Insurer’s Correct Position On Coverage Bars Homeowners’ and Bad Faith Claims

construction

PITTSBURGH,  Jan. 10 – A federal judge from the Western District of Pa. has dismissed both bad faith and coverage claims in which a homeowner sought coverage for defective workmanship on the home as part of a demolition and rebuild.

In Wehrenberg v. Metro. Prop. & Cas. Ins. Co., No. 14-1477, 2017 U.S. Dist. LEXIS 3242 (W.D. Pa. Jan. 10, 2017), U.S. District Judge Mark R. Hornack granted summary judgment to Metropolitan P&C Insurance Company on both breach of contract and bad faith claims brought by insured homeowner, Wehrenberg.  leased the house to a tenant, Hyatt, and authorized Hyatt to demolish and reconstruct the house.

Hyatt abandoned the house after gutting it, and the house, which had structural problems, was left unfinished.  Wehrenberg  submitted a claim the Metropolitan regarding the condition of the house, calling it “vandalism.”  Metropolitan denied the claim and Wehrenberg filed suit, claiming both breach of contract and bad faith.

Relying on policy language, Metropolitan moved for summary judgment on all claims on the following grounds:  (1) the loss was not “sudden and accidental direct physical loss or damage” under the terms of the Policy, (2) even if the loss is covered, the insured did not timely notify Metropolitan of the loss, and  (3) the damages claimed were explicitly excluded from coverage under the Policy, which did not cover construction related damage, and stated that the insurer was not responsible to pay for vandalism if the property was vacant for more than thirty days.

In granting the motion for Metropolitan, Judge Hornak held:

“First, the Court concludes that Plaintiff cannot, on the record before the Court, meet his burden of proving that his loss is covered by his Policy in the first instance. The Policy specifically provides that Defendant will only cover “sudden and accidental direct physical loss or damage to [Plaintiff’s] property.”. . . Under Pennsylvania law, “sudden and accidental” “mean[], respectively, ‘abrupt’ and ‘unexpected or unintended.'” U.S. Fire Ins. Co. v. Kelman Bottles, 538 F. App’x 175, 181 (3d Cir. 2013).”

The judge also dismissed the bad faith claims made by the insured, holding:

“In this case, as explained, there is no viable breach of contract claim, so the first part of Plaintiff’s bad faith claim cannot succeed. Second, Plaintiff argues that Defendant acted in bad faith by failing to adequately investigate his claim. In his papers, Plaintiff lists a variety of ways in which he asserts Defendant’s investigation was inadequate, including that Defendant did not conduct enough interviews to uncover the facts of the case and that Defendant did not look into allegedly stolen tiles brought into the house. ECF No. 88 at 12. Defendant however, asserts that an adequate investigation was conducted  and that it included an inspection of the house, interviews of Plaintiff and Hyman, consultation with its legal counsel, and the taking of Plaintiff’s Examination Under Oath. ECF No. 82 at 20. Plaintiff’s claim ultimately fails because he has not cited to anything in the record to support his argument—he merely alleges problems existed without providing any record evidence to prove them.”

Wehrenberg v. Metro. Prop. & Cas. Ins. Co., No. 14-1477, 2017 U.S. Dist. LEXIS 3242 (W.D. Pa. Jan. 10, 2017)

 

 

 

 

 

 

Unsubstantiated Claims of Poor UM/UIM Claims Handling Not Sufficient Bad Faith Pleading, Federal Judge Rules

discovery

PITTSBURGH, Dec. 21 — An insured failed to sufficiently plead bad faith in the handling of his underinsured motorist coverage claim by State Farm Insurance Company,  a federal judge ruled Dec. 21 in granting the insurer’s motion to dismiss without prejudice.

Robert R. Mondron was injured as a passenger in an auto accident, which allegedly caused injuries including head neck and facial injuries and internal injuries.  The driver of the vehicle tendered his full liability limits of $110,000 under his own policy, and Mondron sought UIM benefits from his insurer, State Farm.

According to Mondron, State Farm  “failed to make a reasonable offer of settlement,” sued the insurer in the Allegheny County, Pa., Court of Common Pleas, alleging breach of contract, bad faith,  and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).

State Farm moved to dismiss the bad faith claims after removing the case to the  Western District of Pennsylvania.  In granting the motion, U.S. District Judge Cathy Bissoon held that dismissal of the bad faith claim is proper:

 “The gravamen of Plaintiff’s bad faith claim is that the Defendant unreasonably denied UIM [underinsured motorist] benefits to which Plaintiff is entitled under the terms of his parents’ insurance policy.  As noted, he alleges that Defendant ‘unreasonably delayed’ the handling of his claim, ‘inadequately investigated’ the claim, ‘failed to make a reasonable offer of settlement’ and ‘knew of or recklessly disregarded its lack of reasonable basis in evaluating Plaintiff’s underinsured motorist claim.’  These types of conclusory allegations are insufficient to state a plausible basis for relief.”

Judge Bissoon also found that Mondron’s Pennsylvania Unfair Insurance Practices Act (UIPA) claims should also be dismissed, holding “these allegations are nothing more than redundant and conclusory re-assertions of Plaintiff’s prior bad faith  allegations…Plaintiff’s generic invocation of statutory language is insufficient to satisfy his federal pleading burden.” Judge Bissoon stated. She similarly dismissed UTPCPL claims, all without prejudice.

Robert R. Mondron v. State Farm Mutual Automobile Insurance Co., No. 16-412, W.D. Pa.; 2016 U.S. Dist. LEXIS 17604

Low Settlement Offer Not Conclusive Proof of Bad Faith

Witness_stand_in_a_courtroom

A federal district court judge has dismissed a bad faith complaint in which the only allegation against the insurer was that it made a low offer of settlement in a UM/UIM case.  In West v. State Farm, U.S. District Judge John Jones dismissed a bad faith claim in an amended complaint on a motion to dismiss filed by the insurer, but allowed a breach of contract claim to proceed.

In West, the insured was rear-ended in an automobile accident, and filed UM/UIM claim with his insurer, State Farm. The insured submitted medical records and $8,232.00 in medical expenses, in response to which State Farm offered $1,000.00.

In the amended complaint, the insured alleged that the low offer was itself sufficient support for the allegation that State Farm recklessly disregarded a reasonable basis for paying more on the UM/UIM claim.  Judge Jones found the argument to be lacking, finding that the bad faith count of the complaint failed to allege sufficient factual support:

Plaintiff argues that the offer of $1,000 to settle $8,232.00 worth of medical bills shows bad faith. The Court finds that these facts are not sufficient, as a matter of law, to sustain a claim for bad faith. Plaintiff has not presented facts to show that Defendant “knew or recklessly disregarded its lack of reasonable basis in” in offering a “low-ball” offer. A “low-ball” offer alone does not suffice to support a claim for bad faith. “[B]ad faith is not present merely because an insurer makes a low but reasonable estimate of an insured’s damages.” Johnson v. Progressive Ins. Co., 987 A.2d 781, 784 (Pa. Super. Ct. 2009) (citing Condio v. Erie Ins. Exchange, 899 A.2d 1136, 1142 (Pa. Super. 2006)). “[T]he failure to immediately accede to a demand for the policy limit cannot, without more, amount to bad faith.” Smith v. State Farm Mut. Auto. Ins. Co., 506 F. App’x 133, 136 (3d Cir. 2012) (non-precedential).

The Court granted the Plaintiff  an additional thirty days to file a second amended complaint in an attempt to revive the bad faith claim.

West v. State Farm, CIVIL ACTION NO. 16-3185 (E.D. Pa. Aug. 11, 2016)(Jones, J.)

 

 

 

 

 

Pa. Federal Bad Faith Suit Against State Farm Dismissed: Revised Repair Estimates Not In Bad Faith

pipe%20leak%203

SCRANTON, Pa.,  Dec. 7 — A federal judge  granted State Farm’s motion for summary judgment on a bad faith claim  in a homeowners insurance dispute, finding that the insured failed to show that State Farm’s issuance of an estimate and revised estimates constituted bad faith as a matter of Pennsylvania law.

Joan Yatsonsky filed a homeowners’ insurance claim with State Farm arising out of water damage from broken pipes at the Yatsonsky’s home.   Within three days of the claim,  State Farm sent a disaster mitigation contractor to examine the property.  A State Farm claims representative also discovered mold in the home and told Yatsonsky that mold was not a covered loss in the policy.

State farm sent Yatsonsky an estimate of the covered damages to her home in the amount of $18,426.34.    She disputed the valuation, and submitted an estimate of damages from her contractor, Grimm Construction, for $43,403.00.  State Farm then revised its original estimate and agreed to pay an additional $15,979.50 based on Grimm Construction’s estimate.  State Farm also agreed to pay for additional mitigation services, but Yatsonsky continued to dispute the amount.

State Farm then met with Yatsonsky and Grimm Construction at the property for an inspection, and the insurer revised its estimate for a second time, mailing Yatsonsky a check for an additional $3,874.36.  The insurer then advised Yatsonsky that she could claim an additional $11,719.32 upon completion of repairs.

The parties failed to resolve their discrepancies in estimates, and Yatsonsky decided to demolish the home and rebuild.  She also sued State Farm  Wayne County, Pa., for breach of contract and bad faith.  State Farm removed the case to  U.S. District Court for the Middle District of Pennsylvania.

State Farm obtained early summary judgment on the breach of contract claim because suit filed beyond the one year limitations period in the policy.  Following discovery State farm sought summary judgment on the bad faith claim as well.

U.S. District Judge James M. Munley granted the motion, ruling:.

“plaintiff fails to present evidence that State Farm’s claims management was anything other than what it claimed:  an attempt to further investigate the water damage at plaintiff’s home to determine the value of her claim…Plaintiff has offered no expert evidence pertaining to State Farm’s investigation.  Plaintiff cites no internal State Farm communication or testimony establishing that State Farm acted out of spite during its investigation.  In sum, plaintiff has presented no competent evidence from which a reasonable jury could find that the number of State Farm employees assigned to her claim establishes bad faith.”

Judge Munley disagreed with Yatsonsky’s claim that multiple estimates issued by State Farm did not constitute bad faith:

 “Contrary to plaintiff’s arguments, the undisputed facts establish that State Farm conducted a detailed investigation over the course of one year.  State Farm inspected plaintiff’s home on five different occasions from January 2014 through June 2014.  During each inspection, State Farm met with plaintiff, or plaintiff’s contractor, and reviewed the damage to plaintiff’s home.  The parties also attempted to reconcile the estimates at these meetings.  Additionally, based on its inspections, State Farm mailed payments to plaintiff totaling $38,280.20 from January 2014 – June 2014.  These $38,280.20 payments are only $5,122.80 less than plaintiff’s initial $43,403 estimate from Grimm construction.. . . In short, plaintiff has failed to produce evidence ‘so clear, direct, weighty and convincing as to enable a clear conviction, without hesitation, about whether or not the defendants acted in bad faith.. . . At most, the available evidence may demonstrate that State Farm’s investigation and estimates were arguably negligent.  The bad faith doctrine, however, is not implicated by mere negligence.  Accordingly, the court will grant State Farm’s motion for summary judgment on plaintiff’s bad faith claim.”

Joan Yatsonsky v. State Farm Fire & Casualty Co., No. 15-1777, M.D. Pa.; 2016 U.S. Dist. LEXIS 167224

In-House Legal Departments / Outside Counsel – New Year’s Resolutions

new-year-03

As I look back over a year’s worth of posts, I can see that efficiency and cost certainty in the use of outside counsel by insurers is a common theme.  2017, I predict, will bring more of the same for insurance companies and their in house legal departments:  an institutional imperative to control costs and to gain cost certainty, in the matters they refer to outside law firms.  With that in mind, we take a quick look at some new year’s resolutions, and see whether there is any way to line up the resolutions of in house legal departments and outside law firms.

Resolution:  Know The Alternative Fee Options

The duty of outside firms to offer, and in house legal departments to utilize, alternative fee arrangements to continue efficiency in operations requires familiarity by both sides with the large variety of alternative fee tools available.  A complete review of some of the most common options appears on this resource page.

Alternative fee options are the language of efficiency in the engagement outside law firms, the coin of the realm for lean and effective operation in the years ahead.  It pays both insurers and outside law firms to be conversant in this language, and to communicate with each other in this language.

Resolution: Utilize Legal Project Management (LPM)

There has traditionally been an inverse relationship between insurers’ in house counsel affinity for LPM, and outside law firms’ competence and ability to provide it.  As insurers resolve again to control cost with effective LPM in 2017, competitive and responsive outside law firms must learn to use LPM effectively.  This requires repetitive use of LPM and case budgeting, and refining the process with each successive use.  It requires the reasonable cost projection of a legal matter, so the client can make informed decisions.

LPM projection and budgeting enable in house legal departments to make strategic decisions about which matters to fight, and which matters to resolve, and more importantly, when to do so.  LPM provides in house legal departments with important dashboard items, and they will increasingly expect outside law firms to provide these services as part of working for the insurer in 2017 and beyond.

Resolution:  Big Data Feedback

In a closely related resolution, in house legal departments at insurance companies will continue to expect more and useful data from outside law firms as to the value provided and the relationship of that value to the amount and type of the legal services billed.  Outside law firms must therefore continue to develop metrics tailored to each individual client to provide the client the data it needs and wants to make assessments as to whether matters are run efficiently, and outside law firms are providing value.

Outside firms which do not keep pace with the need to collect and feed back big data to clients on these issues will continue to lag in 2017 and beyond, and the pressure to keep up by providing requested data, and interpretation will be on the rise.

Resolution:  Cooperation and Collaboration, Not Conflict and Contention

The legal landscape is a challenging one now, and it is likely to continue to be so.  Outside law firms comfortable with the traditional hourly arrangement are oftentimes slow to modernize, and this failure creates a tension between a client and their outside lawyers on whether the fit is right, and whether the billable hour is in the best interests of the client.

Outside law firms must overcome such tension, and begin to view themselves as collaborators and business partners of the insurance in house legal departments they represent.  Alternative Fee Arrangements, LPM, and the aggregation and use of data to feedback to the clients are three primary vehicles for such positive change in 2017, and going forward .

 

Faulty Construction Not Covered Loss Under Nationwide Builders’ Policy, Pa. Federal Judge Rules

shoring

PHILADELPHIA, Nov. 16  — Two homebuilders insured by Nationwide Mutual Insurance Company accused in an underlying lawsuit of poor workmanship are entitled to no coverage, U.S. District Judge Michael M. Baylson ruled earlier  this week, because such workmanship did not constitute a fortuitous  “occurrence” which would trigger coverage under the policy.

William Tierney III sued  Robert and Hannelore Bealer, owners of Affordable Homes for foundation cracks and water leakage problems they built for Tierney in Pennsylvania State Court.   The complaint alleged that a May 2014 flooding of the home’s basement was due to faulty construction.   In response to Bealers’ requests for defense and indemnity in that case, Nationwide declined, citing no triggering  occurrence under policy, despite the Bealers’ claims that the problems were actually caused by superseding events including heavy storms and shifting ground.

The Bealers sued Nationwide for coverage in 2015, and the suit was removed to Federal Court.

Judge  Baylson, citing Pennsylvania law requiring analysis of the underlying complaint only, found that Nationwide was within its rights to deny coverage under the language of the policy:

“The Bealers’ alternative explanation for the cause of Tierney’s property damage is outside the scope of this analysis because it is not pled in the underlying complaint. . . Tierney’s factual allegations are that a failure to properly design and construct the property caused the damage at issue. These are faulty workmanship claims, and the Bealers’ attempts to reframe them as based on an ‘occurrence’ due to the ‘degree of fortuity’ involved in the intervening factors that allegedly led to the damage, are unavailing.”

Bealer v. Nationwide (E.D. Pa., No. 16-3181, Nov. 16, 2016)(Baylson, J.)

Fraudulent Joinder of Lawyer Results In Denial of Remand Motion In Texas Bad Faith Case

discovery

SAN ANTONIO, October 21  — A federal judge denied a motion to remand a breach of contract and bad faith lawsuit to state court, finding that the joinder of the attorney who represented the insureds in the underlying tort action  was not proper.

In Amanda Montoya, et al. v. State Farm Mutual Automobile Insurance Co., et al., No. 16-00005, W.D. Texas; 2016 U.S. Dist. LEXIS 141322), U.S. District Judge Royce C. Lamberth held that the joinder of  a lawyer retained by State Farm Insurance Company to represent their insured, Andrew Acosta,  did not defeat federal diversity jurisdiction.

Amanda and Deandra Montoya were injured in an automobile accident when their car was hit by Acosta.  Acosta and a passenger in his vehicle were killed.  State Farm Mutual Automobile Insurance Co. insured Acosta under a policy with limits of of $25,000 per person and $50,000 per accident.  State Farm retained a lawyer, Jeff B. Frey, to represent Acosta’s estate.

Acosta’s lawyer settled for the policy limits with injured passengers, leaving the Montoyas with no access to the policy limits.  The Montoyas sued the Acosta estate in Bexar County, Texas, and obtained a verdict and judgment of $542,933.67.  The Montoyas took an assignment from the Acosta estate, and then sued State Farm, and the lawyer they retained, Frey, in state court for breach of contract and bad faith, as well as alleged breaches of the Texas Insurance Code and the Texas Deceptive Trade Practices Act (DTPA). The Montoyas claimed Frey improperly settled the case with the passengers, and that he acted as a claims adjuster in doing so, naming him as a defendant in the bad faith and breach of contract case.

State Farm removed the case to the U.S. District Court for the Western District of Texas on the basis of diversity jurisdiction, and argued that Frey’s Texas’ citizenship did not defeat diversity because Frey was improperly joined.

The Montoyas filed a remand motion which was denied by Judge Lamberth, who held that Frey could not be a proper defendant as an “insurance adjuster”:

“the Montoyas articulated no facts in their original petition that Mr. Frey himself had the authority to finalize a settlement himself… Instead, they merely state that Mr. Frey was hired to ‘evaluate, negotiate, and/or finalize the multiple settlements arising out of the collision,’ and that ‘State Farm and their agent Jeff B. Frey proceeded with finalizing settlements without the knowledge of, and to the detriment of, Plaintiffs.’  Thus, the Montoyas failed to allege that Mr. Frey had the authority to settle these claims himself, and this Court need not decide whether an attorney appointed to represent an insured is analogous to an adjuster under the Texas Insurance Code.  Even if he is, there is no liability under Section 541.060(a)(2) absent the authority to settle.  Since Mr. Frey did not have authority to settle, there is no reasonable basis to predict the Montoyas might be able to recover against Mr. Frey for violations of Section 541.060(a)(2).”

The judge also ruled that there were no allegations made against Frey regarding misrepresentation of the policy:

“[t]here are no factual allegations against Mr. Frey for misrepresentations of the policy; the only allegations made against him concern his role in evaluating and settling claims. . . The Montoyas now suggest that the single reference to State Farm in the petition is sufficient to maintain a cause of action against Mr. Frey as State Farm’s agent.  But ‘threadbare recitals of the elements of a cause of action, supported by mere conclusory statements’ do not satisfy Rule 12(b)(6).  The conclusory statement that State Farm was liable under § 541.061 was unsupported by any factual allegations against Mr. Frey specifically.  Thus, the Montoyas have not even stated a claim against Mr. Frey under § 541.061.”

 Amanda Montoya, et al. v. State Farm Mutual Automobile Insurance Co., et al., No. 16-00005, W.D. Texas; 2016 U.S. Dist. LEXIS 141322

Bad Faith Claim Satisfies Federal Amount In Controversy Requirement

Witness_stand_in_a_courtroom

PHILADELPHIA, Sept. 28 – A federal judge has denied a remand request in a removed action against Omni Insurance company, holding that while the amount of the coverage claim was only $28,000.00, a bad faith claim also in the suit satisfied the $75,000.00 jurisdictional amount.

Plaintiff Richard Duncan originally sued a motorist insured by Omni Insurance arising out of an automobile accident.  Omni denied its insured defense and indemnity on grounds of an unlicensed driver exclusion in the applicable policy.

Duncan won $28,000.00 in an arbitration against Omni’s insured who, after the award, assigned all rights it had against Omni to Duncan.  Duncan then filed coverage and bad faith claims against Omni in Philadelphia County, seeking the amount of the arbitration award, along with bad faith damages.  Omni removed the case to the U.S. District Court for the Eastern District of Pa., and Duncan moved to remand the case.

Eastern District Judge Harvey Bartle, III denied the remand motion, citing the 3rd Circuit precedent requiring reasonable reading of pleadings to determine amount in controversy, and holding:

“Because of the bad faith claim, we deem the amount in controversy requirement to have been met.”

Judge Bartle also granted summary judgment to Omni on the merits in the case, finding that the unlicensed driver exclusion was not void as against public policy, and that it barred coverage for the underlying loss.

Duncan v. Omni Insurance Company, CIVIL ACTION NO. 16-1489, 2016 U.S. Dist. LEXIS 133134 (E. D. Pa., Sept. 28, 2016)

 

Adapt or Die

shutterstock_852782921

In yesterday’s edition of Law360.com, former McKesson in house lawyer Jill Dessalines wrote an excellent piece on the Corporate Demand for Value from outside law firms.  In the article, entitled, “Adapt Or Die: Law Firms In Tomorrow’s Economy,” Dessalines says that while the billable hour is still here, “it is gasping for breath and failing fast.”

Dessalines writes about the truth many old-line outside firms try to ignore about the billable hour:

“The problem is not just that it encourages inefficiency — like paying a kid to pull weeds in your yard by the hour rather than by the job. The problem is not just that it rewards quantity over quality. No, the essential problem… is that it is disconnected from the value of services rendered. For the corporate client, who by definition measures success and failure based on the value delivered to its bottom line, this disconnect is unfathomable.“

Unfathomable.  That is pretty strong language from a lawyer who has had to purchase the services of outside firms and at the same time  remain accountable to her corporate client.  Unfathomable.  For outside firms to ignore that disconnect any longer is to ignore the need to adapt or die.

Dessalines points out that historically, the billable hour was a function of recapturing an outside firms overhead plus a profit.  But the market now recognizes that the costs of services as determined by the seller is a proposition completely divorced from the value of services as perceived by the buyer.  And the latter is the only thing the buyer really cares about in the end.

Dessalines writes:

“Why should a client pay for a firm’s marketing costs, or phone bill or taste in art, or for any overhead cost? What correlation is there between the firm’s overhead and the value of the services delivered? There is none. And corporate clients know it.”

Alternative fee arrangements, and sophisticated means of measuring value are now commonplace.  To compete, outside law firms must offer value and predictability to their corporate clients, including insurance companies, which remain a major purchaser of outside legal services.  Value pricing, Dessalines observes, is gaining traction.  And in the face of the economic realities of today’s legal marketplace, how could it not be?

A new economic model for the pricing and delivery of legal services requires alternative fee arrangements.  Reach me for more information on how to deliver or purchase outside legal services more efficiently.

Inclusion of Adjuster Not Sufficient To Defeat Removal Jurisdiction In Bad Faith Case

Witness_stand_in_a_courtroom

DALLAS, Oct. 6  — Ruling that the insured failed to shoe that an  adjuster could be directly liable for the claims alleged, a federal judge in Texas denied the insured request for remand of a removed bad faith case.

In  Ministerio Internacional Lirios del Valle v. State Farm Lloyds, et al., No. 16-1212, N.D. Texas; 2016 U.S. Dist. LEXIS 137453, the plaintiff sued State Farm Lloyds in the 160th Judicial District Court of Dallas County, Texas, over a property damage claim.   The suit included claims for breach of contract, breach of the duty of good faith and fair dealing and violations of the Texas Insurance Code.  The complaint included allegations that adjuster Aaron Galvan, who conducted an investigation denied the claim on grounds that the damage was uncovered, was liable.

State Farm Lloyds removed the case to the U.S. District Court for the Northern District of Texas, arguing the adjuster was not properly named as a defendant.  The plaintiffs moved for remand, and Judge Sidney A. Fitzwater denied the motion, holding:

“Defendants have met their heavy burden of demonstrating that there is no reasonable basis to predict that Ministerio might be able to recover against Galvan. . . Galvan is an adjuster, and ‘[a]n adjuster “cannot be held liable under this section [of the Texas Insurance Code] because, as an adjuster, he does not have settlement authority on behalf of the insurer…[the adjuster had] no obligation to provide a policyholder a reasonable explanation of the basis in the policy for the insurer’s denial of a claim, or offer of a compromise settlement of a claim.”

The judge also found that Galvan could not be held liable because the sections of the Texas Insurance Code relied upon by the Plaintiff applied to specifically listed ‘insurers,’ and Galvan was  “not an insurer.”

Ministerio Internacional Lirios del Valle v. State Farm Lloyds, et al., No. 16-1212, N.D. Texas; 2016 U.S. Dist. LEXIS 137453 (October 4, 2016, Fitzwater, J.)

Editor’s Note:  joinder of individual adjusters is a common tactic used by insureds to attempt to defeat federal removal jurisdiction, because it provides a “same state” defendant as the plaintiff.  While cases across the country have gone both ways, the individual liability of an adjuster is highly questionable under standard agency principles, if he or she is acting in the course and scope of his or her employment.