dismissed. However, this court finds § 8371 inapplicable for two reasons.
First, according to the express terms of the statute, a bad faith claim may only be brought "in an action arising under an insurance policy." Courts which have analyzed the statute have employed a liberal reading of this requirement. As the superior court recently pointed out: "As 42 Pa. S.C.A. § 8371 was promulgated to provide additional relief to insureds and to discourage bad faith practices of insurance companies, we would be reluctant to impose any limitations of claims brought under section 8371 which do not appear in the plain language of the statute." March v. Paradise Mutual Ins. Co., No. 1994 WL 327809, at * 2 (Pa. Super. July 11, 1994).
Thus, courts have held that success on a bad faith claim under § 8371 does not depend on the success of the underlying insurance benefits claim. Id. (bad faith claim is not affected by the one-year limitations period in the insurance contract); accord Margolies v. State Farm Fire & Cas. Co., 810 F. Supp. 637 (E.D. Pa. 1992); Boring v. Erie Ins. Group, 641 A.2d 1189 (Pa. Sup. 1994) (dismissal of appellant's § 8371 claim was instantly appealable even though insurance coverage claim had not yet been decided); Kauffman v. Aetna Cas. & Sur. Co., 794 F. Supp. 137, 140 (E.D. Pa. 1992) ( § 8371 does not "merely allow a court to provide an additional remedy"). Rather, they have found that § 8371 establishes a separate and independent cause of action. See, e.g., Margolies, 810 F. Supp. at 642; March, 1994 WL 327809, at * 2-3.
However, it is unlikely that "separate and independent" means that a claim of bad faith may be brought even if the court has no jurisdiction to hear the other causes of action. In other words, the bad faith claim under § 8371 must be related to at least one other colorable claim over which the court has jurisdiction.
It is one thing to dismiss an insurance contract claim because of a statute of limitations problem, but nevertheless proceed with the bad faith claim. It is quite another thing to dismiss a group of claims because the court is forbidden by statute to judge such claims, but nevertheless proceed with the bad faith claim. Whatever might be the boundaries of "in an action arising under an insurance policy", allowing plaintiffs here to proceed alone with a bad faith claim would be overstepping them.
Second, even if bringing a § 8371 claim under these circumstances did comply with that language, this court is not convinced that the statute supersedes the exclusivity provision of the Workmen's Compensation Act. Contrary to plaintiff's assertions, § 8371 conflicts with the Act.
§ 8371 allows an insured to bring a bad faith claim against his or her insurance company, while the exclusivity provision of the Workmen's Compensation Act bars additional claims by an employee against his or her employer and its worker's compensation insurance company.
Under Pennsylvania's Statutory Construction Act, a conflict between a general statutory enactment, such as § 8371, and a more specific provision, such as the exclusivity clause of the Workmen's Compensation Act, is to be resolved as follows:
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
1 Pa. S.C.A. § 1933.
Plaintiffs argue that the general provision of § 8371 should prevail, since it was enacted later than the Workmen's Compensation Act
and the General Assembly manifested the intent that it should prevail. As evidence of this intent, plaintiffs point to § 31(c) of Act 6 of February 7, 1990, P.L.11-- § 3 of which Act established § 8371--which provides: "All other acts and parts of acts are repealed insofar as they are inconsistent with the act." The superior court relied upon this provision in Okkerse v. Prudential Property & Casualty Ins. Co., 425 Pa. Super. 396, 625 A.2d 663, 667 (Pa. Super. 1993), holding that in case of a conflict between the remedies provided in § 8371 and in the No-Fault Act, § 8371 should prevail since "[it] was enacted later than the No-Fault Act and this repealer section indicates that the General Assembly intended it to prevail over any inconsistent statutes."
This court is not convinced, however, that the legislature intended § 8371 to trump the Workmen's Compensation Act.
The central role that the exclusivity provision historically has played in the system of compensating workers, as well as the Act's comprehensive system of penalties, strongly suggest that the immunity of worker's compensation insurers in their handling of claims should not be lifted in the absence of explicit authorization by the legislature, or perhaps the courts, of Pennsylvania.
Therefore, plaintiff may not avail herself of § 8371 insofar as it concerns defendant's refusal to pay her worker's compensation benefits and its general handling of her insurance claims.
b. Dr. Bennett's Examination
Dr. Bennett's examination of plaintiff is more akin to those cases in which the exclusivity provision of the Workmen's Compensation Act did not bar suits against employers or their compensation insurance carriers. Like "the direct injury resulting from the carrier's administration or coordination of medical treatment in Tropiano and Taras," Santiago, 613 A.2d at 1243, Dr. Bennett's allegedly abusive behavior was the direct cause of physical and psychological injury to plaintiff.
These injuries included traumatic blow injuries, spinal injury, and emotional damage which contributed to a suicide attempt not long after the examination--an examination that was part of defendant's administration of medical treatment and not "intertwined" with the original injury.
As in Martin, plaintiff "is not seeking compensation for the work-related injury itself." 606 A.2d at 447. Moreover, Dr. Bennett's alleged behavior is "the type of flagrant misconduct," Id. at 448, that was held by the supreme court to pierce the exclusivity provision's shield from employers, insurance carriers, and their agents. Therefore, the exclusivity provision does not apply to the examination by Dr. Bennett.
Given the distinction between defendant's various acts, this court must examine the specific causes of action brought by plaintiff and determine to what extent plaintiff may proceed with her claims.
a. Intentional Infliction of Emotional Distress
Pennsylvania courts have recognized the tort of the intentional infliction of emotional distress. See, e.g., Motheral v. Burkhart, 400 Pa. Super. 408, 583 A.2d 1180 (Pa. Sup. 1990). "The plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally or recklessly caused the plaintiff severe emotional distress." Id. at 1188. This court cannot say as a matter of law that the actions of defendant per Dr. Bennett do not rise to the requisite level of outrageous conduct to sustain plaintiff's cause of action.
Defendant's reliance on D'Ambrosio v. Pennsylvania Nat'l Mut. Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (Pa. 1981), for the proposition that a cause of action based on the intentional infliction of emotional distress may not be brought against an insurer for bad faith conduct is misplaced. The court in D'Ambrosio ruled out such an action, but only because the facts as alleged did not constitute "extreme and outrageous" conduct. Id. at 971 n.8. The court's only blanket prohibition concerning insurers dealt with emotional distress and punitive damages as supplemental remedies to the Unfair Insurance Practices Act.
Therefore, plaintiff may proceed with her claim of the intentional infliction of emotional distress as brought about by Dr. Bennett's examination. However, defendant's Motion to Dismiss this claim will be granted as it pertains to defendant's refusal to pay benefits.
b. Intentional Breach of Contract
Plaintiff states in her complaint that a contractual breach is constituted by "the failure to pay medical bills on the part of the defendant." Plaintiffs' Complaint P37. This failure to pay medical bills--part of the general handling of plaintiff's worker's compensation insurance claims--is immunized from private suit by the exclusivity provision of the Workmen's Compensation Act. Accordingly, defendant's Motion to Dismiss this claim will be granted.
c. Common Law Fraud and Deceit
The acts of defendant claimed by plaintiff to constitute common law fraud and deceit relate to defendant's refusal to pay benefits and its representation that it had genuinely reviewed plaintiff's claims. Plaintiffs' Complaint P47. Consequently, they are immunized from private suit by the exclusivity provision of the Workmen's Compensation Act. Defendant's Motion to Dismiss this claim will be granted.
d. Unfair Trade Practices and Consumer Protection Law
Plaintiff claims that defendant violated the Unfair Trade Practices and Consumer Protection Law, 73 Pa. S.C.A. § 201, by "refusing to pay plaintiff's medical expenses contrary to contract and the laws of the Commonwealth of Pennsylvania." Plaintiffs' Complaint P57. Again, since the refusal to pay medical expenses is immune from private suit, defendant's Motion to Dismiss this claim will be granted.
e. § 8371--Bad Faith
The examination by Dr. Bennett occurred during, and as a result of, defendant's adjustment of plaintiff's claims for benefits under the insurance policy. Therefore, the court believes that plaintiff's claim for the intentional infliction of emotional distress "arises under an insurance policy." Accordingly, plaintiff's § 8371 bad faith claim as it involves the examination by Dr. Bennett survives defendant's Motion to Dismiss. However, this issue may be readdressed at a later stage of this litigation.
An appropriate order follows.
BY THE COURT:
Edward N. Cahn, Chief Judge
AND NOW, this 24th day of October, 1994, upon consideration of defendant's Motions to Dismiss and plaintiffs' response thereto, it is hereby ORDERED that:
(1) Defendant's Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) is DENIED. Plaintiffs shall amend their complaint so as to name "Transportation Insurance Company" as the defendant. Plaintiffs have fifteen days from the date of this order to amend their complaint.
(2) Defendant's Motion to Dismiss Counts One through Five of Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) is GRANTED with respect to Defendant's refusal to pay benefits to Winterberg and its general handling of Winterberg's claims for benefits. This Motion is DENIED with respect to the medical examination by Dr. Bennett.
(3) Defendant's Motion to Dismiss Counts Six through Fifteen of Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) is GRANTED. Plaintiffs may amend their complaint to include a claim for punitive damages under its § 8371 cause of action. Plaintiffs have fifteen days from the date of this Order to amend their complaint.
BY THE COURT:
Edward N. Cahn, Chief Judge