The Eastern District of Pennsylvania recently denied an insured’s motion for summary judgment after finding that an insurer did not concede liability and causation by averring in a related subrogation action that the insured was not at fault for the accident in which the insured was injured. Additionally, the Court found that an insurer is not obliged to make an advanced partial payment to an insured on a UIM claim. See Marrone v. GEICO Ins. Co., 2021 WL 2681388 (E.D. Pa. Jun. 29, 2021).
In Marrone, the insured was operating a motorcycle when he was struck by an automobile and injured. The insured subsequently sued his insurer for breach of contract and bad faith to recover first-party benefits. The insurer took the position that the insured was at fault for the accident.
The insurer filed a separate subrogation action relative to the accident to recover property damage and rental expenses from the driver of the automobile that allegedly hit the insured. In the subrogation action, the insurer took the position that the negligence and carelessness of the driver of the automobile was the sole cause of the accident. The insurer further averred that the insured was not responsible or at fault for the accident.
The insured moved for summary judgment in his lawsuit, arguing that summary judgment was appropriate on the issue of liability of causation because the insurer had plead in the subrogation action that the insured was not at fault for the accident. The insured further argued that a partial award for damages, interest, attorney’s fees, and costs were appropriate.
In denying the insured’s motion for summary judgment, the Court held that the insured failed to advance a coherent legal theory that prevents the insurer from contesting liability. The Court found that the doctrine of judicial estoppel did not preclude the insurer’s defense because the insured failed to establish that the insurer’s inconsistent positions on liability were taken in bad faith or for the purpose of making a mockery of the court system. The Court further noted that the allegations from the subrogation action regarding liability that the insured sought to admit in support of his position regarding liability were legal conclusions, and the Third Circuit had held that legal conclusions in pleadings may not be used as evidentiary admissions. The Court additionally held that the doctrine of collateral estoppel did not apply because the insured failed to show that the subrogation action resolved on its merits, which is an essential element of collateral estoppel.
Lastly, the Court held that the insurer was not entitled to an advance of proceeds under the insurance policy. The Court noted that Pennsylvania law did not impose a duty on insurers to make a partial payment on a UIM claim in the absence of a contractual provision requiring a partial payment or an agreement between the parties as to the value of a UIM claim.