                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2002

Dinner v. United Ser Auto Assn
Precedential or Non-Precedential:

Docket 1-1299




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Recommended Citation
"Dinner v. United Ser Auto Assn" (2002). 2002 Decisions. Paper 145.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/145


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                                                                NOT
PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                N0. 01-1299


                              PAMELA DINNER,

                                               Appellant

                                    v.

                UNITED SERVICES AUTOMOBILE ASSOCIATION
                      CASUALTY INSURANCE COMPANY


         On Appeal From The United States District Court
             For the Eastern District of Pennsylvania
                   (D.C. Civil No. 99-cv-04603)
            District Judge: Honorable Robert F. Kelly


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                         January 24, 2002

    BEFORE:    BEFORE:     NYGAARD, and STAPLETON, Circuit Judges,
                         and SLEET, District Judge*

                  (Opinion filed: February 27, 2002)



__________________________________

* Honorable Gregory M. Sleet, United States District Judge for the
District of Delaware,
    sitting by designation.
                MEMORANDUM OPINION OF THE COURT




STAPLETON, Circuit Judge:


     This is an appeal from a jury verdict finding in part that the United
Service
Automobile Association Casualty Insurance Company ("USAA") did not act in
bad faith
in handling plaintiff Pamela Dinner's ("Dinner") claim for underinsured
motorist benefits
("UIM"). Specifically, the plaintiff argues that the district court erred
in precluding her
expert witness from testifying about the applicability of the Unfair
Insurance Practice Act
("UIPA"), 40 Pa. Cons. Stat.   1117.1, et seq., or the regulations
promulgated thereunder,
the Unfair Claims Settlement Practices regulations ("UCSP"), 31 Pa. Code
146.1, et
seq. Plaintiff further claims that the District Court erred by rejecting
her proposed jury
instructions which referenced those provisions.
               Factual and Procedural Background
     On May 16, 1994, Dinner was involved in an automobile accident in
Sedona,
Arizona. As a result of the accident, Dinner sustained a broken right
wrist, a dislocated
right elbow and an orbital hematoma of her right eye. At the time of the
accident, Dinner
had an auto insurance policy with USAA, which included underinsured
motorist benefits.
Dinner promptly notified USAA of her condition.
     Two layers of insurance existed in front of USAA, the tortfeasor's
and the UIM
coverage of the rental vehicle in which the Dinners were riding at the
time of the
accident. These two layers were paid by September 28, 1995. USAA paid
Dinner on
September 10, 1997, over three years after Dinner first notified USAA of
her claim.
     Nearly two years after receiving her settlement check, Dinner filed a
claim in
federal court asserting diversity jurisdiction and alleging that USAA
acted in bad faith
within the meaning of 42 Pa. Cons. Stat.   8371. In support of this
claim, Dinner offered
the expert testimony of Barbara Sciotti. Sciotti intended to testify that
Pennsylvania had
adopted a statute, the UIPA, and regulations, the UCSP, that lay out the
obligations of
an insurance company in handling claims. Further, Sciotti intended to
testify that
USAA's handling of Dinner's claim violated a number of provisions of the
statute and
regulations. Prior to trial, USSA moved in limine to exclude all of the
testimony of
Sciotti under Rule 702 and that portion of her testimony that stated that
USAA's conduct
violated the UIPA and the UCSP regulations under Rule 403.
     The District Court denied the Rule 702 motion in limine. The Court
warned,
however, that Sciotti's ability to answer fully, would "depend upon [the]
. . . questions"
that plaintiff's counsel asked. Appendix at 328.
     With respect to the second part of the motion in limine, Dinner
argued that
Sciotti's testimony was relevant because it would inform the jury that
insurance
companies have rules that govern "the day-to-day work" and that "carefully
prescribe
what they are supposed to do." Appendix at 324. In response, USAA argued
that the
statute does not give rise to an "independent cause of action," Appendix
at 325, and that
the statute states explicitly, that "any of the following acts, if
committed or performed
with such frequency as to indicate a business practice, shall constitute
unfair claim
settlement or compromise practice." Appendix at 326 (quoting 31 Pa. Code
  146.1)
(emphasis added). Further, USAA argued that given the standard for bad
faith in
Pennsylvania, "some technical violations under the UIPA . . . shouldn't
serve as a basis
for bad faith." Id. The District Court agreed with USSA and held,
                    the Uniform Insurance Practices Act's requirements are
not
          admissible to establish a standard or basis in this case. I
feel
          that no matter what I would say to the jury . . . to limit the
          applicability of those standards, . . . admitting them would far
          outweigh the   or would be far outweighed by the prejudice
          that would accompany them.

Appendix at 327.
     During trial, Dinner again raised the question of whether or not her
expert could
use the UIPA and UCSP as underpinnings for Sciotti's testimony about
USAA's handling
of the claim. Specifically, Dinner claimed that Sciotti would testify
that USAA did not
complete its investigation of the claim within 30 days and did not keep
the claimant
advised in writing why they had not done so as required by the statute.
After considering
the arguments of the parties, the Court held:
                          In looking at this, in order to prove the case,
basically,
           plaintiff must show that the insurer had no reasonable basis
           for its decision, and that the insurer knew or recklessly
           disregarded the absence of a reasonable basis for its decision.

                         And in doing that, the plaintiff, I assume will
rely on
          various circumstantial evidence to prove what was in the
          insurer's mind at the time these decisions were being made.
          And plaintiff would like to rely on these statutory or   or the
          regulations that have certain standards placed on insurance
          companies and on the insurance industry in general.

                         And it is my feeling that   as it was before
that
          pointing to certain arbitrary deadlines, under the
          circumstances, would give the appearance, in the minds of the
          jury, far more weight than probative value. And I don't think
          that an instruction could cure that. So I'm not going to
          change my original decision.

Appendix at 400-01. However, the Court allowed Sciotti to testify as an
expert because,
as it explained later, "she's probably got a working lifetime experience
in what the
industry expects as far as processing a claim. And I think she can
probably give her
testimony without relying on [the UIPA or UCSP]." Appendix at 416.
     On appeal, Dinner challenges this ruling and the concomitant decision
of the
District Court to exclude her proposed jury instruction which included
language from the
UIPA and the UCSP regulations.
                        Standard of Review
     In reviewing a trial court's decision to admit or exclude expert
testimony, we apply
the abuse of discretion standard. See General Elec. Co. v. Joiner, 522
U.S. 136, 142-43
(1997). Under that standard we will not reverse such a ruling under Rule
403 "unless it is
arbitrary and irrational." Robert S. v. Stetson School, Inc., 256 F.3d
159, 169 (3d Cir.
2001) (citations omitted). "[A] trial court is in a far better position
than an appellate court
to strike the sensitive balance dictated by Rule 403. When a trial court
engages in such a
balancing process and articulates on the record the rationale for its
conclusion, its
conclusions should rarely be disturbed." Government of the Virgin Islands
v. Pinney, 967
F.2d 912, 917-18 (3d Cir. 1992).
     When reviewing a jury charge "where the objection is properly
preserved, our
inquiry is whether the charge, 'taken as a whole, properly apprises the
jury of the issues
and the applicable law." Smith v. Borough of Wilkinsburg, 147 F.3d 272,
74 (3d Cir.
1998). "It is the inescapable duty of the trial judge to instruct the
jurors, fully and
correctly, on the applicable law of the case, and to guide, direct, and
assist them toward
an intelligent understanding of the legal and factual issues involved in
their search for
truth." 9A Charles A. Wright and Arthur R. Miller, Federal Practice and
Procedure
  2556 at 438 (2d ed. 1995).
                           Discussion
     In 1981, the Pennsylvania Supreme Court declined to create a common
law cause
of action for plaintiffs alleging that their insurance company refused to
pay a claim in
"bad faith." D'Ambrosio v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 431
A.2d 966 (1981);
Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 529 (3d Cir.
1997) (describing
history). In 1990, "[i]n what some call a delayed response to D'Ambrosio,
the
Pennsylvania legislature enacted 42 Pa. Cons. Stat.   8371 entitled
'Actions on Insurance
Policies,'" which creates a private right of action for "bad faith"
claims. Polselli, 126
F.3d at 529.
     In 1994, the Pennsylvania Superior Court defined bad faith and set
the standard for
determining whether an insurance company acted in bad faith. See
Terletsky v.
Prudential Prop. and Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. 1994).
The court noted
first that the term "bad faith" had acquired particular meaning in the
insurance context:
                    "Bad faith" on part of insurer is any frivolous or
unfounded
          refusal to pay proceeds of a policy; it is not necessary that
          such refusal be fraudulent. For purposes of an action against
          an insurer for failure to pay a claim such conduct imports a
          dishonest purpose and means a breach of a known duty (i.e.,
          good faith and fair dealing), through some motive of self-
          interest or ill will; mere negligence or bad judgment is not bad
          faith.

Id. (quoting Black's Law Dictionary 139 (6th ed. 1990)).   The court then
went on to
create a two-part standard for evaluating "bad faith" claims: "to recover
under a claim of
bad faith, the plaintiff must show [1] that the defendant did not have a
reasonable basis
for denying benefits under the policy and [2] that defendant knew or
recklessly
disregarded its lack of reasonable basis in denying the claim." Id.; see
also Klinger v.
State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir. 1997)
(recognizing the two
part standard in Terletsky).
     Prior to Terletsky, the Pennsylvania Superior Court had looked to the
UIPA and
the UCSP to give content to the concept of bad faith as used in 42 Pa.
Cons. Stat.   8371.
See, e.g., Romano v. Nationwide Mutual Fire Insurance Company, 646 A.2d
1228 (Pa.
Super. 1994). Terletsky did not, however, and it is apparent from a
comparison of the bad
faith standard it adopted with the provisions of the UIPA and the UCSP
that much of the
conduct proscribed by the latter is wholly irrelevant to whether an
insurer lacks a
reasonable basis for denying benefits and, if so, whether it knew or
recklessly disregarded
that fact.
     It necessarily follows that a violation of the UIPA or the UCSP is
not a per se
violation of the bad faith standard and that it is only the Terletsky
standard itself that
allows one to determine whether a violation of the former is of any
relevance in a case
like the one before us. It is also apparent that reference to the fact
that the defendant's
conduct violated the UIPA or the UCSP holds the potential for the jury's
verdict being
influenced by irrelevant matter. In these circumstances, it is not
surprising to find no
Pennsylvania cases holding that reference to the UIPA or the UCSP in
addition to the
Terletsky standard is mandatory. In the particular circumstances of this
case, it was well
within the discretion of the District Court to find that reference to
these statutes was
unnecessary and potentially prejudicial and thus to rely solely on the
Terletsky standard.
     The UIPA prohibits engaging in "unfair methods of competition" or
"deceptive
acts or practices" in the business of insurance. See 40 Pa. Cons. Stat.
1171.4. The
statute defines "unfair methods of competition" and "unfair or deceptive
acts or practices"
to include numerous forms of conduct. See id. at    1171.5. Sciotti
intended to testify that
USAA violated five statutory provisions. Most of the acts defined as
"unfair methods of
competition" and "unfair or deceptive acts or practices" do not have
relevance to the
question of whether or the insurer had a reasonable basis for denying
benefits under the
policy and knew or recklessly disregarded its lack of reasonable basis in
denying the
claim. See Terletsky, 649 A.2d at 688. Rather, the majority of the
provisions go toward
establishing the timing of investigations and payment of claims. The
remaining
provisions simply require normal good business practices. Moreover, to
constitute
"unfair claim settlement or compromise practices," an insurer has to
commit or perform
the acts "with such frequency as to indicate a business practice." Id. at
  1171.5(10).
     Likewise, the three provisions of the UCSP that Dinner claims USAA
violated are
not relevant to resolving a dispute of "bad faith" under the Terletsky
standard. Like the
statute, these regulations limit the scope of potential violations by
requiring that the
standards be "violated with a frequency that indicates a general business
practice, . . . to
constitute unfair claims settlement practices." 31 Pa. Code    146.1
(emphasis added).
     Here the trial court allowed Sciotti to testify, as an expert, about
the substance of
those actions of USAA which she believed were committed in "bad faith."
Sciotti was
allowed to testify about a number of instances of perceived misconduct
based on her
knowledge of the case and the insurance industry. While she was not
allowed to use the
UIPA or UCSP as underpinnings for her findings, references to them were
not necessary
to allow the jury to understand and apply the Terletsky standard and, as
the District Court
found, would hold a potential for substantial, unfair prejudice to USAA.
The District
Court did not abuse its discretion in finding that any relevance of
Sciotti's testimony was
outweighed by the potential for prejudice to USAA.
     For substantially the same reasons, the District Court did not abuse
its discretion
by refusing to instruct the jury with respect to the provisions of the
UIPA and the UCSP.
     The judgment of the District Court will be affirmed.
TO THE CLERK:


     Please file the foregoing Memorandum Opinion.


                               /s/ Walter K. Stapleton
                                                   Circuit Judge
