United States District Court, E.D. Pennsylvania
January 7, 2004.
JOAN KUBRICK, Administratrix of the Estate of Timothy Kubrick, Deceased, and WILLIAM A. KUBRICK, Plaintiffs
ALLSTATE INSURANCE COMPANY, Defendent
The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
This case concerns whether Defendant Allstate Insurance Company acted
in bad faith in handling an underinsured motorist benefits claim by the
Estate of Timothy Kubrick, deceased. Presently before the Court is
Defendant's Motion for Summary Judgment. For the reasons below,
Defendant's Motion is granted.
On October 5, 1985, Timothy Kubrick died in an automobile accident in
Lake Township, Wayne County, Pennsylvania. Timothy and his friend,
Bernard Michini, were occupying Timothy's 1971 Dodge Demon when,
traveling at an excessive speed, it crossed over into oncoming traffic
and collided with a vehicle driven by Scott Nagle. Michini was thrown
from the Dodge Demon and survived, but Timothy was found dead inside the
vehicle. See Police Accident Report (Ex. 2); 3/22/00 Report of Bieber
& Assocs., Inc. at 14, 19 ("Bieber Report") (Ex. 28). From the
outset, there was considerable debate as to whether Timothy or Michini
was driving at the time of the accident.
Plaintiff Joan Kubrick is Timothy's mother and administratrix of his
estate. Plaintiff William A. Kubrick is Timothy's father. Plaintiffs
contend that Michini was driving the Dodge Demon. Although the truth
concerning this question has no bearing on the instant lawsuit, the
existence of this factual dispute is significant.
At the time of the accident both Timothy and Michini held primary
policies of insurance with State Farm Insurance ("State Farm"), and
Michini held an excess policy with Transamerica Insurance
Company("Transamerica"). William A. Kubrick held a policy of insurance
with Defendant Allstate Insurance Company ("Allstate") that provided
underinsured motorists ("UIM") coverage (the "Allstate Policy").
On April 18, 1986, Mrs. Kubrick, on behalf of Timothy's Estate, and
Mr. Kubrick initiated a wrongful death and survival action against
Michini in the Court of Common Pleas of Lackawana County, alleging
Michini was the driver of the Dodge Demon. See Summons and Complaint
(Exs. 8-9). Soon thereafter Michini filed a countersuit, alleging Timothy
was the driver. On November 27, 1991, Plaintiffs agreed to settle the
litigation with Michini, splitting State Farm and Transamerica's
available settlement funds of $350,000 (out of $400,000 in coverage)
between them: $185,000 for the Estate and $165,000 for Michini. On
January 30, 1992, the court entered an order approving the settlement.
See Court Order of 1/30/92 (Ex. 12).
Acting on behalf of the Estate, Mrs. Kubrick challenged the settlement,
arguing that her daughter, Kimberly, had entered into the settlement on
behalf of the Estate without authority. On October 4, 1993, Michini and
Transamerica filed a Petition to Enforce the Settlement Agreement.
Plaintiffs' attorney representing them in the contested settlement,
Thomas B. Helbig, intervened as a party in order to recover his costs and
fees. See Court Order of 2/11/94 at ¶ 1 (Ex. 3). After an evidentiary
hearing, the court granted the Petition on February 11, 1994. See Id.,
During the pendency of the lawsuit with Michini, Plaintiffs also sought
UIM coverage under Mr. Kubrick's Allstate Policy. On July 27, 1989, on
behalf of Plaintiffs, attorney Helbig notified Allstate of the accident
and pending lawsuit and that they had received an offer of the policy
limits from Michini's insurer. Helbig asked Allstate for their consent to
settle and a waiver of any subrogation rights. Finally, Helbig notified
Allstate of Plaintiffs' claim for UIM benefits under the Allstate Policy
and demanded arbitration. See Letter of 7/27/89 from Helbig to Allstate
When Helbig received no reply to this letter, he followed up with
another letter on September 6, 1989, enclosing a copy of his previous
correspondence and asking for a response. See Letter of 9/6/89 from
Helbig to Allstate (attached to Plff.'s Resp. at Ex. F). Helbig wrote
again on October 9, 1989, enclosing his two previous letters and
repeating his request for a response. Helbig explained that Plaintiffs
were making the UIM claim because Timothy resided in Mr. Kubrick's home
at the time of the accident, and therefore was eligible for UIM benefits
under the Allstate Policy. Finally, Helbig addressed the Allstate Policy
coverage limits by noting that the Allstate Policy declaration sheet
listed the bodily injury liability limits as $300,000 per person/$500,000
per occurrence, while the UIM coverage limits were $15,000 per
person/$30,000 per occurrence. See Allstate Policy Declaration (Ex. 31).
Citing the Pennsylvania Motor Vehicle Financial Responsibility Law, 75
Pa. Cons. Stat. Ann. § 1731, which requires that bodily injury
liability limits and UIM limits of a policy be equal unless the named
insured submits a written request for lower
UIM limits, Helbig asked for verification that Mr. Kubrick had executed
the written request, also known as a "sign-down waiver." Letter of
10/9/89 from Helbig to Allstate (attached to Plff.'s Resp. at Ex. F). On
October 13, 1989, Helbig wrote Allstate and designated his arbitrator.
See Letter of 10/13/89 from Helbig to Allstate (attached to Plff.'s
Resp. at Ex. F).
Allstate began searching its records for the sign-down waiver on
October 30, 1989. See Letter of 10/30/89 from Whelan to Morrison (Ex.
36). On December 5, 1989, its Operations Territory Manager sent a letter
to the claims department stating that after "an extensive search" of both
on-and off-site storage by "our most experienced document retrieval
personnel," the sign-down waiver could not be located. Letter of 12/5/89
from Morrison to Whelan (attached to Plff.'s Resp. at Ex. B). An
unidentified Allstate representative noted in the claim file that the
missing sign-down waiver presented "another issue" regarding the Estate's
UIM claim. Claim Diary Entry of 12/12/89 (attached to Plff.'s Resp. at
Ex. B). Allstate did not inform Helbig that the sign-down waiver was
On November 13, 1989, Helbig wrote to Allstate again, referencing his
previous correspondence, asking that the matter of the Estate's UIM claim
be assigned to a claims representative, and threatening to file a
Petition to Compel Arbitration unless Allstate contacted him within ten
days. See Letter of 11/13/89 from Helbig to Pettus (attached to Plff.'s
Resp. at Ex. F).
Allstate representative S. James Everett responded to Helbig's letter
on November 20, 1989. Everett noted that because the Estate was planning
to accept only $125,000 in settlement of its claim against Michini, and
thus was not exhausting the applicable $400,000 limits in other triggered
policies, the Estate would not be entitled to any UIM benefits under the
Allstate Policy. See Letters of 11/20/89 and 1/24/90 from Everett to
Helbig (Exs. 18-19). In addition to addressing
the exhaustion issue, Everett identified two other Allstate concerns as
to its liability: (1) whether Timothy was driving the Dodge Demon and
therefore caused the accident; and (2) whether Timothy was residing in
Mr. Kubrick's home at the time of the accident. Letter of 11/20/89. If
the accident had been Timothy's fault, or if he was not living with his
father at the time, the Estate would not be entitled to UIM benefits
under the Allstate Policy. See Complaint ¶ 28; Helbig Dep. at 132-33
Helbig believed that Allstate's position on the exhaustion requirement
was reasonable and in accordance with Pennsylvania law. Helbig Dep. at
150-53 (Ex. 4).*fn2 Helbig had no further contact with Allstate after
that because "it was our opinion at that time that in order to have a
valid UIM claim, there had to be exhaustion of all available liability
coverage, which we did not have, and it did not appear were going to have
in terms of subsequent discussions with Transamerica [Michini's excess
insurer]." Id. at 153-54.
On April 4, 1995, an intervening change in Pennsylvania insurance law
affected the Estate's claim for UIM benefits under the Allstate Policy.
In Boyle v. Erie Insurance Co., 656 A.2d 941 ( Pa. Super. 1995), the
Pennsylvania Superior Court declared that an exhaustion clause that
requires that the limits of bodily injury insurance coverage must be
exhausted prior to any claim for UIM coverage is against public policy
and does not preclude recovery by the insured for UIM coverage. See also
Chambers v. Aetna Cas. & Sur. Co., 658 A.2d 1346 ( Pa. Super. 1995).
Thus, after April 4, 1995, Pennsylvania law no longer barred the Estate
from seeking UIM coverage under the Allstate Policy due to its failure to
exhaust the limits of available bodily injury coverage.
On November 6, 1997, Mr. and Mrs. Kubrick retained attorney Bruce Neff
to determine whether the Estate might have any additional insurance
claims. Neff Dep. at 15-16 (Ex. 20).*fn3 On Mr. Neff's advice, the
Estate pursued a UIM claim against Timothy's insurer, State Farm, and
laid plans to pursue a UIM claim under the Allstate Policy thereafter.
Id., at 20-23.
Over a period of approximately fifteen months, Neff negotiated a
settlement of the Estate's UIM claim against State Farm. In February
1999, State Farm offered to settle for the full policy limits of
$50,000. Neff advised Mrs. Kubrick to sign the settlement agreement and
release, but Mrs. Kubrick hesitated for various reasons. Joan Kubrick
Dep. at 200-01 (Ex. 7); Petition to Withdraw as Counsel and Enforce
Settlement at ¶ 3-19 (Ex. 22). After making numerous requests for
additional information and revisions to the release, Mrs. Kubrick signed
the release and consummated the settlement on December 15, 1999. Id. at
Even as he pursued a UIM claim against State Farm, Neff continued the
process of making a UIM claim under the Allstate Policy. On November 10,
1997, Neff notified Allstate that he now represented the Estate, demanded
arbitration of the Estate's UIM claim, and named the Estate's chosen
arbitrator. Letter of 11/10/97 from Neff to Allstate (Ex. 23).
Allstate employee John Russell analyzed the Estate's UIM claim on
November 14, 1997. Russell identified several issues that needed to be
addressed before paying UIM benefits. He noted that "even before we deal"
with the sign-down waiver, counsel for the Estate should address tort
exhaustion, Timothy's residency at the time of the accident, and whether
the Estate accepted a tort settlement without Allstate's consent.
11/14/97 Claim Diary Entry (Ex. 27). Russell also
identified the statute of limitations as a potential issue. See Id.,
On November 25, 1997, Neff spoke with Allstate representative Ronald
Neil Feher. Feher's subsequent letter to Neff summarizes their
As we both know, there is a great deal of
investigation to be completed on this case on both
sides. The main issue on my end is to try to determine
who actually was the driver of the Kubrick vehicle. .
. . As we had agreed, we will not proceed with the
arbitration until we both have completed our
investigations into the many issues involved in this
case. At this point, I will wait to refer this case to
our defense counsel to appoint an arbitrator if
Letter of 11/26/97 from Feher to Neff (Ex. 24). Consistent with a
recommendation from Russell, see Claim Diary Entry of 11/14/97, Feher
also requested information related to Allstate's liability on the
Estate's claim, such as court orders, copies of depositions, and State
Farm and Transamerica insurance documents. Neff requested the sign-down
waiver purportedly executed by Mr. Kubrick, and Feher agreed to send it
to him if it was available. See 11/26/97 Claim Diary Entry (Ex. 25).
On December 3, 1997, Neff requested the sign-down waiver yet again.
Feher responded in a December 15, 1997 letter, stating, "[b]efore I begin
to investigate the availability of sign-down waivers, we must first
determine if there is a valid UIM claim. . . ." Letter of 12/15/97 from
Feher to Neff (Ex. 26). In order to determine liability, Feher
explained, Allstate wanted verification that Timothy was a resident in
his father's home at the time of the accident, a copy of the court order
concerning the settlement of Michini's Transamerica policy, and the
Transamerica and State Farm policy and claim numbers for the accident.
Feher also stated that Allstate needed to determine whether all available
policies were exhausted, whether the Estate entered settlements without
Allstate's consent, and whether the UIM claim was precluded by the four
year statute of limitations. See id. He concluded, "I feel that before we
can discuss the details of the UIM claim,
we need to resolve these issues to determine if there is in fact a
legitimate UIM claim to be pursued." Id.
Neff knew that in order to successfully pursue a UIM claim, he needed
to prove that Timothy was not the driver and that he was residing at his
father's home. Neff investigated these issues and was confident that he
could prove them in the Estate's favor. Neff Dep. at 102-05.
Meanwhile, Allstate began its own investigation of the accident and its
liability for the Estate's UIM claim. Several weeks later, on January
23, 1998, counsel for Allstate contacted Neff and asked him to identify a
person to give a statement under oath concerning the claim. Letter of
1/23/98 from Herman to Neff (Ex. 29). Neff responded a few days later and
restated his request for the sign-down waiver. He also opined that there
was "no purpose to be gained from" an oral examination of a
representative of the Estate because that person would have no personal
knowledge of the accident. Letter of 1/28/98 from Neff to Herman (Ex.
51). The record reflects almost no activity on the UIM claim for the next
At some point during this lull, Allstate obtained new counsel. On June
28, 1999, Allstate's new counsel wrote to Neff and requested that he
arrange for Mrs. Kubrick to provide a statement under oath. He also named
Allstate's arbitrator and requested the underlying claim file. Finally,
he notified Neff that Allstate had "been unable to locate the sign-down
waivers. It should be noted, however, that the search is continuing and
in the event such sign-down waivers are located, I will supply you with
copies of same."*fn4 Letter of 6/28/99 from Riemenschneider to Neff (Ex.
Mrs. Kubrick provided a statement on December 7, 1999. See Statement
Under Oath of Joan Kubrick ("Kubrick Statement") (Ex. 41).
The next day, December 8, 1999, Allstate retained a private
investigator, Bieber & Associates, Inc. ("Bieber"), to determine
whether Timothy was driving the Dodge Demon and whether Timothy was
residing at his father's home at the time of the accident. See Bieber
Report at 3. Bieber actively investigated these issues from December 8,
1999 through December 23, 1999; from January 3, 2000 through January 27,
2000, and from March 15, 2000 through March 22, 2000, when it issued its
Allstate and the Estate agreed to settle the UIM claim in September
2000 for $600,000. See Letter of 9/29/00 from Neff to Riemenschneider
(Ex. 48). Mrs. Kubrick hesitated to finalize the agreement, however,
because she wanted to ensure that the settlement and release would not
preclude her from pursuing a subsequent bad faith claim against Allstate.
Attorney Neff wrote to counsel for Allstate on September 29, 2000, asking
Allstate to "clarify" that the settlement "includes no monies for any
alleged bad faith claims handling on the part of Allstate. Since you and
I have discussed these issues, it is my understanding that there is no
disagreement in this matter." Id., Neff wrote to Mrs. Kubrick that same
day to confirm that the settlement did not include a release of any bad
faith claim and enclosed a copy of his letter to Allstate. See Letter of
9/29/00 from Neff to Kubrick (Ex. A to Ex. 30).
On October 10, 2000, Neff sent Mrs. Kubrick the settlement release.
See Letter of 10/10/00 from Neff to Kubrick (Ex. B to Ex. 30). Mrs.
Kubrick refused to sign, however, because
she was still concerned that she would be waiving future bad faith claims
against Allstate. See Allstate's Second Set of Requests for Admission
("RFA") nos. 7-9 (Ex. 30).*fn5 Mrs. Kubrick drafted her own release,
believing that it would preserve her bad faith claim against Allstate.
RFA nos. 14-15; Letter of 10/18/00 from Kubrick to Neff (Ex. 33). She
sent her version of the release to Neff on October 18, 2000 and told Neff
that she would sign it. See id.,
On October 19, 2000, Neff and Mrs. Kubrick had a fifty-five minute
phone conversation about the releases. Neff assured Mrs. Kubrick that the
Allstate release did not embrace any claims for bad faith against
Allstate and informed her that he would accept responsibility if the
Allstate release was ever interpreted as a release of a future bad faith
claim. See RFA nos. 17-18; Letter of 10/19/00 from Neff to Kubrick (Ex. D
to Ex. 30). Mrs. Kubrick informed Neff that she would sign the letter.
See id.; RFA no. 21.
On October 22, 2000, Mrs. Kubrick changed her mind. Id., no. 22. She
questioned whether she could trust Allstate, and asked Neff to obtain
clarification "to make it perfectly clear" that the release pertains only
to the UIM coverage and does not preclude a future bad faith claim
against Allstate. Letter of 10/22/00 from Kubrick to Neff (Ex. E to Ex.
30). She asked Neff to negotiate a revised release with Allstate that
explicitly preserved her bad faith claim and indicated that she would
sign such a release. See RFA nos. 25-26.
On October 30, 2000, counsel for Allstate sent a letter to Neff
confirming that the $600,000 settlement between Allstate and the Estate
did not include any consideration for a release
of future bad faith claims against Allstate. RFA no. 27; Letter of
10/30/00 from Riemenschneider to Neff (Ex. F to Ex. 30). Neff forwarded
this letter to Mrs. Kubrick that same day and asked her to sign the
Allstate release. RFA nos. 29-31; Letter of 10/30/00 from Neff to Kubrick
(Ex. G to Ex. 30). Mrs. Kubrick was aware of Allstate's confirmation that
the $600,000 settlement did not include any consideration for a release
of bad faith claims against Allstate. RFA no. 32.
On November 2, 2000, Mrs. Kubrick informed Neff that she and her
husband were still unwilling to sign the release because Mrs. Kubrick
believed that the release, as drafted, waived a future bad faith claim by
the Estate. RFA nos. 33-34. Neff responded that same day by informing the
Kubricks that he intended to file a Petition to Enforce the Settlement
with Allstate unless they signed Allstate's release. RFA no. 35; Letter
of 11/2/00 from Neff to Kubrick (Ex. H to Ex. 30). Mr. Kubrick responded
by repeating Mrs. Kubrick's request that Neff obtain a revised release
specifically preserving the Estate's bad faith claim. RFA no. 37; Letter
of 11/2/00 from W. Kubrick to Neff (Ex. I to Ex. 30).
On November 10, 2000, Neff filed a Petition to Enforce Settlement in
the Court of Common Pleas of Philadelphia County. RFA no. 40. On November
13, 2000, Mr. Kubrick informed Neff that he would sign the release
drafted by Mrs. Kubrick. RFA no. 41. On January 13, 2001, Allstate agreed
to accept the Kubricks' version of the release. On January 15, 2001, Neff
so informed the Kubricks and asked them to sign the release. RFA nos.
43-45; Letter of 1/15/01 from Neff to Kubrick (Ex. J to Ex. 30).
The Kubricks, however, then refused to sign the release that they had
drafted. RFA no. 47. On February 28, 2001, Mr. Kubrick filed a motion in
the Court of Common Pleas alleging that Neff had entered into the
settlement with Allstate without the Kubricks' knowledge or consent,
rejecting the $600,000 settlement, and stating that he wanted to
take his UIM claim to arbitration. RFA nos. 48-53. Mr. Kubrick included
similar allegations in his March 14, 2001 motion for summary judgment,
and asked the court to award $900,000 for the Estate's UIM claim against
Allstate. RFA nos. 54-57.
On April 11, 2001, Allstate responded to Mr. Kubrick's February 28,
2001 motion and his motion for summary judgment. On June 7, 2001, the
court granted the Kubricks's request for a stay until they could obtain
new counsel, and permitted Neff to withdraw as counsel for the Estate.
RFA. nos. 61-62.
In July 2001, Mrs. Kubrick requested that Allstate send her a revised
release of the UIM claim that explicitly preserved the Estate's right to
file a bad faith claim. RFA. no. 63. On July 17, 2001, counsel for
Allstate agreed to provide Mrs. Kubrick with a release that contained the
language she had requested. RFA no. 64; Letter of 7/17/01 from
Riemenschneider to Kubrick (Ex. K to Ex. 30) ("I enclose herewith a copy
of the release which incorporates your suggested provision."). Allstate
executed the release on July 23, 2001 and forwarded it to Mrs. Kubrick
for her signature. That release was in all relevant respects identical to
the release that Allstate agreed to execute six months before, on January
13, 2001. RFA nos. 66-68, 76. The Kubricks executed the release on August
21, 2001. RFA no. 74; Underinsured Release (Ex. M to Ex. 30).
The Court of Common Pleas approved the settlement on November 21, 2001,
but prohibited Allstate from issuing any funds to the Estate until Mrs.
Kubrick filed a copy of the court's order with the Register of Wills in
Lackawanna County. RFA nos. 78-79.
On December 18, 2001, Plaintiffs initiated the instant action against
Allstate. The Complaint alleges bad faith (Counts 1-5), failure to pay
the settlement funds (Count 6), and breach
of contract (Count 7).*fn6
Mrs. Kubrick complied with the state court order and Allstate issued a
settlement check to the Estate on December 28, 2001. On January 3, 2002,
Mrs. Kubrick questioned Allstate about the statement on the check that
the money was a "final settlement of any and all claims." RFA no. 82.
Allstate agreed that the language on the executed release superseded the
language on the settlement check. RFA no. 83. New counsel for the Estate,
Robert Stengel, notified counsel for Allstate that Mrs. Kubrick would
accept the settlement check as issued, but on January 9, 2002, Mrs.
Kubrick informed counsel for Allstate that Stengel was not her attorney
and that she could not accept the check without any qualifying language.
RFA nos. 84-86.
At Mrs. Kubrick's request, Allstate issued a second check on January
9, 2002 that did not include the words "final settlement of any and all
claims." RFA nos. 87-88. Mrs. Kubrick cashed the check. After attorneys'
fees and costs, the Estate received approximately $350,000. Kubrick Dep.
II. SUMMARY JUDGMENT STANDARD
The Court will render summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any show that there is no genuine issue as to any material
fact, and that the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a
sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249
(1986). A factual dispute is "material" only if it might affect the
outcome of the
suit under governing law. Id., at 248. All inferences must be drawn, and
all doubts resolved, in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).*fn7
III. BAD FAITH INSURANCE PRACTICES UNDER PENNSYLVANIA LAW
Pennsylvania's bad faith statute 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
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against
42 Pa. Cons. Stat. Ann. § 8371 (West 1998). The statute does
not define "bad faith," but Pennsylvania courts utilize the following
[A]ny frivolous or unfounded refusal to pay proceeds
of a policy; it is not necessary that such refusal be
fraudulent. For purposes of an action against an
insurer for failure to pay a claim, such conduct
imports a dishonest purpose and means a breach of a
known duty (i.e. good faith and fair dealing), through
some motive of self-interest or ill will; mere
negligence or bad judgment is not bad faith.
Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688
(Pa. Super. 1994) (quoting Black's Law Dictionary 139 (6th ed. 1990)). A
recovery for bad faith requires "clear and convincing evidence of bad
faith, rather than mere insinuation, and a showing by the insured 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 a reasonable basis in denying the claim." Zimmerman v.
Harlevsville Mut. Ins. Co., ___ A.2d ___, 2003 WL 21356757, at *6 (Pa.
Super. Ct. June 12, 2003) (quoting Williams v. Nationwide Mut. Ins. Co.,
750 A.2d 881 (Pa. Super. 2000)); see also W.V. Realty. Inc. v. Northern
Ins. Co., 334 F.3d 306
, 311-12 (3d Cir. 2003). Conversely, a defendant
may prevail at the summary judgment stage by "affirmatively demonstrating
a reasonable basis for its actions." Ouaciari v. Allstate Ins. Co.,
998 F. Supp. 578, 581 n.3 (E.D. Pa.), aff'd, 172 F.3d 860 (3d Cir. 1998)
Bad faith claims are highly fact-specific and depend on the conduct of
the insurer vis-a-vis its insured. Zimmerman, 2003 WL 21356757, at *7.
The clear and convincing evidence standard requires evidence "so clear,
direct, weighty and convincing as to enable the court to make its
decision with a clear conviction." Polselli, 23 F.3d at 752 (internal
quotations and citations omitted). The plaintiff's burden in opposing
summary judgment is "commensurately high because
the court must view the evidence presented in the light of the
substantive evidentiary burden at trial." Kosierowski v. Allstate Ins.
Co., 51 F. Supp.2d 583, 588 (E.D. Pa. 1999), aff'd, 234 F.3d 1265 (3d
Cir. 2000) (Table).
Allstate seeks summary judgment as to all of Plaintiffs' claims.
Specifically, it argues that: (1) Mr. Kubrick has no standing to pursue a
bad faith claim; (2) Plaintiffs' bad faith claims are time-barred and/or
fail as a matter of law; (3) Plaintiffs' claim that Allstate failed to
pay the settlement of $600,000 is moot because Allstate did, in fact,
issue a check for $600,000, which Mrs. Kubrick cashed; and (4)
Plaintiffs' breach of contract claim alleging failure to pay up to the
limits of the Allstate Policy's UIM coverage is barred by the settlement
Plaintiffs offer little or no argument in opposition to three of these
four arguments. First, Plaintiffs concede that Allstate's payment of the
$600,000 settlement amount moots any breach of contract claim. Plff.'s
Resp. at 11. Accordingly, summary judgment as to Count Six of the
Complaint is appropriate.
Second, Plaintiffs fail to address adequately whether Allstate may be
liable for failure to pay the full $900,000 available under the Allstate
Policy's UIM coverage. In any event, that claim is clearly barred by the
release. It states that the $600,000 payment to the Estate is "in
settlement of the underinsured motorist protection coverage on [the
Allstate Policy] because of bodily injuries sustained by Timothy Kubrick
by reason of the October 5, 1985 accident. See Underinsured Release (Ex.
34). By signing the release, Plaintiffs waived any right to seek further
money from Allstate under the UIM provisions of the Allstate Policy.
Accordingly, summary judgment is appropriate as to Count Seven.
Third, Plaintiffs offer no rebuttal to Allstate's contention that Mr.
Kubrick has no standing to pursue a bad faith claim, perhaps because this
is clearly correct. Pennsylvania's bad faith statute provides that "if
the court finds that the insurer has acted in bad faith toward the
insured" the court may award the plaintiff interest on the amount of the
claim, punitive damages, and costs and attorneys' fees. 42 Pa. Cons.
Stat. Ann. § 8371 (emphasis added). Therefore, only an "insured" may
bring a bad faith action against an insurer. Although Mr. Kubrick owned
the Allstate Policy, he was not the insured for purposes of the Estate's
UIM claim; rather, the insured was Timothy Kubrick, and after his death,
the Estate. Accordingly, only the Estate was entitled to pursue a UIM
claim. It follows that only the Estate, through the Administratrix, may
bring a bad faith claim arising from Allstate's handling of the UIM
claim. As such, summary judgment is appropriate as to any claims asserted
by Mr. Kubrick.
The heart of Defendant's Motion addresses whether Mrs. Kubrick, as the
Administratrix of the Estate, can adduce clear and convincing evidence to
demonstrate that Allstate acted in bad faith. Plaintiffs advance their
bad faith claims on essentially two aspects of Allstate's administration
of the Estate's UIM claim: (1) Allstate's unwarranted delay in bringing
the Estate's UIM claim to arbitration, occasioned by Allstate's
concealment of the sign-down waiver and its lengthy investigation of the
Estate's claim; and (2) Allstate's conduct in negotiating the form of the
settlement release. Each of these issues is discussed below.
A. Whether Allstate Acted in Bad Faith by Unreasonably Delaying
Arbitration of the Estate's UIM Claim
Plaintiffs allege that Allstate concealed the "nonexistence" of the
sign-down waiver when Plaintiffs made their initial requests for it in
1989, and then again after Plaintiffs renewed their
requests in 1997 and thereafter. Plff.'s Resp. at 3. They contend
that Allstate's deceitful and obstreperous insistence that the sign-down
waiver could and would be located unreasonably delayed the arbitration of
the UIM claim.
In addition, Plaintiffs fault Allstate for undertaking an investigation
of certain issues relating to Allstate's liability for the Estate's UIM
claim. As outlined above, Allstate investigated whether Timothy was
driving the Dodge Demon at the time of the accident. Under the Allstate
Policy, if Timothy had been driving the Dodge Demon, and thereby caused
the accident, UIM benefits would not lie. In addition, Allstate
investigated whether Timothy was living with his father at the time of
the accident. If he was not living in his father's household, he would
not have qualified as an insured under the Allstate Policy. In other
words, Plaintiffs complain that Allstate unreasonably delayed
administration of the Estate's UIM claim by investigating potential
defenses against liability.
1. The Missing Sign-Down Waiver
As noted supra at page 3, Plaintiffs' attorney, Mr. Helbig, asked for
the sign-down waiver on October 9, 1989. By December 5, 1989, after an
"extensive search" of company storage facilities, Allstate concluded that
the sign-down waiver could not be located. It is undisputed that Allstate
did not reveal the results of its internal search to Plaintiffs at this
Contrary to Plaintiffs' contention, Allstate's failure to disclose that
the sign-down waiver was missing had no material effect on the
administration of the Estate's UIM claim.*fn8 Contemporaneous with
Allstate's internal attempts to retrieve the sign-down waiver, Allstate
Helbig corresponded regarding the issue of Allstate's liability. Allstate
took the position that it was not liable for the Estate's UIM claim
unless and until the Estate had exhausted the applicable bodily injury
limits in the State Farm and Transamerica policies. The Estate's
attorney, Neff, agreed at that time that Allstate's position was correct
and ceased pursuit of the Estate's UIM claim against Allstate.*fn9
Therefore, the undisputed facts show that Allstate refused to arbitrate
the Estate's UIM claim in 1989 not because of the missing sign-down
waiver, but because Plaintiffs had not yet exhausted other coverage. This
was an eminently reasonable position to take, and thus it cannot be the
basis for a bad faith claim. See Ouaciari, 998 F. Supp. at 581 n.3
(noting that defendant may prevail at summary judgment stage by
"affirmatively demonstrating a reasonable basis for its actions"); June
v. Nationwide Mut. Fire Ins. Co., 949 F. Supp. 353, 361 (E.D. Pa. 1997)
("Nationwide had a reasonable basis to investigate and deny the claim;
therefore, their subsequent and related conduct is not bad faith.").
Moreover, Plaintiffs have failed to demonstrate any harm to the Estate
arising from these 1989 events, and harm is an essential element of a bad
faith claim. Ouaciari, 998 F. Supp. at 584 n.9.
The issue of the sign-down waiver arose again when Plaintiffs renewed
their request for arbitration on November 10, 1997. At that time,
Allstate began a second search for the sign-down waiver. Allstate
contends that its 1989 search was limited in scope insofar as it did not
extend to other possible document repositories, such as the files of its
insurance agents. See Claim Diary
Entry of 5/27/99 (Ex. 50) (noting that Allstate contacted Mr. Kubrick's
former insurance agent and learned that agent had developed Alzheimer's
disease). Plaintiffs offer no evidence to contradict this contention.
Given that locating the sign-down waiver could have meant a difference in
coverage of $45,000 versus $900,000, Allstate was certainly entitled to
search for the document. In any event, it is undisputed that Allstate did
not inform Plaintiffs until October 1999 that it definitely could not
locate the sign-down waiver.
As noted supra at pages 5-6, prior to the Superior Court's decision in
Boyle, 656 A.2d 941, Plaintiffs did not have a viable UIM claim against
Allstate because they had not exhausted other available coverage.
Nonetheless, the Estate still needed to seek UIM benefits from Timothy's
insurer, State Farm, before it could seek UIM benefits from Allstate.*fn10
The Estate's attorney, Neff, knew this to be true, and thus pursued a
claim against State Farm before pursuing a claim against Allstate. Neff.
Dep. at 22-23. The Estate eventually settled with State Farm on December
15, 1999, but not until after many months of delay attributable to Mrs.
Kubrick. Accordingly, the Estate did not have a ripe UIM claim against
Allstate until two years after it initially requested the sign-down
waiver. It is difficult to see how this course of events could give rise
to a claim of bad faith unless the Court were to demand that insurers put
the cart (the coverage limits) before the horse (the ultimate question of
In addition to the exhaustion issue with respect to the State Farm
policy, the same liability issues that existed in 1989 remained unresolved
in 1997. The evidence shows that both sides knew there was "a great deal
of investigation to be completed on both sides." Letter of 11/26/97 from
Feher to Neff. Accordingly, Allstate undertook an extensive investigation
of the issues of Timothy's residency (the "residency issue") and the
identity of the driver of the Dodge Demon (the "driver issue") at the
time of the accident. Furthermore, by this time, the statute of
limitations was a concern, as well as the issue of whether Plaintiffs had
accepted a tort settlement without Allstate's consent. Although the
issues were somewhat different, the Estate and Allstate appeared to be in
much the same position they were in 1989; both sides acknowledged that
there was a question as to Allstate's liability.
As a result, in Allstate's view, the issue of the sign-down was again
secondary to the issue of liability. See, e.g, Letter of 12/15/97 from
Feher to Neff ("Before I begin to investigate the availability of
sign-down waivers, we must first determine if there is a valid UIM
claim. . . ."). Plaintiffs' attorney did not object. Rather, he responded
by asserting that "[a]ll of the [liability] issues you raised are
appropriate issues for an arbitration panel." Letter of 12/16/97 from Neff
to Feher (attached to Plff.'s Resp. at Ex. F). Soon thereafter, Allstate
initiated its investigation by, among other things, requesting a sworn
statement from a representative of the Estate. As Plaintiffs concede,
Allstate had every right to investigate the Estate's claim. See Plff.'s
Sur-Reply at 9-10; see also Jung 949 F. Supp. at 361 (law of bad faith
does not "interfere with an insurance company's right to investigate and
litigate" legitimate defenses).
There is almost no documentation regarding events between January 1998
and June 1999, when Allstate renewed its request for a sworn statement
from a representative of the Estate.
For reasons not apparent from the record, Mrs. Kubrick did not appear
for such a statement until six months later, in December 1999. While it
appears that the investigation of the Estate's UIM claim was lengthy, the
evidence of record suggests that Allstate not the Estate
took the initiative in reviving an apparently dormant file when it
contacted Mr. Kubrick's former insurance agent in May 1999 and renewed
its request for a sworn statement in June 1999. Only a few months later,
in October 1999, Allstate informed Plaintiffs that the sign-down waiver
While it appears that there was a lengthy delay between the Estate' s
November 1997 request for the sign-down waiver and Allstate's October
1999 admission that the document was missing, there is simply no evidence
that Allstate's ill will, dishonest or frivolous conduct, or unfounded
obstruction caused the delay. Rather, it appears that this time was
consumed by a period of inactivity by both parties, and/or by
investigation of Allstate's liability on the UIM claim. In fact, Allstate
was still investigating its liability on the UIM claim when it admitted
that the sign-down waiver was lost. Accordingly, the record does not
support Plaintiffs' contention that Allstate's fruitless but justified
search for the sign-down waiver caused any unreasonable delay in the
administration of the UIM claim.*fn12
The "clear and convincing" evidence standard places a demanding burden
on Plaintiffs. They have failed to come forward with the requisite
evidence that is "so clear, direct,
weighty and convincing" that one could reasonably find against the
defendant insurer "without hesitancy" and "with a clear conviction."
Polselli, 23 F.3d at 752; U.S. Fire Ins. Co. v. Royal Ins. Co.,
759 F.2d 306, 309 (3d Cir. 1985). Accordingly, Plaintiffs cannot base a
claim for bad faith on the events surrounding the missing sign-down
2. Allstate's Investigation of the Driver and Residency Issues
Plaintiffs argue that Allstate's investigation of the various issues
relating to its liability on the Estate's UIM claim substantially delayed
administration of the claim. They characterize Allstate's investigation
as cumulative, inefficient and untimely such that Allstate ultimately
prevented resolution of the UIM claim until September 2000. Such conduct,
Plaintiffs contend, gives rise to a claim of bad faith. See O'Donnell v.
Allstate Ins. Co., 734 A.2d 901, 906 ( Pa. Super. 1999) ("An action for
bad faith may also extend to the insurer's investigative practices.").
Some of these arguments overlap with those discussed above with respect
to Allstate's search for the missing sign-down waiver.
There is no bad faith unless the Estate can show, through clear and
convincing evidence, that Allstate did not have a reasonable basis for
its investigatory actions and that Allstate knew of or recklessly
disregarded its lack of a reasonable basis for its actions. See
Polselli, 23 F.3d at 751; Kosierowski, 51 F. Supp.2d at 589 (in
determining whether there was bad faith conduct, "courts have looked to
the degree to which a defendant knew that it had no basis to deny the
claimant."); Zimmerman, 2003 WL 21356757, at *6. Allstate contends that
it had a reasonable basis for undertaking the investigation and that its
manner of execution, given the scope of issues, was appropriate. As
Plaintiffs concede, it is beyond reproach that an insurer is entitled to
investigate legitimate defenses against claims by its insureds. See,
e.g., June, 949 F. Supp. at 361 ("The law [of
bad faith] is meant to dissuade an insurance company from using its
economic power to coerce and mislead insureds; it does not purport to
interfere with an insurance company's right to investigate and litigate
[a] legitimate [defense]."). Plaintiffs base their bad faith claim on the
manner in which Allstate conducted its investigation and argue that it
resulted in unreasonable delay.
The evidence of record belies Plaintiffs' contention that the
investigation was untimely and should have been conducted in 1989. As the
discussion supra at Part III.A.1 demonstrates, the Estate's 1989 UIM
claim against the Allstate Policy was premature because the Estate had
not yet exhausted other available coverage. The Estate's attorney at the
time, Mr. Helbig, acknowledged this fact and tabled the claim. Allstate
acted reasonably by closing the case file. Therefore, there is no support
in the record for the notion that Allstate should have conducted a
thorough investigation of the many unresolved factual issues relating to
its liability on the Estate's UIM claim in 1989.
The evidence of record also belies Plaintiffs' contention that the
scope of the investigation unreasonably delayed resolution of the claim.
As noted supra at Part III. A. 1, all parties involved knew that the
residency and driver issues were potential complete defenses to
Allstate's liability. There is a good deal of conflicting evidence as to
each of these questions.*fn13 Upon
consideration of the entire record, no reasonable juror could conclude
that Allstate lacked good grounds to investigate these questions. Cf.
Kosierowski, 51 F. Supp.2d at 590-91 (given "persistent disputes" as to
the value of a claim, "it cannot be said that Allstate acted unreasonably
in asking for clarification from the plaintiff in the form of a statement
Furthermore, the evidence of record also belies Plaintiffs' contention
that the duration of the investigation unreasonably delayed resolution of
the claim. Allstate began its external investigation of the Estate's UIM
claim on January 23, 1998 by asking for a statement from a representative
of the Estate. On January 28, 1998, the Estate's attorney objected
because the Estate representative, Mrs. Kubrick, had no personal
knowledge of the accident,*fn14 and because he believed such a statement
The parties have failed to identify any correspondence between them for
the next seventeen months, or until June 28, 1999, when Allstate
contacted the Estate to renew its request for a statement from a
representative of the Estate. Mrs. Kubrick did not appear for a statement
oath until December 7, 1999, or nearly two years after Allstate's
Shortly after the Estate renewed its UIM claim on November 10, 1997,
Allstate began analyzing the extensive paper trail left in the wake of
years of litigating the Estate's other insurance claims. After
identifying numerous issues for consideration, it began the process of
collecting "several thousand pages of documents" to determine the course
of events since 1985, including pleadings and deposition transcripts from
the underlying lawsuits, as well as correspondence among the various
attorneys, litigants and courts. Def.'s Reply at 10-11; see Claim Diary
Entry of 5/27/99 (documenting record request to Allstate insurance
agent); Letter of 6/28/99 from Riemenschneider to Neff (requesting
underlying claim files from counsel for the Estate).
The Bieber investigation followed immediately after Mrs. Kubrick gave
her December 7, 1999 statement, and Bieber issued its report on March
22, 2000. The parties have identified no further activity until September
29, 2000, when they agreed to settle the Estate's UIM claim for
$600,000. Negotiations concerning the settlement and release followed.
See discussion infra at Part IV.B.
The Court cannot quibble with Plaintiffs' contention that Allstate's
investigation of the UIM claim was lengthy. However, Plaintiffs have come
forward with no evidence that the delay was occasioned by Allstate's ill
will, frivolous conduct, dishonest purpose or unreasonable self-interest.
Conspicuously absent is any evidence that, during the January 1998 to
March 2000 investigation period, Plaintiffs were prodding Allstate to
conclude its investigation or otherwise resolve the UIM claim. Nor is
there any evidence that Allstate needlessly retread old ground or
pursued irrelevant material. Rather, as noted supra the evidence suggests
that this period of time was consumed by a period of inactivity by both
parties, and/or by Allstate's investigation. " [I] f delay is attributable
to the need to investigate further[,] . . . no bad faith has occurred."
Kosierowski, 51 F. Supp.2d at 589. Moreover, Mrs. Kubrick's delay in
appearing for a statement under oath suggests that she played some role in
delaying administration of the Estate's UIM claim. Cf. Ouaciari, 998 F.
Supp. at 582-83 ("The time delay in resolving the claim seems equally
attributable to both plaintiff and defendant; even if all delay were
attributable to Allstate, it would not, without more, be sufficient to
establish bad faith."). Accordingly, Plaintiffs cannot make out a claim
of bad faith based on the notion that Allstate's lengthy investigation
unreasonably delayed resolution of the Estate's UIM claim.*fn16
B. Whether Allstate Acted in Bad Faith When Negotiating the Settlement
Because Allstate could not locate the sign-down waiver, it conceded
that the Allstate Policy provided $900,000 in UIM coverage. Plaintiffs
allege that Allstate acted in bad faith when it made an offer of
settlement for $600,000, which is $300,000 less than the coverage limit.
This argument is totally without merit. Where, as here, there are
substantial unresolved questions as to the insurer's liability, making an
offer for less than the policy limits cannot constitute bad faith. See
Kosierowski, 51 F. Supp.2d at 592 ("Given the uncertain value of her
injuries as well as the difficulty in determining what her recoverable
damages would have been, it was not improper for Allstate to negotiate,
and no reasonable jury could so find."); Terletsky, 649 A.2d at 689
bad faith where insurer evaluated liability of each driver at
"fifty-fifty" and therefore made settlement offers fifty percent lower
than the value of the cases). As the discussion supra at Part IV.A
demonstrates, the residency and driver issues were certainly open to
debate. Both parties had the option of risking an arbitrator's decision
as to these issues. It is a common and prudent practice for litigants to
seek the comfort of a certain settlement in favor of the costs and
uncertainty attendant to the adversary process. Settlements often involve
compromise, and Plaintiffs have offered no evidence that Allstate's offer
was unreasonable or that it was made for an improper or frivolous
purpose. See Leo v. State Farm Mut. Auto. Ins. Co., 939 F. Supp. 1186,
1192-93 (E.D. Pa. 1996) (finding no bad faith based on allegedly low
settlement offer when plaintiff failed to come forward with clear and
convincing evidence that offer was unreasonable or that insurer knew
offer was unreasonable) (Pollak, J.), aff'd, 116 F.3d 468 (3d Cir. 1997)
(Table). As a consequence, no reasonable juror could conclude that
Allstate's offer was made in bad faith.
Finally, Plaintiffs contend that Allstate acted in bad faith when it
"persisted in requiring Plaintiffs to execute a release not in conformity
with the terms of the settlement." Complaint ¶ 39. Plaintiffs contend
that the release offered by Allstate was a "general release," and that
Allstate unreasonably refused to modify the release to expressly preserve
Plaintiffs' right to bring a future bad faith claim against Allstate.
Because Plaintiffs have failed to come forward with clear and convincing
evidence to that effect, this argument fails.
As an initial matter, it is not bad faith for an insurer to seek a
release when settling a disputed claim. See Leab, 1997 WL 360903, at *6
("When there is a dispute as to the money owed, it is reasonable,
customary, and prudent for an insurer of anyone to get a release as part
of the settlement of the disputed claim."). The heart of Plaintiffs'
claim goes to the form of release
proposed by Allstate, purportedly because it sought to sweep within its
purview any future bad faith claims. There is simply no evidence to
support this contention, let alone "clear and convincing" evidence. To
the contrary, as is plainly evident from the factual recitation supra at
Part I, Allstate's conduct was reasonable. Even taking the evidence in a
light most favorable to Plaintiffs, it appears that the Kubricks, not
Allstate, were responsible for delaying final resolution of the
settlement. The Kubricks harbored a mistaken belief as to the legal
effect of the Allstate release. Both Allstate and the Estate's own
attorney repeatedly reassured Mr. and Mrs. Kubrick orally and in writing
that the release did not embrace any bad faith claims.*fn17 The Estate's
counsel, in an apparent effort to conclude the settlement, offered to
accept responsibility "if through some possible interpretation it was
determined that a bad faith claim could not be pursued against Allstate."
Letter of 10/19/00 from Neff to Kubrick. Later, Mrs. Kubrick even refused
to execute a release that she had drafted. Thereafter, the dispute
descended into a litigation posture, with the Kubricks denouncing their
attorney and taking positions that are, on this record, inexplicable.
Legal agreements can be intimidating and confusing, and responsible
parties should always approach the process with some caution. However, in
these circumstances, Allstate cannot be held accountable if it was
unwilling to accede to the Kubrick's overabundance of caution and undue
insistence on a certain form of the release. To be sure, no reasonable
jury could conclude that
Allstate's conduct was unfounded, frivolous, dishonest or otherwise
in bad faith.*fn18
V. THE EXPERT REPORT OF GEORGE C. CULBRETH
In opposition to Allstate's Motion for Summary Judgment, Plaintiffs
submitted the expert report of George C. Culbreth, and proposed to offer
Mr. Culbreth's testimony in support of their bad faith claims. Plaintiffs
proffer Mr. Culbreth's testimony on two issues: (1) whether Allstate's
investigation was reasonable and timely, and (2) whether Allstate's
"concealment of the sign-down waiver" was reasonable. Plaintiffs Resp. in
Opp. to Def.'s Motion in Limine at 5.
In his report, Mr. Culbreth reviews the facts and chronology of this
case from the 1985 accident through the Estate's UIM claim against
Allstate. See 7/11/03 Report of George C. Culbreth ("Culbreth Report")
(Ex. 38). Mr. Culbreth's comments appear in bold and interspersed among
his factual recitation. For example, after noting that Allstate had
informed Neff on December 15, 1997 that it would not investigate the
sign-down waiver until certain basic investigation was completed, Mr.
Culbreth writes, "Note: Allstate had knowledge since 12-05-89 there was
no signed sign down waiver."Id. at 6. The Culbreth Report concludes with
a summary that makes a number of general observations*fn19 and
concludes, "[l]ooking back on this scenario, I believe all parties would
and should have acted differently. Based on the file information we
reviewed, we believe Allstate Insurance Company certainly acted in bad
faith until the time they finally referred to counsel. This case should
have been resolved many years ago." Id., at 7.
Allstate moves to exclude Mr. Culbreth's testimony and report for
various reasons under Federal Rule of Evidence 702, Daubert v. Merrell
Dow Pharmaceuticals. Inc., 509 U.S. 579, 597 (1993) and Kumho Tire Co.,
Ltd, v. Carmichael. 526 U.S. 137, 151(1999). The Court need not
determine whether his testimony is admissible, however, because it
has no effect on the Court's decision.
Plaintiffs concede that Mr. Culbreth cannot testify as to the ultimate
issue of whether Allstate acted in bad faith. See Plff.'s Resp. in Opp.
to Def.'s Motion in Limine at 7. His opinion on this purely legal
question is not relevant or helpful to a jury. See Weston v. Washington
Metro. Area Transit Auth, 78 F.3d 682, 684 n.4 (D.C. Cir.) ("An expert
witness may not deliver legal conclusions on domestic law, for legal
principles are outside the witness' area of expertise under Federal Rule
of Evidence 702."), amended on other grounds after reh'g, 86 F.3d 216
(D.C. Cir. 1996); United States v. Leo, 941 F.2d 181, 196 (3d Cir. 1991)
(district court properly "took care to limit Moran's testimony so that he
was not giving his opinion as to what the law required"); Kraeger v.
Nationwide Mut. Ins. Co., No. Civ. A. 95-7550, 1997 WL 109582, at *1
& n.l (E.D. Pa. Mar. 7, 1997).
The Court will assume, without deciding, that Mr. Culbreth's testimony
is admissible,*fn20 and that he would testify that Allstate acted
unreasonably in administering the Estate's UIM claim. Even so, his
opinion is not clear and convincing evidence that Allstate acted in bad
faith because, as demonstrated above, the facts of this case cannot
support such a conclusion. "When an expert opinion is not supported by
sufficient facts to validate it in the eyes of the law, or when
indisputable record facts contradict or otherwise render the opinion
unreasonable, it cannot support a jury's verdict." Advo. Inc. v.
Philadelphia Newspapers. Inc., 51 F.3d 1191.1198-99 (3d Cir. 1995)
(quoting Brooke Group, Ltd. v. Brown & Williamson Tobacco Corp.,
509 U.S. 209, 242 (1993)).
Courts in this district have applied this principle to proffered expert
testimony when deciding motions for summary judgment in bad faith cases.
See Kosierowski 51 F. Supp.2d at 595 ("The mere presence of an expert
opinion supporting the non-moving party's position does not necessarily
defeat a summary judgment motion: rather, there must be sufficient facts
in the record to validate that opinion."); Dattilo 1997 WL 644076, at *4
(expert's opinion is not clear and convincing evidence of bad faith
because "[h]is conclusion is simply not supported by the facts of this
Accordingly, the Court concludes on the basis of the undisputed
material facts of record that Allstate it entitled to summary judgment on
all claims. The motion is granted. An appropriate Order follows.
AND NOW this 7th day of January, 2004, upon consideration of
Defendant's Motion for Summary Judgment [Doc. # 35], Plaintiffs' Response
in Opposition thereto [Doc. # 37], Defendant's Reply [Doc. # 39],
Plaintiffs' Sur-Reply [Doc. # 41], Plaintiffs' Supplemental Sur-Reply
[Doc. # 44], Defendant's Reply to Plaintiffs' Supplemental Sur-Reply
[Doc. #45], and for the reasons set forth in the attached Memorandum
Opinion, it is hereby ORDERED that Defendant's Motion is GRANTED,
Judgement is hereby ENTERED in favor of Defendant Allstate Insurance
Company and against Plaintiffs on all counts of the Complaint.
Plaintiffs' Motion in Limine for the Admission of Expert Testimony
[Doc. # 33] is DENIED AS MOOT,
Defendant's Motion in Limine to Exclude the Testimony of George C.
Culbreth [Doc. # 40] is DENIED AS MOOT,
The Clerk of Court shall mark this case closed for statistical
It is so ORDERED.