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ROBERT & AMELIA WOODS & MOSES & MARGARET COOK v. JESSE ELLERBE & MARY ELLERBE (06/27/89)

submitted: June 27, 1989.

ROBERT & AMELIA WOODS & MOSES & MARGARET COOK, APPELLANTS
v.
JESSE ELLERBE & MARY ELLERBE, ROBERT WOODS



Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4086 JANUARY 1984.

COUNSEL

Joel M. Lieberman, Philadelphia, for appellants.

Audrey L. Jacobsen, Philadelphia, for appellees.

Del Sole, Tamilia and Cercone, JJ. Del Sole, J., dissents.

Author: Tamilia

[ 389 Pa. Super. Page 282]

This is an appeal of a trial court Order denying appellants' petition for delay damages. Prior to commencement of trial in this matter, stipulated verdicts were entered in favor of appellants, Robert and Amelia Woods, for $15,000

[ 389 Pa. Super. Page 283]

    and Moses and Margaret Cook for $15,000, as against appellee Jesse Ellerbe for an automobile accident in which Ellerbe's vehicle collided with Woods' vehicle. Ellerbe carried automobile liability insurance with Prudential Property and Casualty Insurance Company and the verdicts represented the policy limits of $15,000/plaintiff and $30,000/accident.

Appellants petitioned the court for delay damages in the amount of $4269.60 pursuant to Pa.R.C.P. 238. After argument on the issue the trial court denied the petition and appellants now appeal, raising two issues: 1) whether amended Rule 238, effective November 7, 1988, is applicable to the instant case; and 2) whether delay damages are payable where the policy limits have been paid by the insurance carrier.

Citing Ceresini v. Valley View Trailer Park, 380 Pa. Super. 416, 552 A.2d 258 (1988), appellant first argues "AMENDED RULE 238, EFFECTIVE NOVEMBER 7, 1988, IS APPLICABLE TO THE CASE AT BAR." Appellant's brief at 7. We agree, as did the trial court which heard oral argument from both sides then did apply new Rule 238 in deciding the delay damage issue against appellant. The trial court specifically set forth the Rule in its Opinion and considered "the threshold issue as to whether the requisite offer has been made, and (2) whether the plaintiff was responsible for specified periods of time during which trial was delayed." Slip Op., Wright, J., 4/3/89, p. 3. The court then details the specific settlement offers made by defendants, the agreement by the parties to engage in good faith settlement negotiations and the defendants' conduct during their investigation. Quoting Hall v. Brown, 363 Pa. Super. 415, 420, 526 A.2d 413, 416 (1987), the trial court said, "'It (the insurance carrier) should be permitted to argue before the factfinder that a refusal to settle at a certain point or for a particular amount was not, under the circumstances, a breach of its contractual responsibilities.'" Slip Op. at 4. The court concluded, "[t]hus, we find defendant's conduct in the investigations and settlement

[ 389 Pa. Super. Page 284]

    negotiations reasonable under the circumstances, causing no delay in the disposition of this case." Slip Op. at 4. Having reviewed the record and transcripts of this case, we find no error with the conclusion the new Rule 238 applies to this case, although we do not find ourselves in accord with the trial court's reliance on the reasonableness of the defendants conduct. See Brown, supra (focus is not to be on the reasonableness of defendant insurer's settlement behavior).

As to appellants' second issue, the trial court determined appellants could not receive delay damages since Prudential paid the limits of the policy, unless appellants could show Prudential had acted in bad faith. Appellants could not prove bad faith, however, as they ...


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