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Connolly v. Progressive Northern Ins. Co.

United States District Court, M.D. Pennsylvania

February 4, 2015

April Connolly, Plaintiff,
v.
Progressive Northern Ins. Co., Progressive Preferred Ins. Co., Progressive Casualty Insurance Co. Defendants

MEMORANDUM

RICHARD P. CONABOY, District Judge.

We consider here a Motion for Summary Judgement (Doc. 27) filed by Defendants Progressive Northern Insurance Company, Progressive Preferred Insurance Company, and Progressive Casualty Insurance Company on November 5, 2014. Defendants' seek dismissal of Plaintiff April Connolly's claim for stacked underinsured motorist "UIM" benefits, dismissal of Plaintiff's statutory bad faith claim, and dismissal of all claims against Progressive Casualty Insurance Company and Progressive Northern Insurance Company on the grounds that neither was ever in privity of contract with the Plaintiff. We shall consider each argument in turn.

I. Factual Background.

This case arises from a motor vehicle accident that occurred on February 26, 2009 (Doc. 29, ¶ 1; Doc. 31, ¶ 1). The accident in question involved a vehicle driven by Plaintiff and one driven by a Thomas Thornton. (Doc. 29, ¶ 2; Doc. 31, ¶ 2). At the time of the accident, Plaintiff was covered by an automobile insurance policy issued by Defendant Progressive Northern Insurance Company, specifically Policy No. 10418087-8. (Doc. 1-2, ¶ 5; Doc. 2, ¶ 5). That policy provided underinsured motorist benefits of up to $100, 000.00 per person and $300, 000.00 per accident. (Id.) Plaintiff and Defendants disagree as to whether Plaintiff's claim that she was also covered by automobile insurance policies issued by Progressive Preferred Insurance Company and Progressive Casualty Insurance Company at the time of the accident in question is accurate. (Id.). The parties also disagree as to whether Progressive Northern Insurance Company Policy No. 10418078-8 (the "Policy") provided for stacked IUM coverage. (Doc. 29, ¶ 4; Doc. 31, ¶ 4). The stacking issue is significant because the Policy covered three vehicles. (Doc. 1-2, Ex. B; Doc. 29-2 at 3).

The parties agree that the accident in question was not caused by Plaintiff. (Doc. 1-2, ¶ 7; Doc. 2, ¶ 7). The parties also agree that Plaintiffs sustained physical injuries in the accident. (Doc. 1-2, ¶ 8; Doc. 2, ¶ 8). The parties dispute the severity of Plaintiff's injuries (Id.). Mr. Thornton's insurance carrier ultimately paid its liability limits of $250, 000.00 to Plaintiff on December 22, 2010. (Doc. 1-2, ¶ 24; Doc. 2, ¶ 24). Defendant Progressive Northern Insurance Company consented to the third party settlement with Thornton's carrier. (Doc. 1-2, ¶ 26; Doc. 2, ¶ 26).

By letter dated December 22, 2010, Plaintiff's counsel advised Defendants that "this tender [that of Thornton's insurer] does not satisfy the claims arising from the bodily injuries suffered by our client, and we anticipate filing an underinsured motorist claim." (Doc. 1-2, ¶ 25; Doc. 2, ¶ 25). By letter dated March 22, 2011, Plaintiff's counsel forwarded to Defendants certain documentation in support of her underinsured motorist claim. (Doc. 29, ¶ 19; Doc. 31, ¶ 19). Plaintiff last treated for her injuries incident to the auto accident on August 27, 2010 and there is no evidence that Plaintiff underwent additional surgery after the repair of her lacerations immediately following the accident. (Doc. 29, ¶ 27; Doc. 31, ¶ 27). Defendants' agent wrote to Plaintiff's counsel on April 28, 2011 and advised him that her review of the claim persuaded her that "the value of Ms. Connolly's bodily injury claim falls with the $250, 000.00 policy limit of the tortfeasor. (Doc. 29, ¶ 29; Doc. 3, ¶ 29).

On June 19, 2011, Progressive assigned the Connolly claim to Jane Kennedy, a Progressive claims representative since 2001. (Doc. 29, ¶¶ 30-31; Doc. 31, ¶¶ 30-31). During a June 29, 2011 telephone conversation, Plaintiff's counsel informed Ms. Kennedy that he would contact Plaintiff to discuss her injury status and would provide Progressive with an update on Plaintiff's treatment. (Doc. 29, ¶ 34; Doc. 31, ¶ 34). On seven occasions between August 11, 2011 and January 2, 2012, Ms. Kennedy left telephone messages for Plaintiff's counsel and she also wrote him letters dated November 29, 2011 and January 27, 2012 requesting contact to discuss Plaintiff's claim. (Doc. 29, ¶¶ 35-36; Doc. 31, ¶¶ 35-36). Plaintiff's counsel did not respond to any of these calls or letters. (Doc. 29, ¶ 37; Doc. 31, ¶ 37).

On February 13, 2012, Ms. Kennedy called Plaintiff's counsel and was informed by him that Plaintiff's surgery was still happening and that he would call her back to discuss the claim. (Doc. 29, ¶¶ 38-40; Doc. 31, ¶¶ 38-40). Plaintiff's counsel did not call Ms. Kennedy back between February 13, 2012 and March 28, 2012. (Doc. 29, ¶ 41; Doc. 31, ¶ 41). On March 28, 2012 and again on May 7, 2012, Ms. Kennedy left telephone messages for Plaintiff's counsel that were not returned. (Doc. 29, ¶¶ 41-43; Doc. 31, ¶¶ 41-43). Ms. Kennedy also wrote to Plaintiff's counsel on February 29, 2012 and March 28, 2012 requesting updates on the course of Plaintiff's treatment. (Doc. 29, ¶¶ 41-42; Doc. 29-1, Ex. A at 38-40; Doc. 31, ¶¶ 41-42). Plaintiff's counsel did not respond to any of Ms. Kennedy's calls or letters between February 13, 2012 and July 18, 2012. (Doc. 29, ¶ 43; Doc. 31, ¶ 43).[1]

On March 12, 2013, Plaintiff filed a Writ of Summons in the Monroe County Court of Common Pleas against all three Defendants. (Doc. 29, ¶ 46; Doc. 31, ¶ 46). On March 28, 2013, Ms. Kennedy spoke with Plaintiff's counsel's paralegal and requested updated information regarding Plaintiff's treatment status. (Doc. 29, ¶¶ 47-48; Doc. 31, ¶¶ 47-48). Progressive's counsel, Jennifer Levan, wrote to Plaintiff's counsel on July 22, 2013 and September 13, 2013 to request additional information to aid in evaluation of Plaintiff's UMI claim. (Doc. 29, ¶¶ 52-54; Doc. 31, ¶¶ 52-54). Plaintiff's counsel never provided a response to Ms. Kennedy's and Ms. Levan's telephone calls and letters between March 28, 2013 and October 8, 2013. (Doc. 29, ¶ 56; Doc. 31, ¶ 56). On October 8, 2013, Plaintiff filed a complaint in state court initiating this lawsuit. (See Doc. 1-2 at P. 3).[2] Neither Plaintiff nor her counsel had provided Progressive with any medical records or other documentation of her injuries since April 28, 2011. (Doc. 29, ¶ 57; Doc. 31, ¶ 57).

Plaintiff asserts in her complaint that she is entitled to stacked UIM coverage. (Doc. 29, ¶ 58; Doc. 31, ¶ 58). Defendant disagrees and contends that the Policy did not provide stacked coverage because Plaintiff's parents had rejected stacked UIM coverage at the inception of the Policy. (Doc. 29, Ex. H). Plaintiff contends that the aforementioned rejection is not dispositive because other policies written by Progressive which did not contain stacking rejections may have covered Plaintiff at the time of the accident. (Doc. 31, ¶¶ 59-60). Plaintiff claims that there is an ambiguity as to which policy controlled because Plaintiff has never provided a "certified" copy of the policies. (Doc. 30, 5-7). Plaintiff also claims that this refusal to provide certified copies of the relevant insurance documents and Defendants' refusal to conduct a reasonable investigation of Plaintiff's claim combine to demonstrate statutory bad faith on Defendant's part. (Id. At 12).

II. Summary Judgment Standard.

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A disputed fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d. 202 (1986). A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party, " and make every reasonable inference in that party's favor, Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). Nonetheless, the party opposing summary judgment must support each essential element of the claim with concrete evidence in the record. Celotex Corp. V. Catrett, 477 U.S. 317, 322-23, (1986). This requirement upholds the underlying purpose of the rule, which is to avoid a trial "in cases where it is unnecessary and would only cause delay and expense." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex, supra, at 322; Wisnieweski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). If the non-movant's evidence is merely speculative, conclusory, "or is not significantly probative, summary judgment may be granted." Anderson, supra, at 249-50 (internal citation omitted).

A plaintiff's mere belief is not enough to create a dispute of material fact sufficient to survive summary judgment. See Lexington Ins. Co. V. W. Pa. Hosp., 423 F.3d 318, 333 (3d Cir. 2005)(holding that speculation is not sufficient to defeat a motion for summary judgment). Our circuit has stated: "... summary judgment is essentially put up or shut up' time for the non-moving party; the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions ...


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