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Berg v. Nationwide Mutual Insurance Company, Inc.

Superior Court of Pennsylvania

June 5, 2018

DANIEL BERG, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF SHARON BERG A/K/A SHERYL BERG Appellee
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, INC. Appellant

          Appeal from the Judgment Entered April 21, 2015 In the Court of Common Pleas of Berks County Civil Division at No: 98-813

          BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E. [*]

          OPINION

          STABILE, J.

         Appellant, Nationwide Mutual Insurance Company, Inc., appeals from the April 21, 2015 judgment against it on the bad faith claim of Appellee Daniel Berg, individually and as the executor of the estate of Sharon Berg a/k/a Sheryl Berg.[1] We vacate the judgment and remand for entry of judgment in favor of Appellant.

         The trial court recited the following facts in its June 21, 2014 opinion and verdict:

On September 4, 1996, Plaintiff, Sheryl Berg, the policyholder of a collision insurance contract with [Appellant], was driving her 1996 Jeep Grand Cherokee, insured by [Appellant], when she was hit by another vehicle; fortunately, neither party was injured in the collision. The only issue in this sixteen-year-old case is if [Appellant] breached its fiduciary obligation to Plaintiffs. The ensuing litigation marathon is a significant factor found by this court in resolving the bad faith claim brought by Plaintiffs against [Appellant]. [Appellant's] fiduciary obligation to Plaintiff arose by the parties entering into a contract whereby the physical damage coverage for the collision required [Appellant] to, inter alia, 1) pay for the loss or 2) repair or replace the damaged parts.
[Appellant's] first damage estimate, dated September 10, 1996, concluded that [Appellant's] vehicle should be 'totaled, ' the present value, at the time of the collision being $25, 000. However, that was not the final resolution. [Appellant] vetoed this appraisal and a second estimate, ten days later, called for the Jeep to be repaired. This saved [Appellant] approximately half of the $25, 000 expense to replace the Jeep. The repair process began immediately but took nearly four months until complete. [Appellant's] position to repair rather than total and replace the Jeep, never changed until the expiration of the lease in December 1998, twenty-eight months after the collision. Until [Plaintiffs] completed their remaining monthly payments on the lease agreement with Summit Bank, they were forced to drive what they claim is a defectively repaired Jeep. They further claim that the Jeep, after the four months of attempted repairs was not crashworthy, that it could not withstand a collision because of permanent frame damage. When all lease payments were paid by Plaintiff, [Appellant], in December 1998, suddenly changed its mind, totaled the car, and paid Summit Bank $18, 000 to settle the claim and obtain ownership of the Jeep. [Appellant's] $12, 500 repair quickly increased in total cost to [Appellant] to nearly double the replacement cost of $25, 000. However, that increase has proven to be only a drop in [Appellant's] expenditure bucket. The parties have been in litigation for over 16 years and [Appellant] has paid in excess of one hundred times the original Jeep replacement costs in legal defense costs alone.

Trial Court Opinion, 6/21/14, at 1-2.

         As is evident from the trial court's opinion, this case has a lengthy procedural history. Plaintiffs filed a writ of summons On January 23, 1998 against Appellant and Lindgren Chrysler-Plymouth ("Lindgren"), which initially handled the repair of the Plaintiffs Jeep (the "Jeep"). Pre-complaint discovery followed. On May 4, 1998, Plaintiffs filed a complaint against Appellant and Lindgren. Plaintiffs' causes of action against Appellant included breach of contract, negligence, fraud, conspiracy, violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-2(4)(xxi), 1968 P. L. 1224, as amended, and insurance bad faith, 42 Pa.C.S.A. § 8371. Plaintiffs amended their complaint eight times, raising and ultimately abandoning a class action. Plaintiffs filed their eighth amended complaint on October 25, 1999. Ultimately, the parties proceeded to a jury trial on fraud, conspiracy, and UTPCPL actions. The jury trial commenced on December 13, 2004. The jury rendered a verdict in favor of Appellant and Lindgren on all causes of action except the catchall provision of the UTPCPL.[2] The jury awarded Plaintiffs $1, 925.00 in compensatory damages from Lindgren and $295.00 from Appellant for the UTPCPL violation.[3] The basis for the jury's finding of a UTPCPL violation is not clear from the record.

         The second phase, a bench trial on UTPCPL treble damages[4] and bad faith, commenced on June 5, 2007. The trial court, Judge Albert A. Stallone, entered a directed verdict in favor of Appellant on Plaintiffs' bad faith claim and did not treble the jury's $295.00 UTPCPL award. The trial court entered judgment on December 7, 2007, and Plaintiffs filed a timely appeal.

         In an unpublished memorandum filed November 12, 2008, this Court concluded Plaintiffs waived all issues on appeal because they failed to serve the trial court with a copy of their Pa.R.A.P. 1925(b) statement. On October 22, 2010, a divided Supreme Court reversed and remanded. Berg v. Nationwide Mut. Ins. Co., Inc. 6 A.3d 1002 (Pa. 2010) (plurality).

         After remand, this Court issued a published opinion concluding that the trial court in three respects erred in directing a verdict on Plaintiffs' bad faith claim. Berg v. Nationwide Mut. Ins. Co., Inc., 44 A.3d 1164 (Pa. Super. 2012) ("Berg II"). First, this Court observed that the trial court entered a directed verdict in Appellant's favor because it believed Appellant's "Blue Ribbon Repair Program"-the program through which Appellant referred Plaintiffs to Lindgren for vehicle repairs-was not a part of the insurance policy and therefore not subject to a bad faith claim. Id. at 1169. We concluded that Plaintiffs' action against Appellant arises under an insurance contract in accord with section 8371, since insurers at all times must act in good faith towards their insureds regardless of whether loss claims are processed through a third-party repair facility or through a direct repair program. Id. at 1173. Second, the trial court held that Appellant's violation of the UTPCPL did not require a finding of bad faith. Id. We rejected this reasoning stating:

The Bergs have not argued that the phase one jury's finding against Nationwide on the UTPCPL claim "was sufficient in and of itself to support a finding of 'bad faith' on Nationwide's part." To the contrary, the Bergs have consistently argued, in our view correctly, that the jury's finding that Nationwide violated the UTPCPL constitutes some evidence of bad faith conduct by Nationwide. In other words, because Romano [v. Nationwide Mut. Fire Ins. Co., 646 A.2d 1228 (Pa. Super. 1994)] holds that bad faith conduct may be defined by reference to violations of statutes related to insurance practices, the jury's finding that Nationwide violated the UTPCPL constitutes some evidence of Nationwide's bad faith. Because the jury was not asked to specify precisely what conduct by Nationwide it found to be fraudulent or deceptive under the UTPCPL, the overall probative value of this evidence of bad faith may be somewhat limited.[5] But since a directed verdict may be granted "only where the facts are clear and there is no room for doubt, " […] this evidence of bad faith was sufficient to preclude the entry of a directed verdict in Nationwide's favor.

Id. at 1175 (some citation omitted). Thus, while the UTPCPL violation was sufficient to avoid a directed verdict, it was not sufficient, in and of itself, to prove bad faith. Id. Third, recognizing that when faced with a motion for directed verdict, a trial court must consider facts in a light most favorable to the nonmoving party and accept as true all evidence which supports that party's contention and reject all adverse testimony, we held it was error for the trial court to direct a verdict on the evidence introduced by Plaintiffs. Id. at 1170, 1175-76. Given the standard governing motions for directed verdict, we observed that Plaintiffs introduced evidence that Appellant sent the vehicle to another repair facility to avoid having to pay the cost of a total loss, Appellant returned the vehicle representing repairs had been successfully completed, even though its representatives had actual knowledge otherwise, and Appellant's utilized a "defense-minded" litigation strategy.[6] Id. at 1176. Accordingly, we remanded for a new trial where Plaintiffs again would have the burden to prove their bad faith allegations by clear and convincing evidence. Id.

         The new trial took place in front of Judge Jeffrey K. Sprecher. Judge Sprecher heard the testimony of only four damage witnesses, no additional evidence of bad faith by Plaintiffs, and otherwise relied on transcripts from the prior proceedings. In a 42-page opinion and verdict issued on June 21, 2014, Judge Sprecher found in favor of Plaintiffs on their bad faith claim and ordered Appellant to pay $18 million in punitive damages and $3 million in attorney's fees. Appellant filed a timely post-trial motion seeking entry of judgment in its favor or a new trial. The trial court denied that motion on March 19, 2015. The trial court entered judgment on the verdict on April 21, 2015. This timely appeal followed:

         Appellant raises four questions for our review:

1. Did the trial court err in finding, without record evidence much less clear and convincing evidence, and without hearing any of the relevant fact witnesses testify live, that Nationwide violated the insurance bad faith statute, where the record evidence showed, among other things: (a) the vehicle was repairable; (b) there was only one appraisal and it was not vetoed by [Appellant]; (c) [Appellant] was unaware of any problems with the vehicle when it was returned to [Plaintiffs]; and (d) [Appellant] did not delay the resolution of this matter by engaging in 'scorched earth' litigation pursuant to a claims manual and strategy that did not apply to [Plaintiffs'] claim?
2. Did the trial court err in awarding $18 million in punitive damages after a jury verdict of $295 when: (a) [Appellant] prevailed before the jury on [Plaintiffs'] common law fraud claim; (b) no one was hurt; (c) [Plaintiffs] chose to drive the vehicle for months and thousands of miles after an expert told them it was supposedly unsafe; (d) [Appellant] paid the insurance claim in full; (e) [Appellant] disposed of the vehicle only after obtaining court permission to do so and after storing it for eight years: and (f) the trial judge included in his opinions lengthy diatribes reflecting animus against [Appellant] and the entire insurance industry?
3. Did the trial court err in awarding [Plaintiffs] $3 million in attorneys' fees based upon the fees incurred by [Appellant], rather than the lodestar method required under Pennsylvania Rule of Civil Procedure 1717, and without making numerous necessary deductions?
4. Did the trial court err in awarding interest on an award comprised solely of attorneys' fees and punitive damages, and not on the amount of the underlying insurance claim, which [Appellant] paid in full in 1998?

Appellant's Brief at 4.

         We begin with an analysis of whether the trial court erred in finding that Appellant acted in bad faith under § 8371:

§ 8371. Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S.A. § 8371.

         The following standard governs our review of the trial court's verdict:

Our review in a nonjury case is limited to whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. We must grant the court's findings of fact the same weight and effect as the verdict of a jury and, accordingly, may disturb the nonjury verdict only if the court's findings are unsupported by competent evidence or the court committed legal error that affected the outcome of the trial. It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the factfinder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.

Mohney v. Am. Gen. Life Ins. Co., 116 A.3d 1123, 1130, (Pa. Super. 2015 2015), appeal denied, 130 A.3d 1291 (Pa. 2015). Because Plaintiffs prevailed before the trial court, we view the evidence and all reasonable inferences therefrom in a light most favorable to Plaintiffs. Rizzo v. Haines, 555 A.2d 58, 61 (Pa. 1989).

         Similarly, entry of judgment notwithstanding the verdict requires us to consider whether there was sufficient competent evidence to sustain the verdict. Condio v. Erie Ins. Exch., 899 A.2d 1136, 1141 (Pa. Super. 2006), appeal denied, 912 A.2d 838 (Pa. 2006). "Judgment notwithstanding the verdict "should be entered only in a clear case, where the evidence is such that no reasonable minds could disagree that the moving party is entitled to relief." Id. We must not substitute our judgment for that of the factfinder on matters of credibility and weight of the evidence. Id.

         The Pennsylvania General Assembly enacted § 8371 to protect insureds from bad faith denials of coverage. Gen. Accident Ins. Co. v. Fed. Kemper Ins. Co., 682 A.2d 819, 822 (Pa. Super. 1996). Thus, an insurer must act with utmost good faith towards its insured. Berg II, 44 A.3d at 1170 (citing Dercoli v. Pennsylvania Nat. Mut. Ins. Co., 554 A.2d 906, 909 (Pa. 1989)). "The duty of good faith originates from the insurer's status as fiduciary for its insured under the insurance contract, which gives the insurer the right, inter alia, to handle and process claims." Berg II, 44 A.3d at 1170 (citing Ridgeway v. U.S. Life Credit Life Ins. Co., 793 A.2d 972, 977 (Pa. super. 2002)). Bad faith applies to "those actions an insurer took when called upon to perform its contractual obligations of defense and indemnification or payment of a loss that failed to satisfy the duty of good faith and fair dealing implied in the parties' insurance contract." Toy v. Metro. Life Ins. Co., 928 A.2d 186, 199 (Pa. 2007). "[I]n order to recover in a bad faith action, the plaintiff must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. Rancosky v. Washington Nat'l Ins. Co., 170 A.3d 364, 365 (Pa. 2017). "[P]roof of an insurance company's motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim[, ]" though such evidence is probative of the second prong of the bad faith test. Id. "The clear and convincing evidence standard is the highest standard of proof for civil claims[.]" Grossi v. Travelers Pers. Ins. Co., 79 A.3d 1141, 1165 (Pa. Super. 2013). It "requires evidence clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy of the truth of the precise facts in issue." Id.

         "Bad faith claims are fact specific and depend on the conduct of the insurer vis à vis the insured." Condio, 899 A.2d at 1143. "[T]he fact finder needs to consider all of the evidence available to determine whether the insurer's conduct was objective and intelligent under the circumstances. Berg II, 44 A.3d at 1179. The insurer's conduct during litigation of a bad faith claim can itself support a finding of bad faith. Hollock v. Erie Ins. Exch., 842 A.2d 409, 416 (Pa. Super. 2004) (en banc), appeal dismissed, 903 A.2d 1185 (Pa. 2006). Furthermore, "[a]n insurance company may not look to its own economic considerations, seek to limit its potential liability, and operate in a fashion designed to 'send a message.' Rather, it has a duty to compensate its insureds for the fair value of their injuries." Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 382 (Pa. Super. 2002).

         This Court will reverse a finding of bad faith where the trial court's "critical factual findings are either unsupported by the record or do not rise to the level of bad faith." Brown v. Progressive Ins. Co., 860 A.2d 493, 502 (Pa. Super. 2004) (emphasis added), appeal denied, 872 A.2d 1197 (Pa. 2005). Furthermore:

The [factfinder] may not be permitted to reach its verdict merely on the basis of speculation and conjecture, but there must be evidence upon which logically its conclusion may be based. Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith.

Id. at 498 (quoting Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 886 (Pa. Super. 2002), appeal denied, 823 A.2d 145 (Pa. 2003)).

         Insurers must cover insureds for the fair value of their loss. See Toy, 928 A.2d at 199; Bonenberger, 791 A.2d at 382. Here, Appellant covered the cost of repairs to the Jeep. Nonetheless, "the focus in section 8371 claims cannot be on whether the insurer ultimately fulfilled its policy obligations, since if that were the case then insurers could act in bad faith throughout the entire pendency of the claim process, but avoid any liability under section 8371 by paying the claim at the end." Berg II, 44 A.3d at 1178 (emphasis in original). Section 8371 concerns the "manner in which insurers discharge their duties of good faith and fair dealing during the pendency of an insurance claim[.]" Id. (emphasis in original).

         Plaintiffs argue, and the trial court found, that Appellant acted in bad faith by repairing the Jeep rather than declaring the Jeep a total loss and compensating Plaintiffs for its value at the time of the loss. The parties agree that Lindgren did poor repair work. They dispute Appellant's role in and knowledge of the faulty repair job. In summary, the parties dispute (1) whether Appellant overrode Lindgren's initial total loss appraisal in order to save money; (2) whether Appellant forced Lindgren to repair the Jeep knowing the Jeep could not be restored to its pre-accident condition; (3) whether Appellant allowed Lindgren to return the Jeep to Plaintiffs knowing the Jeep was not crashworthy and therefore not safe to drive; and (4) whether Appellant's subsequent conduct-including its conduct of this litigation-was an elaborate cover-up of its prior bad faith conduct. We will consider these findings in turn.[7]

         1. The Initial Appraisal.

         Douglass Joffred, the body shop manager for Lindgren, did the initial appraisal of the Jeep. N.T. Trial, 12/15/04, at 619, 622. Lindgren is part of Nationwide's Blue Ribbon Repair Program ("BRRP"), pursuant to which Nationwide refers its insureds to BRRP shops, and the shops in turn offer discounted repairs to Nationwide. Id. at 631, 708-09. Joffred testified that the Jeep initially appeared to him to be a total loss, but that he ultimately decided it was repairable:

Q. You testified with regard to Plaintiffs' vehicle that when you first looked at it it quote on quote [sic] appeared to be a total loss; is that correct?
A. Yes.
Q. At that point you had not made a final determination, if in fact, the vehicle was a total loss?
A. No.
Q. You didn't really know one way or the other. It was just a first impression?
A. Correct.
[…]
Q. Is it unusual in what you do to have a situation where maybe at first you think it might be a total loss then you decide it is not a total loss?
A. No.
Q. It happens?
A. Yes.

Id. at 662-63.

         Despite his first impression, Joffred stated he prepared a repair estimate on September 10, 1996. Id. at 671; Trial Exhibit 6. The printed estimate is dated September 20, 1996 and reflects $12, 326 in parts and labor to repair the Jeep. Id. at 674, Trial Exhibit 6, at 8. Joffred testified that September 20, 1996 is the date the document was printed, not the date the estimate was prepared.[8] Id. at 674, 691. Joffred testified that his estimate did not change between September 10 and September 20, 1996. Id. at 672.

         Doug Witmer was Nationwide's claims adjustor who handled Plaintiffs' claim. N.T. Trial, 12/14/04, at 293, 295. Witmer and Joffred discussed options for the Jeep, and Witmer received Joffred's $12, 326 repair estimate. Id. at 303. Witmer believed the Jeep to be worth roughly $25, 000 or $26, 000. Id. at 338. Thus, the estimated cost of repair was roughly 50% of the actual cash value ("ACV") of the Jeep. Id. at 302-03; 336-37. Witmer said that if the repair costs approach 80% of a vehicle's ACV, the insurer will consider declaring a total loss. Id. at 336. In addition, Witmer and Joffred testified that a vehicle can be declared a "structural total loss, " regardless of ACV, if the vehicle cannot be repaired to its pre-accident condition. Id. at 365; N.T. Trial, 12/15/04, at 629.

         Appellant's claims log, produced as Trial Exhibit 8, includes several entries relevant to the initial appraisal of the Jeep's condition. An entry dated September 10, 1996 at 1:49 p.m. provides:

LOSS Reassigned for COLL on Daniel G. & Sharon E <Berg from 58HARRBR26LIND - TOTAL LOSS. . .CAR IS AT LINDGREN. . . . .THEY HAVE ESTIMATE.

Id. at 67[9] (capitalization in original) (emphasis added). Another entry from 1:50 p.m. on September 10, 1996-one minute later-provides:

SHOP ASKED FOR TEAR DOWN TIME TALKED TO RON GAVE OKAY IF TOTAL. . . . SHOP WILL FORWARD ESTIMATE AND PHOTOS.

Id. (capitalization in original) (emphasis added); N.T. Trial, 12/15/04, at 677. The claims log entry from 1:49 p.m. on September 10, 1996 evidences the existence of a repair estimate as of that date. The entry from 1:50 p.m. on September 10, 1996-by the words "if total"-evidences uncertainty as to whether the Jeep was a total loss or repairable. Witmer testified:

Q. And can you read that log note to the jury, please?
A. Says, Shop asked for tear down time. Talked to Ron. Gave okay, if total and a bunch of dots. Shop will forward estimate and photos.
Q. It says gave okay if total?
A. Correct.
Q. Does that suggest to you that maybe the car was not definitely a total?
A. Correct.

N.T. Trial, 12/14/04, at 331. Dean Jones, a managing claims consultant for Nationwide at the time, testified that the claims log entries do not confirm that the Jeep was a total loss and not repairable. N.T. Trial, 12/13/04, at 180, 213.

         The 1:50 p.m. entry also includes the words "tear down time." A "teardown" is the disassembly of the vehicle to confirm whether it is a total loss, and to find any damage not apparent from a visual inspection. N.T. Trial, 12/14/04, at 332; N.T. Trial, 12/15/04, at 677-78. According to Witmer, a declaration of total loss is premature without a teardown. N.T. Trial, 12/14/04, at 332. A body shop gets compensated for teardown time if a vehicle turns out to be beyond repair. Id.; N.T. Trial, 12/15/04, at 713.

         Plaintiffs produced the testimony of George Moore, whose Penn-Del Auto Body shop was part of Nationwide's BRRP program from 1992 through 1997 or 1998. N.T. Trial, 6/5/07, at 61-62. Moore confirmed that a teardown is often necessary to determine whether a vehicle is a total loss. Id. at 80-81. Moore also testified that Appellant gave its BRRP shops a specific form to fill out in the event of an obvious total loss, and that the shop would not prepare a repair estimate in the event of an obvious total loss. Id. at 73, 81.

         A claims log entry dated the following day, September 11, 1996 at 3:46 p.m., provides:

"0140 EVALUATION OF DAMAGES: VEHICLE DAMAGE - Berg, Daniel G & Sharon E called b/s they have est of 12k but feel veh should be a total loss since unibody is twisted told wil insp-called ph at home told of assignment."

         Trial Exhibit 8, at 65 (capitalization in original) (emphasis added). This last entry-created by Witmer-evidences a "12k" estimate that existed no later than September 11, 1996. It also evidences Witmer's understanding, as of September 11, 1996, that Joffred believed the Jeep could be a total loss despite Joffred's preparation of the "12k" repair estimate. Witmer testified that "called ph at home told of assignment" referred to Witmer's conversation with the policyholder, Plaintiff Daniel Berg. N.T. Trial, 12/14/04, at 356. Mr. Berg testified that he spoke to Joffred and Witmer and that he was aware that Joffred initially believed the Jeep to be a total loss. N.T. Trial, 12/15/04, at 725-26.

         Mr. Berg's testimony on the matter is somewhat contradictory. Initially, he testified that he wanted the Jeep to be repaired and that he told Joffred so:

Q. What were you told about your vehicle:
A. I was told by Mr. Joffred that it was a total loss and that, you know, that that was, I believe, the initial conversation.
Q. Did he tell you that he had appraised the vehicle as a total loss?
A. Yes, he did, uh-huh.
Q. He did?
A. Uh huh.
Q. And did you tell him you wanted the vehicle repaired?
A. I did, yes.
THE COURT: You told him you wanted it repaired?
THE WITNESS: Yes, correct.
THE COURT: Did you tell him that before he said it was a total loss or after?
A No, I think it was afterwards, I believe so.
THE COURT: In other words, you told him you would like to have it repaired before it was totaled?
THE WITNESS: Let's start over with that again because this is our eight year process but we want to make sure we are correct. We had a conversation. I thought it was a total loss and Mr. Joffred, I believe, agreed with me at that point. At some point the folks at Nationwide became involved.
Q. Did you speak with anyone from Nationwide about the condition of your vehicle?
A. I did. I was given I believe it was a [sic] Doug Witmer and his - the conversation was very short. And this may have been several days after this initial - I'm not sure. It could have been two, three, four days he said they are going to repair the vehicle.

Id. at 725-27.

         The following day, Mr. Berg retracted his testimony about wanting the Jeep repaired:

Q. You testified yesterday that when the car was taken to Lindgren you wanted the car repaired, right?
A. No, that was backwards. I had changed that initially.
Q. You first wanted it totaled?
A. It was Mr. Joffred who said the vehicle is totaled and then it was overruled, I believe, by the Nationwide folks. And at that stage I commented that I can't believe they are fixing that vehicle, but there is no one here that is going to stand up to Nationwide so I dropped it at that point. That's pretty much the criteria.

N.T. Trial, 12/16/04, at 808.

         Ultimately, Joffred and Witmer decided to send the Jeep to another shop, K.C. Auto Body, to have the frame repaired. If K.C. Auto Body was able to repair the frame, Lindgren would complete the remaining repairs to the Jeep. Joffred explained:

Q. You recall Doug Witmer from Nationwide coming out and looking at the vehicle with you, the Berg's vehicle?
A. Somewhat, yes.
Q. Do you remember discussing essentially what you are going to do to get this car repaired?
A. Yes.
Q. Mr. Witmer never told you at any time that this vehicle had to be repaired, did he?
A. No.
Q. He never twisted your arm and said there is no way that this is a total loss?
A. No.
Q. You both agreed, didn't you, that at least initially you would send the car out to have the frame pulled at K.C.?
A. Correct.
Q. See how it came back?
A. Correct.
Q. At least at that time you were of the opinion that it was worth a try to send the car out to have the frame pulled?
A. Yes.
Q. It wasn't definitely a total loss at that point?
A. No.
Q. And Nationwide didn't do anything to force you to do that?
A. No. Id. at 681-82. Joffred further testified that subletting a portion of a repair is common industry practice. Id. at 683, 698. Upon the return of the Jeep from K.C. Auto Body to Lindgren, Joffred believed the Jeep was repairable. Id. at 684.
Witmer's account of the conversation is consistent with Joffred's:
Q. Did you have a conversation with Mr. Joffred?
A. Yes. Yeah, we - he took me out to the shop. I inspected the vehicle, went over the estimate that they had prepared. During the course of the conversation he had mentioned that they don't have the machinery to repair the vehicle. I said, well, then it needs to go to a shop that can do these ...

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