*1 Sheryl Berg, BERG Daniel
H/W, Appellants INSURANCE
NATIONWIDE MUTUAL INC.,
COMPANY, Appellee. Pennsylvania.
Superior Court Oct. 2012.
Argued 17, 2012. April
Filed June
Reargument Denied *3 upset.”
“caused collision or Jeep elected to take the to Lindgren Chrysler-Plymouth, Inc. (“Lindgren”), a facility in participating repair Nationwide’s Repair Program” “Blue Ribbon Service (“BRRP”). The BRRP is Nationwide’s di- repair program, pursuant rect to which claimants take their vehicles to a des- ignated repair facility “Blue Ribbon” *4 appraisal repair. and The BRRP is an to the more option traditional method of processing, claims where the claimant ob- tains an appraisal third-party from a re- Pottstown, Benjamin Mayerson, J. for pair shop repair process. to institute the appellants. 30, 1996, On or about December after ap- Nelson, Bell, appel- Micheál R. Blue for proximately four repairs, months of lee. Bergs’ finally vehicle was returned to them. DONOHUE, BEFORE: OLSON and
STRASSBURGER*, JJ. According Bergs, to the in October 1997 they telephone received a call from David DONOHUE, OPINION BY J.: Wert, employee a former of Lindgren, who (col- Appellants, Sheryl Berg Daniel and possible advised them of repair structural lectively, “Bergs”), appeal from the failures to their Jeep. January On entry judgment of after the trial court the Bergs present commenced the action Appellee Nationwide In- granted Mutual through the of a writ filing of summons (“Nationwide”) Company, surance Inc.’s against Lindgren and Nationwide. After motion for directed verdict on the pre-trial discovery, May on 1998 the Pennsylvania’s claims under bad faith in- Bergs complaint, filed their initial and af- statute, § surance 8371. For Pa.C.S.A. ter a preliminary objections, series of herein, the reasons set forth we vacate the (the complaint final amended judgment and remand the for a new case eighth) was filed on October 1998. It trial. against asserted causes of action Lindgren contract, September On negligence, for breach of breach fraud, Jeep warranty, Grand Cherokee was involved in an of common law conspira- damage. cy, accident and sustained extensive and violation of the catchall provision of accident, On the date of the Uniform Trade Practices and Consum- 201-2(4)(xxi) Law, § were insured a Nationwide automobile er Protection 73 P.S. alia, (“UTPCPL”).1 covered, policy that inter losses against It asserted claims * Judge assigned Superior 201-2(4)(xxi). Retired Senior to the § 73 P.S. Court. competition' ‘Unfair and 'un- methods deceptive practices’ any fair or acts or mean following: one or more of the (xxi) Engaging any other fraudulent or deceptive conduct which a likeli- creates misunderstanding.
hood of confusion or of contract, law fraud claim ne- favor on the common negli- for breach Nationwide fraud, vio- a similar verdict on the conspiracy, cessitated common law gence, UTPCPL, opin- for insurance as well. In a written and lation of the UTPCPL ion, two rea- faith, disagreed § 8371. the trial court bad Pa.C.S.A. First, the trial court ruled sons. trial, court bifurcated The trial Nationwide had waived this Lindgren and trial consisting jury on phase the first argument when declined fraud, law for common claims jurors questioned to have the court’s offer liability under conspiracy, and inconsistency in regarding possible UTPCPL, a bench the second 4/7/05, their verdict. Trial Court of treble trial on the issues Second, Pennsylvania’s detailing at 10. claims and for UTPCPL consistency strong presumption faith statute. The first the insurance bad verdicts, trial court concluded that the 13, 2004, and December phase began on decided, have “that it would be jury could trial, jury returned a days after five to find that Nationwide appropriate more finding Lindgren that both verdict *5 in fraudulent or Lindgren engaged and provi- had violated the catchall Nationwide in a deceptive conduct consumer or busi- UTPCPL, in favor of Lind- of the and sion ness transaction which created a likelihood on the common law gren and Nationwide misunderstanding, confusion or rather jury The conspiracy claims. fraud and law at simply than common fraud.”3 Id. 9. $1,925 damages of compensatory awarded Nation- against and against Lindgren $295 trial phase began The two on June wide. days testimony, and after four for a Nationwide moved directed verdict. both filed mo-
Lindgren and Nationwide 10, 2007, July On after the submission of relief, arguing that the post-trial tions for argument, briefs and oral the trial court jury’s verdict was inconsistent. their motion directed granted Nationwide’s Lindgren and Nationwide re- arguments, Allstate, on the claims under the verdict 750 A.2d lied on Booze v. (42 insurance bad faith statute Pa.C.S.A. proposition for the (Pa.Super.2000), 8371).4 29, 2007, § On October liability provision under the catchall of the post- court denied the motion for required finding a of common UTPCPL relief, entry after on liability judgment law to un- trial and prerequisite fraud as 7, 2007, According Lindgren Bergs timely to December filed a der the statute.2 Nationwide, appeal.5 in their notice of jury’s and decision contrary. separate recently held to the 4. The trial court entered a order This Court granting against Bergs Masterpiece a verdict on their Bennett v. A.T. Homes LLC, 145, 155, damages Broadsprings, claim for treble under the UTPCPL. (“[C]atchall Bergs challenged ruling (Pa.Super.2012) provision liabili- The have not this and thus, ty can arise when the the treble issue is not before UTPCPL] [under alleges deceptive Similarly, party ap- neither plaintiff either fraudulent or this Court. has conduct.”) original). pealed any aspect jury in the (emphasis in of the verdicts phase portion of the trial. one decision, Lindgren 3. Prior to the trial court’s January paid compensatory damages 5. On the trial court issued assessed directing jury an order counsel to file a concise and was dismissed from the case. appeal Lindgren participant complained in the statement of errors of on thus was not 1925(b). party pursuant Pa.R.A.P. On March phase two trial and is not a to this to appeal. the trial court filed a "Statement Opinion,” in which it Lieu of Memorandum required our con- produce raise five issues for insurer to all and determination: protected sideration claim file materials by at- torney-client privilege, and where a grant 1. Was it reversible error to second Order was directed verdict on the issue of stat- entered after the faith, sanctions, jury after the found insured filed a utory bad motion for and, notwithstanding the insurer’s conduct violated the two Or- ders, provision catchall the insurer nevertheless con- in the first UTPCPL tinued to conceal the evidence via a trial. privilege. false assertion of 2. Was it reversible error to rule that 5.Was it error permit reversible lawsuit, stemming from a first attorney-client insurer to use the claim, party collision was not ‘an ac- privilege as a shield and sword. arising poli- tion under an insurance Specifically, was it reversible error cy,’ simply because the insured[s] to permit the insurer to conceal nu- agreed to have their collision dam- merous claim file entries age appraised repaired by an attorney-client privilege, asserted repair program insurer’s collision then permit to also the insurer identify which the insurer does not to offer the same claim file as evi- in the of insurance. prove dence to it had no knowledge it preclude 3. Was reversible error to repair issues inasmuch as there evidence, non-jury phase in a repair was no reference to issues *6 trial, bifurcated when that evidence the redacted claim file. prove was relevant to the insurer Bergs’ Brief at 5-6. secret, well implemented its but doc- For their two appeal, first issues on strategy
umented
to deter contin-
Bergs contend that the trial court’s two
gency-fee lawyers
representing
from
entering
reasons for
a directed verdict in
by
claimants with small value claims
favor of Nationwide were in error.
In its
making
litigation
too expensive.
1925(a) opinion,
Pa.R.A.P. Rule
the trial
Specifically, did the trial court abuse
court indicated that it entered a directed
precluded
its discretion when it
from
(1)
evidence,
verdict because:
the BRRP
“is not a
during
non-jury trial
$922,654.25
part
in-
of Nationwide’s automobile
phase, the
insurance
paid
attorneys
surer
its
to
policy”
Pennsylvania’s
defend
and thus
bad faith
this lawsuit over a failed collision
apply
insurance statute does not
in this
(2)
claim.
case, and
the case of Romano v. Na
Co.,
tionwide Mut. Fire
Ins.
Pa.Super.
4. Was it
435
reversible error to find the
545,
(1994),
646 A.2d
apply
1228
does not
right
waived their
to ob-
insured[s]
in this
jury’s
tain
case and thus the
verdict
discoverable
file entries
improperly
against
redacted
to
a
a
Nationwide for
violation of the
attorney-client
provision
false assertion of
catchall
of the UTPCPL does not
privilege, where an Order of
require
finding
against
record
of bad faith
Na-
copy
personal
Litigation
stated that it had not received a
service on the trial court.
1925(b)
ensued,
Bergs'
resulting
Rule
concise statement and
over this issue
in final reso-
that,
result,
all
as
issues were waived and
lution in the
favor
a decision
via
appeal
quashed.
Supreme
Berg
should be
The
our
Court
v. Nationwide
record,
Co.,
341,
Inc.,
petition
modify
then filed a
Mut. Inc.
607 Pa.
tionwide. in here, company and the we con- an insurance forth tween set For the reasons Nat. Pennsylvania in both of Dercoli v. court erred sured.” clude that 477, Co., 471, 554 A.2d 520 Pa. Mut. Ins. respects. these 906, (quoting Fedas v. Insur 909 standards of begin with our We Pennsylva Company State ance of of en reviewing the trial court’s review. 559, 285, 555, 286 nia, Pa. 151 A. 300 verdict, “our a directed try of a motion for (1930)). Moreover, company the insurance determining limited to review is scope of with its insured “on duty has a to deal its discre trial court abused whether the times, basis, act and at all fair and frank of law that an error tion or committed Id.; Hollock v. Erie Ins. good faith.” the case.” the outcome of controlled (Pa.Su A.2d 416 Exchange, 842 Torosian, A.2d 393 759 v. Fetherolf an insurer has a (holding that per.2004) verdict (Pa.Super.2000). “A directed good the utmost faith duty to act with facts are clear only where the granted be insured). duty good its towards for doubt.” Id. there is no room originates from the insurer’s status Lear, Eddy, (quoting Inc. fiduciary for its insured under as a wheth deciding “In (Pa.Super.2000)). contract, gives which the insurer insurance verdict, a motion for a directed grant er to alia, process right, to handle and inter facts in consider the the trial court must See, Ridgeway v. e.g., claims. U.S. Life nonmoving light most favorable to Co., A.2d Ins. Credit Life true all evidence accept and must as party this implies The law (Pa.Super.2002). party’s contention supports which con- faith into the insurance duty good testimony.” all reject adverse tract, the “breach of such an and thus in- obligation constitutes a breach of the hand, interpre On the other Gray contract....” v. Nationwide surance question is a tation an insurance Co., 422 Pa. Mut. Ins. law to resolve. Travelers *7 (1966); The St. Paul 11 The Birth Ctr. v. Castegna v. Casualty Surety Company & 400, 376, Cos., 386, 456, Pa. 787 A.2d 385 ro, 459 567 565 Pa. 772 A.2d (2001) the breach of the obli- (2001). review, therefore, (holding that Our standard of good to act in faith “constitutes gation Co. v. Pro plenary. is Continental Cas. contract”). (Pa.Su Machine, 1111, breach of the insurance 916 A.2d 1118 interpreting language In per.2007). 1990, legislature In our created statu- policy, goal is “to ascer an insurance remedy by bad faith conduct an tory parties intent as manifested tain the company: insurance language of the written instru poli- § Actions on insurance Kane v. State Farm Fire and ment.” cies (Pa.Su Co., 1038, Casualty 841 A.2d 1042 (citation omitted). Supreme Our per.2003) arising In action under an insurance an “polestar has instructed that the Court the insurer if the court finds that policy, language ... inquiry our is in- in bad faith toward the has acted v. policy.” Madison Const. Co. insurance sured, may take all of the the court Co., 595, 557 Pa.
Harleysville Mut. Ins. following actions: (1999). 606, 100, 106 735 A.2d (1) the amount of Award interest on the claim was the claim from the date long has rec Supreme Our in an amount by the insured dealing “the utmost fair made ognized that 6/3/11, prime (emphasis original). to the rate of interest at 9 equal This plus 3%. statement contains at least two basic mis- First, understandings. (2) section punitive damages against Award upon any guaran- 8371 claim is not based the insurer. program. tees associated with the BRRP attorney court costs and Assess note that 11 of We Count final against fees the insurer. complaint, amended “Insurer Bad entitled § 42 Pa.C.S.A. 8371. Faith, Nationwide,” v. does not Plaintiffs case, early In an this Court even mention the Eighth BRRP. Amended Dictionary looked to Black’s Law to define ¶¶ Moreover, 89-92. Complaint, as dis- “any faith” as frivolous or unfounded “bad cussed detail later Ter pay proceeds policy.” refusal to Bergs specific offered evidence of Nation- letsky Property v. Prudential and Cas. alleged wide’s bad faith comply failure to Co., 108, 680, 437 649 A.2d Pa.Super. Ins. obligations its contractual under the denied, (1994), appeal 688 540 Pa. 659 Bergs’ insurance upon contract. Based (1995); A.2d 560 see also Adamski v. All our review of the on appeal, record (Pa.Su Co., state Ins. 738 A.2d brief, Bergs’ phase two trial post-trial their cases, subsequent have per.1999). we brief, accompanying motion and and their held that to succeed on claim under brief, it appellate appear does not that the 8371, the insured must section show Bergs alleged attempted have ever or “the insurer did not have a reasonable prove that their section 8371 claim relies denying policy basis for benefits under the upon guarantee a failure to repairs under recklessly knew of and that the insurer or fact, Bergs the BRRP. In have consis- disregarded its lack of reasonable basis in tently alleged contrary. to the See, denying e.g., the claim.” v. O’Donnell (Pa.Su Co., Allstate Ins. 734 A.2d Second, bad claims are Bakos, per.1999) (citing MGA Ins. Co. premised on any contention that Na- (Pa.Super.1997)). 699 A.2d To “part tionwide’s BRRP is a their of’ auto- necessary constitute bad faith it is not that mobile insurance with Nationwide. pay the refusal to be fraudulent. Howev Nationwide, contrary, To the it was er, negligence judgment mere or bad is not through the testimony expert of its wit- Bonenberger bad faith. v. Nationwide nesses, that introduced the notion (Pa.Su Co., Mut. Ins. from, BRRP was “different” and thus *8 per.2002). Id. The insured must also show of,” “part Bergs’ policy. somehow not duty that the insurer breached a known trial, particular, In at two for- (i.e., duty good faith fair and deal Pennsylvania mer Insurance Commission- ing) through a motive of self-interest or ill er Foster at length Constance testified will. Id. that the BRRP was part neither a Bergs’ policy nor an endorsement to that In explication of its first reason policy, “separate” and was instead a ser- entering for a directed verdict in Nation vice that favor, provided Nationwide offered that wide’s the trial court stated as fol a repair guarantee to those who chose to lows: claim for faith’ “[T]he is ‘bad N.T., 6/5-11/07, use it. premised upon at 626-27. Ac- Nationwide’s failure to Foster, cording to when guarantee repairs that were made to a Nationwide cus- [BRRP], tomer their vehicle under the which utilized the services of a BRRP they allege part facility, is a of their provided directly automobile it was not service policy.” insurance Trial under the terms an policy— insurance alleged breach of its contrac- under an Nationwide’s “arising service was not and thus in in- of section as contained purposes for tual duties policy” insurance words, Foster the duties of policy, including In other Id. at 627. surance 8371. dealing. Eighth at a BRRP faith and fair processed good claims opined that ¶¶ 6, under an In their arising Complaint, claims 88-93. facility are not Amended can- Bergs allege and thus Nationwide complaint, final amended insurance accident, any they customer for con- subsequent such to an not be liable that in bad faith under sec- acting damages for to assert a claim for tacted Nationwide Another Nation- at 627-28. policy, 8371. Id. their and payment tion under prompt Bashore, likewise testi- Bruce expert, wide in faith in not that Nationwide acted bad program “separate BRRP is a that the equita- fied fair and effectuating prompt, “the “nothing to do” that it had completely” and Bergs’] claim where [the ble settlement with Nationwide. Bergs’ policy statutory and contractual [Nationwide’s] Id. at 524. reasonably clear.” Id. at duty to do so is ¶¶ 9, may form legal 93. Such theories error, its adopted trial court as
In
“arising under an
the basis for a claim
theory
novel
of statu
conclusion this
legal
policy” under section 8371.
insurance
has inter
tory interpretation. This Court
“arising under an insur
preted
phrase
Bergs’ participated
that the
Evidence
provide
in section 8371
policy”
ance
way
alters the conclusion
the BRRP
no
application
any case
the statute’s
case is one within
that their claim this
forth an
writing setting
originates “from
meaning
filing
of section 8371. After
and insur
between the insured
agreement
Nationwide, the
had
their claim with
pay
would
the insured
er that the insurer
ap-
to have their vehicle
the choice either
circum
happening of certain
upon the
representative
a Nationwide
praised
1174 an insurance due under amounts with that recom- tially in accordance the substantially re- less than by offering insured. Nationwide by the mended umpire’s the in ultimately amount of recovered pay to the amounts due and fused to have to file a award, insured forcing the 40 by persons.’ such brought actions Pleas. of Common 1171.5(a)(10)(vii). in the Court petition § While the P.S. for counsel fees moved The insured then refer to an specifically does not UIPA 8371, contending that to section faith,’ Supreme the insurer’s ‘bad pay umpire’s to the refusal Nationwide’s term to Pennsylvania has utilized that the Unfair rights of tion to hear claims insured was tions of the UIPA. award enforce “may point to ‘bad (“UIPA”), 1230. conduct court denied This Court the issue the UIPA without the in bad faith action and thus 40 UIPA. P.S. disagreed, the motion on Insurance was whether an insured asking did not § need for based on Instead, we concluded per Romano, 1171.1 faith’ conduct as de- se indicating that the it since had et permit Practices Act litigation trial court to alleged seq. no it violated The trial jurisdic- grounds A.2d at private viola- was the trial court lacks Although sponte or mit a tions of the UIPA the rules of reach. and insurance site determining whether der describe Nationwide, the various jurisdiction alleged trial court to conduct within upon acted [*] conduct statutory regulations, we find to provisions in ‘bad faith.’ impose or the [*] consider, request constituting construction an [*] regulations sanctions un- insurer, of the either sua UIPA’s party, requi- UIPA viola- per- like in of the UIPA as provisions fined in various court, when evaluat- We find that a trial recovery under Pa.C.S.A. a basis for petition or motion for ing a Section 8371 § in question 8371.” Id. answered this We costs counsel fees for the ‘bad and/or affirmative. the Black’s noting After (1) insurer, may look to: faith’ of an faith” in Dictionary Law definition of “bad construing the statute and other cases (upon context which we the insurance (2) generally; the law of ‘bad faith’ Terletsky), we held amplify would later term(s) used plain meaning follows: as (3) statute; upon other statutes and/or may of Section 8371 parameters (like subjects the same or similar by reference to analo-
also be discerned
case).
UIPA this
Spe-
law.
gous Pennsylvania insurance
omitted).
(citations
cifically, ‘when the words of a statute
Romano,
Accordingly, under
the Gen-
explicit,
are not
the intention of
damages for an insurer’s
plaintiff seeking
by
be
Assembly
eral
ascertained
may,
faith
under section 8371
bad
conduct
...
considering, among other matters
methods, at
to other available
addition
or
upon
... other statutes
the same
demonstrating
tempt
prove bad
§
subjects.’
similar
Pa.C.S.A.
violated one or more
that the insurer has
un-
Section 1171.5 of the UIPA defines
Pennsylvania insur
provisions of related
competition and unfair
fair methods of
even if those
regulations,
ance
or
statutes
deceptive
practices
or
acts or
private rights
provisions
provide
do not
Particularly,
of insurance.
business
case,
1171.5(a)(10)(vii)
present
of action.
In the
above,
as noted
Section
Nationwide,
alia,
by, inter
contend that
‘[cjompelling
from
prohibits
insurers
appraisal
total loss
on
interfering
recover
with a
persons
litigation
to institute
*11
tently argued, in our view
returning
correctly,
later
it to them
that
their vehicle and
despite known structural deficiencies
jury’s finding
the
that Nationwide violated
condition,
dangerous
it in a potentially
left
the UTPCPL constitutes some evidence of
(1)
statutory provisions:
violated two such
by
bad faith conduct Nationwide. In other
UTPCPL,
catchall
of the
provision
words, because Romano holds that bad
201-2(4)(xxi),
Pennsylvania’s
§
P.S.
may
by
faith conduct
be defined
reference
Physical
Appraiser
Damage
Motor Vehicle
to violations of statutes related to insur-
(the
Act,
§§
“Appraisers
63 P.S.
861-63
practices,
jury’s finding
ance
that Na-
Act”).
tionwide violated the UTPCPL constitutes
mind,
points
these
in
we conclude
With
some evidence of Nationwide’s bad faith.
multiple
that the trial court erred in
re-
jury
Because the
was not asked to specify
in Romano clear-
First, this
spects.
precisely
what conduct
Nationwide it
ly
deciding
was
a case under section
deceptive
found to be fraudulent or
under
as the entire thrust of our decision was to
UTPCPL,
probative
the overall
value
jurisdictional scope
determine the
of sec- of
evidence of
bad faith
be some-
and,
doing,
tion 8371
in so
to define the what limited. But since a directed verdict
provision.
faith” under that
phrase “bad
bemay
granted “only where the facts are
Romano,
(“[A]
court,
Second, Bergs have not ar instances bad faith conduct on Nation gued phase jury’s finding one Toy, part. wide’s our Supreme Court against Nationwide on the UTPCPL recently reaffirmed that “was sufficient in and of itself to term “bad support faith” under finding part.” of ‘bad faith’ on Nationwide’s section 8371 concerns “the contrary, Bergs To the duty good dealing have consis- faith and fair in the Verdict, Bergs argument, 7. The made this some or tionwide’s Motion for Directed it, variation to the trial court on several must have determined that the evi- [c]ourt giving jury's finding occasions in connection with the two dence rise to the of fraud See, proceedings. e.g., Bergs' Plaintiff Posi- deceit was relevant to whether and/or Bergs good tion on Nationwide’s Motion for Directed Ver- dict, 6/13/07, Nationwide treated the ("The jury’s finding dealings.”); at 11 and with fair see also ("Inasmuch engaged Nationwide fraudulent de- Brief at 31 as the secured a and/or ceptive during appraisal jury finding engaged conduct and re- that Nationwide in fraud claim, Bergs'] pair handling deceit [the collision in the and/or [UTPCPL], loss, finding supports a of insurer bad verdict in insured directed favor of the faith.”); Plaintiff Motion for on the Post-Trial insurer issue of insurer bad faith is Relief, 7/20/07, ("Thus, erroneous.”). granting completely Na- *12 1176 knowledge actual had representatives manner in which its and the contract
parties’ had failed and that repairs obligation ... to discharged its an insurer structurally unsound. frame was vehicle’s party claim in the first for a loss pay ¶ 6; Bergs’ Amend- 41, Facts at at Uncontested at 928 A.2d Toy, 593 Pa. context.” 12/13-17/04, 6; N.T., at Trial Brief at ed and Casualty v. Aetna (citing 199 Cowden 387-88; knowledge, Despite 892-96. 468, 223, Co., 459, 134 A.2d 389 Pa. Surety failed to advise again Nationwide Pennsylva D Ambrosio 227 and vehicle, with their Bergs any problem Co., 494 Pa. Ins. nia Nat. Mut. Cas. Bergs continuing in its according to the (1981)). 968 a total loss having to avoid to incur effort by the introduced of the evidence Much policy. under the insurance payment regarding trial the bifurcated Bergs at 6-7; N.T., Trial Brief at Bergs’ Amended with in connection Nationwide’s conduct 12/13-17/04, Finally, as dis- at 387-88. repair of them claim satis- processing in connection with the cussed infra of bad under Toy fies the definition appeal, Bergs attempted on third issue of- example, Bergs For section 8371. suit, they to evidence that when filed offer that when to show fered evidence litigation strategy utilized a Nationwide repairs, Lindgren vehicle to took their pol- with emphasizing cooperation a lack of Joffred) (Mr. initially Doug appraiser ag- icyholders retaining legal counsel frame too that the vehicle’s was concluded gressive handling efforts in cases repaired. could not be twisted and thus $25,000 per- to create a “defense-minded” 2-3; N.T., Trial Brief at Bergs’ Amended community. legal in the ception 299, 629, 12/13-17/04, 209, 241, 729. Ac- at N.T., 6; Trial Brief at n. Amended 6-7 however, the evi- cording Bergs, to the 6/5-11/07, at 106-111. that Nationwide reversed this dence shows reasons, we conclude For all of these (without advising Bergs) appraisal and entering the trial court erred in that the vehicle be sent to instead ordered verdict in Nationwide’s favor directed repair facility attempt another to structur- section 8371 claims. respect to Amended Trial repairs. Bergs’ al frame result, we reverse the trial court’s As N.T., 12/13-17/04, 630, 641, 3; Brief at the case for entry judgment and remand log sug- The claims 685-86. Nationwide remand, Bergs a new trial. At trial on was ordered because gests that this move prove have the burden to their again will will never recover the differ- “Nationwide evi- allegations by convincing clear and salvage ence in value.” Amended Co., Adamski v. Allstate Ins. 738 dence. 12/13-17/04, 3; N.T., Trial Brief at at Ex- (Pa.Super.1999); Hall v. A.2d Bergs argue that Na- p. hibit 8 65. The Brown, Pa.Super. repair the vehicle to another tionwide sent (1987). Bergs If the meet this the cost of a facility having pay to avoid burden, court shall award high time, at that as would payment total loss in section 8371. specified as required under the insurance have been repaired. if the vehicle could be appeal, issue on For their third Trial Brief at 2-4. Bergs’ Amended contend that the trial court Bergs to admit evidence refusing evidence to erred presented also $922,654.25 attorneys paid its attempted that after four months of Nationwide show lawsuit, allegedly defend the Nationwide returned the vehicle repairs, strategy to de litigation to a documented represented repairs to them that had Our though of small value claims. successfully completed, filing been even ter the evidentiary rulings review for a certain philosophy handling, standard of claims *13 evaluating whether the trial be relevant and useful in requires us to determine a bad faith claim. court abused its discretion. Common Henkel, wealth v. denied, 598 Pa. (Pa.Super.2007), appeal Bergs sought The to introduce evidence (2008).
756,
On October
terial.”);
generally
Holy
see
Barrick v.
denying
court issued an order
Spirit Hospital
the Sisters
the Chris
production
renewed motion for
of an unre-
*15
(Pa.Su
800,
Charity,
tian
32 A.3d
812
or,
alternative,
log
dacted claims
the
an
(“in
per.2011)
camera review
be nec-
by
review the trial court. The
in camera
issues);
essary” to determine privilege
explanation
trial court’s order offered no
Inc.,
1050,
Elwyn,
T.M. v.
950 A.2d
1063
for its decision.
(remand
(Pa.Super.2008)
required for trial
7,
view,
In our
the trial court’s October
court to conduct in camera examination of
order constituted an abuse of discre-
2005
for privilege);
documents
In re Estate of
prior
tion. The trial court’s
reasons for
Wood,
568,
(Pa.Super.2003)
818 A.2d
573
Bergs’ request
production
the
denying
(remand with instructions to conduct in
in camera review of the redactions
and/or
issues),
camera review for privilege
appeal
log
longer
to the claims
no
as the
applied,
denied,
(2005).
584 Pa.
nection insurance claim. join has made clear that in I majority opinion respects This Court bad in all litigation, except requirement imposed faith insurance the fact finder upon resolving needs to consider “all of the evidence avail- trial court in the outstanding dis- I covery dispute. respectfully able” to determine whether the insurer’s dissent to “objective intelligent conduct and un- portion opinion mandating was 1180 Wood, ments), A.2d In re Estate in cam- the documents review
trial court (Pa.Super.2003) (instructing era. review material in camera trial court to inspection of that in camera I believe is uncertain what is dis- only party if the be undertaken documents should disputed order). applicable under the coverable by As noted rare circumstances. only in Wettick, Jr., the R. Stanton the Honorable “Discovery rulings ‘uniquely are within discovery matters over judge presiding ” judge[.]’ Rohm the discretion of Allegheny County Division of Civil Lin, Haas 992 A.2d and Co. Pleas, “review of docu- Court of Common (quoting v. Schir (Pa.Super.2010) George likely to raise more ments in camera is ra, (Pa.Super.2002)). R. Stanton than it answers.” questions responsible trial court is for oversee “The Wettick, Jr., Operation The Our Discov- ‘discovery parties between the ing the Production ery Rules in the Context of it within that court’s discretion therefore is Documents, BarRister, Summer appropriate measures to determine input the benefit of at 86. Without necessary adequate prompt to insure counsel, judge “frequently a trial is from allowed the Rules discovery of matters an informed position in a to make ” (quoting Berkey Id. of Civil Procedure.’ discoverability judgment concerning Inc., 936 Investigations, heiser v. A-Plus Further, if in camera a document.” 1117, 1125(Pa.Super.2007)). *16 regularly is used inspection of documents discovery frequently to resolve dis- discovery of in the instant the course from whom documents putes, parties case, requested privilege first likely “are less to assume re- sought are disputed then in camera review of the log, with the discov- sponsibility compliance for at 27. Majority Memorandum documents. rules[,]” “may position take the ery noted, any it the trial court never made As compliance has become court’s the merits of the re- ruling on responsibility^]” 9/8/2004, at quests. Trial Court majority of the cases cited None majority I with the that the agree 6. While the trial court to supports requiring our denying trial court abused its discretion a review of the documents in conduct untimely, re- upon motion as See, Holy Spirit v. e.g., camera. Barrick full I would allow the trial court its mand Hospital the Sisters Christian determining how to range of discretion Charity, (Pa.Super.2011) Bergs get assure that the documents in camera review (acknowledging that are entitled.1 which remand), necessary upon T.M. v. be (Pa.Su Inc., Elwyn, any that the case lacked
per.2008) (noting if the
privilege log, responding and that identify mate
party privileged was able to remand, “may”
rial the trial court upon review of those doeu-
conduct in camera Wettick, supra, withholding the information. example, party 1. when a has withheld For thereof, Judge portions Wettick documents or me that counsel at 36. "This affidavit assures employs practice requiring counsel to (rather than the client or in-house of record that counsel has file an affidavit which states counsel) responsibility assumed has personally reviewed the withheld documents Also, will not I believe that counsel decision. legal the factual and basis for and details S.M.C., Appellee
W.P.C., Appellant.
Superior Pennsylvania. March 2012.
Argued April
Filed *17 carefully ing file such an affidavit without review- the documents.”