J-A19021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM F. RHODES, JR. AND CARRIE E.           IN THE SUPERIOR COURT OF
RHODES                                               PENNSYLVANIA

                        Appellants

                   v.

USAA CASUALTY INSURANCE COMPANY

                        Appellee                   No. 1431 WDA 2013


            Appeal from the Judgment Entered August 20, 2013
               In the Court of Common Pleas of Blair County
                   Civil Division at No(s): 2004 BN 2279


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 16, 2014

     Appellants, William F. Rhodes, Jr. and Carrie E. Rhodes (hereinafter,

collectively “the Rhodeses”), appeal from the judgment entered on August

20, 2013. We affirm.

     In an earlier opinion from this Court, we summarized the pre-trial

posture of this case. As we explained:

        On July 1, 2000, while Mr. Rhodes was driving his brother’s
        motorcycle, he was involved in an accident, from which he
        suffered numerous injuries sufficiently serious as to require
        hospitalization in an intensive care unit for several days.
        [At the time, the Rhodeses were the named insureds on a
        USAA Casualty Insurance Company (hereinafter “USAA”)
        motor vehicle policy, which provided underinsured motorist
        (hereinafter “UIM”) coverage in the total amount of
        $200,000.00]. . . .

        The Rhodeses filed a claim with State Farm Insurance
        Company, which was the insurer of the tortfeasor, i.e., the
        driver of the vehicle that collided with [Mr. Rhodes]. State

* Former Justice specially assigned to the Superior Court.
J-A19021-14


       Farm paid $50,000[.00], which was the liability limit of the
       tortfeasor’s policy, to the Rhodeses.     Subsequently, on
       August 20 2001, the Rhodeses contacted USAA [(their
       insurer)] and Progressive Insurance Company [(the insurer
       of the motorcycle)], with notice of an underinsured motorist
       claim. Progressive tendered payment of $15,000[.00] to
       the Rhodeses on October 12, 2001.

       On May 10, 2002, the Rhodeses [provided] to USAA their
       statement of demand settlement package, which included
       medical records and other documentation as to [Mr.
       Rhodes’] injuries and damages. The Rhodeses placed a
       total value on their claim of $235,000[.00], and offered to
       settle for $175,000[.00]. On July 10, 2002, Linda Barboza,
       the USAA claims examiner for large loss claims assigned to
       the Rhodeses’ claim, offered to settle for $5,000[.00].
       USAA contended that there was a question as to causation
       for one of [Mr. Rhodes’] injuries, specifically a neck injury.
       The Rhodeses rejected the offer as “ridiculous” and “not
       made in good faith” and requested arbitration.

       At this point, Alma Trevino, a USAA senior litigation
       manager for the northwest region, and Joel Kormanski,
       outside counsel [(hereinafter “Attorney Kormanski”)], took
       over the Rhodeses’ claim. After reviewing the Rhodeses’
       file[,] and in light of the $65,000[.00] already paid by other
       insurance carriers on the claim, Ms. Trevino determined that
       Ms. Barboza’s $5,000[.00] settlement offer was fair.
       However, when [Attorney] Kormanski initially reviewed the
       case, he determined that the Rhodeses’ claim was worth
       more than $5,000[.00], but less than the Rhodeses’
       $200,000[.00] policy limit. [Attorney] Kormanski informed
       Ms. Trevino of his determination via letter dated August 6,
       2002. Slightly more than a month later, on September 15,
       2002, [Attorney] Kormanski informed Ms. Trevino that it
       would probably require $50,000[.00] to $65,000[.00], or
       more, to resolve the Rhodeses’ case. [Attorney] Kormanski
       sought an independent medical examination of Mr. Rhodes,
       particularly with regard to the disputed neck injury. . . .

       Dr. Kelly Agnew, an orthopedic physician, conducted the
       [independent medical] examination on November 14, 2002,
       immediately following which Dr. Agnew wrote a report
       favorable to USAA’s position as to causation of [Mr.

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J-A19021-14


       Rhodes’] neck injury. Mr. Rhodes underwent a surgical
       procedure related to his neck injury in January 2003.

       By letter dated July 1, 2003, USAA increased its settlement
       offer to $50,000[.00], which the Rhodeses rejected. USAA
       then made several other offers, of $65,000[.00]; of
       $80,000[.00]; and[,] on November 21, 2003, a “bottom
       line” offer of $100,000[.00], all of which were rejected. On
       December 4, 2003, the Rhodeses renewed their settlement
       demand of $175,000[.00], and stated that if the offer were
       not accepted by December 29, 2003, it would be withdrawn
       and the parties would proceed to arbitration. USAA agreed
       to settle the claim for $175,000[.00] on December 22,
       2003. After rejecting two drafts of a settlement/release
       agreement, the Rhodeses accepted and signed the final
       agreement on January 12, 2004.

       On July 15, 2004, the Rhodeses filed suit against USAA for
       breach of its contractual duty to act in good faith in the
       handling of their underinsured motorist claims and sought
       compensatory and punitive damages in accordance with 42
       Pa.C.S.A. § 8371 and Pennsylvania common law. After
       nearly two years of discovery, on July 13, 2006, the
       Rhodeses filed a motion for partial summary judgment; and
       on August 17, 2006, USAA filed its own motion for summary
       judgment.    Oral argument on the cross motions [for
       summary judgment] was held on September 15, 2006. . . .

       [O]n October 11, 2006 [(which was before the trial court
       rendered a decision on the cross-motions for summary
       judgment),] the trial court granted in part USAA’s Motion to
       Compel Plaintiff’s Response to Defendant’s First Set of
       Interrogatories and Request for Production of Documents.
       In its [October 11, 2006] order, the trial court directed that
       the Rhodeses provide USAA with the entire content of their
       attorney’s file on the underlying [UIM] claim, excluding any
       information protected by the attorney-client privilege. The
       trial court reasoned that [the Rhodeses’ attorney’s] file was
       discoverable because [the issue of] whether the Rhodeses
       acted in good faith in the underlying UIM claim was relevant
       to whether USAA’s conduct constituted bad faith. USAA
       claimed that it needed the information to evaluate whether
       its insureds . . . acted in good faith, and the trial court
       agreed with this rationale. . . .

                                   -3-
J-A19021-14



        On November 8, 2006, the trial court granted
        reconsideration and vacated its October 11, 2006 order
        pending review.    However, before argument could take
        place on the Rhodeses’ reconsideration motion, [the trial
        court issued its order on the cross-motions for summary
        judgment. Specifically,] . . . the trial court denied the
        Rhodeses’ motion for partial summary judgment, but
        granted USAA’s motion for summary judgment and
        dismissed the Rhodeses’ complaint with prejudice. The
        Rhodeses filed a timely appeal [from the trial court’s
        summary judgment order], and USAA cross-appealed.

        On [January 31, 2008], th[e Superior Court vacated the trial
        court’s summary judgment order in part and remanded the
        case for further proceedings. Specifically, we vacated the
        portion of the order that granted USAA’s motion for
        summary judgment because, we concluded, there were
        genuine issues of material fact that needed to be resolved
        at trial. Within our January 31, 2008 memorandum, we
        also affirmed the portion of the trial court’s order that
        denied the Rhodeses’ cross-motion for summary judgment
        and we quashed USAA’s cross-appeal from the summary
        judgment order.      Rhodes v. USAA Cas. Ins. Co., 951
        A.2d 1225 (Pa. Super. 2008) (unpublished memorandum)
        at 1-30 (hereinafter “Rhodes I”)].

                                    ...

        On remand, [a new trial court judge] was assigned to
        preside over the matter. On August 31, 2009, [the trial
        court] reinstated the October 11, 2006 order granting
        USAA’s motion to compel [the production of documents].

Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1255-1257 (Pa. Super.

2011)   (hereinafter   “Rhodes   II”)   (internal   citations,   footnotes,   and

corrections omitted) (some internal quotations omitted).

     The Rhodeses filed a timely notice of appeal from the trial court’s

collateral order granting USAA’s motion to compel the production of



                                    -4-
J-A19021-14



documents. On appeal, the Rhodeses claimed that the trial court “abused its

discretion by ordering [them] to produce their attorney’s entire work

product, without identifying, performing a relevancy analysis, or examining

any of counsel’s protected records under Pa.R.C.P. 4003.3.” Rhodes II, 21

A.3d at 1258.    On May 17, 2011, this Court filed a published opinion,

wherein we concluded that the trial court had erred when it granted USAA’s

motion to compel the production of documents. Therefore, we vacated the

trial court’s discovery order and remanded the case for trial. Rhodes II, 21

A.3d at 1258.

      The case proceeded to a five-day bench trial. The trial court explained

the evidence that was presented during the trial, as well as the factual

findings it rendered from this evidence:

        Through    their   attorney,   [Richard Serbin,   Esquire
        (hereinafter “Attorney Serbin”)], the Rhodeses notified
        USAA of their [UIM] claim on August 20, 2001. Linda
        Barboza, a claims handler employed by USAA, was assigned
        the case on September 7, 2001. By letter dated October 5,
        2001, Attorney Serbin wrote to Ms. Barboza advising her it
        was “premature to make a claim” since Mr. Rhodes
        continued receiving medical treatment.

                                     ...

        [On May 17, 2002, Attorney Serbin] submitted to USAA [the
        Rhodeses’] statement of demand (dated May 10, 2002),
        wherein they informed [USAA that] they [valued] their
        claim at $235,000.00, which [was] in excess of USAA’s UIM
        stacked coverage of $200,000.00, and [that they] offered to
        settle their claim for $175,000.00.    By this time, the
        Rhodeses had received $50,000.00 from State Farm and
        $15,000.00 from Progressive Insurance Company.


                                    -5-
J-A19021-14


                                           ...

         On June 20, 2002, USAA ran a Colossus[1] report using the
         statement of demand and Mr. Rhodes’ medical records[.
         The Colossus program initially] produced a value on the
         claim of $9,949.00 to $22,609.00. . . . [At the time of the
         initial input, Ms. Barboza] entered into the computer system
         [] the statement of demand’s representation that Mr.
         Rhodes had suffered a disc herniation in his neck as a result
         of the accident. . . .

         [Following the initial Colossus report, a] member of USAA’s
         Colossus team, Kathy Ortiz, informed Ms. Barboza that disc
         herniation should not have been entered into the computer
         system because Mr. Rhodes did not treat for [the] neck
         injury until more than one year [after] the accident.
         [Therefore, at Ms. Ortiz’s] direction, Ms. Barboza
         substituted [“neck soft tissue injury”] for [“disc herniation”].
         The second Colossus run resulted in a value of $0 to
         $3,209.00 (money in excess of the $65,000.00 the
         Rhodeses had already received). The second [Colossus] run
         included $7,500.00 (up from $5,000.00) for disfigurement. .
         ..

         [On July 10, 2002, USAA offered to settle the claim for
         $5,000.00. This initial offer was] based on a total value of
         the claim at $70,000.00. On July 15, 2002, [the Rhodeses,
         through Attorney Serbin, rejected the $5,000.00 offer.
         Further, within Attorney Serbin’s rejection letter, Attorney
         Serbin demanded that USAA select an arbitrator and
         Attorney Serbin] advised USAA [that] he considered the
         initial offer was made in bad faith. No counter-demand was
         made. . . .

         USAA transferred the Rhodeses’ claim to [Blanca Alma
         Trevino] on July 29, 2002, because of the demand for
         arbitration, i.e., litigation. Also, on July 29, 2002, USAA
         referred the defense of the Rhodeses’ claim to the law firm
____________________________________________


1
  Blanca Alma Trevino, USAA’s senior litigation manager, testified during the
trial that “Colossus” is a software program that USAA utilizes to evaluate
injury claims. N.T. Trial, 12/5/11 (afternoon session), at 20.



                                           -6-
J-A19021-14


       of Meyer Darragh. On August 1, 2002, Joel Kormanski,
       Esquire, of Meyer Darragh [(hereinafter “Attorney
       Kormanski”)], called Ms. Trevino to discuss the assignment.

       From this point on in the chronology of events leading up to
       USAA’s paying the Rhodeses their settlement demand of
       $175,000.00 on January 12, 2004, there is a difference in
       the factual statements of the parties [and] . . . in the effect
       the actions or inactions of USAA had on the ultimate
       outcome of the Rhodeses’ claim. The [trial c]ourt finds
       credible the evidence hereafter set forth.

       Mr. Rhodes suffered a football injury in 1991, which
       produced symptoms similar to those he complained of at
       the time of his written statement under oath to USAA. [Dr.
       D. Kelly Agnew] conducted an independent medical
       examination [(hereinafter “IME”)] of Mr. Rhodes on
       November 14, 2002.        Attorney Kormanski received Dr.
       Agnew’s report on December 3, 2002, and sent it to
       Attorney Serbin [and Ms. Trevino] on December 10, 2002.
       [Within Dr. Agnew’s report, Dr. Agnew concluded the
       following:

          Clearly, Mr. Rhodes had a history of cervical injury in
          1992. He had been injured playing football. He had
          several months of chiropractic care. He volunteers that
          he did have upper extremity paresthesias from the
          injury and, in fact, when he returned to football he had
          recurrent paresthesias. This history is confirmed in the
          neurologist’s notes. As such, Mr. Rhodes had to leave
          football due to upper extremity neurologic complaints.

          Indeed, Mr. Rhodes had prior complaints of upper
          extremity paresthesias when he would turn his head.
          Dr. [Kornel] Lukacs, in August of 1993, clearly indicated
          that there was numbness radiating to the arm and that
          when Mr. Rhodes turned his head to the right there
          would be neck discomfort and arm numbness.

          It would certainly appear that Mr. Rhodes had enough of
          a cervical injury in 1993 to cause some positional nerve
          root irritation.




                                    -7-
J-A19021-14


          Mr. Rhodes was involved in a well[-]documented
          motorcycle accident [on] July 1, 2000. Abrasions and
          contusions were documented including abrasions to the
          upper extremities and the left knee. These abrasions
          have all healed. He has minimal skin discoloration.
          Overall, they have healed with goof [sic] cosmesis.
          These healed abrasions are not a source of any
          limitations or disability whatsoever.

          There is nothing in the medical records to suggest that
          Mr. Rhodes sustained any structural damage to the left
          knee in the motorcycle accident. Clearly, he did have an
          anterior abrasion.    The MRI obtained shortly after
          accident would rule[] out any structural damage.
          Indeed, his knee examinations are normal and
          symmetrical today. Mr. Rhodes has not sustained any
          impairment about the left knee from the motorcycle
          accident. Again, the abrasion at the knee has simply
          healed.

          Mr. Rhodes was to later voice cervical complaints. There
          is no documentation in the early medical records
          including the records of Drs. Thompson, Schmidt, and
          Rowe that there were any complaints about the cervical
          spine in the months following the [July 1, 2000
          motorcycle] accident.    Physical therapy notes would
          appear to be aimed exclusively at the knee early on
          without any mention of the cervical spine.

          One year later, Dr. [Frank E. Sangiorgio] documented
          some cervical complaints. There would be no way to
          ascribe cervical complaints documented one year later to
          the motorcycle accident.

          Mr. Rhodes has been evaluated by two cervical MRI
          studies. I have had the opportunity to review both of
          those studies. The studies reveal aging changes. He
          has bone spur or osteophyte formation and disc bulging
          at two levels. There are no traumatic changes which
          might be ascribed to the motorcycle accident. Again,
          there was no documentation of symptoms in the medical
          records until one year after the motorcycle accident.




                                  -8-
J-A19021-14


          Mr. Rhodes has an unremarkable examination of cervical
          spine. However, his history of radiating discomfort with
          turning his head to the right could indicate that he is
          having some intermittent positional irritation of a nerve
          root, in all likelihood the C6 nerve root, since it is
          accompanied by thumb numbness. He has no actual
          radicular findings to confirm radiculopathy such as a
          diminished biceps reflex, biceps atrophy[,] or diminished
          biceps strength.     The sensory disturbance which he
          reports to pinprick is not purely radicular.

          Any positional irritation of a cervical nerve root, which
          Mr. Rhodes may be experiencing, is unrelated to his
          motorcycle accident. Again, it would appear that he had
          similar symptoms after a football injury in the early
          1990’s. These symptoms could be produced by the
          degenerative changes seen in his cervical spine by MRI.
          There is certainly nothing to suggest that these changes
          were in any[] way accelerated or aggravated by the
          motorcycle accident. Again, there is no documentation
          of these symptoms in the medical records for one year
          following that event.

       D. Kelly Agnew, M.D. Report, dated 11/14/02, at 17-19].

       On November 21, 2002, at a pre-arbitration conference,
       Attorney Serbin informed Attorney Kormanski that Mr.
       Rhodes had undergone tests with Dr. [Ciceron L.] Opida and
       had been referred for a surgical evaluation with a
       neurosurgeon in December, and Mr. Rhodes would not be
       ready for an arbitration hearing until the following spring.
       On December 3, 2002, Mr. Rhodes treated with Dr. [E.
       Richard] Protsko and was referred for an angiogram and a
       consult with Dr. Kyle Kim. . . . On December 20, 2002, Dr.
       Kim recommended cervical surgery and Mr. Rhodes
       intended to schedule the surgery.

       The arbitration panel had set April 30, 2003[] as the date
       for the hearing.

       On January 21, 2003, Mr. Rhodes had cervical surgery. The
       treatment records of Dr. Opida, a neurologist, contained no
       reference to Dr. Kim or that Mr. Rhodes was to undergo
       surgery.    On January 21, 2003, Attorney Kormanski

                                  -9-
J-A19021-14


       received medical records [from] Dr. Protsko, an associate of
       [Dr. Kim’s], which contained no indication of surgery being
       scheduled.

       Dr. Agnew sent Attorney Kormanski a supplemental report,
       dated February 28, 2003, and received by Attorney
       Kormanski on March 17, 2003, which contained no
       reference to Mr. Rhodes’ surgery.

       As of March 13, 2003, Ms. Trevino anticipated increasing
       the settlement offer based on additional information from
       Attorney Kormanski.

       On March 20, 2003, Attorney Kormanski called Attorney
       Serbin[] to discuss Dr. Agnew’s objections to Attorney
       Serbin’s subpoena, and learned, for the first time, [that] Mr.
       Rhodes had undergone neck surgery in January. Attorney
       Serbin placed USAA on notice at that time that the accident
       caused Mr. Rhodes to suffer a vascular injury to his neck.
       This was Attorney Kormanski[’s] and USAA’s first notice
       [that] Mr. Rhodes [had] suffered a vascular injury. On
       March 20, 2003, Attorney Kormanski called Ms. Trevino and
       advised her of what he had learned.

       On March 21, 2003, Attorney Kormanski received Mr.
       Rhodes’ [surgical] records from [Attorney Serbin. Attorney
       Kormanski] immediately forwarded them to Dr. Agnew for
       his review and opinion. Dr. Agnew authored a March 27,
       2003[] report wherein he rendered an opinion that the
       vascular surgery was unrelated to the July 1, 2000
       [motorcycle accident]. [However,] Dr. Agnew [informed]
       Attorney Kormanski that vascular surgery was outside [of]
       his specialty.

       On March 31, 2003, Attorney Kormanski learned that the
       arbitration hearing was continued.

       On April 16, 2003, Attorney Kormanski wrote [to] Attorney
       Serbin[, informing] him [that] he was waiting for a medical
       report from him that would support the Rhodeses’
       contention that the neck complaints were related to the
       accident.




                                   - 10 -
J-A19021-14


       Following the surgery with Dr. Kim, Mr. Rhodes received an
       evaluation from Dr. Lukacs, who had treated Mr. Rhodes in
       1992 for his 1991 football injury, but not since then. On
       May 5, 2003, Dr. Lukacs wrote a letter to Attorney Serbin
       stating [that] the need for the [January 21, 2003] neck
       surgery was caused by the July 1, 2000[] accident. The
       first report of causation [Attorney Kormanski] received from
       Attorney Serbin was in a June 5, 2003 letter, which included
       Dr. Lukacs’[] report and office records. Dr. Lukacs is a
       neurologist.

       Dr. [Michael G.] Moncman conducted an independent
       medical records review of Mr. Rhodes’ medical records. On
       July 14, 2003, Attorney Kormanski received Dr. Moncman’s
       report. Dr. Moncman provided a second report, dated July
       21, 2003. Dr. Moncman opined [that] there was no way a
       conclusion could be reached with reasonable medical
       certainty that the motorcycle accident caused Mr. Rhodes to
       have vertebrobasilar symptoms one year later.        In Dr.
       Moncman’s supplemental report, received by Attorney
       Kormanski on July 24, 2003, he advised with reasonable
       medical certainty [that] Mr. Rhodes’ vertebrobasilar
       insufficiency was not caused by the accident.

       On October 7, 2003, Dr. Sangiorgio authored a report. In
       his report, Dr. Sangiorgio opined that Mr. Rhodes’ problems
       were directly a result of the accident on July 1, 2000.
       Attorney Serbin sent Dr. Sangiorgio’s report to Attorney
       Kormanski and a letter dated October 13, 2003, and made a
       demand of $160,000.00.        Attorney Kormanski had not
       received previous reports from Dr. Sangiorgio.

       On December 2, 2003, Attorney Serbin sent to Attorney
       Kormanski Dr. Kim’s November 14, 2003 report. In [that]
       report, [Dr. Kim] stated Mr. Rhodes’ prognosis was
       excellent and it would be reasonable to conclude [that] the
       accident caused his symptoms or aggravated a pre-existing
       condition. Attorney Kormanski sent copies of Dr. Kim’s
       report to USAA, Dr. Agnew[,] and Dr. Moncman.

       In a letter dated December 4, 2003, Attorney Serbin
       increased the Rhodeses’ demand to $175,000.00. In a
       letter dated December 22, 2003, Attorney Kormanski


                                  - 11 -
J-A19021-14


        advised Attorney      Serbin     that   USAA   agreed   to   pay
        $175,000.00.

        By the time of the settlement of the Rhodeses’ claim, USAA
        had in its possession two reports from Dr. Moncman and
        three reports from Dr. Agnew that the July 1, 2000
        motorcycle accident did not cause Mr. Rhodes to suffer any
        type of neck injury nor was there a need for neck surgery.

        Attorney Kormanski, soon after he was retained, informed
        USAA he did not necessarily believe the value of the
        Rhodeses’ UIM claim was more than $5,000.00, on top of
        the $65,000.00 [the Rhodeses] already had received.
        However, there are uncertainties with litigation and
        expenses and he could see a willingness to move to a higher
        amount to settle the claim.

        Alma Trevino did not increase Linda Barboza’s offer of
        $5,000.00 because she believed she would not be able to
        offer enough money to satisfy the Rhodeses, and she had
        no report causally linking [Mr. Rhodes’] disc herniation,
        which was included in the settlement demand, to the
        accident.

Trial Court Opinion, 7/19/13, at 3-9 (internal citations omitted) (some

internal capitalization omitted).

      On July 19, 2013, the trial court entered its verdict in the case, finding

in favor of USAA and against the Rhodeses. As the trial court explained in

its contemporaneously filed opinion, it found in favor of USAA because the

Rhodeses did not prove, by clear and convincing evidence, that there was an

“unreasonable delay in the resolution of the Rhodeses’ claim caused by

USAA’s not having a reasonable basis for paying the Rhodeses’ settlement

demand sooner.” Id. at 13.

      On July 25, 2013, the Rhodeses filed a 29-page post-trial motion,

which the trial court denied on August 9, 2013. Judgment was entered on

                                       - 12 -
J-A19021-14



August 20, 2013 and the Rhodeses filed a timely notice of appeal.       The

Rhodeses raise five claims on appeal:

        1. Whether the [trial c]ourt misapprehended the issues
        raised by the insureds, and as a result of its narrow and
        inaccurate definition of the issue, overlooked clear and
        convincing evidence of the insurer’s continuing course of
        bad faith conduct?

        2. Whether the [trial c]ourt followed the law of the case
        established in the two prior opinions of [the Superior] Court
        regarding the focus of a bad faith claim, the scope of the
        insurer’s conduct to be reviewed, and the evidence to be
        considered?

        3. Whether the [trial c]ourt erred in quashing the insureds’
        timely served Rule 234.3 Notices to Attend and Produce
        [D]ocuments, directed to the insurer’s management
        employees involved with the claim, and thereafter abused
        its discretion by refusing to apply the missing witness rule
        when the identified employees did not attend?

        4. Whether the [trial c]ourt abused its discretion by
        precluding the admission of the trial deposition of the
        insurer’s deceased senior supervisor and litigation claims
        advisor to the responsible claims handlers?

        5. Whether the [trial c]ourt circumvented basic rules of
        evidence by admitting the insurer’s “exhibit book”[] without
        requiring a foundation or witness authentication, including
        documents relied upon by the [trial c]ourt in reaching its
        verdict?

The Rhodeses’ Brief at 4-5 (some internal capitalization omitted).

     As this Court has recently explained:

        Our Supreme Court has long recognized that “the utmost
        fair dealing should characterize the transactions between an
        insurance company and the insured.” Dercoli v. Pa. Nat’l
        Mut. Ins. Co., 554 A.2d 906, 909 (Pa. 1989), quoting
        Fedas v. Ins. Co. of the State of Pa., 151 A. 285, 286


                                    - 13 -
J-A19021-14


       (Pa. 1930). Moreover, the insurance company has a duty to
       deal with its insured on a fair and frank basis, and at all
       times, to act in good faith.

       In 1990, our legislature created a statutory remedy for bad
       faith conduct by an insurance company:

          [42 Pa.C.S.A. § 8371]. Actions on insurance policies

          In an action arising under an insurance policy, if the
          court finds that the insurer has acted in bad faith toward
          the insured, the court may take all of the following
          actions:

              (1) Award interest on the amount of the claim from
              the date the claim was made by the insured in an
              amount equal to the prime rate of interest plus 3%.

              (2) Award punitive damages against the insurer.

              (3) Assess court costs and attorney fees against the
              insurer.

       42 Pa.C.S.A. § 8371.

       . . . [Our caselaw holds that,] to succeed on a claim under
       section 8371, the insured must show that “the insurer did
       not have a reasonable basis for denying benefits under the
       policy and that the insurer knew of or recklessly disregarded
       its lack of reasonable basis in denying the claim.” See,
       e.g., O’Donnell v. Allstate Ins. Co., 734 A.2d 901, 906
       (Pa. Super. 1999), citing MGA Ins. Co. v. Bakos, 699 A.2d
       751, 754 (Pa. Super. 1997). To constitute bad faith it is not
       necessary that the refusal to pay be fraudulent. However,
       mere negligence or bad judgment is not bad faith. The
       insured must also show that the insurer breached a known
       duty ( i.e., the duty of good faith and fair dealing) through a
       motive of self-interest or ill will.

       This Court has noted that the bad faith statute extends to
       the handling of UIM claims, despite their similarity to third
       party claims. Also, section 8371 is not restricted to an
       insurer’s bad faith in denying a claim. An action for bad
       faith may extend to the insurer’s investigative practices.

                                   - 14 -
J-A19021-14


        Bad faith conduct also includes lack of good faith
        investigation into facts, and failure to communicate with the
        claimant. . . .

        Bad faith claims are fact specific and depend on the conduct
        of the insurer vis á vis the insured.

Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1148-1149 (Pa.

Super. 2013) (some internal quotations and citations omitted).

      The Rhodeses first claim that the trial court misunderstood their bad

faith claim and that, as a result of this misunderstanding, the trial court

“failed to consider” the following evidence of USAA’s bad faith:                 USAA’s

“inadequate investigation” into their claim; USAA’s “lowball offers” to the

Rhodeses; USAA’s “repeated rejection of its attorney’s advice on valuation;”

USAA’s “failure to review the medical and other documentation relied upon

by its attorney to support his recommendations;” USAA’s “factual errors

[that it] entered into the Colossus valuation program;” USAA’s “abuse of the

IME process;” and, USAA’s “unlawful release agreements.”            The Rhodeses’

Brief at 42.

      The      premise   of   the   Rhodeses’   claim   –   that   the   trial    court

misunderstood the scope of their bad faith claim – is based upon language

contained in the trial court’s opinion. Specifically, the Rhodeses base their

argument upon the fact that, when the trial court defined the Rhodeses’

claim in its opinion, the trial court quoted from this Court’s definition of a

bad faith claim, declaring that the Rhodeses “must [first] show the insurer

lacked a reasonable basis for denying benefits (in this case, by not paying

[the Rhodeses’] settlement demand sooner).” Trial Court Opinion, 7/19/13,

                                       - 15 -
J-A19021-14



at 3; the Rhodeses’ Brief at 42. According to the Rhodeses, by defining their

claim in such a manner, the trial court failed to consider certain evidence

offered in support of their bad faith claim. The Rhodeses’ Brief at 42.

      The Rhodeses’ claim is meritless. Certainly, the trial court’s definition

of the Rhodeses’ bad faith claim – declaring that the Rhodeses “must [first]

show the insurer lacked a reasonable basis for denying benefits (in this case,

by not paying [the Rhodeses’] settlement demand sooner)” – is, essentially,

a word-for-word, dictionary definition of the first-prong of a bad faith claim

in Pennsylvania. See Grossi, 79 A.3d at 1148-1149 (“to succeed on a claim

under section 8371, the insured must show that the insurer did not have a

reasonable basis for denying benefits under the policy and that the

insurer knew of or recklessly disregarded its lack of reasonable basis in

denying the claim”) (emphasis added) (internal quotations and citations

omitted).     Thus,   and   far   from   demonstrating   that   the   trial   court

misunderstood the scope of the Rhodeses’ bad faith claim, the trial court’s

accurate definition of the law demonstrates that it thoroughly understood

and appreciated the claim that the Rhodeses were asserting.

      Further, the trial court’s definition of the Rhodeses’ bad faith claim –

as being that the Rhodeses must first show that the “insurer lacked a

reasonable basis for denying benefits (in this case, by not paying [the

Rhodeses’] settlement demand sooner)” – necessarily encompasses the

various subparts to the Rhodeses’ bad faith claim that, the Rhodeses assert,

the trial court “failed to consider.” Stated another way, since “bad faith” is

                                     - 16 -
J-A19021-14



defined as an unreasonable denial or delay of benefits under a policy, the

definition of bad faith necessarily includes claims regarding:            USAA’s

“inadequate investigation” into their claim; USAA’s “lowball offers” to the

Rhodeses’; USAA’s “repeated rejection of its attorney’s advice on valuation;”

USAA’s “failure to review the medical and other documentation relied upon

by its attorney to support his recommendations;” USAA’s “factual errors

[that it] entered into the Colossus valuation program;” USAA’s “abuse of the

IME process;” and, USAA’s “unlawful release agreements.”          The Rhodeses’

Brief at 42.      To be sure, all of the above subparts concern either the

“reasonableness” of USAA’s actions or USAA’s delay in failing to pay the

Rhodeses’ claim earlier.          Therefore, the trial court’s definition of the

Rhodeses’ claim encompassed all of the above-mentioned subparts to the

Rhodeses’ claim.

       Finally, nothing in the trial court’s opinion suggests that the trial court

was unaware of the full extent of the Rhodeses’ bad faith claim or that it

improperly overlooked the evidence offered in support of their claim.2

Clearly, the trial court’s July 19, 2013 opinion – which we have quoted at

length above – demonstrates that its verdict was based upon the entirety of

USAA’s conduct vis à vis the Rhodeses.
____________________________________________


2
  To the extent the Rhodeses attempt to disguise a weight of the evidence
claim as one sounding in pure legal error, the claim fails because the entire
premise of the claim – that the trial court “misapprehended” the Rhodeses’
claim – fails.



                                          - 17 -
J-A19021-14



         The Rhodeses’ first claim on appeal is based entirely upon the faulty

premise that the trial court misunderstood the scope of their bad faith claim.

Nothing in the trial court’s discussion or analysis of the claims advanced by

the Rhodeses suggests that this is the case. Therefore, since the Rhodeses’

claim is based upon a faulty premise, the claim necessarily, and logically,

fails.

         Second, the Rhodeses claim that the trial court erroneously failed to

“follow[] the law of the case established in the two prior opinions of [the

Superior] Court regarding the focus of a bad faith claim, the scope of the

insurer’s conduct to be reviewed, and the evidence to be considered.” The

Rhodeses’ Brief at 58. This claim fails.

         Our Supreme Court has explained:

           the “law of the case” doctrine . . . refers to a family of rules
           which embody the concept that a court involved in the later
           phases of a litigated matter should not reopen questions
           decided by another judge of that same court or by a higher
           court in the earlier phases of the matter. Among the
           related but distinct rules which make up the law of the case
           doctrine are that: (1) upon remand for further proceedings,
           a trial court may not alter the resolution of a legal question
           previously decided by the appellate court in the matter; (2)
           upon a second appeal, an appellate court may not alter the
           resolution of a legal question previously decided by the
           same appellate court; and (3) upon transfer of a matter
           between trial judges of coordinate jurisdiction, the
           transferee trial court may not alter the resolution of a legal
           question previously decided by the transferor trial court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (internal

citations omitted).



                                       - 18 -
J-A19021-14



      As was summarized above, this case has been before us on two prior

occasions. On the first occasion, we vacated the portion of the trial court’s

order granting USAA’s motion for summary judgment and affirmed the

portion of the trial court’s order denying the Rhodeses’ motion for summary

judgment.    Rhodes I, 951 A.2d at 1225.        On the second occasion, we

vacated the trial court’s discovery order, which had allowed for discovery of

Attorney Serbin’s work product. Rhodes II, 21 A.3d at 1257.

      On appeal, the Rhodeses do not claim that the trial court mistakenly

believed that Attorney Serbin’s work product was somehow still discoverable

or that its prior order, granting USAA’s motion for summary judgment, was

somehow still valid. Instead, within the argument section of the Rhodeses’

brief, the Rhodeses assert a diverse collection of sub-claims, including that

the trial court’s opinion “fails to discuss” various evidence and claims that

they put before the trial court, that the trial court erred in some of its pre-

trial rulings (which were unrelated to the discovery of Attorney Serbin’s work

product), and that the trial court’s verdict was against the weight of the

evidence.   The Rhodeses’ Brief at 58-71.    We fail to see how such claims

relate to the “law of the case” that was established in the prior

memorandum and opinion from this Court.           At any rate, none of the

Rhodeses’ claims demonstrate that the trial court attempted to “alter the




                                    - 19 -
J-A19021-14



resolution of a legal question previously decided by” this Court. 3 Starr, 664

A.2d at 1331. The Rhodeses’ second claim on appeal thus fails.4

       The Rhodeses’ final three claims on appeal all concern the trial court’s

evidentiary rulings.

       We have explained:
____________________________________________


3
   With respect to the Rhodeses’ second claim on appeal, most of the
subparts are based upon the contention that the trial court’s opinion “failed
to discuss” a particular claim or piece of evidence that the Rhodeses had put
before the trial court. According to the Rhodeses, the trial court’s “failure to
discuss” the reason it rejected certain claims or found certain evidence
unpersuasive meant that the trial court simply did not understand the scope
of their bad faith claim or the prior “law of the case.” See the Rhodeses’
Brief at 58-71.

The Rhodeses’ argument is legally unfounded. First, Pennsylvania Rule of
Appellate Procedure 1925(a) merely requires that the trial court “file of
record at least a brief opinion of the reasons for the order, or for the
rulings or other errors complained of, or shall specify in writing the place in
the record where such reasons may be found.” Pa.R.A.P. 1925(a)(1). In
the case at bar, the trial court’s detailed 13-page opinion in support of its
verdict and its subsequent Rule 1925(a) opinion undoubtedly satisfy Rule
1925(a). Second, it is not surprising that the trial court’s opinions might
have failed to discuss certain facets of the Rhodeses’ bad faith claim or
certain evidence that the Rhodeses introduced at trial, given that the
Rhodeses filed a 29-page post-trial motion and a Rule 1925(b) statement
that contained seven claims with multiple subparts. See the Rhodeses’
Post-Trial Motion, 7/25/13, at 1-29; the Rhodeses’ Rule 1925(b) Statement,
10/11/13, at 1-3.
4
  If the Rhodeses wished to claim that the trial court erred in one of its pre-
trial rulings or that the verdict was against the weight of the evidence, the
Rhodeses should have asserted such a claim independently. We merely hold
that the rulings and the verdict do not offend the “law of the case,” as the
challenged rulings and verdict neither revived the overturned grant of
summary judgment to USAA nor held that Attorney Serbin’s work product
was somehow still discoverable.



                                          - 20 -
J-A19021-14



        Admission of evidence is within the sound discretion of the
        trial court and a trial court’s rulings on the admission of
        evidence will not be overturned absent an abuse of
        discretion or misapplication of law. 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.

        To constitute reversible error, an evidentiary ruling must
        not only be erroneous, but also harmful or prejudicial to the
        complaining party. . . . A party suffers prejudice when the
        trial court's error could have affected the verdict.

Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100-101 (Pa. Super. 2011)

(internal quotations and citations omitted); see also B & L Asphalt Indus.

v. Fusco, 753 A.2d 264, 270-271 (Pa. Super. 2000) (“[a]n evidentiary

ruling which [does] not affect the verdict will not provide a basis for

disturbing the fact-finder’s judgment”) (internal quotations, citations, and

corrections omitted).

     The Rhodeses’ third numbered claim on appeal contends that the trial

court erred in “quashing the insureds’ timely served Rule 234.3 Notices to

Attend and Produce [D]ocuments, directed to the insurer’s management

employees involved with the claim, and thereafter abused its discretion by

refusing to apply the missing witness rule when the identified employees did

not attend.” The Rhodeses’ Brief at 4. Specifically, within their brief, the

Rhodeses claim that the trial court erred when it quashed the notice for

USAA employee, John Timothy Hanley, to produce “the original claims file”

at trial and that the trial court erred when it refused to apply the “missing


                                    - 21 -
J-A19021-14



witness rule” to John Timothy Hanley and Katherine Ortiz.5        Id. at 71-74.

These claims fail.

       On November 7, 2011, Attorney Serbin served notices to attend and to

produce documents on USAA’s attorney, directing that the following

individuals appear for the December 5, 2011 trial:       Blanca Alma Trevino,

Linda Reyna Barboza, Katherine Ortiz, “USAA CIC’s Corporate Designee

(familiar with USAA’s underinsured practices)”, John Timothy Hanley, and

“USAA CIC’s Corporate Designee (familiar with [USAA’s] fiscal matters).”

The notices further declared that Mr. Hanley was to bring with him to the

trial “[t]he original unredacted claims log records and all related files dealing

in any[] way with the underinsured motorist claims of [the Rhodeses,]

including exact copies of all computer system entries and hard document

file[s] in the possession or control of [USAA].” See the Rhodeses’ Affidavit

of Service of Notices to Attend, 11/14/11, at 1; Notice to Attend to John

Timothy Hanley, 11/7/11, at 1.




____________________________________________


5
   With respect to the Rhodeses’ third numbered claim on appeal, their
Pa.R.A.P. 2116(a) “statement of question involved” is phrased far more
broadly than the actual claim that is contained in the argument section of
their brief. See the Rhodeses’ Brief at 4; the Rhodeses’ Brief at 71-74. To
the extent that the Rule 2116(a) statement suggests issues that have not
been developed in the argument section of the brief, those undeveloped
issues are waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703
(Pa. Super. 1992) (“[i]ssues in the statement of questions presented and not
developed in argument are [] deemed waived”).



                                          - 22 -
J-A19021-14



     The notices to attend and to produce documents were filed pursuant to

Pennsylvania Rule of Civil Procedure 234.3(a), which provides:

        Rule 234.3. Notice to Attend. Notice to Produce

        (a) A party may compel the attendance of another party or
        an officer or managing agent thereof for trial or hearing by
        serving upon that party a notice to attend substantially in
        the form prescribed by Rule 234.7. The notice shall be
        served reasonably in advance of the date upon which
        attendance is required. The notice may also require the
        party to produce documents or things.

Pa.R.C.P. 234.3(a).

     On November 22, 2011, USAA filed a motion to quash the notices to

attend, pursuant to Pennsylvania Rule of Civil Procedure 234.4. In relevant

part, Rule 234.4 provides:

        Rule 234.4. Subpoena. Notice to Attend. Notice to Produce.
        Relief From Compliance. Motion to Quash.

                                    ...

        (b) A motion to quash a subpoena, notice to attend or
        notice to produce may be filed by a party, by the person
        served or by any other person with sufficient interest. After
        hearing, the court may make an order to protect a party,
        witness or other person from unreasonable annoyance,
        embarrassment, oppression, burden or expense.

Pa.R.C.P. 234.4(b).

     Within USAA’s motion to quash, USAA noted that Ms. Trevino would

attend the trial in Blair County, Pennsylvania. However, USAA argued that

Ms. Ortiz, Mr. Hanley, and Ms. Barboza, were all Texas residents, over whom

the trial court did not have jurisdiction and that Ms. Barboza was no longer



                                   - 23 -
J-A19021-14



employed by USAA. USAA’s Motion to Quash, 11/22/11, at 1-3. Therefore,

USAA requested that the trial court quash the notices to attend.   Further,

USAA contended that the Rhodeses’ notice for Mr. Hanley to produce the

documents failed because USAA had already provided the files during

discovery and had “already given [the Rhodeses’] counsel the unredacted

claim notes.” Id. at 3; see also USAA’s Response to the Rhodeses’ Request

for Production of Documents and Things under Rule 4009.11, 1/13/05, at 1

(“[USAA] has provided a copy of its relevant claim file that was maintained

from the inception of the claim through the time of the settlement.      A

complete copy of the relevant file maintained by Attorney Kormanski has

also been provided”).

      By order dated December 2, 2011, the trial court granted USAA’s

motion to quash the notices to attend and to produce documents, but the

trial court ordered that USAA must have a corporate designee representative

at trial. Trial Court Order, 12/5/11, at 1.

      The case proceeded to trial, during which time:       the trial court

admitted the deposition testimony of Ms. Ortiz, Mr. Hanley, and Ms.

Barboza; Ms. Trevino testified in person; Attorney Kormanski testified in

person; USAA presented corporate designee Gary Stephen Duke for

examination and Mr. Duke testified at trial; and, the Rhodeses introduced

documentary evidence from USAA’s and Attorney Kormanski’s case files,

regarding the handling of the Rhodeses’ UIM claim.




                                     - 24 -
J-A19021-14



       Now on appeal, the Rhodeses claim that the trial court erred in

quashing their notice to produce “the original claims file.” 6 According to the

Rhodeses, “[h]ad the original claims file been produced, [the Rhodeses]

would have been able to conclusively establish what medical records,

doctors’ reports, disfigurement photos[,] and economic loss information

were in [USAA’s] claims files, as differentiated from [Attorney] Kormanski’s

file, on each occasion [USAA] rejected [Attorney Kormanski’s] advice on

valuation.” The Rhodeses’ Brief at 73.

       The Rhodeses are not entitled to relief on their claim, as they were not

prejudiced by the trial court’s action. Certainly, the Rhodeses do not claim

that USAA failed to produce copies of the UIM case file during discovery or

that USAA failed to comply with the trial court’s discovery orders. Further,

the Rhodeses do not contradict USAA’s earlier averments that USAA had

“already given [the Rhodeses’] counsel the unredacted claim notes” or that

“[USAA] has provided a copy of its relevant claim file that was maintained

from the inception of the claim through the time of the settlement.          A

complete copy of the relevant file maintained by Attorney Kormanski has

also been provided.”          USAA’s Response to the Rhodeses’ Request for


____________________________________________


6
  With respect to the trial court’s order quashing the notices to attend and to
produce documents, the Rhodeses argue only that they were prejudiced by
the quashal of their notice to produce “the original claims file.” The
Rhodeses’ Brief at 73. Therefore, the Rhodeses have preserved only this
particular claim on appeal.



                                          - 25 -
J-A19021-14



Production of Documents and Things under Rule 4009.11, 1/13/05, at 1.

Rather, the Rhodeses merely argue that they were entitled to “the original

claims file” so that they could “conclusively establish” what documents USAA

had in its possession at certain times, particularly those occasions on which

it received advice from Attorney Kormanski. The Rhodeses’ Brief at 73.

     We conclude that the Rhodeses’ were not prejudiced by the trial

court’s quashal of their notice to produce “the original claims file,” as the

record demonstrates that the Rhodeses already had a copy of USAA’s claims

file – and, from this copy, the Rhodeses were able to establish what

documents USAA had in its possession and at what times.        See also N.T.

Trial, 12/5/11 (morning) at 18-89; N.T. Trial, 12/5/11 (afternoon) at 2-126;

N.T. Trial, 12/6/11, at 1-197 (Ms. Trevino testifies as to “what medical

records, doctors’ reports, disfigurement photos[,] and economic loss

information were in [USAA’s] claims files, as differentiated from [Attorney]

Kormanski’s file, on each occasion [USAA] rejected [Attorney Kormanski’s]

advice on valuation”). The Rhodeses’ claim to the contrary fails.

     With respect to the second and third sub-parts to the Rhodeses’ claim,

the Rhodeses argue that the trial court erred in failing to apply the “missing

witness rule” to Mr. Hanley and Ms. Ortiz. The claims are waived.

     We have held:

        Generally, when a potential witness is available to only
        one of the parties to a trial, and it appears this witness has
        special information material to the issue, and this
        person's testimony would not be merely cumulative, then
        if such party does not produce the testimony of this

                                    - 26 -
J-A19021-14


          witness, the [fact-finder] may draw an inference it would
          have been unfavorable.

Kovach v. Solomon, 732 A.2d 1, 8-9 (Pa. Super. 1999) (emphasis in

original), quoting Commonwealth v. Moore, 309 A.2d 569, 570 (Pa.

1973).

      The Rhodeses have failed to develop their missing witness claim on

appeal.    Within their brief, the Rhodeses have provided this Court with

absolutely no argument as to what “special information” Mr. Hanley or Ms.

Ortiz might have possessed and the Rhodeses do not claim that either Mr.

Hanley’s or Ms. Ortiz’s testimony would have been non-cumulative. See the

Rhodeses’ Brief at 73-74. As such, the Rhodeses’ claim on appeal is waived.

Commonwealth v. Padilla, 80 A.3d 1238, 1255 n.16 (Pa. 2013) (“an

undeveloped claim is waived”).

      The Rhodeses’ fourth numbered claim on appeal asserts that the trial

court erred in precluding the deposition testimony of Fred P. Brookes. This

claim is meritless.

      During the time period that USAA was handling the Rhodeses’ UIM

claim, Mr. Brookes was one of USAA’s litigation claims advisors.      N.T.

Deposition of Fred P. Brookes, 9/28/09, at 10. However, Mr. Brookes retired

from USAA in January 2004 (which was over five years prior to his

September 2009 deposition) and Mr. Brookes, unfortunately, passed away in

December 2009 (which was two years prior to trial in this case).

      During Mr. Brookes’ deposition, he testified to (what he remembered

of) his job responsibilities and the job responsibilities of USAA’s claims

                                   - 27 -
J-A19021-14



handlers. Id. at 6-68. Regarding the handling of the Rhodeses’ UIM claim,

Mr. Brookes specifically testified that he could not remember any part of the

Rhodeses’ claim, his role in handling the claim, or Ms. Barboza’s and Ms.

Trevino’s role in handling the claim.     See, e.g., id. at 112 (Mr. Brookes

testified: “I don’t remember anything about this case”); N.T. Deposition of

Fred P. Brookes, 9/29/09, at 103 (“Q: Have any of the documents that

[Attorney] Serbin show[ed] you in this case refreshed your recollection of

the claim at all?; A: No. Other than to say, I see what I read there. Okay.

I still don’t have no recollection of it”). Finally, Mr. Brookes read aloud the

entries in USAA’s case file for the Rhodeses’ UIM claim.

      Prior to trial, USAA moved to preclude Mr. Brookes’ deposition

testimony at trial because Mr. Brookes had no personal knowledge of the

Rhodeses’ UIM claim and his memory was never refreshed during the

deposition.   The trial court granted USAA’s motion and precluded Mr.

Brookes’ deposition testimony at trial.      Trial Court Order, 11/4/11, at 1.

Nevertheless, during trial, the Rhodeses introduced the very same records

that Mr. Brookes read aloud during the deposition, and the Rhodeses

presented the testimony of Ms. Trevino to read and explain the notations

contained in USAA’s case file. See N.T. Trial, 12/5/11 (morning) at 18-89;

N.T. Trial, 12/5/11 (afternoon) at 2-126; N.T. Trial, 12/6/11, at 1-197.

      The Rhodeses make no credible claim that they suffered prejudice as a

result of the trial court’s exclusion of Mr. Brookes’ deposition testimony.

Certainly, Mr. Brookes testified that he had no recollection, whatsoever, of

                                    - 28 -
J-A19021-14



the way in which USAA handled the Rhodeses’ UIM claim and, during trial,

the Rhodeses introduced the same records that Mr. Brookes read aloud

during the deposition.7 The Rhodeses’ fourth claim on appeal fails.
____________________________________________


7
  Within the Rhodeses’ brief, they claim that they were prejudiced by the
exclusion of Mr. Brookes’ deposition testimony because he “confirmed” that
“an adequate investigation would routinely include requesting medical and
employment authorizations . . . [, that i]t would be routine to secure a
statement from the insured . . . [, and that] fairness would require that a
doctor form an opinion after he’s reviewed the medical records and
performed the medical exam.” The Rhodeses’ Brief at 79. At the outset, Mr.
Brookes did not “confirm” that an adequate investigation would require
USAA to request medical and employment authorizations or secure a
statement from the insured. Rather, Mr. Brookes testified that, where a
claimant is represented by counsel (as the Rhodeses were in this case), it is
counsel’s responsibility to provide USAA with the necessary documents.
Mr. Brookes testified:

         If we need wage loss authorization or medical authorization
         and the claimant is represented, then it is incumbent upon
         you to provide us with documentation that we need to
         properly evaluate your client’s case. Now, if you don’t do
         that, what can we do?

N.T. Deposition of Fred P. Brookes, 9/28/09, at 34.

Further, a fact-finder does not need the testimony of Mr. Brookes to
determine that “fairness would require that a doctor form an opinion after
he’s reviewed the medical records and performed the medical exam.” The
Rhodeses’ Brief at 79.

The Rhodeses also claim that Mr. Brookes’ deposition testimony was
important “to the issue of credibility” because “USAA represented . . . that
[Mr.] Brookes was not [Ms.] Trevino’s supervisor [and Ms.] Trevino testified
[Mr.] Brookes had no authority to settle claims, and was limited to making
recommendations.” The Rhodeses’ Brief at 79 (internal citations omitted).
However, Mr. Brookes himself testified that he was not Ms. Trevino’s
supervisor and that he was “limited to making recommendations.” N.T.
Deposition of Fred P. Brookes, 9/28/09, at 26 (Mr. Brookes testified that he
(Footnote Continued Next Page)


                                          - 29 -
J-A19021-14



      Finally, the Rhodeses claim that the trial court erred when it admitted

all of USAA’s exhibits. This claim is waived, as the Rhodeses failed to specify

at trial which of USAA’s 160-plus exhibits were improperly admitted.         See

N.T. Trial, 12/9/11 (afternoon), at 69 (the Rhodeses’ attorney declares:

“Well, Your Honor, I have to object to the admission of the entire defense

notebook”); Pa.R.E. 103(a)(1) (“[a] party may claim error in a ruling to

admit . . . evidence only [if the party] . . . (A) makes a timely objection . . .;

and (B) states the specific ground, unless it was apparent from the

context”); see also Commonwealth v. Manley, 985 A.2d 256, 262 (Pa.

Super. 2009) (a claim that is too vague to permit appellate review is

waived).

      Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2014

                       _______________________
(Footnote Continued)

was not Ms. Trevino’s manager); N.T. Deposition of Fred P. Brookes,
9/28/09, at 21 (Mr. Brookes testified: “[t]he position I was in, I gave my
advice. If they followed it, fine. If they don’t, fine. I gave my advice.
That’s the best I can do.”). Therefore, we fail to see how Mr. Brookes’
deposition testimony could have cast doubt on either USAA’s or Ms.
Trevino’s representations: Mr. Brookes’ deposition testimony confirmed
the representations.




                                           - 30 -
