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NOVAK v. PROGRESSIVE HALCYON INSURANCE COMPANY

United States District Court, M.D. Pennsylvania


May 16, 2005.

KIM L. NOVAK, Plaintiff,
v.
PROGRESSIVE HALCYON INSURANCE COMPANY (FORMALLY HALCYON INSURANCE COMPANY), PROGRESSIVE CASUALTY INSURANCE COMPANY AND PROGRESSIVE INSURANCE GROUP, A/K/A PROGRESSIVE Defendants.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge

MEMORANDUM AND ORDER

Defendants seek to exclude evidence of the Report of Market Conduct Examination of the Progressive Casualty Insurance Company by the Pennsylvania Insurance Department Market Conduct Division and Consent Order issued April 3, 2000 (MCE/CO) maintaining the report and consent order are extraneous and not pertinent to this breach of contract action.

Since we write for the parties, we need not go into the background of this case except to note that the market report and consent order were the subject of discovery and related interrogation of knowledgeable defense witnesses. On November 24, 2004, we denied a defense motion for a protective order based on plaintiff's assertion that within two years of the consent order, defendants violated its terms in handling plaintiff's first-party medical claim. While the report and consent order were not specifically related to plaintiff's case, the critical conduct of defendants was being repeated. We reverted the issue in denying a defense motion for summary judgment and ruled the relevance of the report in a bad faith action as evidence that defendants failed to implement the same procedures in plaintiff's case for which they were criticized in the report and consent order dealing with similar cases.

  Unfortunately, we have the defense directly contradicting plaintiff's claim of relevance without anything more than assertions; basically a factual dispute at this stage of the case. Although our earlier order dealing with the defense protective order also required knowledgeable defense witnesses to be deposed on the subject of the report and consent order, we have little reference to any light which may have been shed on the subject in those depositions.*fn1 Regardless, the report focused on a number of matters including standards for prompt, fair and equitable settlements. There may have been minimal violations which amount to nothing more than negligence. However, along with other evidence, there might be a sufficient basis to support bad faith alone. The briefs went further in addressing an issue beyond bad faith itself, i.e., punitive damages. We need not address this legal issue in disposing of this motion.

  For the foregoing reason, the defense motion in limine is DENIED.

  SO ORDERED.


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