Okkerse v. Prudential Property & Casualty Insurance

16 Pa. D. & C.4th 385, 1992 Pa. Dist. & Cnty. Dec. LEXIS 189
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJune 17, 1992
Docketno. 91-07616
StatusPublished

This text of 16 Pa. D. & C.4th 385 (Okkerse v. Prudential Property & Casualty Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Okkerse v. Prudential Property & Casualty Insurance, 16 Pa. D. & C.4th 385, 1992 Pa. Dist. & Cnty. Dec. LEXIS 189 (Pa. Super. Ct. 1992).

Opinion

Sugerman, J.,

The appellant, Lynn Okkerse, an incompetent by her guardian, Douglas J. Okkerse (hereinafter, the plaintiff) filed an amended complaint against the appellee, Prudential Property & Casualty Insurance Co. The plaintiff’s amended complaint, setting forth seven counts, alleges in essence that Lynn Okkerse, while insured under an insurance policy issued by Prudential under the Pennsylvania No-Fault Motor Vehicle Insurance Law, 40 P.S. §1009.101, et seq., (repealed), suffered catastrophic injuries in an automobile accident on June 3,1983. The amended complaint further alleges that since the date of the accident, Ms. Okkerse has received medical care and therapy paid for by Prudential pursuant to the insurance policy in force at the date of the accident. The complaint finally alleges that Prudential [386]*386advised Mr. Okkerse that as of August 1, 1991, it would no longer pay for much of her therapy and nursing care. The amended complaint seeks damages in a variety of forms including a declaratory judgment declaring that Prudential has a continuing duty to pay for Ms. Okkerse’s therapy and nursing care.

Prudential filed preliminary objections in the nature of a motion to strike Counts III, IV, V, VI and VII of the amended complaint. By order dated April 27, 1992, we sustained Prudential’s preliminary objections and struck the said counts. The plaintiff did not ask for leave, to amend and we did not grant such leave. In any event, the plaintiff has appealed our order striking the aforesaid counts of her amended complaint and we write briefly in response to the mandate of Pa.RA.P. 1925(a).

COUNT HI

In Count III of her amended complaint the plaintiff seeks counsel fees, both past and future, incurred and to be incurred as the result of the instant litigation to recover first-party benefits under Prudential’s insurance policy.

We note that in Count II of her amended complaint, the plaintiff seeks first-party benefits under the No-Fault Act. The Act itself provides for a recovery of counsel fees if the court determines that the insurer has “denied the claim or any significant part thereof without reasonable foundation....” 40 P.S. 1009.107(3); Freeze v. Donegal Mutual Insurance Co., 412 Pa. Super. 305, 603 A.2d 595, 597-600 (1992); Solomon v. Sentry Insurance Co., 324 Pa. Super. 329, 471 A.2d 863, 865-66 (1984). Inasmuch as there is a statutory remedy available permitting the plaintiff to obtain counsel fees upon an appropriate showing in addition to first-party benefits, the claim set forth in Count III is merely duplicative of the claim set [387]*387forth in Count II. In addition, Count III fails to set forth the conditions precedent to a recovery of counsel fees under the Act. See Freeze v. Donegal Mutual Insurance Co., supra, 603 A.2d at 599-602.

COUNT IV

In Count IV of her amended complaint the plaintiff seeks compensation in the form of “compensatory, consequential and punitive damages ... plus interest, costs of suit, attorneys’ fees...” for bad faith on the part of Prudential, citing 42 Pa.C.S. §8371, “Actions on Insurance Policies,” became effective on July 1,1990, and has been a topic of much dispute. The first disputed issue is whether section 8371 applies to insurance contracts that were executed prior to the effective data of the Act. Two members of the U.S. District Court for the Eastern District of Pennsylvania have held that the statute affects the substantive provisions of insurance policies and, as such, “a real question exists as to whether the statute can be applied to any insurance contract executed prior to the July 1990 effective date.” Chamberlain v. State Farm Mutual Auto. Insurance Co., 1991 WL 108688 (E.D. Pa.); See also, Bryant v. Liberty Mutual Insurance Co., 1990 WL 223126 (E.D. Pa.).

However, in American Franklin Life Insurance Co. v. Galati, 776 F. Supp. 1054 (E.D. Pa. 1991), the court rejected the “substantive provisions” theory and found that the provisions of section 8371 did not have substantive effect and could thus be applied to insurance contracts executed prior to July 1, 1990. The court in American Franklin, supra, citing Coyne v. Allstate Insurance, 771 F. Supp. 673, 675 (E.D. Pa. 1991), stated that section 8371 “does not alter the insurance policy’s substantive requirements, interfere with the insurers contractual rights, or otherwise impair the parties’ obligation.”

[388]*388It is clear from both the statute itself and relevant case law that section 8371 has been uniformly held to be prospective in nature. American Franklin, supra, 776 F. Supp. at 1063; See also, Williams v. State Farm Mutual Auto Insurance Co., 763 F. Supp. 121, 127 (E.D. Pa. 1991). The dispute appears to be whether an action for bad faith arising out of actions occurring after the effective date of section 8371 are prospective if the underlying policy was executed prior to the effective date of the statute.

Answering the question set forth in Bryant and Chamberlain, supra, we find that section 8371 creates a cause of action that did not previously exist, that dramatically alters the extent of an insurance company’s potential liability and, as it clearly affects the substantive provisions of a policy, the statute cannot apply to an insurance contract that was executed prior to July 1, 1990. It should be noted that our research revealed no Pennsylvania appellate authority discussing the issue of the application of section 8371 to an insurance contract executed prior to the effective date of the statute.

In further support of our position we find that there is an inherent conflict between section 8371 and the provisions of the No-Fault Act.

“Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and be construed as an exception to the general provision....” Pa.C.S. §1933 (Supp. 1990).

We thus find that the special provisions of the No-Fault Act, with respect to first-party benefits, prevails over the general provisions of section 8371. The provisions of section 8371 do not expressly state whether the section [389]*389applies to claims by an insured under the No-Fault Act and it appears to be inconsistent and in conflict with the detailed provisions and remedies set forth in the No-Fault Act with respect to the unreasonable withholding of first-party benefits. See 40 P.S. §1009.106(a)(2) and 1009.107(3).

The courts of this Commonwealth have consistently held that the sole remedy for the unreasonable delay or denial of benefits under the No-Fault Act based on bad faith and malicious actions is to impose attorney’s fees and interest under sections 106(a)(2) and 107(3) of the Act. An action for punitive and exemplary damages is inappropriate. Jolly v. Nationwide Insurance Co., 7 D.&C.3d 797 (1978). The court in Jolly, supra, cited the U.S. District Court for the Western District of Pennsylvania in O’Shanick v. Allstate Insurance Co., 431 F. Supp. 382, 384 (W.D. Pa.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Layton v. Liberty Mutual Fire Insurance Co.
577 F. Supp. 1 (E.D. Pennsylvania, 1983)
Williams v. State Farm Mutual Automobile Insurance
763 F. Supp. 121 (E.D. Pennsylvania, 1991)
Coyne v. Allstate Insurance
771 F. Supp. 673 (E.D. Pennsylvania, 1991)
Hardy v. Pennock Insurance Agency, Inc.
529 A.2d 471 (Supreme Court of Pennsylvania, 1987)
Kazatsky v. King David Memorial Park, Inc.
527 A.2d 988 (Supreme Court of Pennsylvania, 1987)
Motheral v. Burkhart
583 A.2d 1180 (Supreme Court of Pennsylvania, 1990)
Pekular v. Eich
513 A.2d 427 (Supreme Court of Pennsylvania, 1986)
O'Shanick v. Allstate Insurance
431 F. Supp. 382 (W.D. Pennsylvania, 1977)
Solomon v. Sentry Insurance
471 A.2d 863 (Supreme Court of Pennsylvania, 1984)
Dawson v. Zayre Department Stores
499 A.2d 648 (Supreme Court of Pennsylvania, 1985)
Kramer v. State Farm Fire & Casualty Insurance
603 A.2d 192 (Superior Court of Pennsylvania, 1992)
Freeze v. Donegal Mutual Insurance
603 A.2d 595 (Superior Court of Pennsylvania, 1992)
American Franklin Life Insurance v. Galati
776 F. Supp. 1054 (E.D. Pennsylvania, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
16 Pa. D. & C.4th 385, 1992 Pa. Dist. & Cnty. Dec. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okkerse-v-prudential-property-casualty-insurance-pactcomplcheste-1992.