Woman injured in attempt to thwart robbery can't sue Geico for bad faith in denying claim

A Walmart shopper who tried to stop a robber from escaping with his ill-gotten gains, only to be hit by the getaway car in the process, can’t sue Geico for bad faith over denial of uninsured motorist benefits.

Related: 11th Circuit upholds $2.9M bad faith verdict against Geico

U.S. District Judge Matthew W. Brann of the Middle District of Pennsylvania granted in part and denied in part Geico’s motion for summary judgment of Brenda G. Smerdon’s case against the insurer.

According to Brann’s opinion, a robber demanded cash from a Walmart employee at the Mansfield, Tioga County location on April 30, 2016. Smerdon and five to six other shoppers chased the robber out to his car, which had been left running.

Several customers tried to wrestle the robber to the ground, while Smerdon jumped into the passenger side of his vehicle in an attempt to grab the keys from the ignition, according to Brann. However, the robber was able to elude his would-be captors and slam on the accelerator of his car. She was run over by the vehicle’s rear tires.

This left Smerdon badly injured; she was life-flighted to a nearby hospital, having suffered serious injuries, including a skull fracture, a traumatic brain injury, and injuries to her right knee, right thigh, right ankle and left shoulder, Brann said.

Tried to collect UM benefits from her auto policy

Later, Smerdon tried to collected uninsured motorist benefits from her Geico policy, but the company refused, claimed she assumed the risk of jumping into the robber’s vehicle. She subsequently sued for bad faith.

While Mann held that Smerdon was not aware of the totality of the risk posed by trying to stop the robber, he did rule that her bad-faith claim failed.

Related: 9th Circuit reduces $2.5M bad faith award against Geico to $1M

“Geico had a reasonable basis to question coverage because assumption of the risk remains a valid defense under Pennsylvania law,” Brann said. “The fact that Geico erroneously relied upon assumption of the risk in this case does not advance Ms. Smerdon’s bad faith claim because the ‘presence or absence of bad faith does not turn on the legal correctness of the basis for an insurer’s denial of an insured’s claim.’”

“Ms. Smerdon also cannot show Geico unreasonably delayed handling her claim,” Brann continued. “The parties communicated with each other over several months in an effort to resolve the dispute. As Geico and Ms. Smerdon engaged in these discussions, Geico advised that it would need a copy of the police report and surveillance video before determining whether or not Ms. Smerdon was entitled to uninsured motorist benefits. At the time Ms. Smerdon filed her two-count complaint in Tioga County, she still had not received the police report. Consequently, any delay incurred in Geico’s resolution of her claim cannot be construed as unreasonable.”

Smerdon’s attorney, Robert Elion of Elion, Grieco, Carlucci & Shipman, said the court made the right decision in dismissing Geico’s assumption of risk defense.

“Here, Ms. Smerdon did not know that she would be run over in a stolen vehicle so the court correctly held that the defense of assumption of the risk is not a defense. The court concluded that the principles of comparative negligence are more applicable. I believe the concepts of public policy were also at play here. To hold that the defense of assumption of the risk would apply would discourage people to act as a ‘Good Samaritan’ and would reward the wrongdoer,” he said.

Geico’s counsel, Joseph A. Hudock of Summers, McDonnell, Hudock, Guthrie & Skeel, did not respond to a request for comment.

P.J. D’Annunzio covers the federal courts for The Legal Intelligencer and Law.com. Email him at pdannunzio@alm.com.