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Gerald Zintel v. Progressive Northern Insurance Company

December 16, 2010

GERALD ZINTEL,
PLAINTIFF
v.
PROGRESSIVE NORTHERN INSURANCE COMPANY, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is Defendant Progressive Northern Insurance Company's motion for summary judgment on Plaintiff Gerald Zintel's claim for bad faith under 42 PA. CONS. STAT. ANN. § 8371. (Doc.10). The motion has been fully briefed and is ripe for disposition.

BACKGROUND

This action relates to an injury Plaintiff Gerald Zintel ("Zintel") received when he was run over by an unidentified driver and Zintel's efforts to collect uninsured motorist ("UM") benefits from his insurer, Defendant Progressive Northern Insurance Company ("Progressive"). In the early morning hours of September 21, 2008, Zintel knelt by a parked car to tie his shoelace. (Def.'s Statement Undisputed Material Facts ("DSF") ¶¶ 2, 3 (Doc. 11); Pl.'s Counter-statement Undisputed Material Facts ("PSF") ¶¶ 2, 3 (Doc. 13)). A pickup truck started its engine and ran over Zintel while he tied his shoe. (PSF ¶¶ 3, 4; DSF ¶¶ 3, 4). Zintel had been drinking prior to the accident. (PSF ¶5; DSF ¶ 5). The driver of the pickup truck left the scene and was never identified. (DSF ¶ 6). At the time of the accident, Zintel was unemployed but seeking employment. (DSF ¶ 41; PSF ¶ 41).

Zintel notified Progressive of the accident on September 25, 2008. (DSF ¶ 7). The next day, Zintel gave Progressive a recorded statement regarding the accident and Progressive opened a UM claim. (Id. ¶¶ 8, 9). Zintel's recorded statement described his injuries as a compression fracture and a right MCL/ACL meniscus tear. (Id. ¶ 10). Zintel's treating physician identified the compression fracture as an aggravation of a prior compression fracture. (Id. ¶ 42). Zintel wore a back brace and underwent physical therapy, but did not have surgery. (Id. ¶¶ 43, 44). Future treatment, including surgery, may be necessary according to Zintel. (PSF ¶¶ 43, 44). Similarly, Zintel wore a brace and underwent physical therapy for his knee injury. (DSF ¶ 46). Zintel is generally able to take care of himself and perform activities as he did before the accident, but has some pain. (DSF ¶¶ 47, 48; PSF ¶ 48).

On October 3, 2008, Zintel advised Progressive that he had retained an attorney. (DSF ¶ 11). On October 9, 2008, Progressive referred Zintel's claim to its Special Investigations Unit to investigate the loss in light of the phantom vehicle, but that unit was unable to identify the driver. (Id.¶¶ 12, 17). On October 27, 2008, Zintel's counsel put Progressive on notice of a UM claim relating to the accident. (Id. ¶ 13). Progressive, in turn, forwarded authorization forms to be executed by Zintel and requested that Zintel's counsel provide any medical and wage information on November 4, 2008. (Id. ¶ 14).

On November 7, 2008, Zintel's counsel informed Progressive that she was in the process of collecting information on Zintel's claim and that she would forward the information upon receipt. (DSF ¶ 15). Counsel also gave Progressive permission to obtain a copy of Zintel's personal injury protection ("PIP") file. (Id. ¶ 16). On November 14, 2008, Zintel's counsel indicated that Zintel's injuries exceeded the UM policy limits and that Progressive would agree when it was provided with documentation. (Id. ¶18). Zintel denies that further documentation would have been necessary to agree with counsel's assessment and that Progressive had access to Zintel's first-party file. (PSF ¶ 18).

As of March 19, 2009, Progressive had not been forwarded documentation on Zintel's claim and had only a copy of Zintel's PIP file which included the medical records relating to Zintel's initial hospital stay. (DSF ¶¶ 19 - 21). Progressive contacted Zintel's counsel on that day, requesting medical and wage authorizations to order Zintel's medical records. (Id. ¶ 22). Zintel disputes whether further documentation would have been necessary to evaluate his claim. (PSF ¶¶ 19 - 22).

Progressive reiterated its request on June 1, 2009. (DSF ¶ 23). Zintel's counsel refused to provide Progressive with the authorizations. (Id. ¶ 25). After another request, on June 5, 2009 Zintel's counsel forwarded medical records consisting of Zintel's physical therapy between October and December 2008. (Id. ¶¶ 26 - 28). Zintel disputes whether further documentation would have been necessary to evaluate his claim. (PSF ¶¶ 23 - 28)). On June 5, 2009, Zintel demanded the policy limits of $100,000.00. (DSF ¶ 29).

As of July 9, 2009, Progressive had Zintel's medical records from his initial hospital stay and his physical therapy between October and December 2008. (DSF ¶ 30). Progressive requested Zintel's complete medical records and requested further information. (Id. ¶¶ 31, 32). On July 30, 2009, Zintel's counsel provided more information and additional medical records and lien information. (Id. ¶¶ 33, 34). Zintel disputes whether further documentation would have been necessary to evaluate his claim. (PSF ¶¶ 33 - 34).

On August 19, 2009, Progressive offered Zintel $28,300.00 to resolve his UM claim. (DSF ¶ 35). On August 27, 2009, Progressive sought additional medical records and sent authorization forms. (Id. ¶ 36). On September 21, 2009, Progressive sent a letter to Zintel's counsel asking for a response to Progressive's offer. (Id. ¶ 38).

On October 29, 2009, Zintel had surgery on his knee related to the accident. (DSF ¶ 45). Zintel has out-of-pocket expenses relating to medical bills and physical therapy totaling $2,600.00 and a Department of Public Welfare lien totaling approximately $4,200.00. (Id. ¶¶ 49, 50).

On Novemer 19, 2009, Zintel filed the instant action in the Court of Common Pleas of Wayne County for UM benefits and bad faith under Pennsylvania's Bad Faith statute, 42 PA. CON. STAT. ANN. § 8371. (DSF ¶ 39; Compl. (Doc. 1-3)). Progressive removed the action to this court on December 31, 2009. (Notice of Removal (Doc. 1)). Progressive answered the complaint on January 7, 2010. (Doc. 2). After engaging in discovery, Progressive filed a ...


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