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Meyers v. Protective Insurance Company

United States District Court, M.D. Pennsylvania

January 27, 2017

THOMAS AND COLLEEN MEYERS, Plaintiffs,
v.
PROTECTIVE INSURANCE COMPANY Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before me is a motion to dismiss (Doc. 3) Plaintiffs Thomas and Colleen Meyers' (collectively “Plaintiffs”) Complaint (Doc. 1) filed by Defendant Protective Insurance Company (“Defendant”). Plaintiffs contend that Defendant insurance company failed to timely, objectively, and fairly evaluate Plaintiffs' insurance claims, and, as such, failed to comply with the statutory and common law duties of good faith and fair dealing in handling Plaintiffs' claims. For the reasons that follow, Defendant's motion to dismiss the Complaint will be granted in part and denied in part. All references to fiduciary duties are to be stricken from the Complaint. Plaintiffs' bad faith claims are dismissed without prejudice. However, Plaintiffs will be permitted to proceed on their derivative loss of consortium claim.

         I. Factual Background

         The facts, as set forth in Plaintiffs' Complaint (Doc. 1), are as follows:

         On January 21, 2014, Plaintiff Thomas Meyers, was delivering boxes for his employer, KM Michaels, Inc., when he was struck by a hit-and-run vehicle. Plaintiff claims that he sustained the following injuries:

concussion and post-concussion syndrome; including blurred vision; tinnitus; vertigo; memory loss; nausea; vomiting; headaches; seeing light and dark dots; irritability; moodiness; sleeping problems; hearing loss in his right ear; right rotator cuff tear with tendinosis of the supraspinatus tendon and biceps tenosynovitis; peripheral nerve damage bilateral upper extremities, confirmed via EMG: exacerbation of spinal and disc problems; C5 radiculopathy, more so on the right, radiating down into his fingers; and L4-5 disc protrusion.

         The Complaint alleges that, on April 23, 2014, Plaintiff provided notice to Defendant, Protective Insurance Company, of his uninsured motorist claim. Nearly two years later, Plaintiff advised Defendant that he had been unable to identify the driver of the vehicle who struck him, and that he would continue his pursuit of his uninsured motorist claim absent any information regarding the hit-and-run driver.

         On February 1, 2016, Plaintiff provided Defendant with a detailed liability and damages package, including hundreds of pages of Plaintiff's medical records. There, Plaintiff submitted a lien for medical expenses and wage loss in excess of $122, 000. This package went without a response for "many months." On March 9, 2016, Plaintiffs requested that Defendant advise of the status of Defendant's insurance claim review. Defendant failed to provide any such status. On March 31, 2016, Plaintiff again wrote to Defendant requesting the status of Defendant's evaluation, as none had previously been forthcoming, but this correspondence, again, went without the courtesy of a response.

         On April 18, 2016, Plaintiff provided a blanket authorization for Defendant to obtain certain investigative records that Defendant desired, and requested a copy of all records pursuant to that authorization, which Defendant provided a month later. During this time, Plaintiff alleges, despite requests on March 9, 2016, March 31, 2016, April 20, 2016, and April 21, 2016, Defendant continuously failed to advise Plaintiff of the status of the investigation and evaluation.

         On May 26, 2016, Defendant offered Plaintiff $225, 000 to settle the claim. According to Plaintiff, this amount was unreasonable and not in consideration of Plaintiff's alleged damages, including a growing $122, 000 medical lien, past and future pain and suffering, as well as the fact that Plaintiff was unable to work. Within a week, Defendant increased its offer, which, according to Plaintiff, again failed to account for Plaintiffs' claim for past and future lost wages, future pain and suffering, and past and future medical expenses, "all of which spoke to a verdict potential far in excess of Defendant's policy limits", which are $1 million. On June 9, 2016, however, Plaintiffs advised "that they would be willing to settle Plaintiffs' claims within the policy limits."

         Meanwhile, Defendant retained the services of attorney Nigel A. Greene to represent its interests in the matter. Upon his retention, Mr. Greene indicated to Plaintiffs' counsel that he would require additional time to review the claim. Mr. Greene immediately requested a medical evaluation, and, within a month, allegedly requested three more medical evaluations of Plaintiff.

         The Complaint further alleges that, on June 15, 2016, Mr. Greene "wrote to Plaintiffs spewing out several falsities designed solely to devalue Plaintiffs' claims, including that there was a 'delay in reporting the accident'; that Plaintiff has significant 'medical history'; that there was only 'minor property damage'; and that there were 'other relevant factors.'”

         In light of the foregoing, on July 25, 2016, Plaintiffs Thomas and Colleen Meyers filed the instant Complaint sounding in breach of contract, common law bad faith, statutory bad faith, and loss of consortium, alleging that Defendant acted in bad faith for the following reasons:

a. Failing to timely pay Plaintiff's valid uninsured motorist claim;
b. Failing to timely and properly investigate Plaintiff's valid uninsured motorist claim;
c. Failing to timely cooperate with and respond to Plaintiff's authorized representatives about Plaintiff's claim;
d. Failing to properly and fairly negotiate Plaintiff's claim with Plaintiff's authorized representatives;
e. Failing to have a proper factual and legal basis for its alleged ongoing investigation;
f. Failing to timely schedule the so-called "review meeting" for the claim;
g. Failing to timely evaluate Plaintiff's claim despite receiving a blanket authorization for Plaintiff's records;
h. Failing to communicate with Plaintiff the status of Defendant's ongoing investigation and reasonable explanation for the delay, despite Plaintiff's requests for same;
i. Purposely misleading Plaintiff to believe a reasonable settlement offer would be forthcoming even though it was not;
j. Ignoring communication requests and requests for information from Plaintiff and Plaintiff's authorized representatives;
k. Refusing to agree to reasonably pay Plaintiff's valid uninsured motorist claim without any factual or legal basis for such refusal;
l. Elevating Defendant's financial interests and considerations over the interests of their insured;
m. Failing to comply with the provisions of the Unfair Insurance Practices Act and accompanying regulations;
n. Failing to comply with the provisions of the Unfair Claims Practices Settlement Act;
o. Failing to act promptly upon written or oral communications with respect to claims arising ...

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