Plaintiff ■ Barbara German Kosierowski brought this action alleging that defendant Allstate Insurance Company acted in bad faith in its handling of her claim for under-insured motorist benefits under her policy. Allstate now moves for summary judgment. Because the plaintiff has not shown the existence of a genuine issue of material fact through evidence that a reasonable jury could find to be clear and convincing, the motion will be granted.
I. Background 1
The facts in this case are, for the most part, undisputed. On October 7, 1992, Ko-sierowski was injured when her vehicle was rear-ended by a car driven by an underinsured motorist (UIM). The tort-feasor was insured for only $15,000, but Kosierowski had a policy with Allstate that provided UIM coverage up to $100,000. By letter dated August 9, 1993, Joseph Mallon, plaintiffs attorney, informed Allstate that the tortfeasor’s insurer had tendered its $15,000 limits and requested Allstate’s consent to settle Kosierowski’s claim against the tortfeasor. In response, Allstate sent a form letter asking Kosier-owski to provide information about the tortfeasor before it would agree to settle the claim. Mallon informed Allstate that Kosierowski had no duty to perform this investigation and that Allstate was required to notify her within thirty days whether it would consent to settlement.
Allstate consented to settlement, and no action occurred in the case for almost two years following the settlement with the tortfeasor. On October 11, 1995, Mallon demanded UIM policy limits of $100,000, stating that Kosierowski had suffered lost wages and loss of earning capacity in excess of $118,000 and compensable medical expenses in excess of $12,000.. On October 23, 1995, Allstate said that it would schedule plaintiffs independent medical examination (IME) after receiving Kosierowski’s employment records, her medical records for the preceding ten years, and information pertaining to her marital and family status. Mallon provided some of this information by letter dated January 10, 1996, and asked Allstate to schedule an IME, which was performed by Dr. Bocher on February 7, 1996. Dr. Bocher issued a report on February 23, 1996, finding that Kosierowski had various soft tissue injuries. The report concluded that her symptoms were persistent and could continue indefinitely.
Over the next two months, Allstate requested additional information on plain *587 tiffs medical and wage losses, and Mallon repeatedly brought up the possibility of arbitration should a settlement not be reached. On April 26, 1996, he unequivocally demanded such arbitration in accordance with the policy provisions. Allstate named Hugh Donaghue as its outside counsel, and on May 24, 1996, he named Alexander DiSanti as Allstate’s arbitrator. Although Mallon had already identified KosierowsM’s arbitrator, Allstate requested that name again. On May 29, 1996, Mallon telephoned Donaghue and informed him that Kosierowski had selected an arbitrator and requested scheduling of the plaintiffs sworn statement. More than four months later, on October 8, 1996, Donaghue scheduled the statement for October 28, 1996. A neutral arbitrator was not selected until October 15,1996. It was shortly after these events, by letter dated November 8, 1996, that Mallon informed Allstate that he was considering a bad faith suit.
On November 20 and 22, 1996, Allstate ran Kosierowski’s claim through Colossus, a computer program used by Allstate to calculate the settlement value of claims. The first evaluation produced a settlement range of $11,624 to $13,824, although Huber, the adjustor on the case, independently evaluated the' case as worth $50,000 to $60,000. On the same day, Allstate made an offer of $50,000 to Kosierowski. Two days later, with the addition of different variables, Colossus produced a settlement range of $50,760 to $61,060. On December 5, 1996, Allstate gave Huber $100,000 in settlement authority, but Huber did not exercise that authority, instead asking Mallon what he thought of the $60,000 offer.- Mallon said that the offer was $50,-000, not $60,000; after negotiations, Huber made an offer of $80,000. Kosierowski agreed to accept $80,000 but would not release the bad faith claim. Allstate next offered $100,000 to settle the bad faith and the UIM claim, and Mallon refused, stating that plaintiff was still willing to accept $80,000 without a release of the bad faith claims. Finally, on December 8, 1996, Allstate agrеed to settle the case for $100,000 with no release of the bad faith claim. Kosierowski accepted this offer.
Following these events, Kosierowski brought a claim-of bad faith against Allstate for its handling of her case. Allstate now moves for summary judgment, arguing that (1 j. plaintiff has no .evidence to support an award of punitive damages; (2) plaintiff has not presented sufficient facts from which a jury could conclude that Allstate acted in bad faith; (3) plaintiff has no proof that she suffered any harm by Allstate’s actions; and (4) plaintiffs expert opinion does not provide clear and convincing evidence that Allstate acted without a reasonable basis. As the plaintiff has not presented évidence that a reasonable jury could find to, be clear and convincing that Allstate acted in bad faith, thе court does not reach defendant’s first and third contentions.
II.' Discussion 2
A. Bad Faith
Pennsylvania law provides that *588 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.'
In
Terletsky v. Prudential Property and Casually Insurance Company,
any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose аnd means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.
Terletsky,
To prevail on a bad faith claim, a plaintiff must prove both elements by clear and convincing evidence.
See Polselli v. Nationwide Mut. Fire Ins. Co.,
B. Plaintiffs Allegations
The plaintiff makes the following specific allegаtions of bad faith:
1. Allstate unreasonably delayed the resolution of Kosierowski’s claim by refusing to appoint defense counsel and name an arbitrator and by failing to schedule a statement under oath for many months.
2. Allstate unreasonably made no settlement offer for more than a year following plaintiffs demand, even though its own doctor’s medical opinion supported plaintiffs position; when settlement was eventually offered, it was unreasonably low.
3. Allstate improperly attempted to use settlement of plaintiffs UIM claim as leverage to obtain a release of the bad faith claim.
4. Allstate improperly asked Kosierow-ski to perform investigations that were Allstate’s responsibility.
5. Allstate applied improper business practices to plaintiffs claim.
The court will consider each claim in turn.
1. Delays in Naming the Arbitrator and Scheduling a Statement under Oath
Delay is a relevant factor in determining whether bad faith has occurred,
*589
but a long period of time between demand and settlement does not, on its own, necessarily constitute bad faith. Rather, courts have looked to the degree to which a defendant insurer
knew
that it had no basis to deny the claimant; if delay is attributable to the need to investigate further or even to simple negligence, no bad faith has occurred.
See, e.g., Klinger,
Plaintiff argues first that Allstate is guilty of bad faith in failing to appoint an arbitrator in a timely manner. According to the insurance policy governing this claim, if the parties cannot agree on the value of damages or the right to receive damages, the claim will be submitted to arbitration “upon the written request of either party[.]” Policy - Provisions, Def.’s Ex. 2 at 22. 3 Although plaintiff states that she demanded arbitration at the end of February, see Plf.’s Ex. 16, the first unequivocal written demand is dated April 26, 1996. See Def.’s Ex. 18 at 2 (“Since it appears that you do not value the case as worth the policy limits, based upon our discussion, please appoint an arbitrator or we will file a petition with thе. court to appoint a neutral arbitrator.”). Following that letter, Allstate appointed an arbitrator by letter of May 24, 1996. See Def.’s Ex. 21 (appointing DiSanti as arbitrator). Previous references to arbitration in plaintiffs communications with defendant were clearly conditional and could not reasonably have been interpreted as a demand for arbitration within the policy terms, particularly given ongoing negotiations. See Def.’s Ex. 11 (October 11, 1995, letter from Mallon to Allstate stating that if arbitration were necessary, plaintiff would appoint Michael Paul)', Def.’s Ex. 13 (January 10, 1996, letter from Mallon to Huber stating that “I am prepared to arbitrate this matter in order to bring it to a conclusion” and suggesting that parties discuss settlement to avoid that eventuality); Plf.’s Ex. 16 (February 29, 1996, letter from Mallon to Huber stating that “[i]n the event that this is not a case which you feel can be settled, I am appointing Michael- Paul, Esquire, as plaintiffs arbitrator”); Def.’s Ex. 16 (April 1, 1996 letter requesting that Allstate “appoint an arbitrator pursuant to the policy terms if the case cannot be resolved now”). Considering this correspondence, the time elapsed between demand and appointment was only one month, not the three and á half months asserted by plaintiff. 4
Plaintiff next argues that Allstate unreasonably delayed four and a half months in scheduling plaintiffs statement under oath. Kosierowski points to counsel’s letter of August 7, 1996, in which Mallon reminded Allstate that he’had requested on May 30, 1996, that Allstate contact him to set up a time to conduct the statement. See Plf.’s Ex. 21. Kosierowski also emphasizes Donaghue’s statement that he routinely allocated one year for the scheduling and taking of a statement under oath, see Plf.’s Ex. 24 at 67, which plaintiff suggests is per se unreasonable.
*590 Allstate, however, has produced evidence indicating that much of the delay between the request and the actual scheduling of the statement under oath was related to the schedules of the relevant parties and, at worst, negligence. See Defs Ex. 26 (August 22, 1996, letter from Kosierowski’s arbitrator requesting that DiSanti contact Allstate to get name of neutral once he returned from vacation); Defs Ex. 27 (October 7, 1996, letter from Kosierowski’s arbitrator again requesting that arbitrator be named; noting that Mal-lon requested action). 5 The October 7 letter states that the two arbitrators had been missing each others’ phone calls. See id. Donaghue himself explains that his hectic trial and deposition schedule, see Plf.’s Ex. 24 at 37-38, as well as сonflict over the form of a medical release, see id. at 35-36; Def.’s Ex. 23, 24, contributed to the length of time before the statement under oath. The only evidence before the court indicates legitimate, if frustrating, delays that are an ordinary part of legal and insurance work. There is no evidence from which a reasonable jury could find that the delay was attributable to bad faith.
2. Delays in Settlement and Unreasonably Low Offers
Plaintiff next argues that Allstate acted in bad faith by failing to make a settlement offer for more than one year and then making “lowball” offers even though it knew the value of the claim from an early date. This claim relies heavily on plaintiffs argument that Allstate ignored the IME performed by its own physician which, according to Kosierowski, strongly supported her position. Kosierowski repeatedly emphasizes that Allstate had no more information in December, when it offered $100,000, than it did in February, when it offered nothing. The court agrees that a refusal to settle when liability and injuries are clear may constitute bad faith in some'circumstances,
see, e.g., Klinger,
As it is central to an evaluation of this delay claim, the court will begin with the IME performed by Dr. Bocher on February 7, 1996. Taken most favorably to plaintiff, the report concludes that there were objective manifestations of injury following the accident and that the symptoms would persist indefinitely. See Def.’s Ex. 14 at 4-5. 6 However, defendant correctly argues that while the examination confirmed that the plaintiff was suffering from the repercussions of her injury, the value of that injury for purposes of claim payment was fаr from clear.
*591
This is particularly true given the persistent disputes regarding the wage losses and other expenses suffered by plaintiff. The -initial demand letter of October 11, 1995, presented a total claim of $131,038, consisting $118,633 of past and future wage loss and $12,405 in medical costs.
See
Def.’s Ex. 11. However, as no documentation was included, on October 23, 1995, Allstate requested further information from Kosierowski’s employer confirming past wage losses.
See
Def.’s Ex. 12;
see also
Plf.’s Ex. 7 (claims diary entry of October 22, 1996, stating that Mallon had provided no confirmation of the time lost). Kosierowski did not respond to this request until January 10, 1996, and the documents pertaining to' wage loss were plaintiffs handwritten notes.
See
Def.’s Ex. 13. Following the receipt of these confusing records, Allstate attempted to acquire better documentation regarding past wage losses.
See
Def.’s Ex. 15, 16, 17. By letter оf April 1, 1996, Mallon explained that plaintiff had no records from her second job and that her testimony would be her proof of her losses,,
See
Def.’s Ex. 16. With respect to her primary job, it was not until April 26, 1996, that Mallon explained by letter that Kosierowski did “not have an actual loss of income due to her time missed from,work as a result of the accident. Rather, she used her vacation time to cover the days that she had to miss as a result of the injuries from this accident. These are vacation days which she would other have been able to use for vacation.” Def.’s Ex. 18 at 1.. Given these undisputed facts, it cannot be said that Allstate acted unreasonably in asking for clarification from the plaintiff in the form of a statement under oath.
7
See Hyde Athletic Indus., Inc. v. Continental Cas. Co.,
Admittedly, some of Allstate’s' actions were less than forthright. Following Allstate’s receipt of the IME report, the claims log notes that “Dr. Bocher found spasms present in her back and neck, suggesting these symptoms will continue to manifest themselves for an indefinite period of time [to] the future.” Plf.’s Ex. 7 (entry of February 23, 1996), However, Huber’s deposition reveals that he gave the IME little credence and attempted to second-guess Dr. Bocher even though the report confirmed the objective existence of injuries. See Def.’s Ex. 45 at 110 — 13, 156-60. Allstate also appears to have taken inconsistent positions in its internal discussions and its negotiations with plaintiff. For example, Huber’s diary entry for December 5, 1996, states that he had been given authority for $100,000 and that there was “not a lot to argue on our side.” On the same date, he rеcounted his conversation with plaintiffs attorney in which he said, “We were still gathéring info to evaluate until recently. Anyway, argued the weak points,of his case, the fact it is only a soft tissue case and hard to accept as permanent. He of course, argues the IME.” Plfs Ex. ,7 (claims entry of December 5, 1996). In addition, although Mallon had been given the impression by Dona-ghue that a statement under, oath.was very important to Allstate’s resolution of the claim, see Plf.’s Ex. 20 at 192, Huber indicates that he himself, did not believe that a statement under oath was necessary and that he did not use it in. calculating the value of plaintiffs claim. See Plf.’s Ex. 13 at 133-36.
However, even considering thesé facts and the relatively favorable IME, there is not clear and convincing evidence from which a jury could conclude that it was
*592
unreasonable for Allstatе to wait until November to evaluate the case and make a settlement offer. Even cases such as
Klinger
that acknowledge that a refusal to settle may constitute bad faith so hold only when the amount in question is clearly known by the insurer.
See, e.g., Klinger,
The court also rejects the idea that negotiation — i.e., offering the bottom of an estimated settlement range — qualifies as bad faith in this case for similar reasons. Such an argument fails to consider the nature of the UIM policy purchased by plaintiff. Kosierowski’s own policy states that Allstate would only pay damages that she would have been “legally entitled to recover from the owner or operator of an underinsured auto.” _ Policy Provisions, Def.’s Ex. 2 at 14. Given the uncertain value of her injuries as well as the difficulty in determining what her recoverable damаges would have been, it was not improper for Allstate to negotiate, and no reasonable jury could so find.
The Pennsylvania Superior Court explicitly recognized the subjective, uncertain nature of such claims in
Terletsky,
in which plaintiffs also claimed bad faith when an insurer made low settlement offers in the days before an arbitration. The court held that it was proper for Allstate to consider the questionable nature of those plaintiffs’ injuries as well as ■ to reduce the offer because of doubts regarding the liability of the respective parties; in fact, the Pennsylvania court explicitly held that it was acceptable for the insurer to reduce the’ offer by approximately fifty percent of what the case was “worth” given these doubts.
See Terlet-sky,
Similarly, while plaintiff relies heavily on
Klinger
to support her position, it is quite different from the case at hand. In
Klinger,
thе insurance company offered its insureds nothing in the face of clear liability and serious injuries.
See Klinger,
3. Allstate’s Efforts to Obtain a Release
Plaintiff maintains that Allstate committed bad faith in its attempts to acquire a release of her bad faith claim in settling the substantive components of her case. However, Kosierowski presents, no evidence that would indicate that Allstate attempted to mislead or deceive her; the only evidence before the court suggests, on the contrary, that a genuine mistake occurred in conversations between plaintiffs counsel and Allstate’s adjustor.
9
See
Def.’s Ex. 37 (memo to file from Mallón stating that miscommunication had occurred between him and Huber); Def.’s Ex. 38 at 2 (letter from Maltón to Donaghue noting that mistake had occurred regarding the status of the bad faith release). The court further notes that it is not inapрropriate for an insurance company to attempt to resolve all claims with one settlement, particularly when there is no indication of an attempt to mislead.
See, e.g., Palucis v. Continental Ins. Co.,
Civ.A. No. 98-356,
4. Investigation Issues
Two of plaintiffs claims of bad faith deal with requests by Allstate that she conduct investigations. Plaintiff first argues that Allstate acted in bad faith by asking her to investigate the tortfeasor’s assets and actions on the day of the accident. Allstate essentially concedes this point, arguing only that becausе “[p]laintiff did not undertake to perform such an investigation!,] Allstate’s request caused no harm.” Def.’s Mot. for Summ.J. at 30 (citations -omitted). 10 Plaintiff also claims that Allstate improperly asked her to investigate her own medical expenses. Allstate also does not deny that it asked for this’ information: rather, Allstate states that it “requested” the information and that “Mr. Maltón agreed to provide it.” See id. at 31. Allstate also argues that Maltón admitted that he would have had to acquire this information himsélf, see Def.’s Ex. 4 at 229, and that consequently, Kosierowski suffered no harm.
One problem with Allstate’s answers is that Allstate appears to have had some of the information that it requested that Ko-sierowski obtain. For example, although Allstate asked that plaintiff provide evidence pertaining to the tortfeasors’ assets, Allstate had apparently already run an assets check for its own subrogation claim and ordered a second check for the UIM *594 claim. See Plf.’s Ex. 7 (“Sent for assets and income check on claimant Ianucci”) (entry of August 18, 1993); Plfs Ex. 13 at 132 (Huber testimony stating that Allstate had run “an,income and assets check from a different office ... in regards to the subrogation claim”). Similar redundancy appears to have occurred regarding the ERISA program liens. Allstate requested that Mallon provide more information on this issue in a letter of April 17, 1996, see Plf.’s Ex. 28, but the claims diary suggests that Allstate had some of this information since February 23, 1996. See Plf.’s Ex. 7. Also, on December 6, 1996, Allstate’s attorney requested proof from Mallon that Kosierowski’s program was an ERISA qualified program. See Plf.’s Ex. 29. However, a claims diary entry of April 17, 1996 states that “[plaintiffs attorney] provides evidence of the excess hеalth carrier’s subrogation clause against third party carriers under an ERISA plan. They have placed [plaintiff s attorney] on notice of their subrogation lien.” See Plf.’s Ex. 7; see also Plfs Ex. 5 (letter of April 1, 1996, giving name of program administrator).
Nonetheless, the investigatory conduct cannot qualify as bad faith. Even reading the claims diary and the deposition'testimony most generously towards plaintiff, Allstate does not appear to have had all of the information it asked that plaintiff acquire. Nor can the plaintiff maintain that simply asking for information was bad faith, as the insurance policy itself obliges Kosierowski to supply information to the insurer: “As soon as possible, you or any other person making claim must give us written proof of claim including all details reasonably required by us to determine the amounts payable.” Def.’s Ex. 2 at 20. The policy also states that “[a]n insured person must assist us in securing evidence, obtaining witnesses and in conducting suits. This includes submitting to signed statements and'disclosing all facts.” Id. at 21. As to the amount of information requested, no reasonable jury could find that Allstate’s actions constituted bad faith given the difficulties in assessing Kosierow-ski’s damages. This is particularly true when the final value of the recoverable medical expenses turned out to be less than $3,500, notwithstanding plaintiffs earlier demands for more than $12,000.
5. Pattern and Practice
Plaintiff next alleges that Allstate acted in bad faith by utilizing a computer program, Colossus, that calculated the value of claims based upon “irrelevant” variables. Plaintiff also argues that Allstate has a policy of offering settlements of five percent below the value it internally assigns in an effort to increase its рrofit margin. This policy appears to exist with respect to at least some claims. See, e.g., Def.’s Motion in Limine to Preclude Testimony by Sciotti, Ex. G (affidavit stating that Allstate’s Harrisburg office has this policy with respect to third-party claims); Plf.’s Ex. 31 at 47 (deposition of David Graham, evaluation consultant at Allstate); Plf.’s Ex. 34 (excerpt from handbook stating that Allstate can increase profits by $34 million a year in UM/UIM by reducing all settlements by up to five percent).
There has been extensive discovery pertaining to these claims as well as extensive debate as to the appropriateness of considering broader insurance industry practice in the context of a bad faith claim. The court agrees that the bad faith statute is not intended to be a means for individual plaintiffs to attack an entire insurance industry; rathеr, it “addresses only whether insurers acted recklessly or with ill will in a particular case, not whether its business practices are reasonable in general.”
Hyde Athletic Indus.,
*595 The difficulty in the present case is that the plaintiff has no information to demonstrate that such offending practices had any effect on her case. Allstate did use the Colossus program in calculating Kosierowski’s claim. The first Colossus estimate, performed on November 20, 1996, gave a settlement range of $11,624 to $13,824. See Def.’s Ex. 34. The second estimate, performed on November 22, 1996, gave a settlement range of $50,760, to $61,060. See Def.’s Ex. 35. 11 The first amount is admittedly low and was based on the аssumption that plaintiff did not have a permanent injury and that she had very low wage loss. However, even assuming that all of plaintiffs arguments about the impropriety of this program are correct, Huber did not rely on these programs in making his own settlement offer, which was, as discussed previously, initially $50,000. 12 Rather, it is clear that he consistently used his own judgment in determining the value of the case. See Plf.’s Ex. 13 at 163, 175-76. Similarly, plaintiff provides no evidence that the five percent program was applied to her claim, and it is hard to see how she could do so, given that she ultimately received the policy' limits and $20,000 more than the amount for which she herself was willing to settle.
C. Plaintiffs Expert Opinion
Plaintiff argues that Barbara Sciotti’s expert opinion supports her claim that there is a genuine issue of material fact. The court disagrees. The mere presence of an expert opinion supporting the non-moving party’s ■ position does not necessarily defeat a summary judgment motion; rather, there must be sufficient facts in the record to validate that opinion.
See, e.g., Advo, Inc. v. Philadelphia Newspapers, Inc.,
In this case, while the defendant’s motion for summary judgment and its motion in limine to preclude Sciotti’s testimony overstate both factual and logical errors in the report, the expert opinion includes no analysis or interpretation that would alter the court’s conclusion as to the insufficiency of the evidence presented by plaintiff. Sciotti places- great emphasis on the fact that Allstate did not begin conducting an investigation of Kosierowski’s injuries until 1995; however, Mallon himself concedes that he presented no demand package to Allstate until that time because he wished to ascertain the extent of her injuries See Def s Ex. 4 at 38-39, 69-72, 74-77. 13 Similarly, .Sciotti discusses the long delay in scheduling the statement under oath, the repeated requests for information, and the relatively low settlement offers made initially, but she does not consider alternative reasons for the delay, most importantly, the difficulty Allstate had in acquiring records. and clarifying plaintiffs , damages. Her failure to consider Allstate’s justifications for its actions is particularly true with respect to the requests for information. Nor does she fairly present the inconclusiveness of the IME report.
Sciotti makes reference to the Pennsylvania Unfair Insurance Practices Act (UIPA) and Unfair Settlement Practices Act and states that Allstate’s apparent failure to comply with some of these regulations indicates bad faith. 14 However, even reliance on these statutes does not *596 pеrmit plaintiffs case to advance past the summary judgment threshold. The court agrees that Sciotti’s points do not create a fact question sufficient to send the case to a jury. For example, she maintains that Allstate’s request for á release was a violation of the UIPA but does not explain why the release might not be appropriate as falling within the same subject matter that gave rise to the claim payment. See 31 Pa.Code § 146.4(e). Similarly, Sciotti says that Allstate’s supposed failure to send letters to the claimant every 45 days explaining why it had not yet evaluated her claim violated the. UIPA. However, Allstate correctly points out that correspondence and requests for information occurred during virtually all of the pendency of plaintiffs claim. The court agrees that this fact alone cannot create a genuine issue of material fact. .Sciotti’s other, more significant, points have already been addressed.
In sum, Sciotti’s report simply fails to consider much of the context of this case, and her report does not take into account the plaintiffs role in complicating negotiations.' Nor does she acknowledge the legitimate difficulties present in virtually every aspect of this case. Consequently, the report does not create a genuine issue of material fact.
See Leo,
III. Conclusion
Both plaintiff and defendant have drawn the court’s attention to the possible public policy implications of a decision in this case. Plaintiff maintаins that granting summary judgment would send a message to insurance companies that they may properly treat their own insureds with the same suspicion and hostility that they treat third-party claimants. Defendant, in turn, argues that to permit this case to go to the jury would ultimately harm insureds by giving insurance companies an incentive to adhere to low, initial settlement offers because altering an offer in light of additional information would actually increase the risk that they would be subject to bad faith damages.
Ultimately, neither perspective fully considers the facts Of this case and the difficulty of drawing any general conclusions from its resolution. As discussed at the hearing on the motion, this might be a different case if the injuries’ value had been clearer or if the special damages had been readily ascertainable frоm the beginning. However, plaintiff is simply unable to demonstrate that Allstate’s actions were unreasonable. Her claims for damages were inconclusive at best and contradictory at worst, and her own attorney did not always communicate promptly and clearly. The IME did not assist Allstate in placing a value on Kosierowski’s claims, and it was therefore not unreasonable for Allstate to consider a variety of ranges in attempting to settle the case. Simply put, plaintiffs evidence does not establish a genuine issue of material fact as to Allstate’s bad faith. 15
An appropriate Order follows.
*597 ORDER
AND NOW, this 4th day of June, 1999, upon consideration of Defendant’s Motion for Summary Judgment, and the response thereto, it is hereby ORDERED that the Motion is GRANTED.
Notes
. All background facts are taken from plaintiff's submissions unless otherwise noted. Plaintiffs name was German at the timе of the events in question; she has since married and changed her name to Kosierowski. For convenience, the court will use plaintiff's married name.
. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of any genuine issue of material fact.
See Celotex Corp. v. Catrett,
*588
See Celotex Corp.,
. Unless otherwise noted, all exhibits are from the motion for summary judgment or the response.
. The court does note, however, that notwithstanding clear indications by plaintiff that she would appoint Paul as her arbitrator from at least October 11, 1995, see Def.’s Ex. 11, 13, Allstate inexplicably requested the name of the arbitrator on May 24, 1996.- See Def.’s .Ex. 21; 23.
. ' The August 22nd letter was cc’d to Mallon; the October 7th letter was bcc'd to Mallon along with a note stating, "Dear Joe, I've been pestering the hell out of him.”
. Specifically, Dr. Bocher stated:
The patient's examination revealed objective findings of muscle sрasm in her lower lumbar area, mild nerve root irritation, nerve root deficit ’ or compression of the sciatic nerve. There is certainly no objective motor deficit, sensory loss or reflex changes in either the upper or lower extremities to indicate any evidence of disc pathology or significant nerve root compression. She has minimal findings of the cervical spine with muscle spasm and a slight limitation of motion, but again a normal neurological examination.
The patient's symptoms reflect an ongoing mild soft tissue injury to the low back area, specifically and to a lesser degree the cervical area, which persists, suggesting that these symptoms will continue to manifest themselves for an indefinite time in the future. I can state, with reasonable certainty, that I do not bеlieve that this woman will need any surgical intervention nor do I expect that these symptoms will worsen to any degree with time.
Def.'s Ex. 14 at 4-5.
In an earlier report, plaintiffs own doctor stated that "we can consider her ongoing symptomatology to be permanent and that she can expect to havé to continue to followup for monitoring of her medication on a bimonthly basis and be treated symptomatically for her ongoing complaints. She has significant functional limitations and limitations on physical capacities.” Plf.’s Ex. 3 (report of Dr. Bonner, dated July 1, 1994).
: Kosierowski’s statement under oath confirmed many of these points. She explained that, as she was salaried, she did not actually lose any money from her primary job at North American Manufacturing; rather, she lost vacation and sick days. See Def.’s Ex. 25 at 52-58. She also suggested that some of her later decrease in hours at her second job was voluntary, although she emphasized that she had cut back her hours by half because of the pain she suffered. See id. at 82-83.
. Plaintiff repeatedly states that Allstate internally valued the claim as worth $100,000 on the eve of arbitration, but there is no evidence that Allstate reached such an objective determination. The court is unwilling to infer that settlement authority invariably constitutes a final, objective assessment of a claim's worth to which an insurer may be held on penalty of bad faith.
See,
e.g.,
Voland v. Farmers Ins. Co.,
Analogously, the court will not take plaintiff's willingness to accept less than $100,000 as an indication that she "knew” that her claim was not worth the policy limits.
. The court will comment on plaintiff’s expert’s contention that the request for a release was a violation of the Unfair Insurance Practices Act in the discussion of the expert report itself.
. For purposes of this motion for summary judgment, the court assumes that the six-year statute of limitations pursuant to 42 Pa.C.S.A. § 5527 applies. The statute of limitations for bad faith claims is unresolved, and the Eastern District of Pennsylvania has issued contradictory rulings on the subject.
Compare Woody v. State Farm,
. Strangely, the second estimate makes the recommendation that an IME be performed, see Def.’s Ex. 35, even though Dr. Bocher’s report had been completed almost eight months previously.
. Even if the plaintiff had provided such proof, it is not improper for an insurer to consider ■ such variables as credibility given the nature of a UIM claim.
See, e.g., Leo,
. In fact, this particular allegation was not included in the complaint.
. The plaintiff and defendant have argued extensively as to the relevance of these statutes, both generally and in terms of their acceptability in an expert report. The court , finds that it is proper for Sciotti to refer to these statutes and will consider them in this motion for summary judgment. While these statutes do not create a private cause of action, both Pennsylvania state courts and fed
*596
eral courts in this district have held that parties may refer to other statutes such as the UIPA and even Department of Insurance Regulations in demonstrating a claim of bad faith.
See Romano v. Nationwide Mut. Fire Ins. Co.,
. There are several motions pending in this case that have either been denied without prejudice or explicitly deferred to trial. The only motion that might bear upon the present issue is plaintiff's motion to compel the production of the unredacted claims file on the ground that defendant waived thе attorney-client privilege by showing the file to one of
*597
its experts during a deposition. Based upon the affidavits supplied by defendant as well as by the facts described in plaintiff's motion, the court is satisfied that the defense expert inadvertently and briefly saw a portion of the claims file and that he did not base his opinion on that information.
See
Affs. of Michael Cerf and Marshall Walthew. In this context, such a single accident does not constitute a waiver of the attorney-client privilege, particularly given the speed with which the error was remedied and the fact that disclosure would not serve the overriding interests of justice.
See, e.g., Fidelity & Deposit Co. of Md. v. McCulloch,