UIM Bad Faith Claim Dismissed by Western Federal District Court

In a recent Western District of Pennsylvania Federal Court decision of Homer v. Nationwide Mut. Ins. Co., No. 2:15-cv-01184-NBF (W.D. Pa. Aug. 26, 2016 Fisher, J.), the court granted an insurance company’s Motion to Dismiss a Plaintiff’s bad faith claim related to actions allegedly taken by the carrier during a previous underinsured motorist proceeding.  

Nationwide moved for the dismissal on the ground that the Plaintiff could not rely upon litigation conduct as the basis for an insurance bad faith claim under Pennsylvania law.   Nationwide also asserted that the Plaintiff had not sufficiently plead the elements of an unfair trade practices and consumer protection law claim.  

In her decision, Judge Fisher noted that the case before her appeared to present an issue of first impression with respect to litigation conduct in the context insurance bad faith allegations.  

After a review of the matter before her along with the relevant legal authority in Pennsylvania and other jurisdictions, the court granted the carrier’s Motion to Dismiss.   In so ruling, Judge Fisher concluded that Pennsylvania would likely adopt an approach where there could only be bad faith litigation conduct “in rare cases involving extraordinary facts.”  

 

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

 

I send thanks to Attorney Daniel L. Rivetti, Esquire of the Pittsburgh office of Robb, Leonard, Mulvihill, LLP for bringing this decision to my attention.  

Motion to Sever and Stay Bad Faith Claim Granted in Eastern District Federal Court Case

A motion to sever and stay a bad faith claim was granted in the Eastern Federal District Court case of Corley v. Nat'l Indemn. Co., No. 2:16-CV-00584-MMB (E.D. Pa. Sept. 9, 2016 Baylson, J.).

Anyone wishing to review the Court's Memorandum Order in this case may click this LINK.  The court's related Scheduling Order can be viewed HERE.

I send thanks to the prevailing defense attorneys, Richard L. McMonigle and Lindsay Andreuzzi of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Senior Judge Minora Grants Motion for Recusal

In the case of Schoenberg v. State Farm Insurance Company, No. 2012-CV-5005 (C.P. Lacka. Co. Aug. 10, 2016 Minora, S.J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted a Defendant’s Motion for Recusal. 

In his Opinion in the matter, Judge Minora noted that his noted that “[r]ecent United States Supreme Court cases regarding judicial disqualification and recusal dedicate a review of the new law in this area.” 

In analyzing Pennsylvania and Federal law on the issue, Judge Minora generally noted that a court proceeding begins with a presumption in favor of the court that a tribunal is fair, unbiased, and disinterested.   The trial court then has a duty to reveal any facts that would tend to show bias or interests making the tribunal arguably partial.   

At that point, the party concerns must motion to the court alleging facts as to why they believe the court is disqualified and thus seeking the court to recuse itself. 

Once the matter reaches that stage, a court must perform a subjective review of its appropriateness to handle the pending case.   Also, an objective test, a procedural test, and a code of judicial conduct review also ought to be taken.  

In the end, Judge Minora granted the Defendant’s requested recusal in part and denied it in part, resulting ultimately in the court’s decision to recuse itself.    


Anyone wishing to review a copy of Judge Minora's detailed analysis in Schoenberg for the deciding of a motion for recusal, may click this LINK.

Dauphin County Court of Common Pleas Issues Another Order on Timing of Production of Virtual (Social Media) Surveillance Gathered on a Party

Another Judge in the Dauphin County Court of Common Pleas has entered an Order requiring a Defendant to produce, prior to the Plaintiff’s deposition, all social media information gathered on the Plaintiff.   This Order was entered by Judge Bruce F. Bratton of the Dauphin County Court of Common Pleas in the case of Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, 2016 Bratton, J.).

The court did otherwise also rule that the Defendant was not required to produce any surveillance video taken by the Defendant’s investigators until after the Plaintiff’s deposition.   In this regard, the court cited Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000).  

Click this LINK to view the Tort Talk post on the other Dauphin County Court of Common Pleas case in this regard issued by Judge Dowling.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net. 

 

I send thanks to Attorney Robert F. Claraval of Claraval Law Office in Harrisburg, Pennsylvania for bringing this decision to my attention.

 

Summary Judgment Granted in Favor of Water Park

In the case of Rabadi v. Great Wolf Lodge, LLC, No. 3:15-CV-00101 (M.D. Pa. Aug. 9, 2016 Mariani, J.), the court ranted summary judgment in favor of the Defendant water park.

The court entered summary judgment after finding that the Plaintiff had no expert to support their theory of how the Defendant’s ride malfunctioned.   In the absence of any expert, the Plaintiffs cannot prove causation.   The court ruled that the cause of the Plaintiff’s alleged injury was not so simple or obvious that an expert would not be required.  

Judge Mariani further held that in negligence cases in which water pressure is allegedly the cause of injury, expert testimony is required to proceed to a jury.   The court noted that the doctrine of res ipsa loquitur would not apply.  

In his decision, Judge Mariani also referenced the well said of principle that a mere occurrence of an accident, without more, does not establish negligent conduct on the part of a Defendant.  

 

Anyone wishing to review this decision may click this LINK.

 

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this decision to my attention.  

 

 

Pennsylvania Supreme Court Agrees to Revisit the Elements of Statutory Bad Faith Claims

Here's a case to keep an eye on if you handle statutory bad faith litigation matters under 42 Pa.C.S.A. Section 8371.

 In the case of Rancosky v. Washington Nat'l Ins. Co., 28 WAP 2016 (Pa. Aug. 30, 2016), the Pennsylvania Supreme Court had granted an appeal on the following issue:

 "Whether this Court should ratify the requirements of Terletsky v. Prudential Property & Casualty Insurance Co., 649 A.2d 680 (Pa. Super. 1994), appeal denied, 659 A.2d 560 (Pa. 1995), for establishing insurer bad faith under 42 Pa.C.S. § 8371, and assuming the answer to be in the affirmative, whether the Superior Court erred in holding that Terletsky factor of a “motive of self-interest or ill-will” is merely a discretionary consideration rather than a mandatory prerequisite to proving bad faith?"

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris and the other writers of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this decision to my attention.  To view that blog's more detailed analysis of the bad faith question presented above as well as to access a Link to this Supreme Court Order in Rancosky, click this LINK.

Schuylkill County Court of Common Pleas Denies Post-Koken Motion to Sever UIM Claim From Negligence Claim

In the Schuylkill County Court of Common Pleas case of Smith v. Koch and Allstate, No. S-460-2016 (C.P. Schuylk. Co. July 22, 2016 Goodman, J.), the court denied a motion of the UIM carrier to sever the UIM claim from the negligence claim.

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

I send thanks to Attorney Bradley Moyer of the Scranton, PA office of the Pisanchyn Law Firm for bringing this case to my attention.