John Raszkiewicz v. Progressive Max

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 23, 2025
• Docket: 23-1798
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1798

JOHN RASZKIEWICZ,

Plaintiff - Appellant,

v.

PROGRESSIVE MAX INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:21-cv-00038-JPB-JPM)

Submitted: February 27, 2025 Decided: April 23, 2025

Before GREGORY and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: George N. Sidiropolis, FLANIGAN LEGAL, PLLC, Wheeling, West Virginia, for Appellant. Susan R. Snowden, JACKSON KELLY PLLC, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1798 Doc: 19 Filed: 04/23/2025 Pg: 2 of 5

PER CURIAM:

After being injured in a car accident, John Raszkiewicz brought a negligence suit

against the other driver, eventually recovering $50,000 from the other driver’s insurance

company and $25,000 from his own insurer, Progressive Max Insurance Company

(“Progressive Max”), under his policy’s underinsured motorist (“UIM”) provision.

Though he received the full amount of his UIM policy limit, Raszkiewicz believed that

Progressive Max had failed to conduct a prompt investigation of his UIM claim, wrongfully

denied his initial demands for payment, and unduly delayed in settling the claim. As a

result, Raszkiewicz commenced the instant action against Progressive Max, alleging

breach of contract, common law bad faith, and violations of the West Virginia Unfair Trade

Practices Act (“WVUTPA”).

The district court granted summary judgment to Progressive Max, essentially

concluding that Raszkiewicz’s allegations flowed from a total misapprehension of

Progressive Max’s statutory rights under West Virginia law. Raszkiewicz appeals, and we

affirm.

“We review a district court’s grant of summary judgment de novo, construing all

facts and reasonable inferences in favor of the nonmoving party.” Schulman v. Axis

Surplus Ins. Co., 90 F.4th 236, 243 (4th Cir. 2024). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

While litigating the underlying negligence suit, Raszkiewicz demanded that

Progressive Max tender the full limit of his UIM policy. Progressive Max, however, did

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not respond with an offer until all parties consented to a proposed settlement between

Raszkiewicz, the tortfeasor, and her insurance company. Once the settlement was in place,

Progressive Max made three sub-limit offers, each of which Raszkiewicz rejected.

Thereafter, Raszkiewicz’s primary care physician ordered an MRI of Raszkiewicz’s

lumbar spine, the results of which prompted him to prescribe a new pain management

regimen to treat Raszkiewicz’s lumbar back pain and degenerative disc disease. Six days

after Progressive Max received the physician’s treatment notes, it agreed to tender the full

$25,000 UIM policy limit.

On appeal, Raszkiewicz contends that Progressive Max breached its duty of good

faith and fair dealing by failing to conduct a prompt investigation into his UIM claim. In

support, he relies on the West Virginia rule that “an insurance carrier has a duty, once a

first-party policyholder has submitted proof of a loss, to promptly conduct a reasonable

investigation of the policyholder’s loss based upon all available information.” Miller v.

Fluharty, 500 S.E.2d 310, 320 (W. Va. 1997).

Critically, Raszkiewicz ignores that a UIM policy “is activated” only when “the

total amount of damages sustained by the policyholder” exceeds the amount of liability

insurance carried by the tortfeasor. Miller, 500 S.E.2d at 318. Under West Virginia law,

“the role of an underinsured carrier is analogous to that of a secondary or excess carrier.”

State ex rel. Allstate Ins. Co. v. Karl, 437 S.E.2d 749, 754 (W. Va. 1993). “[T]he

expectation [is] that the primary insurer will conduct all of the investigation, negotiation

and defense of claims until its limits are exhausted.” Id. at 754 n.8 (internal quotation

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marks omitted). The underinsured or excess carrier, on the other hand, “does not expect to

be called upon to assist in these details.” Id. (internal quotation marks omitted).

Here, Progressive Max’s duties did not arise until after the underlying negligence

claim was settled for the tortfeasor’s full policy limit. At that point, Progressive Max owed

Raszkiewicz a duty to investigate his UIM claim and to make reasonable attempts at

settlement. See W. Va. Code § 33-11-4(9)(c), (f). Based on our review of the record, we

agree with the district court’s determination that Progressive Max properly discharged

these duties. We therefore discern no triable issue of fact on Raszkiewicz’s breach of

contract claim.

Raszkiewicz’s other claims—asserting common law bad faith and WVUTPA

violations—largely turn on the same allegations of misconduct. Because, in our view,

Raszkiewicz has not adduced evidence showing that Progressive Max engaged in unfair

claim settlement practices or otherwise acted in bad faith, we conclude that summary

judgment was properly awarded to Progressive Max. *

Finally, Raszkiewicz challenges the district court’s refusal to consider the opinion

of his expert witness, Stephen L. Strzelec. “We review a district court’s decisions on the

* Raszkiewicz also sought damages under Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 80 (W. Va. 1986), which allows an insured to recover reasonable attorney’s fees if he “must sue his own insurance company over any property damage claim, and [he] substantially prevails in the action.” Because, as Raszkiewicz acknowledges, Progressive Max never denied his UIM claim, we conclude that Hayseeds damages were not warranted. See Miller, 500 S.E.2d at 318.

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admissibility of expert testimony for abuse of discretion.” McKiver v. Murphy-Brown,

LLC, 980 F.3d 937, 958 (4th Cir. 2020).

The district court found—and Raszkiewicz does not dispute—that, at his deposition,

Strzelec could not answer basic questions about West Virginia insurance law. For this

reason, we conclude that the court did not abuse its discretion in finding that Strzelec was

not qualified to offer an expert opinion in this case.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED