JUNE 2009 BAD FAITH CASES MVFRL DOES NOT PREEMPT BAD FAITH STATUTE WHERE ISSUE CONCERNING FIRST PARTY MEDICAL BENEFITS ALSO GOES TO BAD FAITH ON UIM CLAIM (Middle District)
In Bukofski v. USAA Casualty Insurance Company, the insured made the following allegations of bad faith concerning a UIM claim. Failing to pay the first party benefits to plaintiff; failing to objectively and fairly evaluate plaintiff’s first party medical benefit claim; refusing to effectuate a prompt and fair resolution of plaintiff’s first party benefit claim; retaining the Peer Review Organization to challenge the reasonableness and necessity of plaintiff’s medical treatment so as to force her health care provides to stop treatment necessary for the accident-related injuries; and misrepresenting Pennsylvania law to plaintiff’s physicians. The carrier argued that these were disputes over first party medical benefits and as such, the MVFRL preempted any statutory bad faith claim. The court rejected this argument, finding that a close reading of the complaint showed the same conduct was intertwined with the UIM claim. The court stated:
“The complaint’s bad faith action attacks defendant’s handling of the UIM claim and certain actions it took with regard to the first-party medical benefits claim are alleged to be evidence of the defendant’s bad faith in defense of the UIM claim. Merely because some of the bad faith evidence alleged by the plaintiff relates to first-party medical benefits claim does not mean that the bad faith claim with regard to the handling of the UIM claim is preempted. Thus, defendant’s motion based upon MVFRL pre-emption will be denied.”
