{"id":25433,"date":"2024-03-14T09:00:43","date_gmt":"2024-03-14T13:00:43","guid":{"rendered":"https:\/\/plusweb.org\/?p=25433"},"modified":"2024-04-10T10:18:30","modified_gmt":"2024-04-10T15:18:30","slug":"words-matter-shielding-against-utpcpl-claims-with-subjective-verbiage","status":"publish","type":"post","link":"https:\/\/plusweb.org\/news\/words-matter-shielding-against-utpcpl-claims-with-subjective-verbiage\/","title":{"rendered":"Words Matter: Shielding Against UTPCPL Claims With Subjective Verbiage"},"content":{"rendered":"\r\n

The United States District Court for the Western District of Pennsylvania recently examined insurance procurement advertising in the context of an Unfair Trade Practices and Consumer Protection Law claim in Nelson v. State Farm Fire & Casualty Company<\/em>, 665 F.Supp.3d 709 (W.D. Pa. March 28, 2023). \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

In Nelson<\/em>, which generally asserted coverage related claims against the plaintiff\u2019s insurer for denying coverage for property damage loss, the plaintiff asserted that she relied upon her insurance agent\u2019s claims that State Farm \u201cwould take great care of her\u201d in the event of a claim, and on State Farm\u2019s advertising, \u201clike a good neighbor, State Farm is there.\u201d To succeed, the plaintiff\u2019s UTPCPL claim required a showing of a deceptive act or conduct, justifiable reliance, and actionable harm. \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

The court concluded that the insurer\u2019s slogan was \u201cunactionable puffery\u201d and \u201cany reliance on this slogan on Plaintiff\u2019s part is unjustifiable.\u201d\u00a0 State Farm\u2019s slogan was subjective with respect to what a \u201cgood\u201d neighbor would do, rather than \u201ctestable facts\u2026or holding oneself out as an \u2018expert.\u2019\u201d \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

Further, the court determined that the statement of the insurance agent regarding State Farm\u2019s customer service was \u201cfar too general and vague to constitute a deceptive statement upon which Plaintiff could justifiably rely.\u201d An insurance agent\u2019s broad or vague representation is similarly insufficient to support a claim for violation of the UTPCPL. \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

Advertising is an inherent aspect of any business model, including insurance agencies. However, there is a distinct difference between subjective, broad or vague opinion-based statements, or encouragements of good service, as opposed to terms that could trigger a heightened duty to advise or recommend, and \u2013 at worst \u2013 give rise to potential liability under a negligence, UTPCPL or fraud claim. \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

As the Nelson<\/em> court noted, terms like \u201cconsultant,\u201d \u201cadvisor,\u201d \u201cadvocate\u201d or \u201cexpert\u201d can trigger a \u201cspecial relationship\u201d analysis. See Yenchi v. AmeriPrise Financial<\/em>, 161 A.3d 811 (Pa. 2017); Sadler v. Loomis Co.<\/em>, 776 A.2d 25 (Md. App. 2001). Website assurances can also be fodder for cross examination at deposition or trial, where an insurance agency touts itself as \u201cexperts\u201d in a particular field, makes representations that they will meet all of their customers\u2019 \u201cinsurance needs\u201d such that they are \u201cfully covered,\u201d or suggests that it is providing risk management services as opposed to those expected in an ordinary arm\u2019s length business relationship. Wisniski v. Brown & Brown Ins. Co. of Pa.<\/em>, 906 A.2d 571 (Pa. Super. 2006). \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

As defense counsel, it is always important to confirm if a plaintiff\/agency customer even reviewed the agency\u2019s website or advertising materials, as they surely could not \u201cjustifiably rely\u201d on it, if not. Further, relationships between an insurance agency and their policyholder clients may vary from one customer to the next. \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

While it is important to attract new customers, and touting experience and customer service are ways to do so, insurance agents should be cognizant to keep their assurances general, vague and subjective to avoid the pitfalls of potentially deceptive promises. Marshall Dennehey stands ready to assist with advising on best practice language for promotional materials, and to defend insurance agent E&O claims as needed. \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

Dana A. Gittleman and Timothy G. Ventura are shareholders in the Professional Liability Department at Marshall Dennehey. As members of the firm\u2019s Insurance Agents & Brokers Liability Practice Group, they defend errors and omissions claims brought against insurance agents and brokers, and \u00a0brokerage firms of all sizes and sophistication, ranging from family-owned businesses to nationally-known managing general agents and risk retention groups in state and federal court. They may be reached, respectively, at <\/em>dagittleman@mdwcg.com<\/em><\/a> and <\/em>tgventura@mdwcg.com<\/em><\/a>.<\/em> \u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

Meet the Authors<\/strong><\/p>\r\n

\"Headshot\u00a0<\/p>\r\n

Dana A. Gittleman, Esq. is a shareholder in the Professional Liability Department at Marshall Dennehey. Resident in the firm\u2019s Philadelphia office, she focuses her practice on the defense of claims and lawsuits brought against insurance agents and brokers, real estate professionals, attorneys, directors and officers, and large product manufacturers. Dana may be reached at dagittleman@mdwcg.com<\/a>.<\/p>\r\n\r\n\r\n\r\n

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\"Headshot<\/p>\r\n

Timothy G. Ventura, Esq. is a shareholder and vice chair of the Philadelphia Professional Liability Practice Group at Marshall Dennehey. He defends errors and omissions claims brought against insurance agents and brokers, and brokerage firms of all sizes and sophistication, ranging from family-owned businesses to nationally-known managing general agents and risk retention groups in state and federal court. He also represents attorneys, corporate directors and officers, and a variety of real estate professionals, including title agents, appraisers, brokers, home inspectors and lenders. Tim may be reached at tgventura@mdwcg.com<\/a>.<\/p>\r\n","protected":false},"excerpt":{"rendered":"

The United States District Court for the Western District of Pennsylvania recently…<\/p>\n","protected":false},"author":14,"featured_media":20782,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_seopress_robots_primary_cat":"none","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","footnotes":""},"categories":[97,112,1374],"tags":[1375],"business-line":[47],"post-type":[49],"topic":[29],"class_list":{"0":"post-25433","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","6":"hentry","7":"category-plus","8":"category-guest-blog","9":"category-professional-liability-insurance","10":"tag-professional-liability-insurance","11":"business-line-other-business-lines","12":"post-type-plus-blog","13":"topic-professional-liability-pl-insurance","17":"post_tag-professional-liability-insurance"},"acf":[],"_links":{"self":[{"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/posts\/25433","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/users\/14"}],"replies":[{"embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/comments?post=25433"}],"version-history":[{"count":3,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/posts\/25433\/revisions"}],"predecessor-version":[{"id":29509,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/posts\/25433\/revisions\/29509"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/media\/20782"}],"wp:attachment":[{"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/media?parent=25433"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/categories?post=25433"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/tags?post=25433"},{"taxonomy":"business-line","embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/business-line?post=25433"},{"taxonomy":"post-type","embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/post-type?post=25433"},{"taxonomy":"topic","embeddable":true,"href":"https:\/\/plusweb.org\/wp-json\/wp\/v2\/topic?post=25433"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}