J-A03002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREGORY BOLESLAVSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
TRAVCO INSURANCE COMPANY :
:
Appellee : No. 1227 EDA 2017
Appeal from the Order Entered March 16, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2015 No. 0886
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 04, 2018
Appellant, Gregory Boleslavsky, appeals from the order of the Court of
Common Pleas of Philadelphia County, which entered summary judgment in
favor of Appellee, Travco Insurance Company (“Travco”). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we will only briefly
summarize them. On September 3, 2012, Appellant was involved in a motor
vehicle accident in Brooklyn, NY, with an unknown, uninsured driver. At the
time of the accident, Appellant had a motor vehicle insurance policy
(“Policy”) with Travco. The Policy includes, inter alia, uninsured motorist
coverage benefits up to $50,000.00. The Policy provides either party may
demand arbitration when the parties are unable to reach a settlement on an
uninsured motorist claim. Appellant made a claim for uninsured motorist
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03002-18
benefits against Travco regarding the accident. Through negotiations, the
parties were unable to resolve Appellant’s claim. Travco made an initial
settlement offer in the amount of $15,000.00, which it increased to
$20,000.00 and then to $25,000.00. Appellant rejected all three offers and
indicated he would not settle the claim for less than $50,000.00. On
September 9, 2015, an arbitration hearing proceeded regarding uninsured
motorist coverage; the arbitration panel issued an award for Appellant in the
amount of $45,000.00.
Appellant sued Travco on October 12, 2015, alleging one count bad
faith. On September 13, 2016, the case proceeded to compulsory
arbitration, because Appellant sought damages less than $50,000.00 in his
complaint. The arbitrators found in favor of Travco, concluding Appellant
had failed to prove Travco engaged in bad faith.
Appellant timely appealed to the Court of Common Pleas on October 4,
2016, from the arbitration award. On February 15, 2017, Travco filed a
motion for summary judgment, which the court granted on March 16, 2017.
Appellant filed a timely notice of appeal on April 6, 2017. On April 10, 2017,
the court ordered a Rule 1925(b) statement of errors complained of on
appeal, which Appellant timely filed on April 25, 2017.
Appellant raises one issue on appeal:
WHETHER THE [TRIAL] COURT ERRED WHEN IT GRANTED
[TRAVCO’S] MOTION FOR SUMMARY JUDGMENT[?]
(Appellant’s Brief at 9).
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Appellate review of an order granting summary judgment asks us to
determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted). Our scope of review is plenary. Pappas v.
Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536
U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
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defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Daniel J.
Anders, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed August 17, 2017, at 1-9) (finding:
Travco’s summary judgment motion made clear there were no genuine
issues of material fact; Appellant failed to show Travco lacked reasonable
basis for extending Appellant settlement offers of up to $25,000.00 for
uninsured motorist benefits under Policy; difference between amount of final
settlement offer and subsequent arbitration award is immaterial for purposes
of determining if insurer’s offer lacked reasonable basis; rather, factors
insurer considers when determining amount to offer are material; record
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shows Travco considered, inter alia, Appellant’s sworn statement, type of
accident in which Appellant was involved, photographs of damage to
Appellant’s vehicle, extent of damage to vehicle, copies of Appellant’s
medical records and independent medical examination, whether Appellant
sought medical treatment after accident, medical treatment Appellant
received, and cost of Appellant’s medical treatment; Travco reasonably did
not later increase settlement offer from $25,000.00, because Appellant
unambiguously indicated he would not settle for less than $50,000.00).
Accordingly, we affirm on the basis of the trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/18
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Circulated 03/26/2018 02:33 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL
GREGORY BOLESLA VKSY 1227 EDA 2017
Plaintiff, -,,
Case No. 151000886 :·•·.·.
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TRA VCO INSURANCE COMPANY,
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OPINION ' ..
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Plaintiff Gregory Boleslavksy appeals the trial court's order granting DefendantTravco
Insurance Company's Motion for Summary Judgment. On appeal, Plaintiff argues that the trial
court abused its discretion in granting Defendant's motion. Plaintiff's Statement of Matters
Complained of on Appeal ,rt. For the reasons stated below, the Superior Court should affirm the
trial court's order.
FACTUAL BACKGROUND
On September 3, 2012, Plaintiff was involved in a motor vehicle accident in Brooklyn,
New York. Defendant's Motion for Summary Judgment 11, The other vehicle involved in the
accident fled the scene. Id. �2. At the time of the accident, Plaintiff was insured under
Defendant's motor vehicle insurance policy 988226299 (the "Policy"). Id 14. The Policy
provided Plaintiff with uninsured motorist coverage benefits up to $50,000. Id. 15.
Plaintiff claimed uninsured motorist benefits under the Policy regarding injuries that he
sustained in the September 3, 2012 accident. Id. 16. Defendant assigned Pamela Biggart to
handle Plaintiffs claim. Biggart Dep.; 12/12/16; 24 :6-12. Plaintiff and Defendant entered into
negotiations to resolve Plaintiffs claim, but they were unable to do so. Id. �7. The uninsured
motorist coverage provisions of the Policy allowed either party to demand arbitration under these
circumstances. Id. ,rs. Ex. "B" at 8.
Boleslavsky Vs Travco Insurance Cornpany-OPFLD
1111111111// IIIIIIIIIIII II II Ill
15100088600057
On October 12, 2015, Plaintiff commenced a lawsuit against Defendant in the
Philadelphia Court of Common Pleas, in which Plaintiff claimed uninsured motorist benefits and
medical benefits under the Policy. Id. ,I9. During the discovery phase of Plaintiff's uninsured
motorist claim, Plaintiff provided Defendant with a sworn statement regarding injuries that he
sustained in the September 3, 2012 accident. Id. ,Il 1. Ultimately, Plaintiff withdrew his
uninsured motorist claim and arbitrated the dispute pursuant to the Policy's provisions regarding
arbitration. Id. ,Il 0.
While handling Plaintiff's claim and before making a settlement offer, Biggart reviewed
Plaintiffs sworn statement, photographs of damage to his vehicle, copies of his medical records,
and reports from multiple independent medical examinations. Id. She confirmed that Plaintiff did
not request or refuse medical assistance at the time of the accident and that the police did not file
a report regarding the accident. Biggart Dep.; 12/12/16; 37:3-11. She reviewed the type of
accident in which Plaintiff was involved, the extent of damage to his vehicle, the medical
treatment that he received, and the cost of that treatment. Biggart Dep.; 12/12/16; 32:7-24; 33: 1-
5. She also considered whether Plaintiff received emergency treatment at the scene of the
accident, whether he required emergency transportation from the scene of the accident, whether
his vehicle was towed, whether his medical treatments were reasonable and related to his
injuries, and whether he incurred any lost wages as a result of the September 3, 2012 accident.
Defendant's Motion for Summary Judgment ,I30.
As a result of her extensive review, Biggart initially offered Plaintiff $15,000 to settle his
claim. Id. 112; Biggart Dep.; 12/12/16; 45:6. Later, Biggart increased the settlement offer to
$20,000, and then to $25,000. Biggart Dep.; 12/12/16; 45:7-11. Plaintiff rejected all of Biggart's
settlement offers. Defendant's Motion for Summary Judgment �13.
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On August 27, 2015, Plaintiff sent Defendant a letter, indicating that Plaintiff would not
settle his claim for less than $50,000, (Biggart Dep.; 12/12/16; 44:3-11 ), and that he would settle
only if Defendant made an offer within seven days ofreceipt of the letter. Defendant's Motion
for Summary Judgment � 13. After seven days had elapsed, Plaintiff informed Defendant that he
would not entertain further settlement negotiations and that he would proceed to arbitration. Id
�14.
Around the same time that Defendant received Plaintiffs letter, Biggart received
information from the Rothman Institute regarding Plaintiff's injuries. Biggart Dep.; 12/12/16;
47:3-6. After reviewing information from the Rothman Institute, Biggart increased her valuation
of Plaintiffs claim from $25,000 to $28,000. 12/12/16; 47:7-14. Biggart did not contact Plaintiff
regarding the increased valuation because Plaintiff had indicated that he would not settle for less
than $50,000. Biggart Dep.: 12/12/16; 47:20-22.
On September 9, 2015, Plaintiff and Defendant arbitrated their dispute. Id. �15. The
arbitration panel returned a verdict in Plaintiffs favor in the amount of $45,000. Id. Following
arbitration, Plaintiff filed the Complaint underlying this appeal. Id. ,16.
OISCUSSION
On appeal, Plaintiff argues that the trial court abused its discretion in granting
Defendant's motion in that "defendant knew plaintiffs case was worth in excess of its settlement
offer, evaluated the value of plaintiffs case in excess of the settlement offer but consciously
never even presented an offer to the plaintiff in accordance with its evaluation." Plaintiffs
Statement of Matters Complained of on Appeal �1.
I. Standard Of Review Of An Order Granting Summary Judgment
"Summary judgment is proper only where there is no genuine issue concerning any
material fact and the moving party is entitled to judgment as a matter of law." Ballets v.
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Pennsylvania Turnpike Commission, 123 A.3d 300, 304 (Pa. 2015). "In considering a motion for
summary judgment, the record must be viewed in the light most favorable to the non-moving
party, and all doubts as to whether a genuine issue exists are resolved against the moving party."
Id. The question of "whether there are material facts in issue and whether the moving party is
entitled to summary judgment are matters oflaw." Id. As such, the scope ofreview by the
appellate court is de nova. Id.
A non-moving plaintiff bears some evidentiary burden to survive a defense summary
judgment motion:
[a] non-moving party must adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
such that a jury could return a verdict in his favor. Failure to
adduce this evidence establishes that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter oflaw.
Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207 n. I 5 (Pa. 2009), quoting Ertel v. Patriot-News,
674 A.2d 1038, 1042 (Pa. I 996). A "plaintiff cannot survive summary judgment when mere
speculation would be required for the jury to find in plaintiffs favor .... In fact, the trial court
has a duty to prevent questions from going to the jury which would require it to reach a verdict
based on conjecture, surmise, guess or speculation." Krauss v. Trane US. Inc., 104 A.3d 556,
568 (Pa. Super. Ct. 2014) (citations omitted).
An appellate court "may disturb the trial court's order only upon an error of law or an
abuse of discretion," thus:
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner Jacking reason. Similarly, the trial court
abuses its discretion if it does not follow legal procedure.
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Cigna Corp. v. Executive Risk Indem., Inc., 111 A.3d 204, 211 (Pa. Super. Ct. 2015) (citations
omitted).
Where the discretion exercised by the trial court is challenged on appeal, the party
bringing the challenge bears a heavy burden:
[I]t is not sufficient to persuade the appellate court that it might
have reached a different conclusion if ... charged with the duty
imposed on the court below; it is necessary to go further and show
an abuse of the discretionary power. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias
or ill will, as shown by the evidence or the record, discretion is
abused.
Nat'!. Cas. Ins. Co. v. Kinney, 90 A.Jd 747, 752-53 (Pa. Super. Ct. 2014).
2. An Insurer Owes Its Insureds A Duty Of Good Faith
Under Pennsylvania law, an insurer owes its insureds a duty of good faith. Condio v. Erie
Ins. Exch., 899 A.2d 1136, 1144-45 (Pa. Super. Ct. 2006). The Superior Court elaborated:
Pennsylvania law holds insurers to a duty of good faith and fair
dealing toward their insureds ... without distinguishing between
first party and third party settings ... This duty does not allow
fill insurer to protect its own interests at the expense of its insured's
interests. Nor does it require an insurer to sacrifice its own interests
by blindly paying each and every claim submitted by an insured in
order to avoid a bad faith lawsuit.
Once an insurer identifies a reasonable foundation for denying a
claim, it is not relieved of its duty of good faith and fair dealing ...
In other words, 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.'
Id. (internal citations omitted).
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3. An Insurer Does Not Act In Bad Faith By Making An Offer To
Settle A Plaintiff-Insured's Claims, Where The Insurer's Offer Is Reasonably
Based And Where The Insurer Has Not Acted With An Improper Purpose
To maintain a bad faith claim against an insurer, the insurer's conduct must have
breached the duty of good faith. Terletsky v. Prudential Prop. and Casualty Ins. Co., 649 A.2d
680, 688 (Pa. Super. Ct. 1994 ). More specifically, in a claim of bad faith against an insurer, a
plaintiff must show by clear and convincing evidence that the insurer: (1) did not have a
reasonable basis for denying benefits under the applicable insurance policy, and (2) knew or
recklessly disregarded its lack of reasonable basis in denying the claim. 1 Condio, 899 A.2d at
1143.
Bad faith claims are fact specific and depend upon the insurer's conduct vis a vis the
insured. Id To constitute bad faith, it is not necessary that an insurer's conduct be fraudulent. Id.
However, mere negligence or bad judgment by the insurer is not bad faith. Id. In the absence of
evidence of a dishonest purpose or ill-will, it is not bad faith for an insurer to take a stand to
aggressively investigate and protect its interests in the normal course of litigation, as long as the
insurer has a reasonable basis for doing so. O'Donnell ex rel. Mitro v. Allstate Ins., Co., 734
A.2d 901, 910 (Pa. Super. 1999).
Regarding the making of a settlement offer, an insurer that makes a low but reasonable
estimate of a plaintiff's loss does not act in bad faith in making a settlement offer based upon its
estimation. Terletsky, supra at 688-99. In Terletsky, the plaintiffs were involved in a motor
vehicle accident with an uninsured motorist. Id. at 681. Following the accident, the plaintiffs
filed two insurance claims against their insurer. Id. After the insurer conducted independent
medical examinations of the plaintiffs, it offered the plaintiffs $40,000 for their first claim and
1
The elements of a bad faith claim are conjunctive. Therefore, Plaintiff needed to come forward with sufficient
evidence on both elements of the bad faith claim. Here, Plaintiff failed to do so with regard to the first element of his
bad faith claim ..
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$17,500 for their second claim. Id. at 682. Plaintiffs' counsel then demanded $100,000 for each
claim. Id. At arbitration, the plaintiffs received awards of $125,000 for each claim Id. Following
arbitration, the plaintiffs filed a lawsuit against the insurer, claiming that the insurer had made its
initial settlement offers in bad faith. Id. at 683. The plaintiffs argued that the difference between
the insurer's initial offers and the arbitration awards indicated that the insurer made the initial
offers in bad faith. Id. The trial court agreed with the plaintiffs, concluding that the insurer acted
in bad faith in making the initial settlement offers. Id.
On appeal, the Superior Court reversed the trial court, concluding that the insurer had not
acted in bad faith because its initial offers were reasonably based. Id. at 689. In reaching this
conclusion, the Superior noted that the insurer "took into account many factors in determining
the offers." Id. Those factors included the content and availability of information regarding the
plaintiffs' medical treatment, a police report regarding the accident, and damage to the plaintiffs'
vehicle. Id.
4. Plaintiff Did Not Produce Clear And Convincing Evidence That
Defendant's Initial Settlement Offers Lacked A Reasonable Basis
Here, Defendant's motion for summary judgment provided specific evidence that there
were no genuine issues of material fact and that it was entitled to judgment as a matter oflaw.
The trial court determined that, in response to Defendant's motion for summary judgment,
Plaintiff failed to produce any evidence on the first element of his bad faith claim such that a jury
could award a verdict in his favor.
In his response to Defendant's motion for summary judgment, Plaintiff cited to the fact
that Biggart' s final settlement offer of $25 ,000 was approximately 50 percent of the value of the
$45,000 arbitration award. Plaintiffs Response to Defendant's Motion for Summary Judgment.
,r,r 40-42. Plaintiff also cited to Defendant's failure to notify Plaintiff - after he unequivocally
stated to Defendant that he would not accept any offers less than $50,000 - that Biggart
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increased her valuation of Plaintiffs claim from $25,000 to $28,000. Plaintiffs Statement of
Matters Complained of on Appeal 11. ("Defendant knew plaintiffs case was worth in excess of
its settlement offer, evaluated the value of plaintiffs case in excess of the settlement offer but
consciously never even presented an offer to the plaintiff in accordance with its evaluation.").
As in Terletsky, these facts are insufficient to prove that Defendant's initial offers lacked
a reasonable basis. More specifically, for the purpose of determining whether an initial
settlement offer by an insurer lacks a reasonable basis, the difference between the amount of the
settlement offer and any subsequent arbitration award is immaterial. Instead, what is relevant is
the information that the insurer takes into account in determining what amount to offer.
Defendant, through Biggart, took into account the same kind of information as the defendant in
Terletsky, as well as additional claims and policy related information prior to making its
settlement offers. Defendant's Motion for Summary Judgment �10, ,r 30; Biggart Dep.; 12/12/16;
37:3-11; 33: 1-5. Defendant's offers were not arbitrary low-ball offers but rather were the result
of a considered analysis of the relevant information regarding Plaintiff's claim including - inter
alia - Plaintiffs sworn statement, photographs of damage to his vehicle, copies of his medical
records, and reports from multiple independent medical examinations, whether she sought
medical treatment, the type of accident in which Plaintiff was involved, the extent of damage to
his vehicle, the medical treatment that he received, and the cost of that treatment.
Similarly, Defendant acted reasonably when it decided not to contact Plaintiff regarding
the increased valuation of Plaintiff's claim from $25,000 to $28,000 following receipt of
information from the Rothman Institute. As explained by Biggart, Defendant did not provide
another offer to Plaintiff because Plaintiff had already unambiguously indicated that he would
not settle for less than $50,000. Biggart Dep.: 12/12/16; 47:20-22.
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CONCLUSION
Based upon the foregoing analysis, the Superior Court should affirm the trial court's
order granting Defendants' Motion for Summary Judgment.
DAN EL J. ANDERS, JUDGE
Dated: August 1 7, 2017
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