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HomeMy WebLinkAbout02-5927EDWiN DUFFUS, Plaintiff VS. PROGRESSIVE iNSURANCE COMPANY, Defendant : iN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 02-5'~2,2~ Civil : : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED iN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Phone: (800) 990-9108 or (717) 249-3166 EDWiN DUFFUS, Plaintiff VS. PROGRESSIVE iNSURANCE COMPANY, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 02- '~'q'~TCivil : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF'S COMPLAINT AND NOW comes the Plaintiff, Edwin Duffus, by and through his attorney, Leslie M. Fields, Esquire, and respectfully represents as follows in support of this Complaint: Back~tions 1. Plaintiff, Edwin Duffus, is an adult individual residing at 212 North West Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Progressive Insurance Company, is authorized to do and doing business in Pennsylvania as an insurance company, with a local office located at 5053 Ritter Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. At all times relevant herein, Defendant, Progressive Insurance Company, had an automobile policy covering one Timothy Atkins, an adult individual residing at 121 Shirksville Road, Jonestown, Lebanon County, Pennsylvania 17038, who is the husband of Laura Atkins. (Defendant has a copy of the policy and therefore it will not be included as an exhibit.) 4. The underlying automobile-bicycle accident giving rise to this action took place on or about September 21, 2001, at approximately 3:54 p.m., at the Sunoco gas station located at 680 North Hanover Street, near its intersection with Clay and North East Streets, in the borough of Carlisle, Cumberland County, Pennsylvania. 5. At the aforesaid time and place, Plaintiff, Edwin Duffus, was operating his bicycle and traveling southbound on North Hanover Street when Laura Atkins, operating a motor vehicle and -2- also traveling southbound on North Hanover Street, attempted to make a righthand turn into the aforesaid Sunoco gas station and struck Plaintiff and his bicycle, thereby causing severe injuries and damages including, but not limited to: (a) low back pain with lumbar radiculopathy; (b) worsening of disc hemiations; (c) foraminal compromise bilaterally; (d) vertebral disc deformities; and (e) multiple abrasions and bruises. 6. At the time of the aforesaid accident, Plaintiff was gainfully employed by the Comfort Suites hotel located at I0 South Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013; however, because business was slow, PlaintifI~s hours were limited and he was receiving partial unemployment benefits. 7. As a direct and proximate result of the aforesaid accident, Plaintiff was no longer able to work at all and hence could no longer receive partial unemployment benefits. 8. Under the terms of its automobile insurance policy with its insured, Defendant was required to pay the Plaintiff wage loss and other benefits for the injuries and damages he sustained as a result of the accident. 9. Defendant, however, rather than reimbursing the Plaintiff at the same level he was receiving prior to the accident (wages and partial unemployment benefits combined), reimbursed him based on the average number of hours worked prior to his disability, which was significantly less than 40 hours per week on average. 10. As a result of way in which Defendant paid wage loss benefits to the Plaintiff, the Plaintiff did not receive the same amount of wage-related benefits that he was receiving prior to the accident (wages and partial unemployment benefits combined), and was deprived of the difference, that is, the amount he had been receiving from his partial unemployment benefits. -3- 11. Defendant had the duty under the terms of its insurance policy with its insured to reimburse the Plaintiff fully for his loss of wages, that is, fully compensating him for his wage- related loss. 12. By paying wage loss benefits based on an average of the number of hours the Plaintiffworked as opposed to the total amotmt of wage-related compensation the Plaintiff was receiving at the time of the accident, the Defendant has breached its duty to provide insurance coverage to the Plaintiff, who owned no car or otherwise was covered by a auto policy. 13. Despite repeated demands by the Plaintiff for full wage-loss compensation, the Defendant has refused. 14. In addition, under the terms of its insurance policy, the Defendant required that the Plaintiff undergo an independent medical examination (IME) which he did on August 1, 2002. 15. Following the IME, the Defendant's physician informed the Plaintiff although he was currently still disabled and undergoing lumbar epidural injections, that prospectively as of September 21, 2002, the Plaintiff would no longer be disabled at all. 16. As a result of the examination and opinion of the Defendant's physician, the Defendant has terminated all benefits to the Plaintiff. 17. The Plaintiff remains partially disabled, contrary to the opinion of the Defendant's physician, and is not able to resume full-time employment as a result of the injuries caused by the Defendant's insured. COUNT I - 42 Pa.C.S.A. § 8371 et seq. STATUTORY BAD FAITH PLAiNTIFF v. DEFENDANT 18. The averments made in paragraphs 1 through 17 above am hereby incorporated by reference as if set forth in full. 19. Defendant has engaged in a course of conduct and/or a series of acts which comprise bad faith and (a) (b) are also statutorily prohibited by 42 Pa.C.S. § 8371 et seq., in that it has, inter alia: misr.el~resented pertinent facts and/or policy and/or contract provisions relating to the coverage, including but not limited to providing only partial coverage to the Plaintiff on the claim and then unreasonably terminating all benefits to him prematurely; failed to acknowledge and act promptly upon written and/or oral communications with respect to Plaintiffs claim arising under the contract and/or policy, including but not limited to refusing to provide the Plaintiffwith full wage loss benefits and unreasonably terminating all benefits prior to the Plaintiff recovering from his injuries; (c) failed to adopt and implement reasonable standards for the prompt investigation and payment of claims arising under its insurance policy; (d) not attempted in good faith to effectuate prompt, fair and equitable payment of full and ongoing wage loss and related benefits to the Plaintiff; (e) (0 (g) otherwise acted with the knowledge and design of avoiding the obligations under its contract and/or policy; failed to disclose to the Plaintiffhis rights and obligations under the contract and/or policy; inordinately delayed; (h) compelled the Plaintiffto seek legal redress; (i) made or caused to be made deceptive and/or misleading statements in connection with its investigation of and payment on the claim; (j) misinterpreted policy provisions; (k) failed to respond to Plaintiffs reasonable inquiries regarding the claim; (1) refused to engage in reasonable discussions on the claim; (m) failed to pay the Plaintiffthe full amount of wage-related loss benefits as required under the terms of its contract and/or policy; and (n) failed to continue to pay the Plaintiffwage loss and related benefits until such time as he was no longer disabled as required under the terms of its contract and/or policy. 20. Defendant had the statutory duty to act in good faith at all times in such handling of said claim. 21. Defendant improperly, tmreasonably and/or recklessly refused to pay the Plaintiff the full amount of wage-related loss benefits as required under the terms of its contract and/or policy, instead paying only an average of his actual lost wages. 22. Defendant improperly, unreasonably and/or recklessly failed to continue to pay the Plaintiff wage loss and related benefits until such time as he was no longer disabled as required under the terms of its contract and/or policy, instead terminating all benefits based on the manifestly unreasonable, arbitrary and bad-faith medical opinion of its physician that prospectively the Plaintiff would no longer be disabled. 23. The aforesaid conduct and acts on the part of Defendant constituted a violation of the Peimsylvania Bad Faith Insurance Act, thereby rendering Defendant liable under the Act. 24. The conduct of Defendant in this case has been outrageous so as to warrant an award o f punitive damages. WHEREFORE, Plaintiff demands judgment against Defendant, in an amount exceeding the compulsory arbitration limit plus interest, punitive damages, attorneys fees and costs and other remedies allowed by law. Count II FRAUDULENT MISREPRESENTATION PLAINTIFF v. DEFENDANT 25. The allegations set forth in paragraphs I through 24 above are incorporated by reference as if fully set forth. 26. The representations, assurances, actions and conduct of Defendant and its agents, servants, employees and/or representatives as to the existence of the policy, the terms of the policy, and the applicability of the policy to the Plaintiff's claim, constitute knowing and intentional misrepresentations of fact upon which Plaintiff has relied to his detriment, as indicated more specifically by the following. 27. First, despite knowing that the Plaintiffs work-related compensation at the time of the aforesaid accident consisted of a combination of his actual wages together with partial unemployment benefits, the Defendant refused to compensate the Plaintiff in a sum equal to those partial unemployment benefits and instead paid him only an average of his lost wages, all of which is contrary to the terms of its contract and/or policy. 28. Second, the Defendant has terminated all wage-loss and related benefits to the Plaintiff based on the manifestly unreasonable medical opinion of its physicians notwithstanding the fact that the Plaintiff remains disabled and unable to resume full employment, all of which is contrary to the terms of its contract and/or policy. 29. The aforesaid communications to the Plaintiff in limiting his wage-loss benefits and then terminating them and related benefits under the terms of its contract and/or policy constitute material misrepresentations of fact. 30. As a direct result of Plaintiffs justifiable reliance on the fraudulent misrepresentations of material fact made by Defendant under the terms of the aforesaid contracts and/or policies, as set forth above, the Plaintiff has been denied in recovering the full damages and payments due to him. 31. The fraudulent misrepresentations of material fact made by Defendant in this case have been outrageous so as to warrant an award of punitive damages. WHEREFORE, Plaintiff demands judgment against Defendant in an amount exceeding the compulsory arbitration limit plus interest, punitive damages, attorneys fees and costs and other remedies allowed by law. Count III BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING -7- PLAINTIFF v. DEFENDANT 32. The allegations set forth in paragraphs 1 through 31 above are incorporated by reference as if set forth in full. 33. Defendant has breached the implied covenant of good faith and fair dealing under its contracts and or policies in that it has, inter alia: (a) (b) misr.el~resented pertinent facts and/or policy and/or contract prows~ons relating to the coverage, including but not limited to providing only partial coverage to the Plaintiffon the claim and then unreasonably terminating all benefits to him prematurely; failed to ~tcknowledge and act promptly upon written and/or oral commumcations with respect to Plaintiffs claim arising under the contract and/or policy, including but not limited to refusing to provide the Plaintiffwith full wage loss benefits and unreasonably !e.rm!nating all benefits prior to the Plaintiffrecovering from his ~njunes; (c) failed to adopt and implement reasonable standards for the prompt investigation and payment of claims arising under its insurance policy; (d) not attempted in good faith to effectuate prompt, fair and equitable payment of full and ongoing wage loss and related benefits to the Plaintiff; (e) (0 (g) (h) (i) (J) (k) (1) (m) otherwise acted with the knowledge and design of avoiding the obligations under its contract and/or policy; failed to disclose to the Plaintiffhis rights and obligations under the contract and/or policy; inordinately delayed; compelled the Plaintiffto seek legal redress; made or caused to be made deceptive and/or misleading statements in connection with its investigation of and payment on the claim; misinterpreted policy provisions; failed to respond to Plaintiffs reasonable inquiries regarding the claim; refused to engage in reasonable discussions on the claim; failed to pay the Plaintiffthe full amount of wage-related loss -$- benefits as required under the terms of its contract and/or policy; and (n) failed to continue to pay the Plaintiff wage loss and related benefits until such time as he was no longer disabled as required under the terms of its contract and/or policy. 34. Defendant improperly, unreasonably and/or recklessly refused to pay the Plaintiffthe full amount of wage-related loss benefits as required under the terms of its contract and/or policy, instead paying only an average of his actual lost wages. 35. Defendant improperly, unreasonably and/or recklessly failed to continue to pay the Plaintiffwage loss and related benefits until such time as he was no longer disabled as required under the terms of its contract and/or policy, instead terminating all benefits based on the manifestly unreasonable, arbitrary and bad-faith medical opinion of its physician that prospectively the Plaintiffwould no longer be disabled. 36. The aforesaid conduct and acts on the part of Defendant constituted a breach of the implied covenant of good faith and fair dealing under its contract and/or policy. 37. The conduct of Defendant in this case has been outrageous so as to warrant an award of punitive damages. WHEREFORE, Plaintiff demands judgment against Defendant in an amount exceeding the compulsory arbitration limit plus interest, punitive damages, attorneys fees and costs and other remedies allowed by law. RESPECTFULLY SUBMITTED: , ~-~Leslie I~. Fields, Esquire COSTDPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFF DATED: November l~ , 2002. -9- VERIFICATION I, Plaintiff, Edwin Duffus, do hereby verify that th e statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date:, Nc~xr_ '[ q , ?00 ? Edwin Duffus I hereby certify that I have served a copy of this paper upon all other parties or their attorneys by: _X_ regular mail certified mail other f ~ _ By: ~~Q_ ]S EDELSTEIN : Glenn A. Ricketti, Esquire fication No.: 41052 Curtis Center, Fourth Floor ~e Square West adelphia, PA 19106-3304 (215) 922-1100 Attorney for Defendant, Progressive Northern Insurance Company, incorrectly designated as Progressive Insurance Company DUFFUS COURT OF COMMON PLEAS CUMBERLAND COUNTY ~SIVE INSURANCE COMPANY NO. 02-5927 ENTRY OF APPEARANCE AND JURY TRIAL DEMAND THE PROTHONOTARY Please enter our appearance on behalf of the Defendant, ressive Northern Insurance Company, incorrectly designated as 'ressive Insurance Company, in the above captioned case. Defendant, Progressive Northern Insurance Company, ectly designated as Progressive Insurance Company, demands jury trial in the above case. Jury of twelve, with alternates MARGOLIS EDELSTEIN BY: ~LENN A. RICKETTI, ESQUIRE Attorney for Defendant, Progressive Northern Insurance Company, incorrectly designated as Progressive Insurance Company SHERIFF'S RETURN - REGULAR CASE NO: 2002-05927 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DUFFUS EDWIN VS PROGRESSIVE INSURANCE COMPANy JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PROGRESSIVE INSURANCE COMPANy the DEFENDANT , at 0910:00 HOURS, on the 18th day of December , 2002 at 5053 RITTER ROAD MECHANICSBURG, PA 17055 by handing to TYEDDIE DESMARAIS CLAIMS REPRESENTATIVE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing ~er attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 37.66 Sworn and Subscribed to before me this $~ day of ~,~ ~ J 7~ ~2~ A.D. ' Prothonotary So Answers: R. Thomas Kline 12/19/2002 COSTOPOULOS FOSTER FIELDS By: ~yqr~ff EDWiN DUFFUS, Plaintiff iN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 02- 5927 : : CIVIL ACTION - LAW : Defendant : JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END PROGRESSIVE iNSURANCE COMPANY, TO THE PROTHONOTARY: Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, please mark the above-captioned matter settled, discontinued and ended. R~eTlly submitted: COSTOPOULOS, FOSTER & FIELDS 831 Market St., P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 - Attorney for Plaintiff Dated: December 17, 2003 CERTIFICATE OF SERVICE. I, Leslie M. Fields, Esquire, certify that I have served a true copy of the foregoing PRAECIPE TO SETTLE, DISCONTINUE AND END, on the individual(s) listed below by depositing the same in the United States mail, first-class, postage prepaid, from Lemoyne, Pennsylvania, addressed as follows: Thomas J. Williams, Esquire MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 Dated: Leslie M. Fields, EsqUire