Opinion
J-A09036-13 No. 769 WDA 2012 No. 828 WDA 2012
2013-09-24
BRANDON P. GROSSI, AN INDIVIDUAL Appellee v. TRAVELERS PERSONAL INSURANCE COMPANY, A CORPORATION Appellant BRANDON P. GROSSI Appellant v. TRAVELERS PERSONAL INSURANCE COMPANY, A CORPORATION Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order April 18, 2012
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 12646-2009
BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J. DISSENTING MEMORANDUM BY BOWES, J.:
In this matter, some of the trial court's factual findings are in irreconcilable conflict. Additionally, the trial court's factual findings do not support its legal conclusions. Thus, I believe that the evidence cannot sustain a finding, by clear and convincing evidence, that Travelers Personal Insurance Company ("Travelers") handled the underinsured motorist claim ("UIM") filed by Brandon P. Grossi, in bad faith. Further, I would find that Travelers is entitled to judgment notwithstanding the verdict ("n.o.v."). I would reverse, and therefore respectfully dissent to the learned majority's decision to affirm.
When we examine the propriety of the trial court's denial of judgment n.o.v.,
we must determine whether there is sufficient competent evidence to sustain the verdict. We will review all of the evidence in the light most favorable to the verdict-winner and will give that party the benefit of every reasonable inference arising from that evidence while rejecting all unfavorable testimony and inferences. Judgment n.o.v. may be entered where: (1) the moving party is entitled to judgment as a matter of law and/or (2) the evidence is such that no two reasonable minds could disagree that the verdict should have been rendered for the moving party. Our scope of review is plenary concerning any questions of law.Renna v. Schadt, 64 A.3d 658, 669 (Pa.Super. 2013) (quoting Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004)).
Mr. Grossi's cause of action herein arose under 42 Pa.C.S. § 8371, actions on insurance policies, which outlines a remedy for bad faith conduct by an insurance company and provides:
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.
The definition of "bad faith" conduct by an insurer has been defined as follows:
In an early case, this Court looked to Black's Law Dictionary to define "bad faith" as "any frivolous or unfounded refusal to pay proceeds of a policy." Terletsky v. Prudential Property and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (1994), appeal denied, 540 Pa. 641, 659 A.2d 560 (1995); see also Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1036 (Pa.Super. 1999). In subsequent cases, we have held that to succeed on a claim under section 8371, the insured must show that "the insurer did not have a reasonable basis for denying benefits under the policy and that the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim." See, e.g., O'Donnell v. Allstate Ins. Co., 734 A.2d 901, 906 (Pa.Super. 1999) (citing MGA Ins. Co. v. Bakos, 699 A.2d 751, 754 (Pa.Super. 1997)). To constitute bad faith it is not necessary that the refusal to pay be fraudulent. However, mere negligence or bad judgment is not bad faith. Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 380 (Pa.Super. 2002). Id. The insured must also show that the insurer breached a known duty (i.e., the duty of good faith and fair dealing) through a motive of self-interest or ill will. Id.Berg v. Nationwide Mut. Insurance Co., Inc., 44 A.3d 1164, 1171 (Pa.Super. 2012).
Bad faith is not present when the insurer makes a low, but factually reasonable assessment of the insured's damages. Id.; Terletsky, supra. In O'Donnell, supra at 910, we noted that, absent evidence of dishonesty or ill-will, an insurer has not engaged in bad faith when it elects to "aggressively investigate [a claim] and protect its interests." The law does not require "an insurer to sacrifice its own interests by blindly paying each and every claim submitted by an insured in order to avoid a bad faith lawsuit." Condio v. Erie Insurance Exchange, 899 A.2d 1136 (Pa.Super. 2006). The plaintiff has the burden of proving bad faith by clear and convincing evidence. O'Donnell, supra; Adamski, supra. "The clear and convincing evidence standard is the highest standard of proof for civil claims" and "requires evidence so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy of the truth of the precise facts in issue." In re Estate of Cella, 12 A.3d 374, 380 (Pa.Super. 2010) (citations omitted).
This bad faith action is premised upon the following events. On December 24, 2006, Mr. Grossi was a passenger in a vehicle owned by Tarquinio Brothers Bakery and operated by Michael Tarquinio (collectively "Tarquinio"). Mr. Tarquinio lost control of the vehicle and struck a guardrail, and was solely and clearly liable for Mr. Grossi's damages, which flowed from a severely injured right leg. Tarquinio had an automobile liability policy on the vehicle with limits of $1,000,000, and maintained an umbrella policy with liability limits of $2,000,000. Both policies were issued by Mutual Benefit Insurance ("Mutual"). Hence, the tortfeasor, Tarquinio, had $3,000,000 in liability coverage available to satisfy Mr. Grossi's damages.
Mr. Grossi also was an insured under his parents' automobile insurance policy issued by Travelers, which contained medical benefits coverage of up to $1,000,000, and UIM coverage of $300,000. Travelers was notified about the accident two days after its occurrence. In January 2007, Mr. Grossi retained Keith R. McMillen, Esquire, to pursue litigation arising from the vehicle accident. From January 2007 to April 2008, Travelers promptly paid first-party medical benefits of roughly $500,000 and wage loss benefits of approximately $25,000 under its policy.
After payment of the aforesaid first-party benefits and, even though no UIM claim had been made, Travelers' claims adjuster, Roxanne Youndt, called Mr. McMillen on April 1, 2008, to ask whether he wanted Travelers to leave the file open for a potential UIM claim. Mr. McMillen advised Ms. Youndt that he would be filing such a claim, and, on April 21, 2008, Mr. McMillen sent a demand package to Travelers for the full amount of UIM coverage. That package was identical to the one that Mr. McMillen had forwarded to Tarquinio's insurer, Mutual, six days earlier, on March 26, 2008.
In the demand package, Mr. Grossi's wage loss was valued at $4,252,725. This figure was based upon an assumption, as outlined in an expert report prepared by Dr. William Houston Reed, that Mr. Grossi's injuries would prevent him from assuming management of an automotive repair business owned by Mr. Grossi's father. Dr. Reed also indicated that if Mr. Grossi were to pursue a job outside of the family business, his lost future wages would be between $1.25 million and $1.736 million. In his demand correspondence, Mr. McMillen acknowledged that "the future consequences of present injuries always involve some degree of uncertainty." Trial Court Opinion, 1/23/12, at § 9. Mr. McMillen also stated in that document that he was litigating the lawsuit against the tortfeasor simultaneously with the UIM claim.
During litigation of the Tarquinio action, Mr. McMillen was asked by Travelers' counsel to provide him with all of the discovery obtained in the torfeasor case. Mr. McMillen, on two occasions, supplied discovery taken in the Tarquinio litigation, but withheld other discovery in his possession, including a vocational expert report obtained by Mutual. On March 6, 2009, Mr. Grossi settled the underlying third-party claim against Tarquinio for $950,000, less than one-third of the available coverage of $3,000,000.
After the Tarquinio action settled on March 6, 2009, Travelers obtained an independent medical examination ("IME") of Mr. Grossi on May 7, 2009, and a vocational report on June 23, 2009. The matter proceeded to UIM arbitration, where Mr. Grossi was awarded $4,000,000. Travelers promptly paid the $300,000 in UIM coverage.
Mr. Grossi thereafter initiated this bad faith action on September 29, 2009. A nonjury trial was held on October 19-20, 2011. The trial court found in favor of Mr. Grossi, awarded him interest on the UIM claim of $25,500; attorneys' fees for the UIM claim of $26,875; attorneys' fees on the bad faith claim of $120,687.50; costs of $55,028.44; and punitive damages of $1,252,325.
In making its finding of bad faith, the trial court rendered the following legal conclusions. First, it decided that Travelers did not satisfy its duty to investigate the UIM claim because it did not obtain IME and vocational reports until over one year after the submission of the UIM claim on April 21, 2008. Second, it ruled that there was no basis for Travelers' rejection of Mr. Grossi's position that his wage loss exceeded $4,000,000. Third, it held that Travelers never offered an explanation as to why it did not offer to settle the UIM claim.
The first legal conclusion rendered by the court was that Travelers exercised bad faith because it did not obtain an IME and vocational expert report for over one year after submission of the UIM claim. However, in its factual findings, the trial court expressly acknowledged that this delay was due to the fact that Travelers was monitoring the progress of the action against the tortfeasor. Specifically, the court found, "Travelers was monitoring [Mr.] Grossi's third party claim . . . and relied upon the pendency of the third party claim and $3M coverage available in the third party claim to support its failure to retain any experts to evaluate the [UIM] claim for over a year after the settlement demand was submitted." Trial Court Opinion, 1/23/12, at § 31.
Travelers' proof in this respect was as follows. On June 2, 2008, six weeks after the demand letter from Mr. Grossi, Travelers' insurance adjustor, Andrew W. Makar of the major claims unit, retained counsel, Dan Moskal, Esquire, to handle the UIM claim and to obtain an orthopedic IME and vocational assessment. Mr. Moskal was aware that Mr. Grossi's litigation against the tortfeasor was pending and wanted to secure the discovery conducted in that matter. Mr. McMillen, after initiating arbitration by letter dated May 30, 2008, did not submit any writing, correspondence, or materials to Travelers after that point. Mr. Makar continually checked in with Mr. Moskal on his progress in obtaining the IME and vocational report. Mr. Moskal was attempting to obtain a copy of the IME and vocational report secured by Mutual.
On October 3, 2008, Mr. Moskal sent a letter to Mr. McMillen scheduling Mr. Grossi's examination under oath for December 10, 2008, and asked for copies of discovery and deposition transcripts from the Tarquinio litigation. Mr. McMillen admitted that Mr. Moskal asked for "all the discovery materials" from the Tarquinio litigation. N.T. Trial, 10/19/11, at 215, 227. On November 18, 2008, Mr. Moskal sent a second letter to Mr. McMillen asking for all discovery and depositions from the tortfeasor action. On November 20, 2008, Mr. McMillen provided written discovery responses from the underlying matter and stated that there had been no depositions. Mr. McMillen did not supply a copy of the vocational expert report authored by Celia Evans for Tarquinio, even though Mr. McMillen possessed that report. Id. at 222. Mr. McMillen never told Mr. Moskal that he would not forward it.
On December 10, 2008, Mr. Moskal took Mr. Grossi's examination under oath; Mr. Grossi stated that he was currently working in the family business. As of December 19, 2008, Mutual's IME had yet to be conducted. On January 16, 2009, Mr. McMillen supplied evidence of the extent of Mr. Grossi's limitations. Specifically, Mr. McMillen gave Mr. Moskal a DVD showing the auto repair shop owned by Mr. Grossi's father, and Mr. Grossi's pre-accident and post-accident activities. On April 9, 2009, Mr. McMillen provided additional discovery consisting of the deposition of Mr. Grossi's father that was conducted in the action against Tarquinio. It is not apparent when Mutual's IME was conducted, but the record substantiates that the case settled before the IME report was prepared.
The Tarquinio action settled on March 6, 2009. After realizing that a report would not be prepared, Travelers scheduled an IME with Jeffrey Kann, M.D., an orthopedic doctor, on May 7, 2009. Following that examination, Dr. Kann issued a report that day. On May 28, 2009, Mark Heckman conducted a vocational assessment and issued a report on June 23, 2009.
Herein, the trial court, in its findings of fact, specifically outlined why Travelers did not immediately secure the IME and vocational reports. It then concluded that Travelers exercised bad faith when it delayed in obtaining those items. Meanwhile, Travelers did not obtain the IME and vocational report for one year because it was monitoring the tortfeasor litigation and requested all discovery, including the IME and vocational reports obtained by Mutual.
In my view, Travelers cannot be held to have acted in bad faith in attempting to gain Mutual's documents. Mr. McMillen admitted at trial that Mr. Moskal asked him for all of the discovery materials obtained in the Tarquinio case; thus, Mr. McMillen was aware that this request included the vocational expert report and the IME. In response, Mr. McMillen never objected. To the contrary, Mr. McMillen actively encouraged Travelers' belief that he would supply Mutual's IME and vocational reports. Specifically, Mr. McMillen, on two occasions, forwarded discovery materials from the Tarquinio action to Mr. Moskal and discussed the vocational report with Mr. Moskal on December 19, 2008. N.T. Trial, 10/19/11, at 234. Mr. McMillen elected not to send Mr. Moskal the vocational report after it was in his own possession. Id. at 222.
It may have been poor judgment for Travelers to believe that Mr. McMillen would supply all of the discovery documents that it requested from the Tarquinio action, but that reliance upon Mr. McMillen does not demonstrate ill will or self-interest. The trial court's indication that Travelers "failed to obtain" the IME and vocational reports for fourteen months connotes that there were no efforts being made. However, Mr. McMillen, in his testimony, admitted that Travelers was not ignoring the UIM case; it was making efforts to obtain all the discovery from the Tarquinio case, including Mutual's IME and vocational report, which Mr. McMillen ultimately did not forward.
Once the Tarquinio case settled, Travelers obtained an IME within two months and a vocational report one month thereafter. Travelers' delay in obtaining an IME and vocational report was explained by that insurer and, in my view, negates any finding that, by clear and convincing evidence, it engaged in self-interest or ill will in that respect.
Second, the trial court rendered the legal conclusion that there was no basis for Travelers' rejection of Mr. Grossi's position that his wage loss would exceed $4,000,000. The trial court's factual findings directly undermine and conflict with this legal conclusion. The following facts are pertinent in this respect. After receiving the UIM demand, Ms. Youndt completed a UIM worksheet. She placed the $4,252,725 wage loss figure in that document. The trial court expressly noted that, in the worksheet, "Ms. Youndt did not conduct any independent evaluation of the value of Plaintiff's alleged future lost income; rather, Ms. Youndt's completion of the Worksheet was merely a summary by which to Advise the Major Claim Unit (MCU) of the Plaintiff's UIM claim so that it could evaluate whether the UIM Claim should be reassigned to the MCU (Major Claims Unit)." Trial Court Opinion, 1/23/12, at § 13 (emphases added).
This factual finding is supported by Ms. Youndt's affidavit, wherein she stated that she did not prepare the worksheet in order to evaluate the damages suffered by Mr. Grossi. Instead, she used the worksheet as a mechanism to transfer the claim to the major claims unit of Travelers and a more sophisticated adjustor. She placed the $4,252,725 wage loss figure on the worksheet as a summary of Mr. Grossi's demand rather than as an acceptance that his wage loss would amount to that figure.
I am aware that Travelers' manual provides that the UIM worksheet is to be an evaluation of an UIM claim. However, Ms. Youndt, due to the complex and significant nature of the claim herein, did not follow the manual. Instead, she used the worksheet to summarize the claim so that it could be transferred to a more sophisticated unit and experienced adjuster. Furthermore, as outlined infra, that adjustor performed the required analysis of the claim on May 23, 2008, within two months of its receipt. In light of these circumstances, the fact that the UIM worksheet was not an analysis cannot constitute bad faith. Zappile v. Amex Assurance Co., 928 A.2d 251, 258 (Pa.Super. 2007) (insurer's failure to follow manual on single occasion was not bad faith where error was not "part of an ongoing pattern or was anything other than a single mistake").
The trial court made another set of factual findings as follows. After Ms. Youndt's UIM worksheet was prepared, the UIM claim was reassigned to insurance adjustor Andrew W. Makar of the major claims unit. When Mr. Makar reviewed Ms. Youndt's UIM worksheet, he did not consider the portions of the document discussing future lost wages as constituting an evaluation of those potential damages. Instead, Mr. Makar viewed the UIM worksheet as merely a summary of the UIM claim due to "the wording [Ms. Youndt] used in [the UIM] worksheet" and that "Ms. Youndt identified critical issues to be addressed that included determining the value of the case, the severity and permanency of the injuries, and whether Plaintiff would regain pre-accident mobility." Trial Court Opinion, 1/23/12, at § 18.
The trial court continued as follows. After his evaluation, Mr. Makar concluded that the crucial issue pertaining to valuation of the UIM claim was whether Mr. Grossi, despite his injured leg, could return to work and assume management of his father's automotive repair business. Mr. Makar knew that in May 2008, Mr. Grossi began to work in his family business. In a May 22, 2008 letter, thirty days after receipt of the claim, Mr. Makar responded to Mr. McMillen and indicated that he evaluated Mr. Grossi's future wage loss claim as highly speculative and an open issue. Particularly, Mr. Makar knew that vehicles are repaired on lifts and that Mr. Grossi, who could not crouch or bend due to his injured right leg, could possibly assume management of his father's business despite his injuries.
On June 26, 2008, Mr. Makar issued a written report called a claims file analysis, which has the same purpose as a UIM worksheet. See N.T. Nonjury Trial, 10/20/11, at 486 (when asked the purpose for a claims file analysis, Mr. Makar responded that it was the same as that of a worksheet). Mr. Makar concluded that Travelers' UIM coverage would not be triggered. This determination was grounded on these facts: 1) by May of 2008, Mr. Grossi was employed at his father's automotive business; 2) Mr. Grossi still had rehabilitation possibilities; 3) Mr. Makar believed that, despite the limitations arising from his injured leg, Mr. Grossi would be able to assume control of the family business; 4) Mr. Makar believed that accommodations could be made; 5) the tortfeasor had clear liability; and 5) the tortfeasor possessed $3,000,000 in insurance coverage.
Due to the outstanding critical question about the extent of wage loss, Mr. Makar did not assign a wage loss amount to the UIM claim. Although he believed that the value of the UIM claim would not exceed the tortfeasor's liability limits of $3,000,000, Mr. Makar placed a $1,000 reserve on it due to state law requirements that an insurer place a reserve figure on a claim.
Mr. Makar's assessment of Mr. Grossi's actual damages was confirmed when Mr. Grossi settled the underlying third-party claim against Tarquinio on March 6, 2009, for $950,000, which was less than one-third of the tortfeasor's available coverage. Mr. Makar's opinion was also bolstered by the IME and vocational report obtained by Travelers. The IME, which Mr. Makar read, confirmed Mr. Makar's belief that Mr. Grossi could still manage his family business despite his injuries. Mr. Makar obtained an oral report from the vocational expert, Mr. Heckman, and the oral report also supported Mr. Makar's belief that Mr. Grossi would sustain minimal wage loss due to his injuries.
The trial court found that "Makar did not offer any explanation as to why he did not review the Heckman report or possess a copy of the report." Trial Court Opinion, 1/23/12, at § 38. This statement is a misrepresentation of the record. Mr. Makar did offer an explanation; he twice stated that he was verbally told about its contents. Then, the trial court states, in the same paragraph, that Mr. Makar was unable "to attribute a credible reason" as to why Mr. Heckman's written report was not in his file. Id. The reliability of the reason offered is, of course, a different matter. In my opinion, an oral summary of a vocational report to an adjustor by his counsel cannot serve as a basis for a finding of bad faith.
All of the above facts undermine the trial court's second legal conclusion, i.e., there was no basis for Travelers' rejection of Mr. Grossi's position that his wage loss would exceed $4,000,000. Indeed, the trial court paradoxically accepted the opinion of Mr. Grossi's expert, Harry Paras, Esquire, who opined that Travelers had no basis for rejecting the claim that Mr. Grossi would suffer $4,252,725 in wage loss, solely on the ground that Ms. Youndt's worksheet was an evaluation that the loss suffered by Mr. Grossi exceeded the available limits of Mutual's policy. Meanwhile, the trial court had made the specific factual finding on two or three occasions in its decision that the worksheet was not an evaluation. It likewise, on several occasions, accepted that the worksheet was merely a summary of the UIM claim submitted by Mr. Grossi.
In addition, the worksheet on its face did not constitute an acceptance of the $4,252,725 wage loss figure. That document internally challenged the position that Mr. Grossi would not be able to manage the car repair business. Specifically, in the "resolution" section of the UIM worksheet, Ms. Youndt identified critical issues to be addressed. Those issues included determining "Whether value of injuries exceed the underlying limits. Severity and permanency of injuries. Whether claimant regains pre-accident mobility." Uninsured Motorist Worksheet, 5/16/08, Defendant's Exhibit G at 7. Thus, the worksheet itself outlined outstanding unresolved questions that had to be answered before it could be determined that Mr. Grossi would not be able to manage his family business.
In light of what the document itself states, I believe we are compelled to reject the trial court's reliance on Mr. Paras' opinion that Ms. Youndt's worksheet constituted an admission that Mr. Grossi's damages would exceed $3,000,000 and trigger full UIM coverage. In this respect, our decision in Zappile, supra, is controlling. Therein, the bad-faith expert witness relied upon "a letter that did not state what the expert claimed and the trial court found it stated." Id. at 259. We held that since the document in question was incorrectly characterized by the expert witness, the trial court's reliance on the expert's opinion had to be rejected. Id.; see also Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968) ("An expert cannot base his opinion upon facts which are not warranted by the record."); accord City of Philadelphia v. W.C.A.B. (Kriebel), 29 A.3d 762, 770 (Pa. 2011) ("while an expert may base his opinion on facts of which he has no personal knowledge, those facts must be supported by evidence of record"). Likewise, in this case, the trial court's acceptance on the opinion of the expert witness must be dismissed since the worksheet did not constitute an admission that Mr. Grossi's wage loss would be in excess of $4,000,000.
In my view, this evidence plainly demonstrates that Travelers did not willfully and without basis reject the $4,252,725 wage loss estimate. Travelers acted in conformity with its right to protect its interest, investigate a claim, and not blindly accept the highest possible wage loss estimate proffered by an insured. Mr. Makar conducted an evaluation in the form of a claims file analysis and proffered sound reasons for rejecting Mr. Grossi's projected wage loss. His evaluation was confirmed by the tortfeasor settlement and the IME and vocational reports obtained by Travelers. Furthermore, I find it contrary to common sense to impute bad faith to Travelers for appraising the UIM claim at less than three million dollars when Mr. Grossi himself compromised his claim for $950,000 when coverages existed far in excess of that settlement. Travelers did not engage in ill will or self-interest; indeed, it is a strain to characterize its actions as negligent. Thus, the second legal conclusion outlined by the trial court is unsupported by clear and convincing evidence.
The final legal conclusion outlined by the trial court to support its verdict was that Travelers did not offer a basis for failing to offer to settle the UIM claim prior to arbitration. This position is completely unsupported. Mr. Makar stated that no settlement was offered due to the results of Travelers' IME and vocational assessment. On June 1, 2009, Dr. Kann issued an IME report indicating that, with the accommodation of a vehicle lift, Mr. Grossi could perform nearly all of the tasks necessary to run the family business. The record substantiates that Mr. Makar reviewed Dr. Kann's IME. N.T. Non-Jury Trial, 10/20/11, at 491 ("Mr. Makar, did you receive the IME report of Dr. Kann from Mr. Moskal? THE WITNESS: Yes, I did. THE COURT: And was that in your file? THE WITNESS: Yes, Sir."); id. at 521 (Mr. Makar testified that, following his review of Dr. Kann's report, he concluded that there was no UIM liability).
On May 28, 2009, Mr. Heckman conducted a vocational assessment and issued a June 23, 2009 report indicating that Mr. Grossi, based upon his physical limitations, would sustain minimal earnings loss if he assumed control of the family business, where he was, at that point, actually working. Mr. Makar was apprised of the contents of that report orally. Id. at 491 (Mr. Makar admitted that a copy of Mr. Heckman's report was not in his file, but he testified that he "got an oral" description of it); id. at 579 (when asked on cross-examination whether he went to arbitration "without . . . ever receiving a report from Heckman," Mr. Makar responded, "Not written report. I did receive an oral."). The refusal to settle was based upon the above-delineated rationale.
The case law unequivocally supports the conclusion that Travelers did not engage in bad faith. In Johnson v. Progressive Ins. Co., 987 A.2d 781 (Pa.Super. 2009), we affirmed the trial court's entry of summary judgment in favor of an insurer in a bad faith lawsuit instituted by its insured. Therein, the insured made an underinsured motorist claim. The insurance company sought documentation regarding whether the insured's injuries from the accident at issue were causally related to that event or whether they were pre-existing problems that were the result of five previous traffic accidents in which the insured was involved. Rather than respond, the insured proceeded with arbitration where he received an award of $75,000. The insurer obtained an IME and offered $30,000 prior to arbitration; however, the insured instituted the bad faith litigation, arguing that the insurance company acted with ill will or self-interest in not offering more than it did before the arbitration.
In upholding the grant of summary judgment, we observed that the insurance company investigated the UIM claim and obtained an IME. We opined that the company properly obtained that examination since there were indications that the insured's condition was improving. We further observed that the insurance company never disregarded uncontroverted evidence of loss, but, instead, reasonably estimated the damages that could be recovered by its insured. We noted that an insurer does not evidence bad faith when it makes a low but reasonable estimate of an insured's damages.
Similarly, in the present matter, Travelers continually acted with respect to the UIM claim. The claim was transferred to its major claims unit, where an analysis was conducted. The major claims adjustor immediately hired an attorney, who was tasked with obtaining an IME and vocational report. The insurer conducted surveillance to confirm the extent of Mr. Grossi's loss of mobility. The IME and vocational report, as outlined above, were not immediately obtained because Travelers anticipated receipt of those items from Mutual. That expectation was reasonable in light of Mr. McMillen's failure to object to Travelers' pursuit of Mutual's IME and vocational reports and his dissemination of other discovery materials obtained in the tortfeasor's action. Travelers' evaluation that Mr. Grossi, despite his injured leg, would be able to assume control of his family business was cogently supported. Clearly, Travelers' assessment of damages was a proper exercise of its rights and did not constitute ill will or self-interest in proceeding to arbitration.
In Condio v. Erie Ins. Exchange, 899 A.2d 1136 (Pa.Super. 2006), we reversed an award against Erie in a bad faith case and entered judgment n.o.v. in its favor. The bad faith litigation was brought against that insurer based on its handling of a UIM matter. Therein, a single car accident occurred with two people inside the vehicle. Erie was liable for UIM coverage only if its insured was not driving the car when the accident occurred. We held that Erie investigated the UIM claim and had a reasonable basis for rejecting it due to valid factual issues concerning whether its insured or the other person involved in the car was driving.
I find the present case analogous to Brown v. Progressive Insurance Co., 860 A.2d 493 (Pa.Super. 2004). Therein, we reversed a trial court's determination that an insurer acted in bad faith in litigating a UIM claim and entered judgment n.o.v. in its favor. The insured was injured in a traffic accident, and, as in this case, it was uncontested that the tortfeasor in the underlying litigation was solely responsible for the accident. The UIM insurer estimated that the insured's damages were less than the amount of coverage provided under the driver's policy, and it did not settle until the eve of arbitration.
As in this case, the UIM carrier in Brown had a good faith basis to dispute the amount of the insured's wage loss in that he was employed by a family business, which continued to pay him after the accident. The insured had insisted that the amounts distributed to him were advancements on his inheritance. We concluded that the facts failed to reveal clear and convincing evidence of bad faith because the record did not support the trial court's finding that the insurer did not properly evaluate the insured's claim. In so doing, we observed that the carrier was not responsible for UIM coverage unless the insured's damages were more than the amount of the tortfeasor's policy coverage and that the insurer had reasonably estimated that the damages would not exceed the policy limits of the other driver. We held that these types of actions, while advancing the insurer's self-interest, was not the type of self-interest that constituted bad faith.
Travelers' actions are virtually indistinguishable from those examined in Brown. They certainly bear no resemblance to an unfounded refusal to pay a legitimate claim for benefits that supported both the bad faith finding and punitive damages award in Hollock v. Erie Insurance Exchange, 842 A.2d 409 (Pa.Super. 2004) (en banc), upon which the majority relies. Therein, the insurer affirmatively misrepresented the amount of coverage at issue and was dilatory. Additionally, without any basis, it contested evidence submitted by its insured on the coverage issues involved in the matter. Herein, Travelers diligently evaluated the extent of Mr. Grossi's damages and, based upon valid factors, concluded that they did not exceed $3,000,000.
Under the facts at issue, I believe that Travelers is entitled to judgment n.o.v. The evidence wholly fails to establish, by clear and convincing proof, the existence of ill will or self-interest on the part of Travelers. Indeed, in my view, there is scant proof of bad judgment.
Additionally, even if a finding of bad faith could be upheld, the punitive damages award herein is unwarranted. Section 8371 provides that, "if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions . . . [a]ward punitive damages against the insurer." 42 Pa.C.S. § 8371(2). In Hollock, supra at 419-20, we noted that "the elements of proof necessary to establish a claim for punitive damages under this section are co-extensive with those that establish the bad faith claim itself." We upheld a sizable punitive damage award of $2.8 million therein. We observed that Pennsylvania law requires that the "size of a punitive damages award must be reasonably related to the State's interest in punishing and deterring the particular behavior of the defendant and not the product of arbitrariness or unfettered discretion." Id. at 420 (citation omitted). Under this standard, we analyze these factors: "(1) the character of the act; (2) the nature and extent of the harm; and (3) the wealth of the defendant." Id. (citation omitted).
In Hollock, we upheld the punitive damages award due to the insured's calculated indifference to its insured, the lack of any basis for rejecting its insured's claim, and its blatant dishonesty. No such misconduct occurred herein. Travelers made no misrepresentations, had a valid basis for questioning the measure of damages submitted by Mr. Grossi, and proceeded to handle the claim with reasonable diligence under the circumstances.
Hence, I dissent.