JANUARY 2007 BAD FAITH CASES INSURED MAY PRESENT EVIDENCE OF “BAD FAITH CONDUCT DURING LITIGATION” UNDER ORIGINAL CLAIM FOR BAD FAITH (Middle District)

In Javorski v. Nationwide Mutual Insurance Company, the insured sought to amend her complaint to include a count for the insurer’s bad faith conduct during the litigation.  The motion was based on the Pennsylvania Superior Court case Hollock v. Erie Insurance,  which held that a carrier could be liable for bad faith conduct during the bad faith litigation.  The U.S. District Court denied the Motion.  According to the court, there was no need to amend the Complaint to add the “bad faith during litigation” allegations.  They were already encompassed by the insured’s original Count for bad faith under the Pennsylvania bad faith statute.  It should be noted that the decision was based in large part on the liberal “notice” pleading standards of federal court.  A litigant in federal court does not need to provide a detailed factual basis for bad faith in his/her complaint.  A litigant in state court in Pennsylvania would likely need to amend his/her complaint under the fact-based pleading standard.  However, under this court’s reasoning, a state court would likely allow the amendment.

Date of Decision: November 30, 2006.

Javorski v. Nationwide Mutual Insurance Company, United States District Court for the Middle District of Pennsylvania, No. 3:06-CV-1071 (M.D. Pa. November 30, 2006) (Conaboy, J.).