Thursday, June 20, 2019

Interesting Defense Strategy Results in Striking of Certain Portions of Federal Court UIM Bad Faith Claim as Immaterial or Impertinent


In the case of Bacon v. USAA Cas. Ins. Co., No. 1:18-CV-01686 (M.D. Pa. May 6, 2019 Kane, J.), the court addressed a motion by a UIM carrier to dismiss certain portions of a bad faith Complaint as immaterial and impertinent.  

The wrinkle in this case is that the carrier was making a more specific motion to only strike portions of the UIM bad faith Complaint as being immaterial and impertinent, as opposed to attempting to dismiss the entire Complaint.  

In this matter, the Plaintiff asserted that the carrier’s alleged refusal to pay full medical benefits and asserted that this refusal lead to certain consequences between the insured and third parties.  

The carrier focused its Motion to Dismiss on attempting to strike four (4) specific paragraphs of the Complaint.   The first two (2) paragraphs at issue raised the carrier’s advertisement directed to members of the military.  The Plaintiff alleged that, as a long-serving Army veteran, he relied upon these representations and warranties in the ad.  The Plaintiff alleged that carrier breached these representations and warranties.  

The court agreed to strike these two (2) paragraphs as being irrelevant on the issue of whether the carrier breached its duties under the policy itself and/or whether the carrier violated the bad faith statute.  

The court additionally found that the allegations pertaining to alleged warranties were prejudicial in that such allegations could lead the jury to believe that the carrier owed responsibilities to the Plaintiff outside of the scope of the insurance policy at issue.  

The court refused to strike two (2) other paragraphs raised in the defense motion.   In one of these paragraphs, the Plaintiff asserted allegations that the carrier had refused to pay a benefit due. In that paragraph, there are also grievances that were directed by the Plaintiff at third parties. The court found that the alleged refusal to pay the Plaintiff benefits due was enough to preserve this paragraph even though the other allegations pertaining the third parties may not have been actionable in this particular matter. 

With regards to the final paragraph at issue, the Plaintiff had asserted that the position taken by the carrier with respect to the payment of medical benefits resulted in certain ramifications to the Plaintiff.  The court noted that, while the paragraph had some language that focused on possible future conduct, the allegations within the paragraph alleged that the carrier had refused, in the past, to pay for certain medical treatment.   The court felt that these allegations could bear some  relationship to whether the Defendant breached a duty under the policy or imposed by the bad faith statute.  

Anyone wishing to review a copy of this decision, may click this LINK

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is also the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.  






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