United States District Court, E.D. Pennsylvania
Marc Williams initiated this action against Defendant Liberty
Mutual Insurance Company alleging breach of contract and bad
faith in connection with Defendant's alleged failure to
provide adequate underinsured motorist coverage pursuant to
an insurance policy issued by Defendant to Plaintiff.
Defendant moves for partial summary judgment as to
Plaintiff's bad faith claim. For the reasons set forth
below, I will grant the Motion and enter judgment in favor of
Defendant on the bad faith claim.
following facts are undisputed unless indicated otherwise:
February 10, 2016, Plaintiff was involved in a motor vehicle
accident near the intersection of Kelly Drive and Midvale
Avenue, Philadelphia, Pennsylvania. The tortfeasor, Agustin
Lano, was operating a motor vehicle at approximately 7:30
p.m., when he rear-ended Plaintiff's vehicle. (Compl.
¶ 4.) Plaintiff settled the underlying claim with
Infinity Insurance, Esteban Ortiz Garcia, and Agustin Cano
for the policy limits of $15, 000. (Def.'s Mot. Summ. J.,
time of the accident, Plaintiff was insured under
LibertyGuard Auto Policy No. A06-288-903573-00 5 4 (the
“Policy”) issued by Defendant for the period June
27, 2015 to June 27, 2016. (Compl. ¶ 14, Answer ¶
14.) On July 13, 2017, Defendant's claim professional,
Matthew Timko, received and reviewed a new assignment for an
uninsured motorist (“UIM”) case relating to this
Policy. (Def.'s Mot. Summ. J., Ex. G.) Mr. Timko
immediately reached out to Plaintiff's attorney via both
phone and e-mail seeking additional information about
Plaintiff's UIM claim. (Id.) The following day,
Mr. Timko contacted Adrian Tomlin at Infinity Insurance, who
advised that Infinity had accepted liability on the
underlying claim and offered to settle for $15, 000.
(Id. Ex. H.) On the same day, Mr. Timko sent a
letter to Plaintiff's attorney acknowledging receipt of
Plaintiff's demand packet and requesting a telephone
statement from Plaintiff. (Id. Ex. I.) In addition,
Mr. Timko received a copy of the proposed release from
Infinity and granted consent to settle. (Id. Ex. J.)
15, 2017, Mr. Timko received an email from Plaintiff's
attorney advising of his $75, 000 demand. Mr. Timko responded
that, in order to evaluate this demand, he needed medicals
and a client statement. (Id. Exs. J, K.) Mr. Timko
received the requested information on July 22, 2017, but
noted internally that he still needed more information to
complete the evaluation, including tort status, cervical film
review, and a determination if there is a medical special
claim and/or wage loss claim (Id. Ex. L, M.)
August 1, 2017, Plaintiff's attorney emailed Mr. Timko
asking if he reviewed the demand packet. Mr. Timko responded
that he had, but was still in need of a statement from
Plaintiff, as well as MRI films, in order to determine
whether the injury caused a “serious impairment.”
(Id. Exs. N, O.) Counsel e-mailed back saying,
“Sounds to me like a lot of hoops to jump through just
so you can say you don't think there's a breach. Best
option seems to filing a lawsuit, which would then allow for
depositions, ime, film review, etc.” (Id. Ex.
O.) Mr. Timko responded that he would await the complaint.
(Id. Ex. N.)
August 1, 2017, Plaintiff filed a Complaint in the Court of
Common Pleas for Philadelphia County alleging both breach of
contract and bad faith. (Id. Ex. A.) Defendant
removed the action to federal court on August 28, 2017, and
timely filed an Answer with Affirmative Defenses.
(Id., Exs. B, D.) Defendant served Plaintiff with
Interrogatories and Requests for Production of Documents on
October 2, 2017, but Plaintiff did not respond until January
23, 2017. (Id., Exs. F, P.)
January 29, 2018, Plaintiff was deposed. (Id., Ex.
Q.) When specifically asked about his bad faith claim,
Plaintiff admitted that he had no knowledge of the
investigation that was done by Defendant in connection with
this claim. (Id. Ex. Q, at 63:3-64:9.)
Ahn, MD, PhD, FACS, FAOA authored and submitted an expert
report on February 28, 2018, following an independent medical
examination of Plaintiff on February 22, 2018. (Id.
Ex. R.) On March 2, 2018, Andrew Shaer, M.D. authored an
expert report based on his review of MRIs of Plaintiff's
left shoulder, cervical spine, and MRI lumbar spine from
September 17, 2016, October 26, 2016, and October 28, 2016
filed the current Motion for Partial Summary Judgment as to
Plaintiff's bad faith claim on April 16, 2018. Plaintiff
submitted an untimely response on May 16, 2018.
STANDARD OF REVIEW
judgment is proper 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 factual dispute is “material” only if it
might affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to
be “genuine, ” a reasonable fact-finder must be
able to return a verdict in favor of the non-moving party.
Id. To establish “that a fact cannot be or is
genuinely disputed, ” a party must:
(A) cit[e] to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),