In a recent Memorandum Order out of the Western District of Pennsylvania, Selmek v. State Farm Fire and Casualty Company,1 a State Farm adjuster requested that the insured assist her in inspecting a damaged roof and securing it from further damage. Carl and Amy Selmeks’ home and detached garage (located 100 yards away from the house) in rural Pennsylvania were insured under a dwelling and liability policy issued by State Farm. Mr. Selmak suffered injuries when he fell through the roof of his garage. Prior to this, a windstorm had damaged the roof of the garage, causing certain shingles to be blown off. The Selmeks reported the loss to State Farm. State Farm sent an adjuster to inspect the property. The adjuster did not bring sufficient equipment with her to go onto the garage’s roof. Mr. Selmek offered the adjuster his own ladder and also assisted her in taking measurements of the roof.

After the inspection, Mr. Selmek asked the adjuster whether or not he should secure the roof with a tarpaulin to prevent further leakage into the structure of the garage. The adjuster instructed Mr. Selmek that he should go onto the roof to prevent further leakage and damage into the structure and to secure a tarpaulin over the damaged area. Mr. Selmek followed her instructions. While doing so, he fell through the rotted wood of the roof into the structure below onto a landing. This rendered him a paraplegic.

Some pertinent portions of the State Farm policy are as follows:2

  • After a loss, the insured shall "protect the property from further damage or loss, make reasonable and necessary temporary repairs required to protect the property, [and] keep an accurate record of repair expenditures." (Id. at p. 30 ¶2(b)).
  • It explicitly provides that State Farm "do[es] not insure under any coverage for any loss which would not have occurred in the absence of . . . [n]eglect, meaning neglect of the insured to use all reasonable means to save and preserve property at and after the time of a loss, or when property is endangered." (Id. at p. 27 ¶2(d) (emphasis omitted)).
  • However, the policy contains an additional coverage providing "[i]f damage is caused by a Loss Insured, [State Farm] will pay the reasonable and necessary cost you incur for temporary repairs to covered property to protect the property from further immediate damage or loss." (Id. at p. 22 ¶2).

The Selmeks filed a lawsuit against State Farm seeking compensation for Mr. Selmek’s injuries, loss of consortium damages stemming from the injuries and the alleged bad faith of State Farm. State Farm moved to dismiss all three counts. The Western District refused to dismiss all three counts.

The Selmeks’ third count sought damages stemming from State Farm’s alleged bad faith. Specifically, the Selmeks’ argued:

[T]hat the Defendant acted in bad faith toward the insured by placing the insured at risk of severe personal injury from a known hazard after inspecting the roof in order to reduce the property damage to the roof, which was a covered loss under the policy even though it placed the insured’s life and health in extreme jeopardy.

The Selmeks’ alleged that this constituted bad faith because “the insurer placed its own interests in adjusting the claim ahead of the interest of its insured by placing the insured in jeopardy of physical injury in order to save money on an insurance claim.”

The court noted:

[U]nder Pennsylvania jurisprudence, insurers owe a duty of good faith and fair dealing to their insureds. Among other duties, the implied covenant creates an obligation to disclose fully the coverage and any requirements under the policy. The covenant arises from the nature of insurance contracts and the fiduciary relationship between an insurance company and its insureds. Burton v. Republic Ins. Co., 845 A.2d 889, 899 (Pa. Super. Ct. 2004) (internal citations omitted).

The court refused to dismiss the Selmeks’ bad faith claim, finding that a plausible bad faith claim could arise “where an insurer, in bad faith, declines to inform an insured as to coverage for temporary repairs.”3

1 Selmek v. State Farm Fire and Cas. Co., No. CIV.A. 14-388, 2014 WL 6612906 (W.D. Pa. Nov. 20, 2014).
2 Id. at 2.
3 Id. at 8.

  • Steve Patrick

    The adjuster was stupid for telling the Insured that ‘HE’ should perform the temporary repairs. The Insured is equally foolish for not hiring a competent contractor to do the repairs. Where’s the common sense? If he Insured’s roof were a second story, severely steep roof, would he have still done what the adjuster ‘commanded him to do?’ I doubt it, he would have hired someone. Seems to me the Insured had a sever lapse of common sense, if the roof was that dangerous to be on. Just my take on it…

  • Mark

    Steve, what you say may be true in other situations but there is a psychology here you fail to consider.

    The insurance company adjuster holds sway over many insureds by virtue of him or her having control over the “checkbook”. That is; whether or not (or) how much will be paid.

    In other words the insured is thinking “Gee… I better do what she is asking me to do or I may jeopardize my claim”

    I am in this business. I have seen many company adjusters get on little Napoleonic power trips because they are the ones who will decide how much the insured will receive. In all fairness, Independent adjusters are much less likely to exhibit this kind of behavior.

  • On its face, even given the barely minimal facts provided, it would seem that the court is giving very wide latitude to the definition of “bad faith”. Even so, just because it won’t dismiss the claim doesn’t mean there is evidence in support of such. The court is simply saying that there could be a valid question of fact the lies within the purview of the jury.

    It is a mistake to presume what the adjuster told the insured. It is also wrong to presume that the adjuster “told” the insured that “he” had to do it. Advising policyholders of their obligation to protect the property from further damage…and advising that one ot he ways of doing this is to put a tarp over holes in a roof is standard procedure. Really!? Because she says I need to do this meand that I have to do it? Presumably this is a grown man who knows his property and has his own mind. Presumably he is not mentally deficient. Who knows? One thing is that people who find themselves in horrible circumstances such as this…even if it came at the expense of their own poor judgment (remember, accidents DO happen…and they are not always caused by someone’s “fault”)…they often find someone to blame, and it’s natural for them to go after the entity with the money…especially when they need it.

    To often, judgments are made about a case, even when it’s just a turning point in the game. It’s like a lawyer hoping and wishing that a Motion for Summary Judgment will be granted, even when he knows it’s unlikely because there are still questions of fact. They file them because its often considered wise protocol or a way to bill more fees, even when they know there is no hope.

    I’ve been 35 years in this business, and I can assure everyone that this case is far from over. Let’s not be quick to cast aspersions on anyone, plaintiff, defendant, or defendant’s adjuster…until you hear (or read) the actual testimony and get all the facts.

  • Here is another example why the public should retain the services of an experienced Public Adjuster. The insured in many cases and certainly in this case do not know what their policy covers and additionally did not know how to respond to the money pinching orders from the State Farm adjuster. As a licensed Public Adjuster for many years I have over and over again how the public is at a distinct disadvantage when trying to adjust an insurance claim. Insureds rarely put forward any defense, but rather mistakenly put their interests in the hands of the adjuster who by virtue of doing a good job for their employers is not obligated or motivated to advise or assist the insured. Sadly it rings the bell of “buyer beware”.