Friday, June 18, 2010

Recent Bad Faith Post-Koken Decision out of Montgomery County

In a June 16, 2010 Order entered by the Honorable Arthur R. Tilson of the Montgomery County Court of Common Pleas in the post-Koken case of Dininni v. Encompass Insurance Company, No. 2010 - Civil - 04615 (Montg. Co. June 16, 2010 Tilson, J.), the court stayed discovery as to claims of bad faith and unfair trade practices until underlying UIM claims were tried or otherwise resolved. While ruling in favor of the defense in that regard, the court did also deny the defense request that the Bad Faith Claim and Unfair Trade Practices Claim be severed from the UIM claim.

The Plaintiff in this matter was a passenger in a car with three other claimants. She had previously settled her claim against the tortfeasor and, in this matter, was pursuing a UIM claim against the UIM carrier along with bad faith claims concerning the carrier's handling of the file and failure to pay.

The underlying issue that was involved with this Court Order pertained to the Plaintiff's desire to secure the insurer’s entire investigative file for the Plaintiff’s claim and for the three other passengers’ claims, as well as the deposition of the adjuster assigned to all four claims.

Encompass, which was the UIM carrier, objected to the requests in their entirety, citing Judge Wettick’s decisions in 2009 in Gunn v. Nationwide and Wutz v. Smith. The Plaintiff moved to compel production of the files and the deposition of the claims rep. Encompass responded and cross-moved for a protective order staying discovery as to the bad faith and consumer fraud claims and/or severing the UIM claim from the bad faith and consumer fraud claims.

According to defense counsel, Encompass argued that the court should follow the decisions from Judge Wettick holding that requiring the early production of the bad faith claims would essentially provide the defense’s playbook for negotiation and trial of the companion UIM claim.

The discovery master agreed and the trial court entered our requested an Order that precluded the deposition of the Encompass claims representative.

The Court's order also struck the Plaintiff's written discovery requests to the extent "they request[ed] information and documents concerning the valuation and handling of plaintiff's claim and claims other than plaintiff's, and the procedures, strategy, and tactics for handling plaintiff's claim and claims other than the claim of plaintiff Dininni, which are not to be discoverable until the underlying UIM claims are settled, tried or otherwise resolved."

The Court order additionally provided that discovery concerning the Bad Faith Claim and the Unfair Trade Practices Claim were stayed pending the resolution of the UIM claim.

However, the Court denied the request of Defendant Encompass that the Bad Faith Claim and the Unfair Trade Practices Claim be severed and dismissed from the UIM claim without prejudice to the right of the Plaintiff to refile those claims in a separate action.

The prevailing defense counsel in this matter was Attorney Frank Guarrieri of the Morrisville, Pennsylvania law firm of Curtin & Heefner, LLP. I send thanks to Attorney Joseph F. Kampherstein, III of the same firm for bringing this case to my attention.

Anyone desiring a copy of this Order without Opinion may contact me at

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