Monthly Archive for September, 2017

SEPTEMBER 2017 BAD FAITH CASES: MERE DISAGREEMENT OVER CONTRACT INTERPRETATION DOES NOT AMOUNT TO BAD FAITH IN SUIT AGAINST SURETY (New Jersey Federal)

Published on September 29, 2017 in NJ - Coverage Issues. Closed

Between 2010 and 2016, the insurer issued various performance and payment surety bonds on behalf of ongoing construction projects. In connection with these bonds, the insurer also entered into General Indemnity Agreements (“GIA”) with the plaintiffs.

After execution of one of the GIAs, the insurer began receiving claims against the performance bonds. By November of 2016, insurer made payments totaling $8,424,302.57 toward resolving those claims. However, the insurer estimated that its potential liability for the claims could exceed $18 million.

Under the GIA, the insurer interpreted the plaintiffs as indemnitors and principals of the bonds. As such, the insurer wrote to the plaintiffs on two separate occasions, and demanded that the plaintiffs post cash collateral in the amount of $18,807,737.47 to cover the full amount of the claims. Plaintiffs then filed suit against the insurer and alleged breach of the implied covenant of good faith and fair dealing, and violations of various state consumer fraud statutes, among other claims. The insurer moved to dismiss.

In dismissing the breach of the implied covenant of good faith and fair dealing claim, the Court ruled that “[p]laintiffs’ allegations . . . do little more than indicate a disagreement over contractual interpretation, and fail to provide with any specificity how [the insurer] acted in bad faith.” The Court further held that such conclusory and vague pleading failed to comport with Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement showing that the pleader is entitled to relief. Citing the same reasoning relating to the inadequacy of the plaintiffs’ pleading, the Court also dismissed the plaintiff’s state fraud claims against the insurer.

Date of Decision: September 13, 2017

Greenskies Renewable Energy, LLC v. Arch Insurance Co., No. 16-5243-SDW-LDW, 2017 U.S. Dist. LEXIS 148185 (D. N.J. Sept. 13, 2017) (Wigenton, J.)

 

UPDATED: PENNSYLVANIA SUPREME COURT RULES MOTIVE OF SELF-INTEREST OR ILL-WILL NOT AN ELEMENT OF STATUTORY BAD FAITH CASE (Pennsylvania Supreme Court)

Published on September 28, 2017 in PA - General Bad Faith and Litigation Issues and PA - Punitive Damages. Closed

Since 2007, Pennsylvania’s Superior Court has taken the position that proving statutory bad faith includes two elements: (1) the absence of a reasonable basis to deny a benefit and (2) knowledge or reckless disregard of the fact there was no reasonable basis to deny coverage. The elements were originally stated in Terletsky v. Prudential Property & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. Ct. 1994). The Terletsky Court had also discussed the concepts of a carrier’s “motive of self-interest or ill-will,” and some courts concluded this was a third element of proof. The Superior Court rejected that position in 2007, holding that self-interest or ill-will (sometimes generically referred to as malice) can be evidence used to prove the second element, but was not an element of proof in itself. However, the position that self-interest or ill-will was a required third element of proof has continued in some Pennsylvania Federal District Court opinions.

Today, in Rancosky v. Washington National Ins. Co., Pennsylvania’s Supreme Court adopted the Superior Court’s position.

The Supreme Court stated:

we adopt the two-part test articulated by the Superior Court in Terletsky v. Prudential Property & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that, in order to recover in a bad faith action, the plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. Additionally, we hold that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, as argued by Appellant. While such evidence is probative of the second Terletsky prong, we hold that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.

The Court instructed the Superior Court to remand the action to the Trial Court for factual findings. “However, because it is unclear to what extent the trial court’s findings on the reasonable basis prong of Terletsky were intertwined with its erroneous belief that proof of Conseco’s motive of self-interest or ill-will was required, upon remand the trial court should consider both prongs of the Terletsky test anew.”

Some of the other key points in the opinion include:

  1. Punitive Damages. The Bad Faith Statute provides for attorneys’ fees, super-interest, and punitive damages. There is no higher standard of proof for plaintiffs seeking to prove bad faith with punitive damages, i.e., self-interest or ill-will do not become elements of proof where the plaintiff demands punitive damages as part of the statutory bad faith claim. The Court stated, “we find no basis for concluding that the General Assembly intended to impose a higher standard of proof for bad faith claims seeking punitive damages when it created the right of action.”
  2. No Effect of Prior Supreme Court Precedent. In footnote 10, the Court cites to three of its bad faith opinions: Toy, Birth Center and Mishoe. The Court makes clear that these “prior decisions interpreting Section 8371 do not directly control our disposition of the instant matter. Moreover, nothing we say here should be read as casting doubt on the validity of the holdings in those cases. As we have stated over the years on this blog, Toy can be interpreted to limit cognizable bad faith claims to those cases where there has been a denial of benefits in a first party case, or denial of a defense or coverage in third party cases. That issue was not addressed in Rancosky.
  3. Statutory Interpretation. The Court offers general instruction on how to apply principles of statutory construction under Pennsylvania law. In this case, the focus was on the history of bad faith law leading up to the 1990 adoption of the 42 Pa.C.S. § 8371, and the contemporaneous meanings of bad faith at the time of its adoption. The driving factor was the universal understanding that the legislation was in response to the Pennsylvania Supreme Court’s 1981 D’Ambrosio decision, and how the issue of what constitutes bad faith was framed in that case.
  4. Interesting Comments in Justice Wecht’s Concurrence. Justice Wecht’s concurrence focuses of how inclusion of ill-will/self-interest as an element would functionally swallow the Terletsky test. In describing this flaw, he makes an interesting point about the relationship between poor claims handling being tied into the denial of benefits to make out a bad faith claim: “Knowing or reckless claims-handling leading to objectively unreasonable denial of benefits, if proven by clear and convincing evidence, embodies the principle that a patent absence of good faith is tantamount to the presence of bad faith.” 

    Date of Decision: September 28, 2017

    Rancosky v. Washington National Insurance Company, Pennsylvania Supreme Court, 28 WAP 2016 (Pa. Sept. 28, 2017)

PENNSYLVANIA SUPREME COURT RULES MOTIVE OF SELF-INTEREST OR ILL-WILL NOT AN ELEMENT OF STATUTORY BAD FAITH CASE (Pennsylvania Supreme Court)

Published on September 28, 2017 in PA - Punitive Damages. Closed

Since 2007, Pennsylvania’s Superior Court has taken the position that proving statutory bad faith includes two elements: (1) the absence of a reasonable basis to deny a benefit and (2) knowledge or reckless disregard of the fact there was no reasonable basis to deny coverage. The elements were originally stated in Terletsky v. Prudential Property & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. Ct. 1994). The Terletsky Court had also discussed the concepts of a carrier’s “motive of self-interest or ill-will,” and some courts concluded this was a third element of proof. The Superior Court rejected that position in 2007, holding that self-interest or ill-will (sometimes generically referred to as malice) can be evidence used to prove the second element, but was not an element of proof in itself. However, the position that self-interest or ill-will was a required third element of proof has continued in some Pennsylvania Federal District Court opinions.

Today, in Rancosky v. Washington National Ins. Co., Pennsylvania’s Supreme Court adopted the Superior Court’s position.

The Supreme Court stated:

“we adopt the two-part test articulated by the Superior Court in Terletsky v. Prudential Property & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that, in order to recover in a bad faith action, the plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. Additionally, we hold that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, as argued by Appellant. While such evidence is probative of the second Terletsky prong, we hold that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.”

More to follow.

Bad Faith Blog Nominated in Best Legal Blog Contest

Published on September 27, 2017 in PA - Punitive Damages. Closed

The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has been nominated to participate in The Expert Institute’s Best Legal Blog Contest, in the Niche and Specialty category.

Please consider giving us your vote, via this voting Link.

Thanks from all of us at the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog!

 

SEPTEMBER 2017 BAD FAITH CASES: MOTION TO DISMISS DENIED WHERE ALLEGED FACTS SUPPORT BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (Philadelphia Federal)

Published on September 25, 2017 in PA - General Bad Faith and Litigation Issues. Closed

The insureds brought a consolidated class action against the insurer under certain life insurance policies. The policies are different from standard whole life insurance policies because the premium payments are flexible. Policyholders may adjust both the amount and frequency of their premium payments, so long as they maintain sufficient funds in the account to cover a monthly deduction. The monthly deduction is comprised of a cost of insurance (“COI”) charge and other related expenses.

The policies serve as an investment vehicle, whereby policyholders make payments into an interest bearing account. The insurer withdraws the monthly deduction from each account and deposits interest monthly. A policyholder may elect to pay a premium in excess of the monthly deduction. Those excess funds then increase the policy’s accumulated value. However, if the monthly deduction exceeds the value of interest generated and the premium paid, the policy value is reduced.

The insureds allege that the insurer unlawfully increased the COI under the policies by using impermissible considerations, and failed to provide some policyholders with illustrations of the COI increase upon request. Specifically, the insureds allege that the insurer cannot set the COI to recoup prior losses based on interest rate changes or miscalculations in previous mortality assumptions. The insureds allege “[the insurer] is impermissibly using its discretion to recoup past losses or ‘blunt the impact of the prevailing low interest rate environment.’” In many cases, the insurer allegedly increased COI rendered the policies economically burdensome.

The insureds brought claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and various other claims. As to the breach of the implied covenant of good faith and fair dealing claim, the insurer argued that this claim be dismissed as duplicative because it is based on the same facts as the breach of contract claim. The Court denied the motion. Pennsylvania “law does recognize an implied covenant of good faith where . . . the [insurer] is expressly given a constrained amount of discretion under the Policy.” For Rule 12(b)(6) purposes, the Court held that the insureds adequately alleged that the insurer breached the implied covenant “by exercising their limited discretion under the Policies in an unreasonable and unfair manner with the intent of . . . frustrating policyholders’ expectations and depriving them of the benefit of the agreement.”

Furthermore, the Court declined to dismiss the breach of contract claim, finding that the insureds’ allegations were plausible at this stage of the litigation.

Date of Decision: September 11, 2017

In re Lincoln National COI Litigation, No. 16-06605, 2017 U.S. Dist. LEXIS 146904 (E.D. Pa. Sept. 11, 2017) (Pappert, J.)

SEPTEMBER 2017 BAD FAITH CASES: NO BAD FAITH WHERE DENIAL OF PIP BENEFITS STEMMED FROM EXHAUSTION OF THE POLICY LIMITS (New Jersey Appellate Division)

Published on September 21, 2017 in NJ - Claims Handling Procedures. Closed

The insured received medical treatment from several providers after sustaining injuries in a May 2013 auto accident. The policy provided up to $15,000 in PIP benefits per accident. The insurer denied a request for an $8,527.07 payment to Hackensack Surgery Center (“HSC”), as subrogee of the insured, because it determined that the treatment was not medically necessary. HSC then filed a demand for arbitration.

Prior to the arbitration hearing, the insurer advised that only a balance of $2,132.74 remained in available PIP benefits due to prior payments totaling $12,867.26. During the pendency of HSC’s claim, Thermocare Plus, LLC (“Thermocare”), another medical provider of the insured, utilized the insurer’s internal appeals process to seek a reversal of insurer’s earlier denial of its bill totaling $2,032.74. On August 21, 2015, the insurer advised Thermocare that its previous denial was overturned, and that it would process Thermocare’s bill. On the same day, the insurer received the HSC arbitration award that the HSC treatment was medically necessary, and awarded $8,438.58, plus interest, attorney’s fees, and costs to HSC. However, the arbitration panel stated that the award “was subject to ‘the policy limits for medical payments, still available to [HSC] at the time of the award.’”

Seven days later, the insured paid Thermocare $2,032.74. The insurer then complied with the arbitration award, and processed a payment of $100 to HSC, which reflected the amount of remaining PIP benefits. HSC then filed an order to show cause, arguing that its payment had priority. HSC sought an additional payment of $2,036.99 and attorney’s fees and costs. The trial judge ordered the insurer to pay HSC an additional $2,036.99, which represented the amount remaining on the arbitration award. The judge reasoned that the insurer did not “engage[] in any sort of bad faith. . .”, but the insurer’s payment decisions did not achieve an equitable outcome. The trial judge denied HSC’s request for attorney’s fees.

On appeal, the insurer argued that the trial judge’s decision ran counter to existing state law because it had already exhausted the PIP policy limits. Furthermore, the insurer argued that it had 35 days to challenge the arbitration award, and thus was under no obligation to comply with the award because it already approved Thermocare’s payment.

In articulating the collateral source rule, which governs the payment of PIP benefits under New Jersey law, the Appellate Division stated that the insurer is required “to pay PIP benefits immediately upon [a] determination that the loss is due and owing, without consideration that the loss may also be covered by another source. . . .” The Appellate Division held that HSC is entitled to the additional $2,036.99 payment, because HSC’s bill predated Thermocare’s; HSC rendered services prior to Thermocare; the insurer received HSC’s bill prior to Thermocare’s; and because Thermocare’s bill remained unpaid as of the date of the arbitration award. Citing the “broad discretion” given to trial judges when deciding whether to award attorney’s fees, and finding no abuse of discretion, the Appellate Division declined to overrule the judge’s decision to deny HSC its requested attorney’s fees and costs.

Date of Decision: September 5, 2017

Hackensack Surgery Ctr. V. Allstate Ins. Co., No. A-3896-15T3, 2017 N.J. Super. Unpub. LEXIS 2200 (N.J. App. Div. Sept. 5, 2017) (Reisner and Sumners, JJ.)

SEPTEMBER 2017 BAD FAITH CASES: BAD FAITH CLAIM DISMISSED DUE TO A LACK OF FACT SPECIFIC ALLEGATIONS, INSURED GIVEN LEAVE TO AMEND (Philadelphia Federal)

Published on September 19, 2017 in PA - Procedural Issues. Closed

The insured filed a UIM claim with her insurer after sustaining injuries in an auto accident. The insurer denied the claim. The insured then sued the insurer and alleged breach of contract and bad faith. The insurer moved to dismiss the bad faith claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

The Court stated that in order “[t]o survive a motion to dismiss, [the insured’s] complaint must include factual allegations from which the Court may plausibly infer the unreasonable and intentional or reckless denial of benefits.” The insured alleged that the insurer failed to act with reasonable promptness in evaluating and responding to the insured’s claim; that the insurer failed to act with reasonable fairness; and that the insurer failed to conduct a proper investigation.

The Court found that complaint only asserted legal conclusions. The insured did not specifically allege how the insurer failed to properly investigate the claim or how the insurer acted unreasonably. Furthermore, the insured failed to cite any date of correspondence or other contact with the insurer.

Even accepting the insured’s complaint as true, the Court stated that it is unable to “plausibly infer from those facts that [insurer] acted unreasonably and intentionally or recklessly in denying benefits to [the insured].” The Court granted the insurer’s motion to dismiss the bad faith claim without prejudice, and granted the insured leave to amend her complaint.

Date of Decision: September 6, 2017

Myers v. State Farm Mutual Automobile Insurance Co., No. 17-3509, 2017 U.S. Dist. LEXIS 143794 (E.D. Pa. Sept. 6, 2017) (Surrick, J.)

Thanks to Dan Cummins of the excellent Tort Talk Blog for bringing this case to our attention.

SEPTEMBER 2017 BAD FAITH CASES: INSURED STATED CLAIMS FOR STATUTORY BAD FAITH IN CONTEXT OF MULTIPLE POLICIES[ AND CONTRACT BASED BAD FAITH WHERE BAD FAITH CONDUCT MIGHT DIFFER FROM CONDUCT BREACHING CONTRACT (Middle District)

Published on September 18, 2017 in PA - Coverage Issues. Closed

Plaintiffs sued defendant life insurer as beneficiaries of a term life insurance policy issued to the insured. The insurer denied payment of full death benefits due to a suicide exclusion in the policy.

The insured entered into the original policy in September 1986. This policy contained a death benefit of $25,000. Insurer then increased this benefit to $100,000 in December of 1995 upon the insured’s request. In August of 2007, the insurer issued a replacement policy to the insured, also with a death benefit of $100,000. The insured committed suicide in May 2009, and the insurer only paid out $288.54, which represented the premiums paid by the insured on the replacement policy, plus 4.5% interest. The suicide exclusion clause read:

“If the insured dies by suicide while sane or insane or by intentional self-destruction while insane, we will not pay any death proceed payable on amounts of insurance which have been in effect for less than 2 years. If the suicide or intentional self-destruction is within the first 2 contract years, we will pay as death proceeds the premiums you paid.”

The plaintiffs sued for breach of contract, unjust enrichment, promissory estoppel, breach of the implied covenant of good faith and fair dealing, and bad faith.

As to the bad faith claim, the plaintiffs’ argued that because the insured maintained $100,000 in coverage since 1995, the insurer’s denial is “manifestly unreasonable, and constitutes a frivolous and unfounded refusal to pay because it is directly contradicted by the language in the policy.” Plaintiffs’ further argued that insurer either knew or should have known that its refusal was unreasonable, frivolous, and unfounded. Insurer argued that it based its denial of full death benefits on the second sentence in the suicide exclusion, and thus the beneficiaries were only entitled to the premiums paid on the August 2007 replacement policy. The Court found that at this early stage in the litigation, and for Federal Rule of Civil Procedure 12(b)(6) purposes, “Plaintiffs plausibly allege facts, which the Court must accept as true, [that] support the statutory bad faith claim . . .” against the insurer.

The insurer argued that the Court should dismiss the plaintiff’s breach of the implied covenant of good faith and fair dealing claim, because that claim is subsumed in a breach of contract claim. The Court held, however, that “[n]othing in the case law . . . bars a plaintiff from bringing a cause of action for breach of contract and a cause of action for breach of the duty of good faith and fair dealing when those two actions are based on separate conduct.” The Court explained that at this early pleading stage, it is not clear that the same conduct forms the basis for both the breach of contract and breach of the covenant of good faith and fair dealing claims. Thus, the Court denied insurer’s motion to dismiss as to that claim.

Date of Decision: September 6, 2017

Lomma v. Ohio Nat’l Life Assur. Corp., No. 3:16-cv-2396, 2017 U.S. Dist. LEXIS 144227 (M.D. Pa. Sept. 6, 2017) (Mariani, J.)

SEPTEMBER 2017 BAD FAITH CASES: COURT GIVES CLOSE SCRUTINTY TO APPLICATION FOR STATUTORY FEES AND INTEREST: (1) NO INTEREST ON PUNITIVE DAMAGES; (2) NO FEES AND COSTS FOR INADEQUATELY SUBSTANTIATED AND MAINTAINED BILLING RECORDS; (3) RETROACTIVE GUESSING TO RECREATE TIME OF OTHERS OVER A PERIOD OF YEARS, AND FAILURE TO EXPLAIN HOURLY RATE, ADMONISHED AND (5) MATTER REFERRED TO DISCIPLINARY BOARD (Middle District)

Published on September 15, 2017 in PA - Lawyer's - Attorney's Fees. Closed

This is a very lengthy opinion, focusing on a successful bad faith plaintiff’s pursuit of statutory interest, attorney’s fees, and costs. The total sought was over 9 times greater than the UIM and bad faith recovery, and the Court scrutinized each time entry invoiced in determining the outcome, which included the Court’s referral of the matter to the Disciplinary Board.

The insured received a $25,000 settlement on his UIM claim, and a $100,000 punitive damages verdict on his bad faith claim. After that verdict, the plaintiff pursued attorney’s fees, statutory interest and costs under the Bad Faith Statute, totaling $1,122,156.43.

Regarding interest, the insured argued that the unpaid balance of $125,000 should bear interest from April 1, 2010 (the date the insured’s claim began) through November 6, 2015 (the date of the jury’s verdict). The insured sought $175,630.70 in total interest. The Court found this calculation flawed for multiple reasons. (1) The Court had previously found that the appropriate timeframe was June 21, 2011 through June 20, 2014. (2) The insured sought interest on the $100,000 punitive damage award, in addition to the $25,000 UIM payment. Such a request for interest on punitive damages is improper, as “there is no support either in the statute or in the applicable case law for such interest.” (3) The insured’s counsel failed to deduct the principal balance in calculating interest. (4) Using the prime rate of 3.25%, plus 3% statutory super-interest on the underlying UIM claim, the Court awarded $4,986.58 for interest.

In addressing attorney’s fees and litigation expenses, the Court reiterated that the purpose of an award of attorneys’ fees under § 8371 is “to make the successful plaintiff whole by allowing the plaintiff to recoup funds unnecessarily expended to force an insurance company to pay that which it should have paid.” In reviewing the request for fees and costs, the Court found that billing records were not properly maintained. Rather, one attorney reconstructed all time entries for every attorney, paralegal, and IT staff member billing time on the matter over a six-year period. This attorney did so by guessing as to how long each task took. The Court repeatedly referenced the word “guess” in the Opinion. (E.g., the Court stated: “In addition to the unconscionable number of vague entries which have been billed for (or more accurately guessed about) by the plaintiff’s counsel, there also appear to be a number of duplicative entries in the bad faith time logs for which no explanation is provided.”)

The Court scrutinized every entry billed, finding “that a vast number of the entries for paralegal services on the UIM claim should be disallowed as vague, excessive, duplicative or unnecessary.” Thus, the Court disallowed 84 hours out of a total of 106.5 hours submitted for paralegal services on the UIM claim, a 79% reduction. The Court found the same problems with respect to the paralegal hours billed for the bad faith claim, and disallowed 177.75 hours out of a total of 198 hours submitted, for a 90% reduction.

The Court found that entries submitted for the attorneys’ services also suffered from problems of vagueness and being duplicative. The Court stated that the “[insured’s] counsel . . . failed to meet even the most basic burden of providing the rate(s) charged for the[] entries, let alone establishing the reasonableness of such rate(s).” For the UIM claim, the Court disallowed all but 4 attorney hours from the 99 submitted, a 96% reduction. With respect to the bad faith claim, counsel submitted 1,984 attorney hours. The Court disallowed 1,662.5 of those hours, an 84% reduction. The Court additionally reduced the hours billed by the IT staff by 71%.

Lastly, the Court admonished counsel for failing to provide any justification for an hourly rate of $420. The Court forwarded a copy of its opinion to the Disciplinary Board of the Supreme Court of Pennsylvania.

Date of Decision: August 29, 2017

Clemens v. New York Cent. Mut. Fire Ins. Co., No. 3:13-2447, 2017 U.S. Dist. LEXIS 138557 (M.D. Pa. Aug. 29, 2017) (Mannion, J.)

SEPTEMBER 2017 BAD FAITH CASES: SUMMARY JUDGMENT WHERE NO EVIDENCE THAT CLAIM DENIAL WAS FRIVOLOUS OR UNFOUNDED, AND POLICY LANGUAGE WAS NOT AMBIGUOUS (Philadelphia Federal)

Published on September 14, 2017 in PA - Claims Handling Procedures and PA - Coverage Issues. Closed

The insured filed a claim under his homeowner’s insurance policy after a leak in an air conditioner condensation line caused damage to his basement. Initially, the insured retained an independent claims adjuster to investigate the claim, who ultimately estimated the repair costs at $38,307.97. The insurer’s claims adjuster then investigated the property, and observed basement water damage, including “evidence of mold, rot, and deterioration damage to the building materials.” The insurer’s claims adjuster also noted bleach sprayed on the carpet in an attempt to remove the mold.

The insurer denied coverage due to exclusions precluding coverage for “damage caused by ‘continuous or repeated seepage or leakage of water’ from an air conditioning system, ‘which occurs over a period of time,’ water damage . . . and damage caused by the use of improper materials in the construction or repair of the property. . . .”

The insured requested reconsideration of the denial, arguing that the claim stemmed from “a ‘one time occurrence and [was] not due to repeated seepage.’” The insurer reviewed the insured’s request, but denied coverage again because the insured submitted no new information warranting coverage. The insured sued for breach of contract and bad faith, and the insurer moved for summary judgment on the bad faith claim.

In alleging bad faith, the insured argued that insurer failed to cite a factual basis for its coverage denial; that insurer unreasonably relied on an ambiguous and unenforceable policy exclusion for a loss caused by continuous or repeated seepage; and that there was no evidence that repeated seepage or leakage of water caused the loss.

After reiterating the “clear and convincing” evidentiary standard required for a bad faith claim, the Court concluded that no evidence in the record supported a finding that the insurer’s denial was frivolous, unfounded, or motivated by self-interest or ill will. On the contrary, the Court found that the insurer “acted reasonably and in good faith at all times during the claims investigation and handling process.” [The issue of whether self-interest/ill will are elements of statutory bad faith claims is now pending before Pennsylvania’s Supreme Court in Rancosky. Oral argument was heard in April 2017.]

Furthermore, the Court found that the policy exclusions were neither ambiguous nor unenforceable. The mere fact that the insured may have interpreted those exclusions differently is not sufficient to support a bad faith claim. Lastly, the insurer provided expert evidence to show repeated seepage of water caused the loss, and the insured submitted no conflicting expert evidence.

The Court granted the insurer’s partial motion for summary judgment as to the bad faith claim.

Date of Decision: August 25, 2017

Brodzinski v. State Farm Fire & Casualty Company, No. 16-6125, 2017 U.S. Dist. LEXIS 136644 (E.D. Pa. Aug. 25, 2017) (Surrick, J.)