Elizabeth Caserta was walking with her boyfriend along a roadside at night. An unknown driver of a car hit them both. Ms. Caserta's boyfriend, Edward Carcarey, died from his injuries. Ms. Caserta "suffered minor injuries and subsequent emotional distress." Caserta v. GEICO General Insurance Co., 2012 WL 6604613 *1 (3d Cir. December 19, 2012)(case involved Pennsylvania substantive law).
Mr. Carcarey's mother "had an automobile insurance policy with GEICO that included uninsured motorist coverage." Edward Carcarey was clearly an "insured." Ms. Caserta contended that she, too, is an insured and sued GEICO for alleged breach of the insurance contract and for Bad Faith. Caserta v. GEICO General Insurance Co., 2012 WL 6604613 *1 (3d Cir. December 19, 2012).
Neither the Trial Court nor the Third Circuit panel decided whether Ms. Caserta is GEICO's "insured" in this situation. In fact, the appellate panel carefully pointed this out in a footnote. Caserta v. GEICO General Insurance Co., 2012 WL 6604613 *2 n.1 (3d Cir. December 19, 2012). Rather, despite Pennsylvania State Trial Court decisions to the contrary, the Federal Appellate panel like the Federal District Judge, determined that there is no Coverage because there is no legally recognized tort in Pennsylvania:
Our task, as a federal court sitting in diversity, is “to apply state law and not to form it.” Coviello, 233 F.3d at 716 (3d Cir.2000). For purposes of bystander liability under Pennsylvania law, Caserta is not “closely related” to Edward Carcarey, her boyfriend. As a result, we conclude that her claim fails as a matter of law, and she cannot recover under Suzanne Carcarey's GEICO policy.
Caserta v. GEICO General Insurance Co., 2012 WL 6604613 *3 (3d Cir. December 19, 2012). The appellate panel accordingly affirmed the lower court's Judgment on the Pleadings in favor of GEICO in this case. Parenthetically, although the panel did not mention it, apparently the Judges were of the prevailing view that where there is no Coverage, there is no Bad Faith either. See December 20, 2012 article posted here on Insurance Claims and Bad Faith Law Blog.
If there had been Pennsylvania State Court decisions denying the existence of the tort under the circumstances alleged by Ms. Caserta, the decision would probably make sense. However, by reaching a decision that despite case law to the contrary, several Federal Judges decide that State law should not and would not recognize the legal existence of a tort here, the panel actually did what it said it would not do, which in the panel's own quoted words, is to form State law and not to apply it.
Merry Christmas and Happy Holidays to All in 2012, and a Happy New Year to All in the year to come!
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