The opinion of the court was delivered by: Buckwalter, S. J.
Presently before this Court is Defendant State Farm Insurance Company's Motion for Summary Judgment, and Plaintiff David Hatchigian's Response to Defendant's Motion for Summary Judgment. For the reasons discussed below, the Motion for Summary Judgment is denied.
On August 7, 2007, Plaintiff filed a Complaint alleging that Defendant, in bad faith, denied payment of insurance benefits "for a protracted period of time without cause" and "intentionally violated and breached the promise to deal in a fair and professional manner." (Pl.'s Compl. ¶¶ 23, 27.) Plaintiff seeks compensation in an amount equal to his claim for damages (punitive and compensatory) plus interest, attorneys' fees and costs. (Id.)
On June 9, 2009, Defendant filed a Motion for Summary Judgment asserting that, Plaintiff failed to state a claim under either Pennsylvania*fn1 or Delaware law, and arguing that prior to filing suit, Plaintiff never claimed that he sought light duty work after he ceased working on September 9, 2005. (Id. at 5.) Instead, Defendant notes that Plaintiff's prior argument had been that he was in "too much pain to continue even light duty work... and that his doctor told him to stay out of work." (Id. at 6.) Should this Court not grant summary judgment for the entirety of the Complaint, Defendant seeks denial of Plaintiff's request for attorney fees and costs. Plaintiff responded to Defendant's Motion for Summary Judgment on June 27, 2008.
On August 15, 2005, Plaintiff's lower back and neck were injured when a vehicle lost control and struck his van while parked in Philadelphia, Pennsylvania. (Pl.'s Compl. ¶¶ 6, 8; Def. Mot. Summ. J. ¶¶ 1, 2; Pl.'s Resp. Mot. Summ. J. 1-2.) Plaintiff's doctor, Jeffrey Siker, D.O., instructed him to stop work or limit himself to light duty work lifting no more than ten pounds. (Pl.'s Compl. ¶ 8.)
At the time of the accident, Plaintiff, a union electrician, was working for Goldsmith Electric ("Goldsmith"). (Id. at ¶ 11.) Despite his back injury, Plaintiff performed "light duty work," through September 8, 2005, when the job was completed. (Id. at ¶ 11, 12;
Pl.'s Resp. Mot. Summ. J. 3.) A member of three union locals, Plaintiff asserts that his injuries "prohibited him from being able to perform his normal work and he was unable to make arrangements for light duty work" with any union local. (Pl.'s Compl. at ¶ 13.) In fact, Plaintiff claims that these union locals never posted light duty positions. (Pl.'s Resp. Mot. Summ. J. 5.) Unable to work for thirteen weeks, Plaintiff was cleared for a full range of work on December 12, 2005. (Id. at 6.)
At the time of the accident, Plaintiff's van was covered by State Farm policy number 12 2310-C1108 which insured "the loss of wages or salary... the insured would have earned in his or her regular work but not other income." (Pl.'s Compl. ¶ 4, 5; Def's Mot. Summ. J., Ex. B, State Farm Policy, Section II, Coverage P.) Plaintiff claims to have lost $34,621.60*fn2 in income due to the August 15, 2005, accident. (Pl.'s Compl. ¶ 14.) Following the accident, State Farm avers that it tried to contact Plaintiff at the Delaware address and phone number provided, but were unable to do so as Plaintiff had moved to Pennsylvania. (Def.'s Mot. Summ. J. 2.)
On November 21, 2005, Plaintiff filed an "Application for Benefits" which made a "loss of earning" claim. (Pl.'s Resp. Mot. Summ. J. 5.) With the application, Plaintiff provided an August 17, 2005, letter from Dr. Siker stating that "Mr. Hatchigian has been under my care since August 17, 2005, due to injuries incurred in a motor vehicle accident" and noting that "per my instruction he [Plaintiff] has been instructed to limit his work to light duty. He should not do lifting of more than 10 pounds." (Def's Mot. Summ. J., Ex. SF Documents, p. 4.)
On December 4, 2005, Defendant wrote stating that it had received Plaintiff's "Application for Benefits form," but asking for "your employer's complete mailing address" as we will "verify your wages and lost time from work through your employer." (Id. Ex. SF Documents, 11.) On December 14, 2005, Defendant wrote Goldsmith asking that it complete a "Wage and Salary Verification" form. (Id. Ex. SF Documents, 10.) The completed form indicated that Plaintiff was employed through September 8, 2005, and did not miss any work. (Id. Ex. SF Documents, 3.)
On January 11, 2006, Dr. Siker wrote a letter "to whom it may concern" stating that Plaintiff:
has been under my care since August 17, 2005 due to injuries incurred in a motor vehicle accident. As per my instructions he has been instructed to limit his work to light duty from August 18, 2005. Beginning December 12, 2005, he was cleared to regular duties. He continues to have treatment in my office as he rehabilitates his injury. (Id. Ex. SF Documents, 2.)
The same day, Ms. Hudson, a claims representative for Defendant, left Plaintiff a voice message indicating that a check covering lost earnings would be issued by Defendant. (Pl.'s Resp. Mot. Summ. J. 5.) This check was not issued. (Id.) Ms. Hudson later indicated that this voice message was issued before Goldsmith told Defendant that Plaintiff was laid off. (Def's Mot. Summ. J., Ex. SF Documents, Activity Log entered 2/10/06.) Activity log notes indicate that Plaintiff was told that lost wages would not be paid "if he was laid off," but Plaintiff continued to assert that he "stopped working because the dr. told him to stay oow [out of work]." (Id. Ex. SF Documents, Activity Log entered 1/13/06.)
On January 26, 2006, Plaintiff wrote Defendant detailing his efforts to provide Defendant with documentation supporting his claim and requesting "immediate payment of benefits." (Id. Ex. SF Documents, 24-25.) Plaintiff stated that he would file a formal complaint with the Delaware State Insurance Department "if I do not hear from you or receive payment in the next 10 days." (Id.) On March 2, 2006, Plaintiff wrote Matthew Denn, ...