*1 upon my Based conclusion that the RANCOSKY, court Matthew applies and the trial Administrator
LAIA DBN of the Estate of LeAnn issuing July I by Injunction,8 erred Ranco sky, case, request- Rancosky, remand the and Matthew farther as Executor would Rancosky, of the Estate L. by ed “to reason- Martin pay Local Turner defending expenses Appellant able and costs suit a reasonable counsel fee” v. § defendants. group 206q;
union 43 P.S. 16-17; Local Brief at see 14’s also Indiana WASHINGTON NATIONAL INSUR Cobra, Inc., 594 A.2d at (“Having 372-73 COMPANY, by ANCE as Successor injunction im- determined was Merger to Health Insurance properly granted, must remand this Formerly Company, Capitol Known as case for a determination award Company, American Life Insurance attorney fees and reasonable costs and Appellee. by expenses appellant incurred in defend- suit.”). ing this Superior of Pennsylvania. Court I foregoing, on the respectfully Based July Argued dissent. Filed Dec.
Reargument Denied Feb. coercion, I conclude picketing, 8. Because Labor that is trial court free from issuing by July Injunction, erred I do not intimidation violence is a form of assem particular July In- discuss the terms of the bly protected speech, by the First Amend note, however, junction. although I I ment to States the United .Constitution agree Majority the learned with that the trial I, Pennsylvania Article 7 of the Con Section number, pickets limitation as to court’s Co., Eagle Markets Giant .stitution. ‘ permitted present to be at the construction order area,of at 1292. "An issued in First (five) site unsupported is unreasonable and rights must Amendment be couched in record, disagree I its conclusion that accomplish pin will narrowest terms that (twenty-five the distance limitation from feet pointed objective permitted by constitutional entrance) supported reasonable or public and the essential needs mandate Maj. Op. the record. See at 70-71. President & order.” . v. Comm’rs Carroll Majority Injunction April states that the "was Anne, Princess U.S. 89 S.Ct. ineffectual," utterly appellants (1968). view, my In L.Ed.2d requirement only pickets abide five reducing pickets permitted the number tb man entrance to site each the construction lawfully protest gates peacefully at the remaining and the demonstrators stand restricting construction site addition twenty-five away feet the en- least from pickets al lesser distance limitation would to a Maj. Op. Injunc- trances. at 69. The goal "abat[ing] the servé court's the trial tion, however, only Local directed to [cjonstruction [sjite.” See blockade of the "together representatives, agents, with their 10/9/14, Opinion, Trial Court at 12. There servants, sympathizers, members and all oth- the, record, no basis and the ers on their behalf or in action concert determine, explanation 4/22/14, provides for me to ¶ no April Injunction, them." 2. As stat- hereinabove, any apparently that "there were reasonable ed there is no that the evidence grounds April Injunction applied lower Giant defen- for the court's action.” to the relevant Eagle dants. 652 A.2d at Markets *4 Behrend, Pittsburgh, ap- for Kenneth R. pellant. Sneath, Pittsburgh, appel- for
Henry M. lees. ' BENDER, P.J.E.,
BEFORE: MUSMANNO, JJ. JENKINS MUSMANNO, BY J.: OPINION Rancosky, Administrator Matthew Rancosky DBN1 of the Estate of (“LeAnn”), of the Estate and Executor (collec- (“Martin”)2 Rancosky L. Martin (1) “Rancosky”), from tively appeals 21, summary granting 2012 Order March in favor of judgment on Martin’s claims Company Insurance Washington National (“Conseco”), by merger as successor Company Insurance Conseco Health (“Conseco Health”), formerly known Company Capital American Life Insurance American”);3 (2) Judg- (“Capital 2013, substituted as a his Estate was bonis non. JDe plaintiff. on this lawsuit 2. LeAnn instituted and Martin 2008, Praecipe by filing a December initially purchased insur- a cancer 3.LeAnn summons. LeAnn died on issue a writ American, Capital policy ance in 1992 from substi- her Estate was However, changed Capital American plaintiff. on June Martin died tuted as claim, you on seeking ment bad entered for which are If it benefits. August reasonably favor is not possible give of Conseco. written affirm proof required, March the time We 2012 Order we shall not granting summary judgment deny favor- of reduce the claim for this reason dismissing if proof Conseco and claims. filed as reasonably Martin’s soon as part Judgment possible. any event, vacate in In proof We entered re- August quired given a new must be than no later one remand year plus days faith claim. from date of loss Policyowner legally unless the inca- purchased In pacitated during that time. Policy paid from Conseco Health. LeAnn monthly premium rate $44.00 id.4 Policy. premiums Cancer The Policy The-Cancer contains a suit limita- paid through were automat- clause, tions which provides as follows: $22.00, payroll ic bi-weekly deductions of legal against You cannot take action us employer, made the United under policy: benefits this (“USPS”). Postal Service States (cid:127) 60 days within have you after sent Policy provides lim- certain loss; proof written us *5 diagnosed ited benefits to an insured (cid:127) policy an internal years while the is than cancer more three from the time alia, including, proof effect inter cash giv- benefits written is required be surgical, and payment hospitalization en. treatment Policy
and costs. The Cancer Id claim, requires notice of a as follows: Policy The Cancer contains a Waiver Written notice of claim given must be (“WOP”) provision, pro- Premium which days within 60 after the start of an vides as follows: reasonably insured loss or as soon as Subject to the this policy, conditions of possible. The notice must to us be sent premium payments required will not be our Office or Administrative Policyowner after the is: agent. The in- notice should authorized your elude name and number. policy (cid:127) diagnosed having days cancer Policy, at Date; Cancer or 'more after the Effective and requires los?, Policy proof The Cancer part,
in relevant as follows: (cid:127) disabled due to more than cancer give You must proof, accept- us written 90 consecutive days[5] beginning on us, days able to within 90 after the loss or after the date of diagnosis. its name year, Commencing Health. That same Pol- the Cancer policy converted to Conseco Secure icy family policy, was converted to a Pay Policy, II Family policy Cancer under No. and Martin each became under insured 302-301-261, with an "Effective Oc- Date” of “policyowner.” as a (the Policy”.). tober "Cancer Conse- Policy, at-2. co Capital Health and American were suc- by Washington ceeded National Insurance provision requires 5. Because the WOP However, Company.- parties because the policyowner period to be disabled for
n Washington trial court have referred to days, more than consecutive will refer ¡as Company National Insurance "Conseco” period waiting “90-day period.” to this as the throughout proceedings, these we will do the same. your than or person you been other it has determined that Means After disabled, child, parent, grandparent, spouse, we will Policyowner waive sister, uncle, brother, aunt, period grandchild, premium for the dis- payments or during who: ability, except nephew those the first 90 niece days period. of such (cid:127) state practice licensed art[;] healing added). (footnote Id. at 8 (cid:127) allowed performs services are the Cancer “dis- Pursuant license; and by that abled” (cid:127) performs which benefits services Means that: policy. this provided are (cid:127) months the first 24 after loss Id. at unable, begins you due to can- are cer, all the perform to' substantial age February On your regular material emergency duties room was taken to the due occupation; February On pain. intense abdominal surgery was exploratory performed, months, “disabled” means After that: diagnosed LeAnn was after which (cid:127) unable, cancer, due you are in the ovarian cancer. LeAnn remained you for which job are work 15,2003. until hospital education, qualified reason 11, 2003, April LeAnn contacted training experience; On requested to seek forms (cid:127) working any job you are Policy. On benefits under benefits; pay 12, 2003, Conseco mailed LeAnn (cid:127) care of a under you physi- are May forms. On for the treatment of cancer. cian signed complet- two mailed Conseco *6 Id. at 3. forms, along with supporting ed doc- claim Policy in the Cancer provision The WOP claim umentation. received the disability requires proof follows: supporting forms documentation 13, forms, physician’s a 2003. In May You must state- each send us containing following: that she been “un- ment LeAnn indicated had current occupation” able work [her] (cid:127) diagnosed; the date the cancer was hospital her admission to the on Feb- since (cid:127) disability due cancer be- 4, ruary supporting 2003. The documenta- gan; by operative provided tion included (cid:127) date, any, if expected such dis- undergone, for surgeries she had records ability will end. indicating reports diagnosis pathology her Id.6 cancer, billing III Stage ovarian hospitalizations, multiple Cancer states the term records for sur- “physician” geries medical treatments.7 and related that, Claim Procedures and record indicates dur- Claims The evidence of ("Manual”) waiting provides 90-day period, ing LeAnn had Guideline Manual three care, (1) ways including proof of disability: establish a extensive medical received statement; 4, 15, (2) form; physician's February through February a or (3) surgery performed); policyowner’s physi- (hospitalized, exploratory phone a call 20, 11/26/14, February (port chemotherapy Opinion, Trial cian. See Court at 3 inserted); 25, (first Rancosky’s (citing February Exhibit 75 chemo- and N.T. (office (Breach Trial), 5/7/13, 147-49). treatment); February therapy of Contract initially by payment premium The claim forms submitted extended un- section any not include der the Cancer Policy' only May required completed physi- to be was 2003.10. However, the claim forms cian. each in- Pursuant to a provision Conversion authorization, signed cluded an Policy, payroll- when LeAnn’s “any which authorized medical premium deducted payments stopped' professional, hospital,. or other medical- if June premiums additional were institution, insurance, support organi- care due, required Conseco was provide zation, government agency, insurance LeAnn with required written notice of the company, organization, or other employer premium: person or that has institution infor- mation, knowledge or of [LeAnn] records CONVERSION: If this policy was is- such health” furnish informa- [her] payroll sued ... deduction
tion Conseco. See Claim after at least premium payment you one Form, (unnum- (07/02), at 1 No. CA-458 longer are no payroll member of that bered). group organization, you may elect May
On Conseco made its first continue on an insurance individual basis payment on LeAnn’s claim the amount by remitting your premium through one $3,065.00. May On of our payment standard direct methods. $13,023.00 paid additional on'LeAnn’s premium Notice the required will be claim.8 to you your mailed last known ad- premium dress. Your rate will day
LeAnn’s last at work for .be USPS increased this However, conversion. February she days, unused vacation and sick which ex- n 1; see also id. at 10 status to employment tended June (providing payment direct methods 2003,9 despite the fact that she did not upon deduction). transfer from payroll result, work after 2003. As a Alternatively, provid- the Cancer Policy payroll LeAnn’s last deduction was made due, 24, 2003, ed additional premiums on June On June were if payroll-de- pay any LeAnn’s last Conseco could elect to premium received premium payment by making ducted on the owed from claim deduction *7 to, However, Policy. premium because the payment “[w]hen insured: a claim arrears, payments premium made in paid, any may, were the final unpaid due and visit); 28, February (mammogram); chemotherapy 2003 the maximum treat- amount 11, 19, (sur- through per year by Policy. March 2003 March 2003 ments covered the Cancer lungs, gety hospi- clots in blood remained 9. LeAnn 26, talized); retirement, applied disability had (surgical staples March 2003 tak- 2, 14, out); visit, 2003, June April (emergency application and on en 2003 room her was .d treatment), 8, approve chemotherapy April 2003 10, through April (hospitalized, chemo- 4, 18, Utilizing treatment); inception therapy April 2003 to .as 24, disability, of LeAnn’s the trial (daily testing); April deter- blood that, payroll- mined the time LeAnri’slast through May (hospitalized, chemo- treatment). premium payment deducted therapy received Conseco, extending coverage Can- under the 24, 2003, Policy pay- s cer May 90-day 8.Conseco records indicate these until hospitalizations period waiting expired. ments were made for three had See Trial Court care, 11/26/14, Opinion, and three dates of medical as well as for at 4. signed a WOP discretion, filled out and deducted from the
our be sole on 2003. The Id. payment.” claim form November enti- WOP claim form included section provision in the Con- Despite the notice Statement,” “Physician tled which had not advise provision, version did signed by completed, been one of any premiums were due on the LeAnn that physicians on November following receipt Policy premium pay- completed LeAnn believed that WOP payroll-deducted the final 24,2Ó08. ment on June claim form had submitted to Conseco. been premiums LeAnn also believed her 20, 2003, LeAnn May On called waived, no pre- further had been repre- and discussed WOP with Conseco Policy. miums due were date, Conseco On that same sentative. sent claim form. Conseco’s LeAnn WOP recurred, In May cancer records indicate that sent LeAnn an began another of chemo- she course July form WOP 'claim additional treatment, hospi- therapy wherein she was overnight every three for a talized weeks 31, 2003, July On Conseco received an- chemotherapy session from June July other claim form from dated through April 2005. 25, 2003, seeking an addition- $4,130.00 in al related to her initial costs 28, 2004, On October while LeAnn was hospitalization.11 claim form included receiving ongoing chemotherapy treat- authorization, Leann, signed ments, diagnosed pan- Martin was any physician, medi- “autho’rize[d] licensed However, Martin creatic cancer. pharmacist, practitioner, hospital, cal clin- diagnosis contact his or regarding ic, medically other or related facil- medical submit a claim benefits. federal, local ity, government or state 2005, eighteen In January after months agency, reinsuring company, insurance or payroll- Conseco had received LeAnn’s last employer reporting agency consumer premium payment, deducted dis- having diagno- information available as to that LeAnn’s payroll covered deductions sis, prognosis respect treatment and for the Cancer had On ceased. any physical mental condition and/or January Conseco sent a letter to [LeAnn],' treatment of non-medi- informing payroll-de- her [LeAnn], information give any cal about premium payments stopped such ducted [Conseco].” and all information Form, prevent See Conseco Claim No. order to CA-458 (07/02), 5, 2003, August at 1. On Conseco Policy lapsing, required from she was $1,035.00 paid claim. $1,112.50 premium payment tender a days. respond to within 15 LeAnn did not On 13,, November LeAnn called correspondence. On March status, inquire Conseco to about her WOP *8 a indicating Conseco letter to LeAnn sent and advised that no WOP claim was form “recently that had conducted audit had been received Conseco. LeAnn and policies” “[o]ur cancer records indi- also requested identification insurance Conseco, you type of previously cate that owned this cards from Conseco. thereafter policy, paying premium on or but ceased sent LeAnn another claim form WOP and 24, in identification cards. about 2003. This resulted JUNE physi- 11. This did not a statement section. claim form include cian coverage.” lapsing your physician. Conseco a The claim form instructed inter, Letter, 3/9/2005, provide,' Office” to “Physician’s l.12 alia, diagnosis first and hospi- 15,2005, March LeAnn called On Conse- tal completed confinements.13 The state- inquire status co as of the Cancer ment, signed physicians one LeAnn’s Policy. A representative Conseco advised 27, 2005, on April indicated that LeAnn’s Policy LeAnn that Cancer had lapsed in May cancer recurred 2004. had Howev- 24, of May 2003. LeAnn indicated er, incorrectly the statement indicated that premiums she had been told her initially diagnosed cancer was on diagnosed would be if she with waived was 2, 2003, February and omitted refer- disabled, totally cancer requested and and her ence to initial hospitalization from be Policy Cancer The reinstated. 4, 15, February February 2003 to representative advised LeAnn form also “Physi- claim instructed the form, request a claim a send reacti- cian’s “give disability,” Office” to dates coverage, physician’s a vate statement response, with no In further instruction. stating on letterhead was date she incorrectly the statement indicated that disability diagnosed and her dates. of disability” “July were “dates 12,2005, On June LeAnn sent a 2003 until unknown time.” future form, completed claim medical bills from Conseco did not LeAnn that advise 2004 and and a handwritten letter any problem there request was with her indicating her belief that she was on WOP WOP her claim submission. Oh requesting status'and that"the Cancer'Pol- 18, 2005, July $16,200.00 paid icy In that correspondence, be reinstated. LeAhn’s claim medical she had services 2003,1 LeAnn noted that June spoke “[i]n 2005, despite in 2004 received inform- ato customer service associate about me ing months the Can- four earlier going disability I had told that Policy lapsed cer had May a premium my policy waiver of claim form In My would be out. sent doctor LeAnn’s ovarian can- I filled out the form and it.” returned cer On March Conse- .and returned. On June co received received letter from dated correspondence March restated documenta- wherein she In tion. provi- Statement Loss section WOP contained form, LeAnn indicated that her sion. Attached to the letter was another form, ovarian cancer had completed recurred and that she included begun Physician treatments re- cancer “Cancer section “to Statement” currence on June by Physician’s The claim form be Office” completed submitted by physician. LeAnn included a signed by “Cancer The claim form Physician Statement” section “to com- “Physician’s “give be instructed the Office” by Physician’s pleted disability,” Office” and dates signed no further in- Despite filing Conseco’s decision to terminate 13. The instructions the claim form memo, a Conseco internal indicate that RESERVES THE "CONSECO January acknowledged REQUEST issued in prob- TO ADDITIONALINFOR- RIGHT billing process lems for payroll deduc- ON ANY MATION FOR DETERMI- CLAIM policies, tion and indicated that "Conseco OF NATION BENEFITS.” Conseco Claim working policyholders in an effort to Form, (unnum- (08/04), No. CA-458 policy to remain allow current as valid their bered). Opinion, claims are considered.” Trial Court *9 11/26/14, at 18. 17, 2006, statement, July mailing to On completed The be Conseco.
struetion. 18, the November on Conseco received physicians LeAnn’s signed by one 2006, 16, indicated that LeAnn’s form. The WOP claim form WOP claim March 8, disability” “Physician was Statement” section included “date[] 2006, reoccur- completed by Physician’s cancer “to be Office” “ovarian due to an au- signed by physicians. form included one claim of LeAnn’s rence.” The LeAnn, by which was thorization, signed “Physi- The form directed the WOP claim signed by provide authorization “starting as the cian’s LeAnn’s same Office” 2003. See Conseco disability 25, July cancer,” LeAnn on date due no (un- (06/05), Form, at 3 CA-458 Claim No. completed further instruction. In the numbered). A separate form entitled statement, “Physician’s the. Office” incor- Processing Pur- Claim “Authorization rectly “starting indicated that LeAnn’s dis- LeAnn, signed by was at- poses,” also 21, ability April date due cancer” was form, “author- claim to the tached Additionally, 2003. the WOP claim form physician, medical any licensed authorization, ize[d] by signed included clinic, medical or practitioner, hospital, LeAnn, was as the the same authori- facility, the Veteran’s Ad- medical related 25, signed July zation on LeAnn 2003. ministration, company, insurance the Med- Form, See Waiver of Premium Claim No. Bureau, (MIB), em- Inc. ical Information (01/03), 2.14 CA-4 ployer agency disclose or Government Conseco mailed LeAnn additional claim about personal [LeAnn]” information 3, 24, August August forms 2006 and on on See Authorization for Claim Conseco. 2006, 8, September 2006. On Conseco re- No. Purposes, CIG-HIPAA- Processing signed by WOP claim form ceived another CM-CHIC 09/03. 18, August 2006. LeAnn on The WOP 12, 2006, April In dated correspondence “Physician claim form included a State- claim for LeAnn’s further Conseco denied “to completed by Physi- ment” section be stating benefits, “[y]our CANCER insur- signed by cian’s one Office” on 5-24-03. ance ended There- physicians. The WOP claim form fore, any pay you for cannot benefits “Physician’s provide directed the Office” to submitted.” Conseco Let- you the claims “starting disability date due to ter, 4/12/06, 1. cancer,” no further instruction. by telephone contacted Conseco statement, completed signed by one of again May on August physicians restating her belief that time each incorrectly that LeAnn’s indicated cancer May status. The she on WOP was diagnosed on December first supervi- to a telephone was escalated call The statement also that LeAnn’s indicated sor, Conseco had LeAnn that who advised disability “starting date due cancer” was completed WOP claim never received 27, 2006, March to her chemo due “new form, was not regimen.” to the WOP claim Attached status. WOP authorizations, form two signed were which were the same authoriza- Con- July On contacted signed she tions LeAnn on November advised that had a by phone seco On September form that she would and March completed WOP Form, Additionally, Claim the WOP form indi- claim." Waiver Premium No. right (01/03), Health reserves cates that "Conseco CA-4 request information on additional *10 14, 2006, respond 30, a letter LeAnn’s Conseco to LeAnn November sent receipt 2006, of her acknowledging 20, recent letter. On December Kelso sent filing, that “claim indicating her LeAnn a letter indicating that “we are still in or- processed be reviewed will researching your request require addi- Letter, it Conseco der was received.” Letter, tional time to respond.” Conseco 9/14/06, at 1. 12/20/06, at conducting 1. In such “re- later, search,” file, correspondence week Kelso One in dated reviewed the claim 21, 2006, September denied premium history, benefits, stating LeAnn’s claim further in documents Conseco’s central records de-
LeAnn’s inter alia submitted.” Conseco “[y]our ed On aco sideration your to battle an June bursed March, 2006. policy Through [USPS,] I had sick and annual paid through payroll taken paycheck[,] leave which been every feel doesn’t honor My I am disability [retirement] on November benefits to letter, 5-24-03. my last contract 14, 2003[,] CANCER cancelled battling out[,] form Letter, 11/30/06, 1. should cancer insurance day retirement. wherein her claim you was June in 30, 2006, the claims # I used was in 1992 and their Therefore, which cancer. insurance of work was 02/04/2003. employee be reinstated and you insurance sent error and she approved. My [*] Letter, 9/21/06, at 1. for the claims contracts. until me, your premium denial, requested I I deduction I time went have filled some shouldn’t have Kelso made no company had # coverage my disability coverage submitted sent Conse- believe cannot premiums I twice. I signed recon- noted, reim7 until end- who you last pay has out my I April Policy faulted LeAnn for failing resentations in her insured’s partment. in June of n 4, 2003, payment that LeAnn was not firmed Conseco’s that because was ter that cy lapsed during and annual approved. disability another letter to 1/5/07, at 1. application for disability retirement was cause “the [WOP claim] leave her seek 21, 2003[,]”15 had been had premium responsibility” benefits are has lapsed May reimbursement Instead, On January leave from that last physician Kelso indicated $16,200.00, form absence.” Conseco been reference to LeAnn’s she day paid position stating on gave disability November payments and “the terminated Kelso had eligible WOP be- 90-day work was in [sic] 5, made used accrued sick that wherein he con- 2007, simply that the Cancer error, error, notify notify completed that from date [Cancer begin.” period 2003. Kelso had “this is the Kelso sent the claim indicated until her but us it July 18, went on stopped LeAnn. Letter, daté of before would “if Poli- M16 rep- let- payment Conseco' made no assigned further Compliance Depart- analyst (“Kelso”) ment claim. never Dustin Kelso offered to 15, n Notably, form the WOP claim directs that extended under Office,” completed by.Physician's it is "to be May Using 2003 date disability and there is no evidence provided completed in the WOP first supplied provided by form was date, disability starting form as physician, personnel. opposed to office waiting trigger 90-day period required to premiums expire would not (cid:127)waiver above, payroll-deducted As stated the final July beyond period until a date premium payment, made June *11 of Trade Practices payment violations the Unfair pay premium LeAnn
allow .a 24, May Law from Consumer Protection period cover the that would (“UTPCPL”).19 2003, Complaint the 21, . July was the end of The which first notice that received re- waiting period triggered the Conseco had 90-day the diagnosis. 21, 2004 cancer “accepted” by garding Martin’s disability date April discovery, any After the did close of Conseco Nor Conseco deduct Conseco.. $16,200 On summary judgment. moved for March by LeAnn from premium owed 2012, 21, granted summary it it the trial payment had made her after in on all of deficiency. favor of premium judgment Nor Conseco discovered trial court also tell in Martin’s claims. The Conseco ever LeAnn order judgment in fa- simply granted partial- summary it a premiums, her needed to waive of LeAnn’s claims indicating that she vor Conseco on all physician’s statement February 24, except on for her of contract and bad breach disabled before became n Thereafter, claims. LeAnn’s remain- 2003. ing two claims were bifurcated. 2008, LeAnn sent a In June Conseco jury set for a breach contract claim was indicating that it had discovered letter trial, non-jury a on to be trial followed premium made on overage payments her bad claim. account, refunding and' that it was 14, 2013, trial, following jury May A to her. check in this amount was On $63.95 favor fol- admit- returned a Verdict enclosed with letter. years lowing for it Conseco had it took five to discover ted that determination employee Policy. parties issue. A breached overage damages contractual stipulated if it applied that even the over- stated had post-trial account, $31,144;50. filed age it would were to LeAnn’s' have Motions, amount which the trial court denied. pay insufficient to the full been waiting premium required 90-day for the non-jury A trial on LeAnn’s bad faith 21, period extending April from the 24, 2014, on claim commenced June “accepted” disability by Conseco.17 3, July On on June 2014. concluded the trial court entered Verdict and Mar- On December Rancosky post-trial filed favor. against tin this Conseco.18 Conseco’s instituted action Motions, On which the trial court denied.. Complaint, In their and Martin 1, 2014, contract, faith, fraud, August court entered trial alleged breach Judgment Rancosky on both misrepresentation, negligent Verdicts. negligent su- timely Appeal, duty, filed Notice pervision, fiduciary breach above, 11/26/14, Opinion, at 8. As premiums Court for the noted Cancer date, April "accepted” disability paid. using had been starting LeAnn’s disabili- date for waiting period required trigger 90-day 11/26/14, at ty. Opinion, Trial See Court expire premiums would waiver of LeAnn’s Accordingly, Pol- .Conseco deemed July until icy lapsed May due to have expira- non-payment premiums prior to the brought Martin claims 18. LeAnn and also 90-day waiting July period tion against Insurance Benefit National Coordina- Clifford, However, par- tors and Jack .these prior ties were dismissed are not applied if 17.Conseco maintained parties appeal. this overage premium payment for as a it would have extended the .24, §§ 201-1 to 201-9.3. 19. See 73 P.S. only to Trial June by Pennsylvania [a]ppellate of Mat- ed Concise Statement court-ordered Complained Appeal. [c]ourt decisions[?] ters trial court 3.[Whether t]he erred Rancosky raises the follow- appeal, On granting Motion [Conseco’s] for our ing issues review: Judgment^] Summary and dismiss- July trial court’s [Whether t]he *12 ing the claims of [ ] individual Mar- Finding 2014 Verdiet and that [], tin for breach contract and in violation not acted had Pa.C.S.A, violations of [section] 8371[?] § of 42 8371 is er- ror[,] supported since it is neither Appellant Brief for at 5. evidence, by the nor the of record issue, Rancosky In his first contends Pennsylvania [ajppellate [c]ourt’s court erroneously trial deter interpretations by is meant what mined no bad faith occurred because denying for “a basis reasonable “failed to prove he Conseco had a dis benefíts[?]” . or purpose” a “motive of honest self-inter by A. trial court erred t]he [Whether against or ill-will” LeAnn. for est Brief Con-, finding it for was reasonable (citing at Trial Appellant Opin Court on the deny seco the claim ion, 19). 11/26/14, at Rancosky asserts ,. P]olicy basis that [Cancer that, pursuant prevailing Pennsylvania lapsed[?] and [been] forfeited law, bad is established the in by court B. trial erred [Whether t]he (1) the insurer sured demonstrates finding it for Con- was reasonable for denying lacked reasonable basis ben place above seco to its interests (2) or policy; under and knew efits Martin?] those [LeAnn recklessly disregarded its lack of a reason C. trial court t]he erred [Whether denying basis in the claim. Brief for able finding investigation Consecof’s] (citing Terletsky at v. Appellant Prudential reasonable[,] per- since it was op. Pr Cas. Ins. (cid:127) honest, objective formed in an (1994)). Pa.Super. 649 A.2d intelligent manner[?] Rancosky trial claims that the court erred D. court [Whether t]he trial erred purpose” that a by determining “dishonest 1 failing [Conseco’s] to consider or or “motive self-interest ill-will” light
conduct in the standards for a finding third element of bad required Unfair contained in the Insurance faith, Rancosky failed to meet [“UIPA”], 40 Practices Act P.S. proof. this standard of erroneous Brief 1171;5(a)[?] [§] Rancosky Appellant argues that 31... a “dishonest or “motive of self- purpose” court t]he E. trial erred [Whether by finding merely probative not com- interest or Conseco did ill-will” faith, of the test for prong mit insurance bad under the second § through Terletsky. Pa.C.S.A. its ac- Ap as identified in Brief creating a reasonable ex- tions pellant (citing v. Greene United coverage[,] Ass’n, then pectation 1178, 1190-91 Auto. Servs. denying coveragef?] Rancosky (Pa.Super.2007)). contends at Conseco’s im looking rather than court erred [Whether t]he trial proper conduct- toward con- failing [Conseco’s] consider erroneously specific court evi during looked toward duct [LeAnn] viola- dence of Conseco’s self-interest ill-will. pendency litigation[,] of this n 8371[,] interpret- Appellant tion of Brief [section] (1) the amount nonjury in a case is limit- Award interest review Our claim from the claim was date the findings of the trial ed to whether in an amount made the insured competent supported court evi- are equal prime of interest to the rate trial court com- whether the dence and plus 3%. in the of law. application mitted error (2) against punitive damages findings the court’s Award grant We must insurer. weight and effect as fact the same and, accordingly, jury (3) attorney verdict of costs court fees Assess only nonjury if verdict against disturb the insurer. findings are unsupported by court’s § 42 Pa.C.S.A. 8371. competent commit- evidence Pennsylvania legislature *13 legal that affected the outcome ted error faith, not of bad as provide a definition of the It is not role of trial. the an 8371, nor in section did it that term is used pass credibility on the appellate court an set forth the manner insured which witnesses; of hence we will not substi- Supreme prove our must bad faith. While of judgment tute our the issues, yet has not addressed these Court Thus, apply test we the is fact[-]finder. that, to succeed on a this Court has ruled
not
we would have reached the
whether
claim,
present
the
must
bad
insured
presented,
on the
same result
evidence
convincing
satisfy
evidence
a
clear
rather, after due consideration of
but
(1)
part
the
did not
two
test:
insurer
have
the
which the trial court
evidence
found
denying
reasonable basis
benefits
a
credible,
the trial court
whether
could
(2)
the
insurer
policy, and
the
knew
under
reasonably
have
reached its conclusion.
disregarded its lack of
recklessly
of or
denying
the
reasonable basis
claim.
Exchange,
Hollock v. Erie Ins.
842 A.2d
Terletsky,
(en banc) (ci
649 A.2d
688. “There
a
(Pa.Super.2004)
413-14
requisite
culpability
omitted).
level of
associated
tations
negli
Merely
a
of bad
finding
faith.
of
the cornerstone
Ranee-
Because
conduct, however harmful to the in
gent
sky’s first
issue is
court
insured,
recognized by
of
terests
application
in the
of
committed
law
error
Pennsylvania
categorically
to be
courts
be
Rancosky to
a
requiring
prove
“dishon
required
showing
for a
low
threshold
purpose” or “motive of
est
self-interest or
Greene,
of bad faith.”
Moreover, banc) occupation-relat- despite (holding an insurer’s investiga “disability’ ed definitions set forth‘in tion can inadequate be it relies on a Policy,' provided physician’s nb determining without report explanation forms that physician complete whether the has un “disability” term solely relates derstanding occupation); of the insured’s ability perform insured’s his or oc- also see Greco v. Paul Revere Life Indeed, *5-6, cupational duties. none of Ins. WL 95717 (E.D.Pa. provided forms Dist. U.S. LEXIS 110 at *15-17 1999) (wherein physician’s included a state- the district court held that ment, explained “Physician’s that the upon physician’s Of- the insurer’s reliance *16 was initially required fice” to identify that was not the determination the insured ' disabled, “substantial and pro- duties” was not physician material the form, Notably, provision the appears WOP of the WOP claim form or claim other requires Policy merely pro- the insured completed by "Physi- been the to-have same "physician's vide statement.” Nowhere in personnel worldng cian’s Office” in the same provision WOP of the Cancer the does office. specify only type "physician’s it that the statement" that can used is one be that is Nor did of Conseco’s claim forms ad- form, in opposed a WOP claim included to that, "Physician’s vise the Office” after the type one included in a another claim form (i.e., first 24 months LeAnn’s "loss” after Indeed, by supplied "Physician Conseco. the 4, 2005), February required they were to Statement” section contained in WOP the identify "qualifications,”' "by her reason of virtually claim forms seeks the same informa- education, experience,” training or and to requested Physician as is tion in "Cancer thereafter determine whether she was unable section in Statement” contained the other perform any job quali- to she for which Moreover, provided by forms claim Conseco. fied. physician each the four statements com- pleted by physicians, LeAnn’s whether in a disability. should of of LeAnn’s So too policy correct definition with the
vided
to
complete
not have a
un-
attached
initial
did
documentation
“disability,”
forms,
that,
occupation,
during
insured’s
which evidenced
derstanding
90-day
period,
spent
important
waiting
familiar with the
she
and was not
aspects
of the
days
hospital
involved
some
of 26
in the
functions
total
under
occupation, provided evidence
insured’s
numerous other medical treatments
went
However,
fact-finder could determine
from which a
sessions.
chemotherapy
it
in bad faith when
investigation.
insurer acted
Conseco
no such
conducted
claim).23
insured’s
payments
Rather,
ceased
merely “accepted” April
Conseco
the com-
we conclude
Accordingly,
starting
2003 as
date
physician’s
received
pleted
statements
disability,25thereby permitting Conseco to
indicate when LeAnn
did
position
that the Cancer
maintain
Poli
cancer,
“unable,
to
first became
due
pre
cy
lapsed
non-payment
had
due
to,
material
the substantial and
perform all
expiration
prior
miums
of the 90-
and,
regular occupation,”
of [her]
duties
period.
day waiting
therefore,
provide
with a
Additionally, given the extensive docu-
determining
when LeAnn
proper basis
mentation
medical records
Conse-
pursuant
first became “disabled”
processed
co received
in order
ap-
Policy.
terms
LeAnn,
prove
payments
Conseco was
informed
Notably,
that some
recognized
should have
claim,
outset of
that she
at the
physi-
information contained
the four
“disabled,” as that term is de-
had been
statements
had received was
cian’s
it
in-
than
more
fined
(ie.,
first diag-
correct
that LeAnn was
days
first hospital-
from her
90 consecutive
with ovarian cancer on December
nosed
ini-
ization
2003), thereby rendering
other
infor-
forms, signed by
May
her on
tial claim
suspect.
mation
therein as
contained
Conseco that she
been
advised
Condio,
(holding
899 A.2d at
if
occupa-
current
[her]
“unable work
that discredits the ,
evidence arises
insur-
90-day waiting
throughout
peri-
tion”
basis,
duty
er’s
insurer’s
reasonable
od,
expired May
have
would
good
dealing requires
and fair
2003.24
Hollock,
its position);
reconsider
see also
(noting
842 A.2d at
the trial
court’s
subsequent receipt of differ
dates,
the insurer acted in
determination
ing
which indicated later
disability
on,
alia, its
disability,
faith based
inter
failure
start of LeAnn’s
dates for the
value of the
to under
re-evaluate the
insured’s
prompted
should
have
claim, despite having
investigation
starting
into the
received
take an
several
application for
is guilty
bound
federal
in an
insurance
Although
this Court is not
tion
law,
interpreting Pennsylvania
opinions
may be
fines
subject
crime
of a
*17
persuasive
may
cases as
consider federal
prison.”
in
Conseco
confinement
Claim
v. TNT
authority.
(unnum-
Enters.
Form,
See
(07/02),
Cambria-Stoltz
1
No. CA-458
at
Invs.,
(Pa.Super.2000).
A.2d
bered).
complet-
of
Notably,
each
the claim forms
25.By
"accept”
the time Conseco decided to
6,May
signed
ed
starting
2003 as
date of LeAnn’s
following:
Any
“WARNING:
included the
(i.e.,
disability,
dates
it had received two other
presents
person
knowingly
a false or
who
2003)
July
for
2003 and
payment
for
of a loss or
fraudulent claim
disability.
start LeAnn’s
knowingly presents false informa-
benefit or
cancer,
ovarian
day
should have
last
she
pieces
which
worked at
information
USPS,
had,
fact,
-or
value).
whether she
in
to
used
caused it
re-evaluate-the
annual and sick leave
her payroll
extend
to
or
provided no reasonable
ra
Hollock,
to
status
June
See
explanation
delay
for
its
tional
investi
A.2d at
(noting
419-20
court’s
gating
claim.
Trial Court
LeAnn’s
insurer,
determination that the
had acted
11/26/14,
(concluding
at 19
that
Opinion,
alia,
in bad
by,
refusing
inter
to
entirely
begin
too
to
long
“Conseco waited
contact the
to
employer
insured’s
deter-
an
the number
investigation[,] given
such
mine the
inability
of her
to
extent
com-
frequency of [LeAnn’s]
communica
tasks).
plete assigned
Nor did Conseco
regarding
company
tions
her
contact
Security
the Social
Administration
provision”). The record reflects that
WOP
to determine the
for
basis
its award of
any
to conduct
purport
LeAnn,
disability retirement benefits to
investigation regarding LeAnn’s claim un
date
such award.
til it
recon
request
received LeAnn’s
Nor
any
did Conseco contact
LeAnn’s
eighteen
sideration
December
physicians to determine when LeAnn first
months
it had first
after
conflict
received
became
perform
unable to
the “substantial
ing
regarding
starting
information
position
and material
duties”
her
time,
By
that
disability.
LeAnn’s
date
Mohney,
USPS. See
100
2003,
14,
for
through
of
June
and the
determine the basis
its award
dis-
deductions
LeAnn,
ability
to
and
disability
provided in the
retirement benefits
differing
dates
the date of such award. Conseco
on such
further
physician’s statements. Based
to
information,
treating
contact
of LeAnn’s
failed
un-
conflicting
Conseco
when
to
LeAnn first
claim,
physicians
determine when
LeAnn’s
it
investigate
dertook to
unable,
cancer,
became
her ovarian
due
such
required
investigation
to conduct
was
and
perform
“substantial
material
faith,
accurately
in order
deter-
good
in
position
of
duties”
her
USPS.
starting
date
LeAnn’s disabili-
mine
Condio,
A.2d at
ty.
899
1142.
See
meaningful
If
had conducted
investigation claim or under-
LeAnn’s
Moreover,
30,
her November
2006
in
to “research”
new information
taken
Conseco,
letter, LeAnn advised
for
by
by contacting
supplied
such as
time, that, although her last day of
first
USPS,
Administration,
Security
the Social
4, 2003,
February
her
work was
automatic
treating physicians,
LeAnn’s
payroll
had continued until
deductions
had, in
would have determined that LeAnn
14, 2003, because she used her ac-
June
fact,
cancer,
per-
due to
been “unable
from February
sick
annual leave
crued
form all the
duties
substantial
material
14, 2003,
2003,
4,
until
when her
June
occupation”
regular
since Febru-
[her]
disability
application for
retirement status
4, 2003, and
she
on
ary
had remained
approved.32 This new information
was
dis-
beyond
payroll
the USPS
date
credited
basis
the denial
Conseco’s
using her
sick and
leave
accrued
annual
claim,
premised
was
LeAnn’s
14, 2003,
application
until June
when her
21,
“acceptance”
Conseco’s
disability
ap-
retirement
status was
disability
provided
the No-
Further, had Conseco conducted
proved.
18,
claim
vember
2003 WOP
As
form.
good
investigation
faith
above,
good
duty
noted
faith
claim, it
pre-
determined that
would have
obligation
ongoing
during
an
vital
paid
miums had been
the Cancer
claim,
management of LeAnn’s
entire
throughout
90-day waiting
applicable
duty
required
such
reconsider
period extending from LeAnn’s true dis-
accordingly.
act
position
its
id. at
date,
ability
February
was entitled
WOP benefit
As noted
when Conseco
previously,
first
Policy.
provided
investigate LeAnn’s
undertook to
December of
it
failed
contact
Conseco’s failure to
conduct
meaningful
investigation
USPS
determine
“substantial and
position
material duties” of
to do so in
undertook
December
diagnosed with
time she was
ovarian can-
to reconsider
refusal
its deni
cer,
USPS,
day
worked at
coverage
the last
she
new
al of
based
informa
fact,
had,
provided
whether she
used annual and tion
LeAnn in her November
letter,
payroll
sick
her
leave to extend
status to
new
injuries
constituted
Romano,
also
June
con-
2003. Conseco
failed to
LeAnn. See
A.2d
Security
(holding
tact the
Administration to
faith
Social
that bad
conduct includes
Although
LeAnn advised Conseco
her
sick and
until
used
2003,
annual leave
June
initial
she
claim forms that
"had been "un-
application
disability
or that her
occupation”
to work in
able
current
from
approved on
retirement status was
June
6, 2003,
May
until
previously
was not
advised that LeAnn had
investigation);
on May-
see also
ended
Id.
good
lack
that,
Condio,
(holding
if
at 84. The
A.2d at
Dissent also asserts
to the
that discredits the insur
extent
arises
asserts
evidence
claim,
claim based on
denying
lapse
reasonable basis
Conseco’s decision to
er’s
duty
good
fair
period
the insurer’s
faith and
the limitations
*21
its
for
dealing requires
posi
began
it to
such
to run
on
reconsider
“either
Indeed,
accordingly).
March
tion and act
these
when Conseco first advised
injuries
LeAnn
subsequent
sepa
P]oliey
constitute
that
Cancer
[the
faith,
September 21, 2006,
rately
lapsed,
actionable instance of
dis
on
bad
to
ini
request
tinct from and unrelated'
Conseco denied LeAnn’s
for WOP
monetary
to LeAnn
tial denial of
benefits
and advised
that
had ended
24,'2003.”
lapse
Policy.
May
or its
to
on
Id.
decision
Adamski,
Thus,
A.2d at
See
However, the Dissent bases
conclu-
its
period began to run on
new limitations
sion on Conseco’s
monetary
denial of
bene-
January
when Conseco communi
fits to
decision to
lapse
its
(1)
to
the results of its
cated LeAnn
inade
considering
without
(2)
investigation; and
refusal to
quate
its
based,
for
claim bad faith
on Conseco’s lack
provided
consider the new evidence she
good
investigation. As noted
faith
for
basis
its
discredited Conseco’s
de
above, a claim
.for bad faith
be based
coverage.
(holding
nial
See id.
that a on
investigative practices.
an. insurer’s
.
period begins
new limitations
to run from
Romano, 646
(holding
A.2d at 1232
faith). Accordingly,
later acts
bad
faith
bad
conduct includes lack of
claim,
LeAnn’s bad faith
commenced on
investigation);
Condio,
good faith
also
see
22, 2008, is not
December
time-barred.33
that,
at 1142 (holding
if evidence
disagrees
We note that the Dissent
arises that discredits the insurer’s reason-
conclusion,
claim,
for denying
our
and asserts that LeAnn’s
able basis
the insur-
duty
faith
Op.
good
dealing
bad
claim is time-barred. See
er’s
faith
fair
requires
Dissent
position
82-85. The
asserts
reconsider its
accordingly,
act
noting
extent
that LeAnn asserts a bad faith
that the section
an,
faith
good
duty
ongoing
claim based
Conseco’s denial mone-
vital
tary benefits,
period
obligation during
the limitations
for
management
the entire
claim).
began
declining
acknowledge
such claim
to run on
In
first
tenets of
faith
Pennsylvania’s
when Conseco
advised LeAnn that it
these
bad
law,34
any
could not
to her
the Dissent has
pay
benefits
because
failed
acknowl-
inadequate
Although the
cases
an
contained a
none
those
involved
clause,
operate
suit
such
limitations
clauses
investigation,
request
a,
initial
nor
for recon-
under,
arising
limit
insured’s claims
sideration
infor-
based
new
an.insured
policy,
as a breach of contract claim.
such
mation that
for
discredited the insurer's basis
However,
apply
not
suit limitations clauses do
of,
Further,
denial
the claim.
the Dissent's
claims because
bad faith
such claims do
upon
Harleysville
reliance
Jones
Ins.
v.
Mut.
not
contract.
arise under
insurance
Se
Co.,
[ review is diagnosed pan Martin was clear; standard of review is we will re- creatic cancer on October 2004. Five verse the order of months later on only the trial court March retroactively the court when committed an error of terminated the Cancer Poli to cy. Due the fact that both Summary law or abused discretion. Martin and cancer, judgment appropriate only battling may LeAnn were not when the possible” have been clearly “reasonably record for shows Mar that there no to tin provide of notice of his issue fact and written genuine material to moving party days to Conseco within 60 or written judgment the is entitled days. Moreover, proof of loss if reviewing as a matter of within 90 law. The it was not “reasonably possible” for Mar light the must view record the most .in to provide tin nonmoving prior favorable to the such notice to March party and not" all Martin have resolve doubts as to the existence of been re to quired provide a of of his claim genuine against issue fact notice material Conseco, given moving decision to party, dnly the facts ret the roactively so the are clear that minds terminate on reasonable could not date. See Arlotte v. Nat. Liberty differ cari a trial court properly en- Co., summary judgment. Ins. 312 Pa. A. ter (1933) (holding will insurer not “[a]n U.S., Kvaerner Metals Div. Kvaerner permitted be advantage take the Inc. v. Commercial Ins. Union perform failure insured condi (2006) (inter Pa. 908 A.2d 895-96 precedent tion in policy, contained omitted). nal citations where the insurer itself is the cause Here, condition.”); the trial court Martin’s failure to perform dismissed see against Am., claims Conseco on the basis also Slater v. Gen. Cas. Co. provided (1942) he “never (holding written Pa. [Conseco] that, following notice of claim or written of loss proof as insurer’s cancellation of 1, 2014, solely August it relates to required insured was policy, faith, claim for bad insurer of lawsuit filed LeAnn’s remand inform the for him, provi- to the for a trial on LeAnn’s claim pursuant notice new bad against noting that the insured faith.36 policy, sions thing.”). a vain to do required
was “not Judgment affirmed. vacated in Order However, Rancosky failed to identi- has . part. proceed- for further Case remanded evidence, opposition raised fy any LeAnn’s faith claim. ings on bad Jurisdic- Summary Judgment, Conseco’s Motion relinquished. tion “reasonably demonstrating it was provide Martin to notice BENDER,
possible” P.J.E., joins the opinion. retroactively ter- Conseco before JENKINS, J., concurring files a Pa¡R.C.P. Policy. See minated dissenting opinion. oppose in order to (providing 1035.3 judgment, ad- summary motion for AND DISSENTING CONCURRING upon may not rest mere alle- party verse JENKINS, BY J.: OPINION pleadings but gations or denials majority’s I concur with decision more issues of one or fact identify must entry summary judgment affirm the in the contro- record arising from evidence favor of Conseco1 on Martin’s claims. I support of the cited verting the evidence majority’s respectfully from de- dissent motion, identify in the record evidence vacate judgment cision to essential the cause establishing the facts claims and new remand action). Rancosky Because has failed claim for bad under Pa. evidence, opposi- presented identify view, my § In C.S. Summary tion Motion to Conseco’s Pennsyl- faith claim is under time-barred “reasonably pos- it was not Judgment, that two-year statute limitations for vania’s *24 in com- provide notice sible” for Martin faith, § 42 bad Pa.C.S. of the Poli- pliance the terms in majority 30 of contends footnote The cy, has to demonstrate failed Rancosky opinion its waived the statute Conseco genuine he issue of appeal raised failing limitations issue to raise in Thus, in the trial court. material fact post-verdict I am constrained to motions. light favor- record in the most viewing the disagree. Rancosky, nonmoving party, as the able to the trial court conclude cannot trial, during the close of evidence At its law abused committed an error for Conseco moved a directed verdict summary granting judgment in discretion faith claim based on the stat- LeAnn’s bad dismissing in Mar- favor N.T., 6/27/14, of limitations. ute 168-72. tin’s claims. trial court took the motion for The direct- Therefore, Id. at we affirm the trial court’s ed verdict under advisement. trial, trial 21, granting Subsequent the court entered 2012 Order March in Conseco on the summary judgment and a decision favor of mer- Motion for dis- its, finding present that LeAnn failed to claims. We also vacate missing Martin’s convincing Judgment clear and evidence bad faith. part court’s entered the trial 2014, 1, August 1. I entered on use the same shorthand references to the judgment 36. The jury’s majority opinion. the verdict the breach parties as in the it relates to trial, is before us and remains not contract our herein. unaffected determination
105
Verdict, 7/3/14,
full
trial
extent of harm is
1-2.
court did
known when
action
complaint
arises.” Id.
statute of limitations issue.
“Whether
address the
timely
is
period
filed within the limitations
winner,
As the
could not
verdict
ais matter of
law1
the court
deter-
post-verdict
objecting
file
motions
Indus.,
mine.” Crouse Cyclops
v.
560 Pa.
trial court’s
statute
failure
decide
394,
(2000).
745 A.2d
611
“Once a
Labe,
limitations
352
issue. DeFazio v.
cause
action has
pre-
accrued
(1986)
414
Pa.Super.
507 A.2d
period
run,
statutory
scribed.
has
an- in-
(“[because]
directing
is the
judgment n.o.v.
jured party
bringing
is
from
barred
his
losing
of a
party,
verdict
favor of
Checcio,
cause
action.” Fine v.
582 Pa.
.,.
despite
contrary
verdict
wé
(2005).
857
agree
must
with the lower court
therefore
Pennsylvania courts have held that a
ivinners,
appellees,
as verdict
lack
§
42
under
Pa.C.S.
8371 is
n.o.v.”)
standing
judgment
to move
deemed to have accrued at
point
original).2
(emphasis in
Because
claim insurance
is
benefits
denied.
first
winner,
standing,
lacked
as the verdict
See, e.g.,
Co.,
Ash v. Continental Ins.
post-verdict
file
motions
court
A.2d
(Pa.Super.2004)
(two-year
seeking judgment n.o.v. on the statute of
period began
limitation
running at initial
limitations,
not waive
stat
denial
damage to insured’s
ute of limitations
in this Court.
argument
property
first-party
policy),
under
fire
demonstrates,
addition,
In
the evidence
aff'd,
(2007);
593 Pa.
Parts, Grange Inc. Mut. Ins. v. Nat’l against for bad mence an action (E.D.Pa.2009) 354, 365 F.Supp.2d lapsing right faith in ac- Policy, that (“where clearly unequivo an insurer 9, 2005, on March crued either when Con- cally on notice he puts insured policy seco first LeAnn that her advised particular not be a she will covered under 21, 2006, on lapsed, September occurrence, particular the stat policy request when Conseco denied LeAnn’s begins to. run and the ute limitations WOP and advised that her ended period the limitations cannot avoid insured (cid:127) on May were no benefit 2003. There continuing asserting, refusal to for a claim denials under either faith”). act of separate was a cover bad payment September or WOP after case, this on In March latest, Therefore, the two- advising that her sent letter year began faith statute of limitations D-17. policy lapsed. Despite Exhibit this September 2006. LeAnn running 27, 2006, lapse, LeAnn sent March Con- action instituted this via writ summons seeking payment seco claim form addi- than two December more In tional benefits'. Exhibit D-34. a letter years September Docket after 2006. . 12, 2006, Conseco this April dated denied Entries, Therefore, at 5. her bad faith claim and that “Your CAN- advised LeAnn claim is time-barred. coverage' on 5-24- CER insurance ended Therefore, pay any we cannot benefits I disagree with claim that the you Ex- you the claims submitted.” of limitations commenced when statute 12, 2006 hibit D-39. The tetter was Jan- Conseco sent tetter dated *26 only claim for payment denial of a uary November response to her benefits that sent LeAnn. Exhibit D-50. This tetter 2006 tetter. did not of claims September On make denials received merely histo- a WOP Form from benefits summarized the Claim but Finance, LLC, Although v. of.federal Chase Home decisions district courts Dietz courts, Pennsylvania binding (Pa.Super.2012). are not 886 n. A.3d persuasive authority. still consider them ry claims, respect ex
plained why policy previously lapsed,
explained several paid claims were but plan
error that Conseco to seek funds, for those
reimbursement and en duplicate copy
closed Id. As authorities review. demonstrate,
cited above Conseco’s letter
explaining its prior denial of benefits Jones,
WOP did not toll the statute. See
Cozzone, supra. reasons,
For I respectfully these dissent
from majority’s decision on LeAnn’s ground
bad faith claim on the that the trial
court properly entered a verdict in favor LeAnn’s bad faith claim.
Roy LOMAS, Sr., H. Roy Lomas d/b/a/
Carpet Contractor, Appelle
e v. KRAVITZ, B.
James Springs Andorra Inc.,
Development, Cherrydale Con Development
struction Eastern
Enterprises Inc., Kravmar, Inc.,
Appellants. Court,
Superior Pennsylvania.
Argued Oct.
Filed Dec.
notes
Conseco’s Manual
alleged trial
Shelhamer
the
error. See
v.
evidence,
objec
was admitted into
without
Crane, Inc.,
(Pa.Su
767, 770
John
58 A.3d
tion,
trial.
Id.
at the breach of contract
at
227.1(b)(1);
see
per.2012);
also Pa.R.C.P.
Rancosky points
out that the Manual
302(a).
Rancosky
Because
Pa.R.A.P.
provides
ways to
of
proof
three
establish
any
to raise
objection
failed
Conseeo’s
(1)
statement;
(2)
disability:
physician’s
strategy
of
litigation
or the conduct Conse-
form;
(3)
call to
phone
a claim
trial,
until
his claim
counsel
co’s
after
physician.
Trial Court
policyowner’s
Sea
Shelhamer,
at
770.35
waived.
11/26/14,
Rancosky’s
(citing
Opinion;
at 3
issue, Rancosky
his
con
In
final
(Breach
Exhibit 75 and N.T.
of Contract
by entering
trial
tends that the
court erred
147-49).
Trial), 5/7/13,
Rancosky
at
as
summary judgment in favor of Conseco on
that,
Manual,
pursuant
to the
serts
Appellant
claims.
at
Martin’s
Brief
initial 'claim forms
established her
that,
Rancosky asserts
because LeAnn
4, 2003, and,
disability
of
as
Martin were
on LeAnn’s battle
focused
accordingly,
to WOP.
her entitlement
Brief
cancer, they
ovarian
not
However,
with
immedi
Rancosky
at 63.
Appellant
contends,
trial,
ately notify
pancreatic
during
Conseco of Martin’s
bad
the
Conse-
cancer,
diagnosed
which was
objected to
admission of
October
co’s counsel
the
Manual,
Rancosky
2004. Id. at 58.
claims
affirmatively
stated that
of
by Conseco em
Conseco
its
the Manual was not used
because
informed
retroactively
Id. at 64.
ployees
adjusting claims.
decision
terminate
Rancosky
asserts
the trial court erred Cancer
five months after Martin’s
diagnosis, it
futile
litigation
not
would have been
considering Conseco’s
to submit his claim on a
strategy
applicability
to disavow the
Martin
canceled
waived,
property damage
if this
its
of her'
35. Even
issue had not been
we
reconsider
denial
grant
charges,
Rancosky.
could not
relief to
In
acquittal
claim based
of arson
trial,
("Rikkers”),
David
Rikkers
nothing
there is
the case that indicates
Legal
Compliance
Interface
Ana
whether,
reviewing
in the
course
tran-
lyst, testified that Manual “is not used
script
proceedings,
criminal
insurer
adjudicating
types
these
of claims.” Trial
presented
was
new information that
11/26/14,
(citing
Opinion,
Court
at 16-17
N.T.
coverage,
prior
its
discredited
denial
Trial), 6/27/14,
78-79).
(Bad Faith
Be
including
multiple grounds'/
was
ar-
based
the trial court found Rikkers’s testimo
cause
son,
fraud,
misrepresentation,
policy
various
informative,”
"highly
ny to be
credible
satisfied, and the
conditions that had not been
11/26/14,
Opinion,
Trial Court
to cooperate.
insured’s failure
reweigh
testimony regarding
Rikkers’s
See Hollock,