Thursday, July 13, 2017

US District Court denies summary judgment to insurer in bad faith claim on the basis of statements made by its attorney

In Continental Western Ins. Co. v. Preferred Mut. Ins. Co., 2016 WL 6434081 (D. Mass.), the United States District Court for the District of Massachusetts chose not to recite the facts, which were undisputed.  So I'm guessing a little here, and I have no idea what the underlying case was about.   

This appears to be a subrogation case.  A subrogation case is one where an insurer paid a loss, and then sued the tortfeasor or other liable party for reimbursement of the amount it paid.  In this case, the defendant in the subrogation case was covered by insurance, so it's an insurer versus insurer dispute.  Preferred Mutual Insurance Company was the insurer seeking subrogation.  Continental Western Insurance insured the individual sued by Preferred Mutual. 

Continental turned the tables on Preferred Mutual and sued it, alleging that it engaged in unfair and deceptive trade practices by filing claims against Continental's insured without conducting a reasonable investigation based on all available information.  Preferred Mutual moved for summary judgment, meaning that it asked the court to rule prior to trial that there were no facts in support of Continental's claim.

It lost, because of communications between its attorney and its claims specialist.  Those statements included:
The evidence that Mr. Lodigiani was actually engaged in a partnership with Elvins Brantley appears thin.

Preferred Mutual would have difficulty in sustaining the burden of proving Mr. Lodigiani was involved in a partnership with Elvins Brantley.

The law is clear, it is the facts that are in short supply.

It is likely we must ignore facts that cut against coverage and give Mr. Lodigiani the benefit of the disputed facts, among them his assertion that he was not in a partnership.  
 None of which is to say that Preferred Mutual can't prevail at trial.  These may be isolated statements in a slew of evidence pointing to liability.  But they are enough to require a trial where all the facts can be considered. 

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