Bergman v. United Services Auto. Ass'n

• Citation: 742 A.2d 1101
• Parties: Herbert BERGMAN, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
• Decision Date: 06 December 1999
• Court: Pennsylvania Superior Court

742 A.2d 1101

Herbert BERGMAN, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.

Superior Court of Pennsylvania.

Argued January 12, 1999.

Filed December 6, 1999.

Edwin P. Smith, Philadelphia, for appellant.

William K. Conkin, Philadelphia, for appellee.

Before KELLY and MONTEMURO¹, JJ. and CIRILLO, President Judge Emeritus.

KELLY, J.:

¶ 1 In this appeal we must determine whether expert testimony should be required in cases involving allegations of bad faith in the context of insurance practices. Essentially, Appellant, Herbert Bergman, requests that this Court adopt a per se rule requiring expert testimony in all bad faith actions by an insured against an insurer. For the following reasons, we hold that the admission or exclusion of expert testimony in actions on insurance policies for bad faith remains a matter within the sound discretion of the trial court and will not be disturbed, absent an error of law or abuse of discretion. Accordingly, we affirm the trial court's order and judgment in favor of Appellee, United Services Automobile Association ("USAA") and against Appellant.

¶ 2 The procedural and factual history of this appeal have been properly set forth by the trial court as follows:

I. PROCEDURAL HISTORY

[Appellant], Herbert Bergman, brought this action under 42 Pa.C.S.A. Sec. 8371 in May, 1996, against [Appellee], United Services Automobile Association Group, (USAA), alleging a bad faith claim. The case arose out of the insurance assessment of a vehicular accident involving the [Appellant] and two other individuals that occurred in November 1992.

After a bench trial in September, 1997 and a thorough review of all of the written submissions of the parties on this matter, the [Philadelphia County Court of Common Pleas] entered an Order on December 26, 1997, finding for the [Appellee].

The [Appellant] filed a Motion for Post-Trial Relief on January 5, 1998, requesting this Court to grant a J.N.O.V. or in the alternative, to vacate the judgment and grant a new trial on this matter.

After considering the post-trial motions filed by the [Appellant], reviewing the trial notes of testimony, and after a thorough review of all of the written submissions by the parties, this Court now reaffirms its Order of December 26, 1997 and denies all of [Appellant]'s post-trial motions, thereby finding in favor of the [Appellee].

The [Appellant] then notified this Court on June 4, 1998 that he is appealing to the Pennsylvania Superior Court. [Appellant]'s Notice of Appeal was then placed on the Superior Court docket on June 5, 1998. This Court filed a 1925(b) order on June 16, 1998 according to the Pennsylvania Rules of Appellate Procedure, compelling the [Appellant] to submit a Statement of Matters Complained Of On Appeal. The [Appellant]'s sole response was that, "the court erred in refusing to allow [Appellant]'s insurance expert to testify at trial."

II. FACTUAL HISTORY

Specifically, this case involved the [Appellant], Dr. Herbert Bergman, and his automobile insurer, USAA, and the [Appellant]'s underinsured motorist coverage (UIM). The [Appellant] had a liability policy that stacked UIM benefits of $600,000.00. The [Appellant] was involved in a vehicular accident with two other cars. After the claims of the other two individuals were resolved, the [Appellant]'s attorney filed a UIM claim against USAA.

After the UIM claim was instituted, several demands and counter offers were made on behalf of the [Appellant] and USAA, respectively. On August 6, 1994 the [Appellant] made an initial demand of $300,000.00. Later, the [Appellant] demanded an arbitrator, and soon raised his offer demands to $400,000.00 and $500,000.00, respectively. During the processing of the UIM claim, the [Appellant] failed to forward all information regarding his injuries, medical treatment, or employment losses for claim evaluation.

The [Appellee] then named Michael Greenberg as its attorney and appointed an arbitrator. The [Appellant] was offered and later declined $50,000.00 and $70,000.00, respectively, from USAA. Then, the two parties' attorneys agreed on a third neutral arbitrator, Thomas Rutter. The arbitration panel awarded the [Appellant] $120,000.00. The [Appellant] then entered a claim of bad faith under 42 Pa.C.S.A. Sec. 8371.

(Trial Court Opinion, dated September 4, 1998, at 1-3) (citations to evidence and trial testimony omitted). ¶ 3 Appellant raises one issue for our review:

DID THE [TRIAL] COURT ERR IN PRECLUDING THE TESTIMONY OF APPELLANT'S EXPERT?

(Appellant's Brief at iv).

¶ 4 The standard for reviewing an order denying a motion for a new trial is as follows:

[We are] limited to determining whether the trial court acted capriciously, palpably abused its discretion, or committed an error of law which controlled the outcome [of the case]. A new trial will be awarded only when the verdict is so contrary to the evidence as to "shock one's sense of justice."

Johnson v. Hyundai Motor America, 698 A.2d 631, 635 (Pa.Super.1997), appeal denied, 551 Pa. 704, 712 A.2d 286 (1998). If the record supports the court's decision to deny a new trial, then the decision must be affirmed. Id. Moreover,

[t]he role of an appellate court in reviewing the trial court's final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Furthermore, the findings of the trial judge in a nonjury case must be given the same weight as a jury verdict and will not be disturbed on appeal absent error of law or abuse of discretion. When this [C]ourt reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and, conversely, all unfavorable inferences rejected.

Tagliati v. Nationwide Ins. Co., 720 A.2d 1051, 1052-53 (Pa.Super.1998), appeal denied, ___ Pa. ____, 740 A.2d 234 (1999) (quoting Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa.Super. 545, 646 A.2d 1228, 1231 (1994) (citations omitted)).

¶ 5 When determining whether the trial court abused its discretion, we have previously stated:

The test 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.

Terletsky v. Prudential Property and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 686 (1994), appeal denied, 540 Pa. 641, 659 A.2d 560 (1995) (quoting American States Insurance Company v. Maryland Casualty Company, 427 Pa.Super. 170, 628 A.2d 880, 891 (1993) (citation omitted)). Our Supreme Court has explained that the definition of a valid use of discretionary power means that the decision under scrutiny had merit. Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181 (1993).

In Paden [v. Baker Concrete Construction, Inc., 540 Pa. 409, 658 A.2d 341 (1995) ], [the Supreme Court] set forth the heavy burden that a party complaining of the exercise of a court's discretion must meet, noting that "an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous." [Id.] at 412, 658 A.2d at 343.

Hoy v. Angelone, 554 Pa. 134, 148, 720 A.2d 745, 752 (1998).

¶ 6 Appellant argues that the trial court abused its discretion in refusing to allow Appellant's expert witness, Dr. George M. Gottheimer, Jr., to testify at trial. Specifically, Appellant contends that the trial judge could not properly determine whether there had been a reasonable basis for the action and inaction of Appellant's insurer, USAA, without a yard stick in the form of his expert's testimony, against which to measure the insurer's conduct. According to Appellant, Dr. Gottheimer was qualified to provide such a "yard stick" in his proposed testimony about insurance industry practices, whether USAA had a reasonable basis for acting or not acting as it did, and how insurance claims are appropriately managed and evaluated. Appellant maintains that cases such as his require the testimony of an expert witness. Appellant concludes that he is entitled to a new trial because the trial court rejected the testimony of his expert at trial. We disagree.

¶ 7 An expert witness is a witness who possesses knowledge not within ordinary reach or understanding, and who, because of this knowledge, is specially qualified to address a particular subject. Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397 (1963). When a witness is offered as an expert, the first question the trial court should ask is whether the subject to be addressed by the witness is "so distinctly related to some science, profession, business or occupation" that it is beyond the understanding of the average layperson. McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436, 440 (1987), appeal denied, 520 Pa. 589, 551 A.2d 215 (1998) (quoting Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408, 415 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985)). If the answer to that question is "Yes," the trial court must then ascertain whether the proposed witness has "sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in [the] search for truth." Id.

¶ 8 Necessity is fundamental to the admissibility of opinion evidence. Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936). If the facts can be fully and accurately described to the fact-finder, who, without special knowledge or training, is able to estimate the bearing of those facts on the issues in the case, then the opinions of witnesses are...