JULY 2008 BAD FAITH CASES
REASONABLE FEE TO BE PAID DOCTOR BY THE INSURED FOR DEPOSITION TESTIMONY IF THE INSURED WISHES TO DEPOSE HIM FOR BAD FAITH CLAIM (Philadelphia Federal)

The insured brought a bad faith claim against the insurer stemming from an automobile accident where the insured suffered serious injuries. The insured was involved in an automobile accident with another driver. The insured had a policy with the insurer which provided for underinsured motorist coverage. The insured settled the claim within the other driver’s policy limits with the express consent of the insurer and then made a claim under her policy. After some delay, the insured received a substantial award against the insurer.

The insured brought an action in the United States District Court for the Eastern District of Pennsylvania against the insurer alleging that the insurer acted in bad faith in handling her claim. The insured claims that the insurer delayed in making an offer of settlement, made totally inadequate settlement offers, and improperly sought to impede the resolution of her claim.

The concern presently before the court relates to a physician the insurer retained to examine the insured. The doctor drafted a report verifying the extent of the insured’s injuries and the fact that they were caused by the accident in question. However the insurer refused to consent to the submission of the doctor’s report to the arbitrators deciding the case and also refused to permit the insured’s counsel to depose the doctor.

The insured filed a motion to compel the deposition testimony of the doctor. The insurer argues that the insured must first agree to pay a witness fee of $3,000 to the doctor because the doctor will be asked his professional opinion cannot be required to express such without compensation. The insured however argued that the doctor will be a fact witness and will not be expressing any professional opinion.

The court ordered, upon consideration of the insured’s motion to compel the doctor’s deposition, that the insured’s counsel first proceed by requests for admission. If after that process the insured still wishes to depose the doctor the requires him to express a professional opinion the insured will be required to pay him a reasonable fee, not necessarily the $3,000 fee demanded by the insurer. If the parties are unable to agree on a reasonable fee amount the court will decide the amount after the conclusion of the deposition.

Date of Decision: February 7, 2008

Laferriere v. Zurich Am. Ins. Co., 2008 U.S. Dist. LEXIS 9444 (E.D. Pa. Feb. 7, 2008)(Fullam, J.)

J.M.A.