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In an effort to resolve a disputed issue in the area of bad faith litigation, the Pennsylvania Supreme Court recently decided the issue of whether an insured’s bad faith claims can be assigned to third party plaintiffs. In Allstate Property & Casualty Ins. v. Wolfe, ___ A.3d___, (Dec. 15, 2014), the Court found that an insured’s right to bad faith claims can, in fact, be assigned to a third party.  The Court’s decision was primarily based on its interpretation of the legislative intent of the commonwealth’s Bad Faith Statute, 42 Pa.C.S.A 8371.

The underlying case involved a 2007 motor vehicle accident, where third party defendant and Allstate insured, Karl Zierle, rear ended the vehicle driven by third party plaintiff Jared Wolfe, injuring Wolfe.  Allstate and Wolfe failed to settle the claim and the case went to trial. At trial, the jury awarded Wolfe $15,000 in compensatory damages and $50,000 in punitive damages. After the verdict was entered, Allstate satisfied the compensatory component of the judgment only, and did not indemnify Zierle for the punitive damages.  Wolfe and Zierle then entered into an agreement whereby Wolfe agreed not to execute on the punitive damages portion of the verdict, in exchange for an assignment from Zierle of all his claims against Allstate. Wolfe then filed a bad faith action against Allstate.

The bad faith action proceeded to trial and the jury found bad faith on the part of Allstate and awarded Wolfe $50,000 in punitive damages. Allstate commenced an appeal in the Third Circuit Court of Appeals, in which the insurer maintained its continually held position that Wolfe lacked standing to sue Allstate. Acknowledging that there had been conflicting decisions in in Pennsylvania and federal courts concerning the assignability of a right to damages under 42 Pa.C.S.A. Sec. 8371, the Third Circuit lodged a certification petition with the Pennsylvania Supreme Court, which was then granted by the Court.

Appellant Allstate argued that sanctioning assignments of punitive-damages claims under Section 8371 would create trouble by encouraging plaintiffs to pursue unreasonable settlement demands and advance bad-faith claims that otherwise never would have been initiated. Wolfe, on the other hand, argued that allowing the transfer would advance public policy in encouraging settlement and fostering the efficient litigation of claims, along with serving Section 8371’s purpose of deterrence. Wolf also centered his argument on the public policies supporting the Pennsylvania Supreme Court’s prior determination that bad-faith claims grounded in contract theory are assignable.

The Court reasoned that because the statute said nothing about assignability of claims within its provision, the principles of statutory construction should apply.  It then engaged in the determination of the intent of the legislature through the language of the Bad Faith Statue. In the end, the Court found in favor of  Wolfe’s argument and held that the intent of the General Assembly was not to prevent such assignments and that doing so would neither hinder settlement nor encourage additional litigation.  The Court then held that the entitlement to assert damages under the Pennsylvania Bad Faith Statute may be assigned to an injured plaintiff/judgment creditor by an insured.

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David R. Friedman

Office: King of Prussia, Philadelphia
Phone: (610) 977-4106
Email: dfriedman@forryullman.com
Practice Areas: Commercial Litigation, Coverage, First Party PIP / MPC, Fraud/SIU, General Liability, Premises Liability, Products Liability, Third Party, UM/UIM

After a two day trial before the Judge Lachman, a Philadelphia jury in Rosa v. Roman returned a defense verdict under the limited tort doctrine.  The Jury, after less than one hour of deliberation, found plaintiff’s’ complaints constant lumbar pain did not breach the limited tort threshold.  The jury unanimously rejected Plaintiff’s claims of a “serious impairment of a body function” as required to breach the limited tort threshold.  Defendant had conceded negligence for the accident.

Plaintiff submitted the  medical records of his treating physician, an EMG and a report from a pain management specialist opining that plaintiff suffered lumbar radiculopathy caused by the accident.  The MRI report noted various degenerative changes.  Plaintiff did not seek emergency medical treatment after the accident nor did Plaintiff report the accident to his treating physician when seen six (6) days after the accident.   Only two months after the accident, plaintiff had joined a dancing class and had started weight lifting.  Plaintiff initially received three (3) months of physical therapy and then didn’t treat for two (2) years.  Plaintiff also failed to tell his doctors about his subsequent fall down accident which was revealed during discovery.

Please contact David Friedman at Forry Ullman with any questions.

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David R. Friedman

Office: King of Prussia, Philadelphia
Phone: (610) 977-4106
Email: dfriedman@forryullman.com
Practice Areas: Commercial Litigation, Coverage, First Party PIP / MPC, Fraud/SIU, General Liability, Premises Liability, Products Liability, Third Party, UM/UIM

United States District Court Judge Mariani granted partial summary judgment dismissing Plaintiffs’ allegations of bad faith in a claim where Plaintiffs allege water damage to their basement.

Plaintiffs brought a claim under their homeowner’s insurance alleging that on September 7, 2011, their home was damaged as a result of Hurricane Irene and/or Tropical Storm Lee.  Plaintiffs observed exterior damage to their home, as well as to their basement interior which was reported to State Farm.  State Farm sent a representative to inspect the damage.  The inspector indicated that State Farm would pay for the exterior damage but it would not cover the damage to the interior basement because such damage was “flood damage” which was not covered by the homeowner’s insurance policy.  All parties agreed that the Plaintiffs did not maintain flood insurance.

Plaintiffs contend that the damage to their basement was not caused by “flooding” but rather by water leaking through the damaged roof and chimney into the basement walls.  The investigator, however, found that there was no evidence of damage from a roof leak based on the absence of any stains on the ceiling, on the walls, wet carpet, halls, or any water damage to the upper floors at all. An expert retained by State Farm supported that proposition while the public adjusters retained by the Plaintiffs contended that the basement water infiltrated the home through damage to the chimney and the roof.

Plaintiffs’ Complaint alleged counts for breach of contract and bad faith.  State Farm’s Counsel, Lee Ullman, Esquire, of Forry Ullman moved for Partial Summary Judgment on the Bad Faith issue.

The Court noted that “… bad faith must be proven by clear and convincing evidence and not merely insinuated.” The court then noted that the test for bad faith as set forth in the case of Terletsky v. Prudential Property & Casualty Insurance Company, 437 Pa. Super. 108, 649 A.2d 659, 688 (Pa. Super. 1994), appeal denied, 540 Pa. 641, 659 A.2d 560 (Pa. 1995), is an objective one and so as long as a “reasonable basis” exists to deny a claim, “there cannot, as a matter of law, be bad faith.’”.  Williams v. Hartford Casualty Insurance Company, 83 F. Supp. 2d, 567, 574 (E.D. Pa. 2000).

Plaintiffs argued that the inspection was inadequate, resulted in an incorrect assumption and that State Farm acted in bad faith in its immediate and unsubstantiated denial of the claim.  As evidence, the Plaintiffs allege that State Farm’s inspector spent approximately 25 to 30 minutes at the property and came to a conclusion different from that of the public adjuster.  Plaintiffs also alleged discrepancy existed between State Farm’s inspector’s belief that the water that entered the house was “subsurface water” and State Farm’s official denial letter stating that it was “surface water”.

Judge Mariani, specifically noted that Plaintiffs’ insurance policy did not insure against losses for either surface or subsurface water so that any discrepancy between the water sources would not affect whether the claim was paid.  With regard to the allegation that the inspector spent only 25 to 30 minutes in their home, he indicated there was no reason to believe on the record before him that a longer time was necessary, given that the uncontradicted testimony was that he only observed damage to the basement and none on the upper levels, which the court found, would substantiate State Farm’s claim that the cause was flooding.  Based on that, the Court found that the fact that the physical damage was consistent with the determination of flooding there was a reasonable basis sufficient to avoid a claim of bad faith.

The Court noted that there was no evidence to support the assertion that State Farm had “acted with a dishonest purpose” under Terletsky.  The Court found that it was a jury questions regarding the claim for breach of contract, Plaintiffs could not state a claim for bad faith under Pennsylvania law.  The Court again noted Terletsky, citing that “mere negligence or bad judgment is not bad faith.”

Copies of the Opinion are available upon request.

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David R. Friedman

Office: King of Prussia, Philadelphia
Phone: (610) 977-4106
Email: dfriedman@forryullman.com
Practice Areas: Commercial Litigation, Coverage, First Party PIP / MPC, Fraud/SIU, General Liability, Premises Liability, Products Liability, Third Party, UM/UIM

Judge Padilla granted summary judgment in Harvey v. Garner and Gaines, Phila. CCP 130401081 for two Defendants for improper service under Lamp.

Both Defendants were not served with the Complaint until five (5) months after the Statute of Limitations.  A hearing was held on the issue as to whether Plaintiff had made a “good faith” effort to accomplish service.  Judge Padilla noted that the Plaintiff had produced no evidence to indicate compliance with the service rules. Defendants testified that Plaintiff obtained their proper address at the time of the accident and that Defendants still lived there. Testimony further indicated there was usually an adult family member at home to accept service.

The court noted that the docket was silent regarding plaintiff’s attempts to make service for more than five (5) months. After the hearing, the complaint was dismissed.

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David R. Friedman

Office: King of Prussia, Philadelphia
Phone: (610) 977-4106
Email: dfriedman@forryullman.com
Practice Areas: Commercial Litigation, Coverage, First Party PIP / MPC, Fraud/SIU, General Liability, Premises Liability, Products Liability, Third Party, UM/UIM

The firm would like to congratulate Jill Moffitt who was chosen to serve as the President of the American Inn of Courts for Montgomery County during 2014-15. The Inn membership includes judges and attorneys who meet for discussions on various legal issues and topics.

On June 18, 2014, Judge Baratta granted a Limited Tort Motion for Summary Judgment argued by Jill Moffitt, Esquire. The trial court dismissed the non-economic pain and suffering allegations in Melaney Ramos v. Michael Jones et al., Northampton County 48-CV-2012-2141. The Court held that that the Plaintiff only was able to show that she suffered soft tissue injuries to her back and neck. The Plaintiff has failed to show that these injuries resulted in serious impairment with any body function. The Court ruled that these injuries could not have resulted in a serious impact on her life, and thus granted to motion. Still at issue in the case is the extent of the economic damages recoverable.