                              [J-27-2017][M.O. – Baer, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT


MATTHEW RANCOSKY,                                :   No. 28 WAP 2016
ADMINISTRATOR DBN OF THE ESTATE                  :
OF LEANN RANCOSKY AND MATTHEW                    :   Appeal from the Order of the Superior
RANCOSKY, EXECUTOR OF THE                        :   Court entered 12/16/15 at No. 1282
ESTATE OF MARTIN L. RANCOSKY,                    :   WDA 2014, affirming in part and
                                                 :   vacating in part the judgment of the
                   Appellee                      :   Court of Common Pleas of Washington
                                                 :   County entered on 8/1/14 at No. 2008-
              v.                                 :   11797, and remanding
                                                 :
                                                 :
WASHINGTON NATIONAL INSURANCE                    :
COMPANY, AS SUCCESSOR BY                         :
MERGER TO CONSECO HEALTH                         :
INSURANCE COMPANY, FORMERLY                      :
KNOWN AS CAPITAL AMERICAN LIFE                   :   ARGUED: April 4, 2017
INSURANCE COMPANY,                               :
                                                 :
                   Appellant                     :




                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                 DECIDED: SEPTEMBER 28, 2017


       I join Parts I and III of the majority opinion.

       As to Part II, I support the holding that a denial of insurance benefits in the

absence any reasonable supporting basis, coupled with knowledge or reckless

disregard on the part of the insurer, is sufficient to constitute bad faith for purposes of

Section 8371 of the Judicial Code. That said, my reasoning does not fully comport with

some of the majority’s rationale. For example, I differ with the assertion that “an ill-will

level of culpability would limit recovery in any bad faith claim to the most egregious
instances only where the plaintiff uncovers some sort of ‘smoking gun’ evidence

indicating personal animus towards the insured.” Majority Opinion, slip op. at 22. To

the contrary, inferences regarding intent are legitimately and regularly drawn from

circumstantial evidence (including actions and inaction) in other contexts, including in

the criminal law. See, e.g., Commonwealth v. Kloiber, 378 Pa. 412, 426, 106 A.2d 820,

827 (1954) (“It is clearly settled that a man may be convicted on circumstantial evidence

alone, and a criminal intent may be inferred by the jury from facts and circumstances

which are of such a nature as to prove defendant's guilt beyond a reasonable doubt.”). I

see no reason why the General Assembly could not have envisioned similar treatment

in the bad-faith arena.

       Instead, I endorse the threshold of at least reckless disregard, since I believe that

this captures a sufficient measure of wrongfulness to comport with the Legislature’s

remedial purposes and yet conveys that a finding of bad faith requires more than mere

negligence.1

       As to punitive damages, I believe these should also be adjudged according to

conventional standards, including the applicable constitutional limitations.        In this

regard, the Supreme Court of the United States has explained that the federal Due

Process Clause of the Fourteenth Amendment to the United States Constitution

requires a circumstance-specific assessment of the “degree of reprehensibility” relative

to punitive damage awards. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

1
   It should be acknowledged, however, that term “recklessness” itself carries some
ambiguity. See Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 1978 (1994)
(“[T]he term recklessness is not self-defining.”). From my own point of view, civil-law
recklessness as defined by the Supreme Court of the United States, see id. at 836-37,
114 S. Ct. at 1978-79, should suffice to support the compensatory damages and fee-
shifting provided in Section 8371. However, the question whether it will support punitive
damages in any given amount, consistent with constitutional norms, must be addressed
according to the federally-prescribed standards discussed below.


                             [J-27-2017][M.O. – Baer, J.] - 2
408, 418-19, 123 S. Ct. 1513, 1520-21 (2003). In the absence of more specific and

appropriate legislative guidance, trial courts must be sensitive to the attendant

considerations and limitations, see id. at 419, 123 S. Ct. at 1521, lest their awards

reflect unconstitutional applications of Section 8371.

       Finally, I agree with the remand on the terms prescribed by the majority for the

reasons that it sets forth at the conclusion of Part II of its opinion. See Majority Opinion,

slip op. at 23.




                              [J-27-2017][M.O. – Baer, J.] - 3
