Hiscox Insurance Co., U.S. District Court District of New Jersey Civil Action No. 19-21638 (ES) (MAH), 2020 U.S. Dist. LEXIS 96986 (D.N.J. June 2, 2020) (Hammer, J.)
This case involved multiple coverage disputes with different carriers over the same events. New Jersey District Court Judge Michael A. Shipp issued three opinions in this action on the same date (as well as a fourth opinion in a related action). This summary addresses the three coverage/bad faith opinions.
The insured provided services to a Medicare/Medicaid drug plan provider. The plan provider was sanctioned for improprieties with its plan, and was suspended from the program. In turn, the provider brought breach of contract and fraud claims against the insured for its alleged failures in providing services, and its misrepresentations in hiding its failures, all of which caused the sanctions and suspension. The insured ultimately settled the case with the Medicare provider and sought recovery from its various insurers for defense costs and/or indemnification.
The first opinion involves coverage claims against Travelers and ACE (the excess insurer to Travelers), and a bad faith claim against ACE. The court found that no coverage was due from Travelers or ACE under their polices, and thus no defense obligation existed.
On the issue of bad faith, the court applied the “fairly debatable” standard set out in Pickett v. Lloyd’s. If a bad faith plaintiff “could not have established as a matter of law a right to summary judgment on the substantive claim [it] would not be entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.”
The court then set out the more detailed criteria to determine the issue.
Judge Shipp observed that “’[a] more difficult application of the standard arises when the issue involves not a denial or refusal to pay a claim but … inattention to payment of a valid, uncontested claim.” (Court’s emphasis). “’In the case of processing delay, bad faith is established by showing that no valid reasons existed to delay processing the claim and the insurance company knew or recklessly disregarded the fact that no valid reasons supported the delay.’”
“’In either case (denial or delay), liability may be imposed for consequential economic losses that are fairly within the contemplation of the insurance company.’” “Whether arising under a denial of coverage or a delay in processing a claim, ‘the test appears to be essentially the same.’”
In the first opinion, the court found the insured was not entitled to coverage from Travelers or ACE under commercial general liability and umbrella policies. Thus, the insured could not “assert a claim for bad faith against ACE.”
The second opinion involved breach of contract and bad faith claims against Allied World Specialty Insurance Company, which had issued a D&O policy. Again, the court found no coverage due, and so no bad faith.
The third opinion addresses claims against Atlantic Specialty Insurance Company and RSUI Indemnity Company (the excess carrier). Breach of contract claims were raised against both carriers, involving D&O defense or coverage, as well as a bad faith claim against Atlantic Specialty. As in the other two opinions Judge Shipp found no coverage due under the Atlantic Specialty policy. Thus, “[b]ecause Atlantic Specialty’s Policy does not provide coverage for the [underlying] action, [the insured] cannot recover consequential damages for Atlantic Specialty’s alleged bad faith delay.”
Dates of Decision: May 31, 2020
Benecard Services, Inc. v. Allied World Specialty Insurance Co., U.S. District Court District of New Jersey Civil Action No. 15-8593 (MAS) (TJB), 2020 U.S. Dist. LEXIS 94806 (D.N.J. May 31, 2020) (Shipp, J.)
The opinion involving Travelers and ACE can be found here.
The opinion involving Atlantic Specialty can be found here.
A policy lapsed for failure to make payments. Plaintiff brought an action for breach of the duty of good faith and fair dealing, alleging that the insurer by failed to notify him a premium was due. The trial court granted the insurer summary judgment and the Third Circuit affirmed.
This was a contract-based claim, not a statutory bad faith claim. As the Third Circuit observed, “Pennsylvania law implies a duty of good faith and fair dealing into every contract.” Contractual good faith means “[h]onesty in fact in the conduct or transaction concerned.” Examples of contractual bad faith include, e.g., “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.” However, “[t]he duty of good faith ‘is not divorced from the specific clauses of [a] contract and cannot be used to override an express contractual term.’”
The insurance agreement did not require the insurer to give notice of premium lapses and the consequence of such lapses. The insurer had an internal business practice to give such notices, and attempted to do so in this case, but there was considerable complication concerning the correct address and the notices never reached plaintiff. This was of no moment, however, because the duty of good faith is “tied specifically to and is not separate from the duties a contract imposes of the parties,” and here, the policy did not include a requirement that the insurer remind plaintiff that premiums were due “or otherwise notify him before the policy lapses.”
Alternatively, under the facts at hand, even if such a duty was imposed there was still no bad faith. The insurer did mail non-payment notices to the address it had for plaintiff, which was not plaintiff’s actual address. However, it was plaintiff’s own lack of diligence in failing to provide the correct address leading to his never receiving the notices.
Thus, summary judgment for the insurer was affirmed.
Date of Decision: May 29, 2020
Power v. Erie Family Life Insurance Co., U.S. Court of Appeals for the Third Circuit No. 19-2994, 2020 U.S. App. LEXIS 17083 (3d Cir. May 29, 2020) (Ambro, Hardiman, Restrepo, JJ.)
The plaintiffs disputed the insurer’s payout on a fire loss, and brought breach of contract and bad faith claims. The carrier moved to dismiss the bad faith claim.
To plead bad faith, an insured must do more than generally allege the insurer acted unfairly. The insured “must describe with specificity what was unfair.” (Court’s emphasis). Eastern District Judge Pratter found the complaint reached that level of specificity, and denied the motion to dismiss.
The insureds generally allege their claim was undervalued, and that the insurer engaged in “’extreme low- ball/undervaluation tactics and significantly and punitively undervaluing Plaintiffs’ losses and claim.’” The complaint then offers more detailed support for this broad statement.
Plaintiffs allege “the insurance policy provided dwelling coverage up to a limit of $281,200, along with a dwelling extension limit of $28,100. Personal property losses were covered up to a limit of $210,900. Plaintiffs also invoke several estimates they contend they submitted … for the cost of repair and restoration, and, nonetheless [the insurer] failed to indemnify Plaintiffs completely.”
The insureds assert they provided “an estimate of repair for damages to the dwelling in the amount of $57,726.99,” “another estimate of repair for structural losses in the amount of $56,839.12,” “an estimate of personal property loss in the amount of $9,900.36,” “an estimate for cleaning and remediation emergency services in the amount of $4,126.63,” “and an estimate for dry cleaning services in the amount of $21,624.00.” The insurer alloted $255.08 for the dry cleaning, fully recognized the emergency cleaning and remediation costs, and estimated the structural damage at $6,321.45. No payments were offered for any personal property losses.
Taking out depreciation and the deductible, the insurer issued a check for 4,666.46.
In deciding the motion, Judge Pratter observed, “[a]rithmetically, the insurer’s payment was no more than approximately ten percent of the claim….” This “suggest[ed] a possible obdurate refusal to consider the homeowners’ claim.” (Emphasis added). Judge Pratter thus found the factual allegations sufficient to state a bad faith claim on this basis.
Date of Decision: May 28, 2020
Scott v. State Farm Fire & Casualty Co., U.S. District Court Eastern District of Pennsylvania CIVIL ACTION No. 19-5559, 2020 U.S. Dist. LEXIS 92960 (E.D. Pa. May 28, 2020) (Pratter, J.)
