Bodnar v. Nationwide Mutual Insurance Company

Filing 124

ORDER THAT such Motion is GRANTED IN PART AND DENIED IN PART, to wit:1. The following passages are STRICKEN from the Court's October 15 Opinion (Doc. 60 at 4-5): Second, even if these "facts" were indeed "adjudicative facts," for the Court to judicially notice them would not materially advance the resolution of the underlying issues, considering that the record is bereft of evidence that the ambiguities cited in any way motivated Defendant's conduct. To establish ba d faith under [42 Pa. C.S.A. §] 8371, [the Pennsylvania Superior] Court has utilized a two-part test, both elements of which must be established by clear and convincing evidence: (1) the insurer lacked a reasonable basis for denying coverage; an d (2) the insurer knew or recklessly disregarded its lack of a reasonable basis.Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1036 (Pa. Super. Ct. 1999) (citing Terletsky v. Prudential Prop. &Cas. Co., 649 A.2d 680 (Pa. Super. Ct. 1994)).Accordingly, even assuming that ambiguity in the law would create a reasonable basis for withholding coverage from Bodnar, Defendant would have to show that this ambiguity actually influenced its decision. In other words, if Defendant actually acted unreasonably, it cannot escape bad-faith liability just because an ambiguity exists in a general sense which caused a lack of clarity or predictability in the applicable law. A showing that the Defendant considered the law ambiguous and that such ambiguity motiva ted or at least substantially influenced the decisions Defendant made in this case regarding whether to afford or deny coverage, and after initially denying coverage, whether to adhere to this decision and to support it through continued declaratory judgment litigation for the period prior to the settlement of the claim of Danielle Berry on behalf of the Estate of James Berry, are facts which must be determined. This Court cannot resolve these issues in whole or in part through a grant of judici al notice. This would be true even if the facts that Defendant seeks to have judicially noticed were actually "adjudicative facts", which, as discussed above, they are not. 2. Defendant's Motion is DENIED to the extent that it requests reconsideration of the issue of burdens of proof in acivil case. 3. To the extent not already rendered moot by the above rulings, Defendant's request for an interlocutory appeal is DENIED. 4.All other portions of the Court's October 15 Opinion not explicitly referenced herein, including its ultimate holding denying the Motion for Judicial Notice, REMAIN IN EFFECT. Signed by Honorable Robert D. Mariani on 7/11/14. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHEN BODNAR, et al.,

Plaintiffs,

v.

3:12·CV·01337
(JUDGE MARIANI)

AMCO INSURANCE CO.,
Defendant.
ORDER
AND NOW, THIS 11TH DAY OF JULY, 2014, upon consideration of Defendant's
Motion for Reconsideration of the Court's October 15, 2013 Opinion (Doc. 62), IT IS
HEREBY ORDERED THAT such Motion is GRANTED IN PART AND DENIED IN PART, to
wit:
1. The following passages are STRICKEN from the Court's October 15 Opinion (Doc.
60 at 4-5):
Second, even if these "facts" were indeed "adjudicative facts," for the
Court to judicially notice them would not materially advance the
resolution of the underlying issues, considering that the record is bereft
of evidence that the ambiguities cited in any way motivated
Defendant's conduct.
To establish bad faith under [42 Pa. C.S.A. §] 8371, [the
Pennsylvania Superior] Court has utilized a two-part test, both
elements of which must be established by clear and convincing
evidence: (1) the insurer lacked a reasonable basis for denying
coverage; and (2) the insurer knew or recklessly disregarded its
lack of a reasonable basis.

Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1036 (Pa. Super. Ct.
1999) (citing Terletsky v. Prudential Prop. & Cas. Co., 649 A.2d 680
(Pa. Super. Ct. 1994)).
Accordingly, even assuming that ambiguity in the law would
create a reasonable basis for withholding coverage from Bodnar,
Defendant would have to show that this ambiguity actually influenced
its decision. In other words, if Defendant actually acted unreasonably,
it cannot escape bad-faith liability just because an ambiguity exists in a
general sense which caused a lack of clarity or predictability in the
applicable law. A showing that the Defendant considered the law
ambiguous and that such ambiguity motivated or at least substantially
influenced the decisions Defendant made in this case regarding
whether to afford or deny coverage, and after initially denying
coverage, whether to adhere to this decision and to support it through
continued declaratory judgment litigation for the period prior to the
settlement of the claim of Danielle Berry on behalf of the Estate of
James Berry, are facts which must be determined. This Court cannot
resolve these issues in whole or in part through a grant of judicial
notice. This would be true even if the facts that Defendant seeks to
have judicially noticed were actually "adjudicative facts", which, as
discussed above, they are not.
2. Defendant's Motion is DENIED to the extent that it requests reconsideration of the
issue of burdens of proof in acivil case.
3. To the extent not already rendered moot by the above rulings, Defendant's request
for an interlocutory appeal is DENIED.
4. All other portions of the Court's October 15 Opinion not explicitly referenced herein,
including its ultimate holding denying the Motion for Judicial Notice, REMAIN IN

EFFECT.

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obert D. Mariani
United States District Judge

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