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A trial judge's decision to slam an insurance carrier with a $21 million bad-faith award was an assault on the industry and the state Superior Court was well within reason to toss the verdict, an attorney representing Nationwide argued before the Pennsylvania Supreme Court in the closely watched case, Berg v. Nationwide.

Dechert attorney Robert Heim told six judges of the Supreme Court during its Harrisburg session Thursday that Berks County Court of Common Pleas Judge Jeffrey Sprecher's decision awarding the plaintiffs $18 million in bad-faith damages and $3 million in attorney fees was completely divorced from the evidence in the record and showed clear bias.

Sprecher's scathing 2014 opinion announcing the decision was a "flat-out assault on the [insurance] industry," Heim told the justices.

"You can't read these rants and ravings as being fair and impartial," Heim said, later adding, "The [Superior Court] credited the trial judge as much as they could … but the evidence wasn't there."

Heim made the arguments in an effort to have the Supreme Court affirm the Superior Court's decision from April 2018 to toss the multimillion-dollar verdict and enter judgment for the defense.

Justice Christine Donohue recused from the argument session Thursday.

However, according to Pittsburgh attorney Kenneth Behrend, who represented plaintiffs Daniel and Sharon Berg, the Superior Court's decision went beyond the proper appellate scope of review, and did not give proper deference to the trial court. According to Behrend, Sprecher "lived" through Nationwide's aggressive litigation strategies, and so the court should have relied on his findings.

"The judge got to live with these litigation strategies," Behrend told the court. "There were observations made in a first-hand basis by the trial judge."

The case arose after plaintiffs took their damaged 1996 Jeep Grand Cherokee to a facility participating in the insurer's "Blue Ribbon Repair Program," where one appraiser recommended that the vehicle be totaled. The Bergs, however, alleged that Nationwide Mutual Insurance reversed that appraisal without informing them and then ordered the vehicle sent to another repair facility. After allegedly finding problems with the car, the Bergs argued that, despite the attempted repairs, Nationwide knowingly returned them their vehicle with an unsound structural frame in order to avoid paying for a new vehicle.

After a jury found Nationwide violated the Unfair Trade Practices and Consumer Protection Law, the trial judge granted a directed verdict for Nationwide, but the Superior Court eventually reversed, giving the plaintiffs another chance to try their bad-faith claims. In June 2014, Sprecher issued his $21 million bad-faith verdict, along with a lengthy and scathing opinion, finding that "Nationwide strong-armed its own policyholder rather than negotiating in good faith to compensate plaintiff for the loss suffered in the automobile collision."

A three-judge Superior Court panel reversed, and the Supreme Court agreed to take up the case in April.

Much of the argument session Thursday focused on determining exactly where the bad faith took place, and whether insurance carriers should act as a de facto guarantor of a repair shop if it tells its insured that the vehicle needs to be repaired, rather than replaced.

Behrend said that is the law and has been the law for years.

"You want to repair it, you need to repair it to safety standards," Behrend said. "If the carrier elects to repair it, they're responsible for it."

Heim, however, said the carrier could be considered a guarantor to the extent that the insured are reimbursed, but, he said, the repairs were not done at Nationwide's direction and the company had been led to believe the car was in a safe condition before it was released.

"Nationwide's duty was to pay," Heim said. "That's their duty. There's no duty beyond that."