# BAUM v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

> District Court, W.D. Pennsylvania · September 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10415016

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BARBARA A. BAUM, : CIVIL ACTION NO. 2:16-CV-623
:
Plaintiff : (Chief Judge Conner)
:
v. :
:
METROPOLITAN PROPERTY AND :
CASUALTY INSURANCE COMPANY, :
t/d/b/a METLIFE AUTO & HOME, :
:
Defendant :

MEMORANDUM
Plaintiff Barbara Baum (“Baum”) is a tetraplegic who was hit by an
underinsured motorist while operating her wheelchair in a parking lot. Baum filed
an underinsured motorist claim (“UIM”) with her insurer, defendant Metropolitan
Property & Casualty Insurance Company (“MetLife”), for damages she claims she is
“legally entitled” to as a result of the accident. Baum argues that MetLife reviewed
her claim in bad faith, in violation of 42 PA. CONS. STAT. § 8371, and breached her
insurance policy. (Doc. 95). MetLife moves for summary judgment on both counts
under Federal Rule of Civil Procedure 56. (Docs. 89, 91). We will grant in part and
deny in part MetLife’s motion for summary judgment.
I. Factual Background & Procedural History1
A. Factual Background
Barbara Baum is a tetraplegic and a Pennsylvania resident who used a

wheelchair for mobility before the incident underlying this litigation. (Doc. 9 ¶¶ 1-2;
Doc 20 ¶¶ 1-2). On January 31, 2014, a car driven by Leanne Diamond (“Diamond”)
struck Baum as she exited a Target department store and headed toward her own
car in the parking lot. (Doc. 102 ¶ 1). Baum was thrown from her wheelchair and
fractured her fourth and fifth metatarsals in her right foot and the second and fifth
metatarsals in her left foot. (Id. ¶ 2). Baum claims that, as a result of the accident,
she has suffered from exacerbated episodes of autonomic dysreflexia (“AD”). (Doc.

95 at 8; see also Doc. 105-8, Andrzejczyk Dep. 78:7-79:2).2
Baum has a long and well-documented history of medical treatment. (See,
e.g., Docs. 103-2, 103-3, 103-4, 103-7, 105-1, 105-2, 105-3, 105-6). Of unique

1 Local Rule 56 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported by a “separately filed concise
statement setting forth the facts essential for the Court to decide the motion for
summary judgment, which the moving party contends are undisputed and
material.” LOCAL RULE OF COURT 56(B)(1). A party opposing a motion for summary
judgment must file a separate statement of material facts, responding to the
numbered paragraphs set forth in the moving party’s statement and identifying
genuine issues for trial. LOCAL RULE OF COURT 56(C)(1)(a)-(b). The opposing party
may also “set[] forth in separately numbered paragraphs any other material facts
that are allegedly at issue.” LOCAL RULE OF COURT 56(C)(1)(c). Unless otherwise
noted, the factual background herein derives from the parties’ Local Rule 56
statements of material facts. (See Docs. 102, 103, 104, 105, 106). To the extent the
parties’ statements are undisputed or supported by uncontroverted record
evidence, the court cites directly to the statements of material facts.

2 Deposition transcripts or portions thereof have been filed by the parties at
separate docket entries. We will cite the full deposition transcripts only, using the
convention “[Name] Dep.,” without repeating the docket entry citations passim.
importance here is Baum’s preexisting diagnosis of AD, which she received after
she suffered a spinal cord injury in an unrelated automobile accident in 1974. (Doc.
102 ¶ 4; Doc. 103-4 at 1; see also Doc. 105-6 at 4).3 The parties dispute whether

Baum’s exacerbated AD symptoms are a product of the January 31, 2014 accident
or a continuation of Baum’s preexisting condition. (Doc. 104 ¶¶ 2, 3, 18-20, 25, 26;
Doc. 106 ¶¶ 29-33). Baum claims she suffered few AD episodes before the accident
but has suffered from exponentially more since. (See, e.g., Doc. 95 at 8). MetLife
argues that Baum’s assertion is not adequately supported by objective medical
evidence. (See, e.g., Doc. 106 ¶¶ 27, 29, 30).
Baum filed a claim with Diamond’s insurance company, State Farm, after the

accident. (Doc. 9 ¶ 14; Doc 20 ¶ 14). State Farm offered Baum $50,000—the limit on
Diamond’s policy—for her injuries resulting from the accident. (Doc. 9 ¶ 15; Doc. 20

3 The parties have not offered information about AD in their statements of
material fact. The court takes judicial notice of the National Institute of Health’s
description. See FED. R. CIV. P. 201(b)-(c). AD is a rare disease with life-altering
implications. See KATHRIN J. ALLEN, ET AL., AUTONOMIC DYSREFLEXIA (2019),
https://www.ncbi.nlm.nih.gov/books/NBK482434/. AD usually emerges after a
spinal cord injury above the T6 level. See id. “Dysregulation of the autonomic
nervous system leads to an uncoordinated autonomic response that may result in a
potentially life-threatening hypertensive episode when there is a noxious stimulus
below the level of the spinal cord injury.” Id. Those with AD have an increased risk
of stroke and AD can occur “up to 40 times per day.” Id.
¶ 15). On November 21, 2014, Baum submitted a UIM claim to MetLife for $325,000.
(Doc. 105-11 at 1; Doc. 9 ¶ 18; Doc. 20 ¶ 18). Baum’s UIM policy provides:
We will pay compensatory damages which an insured is
legally entitled to recover from the owner or operator of
an underinsured motor vehicle for BI:
A. sustained by an insured; and
B. caused by an accident arising out of
owning, maintaining, or the use of an
underinsured motor vehicle.
(Doc. 102 ¶ 10). The policy limit is $1,000,000. (Doc. 104 ¶ 37). On December 11,
2014, MetLife offered Baum $20,000 for full settlement of her claim. (Doc. 9 ¶ 20;
Doc. 20 ¶ 20). Baum declined MetLife’s offer. (Doc. 105-17).
MetLife started its investigation shortly after Baum submitted her UIM
claim, employing senior claims adjuster Ceenelle Johnson-Sanders (“Johnson-
Sanders”) to review Baum’s case. (See Doc. 105-7, Johnson-Sanders Dep. 20:10-13,
28:25-29:5). Johnson-Sanders has been a claims adjuster for several years but does
not have a medical degree. (Id. at 8:9-9:11). MetLife also employed a claims medical
consultant, nurse Ruth Rappaport (“Rappaport”), to assist Johnson-Sanders with
her review of Baum’s medical condition and to offer alternative options for
investigating medical conditions if needed. (Id. at 47:24-48:11; Doc. 105-10,
Rappaport Dep. 72:7-78:3). Neither Johnson-Sanders nor Rappaport had
experience evaluating claims involving AD before Baum’s case. (See Johnson-
Sanders Dep. 160:9-15; Rappaport Dep. 81:3-7).
As part of her evaluation, Johnson-Sanders reviewed Baum’s medical
records, (Johnson-Sanders Dep. 101:20-22), used Rappaport’s expertise in reviewing
Baum’s records, (see Doc. 104 ¶¶ 61-62; Johnson-Sanders Dep. 157:6-22), and
reviewed a narrative report from Baum’s doctor, Dr. Amanda Harrington (“Dr.
Harrington”), (see Johnson-Sanders Dep. 155:11-159:2; see also Doc. 102 ¶¶ 18-19;
Doc. 104 ¶¶ 18-19). Johnson-Sanders testified that she considered Baum’s medical

records and Dr. Harrington’s narrative report. (Johnson-Sanders Dep. 157:14-22,
198:9-16). Still, the parties dispute how much Dr. Harrington’s report influenced
MetLife’s decision to reject Baum’s settlement demand and challenge her damages
figure. (See, e.g., Doc. 102 ¶¶ 18-19; Doc. 104 ¶¶ 18-19).
Dr. Harrington began treating Baum in February 2014, ten days after the
accident. (Doc. 102 ¶ 6). Dr. Harrington is a board-certified physiatrist, a professor
at the University of Pittsburgh, and the Director of the Spinal Cord Injury Services

group at the University of Pittsburgh Medical Center. (Doc. 105-12 at 1). As part of
her consultation, Dr. Harrington drafted a narrative report summarizing Baum’s
previous diagnoses, her understanding of the January 31, 2014 accident, her
recommended treatment, and her medical opinion on the severity and cause of
Baum’s symptoms. (Doc. 105-12 at 4-10). Dr. Harrington’s report concluded:
In Ms. Baum’s case, she only had occasional episodes of
autonomic dysreflexia in the years following her initial
spinal cord injury in 1974. However, since the accident
occurring January 31, 2014, she has had increasing
intermittent episodes of autonomic dysreflexia. It is likely
that both the edema, increase in spasticity, and increased
episodes of autonomic dysreflexia are secondary to the
foot fractures. I had initially hoped that as she healed and
her pain was controlled her problems with improve;
however, since it has been 1 year since her accident and
these problems are not resolving, I am concerned that this
now may be her new normal. It is with a reasonable
degree of medical certainty that the foot fractures were
the direct cause of the secondary effects of edema,
spasticity, and autonomic dysreflexia, and I am concerned
that she may now have chronic swelling, increase in her
spasticity and increase in frequency of her episodes of
autonomic dysreflexia for the duration of her life.

(Doc. 105-12 at 9).
As part of her investigation, Johnson-Sanders never obtained a statement
under oath from Baum. (Doc. 104 ¶ 48). Johnson-Sanders also did not arrange for
an independent medical review (“IMR”) of Baum’s records or an independent
medical examination (“IME”) of Baum herself, despite a March 2015 suggestion
from Rappaport that Johnson-Sanders “consider obtaining an IME spinal cord
injury specialist for further comment.” (Doc. 104 ¶¶ 51-54; Doc. 105-6 at 46).
Johnson-Sanders could have pursued an IME to obtain additional medical opinions
on Baum’s condition. (See Doc. 104 ¶¶ 46, 51-54; see also Andrzejczyk Dep. 67:1-4).
Johnson-Sanders testified that she in fact asked Baum’s attorney if Baum would
undergo an IME. (Johnson-Sanders Dep. 101:3-104:13). Her claim is contradicted
by testimony from Baum’s attorney and Johnson-Sanders’s supervisor, and her
purported IME request is not documented in the MetLife claims file. (See Doc. 105-
9, Glassmith Dep. 38:9-40:11; Andrzejczyk Dep. 83:14-20).

By May 28, 2015, MetLife had obtained the final set of Baum’s medical
records. (See Docs. 105-14, 105-15; see also Doc. 104 ¶¶ 74-75; Doc. 106 ¶¶ 74-75). On
July 1, 2015, Baum demanded a “legitimate offer” from MetLife, threatening to sue
if no offer was made by July 13, 2015. (Doc. 105-17). On July 10, 2015, MetLife
offered Baum $25,000 for full settlement of her claim. (Doc. 9 ¶ 30; Doc. 20 ¶ 30).
The parties ceased contact on December 11, 2015, without coming to a settlement
agreement. (Doc. 9 ¶¶ 31-32; Doc. 20 ¶¶ 31-32). On April 25, 2016, Baum sued
MetLife in the Allegheny County Court of Common Pleas. (Doc. 1-2).
After litigation began, MetLife hired Dr. James Cosgrove (“Dr. Cosgrove”) to

perform an IME. (Doc. 104 ¶ 78). Dr. Cosgrove evaluated Baum on July 24, 2017
and completed a corresponding report on February 21, 2018. (See Doc. 103-7).
Cosgrove found:
Given that the fractures have gone on[ ]to heal
uneventfully, persistent exacerbation of spasticity and
dysreflexia is unlikely. … Furthermore, there has been
no significant change in medication use when comparing
pre- to post-injury medication use. … There is no clear
objective difference noted from a neurologic or
musculoskeletal standpoint when comparing pre- to post-
accident status. There have been no fulminate episodes
of autonomic dysreflexia and no evidence of acute
medical management or hospitalization.
(Id. at 10-11). In sum, Dr. Cosgrove concluded that the January 31, 2014 accident
did not cause Baum’s exacerbated AD symptoms. (See id. at 9-11).
B. Procedural History
Baum sued MetLife in the Allegheny County Court of Common Pleas alleging
breach of contract and bad faith in violation of 42 PA. CONS. STAT. § 8371. MetLife
removed the case to this court. Baum then filed an amended complaint, which
MetLife moved to dismiss. Judge Conti denied MetLife’s motion at a September 19,
2016 hearing, and MetLife filed its answer. MetLife also moved to join three
nonparties affiliated with the Target parking lot where the accident occurred.
Judge Conti denied that motion but requested supplemental briefing on whether
the nonparties are joint tortfeasors who should be included on the verdict slip.
After the case was reassigned, we denied MetLife’s initial motion and its later
motion for reconsideration on the joint tortfeasor issue. MetLife now moves for
summary judgment. Briefing is complete and the motion is ripe for disposition.

II. Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a trial
would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This
evidence must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-
57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89

(1986). Only if this threshold is met may the cause of action proceed. See Pappas,
331 F. Supp. 2d at 315.
III. Discussion
MetLife moves for summary judgment as to both of Baum’s claims: statutory
bad faith and breach of contract. (Doc. 89). We begin our analysis with the first.
A. Statutory Bad Faith
Baum claims that MetLife unlawfully acted in bad faith in evaluating and
reviewing her claim. (Doc. 95 at 6-14). MetLife counters that Baum has not offered

clear and convincing evidence that its investigation or its refusal to accept her
settlement demands lacked a rational basis. (Doc. 91 at 8).
We start with the statute. Pennsylvania’s bad-faith law provides:
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. CONS. STAT. § 8371. The insured can show bad faith by offering clear and
convincing evidence that the insurer: (1) “did not have a reasonable basis for
denying benefits under the policy”; and (2) “knew of or recklessly disregarded its
lack of reasonable basis in denying the claim.” Amica Mut. Ins. Co. v. Fogel, 656
F.3d 167, 179 (3d Cir. 2011) (quoting Terletsky v. Prudential Prop. & Cas. Ins. Co.,
649 A.2d 680, 688 (Pa. Super. 1994)); see also Rancosky v. Wash. Nat’l Ins. Co., 170
A.3d 364, 377 (Pa. 2017).
Bad faith is “any frivolous or unfounded refusal to pay proceeds of a policy;
it is not necessary that such refusal be fraudulent.” Post v. St. Paul Travelers Ins.
Co., 691 F.3d 500, 523 (3d Cir. 2012) (quoting Terletsky, 649 A.2d at 688). Bad faith
requires more than “mere negligence or bad judgment.” Id. (quoting Frog, Switch
& Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 751 n.9 (3d Cir. 1999)). The insured
must offer evidence “so clear, direct, weighty and convincing as to enable a clear
conviction, without hesitation, about whether or not the defendants acted in bad

faith.” Amica Mut. Ins. Co., 656 F.3d at 179 (citation omitted).
To defeat a bad-faith claim, the insurer need only show that it had a
“reasonable basis” for denying the insured’s claim or refusing to settle. See Post,
691 F.3d at 522 (quoting Amica Mut. Ins. Co., 656 F.3d at 179). The insurer need not
show that its conclusions or investigatory methods were “flawless.” Turner v. State
Farm Fire & Cas. Co., 260 F. Supp. 3d 419, 425 (M.D. Pa. 2017) (citing Krisa v.
Equitable Life Assurance Society, 113 F. Supp. 2d 694, 704 (M.D. Pa. 2000)). But it

“must show that it conducted a review or investigation sufficiently thorough to yield
a reasonable foundation for its action.” Id.; see also 40 PA. STAT. AND CONS. STAT.
ANN. § 1171.5(10). MetLife cannot do so.
1. Independent Medical Examination
Baum argues that MetLife acted in bad faith when it failed to obtain a pre-
litigation IME or a statement under oath. (Doc. 95 at 10). In response, MetLife

effectively says the failure to perform an IME is harmless error because
Dr. Cosgrove performed an IME after litigation began and his findings aligned with
MetLife’s pre-IME conclusions. (Doc. 91 at 14; Doc. 96 at 6).
To begin with, “the insurance company must conduct a meaningful
investigation, which may include an in-person interview, examination under oath,
medical authorizations, and/or independent medical examinations.” Mineo v.
Geico, No. 12-1547, 2014 WL 3450820, at *6 (W.D. Pa. July 15, 2014) (citing Hollock v.
Erie Ins. Exch., 54 Pa. D. & C.4th 449, 513 (Pa. Ct. Com. Pl. 2002); Bonenberger v.
Nationwide Mut. Ins. Co., 791 A.2d 378, 379-81 (Pa. Super. Ct. 2002)). Both federal
and Pennsylvania courts have indicated that failure to timely obtain an IME is

probative of bad faith. See, e.g., Parisi v. State Farm Mut. Auto. Ins. Co., No. 3:16-
179, 2018 WL 2107774, at *14 (W.D. Pa. May 7, 2018); Bonenberger, 791 A.2d at 379-
81; Hollock, 54 Pa. D. & C.4th at 513. Common sense dictates that an IME is
particularly insightful when the insured suffers from a rare, complex, and unique
preexisting condition.
MetLife did not obtain a pre-suit IME of Baum despite her long medical
history and Dr. Harrington’s report contradicting Johnson-Sanders’ conclusions.

MetLife forewent an IME in the face of Rappaport’s recommendation, the claims
medical consultant assigned to Baum’s case. (See Doc. 105-6 at 46). It is concerning
that an adjuster with no medical training, tasked with evaluating a unique medical
condition for an insured with a unique medical history, ignored a medical
professional’s recommendation. See Mineo, 2014 WL 3450820, at *6. Whether this
decision was made in bad faith is an issue of genuine dispute, but Baum has put

forth enough clear and convincing evidence that MetLife’s decision stemmed from
recklessness rather than mere negligence.
We also note that record evidence reveals an apparent attempt of self-
preservation by Johnson-Sanders. At her deposition, Johnson-Sanders testified
that she requested an IME during a conversation with Baum’s counsel but did not
recall documenting her request. (Johnson-Sanders Dep. 101:3-104:13). The
deposition testimony of Baum’s counsel suggests otherwise. (Glassmith Dep. 38:9-
40:11). And Johnson-Sanders’s supervisor testified that this sort of request should
have been documented had it occurred. (Andrzejczyk Dep. 83:14-20). Whether
Johnson-Sanders sought an IME is a material fact that the parties fiercely dispute

and goes directly to whether Johnson-Sanders, on behalf of MetLife, was
conducting her review in a forthright manner. This dispute alone is enough to
preclude summary judgment.
MetLife responds that failure to obtain an IME is effectively harmless error
because “Dr. Cosgrove’s opinions from his report are consistent with Metropolitan’s
pre-suit evaluation.” (Doc. 96 at 6). To begin with, the court is unaware of a
harmless error doctrine in Pennsylvania’s statutory bad-faith jurisprudence, and

MetLife does not point to one. This argument also misconceives our inquiry. We
must review the process by which MetLife made its decisions and determine
whether they were supported by a reasonable basis. That process need not be
“flawless,” but it must be thorough enough to provide MetLife with a “reasonable
basis” for declining to settle Baum’s claim. Whether MetLife had a “reasonable
basis” during its investigation is in dispute because MetLife did not seek a pre-suit

IME. This, coupled with Rappaport’s disregarded recommendation that MetLife
obtain an IME, is enough clear and convincing evidence to suggest that MetLife’s
settlement strategy lacked a reasonable basis. That Dr. Cosgrove’s post-suit report
confirms MetLife’s pre-suit determination does not change whether MetLife acted
in bad faith in making that determination.4
The parties also debate whether Dr. Cosgrove was improperly biased. We

side with MetLife on this point. Bias in selecting a physician to conduct an IME
may be relevant to bad faith, but a baseless allegation of bias alone will not suffice.
See, e.g., Neal v. State Farm Mut. Auto. Ins. Co., No. 1:13-CV-2309, 2015 WL
2250153, at *4-5 (M.D. Pa. May 12, 2015). Without pointing to any evidence that
MetLife chose Dr. Cosgrove because he would offer a biased opinion, or that his
opinions were in fact improperly biased, Baum declares: “[I]t is clear that Met Life
chose a physician who would not be independent but instead would be biased in his

opinions regarding the extent of Ms. Baum’s alleged injuries and complaints as well
as the cause of same.” (Doc. 95 at 12-13). Dr. Cosgrove’s prior work for insurance
companies does not alone establish unlawful bias or bad faith, and Baum does not
cite on-point authority to show otherwise.
In a last-ditch effort to combat Baum’s claim, MetLife maintains that an IME
is not required because “insurers have been sued for bad faith when they require

insureds submit to IME’s to obtain benefits.” (Doc. 91 at 14 (citing Sayles v. Allstate
Ins. Co., 260 F. Supp. 3d 427, 432 (M.D. Pa. 2017)). That may be true in a vacuum,
but Sayles arose in a different context: there, the insurer demanded that the

4 We are also mindful that insurers must complete claim investigations
“within 30 days after notification of the claim,” unless the investigation cannot be
completed within that timeframe, in which case they must provide written
explanations for the delay every 45 days. 31 PA. CODE § 146.6. The IME is surely
part of the claim investigation, and MetLife surely did not complete its investigation
within 30 days.
insured submit to an IME without seeking leave from the court in violation of
Pennsylvania law. Sayles, 260 F. Supp. 3d at 432, 434-38. MetLife did not demand
(or request) an IME here. Thus, Sayles is unhelpful.

2. Consideration of Relevant Information
Baum claims that MetLife “failed to consider” or “ignored” relevant medical
information, mainly Dr. Harrington’s report, before rejecting her settlement offer.
(Doc. 95 at 8-9). MetLife responds that it considered this report but placed “greater
reliance on information contemporaneously created as part of Ms. Baum’s medical
treatment versus the advocacy that was found in the report requested by Ms.
Baum’s counsel from one of her treating doctors.” (Doc. 96 at 5). Whether MetLife

adequately considered Baum’s complete medical profile is a material issue, and the
evidence on this point is in genuine dispute.
Johnson-Sanders testified in her deposition that she considered Dr.
Harrington’s report but relied more heavily on medical records. (See Johnson-
Sanders Dep. 156:10-11, 157:6-158:9). At first blush this sounds reasonable. But
Johnson-Sanders is not a medical professional and is not qualified to decide if a

treating doctor’s narrative is irrelevant to an insured’s medical condition. No IME
was conducted to place these records in context despite the suggestion of
Rappaport—a medical professional. Johnson-Sanders may not have ignored facts
per se, but it is difficult for an adjuster to favor some evidence (medical records)
over others (medical reports) without professional expertise or the findings of an
IME. Baum has offered enough evidence that MetLife based its settlement strategy
on an incomplete medical picture.
3. Delay
Baum also contends that MetLife delayed the handling of her claim in bad
faith. (Doc. 95 at 13-14). MetLife answers that any delay was justifiably part of the

standard claims-handling process and due in part to Baum’s complicated injuries.
(Doc. 91 at 15-16; Doc. 96 at 6-8). We agree with MetLife on this point.
To show bad-faith delay, the insured must establish “the delay is attributable
to the defendant, that the defendant had no reasonable basis for the actions it
undertook which resulted in the delay, and that the defendant knew or recklessly
disregarded the fact that it had no reasonable basis to deny payment.” Thomer v.
Allstate Ins. Co., 790 F. Supp. 2d 360, 370 (E.D. Pa. 2011) (quoting Wiedinmyer v.

Harleysville Mut. Ins. Co., No. 94–19450, 1999 WL 1324202, at *215 (Pa. Ct. Com. Pl.
Aug. 5, 1999)). The process for resolving an insurance claim can be slow and
frustrating, see Kosierowski v. Allstate Ins. Co., 51 F. Supp. 2d 583, 590 (E.D. Pa.
1999), but a long claims-processing period does not constitute bad faith by itself, see
Thomer, 790 F. Supp. 2d at 370 (quoting Kosierowski, 51 F. Supp. 2d at 588-89).
We recognize that Baum, not MetLife, caused some of the delay in this case,

which leans against a finding of bad faith. Indeed, Baum’s decision to wait until
April 25, 2016, to file her complaint, when her last contact with MetLife took place
on December 11, 2015, proves that MetLife was not the sole impediment to
resolving her claim. We also find unconvincing Baum’s assertions of delay
regarding the transmission of records, (Doc. 91 at 15-16), the period between Dr.
Cosgrove’s examination and completion of his report, (Doc. 95 at 13), and the
various motions filed by MetLife, (Doc. 95 at 13-14).
Baum has not shown that any delay in handling her claim was because of
MetLife’s bad-faith delay. That its delay does not amount to bad faith, however,
does not save MetLife. On balance, we find that Baum has put forth enough clear

and convincing evidence to survive summary adjudication on her statutory bad-
faith claim.
B. Breach of Contract
MetLife asks us to reject Baum’s breach-of-contract claim for two
reasons: first, Baum’s claim is improperly styled as a breach-of-contract claim,
when it is in fact a tort claim; and second, there has been no breach of the insurance
contract because the parties were merely negotiating a settlement and no claim has

been denied. We disagree on both accounts.
1. Law of the Case
MetLife’s first argument—that the breach-of-contract claim is really a tort
claim—is foreclosed by the law-of-the-case doctrine. The law-of-the-case doctrine
“posits that when a court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case.” Farina v. Nokia

Inc., 625 F.3d 97, 117 n.21 (3d Cir. 2010) (citing Arizona v. California, 460 U.S. 605,
618 (1983)). We can revisit an earlier decision in the case when: “(1) new evidence
is available; (2) a supervening new law has been announced; or (3) the earlier
decision was clearly erroneous and would create manifest injustice.” Schneyder
v. Smith, 653 F.3d 313, 331-32 (3d Cir. 2011) (quotation omitted).5
At the motion to dismiss hearing, Judge Conti rejected MetLife’s

characterization of this case as a “negligence cause of action … by way of right
pursuant to a contract,” stating that, at bottom, it “clearly is a breach of contract
case.” (Doc. 105-19 at 4:20-21, 14:3-5). Judge Conti explained that this case amounts
to a dispute about damages allegedly due under the contract, not whether the claim
is properly brought under tort law or contract law. (See id. at 6:7-9; see also Erie,
174 A.3d at 587 (“UM claims are grounded in the contractual relationship of the
insured and the insurer.”)). We find Judge Conti’s reasoning to be sound and

decline to revisit this issue.
MetLife says we may reconsider a decided legal question because the United
States Supreme Court and Third Circuit have done so in the past. (Doc. 96 at 2-4).
MetLife cites two inapposite cases in support: Behrens v. Pelletier, 516 U.S. 299
(1996), and Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996). Both Behrens and
Grant permitted reexamination of immunity questions because, unlike at the

5 MetLife offers several reasons to revisit this question. First, MetLife argues
that we should revisit this question because Erie Insurance Exchange v. Bristol, 174
A.3d 578 (Pa. 2017), clarified the “breach” standard in UIM cases. The Erie decision
does not change the fact that Baum brought her case as one sounding in contract,
not in tort. And second, according to MetLife, Baum’s UIM claim is properly
viewed as a tort action because Pennsylvania Rule of Civil Procedure 238—which
provides for delay damages in tort actions—has been applied in a UIM case by the
Pennsylvania Supreme Court. (See Doc. 91 at 19 (citing Touloumes v. E.S.C. Inc.,
899 A.2d 343, 349 (Pa. 2006) and Marlette v. State Farm Mut. Auto. Ins. Co., 57 A.3d
1224, 1230 (Pa. 2012))). Both Touloumes and Marlette are distinguishable and do
not affect this case; Touloumes was not a UIM case and Marlette involved a suit
against the tortfeasor and the insurer.
motion-to-dismiss stage where the complaint alone guides, a plaintiff cannot “rest
on the pleadings” at summary judgment. Behrens, 516 U.S. at 309; see also Grant,
98 F.3d at 119-21. MetLife’s renewed theory that Baum’s claim is one of tort and not

contract does not rely on “matters obtained during extensive discovery.” Grant, 98
F.3d at 120. Nor does it demand another review of “legally relevant factors … [that]
will be different on summary judgment than on an earlier motion to dismiss.”
Behrens, 516 U.S. at 309. Indeed, MetLife cites virtually no record evidence in its
briefing proving that Baum’s breach-of-contract claim is now a tort claim.
MetLife’s argument instead relies on a purported change in the law effected
by Erie, which held that the statute of limitations on UM and UIM claims begins to

run after “an alleged breach of the insurance contract, which will be occasioned in
this context by a denial of a claim or the refusal to arbitrate.” (See Doc. 91 at 18
(quoting Erie, 174 A.3d at 589)). Erie does not change our conclusion infra that
there is a genuine dispute about whether Baum is legally entitled to benefits under
her UIM policy, and it does not change our conclusion supra that UIM cases can be
properly brought as contract cases. MetLife’s “new” arguments merely rehash

settled legal issues, and we decline to entertain them again.
2. Breach
Baum claims that MetLife breached the terms of her UIM insurance policy
by failing to pay her what she is “legally entitled to recover” within the policy limits.
MetLife insists that there has been no breach. We agree with Baum that, viewing
the evidence in her favor, there is a genuine dispute as to breach.
A breach-of-contract claim in Pennsylvania consists of three elements: (1) a
contract that includes its essential terms; (2) a breach of that contract; and
(3) damages resulting from the breach.6 Meyer, Darragh, Buckler, Bebenek & Eck,

P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016). An
insurance policy is a contract. Houghton v. Am. Guar. Life Ins. Co., 692 F.2d 289,
291 (3d Cir. 1982). Breach of a UIM policy occurs when the insurer is “alleged to
have breached its duty under the insurance contract.” Erie, 174 A.3d at 586.
Baum’s UIM policy requires MetLife to “pay compensatory damages which
an insured is legally entitled to recover from the owner or operator of an
underinsured motor vehicle for [bodily injury]” that is “sustained by an insured”

and “caused by an accident arising out of owning, maintaining, or the use of an
underinsured motor vehicle.” (Doc. 102 ¶ 10). Thus, a breach occurs if Baum is
“legally entitled” to a payout under the policy and MetLife declines to make the
payment. (See Doc. 105-19 at 23:4-24:3, 26:2-21 (Conti, J.)). In other words, if the
underinsured motorist caused Baum’s injuries, and Baum is legally entitled to
funds above those already paid, then MetLife’s refusal to settle her claim is a

breach. On the other hand, if the January 31, 2014 accident did not cause Baum’s
injuries and aggravated symptoms, then she is not legally entitled to damages and
there is no breach of the insurance policy.

6 MetLife argues that “at no point has Ms. Baum made a request for damages
that arise out [of] an alleged breach of the insurance policy that gives rise to Ms.
Baum’s claim for UIM benefits.” (Doc. 96 at 3). That is incorrect. Baum tracks the
language of her UIM policy when she requests “damages legally due Ms. Baum as a
result of the subject motor vehicle collision.” (Doc. 9 ¶ 38 (emphasis added)).
There is a genuine dispute about whether Baum is legally entitled to
coverage under the UIM policy above the $50,000 already covered by State Farm.
The parties bitterly dispute whether Baum’s injuries resulted from the January 31,

2014 accident or from her preexisting conditions and what Baum’s damages figure
should be. (See, e.g., Doc. 102 ¶ 20; Doc. 104 ¶ 20). These issues are purely factual
and “might affect the outcome of the suit under the governing law.” Anderson, 477
U.S. at 248. Moreover, because they rest on a determination of damages, these
questions are best left to the jury. See Delahanty v. First Pa. Bank, 464 A.2d 1243,
1257 (Pa. Super. Ct. 1983). On the record before us, a reasonable jury could resolve
each of these disputes in Baum’s favor. We will thus deny MetLife’s motion for

summary judgment on the breach-of-contract claim.
IV. Conclusion
At its core, this case turns on factual disputes over whether Baum is “legally
entitled” to damages for injuries she claims she suffered after the January 31, 2014
accident and whether those injuries were in fact caused by the accident. These are
quintessential issues of fact unsuited for summary adjudication. Thus, we will deny

MetLife’s motion (Doc. 89) for summary judgment and proceed to trial. An
appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

Dated: September 26, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415016. Public record. Not legal advice.