In Winner v. Progressive Adv. Ins. Co., No. 23-1273, 2023 WL 8283176 (E.D. Pa. Nov. 30, 2023), the Court was faced with various motions including the policyholder-plaintiff's motion to remand.
The plaintiff was injured in an automobile accident and sued the tortfeasor. Approaching the successful end of settlement negotiations with the tortfeasor in the underlying case, the plaintiff contacted his Underinsured Motorist carrier and asked it to open a UIM claim.
Before investigating the UIM claim, the adjuster assigned to it contacted the tortfeasor's attorney and informed him that the plaintiff had been involved in a subsequent automobile accident. From the record, it does not appear that she, the adjuster, informed the tortfeasor's lawyer that only property damage was the result of the subsequent accident; the plaintiff incurred no personal injury in the later accident.
The tortfeasor's lawyer immediately asked the underlying Court for further discovery time in order to investigate the circumstances of the second accident.
The plaintiff sued his UIM carrier, the adjuster, and her supervisor in Pennsylvania State Court for bad faith and alleged violations of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, among other things. The defendants removed the case to Federal Court, where the defendants argued that the plaintiff had fraudulently joined both the adjuster and the supervisor. The plaintiff claimed that it was an actionable unfair trade practice for the adjuster and her supervisor allegedly to interfere with his negotiations with the underlying defendant in order to improve the carrier's defense of a UIM claim.
The Federal Court agreed. Although diversity of citizenship was lacking, as the plaintiff and the adjuster and the supervisor were all residents of Pennsylvania, the carrier argued that the case should still stay in Federal Court if the adjuster and the supervisor were fraudulently joined. The Federal Court held after a complete review of the available record that a Pennsylvania State Court would almost certainly entertain a UTPCPL claim against the adjuster and her supervisor in this case:
The Court grants Plaintiff's Motion to Remand on the bases that Mr. Winner stated a colorable claim under the UTPCPL against Ms. Burke [the adjuster] and Mr. Haeflein [her supervisor]; that Ms. Burke and Mr. Haeflein are not fraudulently joined solely because of their roles as claims adjusters; and that dismissing Mr. Winner's claims at this stage is premature. The Court finds that the allegations that Defendants Burke and Haeflein intentionally interfered with Plaintiff's settlement negotiations prior to any investigation or decision on the UIM claim, for the purpose of artificially reducing Progressive's financial responsibility, states a colorable claim under the UTPCPL. As such, Defendants Burke and Haeflein were properly joined. The Court therefore lacks jurisdiction and must remand the action to state court.
Winner, 2023 WL 8283176, at *1.
The moral is to choose carefully where you argue, when you argue, and what you argue.
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