This past July, the Pennsylvania Supreme Court evaluated the punitive damages exposure in insurance bad faith cases in the wake of its decision in Bert v. Turk, 298 A.3d 44 (Pa. 2023). The main question the court in Bert addressed was whether the appropriate ratio of punitive to compensatory damages in a case with multiple joint tortfeasor defendants should be calculated on a per judgment basis or a per defendant basis. It also reviewed whether the Pennsylvania Superior Court had erred in considering harm averted to the plaintiff, as opposed to actual harm suffered.

Insurers are not likely to be exposed to joint tortfeasor liability under the bad faith statute, 42 Pa.C.S. Section 8371, as the liability issue centers on an insurer’s actions taken in relation to its insured (Mohney v. American General Life Insurance, 116 A.3d 1123, 1131 (Pa. 2015)). While the main question in Bert is not germane to the evaluation of exposure to punitive damages in bad faith cases, the opinion is nevertheless important to the insurance industry because it reviewed well-established constitutional principles and U.S. Supreme Court precedent against the backdrop of Pennsylvania jurisprudence concerning punitive damages. Moreover, the opinion in Bert creates a potential new argument that harm incurred and harm averted to a plaintiff could be presented in bad faith claims.

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