McGowan & Associates Wins Triple Damages for School Teacher in Bad Faith Action Against Insurer
Attorney: Owen P. McGowan
Type of Case: Insurance Bad Faith, M.G.L.c. 93A and M.G.L.c. 176D, Personal Injury, Car Accident, Uninsured Motorist Coverage
Case: Mongeon vs. Arbella Mutual Insurance Company
Court: Arbitration, Worcester Superior Court, Appeals Court
Arbitration: Retired Judge James Ryan (IAB) at JAMS
Court: Judge Peter Agnes, Worcester Superior Court
Damages: Triple damages under Chapter 93A, plus attorney fees and interest
Date: Superior Court decision – December 10, 2003
Our client – a school teacher – was injured in a car accident and left unable to work. He was then treated very poorly by his own auto insurer.
When the insurer failed to investigate our client’s claim, our firm felt compelled to seek relief in the courts. We are pleased to have achieved a very favorable result at both arbitration and Worcester Superior Court. The Superior Court judge ultimately found our client’s auto insurer had acted in bad faith.
The trial court’s decision was later affirmed by the Appeals Court in a rescript opinion and published by Massachusetts Lawyers Weekly.
Our client was driving a van in Millbury when he was struck on the driver’s side on Oct. 6, 2000. The female driver left the scene of the accident, but one of her passengers remained. Police later determined the woman had a revoked driver’s license and her vehicle registration and auto insurance had been cancelled. Under Massachusetts law, drivers are required to carry the compulsory level of auto insurance to protect themselves and others if they cause injuries and property damage in a crash.
There was no question the driver was at fault, yet she had no insurance to cover our client’s injuries. Shortly after the accident, our client was admitted to the hospital and underwent a cardiac catheterization through his left groin. He had to return two days later because of a post-operative infection and suffered ongoing injuries.
Our client had an auto insurance with a $100,000 policy limit. He signed a release for his auto insurer to obtain copies of his medical records and filed a claim seeking the initial Personal Injury Protection (PIP) benefits under his policy.
The insurer adjuster took no action to process the claim. When our attorneys contacted the insurer, a representative said he could not respond because he did not have documentation showing the other driver was uninsured at the time of the crash.
In response, our attorneys sent the insurer a copy of the police report and detailed our client’s medical bills and lost wages.
However, the insurer did not want to settle this claim, arguing that the other driver’s insurance status was still unconfirmed and it was unclear if our client was suffering injuries as a result of a pre-existing medical condition.
The insurer scheduled an independent medical examination for our client and the doctor concluded our client’s injuries were the result of the infection and related to the accident. The doctor also concluded the catheterization procedure our client had was not elective as the insurer had argued.
The insurance adjuster made his first offer of settlement in October 2001, a year after the car accident. The adjuster increased the offer by $7,000, but our attorneys filed suit in Superior Court in May 2002, alleging the insurer’s action was a violation of M.G.L.c. 93A. In November 2002, the insurer finally offered our client the full $100,000 policy limit, but our attorneys decided to continue with the court case.
The Superior Court judge later ruled that the insurer had no reason not to investigate and had acted “willfully and in bad faith in withholding a fair and equitable settlement offer for 21 months.” Further, the judge dismissed the insurer’s argument that insurance companies are not liable for damages that represent the aggravation of a pre-existing injury.
Attorney Owen P. McGowan was interviewed about this case, Mongeon vs. Arbella Mutual Insurance Company, in the May 17, 2004 edition of Massachusetts Lawyers Weekly.
“What this decision does, [is] it gives a heads-up to other attorneys and insurance claims-handling departments about what is and what is not acceptable claims handling,” he said.