In his recent decision in the case of
Smerdon v. GEICO, No. 4:16-cv-02122 (M.D. Pa. Sept. 21, 2018 Brann,
J.), the court granted in part and denied in part a Motion for Summary Judgment
filed by Defendant GEICO, and granted a Motion for Partial Summary Judgment by
the Plaintiffs in a Post-Koken uninsured motorist matter.
According to the Opinion, the Plaintiff was shopping at a
Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash
from a customer service employee.
The
Plaintiff and several others chased the robber out into the parking lot and
towards the robber’s car, which the robber had left running.
While these individuals scuffled with the robber, the
Plaintiff entered the passenger side of the vehicle and attempted to remove the
keys from the ignition.
The robber put
the vehicle in drive, stepped on the gas, and the Plaintiff was injured by the
vehicle as a result.
As the robber had no car insurance, the Plaintiff pursued an
uninsured motorist claim against GEICO.
Under the GEICO uninsured motorist provisions of the policy, it was provided
that the Plaintiff must prove that she was “legally entitled to recover” from the operator of
an uninsured motor vehicle in order to recover UM benefits.
The
Plaintiff filed a Complaint against GEICO alleging breach of contract and bad
faith.
Under the breach of contract
claim, the Plaintiff sought a declaratory judgment requiring GEICO to cover her
for uninsured motorist coverage.
The
Plaintiff filed a bad faith count seeking damages, arguing that GEICO’s
handling of her claim amounted to bad faith under 42 Pa. C.S.A. §8371.
A main issue before the court was whether
the assumption of risk doctrine operated as a total bar to the Plaintiff’s
recovery such that she was not "legally entitled to recover" against the uninsured operator of the vehicle that injured her.
 |
Judge Matthew W. Brann
M.D. Pa. |
In his Opinion, Judge Brann reaffirmed the continuing
validity of the assumption of risk defense under Pennsylvania law.
The court noted that, “[a]lthough disfavored
and narrowly applied, assumption of the risk remains a viable affirmative
defense under Pennsylvania law.”
See Op. at p. 7 [citations omitted].
Notably, the court
additionally confirmed that summary judgment can be granted on the assumption
of risk doctrine as a matter of law.
Id.
In this regard, Judge Brann stated that, “to grant summary judgment on
assumption of the risk as a matter of law, the court must – conclusively and
beyond question – find that the Plaintiff was subjectively aware of a specific
risk, voluntarily accepted it and acted in spite of that risk, and suffered
harm contemplated by that specific risk.”
Id. citing
with “See, e.g.” signal, Zeidman v. Fisher, 980 A.2d 637, 641, Pa. Super. 2009).
Here, the court denied GEICO’s motion and granted the
Plaintiff’s motion on the assumption of risk issue. In this regard, Judge Brann found that there
were no facts that demonstrated that the Plaintiff was aware of the particular
danger from which she was ultimately injured.
More specifically, there were no facts to establish that the
Plaintiff was specifically aware of the risks that the robber would run her
over with his vehicle or otherwise cause her to fall down and strike her head
on the pavement.
The Court noted that
awareness of a general risk of harm does not amount to an awareness of a
specific risk as required by the assumption of risk doctrine.
The court also held that, under the
assumption of risk doctrine, a court should look at what a Plaintiff actually
knew, appreciated, and assumed in terms of the risks, rather than what a
Plaintiff should have known under the circumstances. Here, the court found that there were no
facts to demonstrate that the Plaintiff was subjectively aware of the danger
that would eventually befall her.
Judge Brann also found that there were no circumstances
where the risk of harm was so obvious with this case in that the Plaintiff
implied relieved the robber from exercising due care for the Plaintiff’s
safety.
Accordingly, based upon the
above factors, the court concluded that the assumption of risk doctrine did not
serve to bar the Plaintiff’s claims.
The court also added that, to the extent that GEICO
questions the reasonableness of the Plaintiff’s actions at trial, that is an
inquiry that should be resolved through comparative negligence principles and
not assumption of the risk principles.
The court noted that whether the Plaintiff acted reasonably under the
circumstances remains an issue for the jury to decide.
On the separate bad faith claim, GEICO asserted that it did
not act in bad faith because it had a reasonable basis to assert the assumption
of the risk doctrine as an affirmative defense and given that GEICO did not
unreasonably delay the matter in evaluating the case presented.
After reviewing the law of bad faith under §8371, Judge
Brann held that the Plaintiff cannot sustain her burden of proof on the bad
faith claim.
The court found that GEICO
had a reasonable basis to question coverage because the assumption of risk
doctrine remains a valid defense under Pennsylvania law.
The Court found that the fact that GEICO ultimately erroneously
relied upon that doctrine in this case, did not advance the Plaintiff’s bad
faith claim because the presence or absence of bad faith does not turn on the
legal correctness of the basis for a carrier’s denial of an insured’s
claim.
The court additionally noted
that, even if it was assumed that GEICO lacked a reasonable basis to rely upon
the assumption of risk doctrine as an affirmative defense, the Plaintiff still
failed to present clear and convincing evidence that GEICO knew or recklessly
disregarded that lack of a reasonable basis as required by bad faith
liability.
Judge Brann reiterated that,
under the bad faith statute, the Plaintiff’s burden of proof is “substantial:
‘Bad faith must be proven by clear and convincing evidence and not merely
insinuated. This heightened standard
requires evidence so clear, direct, weighty, and convincing as to enable a
clear conviction, without hesitation, about whether or not the Defendants acted
in bad faith.’” [citations omitted].
The
court additionally found that the
Plaintiff could not show that GEICO unreasonably delayed in the handling of her
claim as the parties communicated with each other over several months in an
effort to resolve the case. Judge Brann also noted that, by the time the Plaintiff filed her Complaint, she had still not
produced certain documentation, including the police report, requested by the
carrier. As such, the court found that
any delay incurred in GEICO’s resolution of Plaintiff’s claims cannot be
construed as unreasonable.
In the end, the court noted that, because no reasonable jury
could find in the Plaintiff’s favor, GEICO’s Motion for Summary Judgment on the
bad faith claim was granted.
Anyone wishing to review a copy of this decision may click
this
LINK. Here is a
LINK to the companion Order of Court.
