DANIEL BERG, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF SHARON BERG A/K/A SHERYL BERG Appellee
NATIONWIDE MUTUAL INSURANCE COMPANY, INC. Appellant
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. [*]
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. We vacate the
judgment and remand for entry of judgment in favor of
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.
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. The jury awarded Plaintiffs $1, 925.00
in compensatory damages from Lindgren and $295.00 from
Appellant for the UTPCPL violation. The basis for the
jury's finding of a UTPCPL violation is not clear from
second phase, a bench trial on UTPCPL treble
damages 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.
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).
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. 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
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. 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.
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:
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
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.
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.
following standard governs our review of the trial
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).
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
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.
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.
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)).
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
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.
The Initial Appraisal.
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
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?
Q. At that point you had not made a final determination, if
in fact, the vehicle was a total loss?
Q. You didn't really know one way or the other. It was
just a first impression?
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?
Q. It happens?
Id. at 662-63.
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. Id. at 674,
691. Joffred testified that his estimate did not change
between September 10 and September 20, 1996. Id. at
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.
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.
LOSS Reassigned for COLL on Daniel G. & Sharon E <Berg
from 58HARRBR26LIND - TOTAL LOSS. . .CAR IS
AT LINDGREN. . . . .THEY HAVE ESTIMATE.
Id. at 67 (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
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?
Q. Does that suggest to you that maybe the car was not
definitely a total?
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.
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.
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,
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
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.
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
Q. Did he tell you that he had appraised the vehicle as a
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.
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.
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?
Q. Mr. Witmer never told you at any time that this vehicle
had to be repaired, did he?
Q. He never twisted your arm and said there is no way that
this is a total loss?
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.?
Q. See how it came back?
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?
Q. It wasn't definitely a total loss at that point?
Q. And Nationwide didn't do anything to force you to do
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
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