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The Pennsylvania Superior Court has ruled that, despite dragging on for more than a decade-and-a-half, a Lehigh County couple's bad-faith lawsuit against Erie Insurance Group and Erie Insurance Exchange should not have been tossed out for inactivity.

In a May 13 unpublished opinion in Wilson v. Erie Insurance Group, a three-judge panel of the appellate court reversed a Lehigh County judge's decision to enter a judgment of non pros.

The trial court had found that plaintiffs Benjamin and Kathleen Wilson had prejudiced the defendants with their “inexcusable delay” in prosecuting the case.

But the Superior Court panel said Erie failed to show it suffered any actual prejudice.

“In its motion for non pros, Erie focused on the duration of the litigation and periods of inactivity on the docket, and failed to make the requisite assertion of actual prejudice,” Judge Mary Jane Bowes wrote. “Absent was any averment that files were missing, witnesses had died without being subjected to cross-examination, or that its expert lacked information critical to the formulation of his opinions.”

Bowes was joined by Judge Jacqueline Shogan and Senior Judge Eugene Strassburger III.

The Wilsons filed suit against Erie in June 2002 alleging bad faith, breach of contract, and violations of the Unfair Trade Practices and Consumer Protection Law. The suit stemmed from an underlying underinsured motorist case over an accident that left Kathleen Wilson with injuries to her left foot and a herniated cervical disc, both requiring surgery, and a closed head injury that left her with permanent cognitive defects. The UIM suit took three years to settle, according to Bowes.

In the ensuing 16 years since it was filed, Bowes said, the bad-faith litigation was marked by “periods of considerable activity followed by lulls.”

Erie argued that those lulls were caused by the Wilsons' refusal to respond to discovery requests and the Wilsons argued that some of the delay was caused by Erie's failure to produce deponents, according to Bowes.

“Erie did not demonstrate how it was prejudiced, i.e., impaired in its ability to defend the case, because it lacked the discovery responses,” Bowes said. “Furthermore, the record confirms that the Wilsons supplied answers within a week of Erie's filing of a motion to compel, and well in advance of the discovery deadline.

“We note that although the discovery had been outstanding for 10 years, Erie never filed a motion to compel,” Bowes continued. “Erie's inaction belies its subsequent claim of 'irreparable prejudice' due to the absence of timely discovery responses. Moreover, Erie did not substantiate how the discovery was important to its defense of the case. The record simply does not support the trial court's finding that Erie was substantially impaired in its ability to defend the case due to the Wilsons' failure to provide answers to discovery.”

The appellate court also took issue with the trial court's determination that the delay prejudiced Erie because it had a decaying effect on the Wilsons' memory of certain details of the case during their 2018 depositions.

“Even crediting that the Wilsons' ability to recall details of the UIM litigation may have eroded over the years since they filed their bad faith claim, we find no indication in the record that their memory lapses had any material effect on Erie's ability to defend the bad faith claim,” Bowes said. ”Erie deposed Mrs. Wilson in the UIM case on February 20, 2001. In addition, Mrs. Wilson provided authorizations for medical and employment records. Throughout, the Wilsons provided updated information about her condition and ability to work.”

Counsel for the plaintiffs, Sean Carmody of Carmody & Ging in Pittsburgh, could not be reached for comment. Counsel for the defense, Rodger Puz of Dickie, McCamey & Chilcote in Pittsburgh, also could not be reached.

(Copies of the 19-page opinion in Wilson v. Erie Insurance Group, PICS No. 19-0595, are available at http://at.law.com/PICS.)