ARTICLE: POST-KOKEN UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.

POST-KOKEN UPDATE

By

Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.


Bifurcation of Trial

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier. The decision was issued by Order only.

Effect of Third Party Release

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out.

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

Effect of Third Party Release

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.” The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988). The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.

The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.

Household Exclusion

The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle. The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier. The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative exclusion is not valid. The trial court is now following the federal courts on this issue.

Household Exclusion

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.  Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him. Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court. After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Future Medical Expenses

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury. See p. 21-26 of Opinion.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

It is noted that this decision did not affect the rule of law that past medical expenses have to be reduced in accordance with Act 6 before being presented to a jury.

ARTICLE: YEAR-END REVIEW: ANOTHER YEAR OF NOTABLE DECISIONS IN Pa.

This article recently appeared in the January 2, 2020 edition of the Pennsylvania Law Weekly and is reprinted here with permission.  Images have been added here that were not in the original article.

My year-end review article covering the top cases and trends in Auto Law matters is forthcoming.

Year-End Review: Another Year of Notable Decisions in Pa.

By Daniel E. Cummins | January 02, 2020 at 10:24 AM

A number of notable decisions were handed down over the past year by the various courts of Pennsylvania on general civil litigation issues not involving motor vehicle accident matters. Here is a sampling of decisions of note from 2019.

Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019), the Pennsylvania Supreme Court provided its latest review of the attorney work product doctrine. The court addressed the issue of whether a law firm’s pre-litigation emails sent to a public relations firm served to waive the attorney work product doctrine. 

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner that significantly increased the likelihood that an adversary or anticipated adversary would obtain it. This matter was remanded back to the trial court for an application of the newly articulated work product waiver analysis.

Premises Liability

Decisions handed down in 2019 served to continue the trend of courts ruling that plaintiffs cannot recover for injuries resulting from slip-and-fall events that occur while it is still snowing. 

In the case of Rosatti v. McKinney Properties, No. 2017-0022 (C.P. Centre Co. Jan. 22, 2019 Grine, J.), the court entered summary judgment in favor of a defendant landowner under the Hills and Ridges Doctrine. 

According to the opinion, the plaintiff slipped and fell while leaving the property while snow and freezing rain was falling.

In reviewing the defendant’s motion for summary judgment, the court in Rosatti cited to Collins v. Philadelphia Suburban Development, 179 A.3d 69, 75 (Pa. Super. 2018), and emphasized that, under the prevailing case law, “a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended.” The court additionally noted that “a property owner does not have a duty to clear ice or snow from walkways as soon as it forms or falls. As such, summary judgment was granted.

In the case of Beauford v. Second Nature Landscaping & Construction, No. 20 16-CV-8925 (C.P. Del. Co. Nov. 19, 2018 Green, J.), the court also cited to the Collins case and held that a defendant landowner was not liable for alleged injuries suffered by a plaintiff in a slip and fall event that occurred during an active storm since the defendant had no obligation under Pennsylvania law to correct the conditions until a reasonable time after the storm ended. 

Service of Process

In 2019, there was a plethora of cases that were dismissed due to a plaintiff’s failure to properly or timely complete service of original process.

The latest appellate court review of the application of the Lamp v. Heyman line of cases can be found in Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019). In Sawyers, the Pennsylvania Superior Court ruled that a trial court erred in dismissing the plaintiff’s personal injury action against a defendant motorist for improper service. 

The central issue in the matter involved the Plaintiff properly serving an out-of-state defendant by way of a certified letter, return receipt requested. According to the opinion, the green return receipt card was lost by the U.S. Post Office. However, the post office did supply tracking documentation that confirmed delivery of the letter. Also produced was a scanned signature of the person who accepted the letter. There was also additional evidence presented that the defendant driver, who was a cousin of the plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the technical defects at issue in this case did not warrant the dismissal of the action, particularly where it was clear that the defendant had notice of the suit and no prejudice was found.

Bad Faith

Over the past year, one recurring bad faith issue reviewed by the federal courts involved the proper pleading of a bad faith claim against an insurance company. The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog written by Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris is an excellent resource to find the latest cases on a wide variety of bad faith issues.

One case from 2019 that involved proper pleadings in a bad faith complaint was the case of Rosenthal v. American States Insurance, No. 1:18-cv-01755 2019, M.D. Pa. March 26, 2019 Kane, J.). In Rosenthal, the court dismissed a bad faith count in a UIM case but allowed the plaintiff leave to file an amended complaint. 

Generally speaking, the court in Rosenthal noted that failing to plead descriptions of what a carrier actually did or failed to do, or why they did it, can be fatal to a bad faith claim under the Federal Rules of Civil Procedure. 

Judge Yvette Kane additionally held that identifying the difference between a demand and an offer alone cannot serve as the basis for claim for bad faith, absent allegations that the carrier acted unreasonably and in bad faith by making the lower offer. 

As noted, despite the many faults found with the complaint, as is typical, the court in Rosenthal allowed a second bite at the apple by granting the plaintiff leave to file an amended complaint. Other cases from the past year show that the federal courts are not wont to allow more than two attempts to file a properly pleaded bad faith complaint.

For example, in the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court had previously dismissed a plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the complaint. However, when challenges were again made to the amended complaint that was filed, the court dismissed the action

In Moran, the court noted that the only additional pleadings added to the original complaint were facts that possibly supported the plaintiff’s evaluation of the claims presented, but no new facts were added to support the allegation that the carrier’s settlement offer was allegedly unreasonable. Nor were any new facts to show how the carrier allegedly knew or recklessness disregarded the fact that its offer was unreasonable. Further leave to amend the Complaint was not granted. 

Fraternities

Last year also gave rise to a number of decisions in cases involving personal injuries at fraternities.

In Rose v. Vilmatelo, No. 2018-SU-450 (C.P. Adams Co. April 12, 2019 George, J.), the court addressed preliminary objections filed by Gettysburg College seeking the dismissal of a plaintiff’s personal injury claim arising out of allegations that the plaintiff, a college student, was injured by an allegedly inebriated participant at a fraternity function on campus. 

The court dismissed the plaintiff’s complaint against the college based upon the case of Alumni Association v. Sullivan, 572 A.2d 1209 (Pa. 1990), in which it was held that college students were no longer minors, but rather adults who were capable of protecting their own self interests. As such, under that case, a college was found not to have any duties in loco parentis with respect to its students. 

A motion to dismiss was also addressed in the federal court case of Piazza v. Young, No. 4:19-CV-00128 (M.D. Pa. Aug. 27, 2019 Brann, J.), which arose out of fatal injuries allegedly sustained by a student at Pennsylvania State University allegedly as a result of hazing activities in a fraternity. The court granted the motions in part and denied the motions in part. 

Of note, with respect to those fraternity brothers defendants who were under the age of 21, the court allowed the claims of the plaintiff to proceed against those underaged defendants under the plaintiff’s theory of recovery to hold the defendants liable for breaching an alleged protective duty that the defendants, as fraternity members, allegedly owed to the plaintiff’s son, a fraternity pledge.

In this regard, Judge Matthew Brann refused to apply the Pennsylvania Supreme Court’s decision in the case of Kapres v. Heller, 640 A.2d 888 (Pa. 1994) in as an expansive manner as requested by those moving defendants who were under the age of 21. Under the Kapres case, the Supreme Court generally ruled that individuals under the age of 21 cannot be held liable under the social host doctrine to a guest or third party injured on the premises relative to the service of alcohol. 

The court in this Piazza case refused to read the Kapres case as immunizing the fraternity defendants in this case from alleged liability for their otherwise allegedly wrongful conduct that involved the provision of alcohol. The court also noted that an expansive reading of the Kapres decision in the context of this case would not serve to further the social utility of the Pennsylvania statutes against hazing activities.

Products Liability

In the case of Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019), the Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex, even though the plaintiff only litigated the case under the consumer expectation test. 

The court in Davis noted that, although the plaintiff argued that the trial court judge should not have instructed the jury on both tests, Pennsylvania law under Tincher allowed jury instructions on both tests where evidence was presented by the defense at trial regarding the same. According to the opinion, the defense put in evidence that, according to the trial court and the appellate court, put the risk-utility test at issue in this crashworthiness case.

Medical Malpractice

Typically, a medical malpractice action is governed by a two-year statute of limitation. However, there may be some cases where a plaintiff does not discover an injury that is allegedly the result of medical negligence within that two-year period. Under the Medical Care Availability and Reduction of Error Act’s (MCARE) statute of repose, medical malpractice actions must be brought within seven years of alleged medical malpractice.

In the case of Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2018), the Pennsylvania Supreme Court, in a 4-3 decision, ruled that MCARE’s statute of repose was unconstitutional.

The rationale of the majority opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution’s guarantee of open access to the courts.

Medical Marijuana

With the recent allowance of medical marijuana in Pennsylvania, a number of legal issues can be expected to arise. One area of civil litigation will involve whether a person’s use of medical marijuana can impact her status as an employee at work.

In a case of first impression called Palmiter v. Commonwealth Health Systems, No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019), Judge Terrence R. Nealon addressed preliminary objections filed by employers in this employment litigation raising the issue of whether 35 P.S. Section 2103(b)(1) of the Medical Marijuana Act (MMA), which states that “no employer may discharge … or otherwise discriminate or retaliate against an employee … solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers due to the employee’s prescribed use of medical marijuana while not working in her place of employment.

The defendants filed preliminary objections to the complaint and asserted that the Department of Health had the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination was to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Nealon held that there was nothing the MMA or related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the act against private employers. The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that had violated the MMA. As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon Section 2103(b)(1).

It remains to be seen how the allowance of the use of medical marijuana will continue to give rise to civil litigation issues going forward.

Looking Ahead

The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident. Notably, the court will address the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), and whether evidence of industry standards is required to sustain a cause of action in recklessness or gross negligence.

Another future decision to watch out for will be the Pennsylvania Superior Court’s decision in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018, in which the court will address whether documentation in a defense attorney’s file regarding the evaluation of a UM/UIM case is protected from discovery by the attorney-client privilege and the attorney work product doctrine.



Daniel E. Cummins is a partner in the Scranton area law firm of Cummins Law where he focuses his practice in automobile accident, premises liability, and products liability litigation matters.  He also provides mediation services through Cummins Mediation Services.

Allegations of Recklessness and Claims for Punitive Damages Allowed to Stand in Trucking Accident Case

In the case of Shelton v. Gure, No. 3:19-CV-0843 (M.D. Pa. Sept. 3, 2019 Caputo, J.), the court denied a Defendants’ Motion to Dismiss in a trucking accident litigation. The Defendants’ Motion to Dismiss centered around the Plaintiff’s allegations of recklessness and the demand for punitive damages.

According to the Opinion, the Plaintiff pled in the Complaint that the accident was caused by the Defendant tractor trailer driver pulling back onto a highway from the berm into a traffic lane at night with no lights on the trailer, which alleged violated the Federal Motor Carrier Safety Regulations.  It was also alleged that the Defendant's tractor trailer was only traveling at about 40 mph in a 70 mph speed limit zone when this manuever was attempted.

The Plaintiff, who was also driving a tractor trailer was involved in an accident with the Defendant's tractor trailer.

The court noted that the factual allegations in the Complaint, in conjunction with allegations of a conscious disregard for the safety and rights of others, adequately stated a claim for recklessness and support of the request for punitive damages.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Sept. 24, 2019).

Effort By UIM Carrier To Argue UIM Claim Barred By Terms of Third Party Release Rebuffed

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out. 

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).   Click HERE to view the Tort Talk blog post on the Crisp case and to see a Link to that case.

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

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

I send thanks to Attorney Scott B. Cooper from the Harrisburg, PA law firm of Schmidt Kramer, P.C. for bringing this decision to my attention.

UIM Bad Faith Claim Denied Due To Conclusory Allegations

In the case of Peters v. Geico, No. 19-CV-1119 (M.D. Pa. Aug. 14, 2019 Caputo, J.), the court dismissed a Plaintiff’s UIM bad faith claim after finding numerous allegations in support of this theory of recovery to be conclusory.  

In completing his analysis, the court stripped away the conclusory allegations in the Complaint to determine whether the bad faith claim was plausible under federal pleadings standards.   Once the court stripped away the conclusory allegations, the bad faith claim was simply based upon the facts that there was an accident, a tortfeasor’s willingness to pay the policy limits, and insured’s written demand for UIM benefits supported by a medical report, followed by a UIM carrier’s failure to settle.  

The court noted that these facts, alone, did not support a claim for bad faith which requires proof of an unreasonable denial of benefits in a knowing or reckless fashion by the carrier with the knowledge that its denial of benefits was unreasonable.  

The court did allow the Plaintiff to amend the Complaint but cautioned that the Amended Complaint would be required to set forth facts and not merely conclusory allegations in support of the bad faith claim.

Anyone wishing to review a copy of this decision by Judge Caputo in the Middle District may click this LINK.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein, & Harris for bringing this decision to my attention.   Check out Attorney Applebaum's Pennsylvania and New Jersey Insurance Bad Faith Blog for the latest notable bad faith cases.

Judge Caputo of Middle District Allows Uninsured Motorist Benefits Bad Faith Claim to Proceed

In the case of Fuentes v. USAA General Ind. Co., No. 19-CV-1111 (M.D. Pa. July 22, 2019 Caputo, J.), the court ruled that a Plaintiff had pled a plausible bad faith claim arising out of an uninsured motorist claim following a fatal auto accident.  

According to the Opinion, the facts of the case allegedly gave rise to a coverage issue on whether the deceased party’s father, who was the owner of the car at issue, had an applicable policy covering the accident given that there was a question of whether the decedent resided with his father at the time of the accident.

The other driver involved in the accident was uninsured. 

Judge A. Richard Caputo
M.D. Pa.

According to the Opinion, the Plaintiff alleged that the carrier had asked for additional information after a demand for uninsured motorist benefits was made under the father’s policy.  The father sent additional information but the carrier thereafter allegedly advised the father to file a Complaint in order that additional discovery could be completed.   The father responded with a lawsuit asserting uninsured motorist claims as well as breach of contract and bad faith claims.  

Before the court in this decision was the carrier’s Motion to Dismiss the bad faith claims on the grounds that the allegations in that regard only amounted to boilerplate conclusory allegations.  

Judge Caputo disagreed and found that the Plaintiff alleged sufficient factual matter to overcome the F.R.C.P. 12(b)(6) Motion to Dismiss.

In so ruling, Judge Caputo referenced the fact that the carrier allegedly told the father to sue the carrier in order that the carrier may gather additional information.   Judge Caputo stated in his Opinion that, “[a]lthough such conduct may ultimately not amount to bad faith, it is plausible, based on the factual assertions in the Complaint that [the carrier] acted in reckless disregard of its obligations under the policy.”  

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 for bringing this case to my attention.   Please remember to check out Attorney Applebaum’s excellent and Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Motion to Dismiss Federal Court Breach of Contract and Bad Faith Claims Regarding Fire Loss Granted

In the case of Bloxham v. Allstate Insurance Company, No. 3:19-CV-0481 (M.D. Pa. May 2, 2019 Caputo, J.), the court granted a Motion to Dismiss in a property damage fire loss breach of contract bad faith claim against the carrier, but allowed the Plaintiff the right to file an Amended Complaint.  

According to the Opinion, this case involved a central issue of whether the insureds resided at a property when a fire loss occurred.  

Given this dispute, the carrier denied coverage after concluding that the insured did not reside at the property.    The carrier also pointed to certain alleged misrepresentations that were allegedly made by the insureds in connection with the claim.  

The insureds responded with a lawsuit for breach of contract and bad faith.  

In the Complaint, the Plaintiffs asserted that the property was in fact “occupied” at the time of the fire as the Plaintiffs were completing ongoing repairs and renovations to the dwelling when the loss occurred.

Judge Caputo agreed with the defense argument that, because “Plaintiffs allege not that they resided at the property, but only that they ‘occupied’ the property at the time of the loss as a result of ‘ongoing and continuous repairs and renovations to the dwelling’… that the Plaintiffs had failed to state a breach of contract claim.”  

With regards to the bad faith claims, the court found that the Plaintiff’s allegations in this regard were conclusory in that these allegations offered no facts supporting the sweeping legal allegations of bad faith.  

As noted, the Plaintiff was granted the right to amend their Complaint by the court.

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.  

"Low Ball Offer" Bad Faith Claim Dismissed

In the case of Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint.  

In Moran, the court noted that the only additions previously added to an original Complaint were facts that possibly supported the Plaintiff’s evaluation of the claims presented, but the court noted that no new facts were added as to why the carrier’s settlement offer was allegedly unreasonable or any new facts to show how the carrier knew or recklessness disregarded the fact that its offer was unreasonable. 

Rather, the court noted that the additional facts added to the Amended Complaint by the Plaintiff did not allow anything other than a possible finding of a negligent valuation, which did not support a claim for bad faith.  

Judge Caputo ruled that insurance bad faith cannot arise solely from discrepancies or disagreements with regards to the evaluation of a case presented.  

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

I send thanks to Attorney Brigid Alford of the Camp Hill, Pennsylvania office of Marshall Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

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

Alleged Low-Ball UIM Offer Not Per Se Bad Faith

In the cases of Clarke v. Liberty Mutual Insurance Company, 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Dec. 12, 2018Caputo, J.), the court again addressed Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases are ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court noted that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

Anyone wishing to review a copy of these Clarke decision may click this LINK.

The Moran decision can be viewed HERE

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.   

Judge A. Richard Caputo of Federal Middle District Court of Pennsylvania Addresses Proper Pleading of Bad Faith Claims in Two Separate Decisions

In the cases of Clarke v. Liberty Mutual Insurance Company, No. 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court again addressed refiled Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases were both ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court confirmed that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   

More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

A similar ruling was entered by Judge Caputo in the Moran v. USAA case where he again found that a discrepancy in the evaluation of the claim alone does not get around the issue of the Plaintiff pleading a bad faith claim in a conclusory fashion.  

Anyone wishing to review a copy of the Clarke decisions may click this LINK.

The Moran decision can be viewed HERE.

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.  

Lessons in Bad Faith Complaint Drafting From Several Federal Middle District Court Decisions

As reported in the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog by Attorney Lee Applebaum, there were three (3) recent Federal Middle District Court of Pennsylvania Opinions handed down in December, 2018 in which the court found that the Plaintiff’s bad faith pleadings constituted conclusory allegations that had to be dismissed under the standard of review pertinent to validity of federal Complaints.  However, the Plaintiffs in all of these cases were permitted to file Amended Complaints.  All of the cases involved UIM claims.  

These cases include the following (click on the case name to be linked to the actual opinion):

Clark v. Liberty Insurance Company, No. 3:18-cv-01925 (M.D. Pa. Dec. 10, 2018 Caputo, J.) (an insured’s belief about a claims value that differs from the carrier’s evaluation is not enough to state a claim without actual facts objective supporting that belief; the failure to make a settlement offer after receiving documents is not bad faith without additional factual support such as facts pertaining to the complexity of the claim and the time that past between the date the information was supplied and the date that the Complaint was filed; the failure to submit to policy limits demands alone is not bad faith)

Moran v. USAA, No. 3:18-cv-02085 (M.D. Pa. Dec. 12, 2018 Caputo, J.) (general pleading delays on the part of the carrier in various respects and failure to act in good faith dismiss due to failure to plead supporting factual allegations). 

Winslow v. Progressive Specialty Ins. Co., No. 3:18-cv-01094 (M.D. Pa. Dec. 12, 2018 Rambo, J.) (conclusory allegations of bad faith lead to dismissal of Plaintiff’s Complaint on claims of bad faith pertaining to delays by the carrier and failures to make reasonable settlement offers or to pay the limits).  

Student Suicide Case Allowed to Proceed Under Rehabilitation Act and ADA Claims

In the case of Beam v. Western Wayne School District, No. 3:15-CV-01126 (M.D. Pa. 2018 Caputo, J.), the Federal Middle District Court of Pennsylvania denied a Defendant school district’s motion for summary judgment relative to claims filed by parents following their son's suicide.

In this case, the Plaintiffs alleged that the school district failed to properly implement an educational plan under Section 504 of the Rehabilitation Act and the ADA on behalf of a disabled student who had ADHD.  According to the allegations, the student committed suicide on the last day of school allegedly as a result of academic failures stemming from the failures of the school to implement the educational plan.  The parents asserted that the school was responsible for their son's suicide because officials failed to notify them that their son was struggling academically, which was allegedly required under the education plan.

Judge A. Richard Caputo
M.D. Pa.

In a previous ruling in this case, Judge Caputo had dismissed a failure to prevent suicide claim presented by the Plaintiffs.

The defense asserted that the Plaintiff's were attempting to recast a failure to prevent suicide claim as a violation of the Section 504 and the ADA.  The Court rejected this defense and noted that issues of fact compelled the Court to deny the school district's request for summary judgment on the claims presented.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Motion To Remand Case Back to State Court Denied

In the case of Pisanchyn v. Progressive Direct Ins. Co., No. 3:18-CV-01215 (M.D. Pa. Aug. 2, 2018), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania addressed a Plaintiff’s Motion to Remand a case back to state court.

The Plaintiff asserted that a remand was required because the parties were not diverse and/or given that a forum selection clause in the insurance policy allegedly waived the Defendant’s right to remove the action to federal court in the first place.

The court held that, because diversity jurisdiction over the action existed and given that the Defendant did not waive its right to remove under the forum selection clause, the Plaintiff’s Motion to Remand would be denied.  

According to the Opinion, the UM/UIM policy in this matter included a provision with a forum selection clause requiring that any suit by the insured against the carrier be brought “in the county in which the person seeking benefits resides, or in the United States District Court serving that county.”  

The court initially rejected the lack of diversity argument.   The Plaintiff asserted that there was no diversity because his suit was a “direct action” against his carrier and, therefore, his carrier should be deemed to also be a citizen of Pennsylvania under §1332(c)(1).   

Judge Caputo noted that every Circuit that has considered  “direct action” argument, including the Third Circuit, has held that an action by an insured against his or her  own carrier is not a “direct action” within the meaning of §1332(c)(1).  

The Plaintiff also argued that the insurance company had waived the right to remove by virtue of the forum selection clause.  More specifically, the Plaintiff asserted that the carrier had agreed to “submit” to, and stay in, the forum chosen by the Plaintiff.  

With respect to the waiver argument, the court found that the policy language did not contain any agreement by the carrier to “submit” to any chosen court or to litigate there.

Anyone wishing to review this Opinion may click this LINK.  The companion Order can be viewed HERE.

Pennsylvania Supreme Court to Address Propriety of Auto Policies Allowing for Multiple IMEs of Insureds

According to an October 18, 2018 article in the Pennsylvania Law Weekly by Zack Needles entitled "Pa. Supreme Court Takes 3rd Circ.'s Question on Auto Insurers' Medical Exam Policies," the Pennsylvania Supreme Court has agreed to review the question certified over by the Third Circuit Court of Appeals of whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing before they can receive benefits.

The article notes that the Pennsylvania Supreme Court issued identical October 15, 2018 Orders in both Sayles v. Allstate Insurance and Scott v. Travelers Commercial Insurance, granting the Third Circuit’s petition for certification of a question of law. 

The certified question is, as follows: “Whether, under Pennsylvania law, a contractual provision in a motor vehicle insurance policy that requires an insured to submit to an independent medical examination by a physician selected by the insurer, when and as often as the insurer may reasonably require, as a condition precedent to the payment of first-party medical benefits under that policy, conflicts with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1796(a), and is therefore void as against public policy.”

The Order in Sayles can be reviewed HERE.

The Order in Scott can be reviewed HERE.

Commentary:  It appears that at least one of the arguments by the Plaintiffs in these cases is that an automobile insurance carrier should not be able to send its insured to an IME or multiple IMEs as a matter of course as allowed by the policy language where the Pennsylvania Rules of Civil Procedure only allow for IMEs when good cause is shown.  See Pa.R.C.P. 4010.

In reality and as a practical matter, it is a rare occurrence that an auto insurance carrier will subject its insureds to multiple IMEs.  In some cases, where a Plaintiff has separate types of injuries for which he or she has treated with separate specialists, then a carrier may request separate IMEs with doctors in those same types of specialties.  But carriers are not in the habit of sending its insureds to multiple IMEs as a matter of course.

Therefore, it is curious that the Pennsylvania Supreme Court would accept this issue for review where a decision on this question presented is not likely to have any great effect as a practical matter.

Judge Caputo of Federal Middle District Addresses Proper Pleadings for a UIM Breach of Contract Claim

In the case of Swientisky v. American States Insurance Company, No. 3:18-cv-1159 (M.D. Pa. Aug. 8, 2018 Caputo, J.), the court granted in part and denied in part the UIM carrier’s Motion to Dismiss relative to a UIM claim asserted by the Plaintiff. 

According to the Opinion, this matter involved a UIM claim in which bad faith was not pled.   Rather, this was a breach of contract claim that included allegations of generic violations of the Motor Vehicle Responsibility Law in support of a claim for UIM benefits.  

The UIM carrier filed a Motion to Dismiss asserting that allegations of improper claim handling should be stricken from the Complaint because such alleged improper claim handling was not relevant to a cause of action in which bad faith has not been pled.

The court disagreed and found that improper claim handling could be relevant to a contract claim, even in the absence of bad faith, because the decision-making during the claims handling could go to the reasoning behind the denial of the contract claim.  

On another issue, the UIM carrier asserted that the court should dismiss, or order a more definite statement, with respect to the insured’s unidentified statutory violations given that the Plaintiff had failed to allege any bad faith violation or identify the provisions of the MVFRL that the carrier allegedly violated.

Judge A. Richard Caputo
Pa. M.D. Ct.

Judge Caputo dismissed this statutory count in the Complaint given that the Plaintiff had failed to plead an alleged statutory violation with any detail and given that the facts pled did not set forth such alleged wrongdoing. 

Anyone wishing to review a copy of this Opinion may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris, and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this case to my attention.    

Can A Bad Faith Claim Be Pled Where There is a Finding of No Coverage Due Under Policy?

In the case of Frantz v. Nationwide Ins. Co., No. 3:18-cv-0509 (M.D. Pa. May 15, 2018 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania appeared to part ways somewhat from the notion that a bad faith claim cannot exist in a matter where there is otherwise no insurance coverage due for a variety of reasons.  

In this case, the court dismissed the insured’s breach of contract claim after finding that no insurance coverage was due under the circumstances presented.  Nevertheless, the court still gave the Plaintiff leave to file an Amended Complaint asserting common law and statutory bad faith claims. 

In his Opinion, Judge Caputo cited the standard of review requiring that a bad faith Plaintiff has to show that there was no reasonable basis to deny coverage and that the insured knew or recklessly disregarded this fact.  

However, the court then set forth another standard, indicating that “[a] plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a ‘lack of a good faith investigation into facts, and failure to communicate with the claimant.’”  

It appears that the amendment to the Complaint was allowed based upon this second standard, which was treated here as an independent basis for a §8371 bad faith claim even if no coverage is actually due under the policy.  

Judge Caputo did otherwise reaffirm that §8371 does not cover alleged bad faith in soliciting a policy and, therefore, did dismiss that claim in this matter.  

I do not have a copy of this decision handy but the docket number is provided above.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  

Motion To Dismiss Bad Faith Complaint Denied

In the case of Meyers v. Protective Ins. Co., No. 3:16-cv-01821 (M.D. Pa. Oct. 10, 2017 Caputo, J.), the court denied a second Motion to Dismiss filed against a bad faith claim alleging issues with the investigation and claim evaluation by the Defendant carrier. 

It is noted that this UIM bad faith was previously dismissed for failure to state a plausible claim.   After the Plaintiff was given leave to amend the Complaint, the carrier again filed a Motion to Dismiss in this uninsured motorist claim matter.   As noted, the court denied the second Motion to Dismiss.  

The court found that the Amended Complaint set forth factual support to allegations that the carrier refused to promptly communicate with Plaintiff, repeatedly misrepresented matters to the Plaintiff, and allegedly failed to comply with various insurance regulations. 

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention. 

Judge Caputo of Federal Middle District Court Denies Motion to Sever and Stay Post-Koken Bad Faith Claim

In his recent decision in the case of Mulgrew v. GEICO, No. 3:16-cv-02217 (M.D. Pa. Oct. 11, 2017 Caputo, J.), the court denied a Defendant’s Motion to Sever and Stay the Plaintiff’s bad faith claim in a underinsured motorist matter. 

 The court referred to Federal Rule of Civil Procedure 21 which grants the Federal District Courts broad discretion in deciding whether or not to sever a case.  

Judge A. Richard Caputo
M.D. PA

Judge Caputo noted that the factors used to decide a Motion to Sever under Rule 21 are the same as utilized in deciding a Motion to Bifurcate under Rule 42(b).  

The court differentiated between the two rules by indicating that a Rule 21 severance essentially creates a separate case, the disposition of which is final and appealable, whereas Rule 42(b) does not create a new case but bifurcates issues or claims within a single case for separate trials.   A claim that is bifurcated under Rule 42(b) is not final and appealable as long as the other claims in the case remain unresolved. 

The factors to be considered in deciding such motions to sever or bifurcate in Federal Court cases includes the following:

-           Convenience of the parties

-           Avoiding prejudice, and

-           Promoting expedition and economy

In denying the Motion, Judge Caputo found that both the convenience of the parties and the judicial economy weighed against severance.   The court also rejected the Defendant’s claim that the resolution of the breach of contract action could greatly impact and potentially moot the bad faith claim.  The court noted that litigation on the bad faith claim is not contingent upon the success of the breach of contract claim in that a Plaintiff could simultaneously prevail on a bad faith claim while losing the UIM claim.   The court also found that severance would hinder judicial economy by requiring separate cases and separate trials instead of handling these claims within a single action.  

The court additionally opined that the potential prejudice to the carrier of litigating the breach of contract and bad faith claims at the same time did not outweigh the countervailing goal of judicial economy in the prompt resolution of the entire matter.  

For these reasons, Judge Caputo denied the Motion to Sever and Stay the Plaintiff’s Bad Faith Claim.  

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  

Federal Court Reaffirms That Plaintiffs Have No Standing to Assert Direct Bad Faith Claim Against Tortfeasor's Carrier

In the case of Starrett v. Coe, No. 3:16-cv-02272 (M.D. Pa. June 20, 2017 Saporito, M.J.) (Report and Recommendation, affirmed by Judge A. Richard Caputo under an Opinion dated August 9, 2017), it was held that third party Plaintiffs do not have a contractual relationship with tortfeasor’s liability carriers and, therefore, such Plaintiffs have no standing to assert a bad faith claim against a tortfeasor’s insurer and/or its adjuster.

The district court judge agreed with Federal Magistrate Joseph Saporito's Opinion in this regard and, thereby, dismissed the bad faith failure to negotiate claim lawsuit filed by the Plaintiff.

Anyone wishing to review Federal District Magistrate Judge Saporito's Report and Recommendations may click this LINK.

To review Judge Caputo's Opinion adopting Judge Saporito's decision, please click HERE.

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

Bad Faith Claim Dismissed in Federal Middle District Court Case

In his recent decision in the case of Sayles v. Allstate Ins. Co., No. 3:16-cv-01534 (M.D. Pa. May 10, 2017 Caputo, J.), Judge A. Richard Caputo dismissed a claim for bad faith in a case where the insured claimed that the requirements to undergo an IME, along with a refusal by the carrier to pay first party medical benefits before the IME took place, were violations of the bad faith statute.  

In this matter, the insurance policy required the insured to submit to an independent medical examination after making a bodily injury claim for medical benefits arising out of auto accident. The policy stated that the carrier did not have to make payments prior to that examination.  

Judge Caputo noted that a federal judge in the Eastern District Federal Court had ruled in 2009 that these kinds of policy terms were enforceable and not inconsistent with the Motor Vehicle Financial Responsibility Law, relying upon case law from the Pennsylvania Superior Court.  However, a judge in the Middle District Court came to a different conclusion in 2017, finding the provisions to be unenforceable.   

 

The court rejected the Plaintiff’s claims of bad faith after finding that the carrier had a reasonable basis for denying medical benefits where the Pennsylvania Supreme Court had not decided the issue and where another federal court had found that the policy language was enforceable.   Judge Caputo found that it was reasonable for the carrier to have relied upon the earlier opinion where the status of the law was in a state of flux.  

Anyone wishing to review this decision may click this LINK.

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