J-A03002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREGORY BOLESLAVSKY                      :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellant              :
                                         :
            v.                           :
                                         :
TRAVCO INSURANCE COMPANY                 :
                                         :
                  Appellee               :         No. 1227 EDA 2017

              Appeal from the Order Entered March 16, 2017
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): October Term, 2015 No. 0886


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED APRIL 04, 2018

     Appellant, Gregory Boleslavsky, appeals from the order of the Court of

Common Pleas of Philadelphia County, which entered summary judgment in

favor of Appellee, Travco Insurance Company (“Travco”). We affirm.

     In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.    Therefore, we will only briefly

summarize them. On September 3, 2012, Appellant was involved in a motor

vehicle accident in Brooklyn, NY, with an unknown, uninsured driver. At the

time of the accident, Appellant had a motor vehicle insurance policy

(“Policy”) with Travco.   The Policy includes, inter alia, uninsured motorist

coverage benefits up to $50,000.00. The Policy provides either party may

demand arbitration when the parties are unable to reach a settlement on an

uninsured motorist claim.     Appellant made a claim for uninsured motorist


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03002-18


benefits against Travco regarding the accident.    Through negotiations, the

parties were unable to resolve Appellant’s claim.     Travco made an initial

settlement offer in the amount of $15,000.00, which it increased to

$20,000.00 and then to $25,000.00. Appellant rejected all three offers and

indicated he would not settle the claim for less than $50,000.00.          On

September 9, 2015, an arbitration hearing proceeded regarding uninsured

motorist coverage; the arbitration panel issued an award for Appellant in the

amount of $45,000.00.

         Appellant sued Travco on October 12, 2015, alleging one count bad

faith.     On September 13, 2016, the case proceeded to compulsory

arbitration, because Appellant sought damages less than $50,000.00 in his

complaint.     The arbitrators found in favor of Travco, concluding Appellant

had failed to prove Travco engaged in bad faith.

         Appellant timely appealed to the Court of Common Pleas on October 4,

2016, from the arbitration award.       On February 15, 2017, Travco filed a

motion for summary judgment, which the court granted on March 16, 2017.

Appellant filed a timely notice of appeal on April 6, 2017. On April 10, 2017,

the court ordered a Rule 1925(b) statement of errors complained of on

appeal, which Appellant timely filed on April 25, 2017.

         Appellant raises one issue on appeal:

           WHETHER THE [TRIAL] COURT ERRED WHEN IT GRANTED
           [TRAVCO’S] MOTION FOR SUMMARY JUDGMENT[?]

(Appellant’s Brief at 9).

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J-A03002-18


      Appellate review of an order granting summary judgment asks us to

determine whether the trial court abused its discretion or committed an

error of law.    Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347

(Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We view the record
         in the light most favorable to the non-moving party, and
         all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or

                                     -3-
J-A03002-18


        defense which in a jury trial would require the issues to be
        submitted to a jury. In other words, whenever there is no
        genuine issue of any material fact as to a necessary
        element of the cause of action or defense, which could be
        established by additional discovery or expert report and
        the moving party is entitled to judgment as a matter of
        law, summary judgment is appropriate. Thus, a record
        that supports summary judgment either (1) shows the
        material facts are undisputed or (2) contains insufficient
        evidence of facts to make out a prima facie cause of action
        or defense.

        Upon appellate review, we are not bound by the trial
        court’s conclusions of law, but may reach our own
        conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Daniel J.

Anders, we conclude Appellant’s issue merits no relief.      The trial court

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed August 17, 2017, at 1-9) (finding:

Travco’s summary judgment motion made clear there were no genuine

issues of material fact; Appellant failed to show Travco lacked reasonable

basis for extending Appellant settlement offers of up to $25,000.00 for

uninsured motorist benefits under Policy; difference between amount of final

settlement offer and subsequent arbitration award is immaterial for purposes

of determining if insurer’s offer lacked reasonable basis; rather, factors

insurer considers when determining amount to offer are material; record


                                    -4-
J-A03002-18


shows Travco considered, inter alia, Appellant’s sworn statement, type of

accident in which Appellant was involved, photographs of damage to

Appellant’s vehicle, extent of damage to vehicle, copies of Appellant’s

medical records and independent medical examination, whether Appellant

sought medical treatment after accident, medical treatment Appellant

received, and cost of Appellant’s medical treatment; Travco reasonably did

not later increase settlement offer from $25,000.00, because Appellant

unambiguously indicated he would not settle for less than $50,000.00).

Accordingly, we affirm on the basis of the trial court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/18




                                     -5-
                                                                                                Circulated 03/26/2018 02:33 PM




            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              TRIAL DIVISION - CIVIL

GREGORY BOLESLA VKSY                                                  1227 EDA 2017
              Plaintiff,                                                                                    -,,
                                                                      Case No. 151000886                   :·•·.·.
                                                                                                           (> ·...
                                                                                                                            ("•   ..   '
vs.                                                                                                        c.. '            -·· I
                                                                                                         c..:
                                                                                                         r.             I          :
                                                                                                       (""'.·           t � )
TRA VCO INSURANCE COMPANY,
                                                                                                       (
               Defendant.                                                                                              .... i'
                                                                                                       '
                                                                                                   ..'

                                             OPINION                                               '                  ..
                                                                                                                     .. •:··

        Plaintiff Gregory Boleslavksy appeals the trial court's order granting DefendantTravco

Insurance Company's Motion for Summary Judgment. On appeal, Plaintiff argues that the trial

court abused its discretion in granting Defendant's motion. Plaintiff's Statement of Matters

Complained of on Appeal ,rt. For the reasons stated below, the Superior Court should affirm the

trial court's order.

FACTUAL BACKGROUND

        On September 3, 2012, Plaintiff was involved in a motor vehicle accident in Brooklyn,

New York. Defendant's Motion for Summary Judgment 11, The other vehicle involved in the

accident fled the scene. Id. �2. At the time of the accident, Plaintiff was insured under

Defendant's motor vehicle insurance policy 988226299 (the "Policy"). Id                     14. The Policy
provided Plaintiff with uninsured motorist coverage benefits up to $50,000. Id. 15.

        Plaintiff claimed uninsured motorist benefits under the Policy regarding injuries that he

sustained in the September 3, 2012 accident. Id.   16. Defendant assigned Pamela Biggart to
handle Plaintiffs claim. Biggart Dep.; 12/12/16; 24 :6-12. Plaintiff and Defendant entered into

negotiations to resolve Plaintiffs claim, but they were unable to do so. Id. �7. The uninsured

motorist coverage provisions of the Policy allowed either party to demand arbitration under these

circumstances. Id. ,rs. Ex. "B" at 8.
                                               Boleslavsky Vs Travco Insurance Cornpany-OPFLD




                                               1111111111// IIIIIIIIIIII II II Ill
                                                      15100088600057
         On October 12, 2015, Plaintiff commenced a lawsuit against Defendant in the

Philadelphia Court of Common Pleas, in which Plaintiff claimed uninsured motorist benefits and

medical benefits under the Policy. Id. ,I9. During the discovery phase of Plaintiff's uninsured

motorist claim, Plaintiff provided Defendant with a sworn statement regarding injuries that he

sustained in the September 3, 2012 accident. Id. ,Il 1. Ultimately, Plaintiff withdrew his

uninsured motorist claim and arbitrated the dispute pursuant to the Policy's provisions regarding

arbitration. Id. ,Il 0.

         While handling Plaintiff's claim and before making a settlement offer, Biggart reviewed

Plaintiffs sworn statement, photographs of damage to his vehicle, copies of his medical records,

and reports from multiple independent medical examinations. Id. She confirmed that Plaintiff did

not request or refuse medical assistance at the time of the accident and that the police did not file

a report regarding the accident. Biggart Dep.; 12/12/16; 37:3-11. She reviewed the type of

accident in which Plaintiff was involved, the extent of damage to his vehicle, the medical

treatment that he received, and the cost of that treatment. Biggart Dep.; 12/12/16; 32:7-24; 33: 1-

5. She also considered whether Plaintiff received emergency treatment at the scene of the

accident, whether he required emergency transportation from the scene of the accident, whether

his vehicle was towed, whether his medical treatments were reasonable and related to his

injuries, and whether he incurred any lost wages as a result of the September 3, 2012 accident.

Defendant's Motion for Summary Judgment ,I30.

        As a result of her extensive review, Biggart initially offered Plaintiff $15,000 to settle his

claim. Id. 112; Biggart Dep.; 12/12/16; 45:6. Later, Biggart increased the settlement offer to

$20,000, and then to $25,000. Biggart Dep.; 12/12/16; 45:7-11. Plaintiff rejected all of Biggart's

settlement offers. Defendant's Motion for Summary Judgment �13.




                                                  2
         On August 27, 2015, Plaintiff sent Defendant a letter, indicating that Plaintiff would not

 settle his claim for less than $50,000, (Biggart Dep.; 12/12/16; 44:3-11 ), and that he would settle

 only if Defendant made an offer within seven days ofreceipt of the letter. Defendant's Motion

 for Summary Judgment � 13. After seven days had elapsed, Plaintiff informed Defendant that he

 would not entertain further settlement negotiations and that he would proceed to arbitration. Id

 �14.

        Around the same time that Defendant received Plaintiffs letter, Biggart received

 information from the Rothman Institute regarding Plaintiff's injuries. Biggart Dep.; 12/12/16;

 47:3-6. After reviewing information from the Rothman Institute, Biggart increased her valuation

of Plaintiffs claim from $25,000 to $28,000. 12/12/16; 47:7-14. Biggart did not contact Plaintiff

regarding the increased valuation because Plaintiff had indicated that he would not settle for less

than $50,000. Biggart Dep.: 12/12/16; 47:20-22.

        On September 9, 2015, Plaintiff and Defendant arbitrated their dispute. Id. �15. The

arbitration panel returned a verdict in Plaintiffs favor in the amount of $45,000. Id. Following

arbitration, Plaintiff filed the Complaint underlying this appeal. Id. ,16.

OISCUSSION

        On appeal, Plaintiff argues that the trial court abused its discretion in granting

Defendant's motion in that "defendant knew plaintiffs case was worth in excess of its settlement

offer, evaluated the value of plaintiffs case in excess of the settlement offer but consciously

never even presented an offer to the plaintiff in accordance with its evaluation." Plaintiffs

Statement of Matters Complained of on Appeal �1.

        I.     Standard Of Review Of An Order Granting Summary Judgment

        "Summary judgment is proper only where there is no genuine issue concerning any

material fact and the moving party is entitled to judgment as a matter of law." Ballets v.


                                                  3
 Pennsylvania Turnpike Commission, 123 A.3d 300, 304 (Pa. 2015). "In considering a motion for

 summary judgment, the record must be viewed in the light most favorable to the non-moving

 party, and all doubts as to whether a genuine issue exists are resolved against the moving party."

Id. The question of "whether there are material facts in issue and whether the moving party is

entitled to summary judgment are matters oflaw." Id. As such, the scope ofreview by the

appellate court is de nova. Id.

        A non-moving plaintiff bears some evidentiary burden to survive a defense summary

judgment motion:

                [a] non-moving party must adduce sufficient evidence on an issue
                essential to his case and on which he bears the burden of proof
                such that a jury could return a verdict in his favor. Failure to
                adduce this evidence establishes that there is no genuine issue of
                material fact and the moving party is entitled to judgment as a
                matter oflaw.

Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207 n. I 5 (Pa. 2009), quoting Ertel v. Patriot-News,

674 A.2d 1038, 1042 (Pa. I 996). A "plaintiff cannot survive summary judgment when mere

speculation would be required for the jury to find in plaintiffs favor .... In fact, the trial court

has a duty to prevent questions from going to the jury which would require it to reach a verdict

based on conjecture, surmise, guess or speculation." Krauss v. Trane US. Inc., 104 A.3d 556,

568 (Pa. Super. Ct. 2014) (citations omitted).

       An appellate court "may disturb the trial court's order only upon an error of law or an

abuse of discretion," thus:

               Judicial discretion requires action in conformity with law on facts
               and circumstances before the trial court after hearing and
               consideration. Consequently, the court abuses its discretion if, in
               resolving the issue for decision, it misapplies the law or exercises
               its discretion in a manner Jacking reason. Similarly, the trial court
               abuses its discretion if it does not follow legal procedure.




                                                  4
 Cigna Corp. v. Executive Risk Indem., Inc., 111 A.3d 204, 211 (Pa. Super. Ct. 2015) (citations

 omitted).

         Where the discretion exercised by the trial court is challenged on appeal, the party

bringing the challenge bears a heavy burden:

                [I]t is not sufficient to persuade the appellate court that it might
                have reached a different conclusion if ... charged with the duty
                imposed on the court below; it is necessary to go further and show
                an abuse of the discretionary power. An abuse of discretion is not
                merely an error of judgment, but if in reaching a conclusion the
                law is overridden or misapplied, or the judgment exercised is
                manifestly unreasonable, or the result of partiality, prejudice, bias
                or ill will, as shown by the evidence or the record, discretion is
                abused.

Nat'!. Cas. Ins. Co. v. Kinney, 90 A.Jd 747, 752-53 (Pa. Super. Ct. 2014).

        2.      An Insurer Owes Its Insureds A Duty Of Good Faith

        Under Pennsylvania law, an insurer owes its insureds a duty of good faith. Condio v. Erie

Ins. Exch., 899 A.2d 1136, 1144-45 (Pa. Super. Ct. 2006). The Superior Court elaborated:

                Pennsylvania law holds insurers to a duty of good faith and fair
                dealing toward their insureds ... without distinguishing between
                first party and third party settings ... This duty does not allow
                fill insurer to protect its own interests at the expense of its insured's
                interests. Nor does it require an insurer to sacrifice its own interests
                by blindly paying each and every claim submitted by an insured in
                order to avoid a bad faith lawsuit.

                Once an insurer identifies a reasonable foundation for denying a
                claim, it is not relieved of its duty of good faith and fair dealing ...
                In other words, if evidence arises that discredits
                the insurer's reasonable basis, the insurer's duty of good faith and fair
                dealing requires it to reconsider its position and act accordingly, all
                the while remaining 'committed to engage in good faith with its
                insured.'

Id. (internal citations omitted).




                                                   5
            3.      An Insurer Does Not Act In Bad Faith By Making An Offer To
                    Settle A Plaintiff-Insured's Claims, Where The Insurer's Offer Is Reasonably
                    Based And Where The Insurer Has Not Acted With An Improper Purpose

            To maintain a bad faith claim against an insurer, the insurer's conduct must have

    breached the duty of good faith. Terletsky v. Prudential Prop. and Casualty Ins. Co., 649 A.2d

    680, 688 (Pa. Super. Ct. 1994 ). More specifically, in a claim of bad faith against an insurer, a

    plaintiff must show by clear and convincing evidence that the insurer: (1) did not have a

    reasonable basis for denying benefits under the applicable insurance policy, and (2) knew or

    recklessly disregarded its lack of reasonable basis in denying the claim. 1 Condio, 899 A.2d at

    1143.

            Bad faith claims are fact specific and depend upon the insurer's conduct vis                 a vis the
    insured. Id To constitute bad faith, it is not necessary that an insurer's conduct be fraudulent. Id.

    However, mere negligence or bad judgment by the insurer is not bad faith. Id. In the absence of

    evidence of a dishonest purpose or ill-will, it is not bad faith for an insurer to take a stand to

    aggressively investigate and protect its interests in the normal course of litigation, as long as the

insurer has a reasonable basis for doing so. O'Donnell ex rel. Mitro v. Allstate Ins., Co., 734

A.2d 901, 910 (Pa. Super. 1999).

            Regarding the making of a settlement offer, an insurer that makes a low but reasonable

estimate of a plaintiff's loss does not act in bad faith in making a settlement offer based upon its

estimation. Terletsky, supra at 688-99. In Terletsky, the plaintiffs were involved in a motor

vehicle accident with an uninsured motorist. Id. at 681. Following the accident, the plaintiffs

filed two insurance claims against their insurer. Id. After the insurer conducted independent

medical examinations of the plaintiffs, it offered the plaintiffs $40,000 for their first claim and



1
  The elements of a bad faith claim are conjunctive. Therefore, Plaintiff needed to come forward with sufficient
evidence on both elements of the bad faith claim. Here, Plaintiff failed to do so with regard to the first element of his
bad faith claim ..
                                                            6
$17,500 for their second claim. Id. at 682. Plaintiffs' counsel then demanded $100,000 for each

claim. Id. At arbitration, the plaintiffs received awards of $125,000 for each claim Id. Following

arbitration, the plaintiffs filed a lawsuit against the insurer, claiming that the insurer had made its

initial settlement offers in bad faith. Id. at 683. The plaintiffs argued that the difference between

the insurer's initial offers and the arbitration awards indicated that the insurer made the initial

offers in bad faith. Id. The trial court agreed with the plaintiffs, concluding that the insurer acted

in bad faith in making the initial settlement offers. Id.

        On appeal, the Superior Court reversed the trial court, concluding that the insurer had not

acted in bad faith because its initial offers were reasonably based. Id. at 689. In reaching this

conclusion, the Superior noted that the insurer "took into account many factors in determining

the offers." Id. Those factors included the content and availability of information regarding the

plaintiffs' medical treatment, a police report regarding the accident, and damage to the plaintiffs'

vehicle. Id.

        4.      Plaintiff Did Not Produce Clear And Convincing Evidence That
                Defendant's Initial Settlement Offers Lacked A Reasonable Basis

        Here, Defendant's motion for summary judgment provided specific evidence that there

were no genuine issues of material fact and that it was entitled to judgment as a matter oflaw.

The trial court determined that, in response to Defendant's motion for summary judgment,

Plaintiff failed to produce any evidence on the first element of his bad faith claim such that a jury

could award a verdict in his favor.

        In his response to Defendant's motion for summary judgment, Plaintiff cited to the fact

that Biggart' s final settlement offer of $25 ,000 was approximately 50 percent of the value of the

$45,000 arbitration award. Plaintiffs Response to Defendant's Motion for Summary Judgment.

,r,r 40-42. Plaintiff also cited to Defendant's failure to notify Plaintiff - after he unequivocally
stated to Defendant that he would not accept any offers less than $50,000 - that Biggart

                                                   7
increased her valuation of Plaintiffs claim from $25,000 to $28,000. Plaintiffs Statement of

Matters Complained of on Appeal 11. ("Defendant knew plaintiffs case was worth in excess of

its settlement offer, evaluated the value of plaintiffs case in excess of the settlement offer but

consciously never even presented an offer to the plaintiff in accordance with its evaluation.").

        As in Terletsky, these facts are insufficient to prove that Defendant's initial offers lacked

a reasonable basis. More specifically, for the purpose of determining whether an initial

settlement offer by an insurer lacks a reasonable basis, the difference between the amount of the

settlement offer and any subsequent arbitration award is immaterial. Instead, what is relevant is

the information that the insurer takes into account in determining what amount to offer.

Defendant, through Biggart, took into account the same kind of information as the defendant in

Terletsky, as well as additional claims and policy related information prior to making its

settlement offers. Defendant's Motion for Summary Judgment �10, ,r 30; Biggart Dep.; 12/12/16;

37:3-11; 33: 1-5. Defendant's offers were not arbitrary low-ball offers but rather were the result

of a considered analysis of the relevant information regarding Plaintiff's claim including - inter

alia - Plaintiffs sworn statement, photographs of damage to his vehicle, copies of his medical

records, and reports from multiple independent medical examinations, whether she sought

medical treatment, the type of accident in which Plaintiff was involved, the extent of damage to

his vehicle, the medical treatment that he received, and the cost of that treatment.

       Similarly, Defendant acted reasonably when it decided not to contact Plaintiff regarding

the increased valuation of Plaintiff's claim from $25,000 to $28,000 following receipt of

information from the Rothman Institute. As explained by Biggart, Defendant did not provide

another offer to Plaintiff because Plaintiff had already unambiguously indicated that he would

not settle for less than $50,000. Biggart Dep.: 12/12/16; 47:20-22.




                                                  8
CONCLUSION

      Based upon the foregoing analysis, the Superior Court should affirm the trial court's

order granting Defendants' Motion for Summary Judgment.




DAN EL J. ANDERS, JUDGE
Dated: August 1 7, 2017




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