Sartain, D. v. United Services Automobile



 DAVID SARTAIN, II,                      :   IN THE SUPERIOR COURT OF
 MARY E. RIEKER, DECEASED                :
              v.                         :
 UNITED SERVICES AUTOMOBILE              :   No. 4 WDA 2020
 ASSOCIATION                             :
                   Appellant             :

           Appeal from the Judgment Entered December 2, 2019
    In the Court of Common Pleas of Blair County Civil Division at No(s):
                              2003 GN 4152

 DECEASED                                :
                   Appellant             :
              v.                         :
                                         :   No. 5 WDA 2020
 ASSOCIATION                             :

           Appeal from the Judgment Entered December 2, 2019
    In the Court of Common Pleas of Blair County Civil Division at No(s):
                              2003 GN 4152


MEMORANDUM BY McLAUGHLIN, J.:                   FILED FEBRUARY 04, 2021

     United Services Automobile Association (“USAA”) appeals from the

judgment entered in favor of David Sartain II, the administrator of the estate

of the late Mary E. Rieker, in Sartain’s action for bad faith. USAA challenges

the sufficiency and weight of the evidence and the trial court’s grant of

Sartain’s motion for a protective order. Sartain cross-appeals, asserting the

trial court abused its discretion in refusing to award punitive damages. We


       The instant bad faith action arose from USAA’s handling of Rieker’s

underlying claim for underinsured motorist benefits (“UIM”). The facts are as

follows.1 On July 4, 2000, Rieker was driving down a hill on Logan Boulevard

when she struck the rear of a vehicle driven by Michael Taylor. Taylor had

pulled onto a grassy area to await the start of fireworks, and had just backed

onto the roadway when Rieker struck him from behind. Rieker sustained

injuries to her neck and back and she required psychological treatment,

medication, physical therapy, and multiple surgeries. She also missed periods

of work. Rieker obtained liability benefits from Taylor’s insurer, Nationwide,

which in 2001 paid Rieker the policy limit of $50,000.

       Rieker’s vehicle was insured by USAA Casualty Insurance Company

(“CIC”), which is a subsidiary of USAA. A CIC adjuster interviewed Rieker and

Taylor a few days after the accident, on July 6 and 7, 2000, respectively. CIC

concluded that Taylor was at fault for the collision. In a letter to Taylor, CIC

stated that an independent witness had confirmed that Taylor had backed onto

the roadway in front of Rieker’s vehicle, and that the police had cited Taylor


1We view the evidence and all reasonable inferences therefrom in the light
most favorable to the verdict winner. Berg v. Nationwide Mut. Ins. Co.,

235 A.3d 1223

, 1228 (Pa. 2020).


for limitations on backing. CIC paid Rieker her UIM policy limit of $100,000 in


        Then, in February 2003, Rieker sought UIM benefits under her mother’s

USAA policy, which had a UIM limit of $600,000. CIC’s claims adjustors also

handle claims for USAA, and USAA had access to CIC’s investigation into the

crash. USAA valued Rieker’s injuries at $200,000, and in March 2003, offered

Rieker $50,000, the balance after considering the $150,000 she had already

obtained from the Nationwide and CIC policies.

        In October 2003, Rieker commenced the instant bad faith action against

USAA. The parties stipulated that Rieker would withhold filing a complaint until

the underlying UIM claim was resolved. In the meantime, USAA paid Rieker

$50,000, as an undisputed amount due.

        Approximately a month later, in November 2003, a psychologist, Dr.

Catherine Spayd, diagnosed Rieker with post-traumatic stress disorder

(“PTSD”) attributable to the 2000 accident. Rieker continued to undergo

treatment for her physical and psychological injuries and was unable to work.

She provided records of her diagnoses and expenses to USAA. USAA sent a

letter to Rieker in April 2004, stating that because it had not received Dr.

Spayd’s report – which it had, in fact, already received – it “must assume this

psychological component of [Rieker’s] problems is not related to the accident.”

Letter from USAA, 4/27/04. The letter stated USAA would continue to value

the claim at $200,000, and that it was initiating arbitration.


      USAA retained Louis Schmitt, Esquire, as outside counsel for the

arbitration. USAA told Attorney Schmitt in a May 2004 letter that its

investigation was complete and that it had found Taylor wholly liable, and

Rieker not liable. However, Attorney Schmitt responded in November 2004

that, after speaking with Taylor, his position was that Rieker was at fault for

the accident. He stated he had spoken with Taylor by telephone and Taylor

had said that he estimated Rieker’s speed before the crash to be 70 mph.

Attorney Schmitt stated that Taylor reported that he was stopped when Rieker

hit him and that Rieker left 70 feet of skid marks on the road. Attorney Schmitt

said Taylor told him that he had conducted a personal experiment and was

unable to recreate 70 feet of skid marks, even when traveling faster than 40

miles per hour, the speed Rieker had claimed to have been driving. Attorney

Schmitt advised USAA that he believed an arbitrator might find Taylor’s

version of events credible, in light of a police report also stating that Rieker’s

vehicle had left 70 feet of skid marks. USAA never had an expert, such as an

accident reconstruction expert, conduct an analysis to determine Rieker’s


      USAA responded to Attorney Schmitt in December 2004, agreeing that

Rieker may have had some degree of comparative negligence, although

perhaps not more than 50%. But, by 2005, USAA had taken the position that

Rieker was wholly liable.

      Shortly before arbitration was to begin, in January 2005, USAA filed a

declaratory judgment action regarding Rieker’s ability to claim damages in


excess of the policy’s UIM limit or argue bad faith during the UIM arbitration.

Arbitration was stayed while the action was pending. The trial court dismissed

the declaratory judgment action on preliminary objections. It concluded that

the amount of damages was for the arbitrator and that Rieker had not

submitted a bad faith claim for the UIM arbitration. USAA later further delayed

arbitration by requesting evidence of Rieker’s subsequent motor vehicle

accidents, fall-downs, alcoholism, and depression.

      Rieker’s UIM claim finally went to arbitration in 2013, and the arbitrator

found for Rieker. The arbitrator found that Rieker had not committed

comparative negligence, valued her injuries at $598,888.33, and awarded her

$398,888.33, the balance after the $200,000 she had already received.

      With the UIM claim finally resolved, the bad faith action resumed and in

October 2013, Rieker filed a complaint. Rieker passed away in August 2014.

Sartain is her son, and, as administrator of her estate, replaced her as plaintiff.

      USAA served a “First Request for Admissions” on Sartain. Sartain moved

for a protective order. The court granted the motion in part, and ruled Sartain

would not have to respond to USAA’s request for admissions regarding

Rieker’s “post-denial” conduct — that is, anything Rieker did after USAA’s April

2004 initiation of arbitration, which the court treated as the “denial” of Rieker’s

UIM claim. The court concluded that Rieker’s conduct after USAA commenced

arbitration was not relevant to whether USAA had acted in bad faith in denying

the claim. Opinion and Order, 2/22/16, at 7.


      The bad faith case went to a bench trial in 2018. Sartain called a USAA

representative, Scott Myers, as the sole witness in plaintiff’s case, and

examined him as if on cross. USAA also called Myers as a witness, as well as

Attorney Schmitt.

      Sartain contended that USAA had acted in bad faith by changing its

position on Rieker’s negligence based solely on Attorney Schmitt’s assessment

of Taylor’s credibility. Sartain argued USAA should have realized that Taylor

was not credible because some of his statements contradicted his 2000

interview with CIC, to which USAA had access. Sartain also argued USAA had

acted in bad faith by refusing to consider Rieker’s ongoing need for

psychological treatment, and by failing to investigate the accident fully by

interviewing the investigating law enforcement officer before the arbitration

hearing or hiring an accident reconstruction expert. Sartain further maintained

that USAA had prolonged the UIM proceedings in order to reevaluate the claim

selectively, after learning of Rieker’s substance abuse and falls subsequent to

the 2000 accident.

      USAA responded that it relied on Attorney Schmitt’s advice in taking the

position that Rieker was negligent, based on Attorney Schmitt’s 2004

interview with Taylor. It further argued that it had fully investigated the

accident, including through its access to the records of CIC’s investigation,

and that it had never intended to stall the UIM proceedings by filing the

declaratory judgment action or seeking information to clarify the damages

attributable to the 2000 accident.


      The court found USAA had acted recklessly and without a reasonable

basis in continually valuing Rieker’s claim at $200,000. Trial Court Op. at 11,

18. The court found that USAA had improperly failed to reevaluate the claim

to consider Rieker’s psychological damages. The court pointed out that USAA

told Rieker it would not consider her claim for psychological injuries because

Rieker had not provided documentation of her PTSD diagnosis, when USAA

admitted at trial that it had received the medical records.

Id. at 13-14, 16.

      Next, the court considered USAA’s change of position on liability. The

court noted that as of March 2003, USAA had not found any negligence on the

part of Rieker, and that USAA sent correspondence to its counsel in May 2004,

stating that its investigation was complete and that it deemed Taylor wholly

liable. However, counsel responded in November 2004 that, after speaking

with Taylor, his position was that Rieker was at fault. USAA responded in

December 2004, agreeing that Rieker may have had some degree of

comparative negligence, although perhaps not more than 50%. By March

2005, USAA had changed position to claim that Rieker was wholly liable.

      The court noted that although USAA had relied on its counsel’s advice

that if the arbitrator found Taylor to be credible, USAA could prove Rieker was

at fault, the arbitrator had found Taylor “was neither consistent, nor credible.”

Id. at 17.

The trial court stated that although the arbitrator’s decision did not

bind it, it recognized that the arbitrator was a “neutral, detached fact-finder”

and had not found Rieker comparatively negligent at all.

Id. at 12.The


added that, in awarding Rieker nearly $600,000, the arbitrator had


determined that Rieker had suffered substantial injuries.

Id. The court concluded

that USAA’s change of position on liability “represents a significant

failure by [USAA] in their ongoing responsibility to investigate and reconsider

[its] position during [its] entire management of the claim.”

Id. at 15.

      The court found that USAA’s refusal to assign Rieker’s claim a higher

valuation “was done with a purpose motivated by self-interest.”

Id. at 16.


court pointed out that although USAA had in its possession documentation of

Rieker’s psychological damages, it failed to take that evidence into account.

The court further concluded that USAA had failed to perform appropriate

investigation and follow-up. It noted that USAA did not contact the

investigating law enforcement officer until the arbitration hearing, or hire a

reconstruction expert. The court also found that USAA prolonged the UIM

proceedings by filing a declaratory judgment action in order to reevaluate the

claim selectively in light of Rieker’s substance abuse and subsequent falls.

      As damages, the court awarded Sartain $24,650 in attorneys’ fees in

connection with the instant case, $125,000 for attorneys’ fees in connection

with the underlying UIM claim, and $125,000 in accrued interest. The court

denied Sartain’s claim for punitive damages. USAA filed a post-trial motion for

judgment notwithstanding the verdict and a new trial, and Sartain filed a post-

trial motion arguing the denial of punitive damages was against the weight of

the evidence. The court denied both motions.

      The parties filed cross-appeals, which we have consolidated. USAA

raises the following issues:


      1. Whether the trial court erred or abused its discretion in denying
      USAA’s motion for JNOV and a new trial where the verdict was not
      supported by sufficient evidence insofar as [Sartain] failed to
      prove by clear and convincing evidence that [USAA] acted in bad
      faith and where the trial court’s findings of fact and conclusions of
      law are otherwise against the weight of the evidence[.]

      2. Whether the trial court erred or abused its discretion in granting
      in part [Sartain]’s motion for protective order on the basis that
      [USAA]’s request for admissions sought admissions regarding the
      insured’s “post-denial” conduct.

USAA’s Br. at 7. Sartain raises a third issue:

      3. Based upon the evidence supporting the finding of bad [faith]
      was the trial court’s denial of punitive damages an error of law
      and/or abuse of discretion such that it shocks one’s sense of

Sartain’s Br. at 2.

                                 I. Bad Faith

      USAA makes three arguments that the evidence does not support the

trial court’s determination that its handling of Rieker’s UIM claim amounted to

bad faith. It maintains that when viewed in the context of “all the facts and

circumstances,” its handling of her claim was “not so unreasonable” as to

amount to bad faith as a matter of law. USAA’s Br. at 9.

      It first argues that the record does not support the conclusion that it

acted in bad faith by failing to investigate the accident properly. USAA points

out that, according to its witnesses, it did not interview the responding police

officer until the arbitration hearing because he did not observe the accident

and his findings were in the police report, which USAA did review. USAA also

maintains that it had the CIC adjuster’s interviews of Rieker and Taylor from


a few days after the accident. See

id. at 13, 16.2

USAA states that it was

unable to hire a reconstruction expert by the time of arbitration because too

much time had passed and there were no photographs of the accident scene.

USAA contends that its investigation was at most negligent, which is

insufficient to prove bad faith.

       Second, USAA argues the evidence does not support the conclusion that

it acted in bad faith by changing its position on liability, by first finding that

Rieker was not at fault and then deciding that she was. USAA argues it

changed its position on the advice of counsel, whom it did not retain for the

UIM case until 2004. Attorney Schmitt relied on his conversations with Taylor,

who was “very adamant that he was not at fault for the accident,” and the

police report referencing 70 feet of skid marks left by Rieker’s vehicle at the


Id. at 62.

Although the arbitrator ultimately did not believe Taylor’s

testimony, the court should not have relied on that fact in concluding that

USAA had no reasonable basis for proceeding to arbitration and pursuing a

liability defense.

       Third, USAA argues the evidence does not support the determination

that it acted in bad faith by valuing the claim at $200,000 throughout the

dispute. USAA argues that although it stated in a 2004 letter that it would not


2 USAA’s brief elsewhere states that it was USAA that conducted the interviews
of Rieker and Taylor. See USAA’s Br. at 57. It is not clear, but it appears that
the CIC adjuster who interviewed Rieker and Taylor also handled claims for
USAA and USAA had access to his interviews when evaluating Rieker’s UIM
claim. See

id. at 16. – 10 –


consider any psychological damages because USAA had not received the

related records, that letter was sent in error, and does not prove that USAA

disregarded psychological damages during the entire pendency of the UIM

claim. USAA argues that its valuation was reasonable considering that Rieker’s

treatments after 2006 were due to subsequent motor vehicle accidents. USAA

further argues that it was entitled to base its valuation on its determination of

liability. USAA contends that it reduced the value of the claim “by the potential

comparative negligence of the insured.” USAA’s Reply Br. at 28. USAA argues

that even if it undervalued the claim, there was no clear and convincing

evidence that it did so out of ill will, or without reasonable basis.

      Our standard of review of the trial court’s verdict is as follows.

      Our review in a nonjury case is limited to whether the findings of
      the trial court are supported by competent evidence and whether
      the trial court committed error in the application of law. We must
      grant the court’s findings of fact the same weight and effect as
      the verdict of a jury and, accordingly, may disturb the nonjury
      verdict only if the court’s findings are unsupported by competent
      evidence or the court committed legal error that affected the
      outcome of the trial. It is not the role of an appellate court to pass
      on the credibility of witnesses; hence we will not substitute our
      judgment for that of the factfinder. Thus, the test we apply is not
      whether we would have reached the same result on the evidence
      presented, but rather, after due consideration of the evidence
      which the trial court found credible, whether the trial court could
      have reasonably reached its conclusion.

Mohney v. Am. Gen. Life Ins. Co., 

116 A.3d 1123

, 1130 (Pa.Super. 2015)

(quoting Hollock v. Erie Insurance Exchange, 

842 A.2d 409

, 413-14

(Pa.Super. 2004) (en banc)). Ultimately, “[w]hen an insured obtains a bad

faith verdict in a bench trial, appellate courts should only reverse in the most

                                      - 11 -

egregious of cases when the trial court has committed reversible error.” 

Berg, 235 A.3d at 1229


        “The analysis of an insurance bad faith claim ‘is dependent on the

conduct of the insurer, not its insured.’” 

Mohney, 116 A.3d at 1138


Rhodes v. USAA Cas. Ins. Co., 

21 A.3d 1253

, 1261 (Pa.Super. 2011)).

Because “bad faith” in this context stems from the duty of good faith and fair

dealing implied in every insurance contract, the plaintiff need not prove the

insurer acted with self-interest or ill-will. 

Berg, 235 A.3d at 1232

. In order to

prevail under the bad faith statute, 42 Pa.C.S.A. § 8371,3 “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.” Rancosky

v. Washington Nat’l Ins. Co., 

170 A.3d 364

, 365 (Pa. 2017).

        An action for bad faith is not restricted to the outright denial of a claim,

but rather encompasses “all instances of bad faith conduct by an insurer.”


3   The statute provides:
        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:
           (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.A. § 8371.

                                          - 12 -

Rancosky v. Washington Nat. Ins. Co., 

130 A.3d 79

, at 94 (Pa.Super.

2015) (quoting 

Hollock, 842 A.2d at 415

). This includes a lack of good faith

investigation, as well as “evasion of the spirit of the bargain, lack of diligence

and slacking off, willful rendering of imperfect performance, abuse of a power

to specify terms, and interference with or failure to cooperate in the other

party’s performance.”

Id. at 94.

An insurer must make a timely investigation

in response to the claim, and not just for arbitration. See Grossi v. Travelers

Pers. Ins. Co., 

79 A.3d 1141

, 1154 (Pa.Super. 2013). Indeed, an insurer

must reevaluate a claim when presented with new information. See

Rancosky, 130 A.3d at 96-97

(citing Condio v. Erie Ins. Exch., 

899 A.2d 1136

, 1145 (Pa.Super. 2006), and 

Hollock, 842 A.2d at 413


      An insurer’s mere negligence does not constitute bad faith, and an

insurer may make a low estimate of an insured’s claim, so long as it has a

reasonable basis. Brown v. Progressive Ins. Co., 

860 A.2d 493

, 501

(Pa.Super. 2004). However, an insurer has committed bad faith where it

“acted in a dilatory manner, and forced the insured into arbitration by

presenting an arbitrary ‘low-ball’ offer which bore no reasonable relationship

to the insured’s reasonable medical expenses,” particularly where the “low-

ball” offer proved to be significantly lower than the arbitration award. Id.

(citing Hollock, 

842 A.2d 409


      The evidence here supports the trial court’s findings of fact and we find

no error of law. USAA never changed its valuation of Rieker’s claim during the

ten years between Rieker’s submission of her UIM claim to USAA and the

                                     - 13 -

arbitration, despite mounting evidence that Rieker’s damages surpassed

$200,000. Although USAA argues that it did so because it found Rieker to be

partially, and then wholly, at fault, the evidence does not show that its

valuation of the claim hinged on Rieker’s alleged comparative negligence.

       Certainly, an insurer may reduce its valuation of a claim in proportion

to what it considers to be the insured’s comparative liability, so long as it has

a reasonable basis for doing so. See Terletsky v. Prudential Prop. & Cas.

Ins. Co., 

649 A.2d 680

, 689 (Pa.Super. 1994) (affirming trial court’s finding

that insurer had reasonable basis for offering 50 percent of the value of the

claim where insurer had reasonable basis for assessing probable liability at 50

percent). Here, however, the evidence shows that as USAA’s position on

liability evolved, its valuation of the claim did not change. Rather, it put a

$200,000 value on Rieker’s claim from the outset, failed to consider evidence

of her psychological damages, refused to modify the valuation, and now cites

subsequent developments to justify its failure to adjust the valuation in light

of the information it disregarded. That it may not have failed to consider the

evidence and adjust the valuation purposefully or because of ill will does not

undermine the trial court’s conclusion, as Rieker did not need to prove such

states of mind. 

Berg, 235 A.3d at 1232



4 See also Greene v. United Servs. Auto. Ass’n, 

936 A.2d 1178

, 1190–91
(Pa.Super. 2007); Nordi v. Keystone Health Plan W. Inc., 

989 A.2d 376

385 (Pa.Super. 2010).

                                          - 14 -

      Moreover, USAA did not change its determination of liability until

preparing for arbitration. See 

Grossi, 79 A.3d at 1154

. Although its failure to

interview the responding police officer might not be sufficient to prove bad

faith, standing alone, the trial court merely considered this point as one

indication that USAA had not properly investigated the accident. That USAA

was unable hire a reconstruction expert for arbitration because too much time

had passed is further indicative that it did not make adequate inquiry into the

accident in a timely manner. The record supports the trial court’s finding that

USAA acted in bad faith in its handling of Rieker’s claim. 

Berg, 235 A.3d at 1229

, 1232.

                           II. The Protective Order

      USAA argues the trial court abused its discretion in granting Sartain’s

motion for a protective order. USAA argues the court erred in relying on

Mohney, as USAA had not sought admissions regarding Rieker’s privileged

communications with her attorney, or attempted to shift the focus of the case

to Rieker’s conduct. Rather, USAA argues, it tailored its requests to the

allegations of Rieker’s Complaint, which spanned the full period from 2000 to

2013. USAA also argues Mohney dealt with the admissibility of evidence, not

discovery. USAA contends that because of the discovery limitations, USAA

could not move for summary judgment, and did not see much of Sartain’s

evidence until the time of trial.

      “Generally, on review of an order concerning discovery, an appellate

court applies an abuse of discretion standard.” McNeil v. Jordan, 

894 A.2d

15 -

1260, 1268 (Pa. 2006). However, our review of any question of law is plenary.

Id. An appellant that

fails to show prejudice has failed to show an abuse of

discretion. Commonwealth v. Ogrod, 

839 A.2d 294

, 323 (Pa. 2003). A party

sustains prejudice in the discovery context when it establishes that there has

been “a substantial diminution of [its] ability to properly present its case.”

Stewart v. Rossi, 

681 A.2d 214

, 219 (Pa.Super. 1996) (quoting McSloy v.

Jeanes Hosp., 

546 A.2d 684

, 687 (Pa.Super. 1988)).

      USAA has failed to show that the court abused its discretion in granting

the protective order. USAA has not specified what evidence it sought under

the admissions requests that it did not receive, and how that alleged evidence

would have affected its case. USAA does not explain which of Sartain’s

evidence surprised it at trial, or argue how it would have changed its defense

if it had been aware of that evidence sooner. USAA has therefore failed to

show how the court abused its discretion in ruling that Sartain did not have to

respond to any admissions requests regarding Rieker’s post-denial conduct.

                           III. Punitive Damages

      Sartain argues the court abused its discretion in failing to award punitive

damages. According to Sartain, USAA is worth $30 billion, and an award

without punitive damages will not have a deterrent effect on such a large

company. Sartain claims punitive damages were in order because USAA

disregarded overwhelming evidence of Rieker’s damages, and did not base its

liability theory on any legitimate investigation. Sartain also argues that

because USAA delayed the UIM case with a frivolous declaratory judgment

                                     - 16 -

action, Rieker was unable to see the resolution of the bad faith case and

improve her quality of life before she died.

      “Punitive damages may be awarded for conduct that is outrageous,

because of the defendant’s evil motive or his reckless indifference to the rights

of others.” Hutchison ex rel. Hutchison v. Luddy, 

870 A.2d 766

, 770 (Pa.

2005) (citations omitted). Although the bad faith statute allows for punitive

damages, “a finding of bad faith does not compel an award of punitive

damages,” and punitive damages are awarded at the discretion of the trial


Hollock, 842 A.2d at 419


      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.

Grossi, 79 A.3d at 1163


      Although the court found USAA acted in bad faith, and awarded

attorneys’ fees and interest accordingly, we cannot say that it abused its

discretion in not awarding punitive damages. The evidence was not such that

we conclude that the court’s decision was manifestly unreasonable or the

result of partiality, prejudice, bias, or ill will. We therefore affirm.

      Judgment affirmed.

                                       - 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 2/04/2021

                          - 18 -

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