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Ingraham v. Geico Insurance Co.

March 24, 2009

MARTIN INGRAHAM, PLAINTIFF,
v.
GEICO INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Pending before this court are cross-motions for summary judgment filed by defendant GEICO Insurance Company ("GEICO" or "defendant") (Docket No. 67) and plaintiff Martin Ingraham ("Ingraham" or "plaintiff") (Docket No. 64). Plaintiff filed this civil action in the Allegheny County Court of Common Pleas asserting state law claims for breach of contract, violation of the Pennsylvania Motor Vehicle Financial Responsibility Law, as amended, 75 PA. CONS. STAT. §§ 1701, et seq. ("MVFRL"), and bad faith handling and denial of insurance benefits pursuant to 42 PA. CONS. STAT. § 8371. The claims involve three motor vehicle accidents in which plaintiff was involved as a GEICO insured on November 14, 2001, January 3, 2002, and March 11, 2003. On January 27, 2006, defendant filed a notice of removal of the action to this court. (Docket No. 1).

After reviewing the record, considering the motions and submissions of the parties, the court concludes that no reasonable finder of fact could render a verdict for plaintiff on his claims. With respect to the claims asserted by plaintiff pursued under a theory of bad faith, the court concludes that plaintiff failed to provide clear and convincing evidence in support of his claims. With respect to plaintiff's claims for violation of the Pennsylvania MVFRL and for breach of contract, the court concludes that the undisputed facts and inferences therefrom drawn in favor of plaintiff do not support plaintiff's claims. Accordingly, the court will grant summary judgment in favor of defendant.

Factual Background

The parties agree that on July 31, 2001, plaintiff purchased a Pennsylvania Family Automobile Policy (the "Policy") from defendant. The Policy provided first party benefits and uninsured and underinsured motorist coverages. (Appendix to Defendant's motion for summary judgment ("Def.'s App.") Ex. C).

On November 15, 2001, plaintiff reported to GEICO that he was in a motor vehicle accident on November 14, 2001. (Joint Concise Statement of Material Facts for Def.'s motion for Summary Judgment ("Def.'s J.S.") ¶ 16). The other party involved in the accident was an uninsured motorist. (Joint Concise Statement of Material Facts for Pl.'s motion for summary judgment ("Pl.'s J.S.") ¶ 1). Exhibits A and B to defendant's request for admissions 1) list and identify the date each medical bill which plaintiff alleges was related to the November 14, 2001 accident was submitted to defendant, and 2) list the service provided, the date of service, the amount of the bill, and, if paid, the date of the amount paid. (Def.'s App. Ex. D.) Defendant paid medical bills allegedly related to the November 14, 2001 accident, under plaintiff's personal injury protection ("PIP") coverage, as listed on Exhibit A. (Def.'s J.S. ¶ 18.) Defendant sought proofs of claim, such as treatment notes, for the medical expenses listed on Exhibit B. (Id.) Neither plaintiff nor his medical providers provided proofs of claim for the expenses listed on Exhibit B. (Id.) Plaintiff admits GEICO paid all submitted medical bills for the November 14, 2001 accident. (Id.)

On October 31, 2001, Dr. Kush, plaintiff's family physician, gave him a disability slip, restricting plaintiff from working at all from November 19, 2001 to December 17, 2001, as a consequence of a separate accident on November 8, 2000. (Id. ¶ 19.) On January 30, 2002, Dr. Kush gave plaintiff a disability slip to keep him from working more than twenty hours during the time period from November 19, 2001 to December 26, 2001, an overlapping time period, due to the November 14, 2001 accident. (Id.) On November 30, 2001, plaintiff informed defendant that he potentially would be placed on limited duty work as a result of the November 14, 2001 accident. (Id. ¶ 20.) On the same day, an employee of defendant reviewed with plaintiff his coverage for wage loss and the documentation necessary to process a PIP claim. (Id.) On December 6, 2001, Dr. Kush's practice stated that plaintiff could return to work without any restrictions. (Id. ¶ 21.) Plaintiff did not submit a claim for wage loss under the PIP provisions of his policy with defendant until February 6, 2002. (Id. ¶ 22.) On February 14, 2002, defendant paid all the first party wage loss to which plaintiff claimed entitlement as a result of the November 14, 2001 accident. (Id. ¶ 23.)

On October 2, 1993 and November 8, 2000, plaintiff was involved in motor vehicle accidents. (Id. ¶ 24.) He suffered injuries to his neck, spine, low back, as well as suffering headaches, dizziness, and post-traumatic stress disorder. (Id.) In a letter to Dr. Kush, dated June 24, 2002, Dr. David Oliver-Smith, plaintiff's neurosurgeon, commented:

His [Ingraham's] symptoms began after his first motor vehicle accident and never completely resolved in between accidents. All of the accidents involved his car being rear-ended. The first accident was October 2, 1993, followed by November 9, 2000, and November 14, 2001. His most recent accident was January 3, 2002. (Id.) Kush said none of the injuries from the November 8, 2000 accident had resolved at the time of the November 14, 2001 accident. (Id. ¶ 25.) Ingraham was still complaining of headaches, neck and back pain, dizziness, memory problems, blurred and double vision. (Id.)

On November 14, 2001, plaintiff was rear-ended while at a traffic light. (Id. ¶ 26.) He was on his way home after receiving physical therapy from the injuries he sustained in the November 8, 2000 accident. (Id.) He claimed that he aggravated his neck and back pain in the accident. (Id.) There was no bleeding, broken bones, or any contact by his head with the car. (Id.) He drove himself to West Penn Hospital where he was treated and released the same day. (Id.) In December 2001, Dr. Senter administered plaintiff a four-day treatment with steroids which relieved his neck and back pain. (Id. ¶ 26.) Dr. Kush agreed with Dr. Oliver-Smith that a comparison of the MRI studies of the cervical spine, dated March 7, 2001, and December 10, 2001, before and after the accident of November 14, 2001, showed no change. (Id. ¶ 27.) Plaintiff reported that at the time of the January 3, 2002 accident, he had fully recovered from the November 14, 2001 accident. (Id. ¶ 28.) On April 2, 2002, Dr. Milton Klein performed an independent medical examination ("IME") of plaintiff and opined that plaintiff had reached maximum medical improvement ("MMI") and did not demonstrate any substantial disability or impairment due to the November 14, 2001 motor vehicle accident and was capable of performing his job duties. (Id. ¶ 29.)

On May 9, 2002, defendant offered $750.00 to settle plaintiff's uninsured motorist coverage ("UM") claim for the November 14, 2001 accident. (Id. ¶ 30.) The claims examiner placed the UM claim in the no/low program of GEICO for no damage or low impact claims because there was minimal damage ($350) to plaintiff's vehicle. (Id.) The claims examiner made this offer on the basis of his review of the medical treatment records, photographs of plaintiff's automobile and the totality of the accident circumstances. (Id.) On July 18, 2002, plaintiff demanded $20,000 to settle his UM claim. (Appendix to plaintiff's motion for summary judgment ("Pl.'s App.") Ex. 1 12.) GEICO rejected the settlement offer of plaintiff. (Id.) The $750.00 offer for the November 14, 2001 accident was repeated to plaintiff on May 29, July 1, and July 19, 2002. (Def.'s J.S. ¶ 32.) On July 30, 2002, defendant received a letter of representation from plaintiff's attorney concerning plaintiff's UM claim for the November 14, 2001 accident. (Id. ¶ 33.) On November 12, 2002, plaintiff's physician noted that plaintiff was being seen for post-traumatic syndrome and extended the time period of plaintiff's disability slip with respect to his part-time job. (Pl.'s J.S. ¶ 26.) On July 30, August 27, September 20, October 11, November 11, and December 16, 2002, and on January 16, February 18, and March 17, 2003, defendant, through correspondence and telephone calls, requested that plaintiff's attorney provide information concerning plaintiff's UM claim. Plaintiff's attorney did not respond to defendant's requests until March 27, 2003, when he stated that he no longer represented plaintiff. (Def.'s J.S. ¶ 33.)

By letters dated April 2, May 28, July 31, 2003, defendant repeated in writing its $750.00 offer to plaintiff to settle the UM claim for the November 14, 2001 accident. (Id. ¶ 34.) Defendant received no response to those letters from plaintiff. (Id.) Plaintiff made no attempt to communicate with defendant concerning the November 14, 2001 UM claim between March 27, 2003 and November 7, 2005. (Id. ¶ 35.) On November 7, 2005, plaintiff, through new counsel, requested arbitration of the November 14, 2001 UM claim. (Id. ¶ 36.) Upon receipt of the demand for arbitration, defendant notified plaintiff of its referral of the UM matter to outside counsel for further handling. (Id.) On November 30, 2005, GEICO notified counsel for plaintiff of its appointment of defense counsel and, on January 6, 2006, GEICO notified counsel for plaintiff of the identity of its defense arbitrator. (Id. ¶ 37.) On February 21, 2007, plaintiff and defendant submitted the 2001 UM claim to mediation, which did not result in a settlement. (Id. ¶ 38.) Plaintiff made no demand in settlement of this claim from July 19, 2002 to the date of the mediation. (Id.) On June 12, 2007, defendant settled the 2001 UM claim with plaintiff for $11,000. (Id. ¶ 39.)

On January 4, 2002, plaintiff reported to defendant a January 3, 2002 motor vehicle accident. (Id. ¶ 40.) Plaintiff was rear-ended in his car while stopped at a traffic light. (Id.) His head and body moved backwards and forwards. (Id.) There was no bleeding, broken bones, or any contact by his head with the car. (Id.) Ingraham claimed neck and back pain, deep vein thrombosis, jaw pain, concussion, irritable bowel syndrome, and vision problems as a result of the accident. (Id.) Exhibit C of defendant's request for admissions 1) lists and identifies the date that each medical bill which plaintiff alleges was related to the January 3, 2002 accident was submitted, and 2) lists the service provider, the date of service, the amount of the bill, and the date and amount paid. Defendant paid all medical bills (with interest on some) allegedly related to the January 3, 2003 accident pursuant to plaintiff's PIP coverage, as identified on Exhibit C. (Id. ¶ 41; Def.'s App. Ex. D.)

On February 13, 2002, Dr. Lewis Khella performed a peer review organization review ("PRO") of plaintiff's treatment by Dr. Betsy Blazek-O'Neill, Ingraham's physiatrist, and determined that plaintiff had reached maximum medical improvement. (Def.'s J.S. ¶ 42.) Dr. Khella spoke with Dr. Blazek-O'Neill, who reported that he had no objective findings of any ailment with Ingraham and he was trying to direct his own treatment. (Id.) On August 2, 2007, plaintiff was examined by Dr. Larson at the request of defendant. (Pl.'s J.S. ¶ 22). Defendant received the IME report of Dr. Larson and was informed that plaintiff had not yet reached MMI and could possibly need a psychiatric evaluation. (Id. ¶ 24.) Larson opined that plaintiff was able to return to his full-time job with a twenty-five pound lifting restriction. (Pl.'s App. Ex. 1 20.) On February 14, 2003, Daniel LoPreto, Ph.D., performed a PRO of plaintiff's psychological treatment, and opined that plaintiff did not sustain a new or unique psychological injury as a result of the January 3, 2002 accident. (Def.'s J.S. ¶ 43.) His review of the available psychological records did not support a diagnosis of depression or post-traumatic stress disorder. (Id.) Plaintiff, Dr. Kush and plaintiff's counsel did not request reconsideration of the PROs of Dr. Khella and Dr. LoPreto. (Id.) On August 16, 2005, Dr. Marc Adelsheimer performed an IME of plaintiff. (Id. ¶ 44.) Dr. Adelsheimer opined that plaintiff's symptomatology resulting from the January 3, 2002 and March 11, 2003 motor vehicle accidents was resolved as of August 16, 2005. (Id.) Dr. Adelsheimer opined that none of the treatments that plaintiff was receiving, including treatments from his chiropractor, neuropsychologist, podiatrist, dentist, and alternative medical care providers, was needed as a consequence of these accidents. (Id.) Dr. Adelsheimer opined that plaintiff could work at his full unrestricted duties. (Id.)

On August 30, 2005, defendant informed plaintiff that, based upon Dr. Adelsheimer's IME, it would not pay any further medical expenses which plaintiff related to the January 3, 2002 and March 11, 2003 accidents. (Id. ¶ 45.) Neither plaintiff nor Dr. Kush provided any response, dispute, or request for reconsideration concerning the IME after GEICO supplied a copy of the report to Ingraham and Dr. Kush. (Id. ¶ 46.) Plaintiff did not submit any bills for medical expenses which he related to the January 3, 2002 accident to defendant after August 30, 2005. (Id. ¶ 47.)

As a consequence of the January 3, 2002 accident, Ingraham completed a PIP application on February 21, 2002, in which he stated his only employment was his full-time job as a welfare to work coordinator with Great Lakes Research Institute. (Id. ¶ 48.) He did not make a claim for income loss from his part-time job as a mobile therapist with KidsNet. (Id.) Mobile therapists work directly with families to ensure they understand how to address the needs of a young person that has a mental health or mental retardation diagnosis. (Id. ¶ 49.) On July 12, 2001, plaintiff began work as a part-time mobile therapist for KidsNet. (Id. ¶ 50.) On average, plaintiff worked two hours per day, two days per week. (Id.) During December 2001, Dr. Lowenstein, plaintiff's supervisor, authorized Ingraham to work six to eight hours per week at $24 an hour as an independent contractor. (Id.) Plaintiff worked after-school hours and weekends. Plaintiff last worked at KidsNet the week of April 7-12, 2002. (Id.) Ingraham left work on a medical leave of absence and never returned to work. (Id.) Defendant paid plaintiff wage loss benefits from April to September 1, 2002 for twenty-three weeks for 11.5 hours per week at $24 an hour based upon information received from Ingraham and KidsNet. (Id. ¶ 51.) Ingraham made his last claim for lost wages for the 2002 accident on August 30, 2002. (Id.)

On August 15, 2002, Dr. Kush's practice released plaintiff to return to work full time without restriction. (Id. ¶ 52.) Plaintiff did not contest the termination of wage loss benefits for the remainder of 2002 and all of 2003 until March 2004. (Id. ¶ 53.) On August 15, 2006, plaintiff settled all claims against defendant for wage loss which he related to the January 3, 2002 accident for the time period prior to August 31, 2005. (Id. ¶ 55.) Ingraham exhausted approximately $38,500.00 of his $50,000 policy limits for first party benefits for wage loss on the 2002 claim. (Id. ¶ 56.)

Plaintiff did not make an underinsured motorist coverage ("UIM") claim for the January 3, 2002 accident until December 21, 2005. (Id. ¶ 57). Upon receipt of the demand for arbitration, defendant referred the January 3, 2002 UIM matter to outside counsel for further handling and notified plaintiff of the referral. (Id. ¶ 58.) The tortfeasor in the 2002 accident had policy limits of one million dollars, which must be exhausted before plaintiff has a UIM claim. (Id.) By letter dated, March 18, 2008, counsel for GEICO confirmed with counsel for plaintiff that Ingraham had no basis upon which to expect that his claim will exceed the tortfeasor's liability policy limits and that the UIM claim with GEICO could be closed. (Id. ¶ 59.)

Plaintiff reported his March 11, 2003 accident to defendant on March 12, 2003. (Id. ¶ 60.) Plaintiff's car was hit on the rear driver side quarter panel. (Id. ¶ 61.) His same car was involved in all three accidents. (Id.) There was no bleeding, broken bones, or any contact by his head with the car. (Id.) He drove himself to West Penn Hospital where he was treated and released the same day. (Id.) Plaintiff claimed that he had an umbilical hernia, neck and back pain, nerve pain, anxiety, irritability and skin blemishes as a result of this accident. (Id.) He was not diagnosed with a hernia until May 21, 2003. (Id.) Exhibit D of defendant's request for admissions 1) lists and identifies the date that each medical bill which plaintiff alleges was related to the 2003 accident was submitted, and 2) lists the service provider, the date of service, the amount of the bill, and, if paid, the date and the amount. (Id. ¶ 62; Def.'s App. Ex. D.) Defendant sought proofs of claim, such as treatment notes, for all unpaid medical expenses listed on Exhibit D, which were incurred prior to August 30, 2005, from plaintiff and his medical providers. (Def.'s J.S. ¶ 62.) Neither plaintiff nor his medical service providers submitted any additional proofs of claim for a number of the expenses. (Id.) Defendant denied payment of all medical expenses allegedly related to the March 11, 2003 accident that accrued after August 30, 2005 based upon Dr. Adelsheimer's IME report. (Id. ¶ 64.) Defendant, however, sought additional proof of claim, such as treatment notes for certain medical expenses. (Id.)

Plaintiff did not make any claim for wage loss for the March 11, 2003 accident until July 11, 2003. (Id. ¶ 67.) When Ingraham completed a PIP application on June 17, 2003, he did not make a claim for income loss from his part-time job as a mobile therapist with KidsNet. (Id.) Following the IME on September 12, 2003, to determine whether plaintiff's wage loss was related to the 2003 accident, defendant issued payment for lost wages for plaintiff's full-time job on September 26, 2003. (Id. ¶ 68.) Plaintiff had a full work schedule of 38.75 hours per week from September 2003 to September 26, 2005 at his full-time job. (Id. ¶ 69.) On March 4, 2004, for the first time since November 2002, and for the first time pursuant to the 2003 claim, plaintiff requested wages for his part-time job as a mobile therapist for KidsNet. Upon receipt of the renewed claim, GEICO requested wage and salary verification from KidsNet. (Id. ¶ 70.) Plaintiff submitted no physician statements certifying Ingraham's inability to perform his part-time job as a consequence of the March 2003 accident. (Id. ¶ 71.) Because GEICO consolidated the handling of the 2002 and 2003 PIP claims, GEICO began paying lost wages for plaintiff's part-time job. (Id.) On June 22, 2004, GEICO issued a payment of $11,768.54 in wage benefits for Ingraham's part-time job for the time period from November 2002 to May 3, 2004. (Id.)

The claims examiner calculated the monthly amount of lost wages by adding the wages actually earned during Ingraham's nine months of employment and dividing by nine. (Id.)

On June 23, 2004, Dr. Kush released plaintiff to return to his full-time work without restriction. (Id. ¶ 72.) On March 11, 2004, Ingraham received a memorandum of reprimand from his full-time employer for working additional hours and accumulating excess compensatory time. (Id. ¶ 73.) During the March 11, 2004 pay period, Ingraham accumulated 78.75 hours of compensatory time. (Id.) On February 24, 2005, Ingraham received another memorandum of reprimand from his employer for working hours outside his regular work schedule of 8:30 a.m. to 5:00 p.m. (Id.) Ingraham worked on evenings, weekends and holidays to complete his work schedule. (Id.) Ingraham took no time off for injury/illness between April 18, 2005 and August 16, 2005. (Id. ¶ 74.) During the week of August 7, 2005, Ingraham worked 40.75 hours. (Id.) During the week of August 14, 2005, Ingraham worked 42.5 hours. (Id.) During the week of August 21, 2005, Ingraham worked 33.75 hours. (Id.) During the week of August 28, 2005, Ingraham worked 36 hours. (Id.)

On September 14, 2004, plaintiff was seen at Mercy Brain Injury Rehab by Dr. Gary Goldberg and was diagnosed with a grade two severity brain injury as a result of the January 3, 2002 accident. (Pl.'s J.S. ¶ 37.) As a result of the August 16, 2005 IME, Dr. Adelsheimer opined that plaintiff could continue to work full time without restrictions. (Def.'s J.S. ¶ 75.) Plaintiff did not provide GEICO with any proof of claim for lost wages due to a disability from a psychologist/psychiatrist for his part-time job as a mobile therapist at any time before August 31, 2006. (Id. ¶ 77.) GEICO requested that plaintiff and his mental health providers, Dr. Franzen and Dr. Kneff, supply psychological treatment records. (Id. ¶ 79.) Plaintiff had signed a PIP authorization for release of treatment records. (Id.) This authorization, however, was not accepted by Allegheny General Hospital, where Drs. Franzen and Kneff met with Ingraham. (Id.) Plaintiff's attorneys did not supply an authorization acceptable to Allegheny General Hospital. (Id.) GEICO hired a nurse case manager, Debbe Marcinko, from Rehabilitation Planning, Inc. to obtain the records. (Id.) Plaintiff's attorneys did not cooperate with her in this regard. (Id.) GEICO filed a writ of summons in order to commence an action in the Allegheny Court of Common Pleas to compel plaintiff by motion to produce his medical records or sign a medical records' release authorization for GEICO to obtain these records. (Id.) The court dismissed the lawsuit for lack of jurisdiction over the PIP claim. (Id.)

On August 30, 2005, defendant informed plaintiff by letter that, based upon Dr. Adelsheimer's IME, it would not pay further wage loss which plaintiff alleged was related to the 2002 and 2003 accidents. (Id. ¶ 82.) At the time of this decision, neither plaintiff nor his psychologists, Drs. Franzen and Kneff, had supplied GEICO with all their records. (Id.) Plaintiff had been seeing Dr. Franzen since 1993. (Id.) Plaintiff only supplied the records of Dr. Franzen from July 4, 2003 to October 4, 2004. (Id.) The decision to stop paying plaintiff's wages for his part-time job was made by Megan Gray, the adjuster, her supervisor and the claims home office. (Pl.'s J.S. ¶ 45.)

On May 31, June 15, and July 19, 2007, Dr. Stuart Burstein performed an independent psychiatric examination and records review of plaintiff. (Def.'s J.S. ¶ 83.) Dr. Burnstein concluded that Ingraham never was disabled from his part-time job as a mobile therapist as a consequence of a psychological or psychiatric condition. ( Id.) At the time of his deposition on December 5, 2007, Dr. Burstein reviewed additional records of Dr. Franzen and Kneff, received by GEICO (through subpoena and medical records release authorization) on August 30, 2007, and the records of the Pennsylvania Office of Vocational Rehabilitation ("OVR") received by GEICO (through subpoena) on June 18, 2007. ( Id.) His expert opinion remained the same. (Id.) Plaintiff did not provide defendant with any disability slips from physicians restricting plaintiff from working for the period after August 30, 2005, as a result of psychological or psychiatric conditions which plaintiff alleges are related to the 2001, 2002, or 2003 accidents. (Def. App. Ex. D ¶ 67.)

Ingraham was involved in another motor vehicle accident on September 26, 2005, while insured by Liberty Mutual. (Id. ¶ 85.) Ingraham filed a bad faith lawsuit in this court against Liberty Mutual, resulting from this accident, with respect to lost wages and medical expenses. (Id.) On October 27, 2005, Ingraham filed for Family and Medical Leave endorsed by Dr. Kush due to the 2005 accident. (Id. ¶ 86.) The injuries claimed from this accident are similar to the injuries claimed by Ingraham in his motor vehicle accidents of 2000, 2001, 2002, and 2003 as a GEICO insured. Dr. Kush put Ingraham on work restriction at his full-time job of twenty-five hours per week from October 3, 2005 to September 17, 2006. (Id.) On September 18, 2006, he placed Ingraham on a thirty-hour work restriction due to the same motor vehicle accident until May 31, 2007. (Id.) On June 19, 2007, and November 25, 2007, plaintiff was involved in two more motor vehicle accidents while insured with Liberty Mutual. (Id. ¶ 87.) Defendant paid plaintiff all wage loss which plaintiff related to the March 11, 2003 accident during the time period prior to August 30, 2005, in an amount of $22,416.17. (Id. ¶ 88.) Plaintiff settled all claims against defendant for wage loss from the March 11, 2003 accident for the time period prior to August 31, 2005 on August 15, 2006. (Id.)

When plaintiff reported the March 11, 2003 accident on March 12, 2003, he told the defendant that he was unsure whether he was going to make an injury claim. (Id. ¶ 89.) Plaintiff refused to provide a recorded statement regarding his March 11, 2003 claim on March 12 and April 3, 2003, and did not respond to telephone calls and correspondence requesting a recorded statement on March 26, April 2, April 16, April 24, April 29, May 12, May 28, and June 3, 2003. (Id. ¶ 90.) Plaintiff did not make a recorded statement pertaining to the March 11, 2003 accident until June 9, 2003. (Id.) Defendant requested that plaintiff provide authorizations for medical and employment records on October 7, 2003, November 13, 2003, April 8, 2004, and May 10, 2004. (Id. ¶ 91.) Plaintiff did not respond to defendant's requests for authorizations to obtain and review medical records regarding the March 11, 2003, UM claim until May 24, 2004. (Id. ¶ 92). Plaintiff did not sign authorizations to obtain and review the records pertaining to the March 11, 2003, accident until June 18, 2004. Plaintiff admits that his attorney withheld requested documents from GEICO. (Id. ¶ 93.)

Dr. Kush agreed with Dr. Oliver-Smith that a comparison of the MRI studies of the cervical spine, dated December 10, 2001 and July 13, 2003, before and after the accidents of 2002 and March 11, 2003, showed no change. (Id. ¶ 94.) In a September 15, 2004 letter to Dr. Kush, Dr. Benjamin Smolar, plaintiff's neurologist stated, "Mr. Ingraham presents now with mostly subjective complaints but little neurological dysfunction at this time." (Id. ¶ 95.) In a letter to Dr. Kush, dated August 4, 2005, Dr. Blazek-O'Neill, opined:

He [Ingraham] was also demonstrating evidence of somatization disorder. I am very concerned about Mr. Ingraham's ongoing need to continue multiple forms of medical care. Despite all of this medical care, his symptoms remain virtually unchanged since the last time I had seen him in 2002. I talked to him on July 6, 2005, about taking more responsibility for his own health and wellness rather than relying upon multiple treatment.

(Id.)

On April 7, 2005, defendant referred the March 11, 2003 UM file to outside counsel for further handling and notified plaintiff of the referral. (Id. ¶ 97.) On multiple occasions, counsel for GEICO requested additional information from counsel for plaintiff concerning the UM claims and received no response. (Id. ¶ 98.) On February 21, 2007, GEICO settled the 2003 UM claim for $100,000 at mediation. (Id. ¶ 99.)

On August 15, 2006, Ingraham and GEICO agreed to settle and dismiss with prejudice all claims for wage loss prior to August 31, 2005, that resulted from the injuries that claimant sustained in the three motor vehicle accidents, including all claims for interest on wage loss prior to August 31, 2005, and all attorney's fees related to claims for wage loss occurring prior to August 31, 2005, and to resolve and satisfy forever any claims Ingraham may now have or in the future may have against GEICO for wage loss claims prior to August 31, 2005. (Id. ¶ 2.) On January 26, 2007, this court entered an order that defendant's requests for admission directed to plaintiff were deemed admitted. (Docket No. 21.) On April 27, 2007, counsel for plaintiff stipulated that Ingraham's claims for unpaid medical expenses were not part of his claim for bad faith pursuant to 42 PA. CONS. STAT. § 8371.

Standard of Review

Federal Rule of Civil Procedure 56 (c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56 (c).

The nonmoving party must point to specific affirmative evidence in the record, rather than rely upon conclusory or vague allegations or statements. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Such concrete evidence must be provided for each element of each of the claims, and the evidence must be such that a reasonable fact finder could find in that party's favor at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247- 48 (1986). "A nonmoving party, like plaintiff, must 'designate specific facts showing that there is a genuine issue for trial.'" Orenge v. Veneman, Civ. No. 04-297, 2006 WL 2711651, at *2 (W.D. Pa. Sept. 20, 2006) (citing Celotex, 477 U.S. at 324).

A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson, 477 U.S. at 248. In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court may consider any evidence that would be admissible at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2,8 (1st Cir. 1993; Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert. denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").

Analysis

Plaintiff asserts three claims against GEICO including breach of contract, violation of the MVFRL, and bad faith in the handling of plaintiff's insurance claims. Defendant moves for summary judgment on all three claims. Plaintiff moves for summary judgment only on his bad faith claims. Each claim will be addressed.

I. Bad Faith

Plaintiff asserts claims against GEICO based upon bad faith handling and denial of insurance benefits pursuant to 42 PA. CONS. STAT. ยง ...


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