Fretz v. Mutual Benefit Insurance

37 Pa. D. & C.4th 173, 1998 Pa. Dist. & Cnty. Dec. LEXIS 149
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedAugust 3, 1998
Docketno. GD97-000275
StatusPublished
Cited by1 cases

This text of 37 Pa. D. & C.4th 173 (Fretz v. Mutual Benefit Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fretz v. Mutual Benefit Insurance, 37 Pa. D. & C.4th 173, 1998 Pa. Dist. & Cnty. Dec. LEXIS 149 (Pa. Super. Ct. 1998).

Opinion

WETTICK, J.,

The subject of this opinion and order of court is plaintiff’s motion to compel defendant to produce any documents pertaining to the loss reserve that defendant established for plaintiff’s claim for underinsured motorist benefits.

This is a bad faith action commenced pursuant to 42 Pa.C.S. §8371. The claim arises out of a 1991 accident in which an automobile operated by plaintiff was involved in a collision with an underinsured vehicle. At the time of the accident, plaintiff was insured under a policy of insurance issued by defendant which provided for underinsured motorist benefits with a $100,000 limit of liability. In March 1996, plaintiff, with defendant’s consent, settled his claim against the tortfeasors for the liability carrier’s bodily injury policy [175]*175limits of $100,000. Subsequently, plaintiff’s counsel demanded that defendant pay the policy limits of UIM coverage of $100,000. Defendant’s highest settlement offer was $65,000; plaintiff rejected this offer. The panel of arbitrators that heard plaintiff’s UIM claim entered an award in plaintiff’s favor, finding that he was entitled to benefits in the amount of $265,000 less the $100,000 received from the tort-feasors’ liability carrier. Because of the UIM policy limits, plaintiff’s recovery was reduced to $100,000.

Plaintiff alleges that his counsel supported plaintiff’s claim for payment of the UIM policy limits by supplying defendant with medical reports which established that plaintiff will never be able to return to work and with work records which established a projected loss of earnings "of almost $400,000- as a result of plaintiff’s disability. Plaintiff’s bad faith claim is based on defendant’s failure to make a reasonable settlement offer.

In its answer, defendant raises two primary defenses. Defendant alleges that it had a reasonable basis for concluding that plaintiff was not totally disabled from working. It also alleges that it relied in good faith on advice of counsel.

Plaintiff raises the following argument in support of his discovery request. In a bad faith action, the motivation of the insurance company is relevant. “[Mjere negligence or bad judgment is not bad faith.” See Terletsky v. Prudential Property and Casualty Insurance Co., 437 Pa. Super. 108, 125, 649 A.2d 680, 688 (1994). Consequently, evidence showing that defendant believed that the case was worth more than its settlement offers is relevant in a bad faith action. Thus, if defendant had valued the case at a significantly greater amount than the amount of its settlement offers, a fact-finder may determine that this conduct establishes that de[176]*176fendant did not make a good faith effort to settle the case at a fair and reasonable value.

Defendant raises two arguments in support of its position that plaintiff should not be permitted to discover the amount of loss reserves set by an insurer for individual claims. First, defendant contends that information regarding the loss reserves is not relevant because a loss reserve cannot be fairly equated with the value of a claim. Second, defendant contends that information regarding loss reserves for individual claims should be protected because the purpose of the statutory obligation to maintain reserves is to ensure the financial stability of insurance companies. If loss reserves set by insurance companies on individual claims are discoverable in bad faith actions, insurance companies may set low reserves. This will undermine the legislative purpose for loss reserves.

I initially address the second argument. As defendant recognizes, insurance companies are statutorily obligated to establish a loss reserve for each claim. I know of no case law which suggests that information should be protected from discovery as a matter of public policy because the production of the information may create an incentive to violate a legal obligation.

In Cowell v. Borough of Penn Hills, 34 D.&C.3d 539, C.P. Allegheny (1982), the plaintiff instituted a lawsuit against various municipalities to recover damages for personal injuries allegedly inflicted by police officers without justification. Through discovery, the plaintiff sought the municipalities’ investigative files regarding the incident. The municipalities opposed the discovery on the ground that the production of investigative files will discourage police departments from conducting internal investigations. I rejected this argument on two grounds. First, it is the job of the leg[177]*177islature — and not the courts — to create new privileges based on public policy grounds. Second, police departments are obligated to determine whether a charge is founded whenever any complaint of criminal activity is filed. Also see, Azen v. Lampenfield, 18 D.&C.3d 574, C.P. Allegheny (1981); Goodrich-Amram (Second) §4011(c):2.

I next consider the argument that there is an insufficient relationship between the loss reserve that an insurance company establishes for an individual claim and the value of the claim for purposes of litigation. Defendant supports its position by relying on the reasoning of a federal district court in Taxel v. Equity General Life Insurance Co. (In re Couch), 80 B.R. 512 (S.D. Cal. 1987). In that case, the court reversed an order of the bankruptcy court permitting discovery of the insurance company’s loss reserves on the ground that the bankruptcy court mistakenly characterized a loss reserve as an insurer’s estimation of probable or potential liability. The court stated:

“The legislature and insurance commissioner establish reserve policy. For this reason alone, a reserve cannot accurately or fairly be equated with an admission of liability or the value of any particular claim. See Union Carbide Corp. v. Travelers Indemnity Co., 61 F.R.D. 411, 413 (W.D. Pa. 1973). (‘The contingent and uncertain nature of reserves’ might make questions regarding them tantamount to hypothetical questions.) Further, loss reserves must reflect all potential claim expenses. Any claim in which the insurer undertakes to defend the insured must be reflected in reserves since there will be claim handling expenses, including the attorney’s fees and court costs of defense.” 80 B.R. at 517.

I agree with defendant that the controlling issue is whether the factors that are considered in establishing the amount of the reserve for a particular case are suf[178]*178ficiently similar to the factors that are considered in valuing this case for settlement purposes so that the amounts should be somewhat similar. However, for reasons that I will discuss, I reject defendant’s position that on the basis of the current record it is clear that the amount of the loss reserve set by defendant for plaintiff’s UIM claim has little to do with the value of plaintiff’s UIM claim.

The computation of loss reserves is governed by section 311 of the Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789, as amended, 40 P.S. §92 (Supp. revised 1998), which reads in relevant part as follows:

“The insurance commissioner shall, in calculating the reserve against unpaid losses of any insurance company, ...

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Bluebook (online)
37 Pa. D. & C.4th 173, 1998 Pa. Dist. & Cnty. Dec. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fretz-v-mutual-benefit-insurance-pactcomplallegh-1998.