By Charles E. Haddick Jr.
Special to the Legal
Can an insured file concurrent bad faith and UM/UIM suit when the suit is the first notice to the insurer of a UM/UIM claim? Under Koken v. Insurance Federation of Pennsylvania, the answer, at least in theory, is "yes."
In practice, however, where the first notice to an insurer of a UM/UIM claim is a civil complaint, which also contains a bad faith count, it is rather like a patient handing his surgeon a medical malpractice complaint while he is being wheeled into the OR. The practical problems created by this animal are the subject of today’s post.
Perhaps the best place to begin is Pa.R.C.P. 1023.1, which states that an attorney's signature on the pleading certifies that the claim is not being presented for an improper purpose; the claims defenses and legal contentions are warranted by existing law; and the factual allegations have evidentiary support or they specifically identify or likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
By its very nature, a bad faith claim is a statement by an insured that the his or her claim has not been handled by the insurer in a reasonable manner. How can such a statement be made, however, when the insurance claim that is the subject of the bad faith action has not yet been made?
Until now, courts have dealt with thorny issues around the periphery of this question, such as the discoverability of an insurer's claims activity logs in a bad faith case while at the same time such would be not discoverable in a concurrent UM/UIM proceeding. One example is Wutz v. Smith, from the Court of Common Pleas of Allegheny County. Bifurcation and severance address issues like discovery problems, but to my knowledge no court has ever addressed whether or not a bad faith claim concerning a UIM claim can properly be stated under Pa.R.C.P. 1023.1 requiring there to be an evidentiary basis for the allegations. This is something to certainly keep an eye on going forward.
Charles E. Haddick Jr. is a partner with Dickie McCamey & Chilcote. He welcomes feedback from readers, along with any suggestions for topics you would like to see discussed in this space. He can be reached at [email protected].
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