Monthly Archive for May, 2010
In Fingles v. Continental Casualty Company, the insured had signed a long-term care insurance policy with the insurer in 1996. On September 10, 2003, the insured suffered brain damage while undergoing triple bypass surgery. After receiving treatment at a rehabilitation facility, the insured required in-home care. Once the insurer denied the insured’s request for payment for a nursing assistant because the assistant was not affiliated with a licensed home care agency, the insured moved to an assisted living facility on July 15, 2004.
The insured unsuccessfully submitted two more claims to the insurer. He was first denied in late 2004 because some necessary forms were missing. His next application, sent in May 2005, was denied in December 2005 because the insurer claimed that the insured’s coverage had been terminated almost two years earlier due to a missed premium payment. The insurer had given no notice of the termination of coverage to that point, but it said that the insured could reinstate the policy if he paid the past-due amount.
The insured passed away on January 7, 2006, and the plaintiff submitted the past-due amount ten days later. The insurer only issued a partial payment on the claim, and plaintiff sued to recover the remaining amount.
One of the counts of the lawsuit alleged a common law insurance bad faith infraction separate from the breach of contract count. The court dismissed this count, ruling that the count alleging a breach of contract includes any bad faith insurance claim. The judge did not rule at this time whether there was in fact bad faith on the part of the insurer; he simply merged the two claims into one breach of contract claim that includes a bad faith allegation within it.
Date of Decision: April 28, 2010
Fingles v. Cont’l Cas. Co., Civil Action No. 08-05943, United States District Court for the Eastern District of Pennsylvania, 2010 U.S. Dist. LEXIS 41643 (E.D. Pa Apr. 28, 2010) (O’Neill, Jr., J.).
In Vernon v. Erie Insurance Exchange, the insureds were injured in an automobile accident on June 23, 2007, when they were passengers in a vehicle that was struck by another automobile. On May 29, 2008, they filed a civil lawsuit, alleging (1) a breach of contract for failure to pay benefits under their Underinsured Motorist Policy (“UIM”) coverage, (2) bad faith for failure to make a reasonable effort to settle the case, and (3) loss of consortium.
After pleadings were closed, the case was scheduled for trial on September 15, 2009. On May 29, 2009, the parties appeared before court on the insureds’ Motion to Compel and the insurer’s Motion to Bifurcate the breach of contract and bad faith claims. On June 1, 2009, Judge Strassburger denied the insureds’ Motion to Compel without prejudice and denied the insurer’s Motion to Bifurcate, ruling that “the bad faith claim will be tried immediately upon the UIM case being sent to the jury, or on the scheduled trial date if the UIM case is settled, unless Plaintiffs within 20 days of this Order file a Motion to Bifurcate.” On July 1, 2009, the insurer filed a Notice of Appeal to the Superior Court from Judge Strassburger’s June 1, 2009 order denying its Motion to Bifurcate. As required by
In addressing the appeal, Judge Strassburger compared this case to Gunn v. Automobile Insurance Company of Hartford. Connecticut, where the Superior Court held that the trial court’s denial of the defendant’s motion to Sever and Stay a Statutory Bad Faith claim did not qualify as an appealable collateral order, and recommended that the Superior Court should quash that appeal. The Superior Court’s decision in Gunn is summarized elsewhere on this Blog.
Because the underlying motions in Gunn and Vernon were the same, Judge Strassburger opined that the appeal was not from a collateral order, was interlocutory and should be quashed.
Date of Decision: August 3, 2009
Vernon v. Erie Ins. Exc., GD 08-10406, Common Pleas Court of Allegheny County, Pennsylvania, 2009 Pa. Dist. & Cnty. Dec. LEXIS 220 (Pa.. Aug. 3, 2009) (Strassburger, J.).