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Smerdon v. Geico Casualty Co.

United States District Court for the Middle District of Pennsylvania · 2017 · Civil Procedure

Civil ProcedureSummary JudgmentInsuranceAssumption of the RiskBad Faithsummary judgmentcross-motionsassumption of risk

Facts

Smerdon chased a robber from a Wal-Mart to the parking lot along with several others and attempted to stop his escape by opening the passenger door and trying to remove the keys from the ignition. As the robber drove off, she was badly injured by the car, suffering serious head and bodily injuries. She stated she did not know the robber's identity, did not know he had a stolen car, and did not know she would be run over by trying to stop him. GEICO denied her uninsured motorist claim on the ground that she was not legally entitled to recover because she had assumed the risk of her injuries.

Issue

Whether GEICO could rely on assumption of the risk as a matter of law to bar Smerdon's uninsured motorist claim on the theory that she was not legally entitled to recover from the uninsured robber. Also, whether GEICO's denial and handling of the claim constituted statutory bad faith under Pennsylvania law.

Rule

Under Pennsylvania law, assumption of the risk remains a viable but disfavored affirmative defense and bars recovery only when it is conclusively and beyond question shown that the plaintiff subjectively knew of the specific risk that caused the injury, voluntarily accepted that risk, acted despite it, and suffered the harm contemplated by that specific risk. General awareness that an activity is dangerous is insufficient; the inquiry is based on actual knowledge, not what the plaintiff should have known, and questions about the reasonableness of the plaintiff's conduct are instead addressed through comparative negligence. For statutory bad faith, the insured must prove by clear and convincing evidence both that the insurer lacked a reasonable basis for denying benefits or delaying and that the insurer knew of or recklessly disregarded that lack of a reasonable basis.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, Nora Ellis saw a man snatch a purse outside a grocery store and run toward a motorcycle. She grabbed the back of the bike as he started it, and moments later he unexpectedly accelerated, causing her to be dragged and suffer a broken arm. Nora testifies that she knew chasing a thief was dangerous but did not think she would be dragged by the motorcycle.

If the thief's insurer-equivalent argues assumption of the risk as a complete bar under Pennsylvania law, which is the strongest response?

Explanation. Assumption of the risk is narrowly applied and requires proof, conclusively and beyond question, that the plaintiff subjectively knew and accepted the particular danger that caused the injury. General awareness that chasing a thief is dangerous is not enough, and the inquiry is actual knowledge, not what she should have known. Reasonableness goes to comparative negligence, not assumption of the risk. (Derived from Smerdon v. Geico Casualty Co. (2017).)