Brown, C. v. US Auto Assoc.

J-A07039-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

CHANNING AND CARMIN BROWN : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellants :

:

:

v. :

:

:

UNITED STATES AUTOMOBILE : No. 928 MDA 2025

ASSOCIATION D/B/A USAA :

Appeal from the Judgment Entered July 2, 2025

In the Court of Common Pleas of Berks County Civil Division at

No(s): 22 666

BEFORE: BOWES, J., DUBOW, J., and NEUMAN, J.

MEMORANDUM BY NEUMAN, J.: FILED: MAY 27, 2026

Appellants, Channing and Carmin Brown, appeal from the judgment

entered in favor of Appellee, United States Automobile Association d/b/a USAA

(hereinafter “USAA”), following a non-jury trial in this statutory bad faith

case.1 Appellants argue the trial court applied an incorrect legal standard,

requiring Appellants to prove bad faith on the part of USAA through a motive

of self-interest or ill-will, and improperly limited its review of the record as a

result. They ask us to vacate the trial court’s decision and remand for the trial

court to review the entire record under the appropriate legal standard.

Pertinent to our review, we recognize:

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:

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1 Appellants indicate they are husband and wife. See Appellants’ Brief at 5.

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(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. § 8371.

In Rancosky v. Washington Nat’l Ins. Co., 170 A.3d 364 (Pa. 2017),

our Supreme Court explained:

[I]n order to recover in a bad faith action, the plaintiff must

present clear and convincing evidence (1) that the insurer did not

have a reasonable basis for denying benefits under the policy and

(2) that the insurer knew of or recklessly disregarded its lack of a

reasonable basis. Additionally, we hold that proof of an insurance

company’s motive of self-interest or ill-will is not a prerequisite to

prevailing in a bad faith claim under Section 8371…. While such

evidence is probative of the second … prong, we hold that

evidence of the insurer’s knowledge or recklessness as to its lack

of a reasonable basis in denying policy benefits is sufficient.

Id. at 365.

As set forth below, we believe Appellants have not properly preserved

their challenges to the trial court’s decision. However, even if properly

preserved, we would determine that — although the trial court initially made

comments contrary to the Supreme Court’s holding in Rancosky, suggesting

a motive of self-interest or ill-will is necessary to demonstrate bad faith — it

later refined its decision, rendering a remand to the trial court for

reconsideration of its decision unnecessary. Accordingly, we affirm.

Background

The trial court summarized the background of this matter leading up to

the non-jury trial as follows:

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This matter arises from a motor vehicle accident occurring on

October 16, 2017, in Exeter Township, Berks County,

Pennsylvania…. It is alleged that the underlying tortfeasor, Victor

Marrero…, failed to maintain a safe distance while traveling behind

Mr. Brown’s vehicle, striking him from behind at a red light.

[Appellants] alleged Mr. Brown sustained multiple injuries in the

accident, including: (a) post-concussion syndrome (headaches,

memory loss, nausea, dizziness, and light sensitivity), (b) head

pain, (c) cervicalgia, (d) back pain, (e) left and right shoulder pain,

and (f) left wrist pain.

A. The Breach Action

At the time of the accident, [Appellants] maintained an automobile

insurance policy issued by USAA, bearing Policy No. 01964 17 71U

7104 1 (the “Policy”). With liability not reasonably in dispute,

after receiving USAA’s timely consent, [Appellants] settled with

Mr. Marrero’s carrier for the $25,000 limits of third-party

coverage. On August 29, 2018, [Appellants] submitted a claim to

USAA for [underinsured motorist (“UIM”)] benefits, demanding

the full $50,000.00 limits of coverage. [Appellants’] written

demand packet identified Mr. Brown’s injuries with a

comprehensive list of his treatment providers, as well as alleged

economic damages consisting of $21,543.00 in verified lost

wages, and $13,645.70 in unreimbursed medical expenses (later

reduced by Pennsylvania’s Act No. 6 of 1990 to $9,005.70).[2] On

October 3, 2018, USAA responded with a pre-suit offer of

$9,000.00.

[Appellants] wasted little time pursuing their rights. On

November 20, 2018, they initiated an action against USAA in the

Berks County Court of Common Pleas, setting forth claims for

breach of contract (Count I) and loss of consortium (Count II).

See Brown v. USAA, Berks Civ. Docket No. 18-19082 (the

“Breach Action”). USAA continued to negotiate with [Appellants]

throughout the pre-trial stage. With the assistance of counsel,

USAA made subsequent offers of $10,000.00 (July 2019) and

$15,000.00 (December 2020), followed by a final offer of

$25,000.00 one week prior to arbitration (January 2021).

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2 Act No. 6 amended the Motor Vehicle Financial Responsibility Law (“MVFRL”),

75 Pa.C.S. § 1701 et seq. See Act of Feb. 7, 1990, P.L. 11, No. 6. Section

1797 of the MVFRL addresses customary charges for treatment and places

billing limitations on medical providers. 75 Pa.C.S. § 1797.

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[Appellants] rejected this offer and made a revised demand of

$47,500.00, which USAA rejected without counter. On January

13, 2021, a panel of three arbitrators awarded [Appellants]

$95,000.00. Less the $25,000.00 third-party credit, the net

award to [Appellants] totaled $70,000.00, which the panel molded

to the $50,000.00 policy limits — $40,000.00 to Mr. Brown on his

breach claim, and $10,000.00 to Ms. Brown on her consortium

claim. USAA promptly paid the award, concluding the Breach

Action.

***

B. The Bad Faith Action

On June 30, 2021, [Appellants] initiated this action[, which

underlies the instant appeal,] in the Philadelphia Court of Common

Pleas. See Brown v. USAA, Phila. Civ. Docket No. 210602393.

[In their complaint, Appellants brought a single count for statutory

bad faith pursuant to Section 8371, against USAA]. Despite

having filed the Breach Action in their county of residence,

[Appellants] elected to pursue bad faith in Philadelphia, which

purported to have no identifiable interest in exercising its

jurisdiction. USAA raised improper venue pursuant to

Pa.R.C[iv].P. 1028(a)(1). On December 26, 2021, the Hon. Susan

I. Schulman sustained USAA’s objection and transferred the

matter to Berks County, where it was assigned the within docket

number (the “Bad Faith Action”).

On January 15 and 16, 2025, the trial court presided over a two-

day non[-]jury trial on the merits of [Appellants’] bad faith claim….

Trial Court’s Pa.R.A.P. 1925(a) Opinion (“Rule 1925(a) Opinion”), 9/18/25, at

2-4 (footnotes, brackets, and some unnecessary capitalization omitted).

The trial court set forth its findings from the non-jury trial, in pertinent

part, as follows. At the time of trial, Gina Castillo — the claims specialist

originally assigned to value and negotiate Appellants’ UIM claim — had worked

for USAA for 24 years, with 12 of those years spent handling claims. Trial

Court’s Findings of Fact, Conclusions of Law, and Decision (“Decision”),

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5/5/25, at ¶¶ 31-32.3 In that role, Ms. Castillo’s principal task is to review

and adjust claims before they are placed in litigation. Id. at ¶ 34. When

evaluating Appellants’ UIM claim, Ms. Castillo was aware of Mr. Brown’s

alleged injuries, including a closed head injury with post-concussive

symptomatology and neck, back, shoulder, and wrist pain. Id. at ¶ 35. She

also possessed a police report from the accident, records from Reading

Hospital, EMT reports, documentation of primary care visits, orthopedic

records, and neurologist records relating to Mr. Brown’s treatment. Id. at ¶

36. Ms. Castillo noted, in writing, her review of those records, and purported

to credit all of Mr. Brown’s claimed lost wages; however, Ms. Castillo did not

credit Mr. Brown’s unpaid medical bills. Id. at ¶ 37.

After reviewing the medical records and allowing for the tortfeasor’s

payment Appellants had already received, Ms. Castillo valued the claim at

between $9,000.00 and $17,000.00. Id. at ¶ 38. Ms. Castillo offered

Appellants the lower amount, as she always makes her first offer at the lowest

value in the range. Id. at ¶ 39. She also noted, when evaluating a concussion

injury, memory loss and loss of work are particularly impactful in driving the

value of the claim. Id. at ¶ 40. Ms. Castillo conveyed, when making the initial

offer, she did not allow for unpaid medical bills because she believed Mr.

Brown’s health insurer would pay those bills. Id. at ¶ 41.

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3 In the trial court’s Decision, it mistakenly said Ms. Castillo’s first name is

Tina, instead of Gina. See N.T., 1/15/25-1/16/25, at 18-19.

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After Appellants filed their complaint in the Breach Action, the case was

reassigned from Ms. Castillo to her colleague in the litigation unit, Ana

Cothren. Id. at ¶ 42. At the time of trial, Ms. Cothren had worked for USAA

for 24 years, of which she spent the last 12 years as a senior litigation

manager. Id. at ¶ 44. At trial, Ms. Cothren did not question Mr. Brown’s

complaints of a concussion, indicating that this would have been noted in her

file. Id. at ¶ 46. Although she did not have an independent recollection of

her valuation in the case, based on her review of the file, she stated she gave

defense counsel authority to settle the case for up to $25,000.00. Id. at ¶

47. The maximum value Ms. Cothren placed on the claim prior to arbitration

was $25,000.00. Id. at ¶ 48.

Initially, Ms. Cothren testified that her valuation was premised on her

view that Mr. Brown presented with soft tissue injuries, not a concussion. Id.

at ¶ 49. Had she viewed it as a concussion case, Ms. Cothren credibly testified

she would have valued the claim at a higher amount. Id. at ¶ 50. However,

on the second day of trial, Ms. Cothren backtracked to a degree, indicating

she did originally value it as a concussion case. Id. at ¶ 51. Nonetheless,

when shown neurologist reports from her file, Ms. Cothren stated she had not

considered those records when valuing the claim. Id. at ¶ 52. Had she

considered the neurologist records, Ms. Cothren admitted she would have

valued the claim at a higher amount. Id. at ¶ 53.

Appellants presented the testimony of Stuart J. Setcavage, an expert on

UIM claims handling and valuation. Id. at ¶¶ 54-55. He opined USAA’s

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handling of the claim did not satisfy industry standards, and USAA’s valuation

of the claim and settlement offers did not reasonably reflect the claim’s value.

Id. at ¶¶ 56-57. He described USAA’s $10,000.00 offer as “ludicrous,”

indicating the offer barely covered economic damages and offered little toward

non-economic damages. Id. at ¶ 58. He said USAA’s initial $9,000.00 offer

did not include unpaid medical bills and USAA’s second offer of $10,000.00

was arguably a lower valuation, as it came after USAA was made aware of

$4,000.00-$5,000.00 in unreimbursed medical bills. Id. at ¶ 59. Mr.

Setcavage considered USAA’s initial offers as “low[-]balling,” which he said is

an unethical practice. Id. at ¶ 60.

USAA proffered the testimony of George E. Krauss, an expert in “the

standards of care applicable to insurance claims professions and good faith

handling.” Id. at ¶ 61 (citation omitted).4 According to Mr. Krauss, the duty

of good faith requires an insurer to communicate fairly with the insured, which

includes telling an insured why a claim was valued in a certain way. Id. at ¶

62. Although Mr. Krauss did not offer a personal valuation of the claim, he

indicated USAA is not required to pay the policy limits on UIM claims when an

insured makes a demand for a policy limit. Id. at ¶ 63. Instead, Mr. Krauss

said the insurer needs to (a) follow the policy, as it is a legal contract; (b)

follow state statutory regulations; and (c) adhere to financial regulations and

duties. Id. at ¶ 64. Mr. Krauss opined USAA complied with what the law

____________________________________________

4 In the Decision, the trial court misspelled Mr. Krauss’s last name as “Knauss.”

We call him by his correct surname. See N.T. at 242.

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requires, and believed USAA’s opening offer of $9,000.00 was prompt,

reasonable, and consistent with standard practices in the insurance industry.

Id. at ¶¶ 66-67. He disagreed USAA “forced” Appellants to litigate their UIM

claim, and said an arbitration award exceeding the UIM limit is, by itself, not

evidence that USAA mishandled the claim. Id. at ¶¶ 68-69.

Ultimately, Mr. Krauss opined, within a reasonable degree of

professional certainty, that USAA properly handled the claim, evaluated the

claim in a timely fashion, reasonably valued the claim, made reasonable

settlement offers, complied with good faith claims practices, and handled the

claim in compliance with standard industry practices. Id. at ¶ 70. Mr. Krauss

conceded, though, offering nothing for non-economic damages on a claim

would be unreasonable under the bad faith statute and could be considered in

determining bad faith. Id. at ¶ 71. Additionally, he agreed that “if there’s an

unreasonable offer that forces the plaintiff to litigate the case in order to get

a claim[ paid,]” it could be evidence of bad faith. Id. at ¶ 72 (citation

omitted). However, Mr. Krauss disagreed USAA’s waiting until the eve of

arbitration to increase its settlement offer to $25,000.00 was in some way not

good faith, and suggested the increase to $25,000.00 could be viewed as a

change in USAA’s valuation of litigation costs rather than a change in its

valuation of damages. Id. at ¶¶ 73-74. Finally, when the trial court asked

Mr. Krauss about the implications of an adjuster’s claiming they have not

received information that is already in the claims file, Mr. Krauss posited when

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information that is in a file “slips through your fingers[,]” it is an accident and

would not elevate to bad faith. Id. at ¶ 75.

On May 5, 2025, after the parties submitted findings of facts and

conclusions of law and their closing arguments, the trial court entered a

verdict in favor of USAA and against Appellants. In finding in favor of USAA,

the trial court explained, in relevant part:

To recover in a bad faith action against an insurer, a plaintiff must

present clear and convincing evidence that: (1) the insurer did not

have a reasonable basis for denying benefits under the policy; and

(2) the insurer knew of or recklessly disregarded its lack of a

reasonable basis. See Rancosky[, supra].

Under Pennsylvania law, actions constituting bad faith are not

limited solely to a denial of insurance coverage; bad faith may also

include a lack of investigation, unnecessary or unfounded

investigation, failure to communicate with the insured, failure to

promptly acknowledge or act on claims, poor claims-handling, the

insurer’s failure to act with diligence or respond to the insured,

scattershot investigation, and similar conduct. See Ironshore

Specialty Ins[.] Co[.] v. Conemaugh Health Sys[.], Inc., 423

F.Supp.3d 139 (W.D. Pa. 2019) (analyzing Pennsylvania

substantive law, cited for persuasive value).

Bad faith claims are fact-specific and depend on the conduct of

the insurer vis à vis the insured; the fact finder needs to consider

all the evidence available to determine whether the insurer’s

conduct was objective and intelligent under the circumstances.

Berg v. Nationwide Mut. Ins. Co., Inc., 189 A.3d 1030 (Pa.

Super. [] 2018). An insurer’s duty to act in good faith is an

ongoing vital obligation during the entire management of a claim,

and, once an insurer identifies a reasonable foundation for

denying a claim, it is not relieved of its duty of good faith and fair

dealing; if evidence arises that discredits the insurer’s reasonable

basis, the insurer’s duty of good faith and fair dealing requires it

to reconsider its position and act accordingly, all the while

remaining committed to engage in good faith with its insured. See

Condio v. Erie Ins. Exch., 899 A.2d 1136 (Pa. Super. [] 2006).

It is not necessary that an insurer’s conduct be fraudulent, but

mere negligence or bad judgment is not bad faith. [Id.] at

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114[3]. Further, bad faith on the part of an insurer is not present

merely because an insurer makes a low but reasonable estimate

of an insured’s losses. See Johnson v. Progressive Ins. Co.,

987 A.2d 781 (Pa. Super. [] 2009).

Applying these principles to the facts set forth above, it is initially

apparent that USAA failed to consider all relevant information

when investigating [Appellants’] claim for UIM benefits. For

instance, Ms. Castillo admitted that she did not consider Mr.

Brown’s (relatively) sizeable medical lien when making the initial

$9,000.00 offer. Although she explained that she believed his

unreimbursed medical expenses would be covered by another

source, Ms. Castillo did not satisfactorily explain why she did not

include the reduced Act 6 amount or, if she suspected issues with

recoverability, why she did not clearly document this in her file.

More significantly, however, Ms. Cothren admitted that she did

not consider Mr. Brown’s neurological records in her valuation, and

that she would have increased her offer had she accounted

for a closed-head injury (specifically, a concussion). The record

plainly establishes that all of Mr. Brown’s treatment notes were

available to Ms. Cothren at the time she communicated the

$25,000.00 authorization limits to counsel. In any event, her

notations in the file suggest that she reviewed the documents.

Although she later attempted to rehabilitate her testimony, saying

in essence the exact opposite (i.e., that she indeed had considered

the concussion before communicating USAA’s best and final offer),

the court finds this inconsistent testimony unconvincing.

Accepting as true that Ms. Cothren would have offered more had

she accounted for a concussion, Mr. Brown’s offer was materially

lower than what USAA would have otherwise made.

The relevant question is why Ms. Castillo and Ms. Cothren

presented offers that did not consider the full universe of Mr.

Brown’s injuries and economic damages. This question is highly

subjective, and the court cannot infer recklessness or ill-intent

from the existing record. Ms. Castillo and Ms. Cothren’s failures

appear to be mere oversight — conduct that, in light of the

constellation of other facts set forth in the record, with the court’s

respective credibility determinations, suggests simple negligence

rather than some nefarious or dishonest purpose. There are few

if any facts that would lead to the conclusion that USAA’s claim

handlers acted willfully, recklessly, or with deceptive intent. They

did not unduly delay authorization to settle the third-party claims;

they did not unreasonably delay in investigating [Appellants’]

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claim or responding to [Appellants’] initial demand. They asked

questions typically expected of a claim handler in a quasi-

adversarial first-party file review. Further, notwithstanding

[Appellants’] allegations, USAA’s last and final offer of $25,000.00

(in essence, a $50,000.00 valuation on a claim with approximately

$30,000.00 in documented special damages) is not so

outrageously low as to be considered wholly unreasonable.

Establishing bad faith is a demanding task, requiring exacting and

highly subjective scrutiny. Again, to meet their burden,

[Appellants] must clearly and convincingly demonstrate that

USAA’s conduct imported a dishonest purpose, and that USAA

breached its duty of good faith through some motive of self-

interest or ill will. See Brown v. Progressive Ins. Co., 860 A.2d

493 (Pa. Super. [] 2004). Put simply, the burden is high.

Although [Appellants] have, to the court’s satisfaction, established

poor claims handling on the part of USAA’s representatives, this

alone is not sufficient to establish bad faith. For this reason,

[Appellants’] case falls marginally short of what is needed to

prevail.

Id. at 11-14 (unnecessary capitalization omitted; all emphasis in original).

Following the trial court’s Decision, Appellants filed a timely post-trial

motion pursuant to Pa.R.Civ.P. 227.1(a)(2), (4), and (5), seeking “an [o]rder

granting post-trial relief, amending the court’s Decision, … and granting

[Appellants] judgment [notwithstanding the verdict (‘JNOV’)].” Appellants’

Motion for Post-Trial Relief, 5/15/25, at 1.5 In their accompanying brief,

however, they stated they “move[d] pursuant to Rule 227.1(a)(2), (4)[,] and

(5) … for an order amending the decision and/or for [J]NOV in their favor.”

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5 We discuss Rule 227.1(a) further infra. Briefly, upon the filing of a post-trial

motion, the trial court may direct the entry of judgment in favor of any party

under Rule 227.1(a)(2); the trial court may affirm, modify, or change the

decision under Rule 227.1(a)(4); and the trial court may enter any other

appropriate order under Rule 227.1(a)(5).

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Appellants’ Brief in Support of Post-Trial Motion, 5/15/25, at 3 (emphasis

added).

In Appellants’ brief in support, they argued the trial court “misapplied

the law and contradicted admissions and uncontested facts in the record.” Id.

at 2. Specifically, relying in part on Rancosky, Appellants advanced the trial

court incorrectly applied controlling law, stating “[d]espite the clear authority

that bad faith is more than just making a low offer, and despite the Supreme

Court’s admonition that ‘ill[-]will’ and ‘self-interest’ are not the proper

concepts to employ, the [c]ourt’s examination focused solely on whether a

low offer was motivated by ill[-]will.” Id. at 6 (citations omitted). They said

the trial court’s “focus on the motivations of the two adjusters, rather than

the overall conduct of the company towards its insureds, led to a flawed

analysis and reliance on an interpretation of the law that has been rejected by

the Supreme Court.” Id. at 4. Appellants also criticized the trial court’s

finding of mere oversight, arguing neither party argued mere oversight and

that mere oversight “does not exist when an insurer repeatedly ignores

evidence and communications that suggest that its valuation was

unreasonable, fails to reconsider its valuation in light of the repeated notice,

and fails to respond to direct inquiries.” Id. at 6-7, 9. Appellants stated the

trial court “created an alternate analysis that was unsupported by the evidence

and contrary to what [USAA] admitted had happened. The resulting verdict

is contrary to the controlling law and undisputed record evidence.” Id. at 10

(footnote omitted); see also id. at 9 (“[USAA] did not argue that the

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adjusters failed to notice the evidence; instead, it argued that the adjusters

reasonably valued the case based on their experience.”).

Appellants additionally argued the trial court “failed to address

undisputed facts contrary to its findings or provide an analysis to support its

decision.” Id. at 10 (emphasis omitted). Appellants explained the trial court’s

“review of the record was incomplete. Missing was any consideration of the

course of conduct of USAA in the underlying UIM litigation, specifically the

communications between the parties.” Id. at 10-11. They indicated the trial

court failed to take into account USAA’s failure to respond to Appellants’

repeated requests for the basis of the denial of their claim, or why USAA

delayed raising its offer until the eve of arbitration. See id. at 21. They also

challenged the trial court’s findings related to the reasonableness of USAA’s

offers. Id. at 22-24. They set forth:

Here, there is no question, because [USAA] admits, that USAA had

actual knowledge (as set forth in its claims file) that its offers were

unreasonably low. Moreover, there is no question, because the

undisputed facts show, that USAA disregarded the repeated signs

and warnings that its offers were unreasonably low, and that

despite these repeated signs and warnings, USAA disregarded its

unreasonable delay in offering more than the initial … offer, its

unreasonable failure to examine the file given the evidence of the

low offers, and its unreasonable failure to communicate with

[Appellants] about the basis for the denial of their claim.

The [c]ourt’s analysis is unsupported by reference to relevant

facts and is contradicted by undisputed facts in the record. To

correct this clear error, the [c]ourt should amend its decision and

enter judgment for [Appellants].

Id. at 24.

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Subsequently, USAA filed a response, arguing, inter alia, Appellants

waived any argument for JNOV by not requesting a directed verdict during the

trial and pointing out Appellants waived any request for a new trial by not

requesting such relief in their post-trial motion. USAA’s Brief in Opposition to

Post-Trial Motion, 6/4/25, at 4. USAA argued the trial court’s “holding is

entirely consistent with Rancosky,” as the trial court determined it “cannot

infer recklessness or ill[-]intent from the existing [r]ecord.” Id. at 9

(emphasis in original). Further, USAA emphasized the Rancosky Court

instructed evidence of self-interest or ill-will is probative of the second prong

for showing bad faith, and said the trial court appropriately applied the law to

the totality of the claims handling process. See id. at 9, 10. USAA also

insisted the trial court’s findings were supported by competent evidence. Id.

at 10-14.

Appellants thereafter filed a reply. Among other things, even though

Appellants did not seek a new trial, they confusingly stated their “challenge is

to the weight of the evidence. Their post-trial motion alleges that the [c]ourt

misapplied the law and failed to consider evidence in [Appellants’] favor.

These errors affected the [c]ourt’s evaluation of the evidence….” Appellants’

Reply, 6/5/25, at 1-2. Appellants also argued they moved for post-trial relief,

in part, under Rule 227.1(a)(4), and said their post-trial motion “is analogous

to a motion for reconsideration.” Id. at 2-3.

Thereafter, on June 20, 2025, the trial court entered a memorandum

and order denying Appellants’ post-trial motion. Therein, the trial court did

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not address whether Appellants waived their issues, as claimed by USAA.

However, with respect to the law it applied, the trial court opined, in relevant

part:

Revisiting the applicable law, “bad faith is a frivolous or unfounded

refusal to pay the proceeds of a policy done with dishonest

purpose, motivated by self-interest or ill[-]will.”

Condio[,899 A.2d at 1142] (emphasis added…). “Mere

negligence or bad judgment is not bad faith.” Id. [at 1143]. In

the absence of evidence of dishonest purpose or ill-will, it is not

bad faith for an insurer to take a stand with a reasonable basis or

to “aggressively investigate and protect its interests” in the

normal course of litigation (and pre-suit). Id.; see also Adamski

v. Allstate Ins. Co., 738 A.2d 1033, 1036 (Pa. Super. [] 1999);

O’Donnell v. Allstate Ins. Co., 734 A.2d 901, 906 (Pa. Super.

[] 1999) (plaintiff must prove “[defendant] knew or recklessly

disregarded its lack of reasonable basis in denying the claim”).

The term “bad faith” encompasses a wide variety of objectionable

conduct, and bad faith claims are inherently fact specific. Condio,

899 A.2d at 1142[-43]. In the first-party context, “bad faith” can

mean a “lack of good faith investigation into facts, and failure to

communicate with [a] claimant.” Id.… Condio cites, for

example, the matter of Hollock v. Erie Ins. Exch., 842 A.2d 409

(Pa. Super. [] 2004), in which the insurer delayed investigation

and payment, misrepresented the amount(s) of coverage,

arbitrarily refused to accept medical/wage documentation,

surreptitiously placed the insured under surveillance, and forced

the insured into litigation through a “low-ball” offer bearing no

rational relation to the ultimate award (an offer 29 times lower

than what the panel awarded). See Hollock, [supra]; see also

Brown[, supra].

At the heart of [Appellants’] theory is that USAA made a

purposefully low initial offer and then refused to reevaluate its

position despite repeated demands, resulting in unnecessary

litigation and an unreasonable delay in payment of first-party

benefits. It is not bad faith to make a low but reasonable estimate

of the insured’s losses. A $35,000.00 initial case valuation in

November 2019,2 when accounting for approximately $21,000.00

in lost wages and a medical lien that would ultimately be reduced,

may be considered “low,” but it is not demonstrably

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unreasonable.[6] Further, despite [Appellants’] contention that

USAA refused to reevaluate its position and forced the parties to

sit for arbitration, USAA did, in fact, increase its offer — twice.

More specifically, USAA made three cascading offers of

$10,000.00, $15,000.00, and $25,000.00, with the last and final

offer coming immediately prior to arbitration. This offer was (a)

$22,500.00 less than [Appellants’] last demand; (b) nearly 36%

of the final award (after the $25,000.00 third-party credit is

applied, but before molded to the policy limits), and (c) half the

available coverage. Importantly, none of USAA’s offers were so

factorially incongruous with the ultimate award — certainly

nothing remotely to the degree in Hollock — as to be considered

“ludicrous.” To the extent [Appellants] or their expert believe

otherwise, the [c]ourt explicitly rejects that descriptor.

2 USAA’s initial $10,000.00 offer suggests a case valuation

of $35,000.00 with the third-party credit applied.

Having addressed the reasonableness of USAA’s settlement

posture, the [c]ourt looked to other evidence of USAA’s conduct,

both pre-suit and during litigation. Although it is true the [c]ourt

ultimately concluded that it could not “infer recklessness or ill-

intent from the existing [r]ecord,” and that USAA’s employees’

missteps could be explained by “mere oversight,” the [c]ourt

discussed these things in the context of a larger factorial analysis,

primarily because purpose and state of mind are relevant

considerations. See Condio, [supra;] O’Donnell, [supra;]

Terletsky[ v. Prudential Prop. and Cas. Ins. Co., 649 A.2d

680 (Pa. Super. 1994)].

The record demonstrates USAA opened the file promptly and

began its investigation while providing [Appellants] consent to

settle the third-party claims. USAA did not unreasonably delay in

responding to [Appellants’] initial policy limits demand — after

receiving the demand packet, USAA timely responded with an

offer and remained in contact while investigating [Appellants’]

economic claims and medical treatment. Throughout this

litigation, USAA continued to negotiate, with the advice and

____________________________________________

6 The trial court later observed, “[i]n its analysis in the Post-Trial

[M]emorandum, the [t]rial [c]ourt misstated the amount of the initial offer as

$10,000.00. In fact, USAA’s first offer was $9,000.00.” Rule 1925(a) Opinion

at 2 n.1 (citation omitted). However, the trial court did not indicate this

misstatement changed its analysis at all.

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assistance of counsel, until the eve of arbitration. Then, after

receiving notice of the award, USAA paid the molded award

promptly.

Beyond mere insinuation, [Appellants] point to nothing in the

record demonstrating an intention on the part of USAA to defraud

[Appellants] or knowingly undermine the value of their claim.

Absent from the record is any evidence that USAA’s employees

acted with purpose, frivolity, recklessness, or even knowledge of

their allegedly improper conduct. Unlike Hollock and other cases

where bad faith was proven, USAA did not misrepresent the limits

of coverage or terms of payment; it did not place the insured

under surveillance; it did not make unreasonable demands of

[Appellants]; it did not pursue frivolous investigatory paths; and

it did not arbitrarily question or reject [Appellants’] medical and/or

wage loss documentation, much less without reasonable basis.

At risk of repetition, the [c]ourt agrees that USAA’s claim handlers

arguably conducted their investigation and initial negotiations in a

less-than-ideal manner. (It could be equally true that USAA’s

employees were simply ill-prepared to testify on the day of [t]rial,

or that they could not recall certain factual details about their

investigation and evaluation many years later.) Whatever the

case, whether that conduct is charitably categorized as

inattentiveness, neglect, incompetence, forgetfulness, or “mere

oversight,” none constitutes statutory bad faith on the sum of the

facts presented with any degree of scrutiny applied.

Trial Court’s Post-Trial Memorandum and Order (“Post-Trial Memorandum”),

6/20/25, at 2-5 (all emphasis in original).

After the trial court denied Appellants’ post-trial motion, USAA filed a

praecipe for entry of judgment, and judgment was entered in its favor on July

2, 2025. Appellants filed a timely notice of appeal on July 10, 2025. The trial

court directed Appellants to file a Pa.R.A.P. 1925(b) concise statement.

Appellants timely filed their concise statement, and the trial court

subsequently filed a Rule 1925(a) opinion.

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In the trial court’s Rule 1925(a) opinion, the trial court suggested we

find Appellants’ appellate issues waived due to Appellants’ lengthy, redundant,

and unclear concise statement. Nevertheless, it went on to address

Appellants’ most significant issue that the trial court misinterpreted and/or

misapplied Rancosky. The trial court explained:

The trial court rendered its decision in light of Rancosky, not in

spite of it. It is the first case referenced in the trial court’s

discussion of controlling authority [in its Decision], demonstrating

its significance to the trial court’s analysis. See Decision[ at] 11.

More importantly, without qualification, the trial court heeded

Rancosky in considering whether USAA (1) lacked a reasonable

basis for its offer(s), and, if so, whether USAA (2) either knew or

recklessly disregarded its lack of a reasonable basis. See

Rancosky, 170 A.3d at 365…. This is clear when reviewing the

entirety of the trial court’s analysis.

In framing their complaint in this way, [Appellants] argue in

essence that no further evidentiary showing is needed beyond Ms.

Cothren’s testimony that (a) she neglected to consider medical

records documenting Mr. Brown’s closed head injury (which the

trial court determined she possessed), and (b) had she done so,

she likely would have evaluated [Appellants’] claims differently.

Even if true, [Appellants] do not prevail on this testimony alone.

Although this may go to the reasonableness of Ms. Cothren’s post-

suit offer(s), it does not obviate the need for further inquiry. This

is particularly true because the trial court expressly determined

that Ms. Cothren’s failure to consider evidence of Mr. Brown’s

concussion appeared to be [the] result of “mere oversight …

suggest[ing] simple negligence.”10 See Decision[ at] 13. See

[also] Condio[, supra] ([stating] mere negligence or bad

judgment does not constitute bad faith).

10 The trial court found the same was true of the initial file

review by [Ms. Castillo]. See Decision[ at] 13. The trial

court determined that Ms. Castillo had not initially allowed

for unpaid medical bills because she believed they would be

reimbursed by insurance. Id. at 6. These expenses were

not reimbursed in full, though they were later substantially

reduced by Act 6. In recognizing Ms. Castillo’s “failure to

satisfactorily explain why she did not include the reduced

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Act 6 amount or, if she suspected issues with recoverability,

why she did not clearly document this in her file,” see [id.

at ]12, the trial court noted:

The trial court agrees that Ms. Castillo and Ms.

Cothren arguably conducted their investigations and

initial negotiations in a less-than-ideal manner. (It

could be equally true that Ms. Castrillo [sic] and/or

Ms. Cothren were simply ill-prepared to testify on the

day of trial, or that they could recall certain factual

details about their investigation and evaluation many

years later.) Whatever the case, whether that

conduct is charitably categorized as

inattentiveness, neglect, incompetence,

forgetfulness, or ‘mere oversight,’ none

constitutes statutory bad faith on the sum of the

facts presented with any degree of scrutiny

applied.

[Post-Trial Memorandum at] 4-5 (emphasis added)….

Absent actual knowledge, an insurer may nevertheless act with

bad faith by conducting its claims handling/review in a reckless

manner, with conscious disregard for the rights of its insured.

“Recklessness” cannot be demonstrated without regard for

circumstance, however. It is expressly distinguishable from

negligence on the basis that recklessness requires conscious

action or inaction, whereas negligence suggests unconscious

inadvertence. See Fitsko v. Gaughenbaugh, 69 A.2d 76 (Pa.

1949) (citing with approval the Restatement (First) or Torts

definition of “reckless disregard” and its explanation of the

distinction between ordinary negligence and recklessness). It

involves a higher degree of fault, with purpose or conscious

disregard for a known risk or harm. Failure, then, to consider the

full universe of an insurer’s conduct would be in error. To be sure,

a bad faith inquiry is a highly fact specific undertaking. See

Berg[, supra].

It is against this backdrop that the trial court explored evidence

of USAA’s overall conduct — both pre-suit and during litigation —

pursuant to the second prong of Rancosky, which focuses on an

insurer’s state of mind. Notwithstanding [Appellants’]

interpretation of the [trial court’s] Decision and/or Post-Trial

[Memorandum], the trial court was not “searching for evidence of

dishonest purpose, self-interest, or ill[-]will” alone, nor was this

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standard applied. Rather, the trial court considered the full

constellation of facts in search of any evidence tending to

demonstrate that USAA knew or should have known it was

undervaluing [Appellants’] claim and making an unreasonable

offer.11

11 It must be noted that the trial court never concluded that

any offer by USAA was per se unreasonable. Ms. Castillo’s

$9,000.00 pre-suit offer implied a low[-]range case

valuation of $34,000.00 against alleged economic damages

totaling $30,548.00 (assuming medical expenses at their

Act 6 reduced rate). This “may be considered [‘]low,[’] but

it is not demonstrably unreasonable.” See Post-Trial

[Memorandum at] 3. It is not bad faith for an insurer to

make a low but reasonable estimate of an insured’s losses.

See Johnson[, supra]. The strongest evidence of the issue

is Ms. Cothren’s testimony that she would have offered more

post-suit (with other litigation considerations involved) had

she evaluated the claim in a different light. [Appellants]

failed to demonstrate that a “reasonable” insurer would

have otherwise offered more at relevant times in an

arbitration-level proceeding with mostly soft tissue injuries

and a healthy third-party credit. It may be [Appellants’]

belief that the initial offer was “ludicrous,” or that USAA’s

best offer afforded “nothing” for noneconomic damages, but

the trial court does not agree. Whatever the case, the trial

court will not subordinate its judgment to [Appellants’

judgment].

Most importantly, the allegation that the trial court simply

disregarded evidence of “actual knowledge or reckless disregard,”

or simply ignored evidence relevant to the question of

recklessness is untrue. The trial court specifically determined that

[Appellants] failed to produce evidence of either intentionality or

recklessness — certainly not sufficiently to meet [Appellants’]

demanding clear and convincing burden. See Decision[ at] 13

(“[T]here are few if any facts that would lead to the conclusion

that USAA’s claims handlers acted willfully, recklessly, or with

deceptive intent[.”]); see also Post-Trial [Memorandum at] 5

(“[A]bsent from the [r]ecord is any evidence that USAA’s

employees acted with purpose, frivolity, recklessness, or even

knowledge of their allegedly improper conduct[.]”).

More broadly, the trial court’s discussion of intentionality,

purpose, motivation, ill-will, recklessness, and other similar

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concepts is in full harmony with Rancosky. This is true because

the Supreme Court explicitly held that such evidence (“motive of

self-interest or ill-will”), although not required for a bad faith

showing, is “probative of the second prong….” Rancosky, 170

A.3d at 377. Where, as here, there is a paucity of direct and

compelling evidence of bad faith conduct (e.g., communications

between employees or notations in the claims file evidencing

purposeful conduct; refusal to accept or consider records without

a good faith reason; delayed responses or lapses in time following

communications from counsel; surreptitious surveillance of

[Appellants]; unnecessary demands or excuses for the insurer’s

delays; misrepresentation of the limits or conditions of coverage,

etc.), the trial court leaves no stone unturned in review of

Rancosky’s second prong. [Appellants’] complaint that the trial

court went beyond what is envisioned or permitted by Rancosky

is without merit.

Lastly, notwithstanding [Appellants’] assertion, the trial court did

not rely on dicta from a disfavored line of cases. To the contrary,

it relied on a well-developed body of law analyzing specific conduct

constituting bad faith, which is particularly useful in actions such

as this. See, e.g., Terletsky[, supra]; Condio[, supra];

Hollock[, supra]; Brown[, supra]. Rancosky very narrowly

addressed whether evidence of motive of self-interest or ill-will is

necessary — it did not overrule this line of cases in whole, and the

trial court is reasonably permitted to consider and analogize the

holdings of these respective appellate decisions (most certainly in

a manner consistent with Rancosky’s holding). The trial court

never said that dishonest purpose, self-interest, or ill[-]will was

required. It did not apply a new or inconsistent standard of test.

The trial court provided substantial further analysis on the subject

in its Post-Trial [Memorandum], yet [Appellants] persist in the

myth that the trial court simply ignored Rancosky and evidence

of USAA’s conduct.

***

The trial court undertook a thorough review of the record when

making its decision. The trial court faithfully cited and applied the

appropriate legal standard, and the trial court’s factual findings

supporting that conclusion are entitled to great deference.

[Appellants] point to nothing within the record so compelling as to

warrant reversing the trial court’s carefully considered Decision on

the merits. Even if [Appellants] were to establish that the trial

court somehow misread or misapplied Rancosky warranting

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remand, nothing would change the outcome on the existing

evidentiary record.

Rule 1925(a) Opinion at 9-13, 14 (unnecessary capitalization, some footnotes

and brackets omitted; all emphasis in original).

Issues

On appeal, Appellants present two questions for our review:

1. Should the Court deny the trial court’s suggestion to find waiver

where [Appellants’] statement of errors, while lengthy, was not

filed in bad faith and does not impede appellate review?

2. Should the Court remand this case to the trial court for

reconsideration of its Decision where the trial court applied an

incorrect legal standard, requiring [Appellants] to prove bad faith

through some motive of self-interest or ill[-]will, and misapplied

controlling law, limiting its review of the record to consideration

of why the individual adjusters’ valuations were low, rather than

considering the entire course of [USAA’s] conduct?

Appellants’ Brief at 4 (unnecessary capitalization omitted).

Analysis

Rule 1925(b)

In Appellants’ first issue, they argue we should deny the trial court’s

suggestion of waiver based on their allegedly non-compliant Rule 1925(b)

concise statement. See Appellants’ Brief at 26. Although they admit their

concise statement was unnecessarily lengthy, Appellants insist it was not filed

in bad faith and does not impede appellate review. Id. at 21, 25, 26.

Appellants claim the concise statement “was organized in a way intended to

focus the [t]rial [c]ourt’s attention on the specific law and evidence pertinent

to each error, not to overwhelm the [t]rial [c]ourt.” Id. at 21.

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“The fact [the appellant] filed a timely [Rule] 1925(b) statement does

not automatically equate with issue preservation.” Commonwealth v.

Vurimindi, 200 A.3d 1031, 1038 (Pa. Super. 2018) (citation omitted). “[T]he

[Rule] 1925(b) statement must be sufficiently ‘concise’ and ‘coherent’ such

that the trial court judge may be able to identify the issues to be raised on

appeal, and the circumstances must not suggest the existence of bad faith.”

Id. Our Rules of Appellate Procedure instruct the concise statement “shall set

forth only those errors that the appellant intends to assert” and “shall

concisely identify each error … with sufficient detail to identify the issue to be

raised for the judge.” Pa.R.A.P. 1925(b)(4)(i)-(ii). Further, the Rules direct

the concise statement “should not be redundant or provide lengthy

explanations as to any error. Where non-redundant, non-frivolous issues are

set forth in an appropriately concise manner, the number of errors raised will

not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv). It is well-

established issues not raised in accordance with the provisions of Rule

1925(b)(4) are waived. Pa.R.A.P. 1925(b)(4)(vii).

Appellants’ concise statement is fifteen pages long. See generally

Pa.R.A.P. 1925(b) Statement, 7/22/25. The first seven pages consist of an

“Introduction” section, in which Appellants apologized to the trial court for

their tone and comments in their post-trial motion briefing, set forth the

governing law, discussed evidence introduced at trial, addressed the parties’

respective positions and arguments, and claimed the trial court misapplied the

applicable law and therefore erroneously examined the evidence. See id. at

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1-7. The remaining eight pages include a list of ten paragraphs, stating the

ways in which the trial court purportedly erred. Id. at 8-15. Appellants

explain the first sentence of each of the ten paragraphs sets forth the alleged

error and is followed by a discussion to clarify the basis for the error. See

id.; Appellants’ Brief at 22.

Upon review, the trial court said Appellants “do not present their

appellate issues in an easily identifiable manner, and many/most issues

appear to be related if not strictly redundant.” Rule 1925(a) Opinion at 7.

The trial court stated “[i]t is not clear whether they explicitly raise an issue

with weight or sufficiency…, or if their argument is principally rooted in the

[t]rial [c]ourt’s alleged legal errors.” Id. It opined Appellants “have frustrated

the [t]rial [c]ourt’s attempt to identify issues, as [Appellants] present not so

much a clear statement of legal error or discretionary abuse as much as a

wandering skein of grievances.” Id. at 8. It also complained Appellants “pick

and choose portions of the Decision and Post-Trial [Memorandum] they find

offensive, while ignoring the larger mosaic, and the [t]rial [c]ourt’s every word

[is] met with seemingly endless dissection and contortion.” Id. at 7. Among

other things, the trial court said Appellants “(a) isolate words, phrases, and

sentences without regard for context, (b) conflate controlling legal concepts,

(c) suggest findings and conclusions other than what the [t]rial [c]ourt

expressly determined, and (d) even misstate facts within the [r]ecord.” Id.

As set forth above, while the trial court submitted waiver is an appropriate

remedy, it nevertheless went on to perceive and address Appellants’ most

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significant issue — whether it misapplied Rancosky, which forms the basis of

Appellants’ second issue on appeal. Id. at 8-14.

We admonish Appellants for their lack of compliance with Rule 1925(b).

We agree with the trial court that Appellants’ concise statement is needlessly

long, repetitive, confusing, and convoluted, especially given that this case

involved a single claim made against a single defendant.7 However, the trial

court was ultimately able to discern and address the error Appellants raise on

appeal. As the trial court recognized, this error connects to many of the other

issues Appellants raised in the concise statement. See Rule 1925(a) Opinion

at 7, 8-9. Further, Appellants insist the concise statement was not filed in bad

faith but rather was meant to clarify the alleged errors. Appellants’ Brief at

25-26.8 While this attempt fell short, in this instance, we decline to find waiver

of Appellants’ second issue based on their Rule 1925(b) statement.

____________________________________________

7 Cf. Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 427 (Pa.

2007) (declining to find waiver based on the large number of issues raised in

the concise statement where the appellants “brought forth a complicated

multi-count lawsuit with numerous defendants resulting in many trial court

rulings”).

8 Cf. Vurimindi, 200 A.3d at 1042 (finding waiver where Rule 1925(b)

statement was 53 pages long and consisted of a “defamatory rant against

everything and everyone involved in [the] case[, which] shows complete

defiance toward the purpose of appellate review”); Jiricko v. Geico Ins. Co.,

947 A.2d 206, 213 (Pa. Super. 2008) (finding waiver where the appellant’s

concise statement was five pages long and, crucially, “[t]here is simply no

legitimate appellate issue presented” therein); Kanter v. Epstein, 866 A.2d

394, 402 (Pa. Super. 2004) (finding waiver where the defendants raised a

total of 104 issues in their concise statements and “attempted to overwhelm

the trial court by filing Rule 1925(b) [s]tatements that contained a multitude

(Footnote Continued Next Page)

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Request for Remand

In Appellants’ second issue, they argue the trial court applied an

incorrect legal standard that tainted and limited its review of the record.

Appellants’ Brief at 27. In contravention of Rancosky, Appellants claim the

trial court incorrectly determined establishing bad faith requires a finding of

USAA’s motive of self-interest or ill-will. See id. at 32-33. In addition,

Appellants say the trial court “failed to consider evidence of bad faith other

than the low valuation by the adjusters. For example, [Appellants] asserted

bad faith claims based on unreasonable delay, failure to investigate[,] and

failure to communicate the basis for the denial.” Id. at 33 (citation omitted).

Appellants advance the trial court “erred in not giving appropriate weight to

evidence of bad faith conduct other than low offers[,]” and “focused only on

the conduct and motivations of the two individual adjusters.” Id. Ultimately,

Appellants insist the trial court’s “application of a clearly erroneous legal

standard warrants remand for a new decision, where the evaluation of the

entire record may be undertaken in compliance with controlling law.” Id. at

35.

____________________________________________

of issues that the [d]efendants did not intend to raise and/or could not raise

before this Court”).

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Before addressing Appellants’ arguments, we highlight Appellants

purport they are not seeking JNOV or a new trial.9 Nevertheless, we observe

— with respect to JNOV —“[t]here are two bases upon which a court may

enter [JNOV]:(1) the movant is entitled to judgment as a matter of law, or

(2), the evidence was such that no two reasonable minds could disagree that

the outcome should have been rendered in favor of the movant.” Quinby v.

Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1074 (Pa. 2006)

(cleaned up). “With the first, a court reviews the record and concludes that

even with all factual inferences decided adverse to the movant, the law

nonetheless requires a verdict in their favor;” while, “with the second, the

court reviews the evidentiary record and concludes that the evidence was such

that a verdict for the movant was beyond peradventure.” Id. (citation

omitted). In reviewing a motion for JNOV, “the evidence must be considered

in the light most favorable to the verdict winner, and he must be given the

benefit of every reasonable inference of fact arising therefrom, and any

conflict in the evidence must be resolved in his favor.” Id. (citation omitted).

On the other hand, a new trial is the remedy where the verdict is alleged

to be against the weight of the evidence. Lanning v. West, 803 A.2d 753,

____________________________________________

9 Appellants say, “[b]y this appeal, [they] challenge only the [t]rial [c]ourt’s

denial of their request to amend its Decision, which request was made

pursuant to Rule 227.1(a)(4) and (5).” Appellants’ Reply Brief at 5. Although

Appellants also requested JNOV pursuant to Rule 227.1(a)(2) below, they

clarify they “do not ask this Court to enter judgment in their favor.”

Appellants’ Reply Brief at 4 n.2; see also id. at 4 (stating Appellants “do not

appeal the denial of JNOV or ask this Court to enter judgment in their favor”).

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766 (Pa. Super. 2002). “A true weight-of-the-evidence challenge concedes

that sufficient evidence exists to sustain the verdict but questions which

evidence is to be believed.” Commonwealth v. Lewis, 911 A.2d 558, 566

(Pa. Super. 2006) (citation omitted). “The decision to grant or deny a motion

for a new trial based upon a claim that the verdict is against the weight of the

evidence is within the sound discretion of the trial court[,]” and “the function

of an appellate court … is to review the trial court’s exercise of discretion based

upon a review of the record….” Heffelfinger v. Shen, 342 A.3d 711, 725

(Pa. Super. 2025) (citation omitted). “[I]n reviewing a challenge to the weight

of the evidence, a verdict will be overturned only if it is so contrary to the

evidence as to shock one’s sense of justice.” Id. “A verdict is against the

weight of the evidence where certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” Id.

Instead of seeking JNOV or a new trial, Appellants ask us to vacate the

trial court’s decision, remand the case, and direct the trial court to review the

existing record under the correct legal standard. See Appellants’ Reply Brief

at 5. They claim they preserved this issue by moving for post-trial relief, in

part, pursuant to Rule 227.1(a)(4) and (5). See id. at 4.

Rule 227.1(a) provides the following:

(a) After trial and upon the written Motion for Post-Trial relief filed

by any party, the court may

(1) order a new trial as to all or any of the issues; or

(2) direct the entry of judgment in favor of any party; or

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(3) remove a nonsuit; or

(4) affirm, modify or change the decision; or

(5) enter any other appropriate order.

Pa.R.Civ.P. 227.1(a).

We recognize “Rule 227 expressly provides a trial court with broad

authority in addressing post-trial motions. [A] court may ‘modify or change’

its decision [under Rule 227.1(a)(4)] without qualification as to the

significance of the change.” Gruca v. Clearbrook Cmty. Servs. Assoc.,

Inc., 286 A.3d 1273, 1278 (Pa. Super. 2022) (emphasis and citation omitted);

see also Pa.R.Civ.P. 227.1 cmt. (noting “the underlying purpose of [Rule

227.1] is to allow the trial court to reconsider its determination and make any

corrections before it is appealed”); Claudio v. Dean Machine Co., 831 A.2d

140, 145 (Pa. 2003) (observing the purpose of Rule 227.1 “is to provide the

trial court with an opportunity to review and reconsider its earlier rulings and

correct its own error”) (emphasis and citations omitted).

Despite this broad authority, however, we express our concerns that

Appellants seek relief under the guise of Rule 227.1(a)(4) and (5), when they

should have properly requested JNOV and/or a new trial. While Appellants’

post-trial filings are not a model of clarity, in our view, Appellants asked for

the trial court below to enter judgment in their favor based on the applicable

law and the uncontested facts in their post-trial motion, which sounds in

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JNOV.10 To us, they seemed to argue no two reasonable minds could disagree

the outcome should have been rendered in their favor under the applicable

law. See Quinby, 907 A.2d at 1074. However, “to preserve the right to

request a JNOV post-trial, a litigant must first request a binding charge to the

jury or move for a directed verdict or a compulsory non-suit at trial.” Jones

v. Foods on First III, Inc., 345 A.3d 231, 246-47 (Pa. Super. 2025)

(citations and emphasis omitted).11 Problematically, Appellants did not move

for a directed verdict at the non-jury trial, resulting in waiver of their right to

JNOV.12

____________________________________________

10 See, e.g., Appellants’ Brief in Support of Post-Trial Motion at 2 (“The [c]ourt

misapplied the law and contradicted admissions and uncontested facts in the

record.”); id. (“The Rules permit a [c]ourt to amend its decision. The

admissions and uncontested facts in the record require it in this case.”); id.

at 9 (“[USAA’s] closing argument was, in effect, a deliberate concession that

examining its conduct during the UIM litigation would result in a finding of bad

faith.”); id. at 10 (“The resulting verdict is contrary to the controlling law and

the undisputed record evidence.”); id. at 21 (“None of the facts cited by the

[c]ourt would excuse USAA from failing to respond to [Appellants’] repeated

requests for the basis for the denial of the claim….”); id. at 24 (“[T]he court’s

analysis is unsupported by reference to the relevant facts and is contradicted

by undisputed facts in the record.”).

11 See Rogers v. Thomas, 291 A.3d 865, 882-83 (Pa. Super. 2023) (en banc)

(“A motion for compulsory nonsuit allows a defendant to test the sufficiency

of a plaintiff’s evidence and is made at the close of the plaintiff’s case. A

motion for directed verdict, like a motion seeking [JNOV], requires a court to

test the sufficiency of all evidence at the close of a case.”) (cleaned up).

12 In Jones, we noted “this Court has overlooked waiver [based on a failure

to preserve a right to JNOV at trial] in instances where the trial court disposed

of a post-trial motion on the merits or declined to find waiver.” Jones, 345

A.2d at 247 (citing Bank of America, N.A. v. Scott, 271 A.3d 897 (Pa. Super.

(Footnote Continued Next Page)

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Moreover, to the extent Appellants contested the trial court’s factual

findings and indicated in their reply brief below they were challenging the

weight of the evidence, Appellant should have requested a new trial in their

post-trial motion, which they failed to do, waiving that issue as well. See id.

at 246 (recognizing Rule 227.1 “requires parties to file post-trial motions in

order to preserve issues for appeal[,]” and “[i]f an issue has not been raised

in a post-trial motion, it is waived for appeal purposes”) (citation omitted).

In any event, upon review of Appellant’s request for the trial court to

reconsider the record under the correct legal standard pursuant to Rule

227.1(a)(4) and (5), no relief is warranted.13 At the outset, we agree with

Appellants the trial court made comments at times in its Decision, and Post-

Trial Memorandum, suggesting proof of a motive of self-interest or ill-will is

required, which contravenes our Supreme Court’s holding in Rancosky. See

Decision at 14 (“[T]o meet their burden, [Appellants] must clearly and

____________________________________________

2022); Karden Const. Servs., Inc. v. D’Amico, 219 A.3d 619 (Pa. Super.

2019)). However, we pointed out “[t]hose cases … and the authority they rely

upon, do not stand for the proposition that we are precluded from finding

waiver in similar circumstances.” Id. (emphasis in original). Accord Munoz

v. Children’s Hosp. of Phila., No. 1388 EDA 2024, unpublished

memorandum at 17 n.13 (Pa. Super. filed May 27, 2025) (declining to

overlook grounds for waiver of JNOV even though the trial court addressed

the claim in its Rule 1925(a) opinion); see also Pa.R.A.P. 126(b) (providing

unpublished non-precedential memorandum decisions of the Superior Court

filed after May 1, 2019, may be cited for their persuasive value).

13 “Whether an incorrect legal standard was applied is a question of law, and

thus our standard of review is de novo.” C.G. v. J.H., 172 A.3d 43, 52 (Pa.

Super. 2017) (citation omitted).

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convincingly demonstrate that USAA’s conduct imported a dishonest purpose,

and that USAA breached its duty of good faith through some motive of self-

interest or ill will.”) (citation omitted); Post-Trial Memorandum at 2 (stating

“bad faith is a frivolous or unfounded refusal to pay the proceeds of a policy

done with dishonest purpose, motivated by self-interest or ill-will”)

(emphasis in original; citations omitted).

Yet, in its Rule 1925(a) opinion, the trial court unambiguously heeded

the two-prong test set forth in Rancosky. With respect to the first prong, it

stated it did not find any offer by USAA to be per se unreasonable. Rule

1925(a) Opinion at 11 n.11. Significantly, even if the offers were

unreasonable, regarding the second prong, the trial court determined

Appellants “failed to produce evidence of either intentionality or recklessness

— certainly not sufficiently to meet [Appellants’] demanding clear and

convincing burden.” Id. at 12 (emphasis omitted). The trial court emphasized

it found Ms. Cothren’s failure to consider evidence of Mr. Brown’s concussion,

and Ms. Castillo’s failure to allow for unpaid medical bills, to be simple

negligence. See id. at 10. It asserted, “even if [Appellants] were able to

establish that the [t]rial [c]ourt somehow misread or misapplied Rancosky

warranting remand, nothing would change the outcome on the existing

evidentiary record.” Id. at 14.

The trial court’s Rule 1925(a) opinion clarifies any doubt as to whether

it applied Rancosky. Given the trial court’s Rule 1925(a) opinion, we see no

reason to vacate its decision and remand for it to reconsider the existing

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record under Rancosky; the trial court has clearly already done so. Further,

to the extent Appellants argue the trial court also failed to apply controlling

law by not considering evidence of bad faith other than the low valuations by

the adjusters, the record belies this claim.14 Finally, insofar as Appellants

attack the trial court’s factual findings and how it weighed the evidence,

Appellants did not present these issues in their statement of questions

involved, did not clearly raise a claim to JNOV or a new trial in their Rule

1925(b) statement, did not properly preserve their requests for JNOV or a new

trial below, and insist they are not seeking JNOV or a new trial on appeal.

____________________________________________

14 The trial court considered USAA’s conduct beyond just its adjusters’

valuations. See Decision at 11 (observing actions of bad faith are not limited

solely to a denial of insurance coverage); id. at 13 (considering USAA did not

unduly delay authorization to settle third-party claims, did not unreasonably

delay in investigating Appellants’ claim or responding to their initial demand,

and asked questions typically expected of a claim handler in a quasi-

adversarial first-party file review); Post-Trial Memorandum at 2 (recognizing

bad faith encompasses a wide variety of objectionable conduct, including a

lack of good faith investigation into facts and failure to communicate with a

claimant); id. at 3 (stating “despite [Appellants’] contention that USAA

refused to reevaluate its position and forced the parties to sit for arbitration,

USAA did, in fact, increase its offer — twice”) (emphasis in original); id. at 4

(“USAA opened the file promptly and began its investigation while providing

[Appellants] consent to settle the third-party claim. USAA did not

unreasonably delay in responding to [Appellants’] initial policy limits demand

— after receiving the demand packet, USAA timely responded with an offer

and remained in contact while investigating [Appellants’] economic claims and

medical treatment. Through this litigation, USAA continued to negotiate, with

the advice and assistance of counsel, until the eve of arbitration. Then, after

receiving notice of the award, USAA paid the molded award promptly.”).

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Thus, we deem these arguments waived.15 Accordingly, we affirm the trial

court’s judgment in favor of USAA.

Judgment affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/27/2026

____________________________________________

15 See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state

concisely the issues to be resolved…. No question will be considered unless it

is stated in the statement of questions involved or is fairly suggested

thereby.”); pages 22-25, supra (discussing Appellants’ Rule 1925(b)

statement); pages 29-31, supra (addressing Appellants’ failure to properly

preserve request for JNOV or a new trial); footnote 9, supra (explaining

Appellants do not seek JNOV or a new trial on appeal); see also Appellants’

Brief at 35-39, 42-45, 45-46 (challenging the trial court’s factual finding the

adjusters’ failures were mere oversights, the trial court’s determinations

regarding the reasonableness of USAA’s offers, and the trial court’s purported

failure to consider USAA’s lack of investigation and communication with

Appellants).

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