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Mark Calestini v. Progressive Casualty Insurance Company

December 28, 2010

MARK CALESTINI, PLAINTIFF,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendant Progressive Casualty Insurance Company's Motion for Summary Judgment on Plaintiff Mark Calestini's claims for Bad Faith. (Doc. 21.) For the reasons stated below, the Motion will be granted.

BACKGROUND

This suit arises out of two car accidents that occurred on August 7, 2005 and April 14, 2006. In the August 7, 2005 accident, Plaintiff was rear-ended by a car operated by Adam Farr. Farr was insured by Progressive Northeastern Insurance Company under a policy providing $25,000 (twenty-five thousand dollars) in liability coverage. At the time of the accident, Plaintiff was treating for injuries sustained in a car accident in June 2004. On August 12, 2005, Plaintiff's first counsel put Defendant on notice of an underinsured motorist ("UIM") claim relating to the 2005 accident. Then, on April 14, 2006, the Plaintiff was involved in another car accident when the car he was operating was hit by Georgia Nay while Nay was making a left turn. Georgia Nay was insured by Allstate under a policy providing $25,000 (twenty-five thousand) in liability coverage. On April 15, 2006, Plaintiff's counsel put Defendant on notice of a UIM claim relating to the 2006 accident. In obtaining Plaintiff's medical records, Defendants learned of additional, work-related injuries that Plaintiff had suffered: in June 2004, Plaintiff, while working for a vending company, was in a truck that was rear-ended by another vehicle; in December 2005, Plaintiff was working at ShopRite when he slipped on a wet floor and fell and struck his head; and, in January 2006, Plaintiff, while still working at ShopRite, caught himself during a fall on another wet floor and sustained back and leg injuries.

In December 2006, Plaintiff's first counsel withdrew, and was replaced by counsel who advised Defendant he was representing Plaintiff in relation to the 2005 accident and demanded arbitration. In August 2007, Defendant requested all medical records relating to the UIM claim from the 2005 accident and told Plaintiff's counsel that it had not yet determined whether it would agree to arbitration. Plaintiff's counsel then informed Defendant in December 2007 that he would also be representing Plaintiff with regard to the 2006 accident and demanded arbitration in that matter as well. Also in December 2007, while the liability claim against Mr. Farr from the first accident was still pending, Defendant suggested to its counsel that they propose to Plaintiff that the UIM claim against Defendant for the 2005 accident be tried by a jury at the same time as the liability claim against Mr. Farr, but this idea was rejected by Plaintiff. Plaintiff then settled his claim against Mr. Farr for $15,000 (fifteen-thousand) of the original $25,000 (twenty-five thousand) available in liability coverage. On July 22, 2008, Defendant offered Plaintiff $2,000 (two-thousand) to resolve Plaintiff's UIM claim relating to the 2005 accident and $2,000 (two-thousand) to resolve Plaintiff's UIM claim relating to the 2006 accident. On June 16, 2009, Plaintiff's counsel informed Defendant that he did not yet have a report outlining which injuries and treatments were related to which accidents. On July 20, 2009, Plaintiff sent an expert report to Defendant that identified which injuries and treatment were allegedly related to which accidents. Then, on July 30, 2009, Plaintiff forwarded a copy of Plaintiff's Complaint to Defendant, which included two claims for Breach of Contract, relating to the 2005 and 2006 car accidents, and two claims for Bad Faith relating to the same accidents. At the time the Complaint was filed, Plaintiff's liability claim against Georgia Nay relating to the 2006 accident was still pending. Defendant filed a Motion to Bifurcate and Stay Discovery on October 19, 2009 (Doc. 4), which was denied by the Court on December 16, 2009. (Doc.9.) Defendant then filed a Motion for Summary Judgment on the Bad Faith claims on October 1, 2010. (Doc. 21.) The Motion has been fully briefed by both sides and is ripe for review.

LEGAL STANDARD

Summary judgment is appropriate 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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

DISCUSSION

Defendant's Summary Judgment Motion on the Bad Faith claims will be granted because the Plaintiff has failed to bring forth clear and convincing evidence of bad faith on the part of the Defendant in handling Plaintiff's UIM claims.

"UIM insurance is designed to protect an insured from a negligent driver of another vehicle who causes injury to the insured, but through no fault of the insured, lacks adequate coverage to compensate the insured for his or her injuries." ...


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