Judge Kelly Defines the Contours of Bad-Faith Delay Claims

By Charles E. Haddick Jr.
Special to the Legal

Several months ago, Senior U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania provided some insight and important analysis of bad-faith delay claims. In the case, Tomer v. Allstate, plaintiff Nancy Tomer filed a bad-faith claim against Allstate arising out of Allstate's handling of her UIM claim. The claim included cognitive brain injury claims and some additional injury claims, including a claim of three fractured teeth made almost three full years following the accident. In addition, Tomer made claims of psychiatric injury as well.

In ruling that Allstate did not commit bad faith in investigation of the claim, Kelly detailed the long course of history in which medical authorizations and request for medical information was exchanged between the parties. Kelly pointed out that the long period of delay between the demand and settlement does not on its own necessarily constitute bad faith on the part of the insurer. He also pointed out that for the plaintiff to made a valid case for bad-faith delay, the plaintiff not only had to establish 1) delay on the part of the insurer but also 2) that the delay was unreasonable and unreasonably delayed payment.

The court noted that not only did the plaintiff wait three years after the accident to bring a UIM claim, essentially wiping out any delay attributable to those three full years, but much of the subsequent delay was attributable to either the insured or her counsel in failing to respond to request for medical records, etc.

It used to be in certain jurisdictions in Pennsylvania over the past number of years that some practitioners assumed bad faith when they could establish delay alone. Kelly's opinion in the Tomer case, however, reinforces the principle that delay alone is not the proper analysis, and that the reasonableness or unreasonableness of the delay is the determinative factor in bad-faith analysis.


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].