Date: 09-08-2012

Case Style: Walter Gene Povlick v. Maxum Indemnity Company

Case Number: CJ-2012-3864

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Oleg Roytman and Laura Lauth

Defendant's Attorney:

Description: Walter Gene Povlick sued Maxum Indemnity Company, Maxum Casualty Insurance Company, Maxum Indemnity Company, Maxum Specialty Insurance Company on a breach of contract, bad faith, theory claiming:

I. The Plaintiff is a citizen of Oklahoma residing in Tulsa County, Oklahoma.

2. Defendants Maxum Indemnity Company and Maxum Casualty Insurance Company (collectively “Maxum”), are foreign corporations conducting regular business in Tulsa County, Oklahoma.

3. Maxum Specialty Insurance Group (“Maxum Specialty”) is an unincorporated inter- insurance exchange doing business in Oklahoma with substantial ties to this judicial district.

4. Defendant GDK Insurance Agency, Inc. (“GDK Insurance”), is a domestic for-profit corporation conducting regular business in Tulsa County, Oklahoma.

5. The acts, occurrences and omissions complained of herein occurred in Tulsa County, Oklahoma.

6. This Court has jurisdiction and venue is proper in Tulsa County, Oklahoma.

FACTS COMMON TO ALL CLAIMS

7. Paragraphs 1-6 are incorporated herein by reference.

8. Plaintiff has been a client of GDK Insurance since 1986. In approximately 2010, Plaintiff contracted to purchase an automobile insurance policy through agents/employees of Defendant GDK Insurance based upon material representations that in the event Plaintiff was injured in an automobile collision and his injuries exceeded the tortfeasor’s insurance coverage, Plaintiff would be provided uninsured/underinsured motorist benefits.

9. The insurance policy Plaintiff purchased through Dorsey Insurance was provided by the Maxum/Maxum Specialty entity(s).

10. On or about October 24, 2011, Plaintiff was involved in a motor vehicle accident as a result of the negligence of an underinsured motorist.

11. On the same date, Plaintiff was insured under said contract with the Maxum Defendants where the Defendants were to provide underinsured motorist coverage for the Plaintiff in accordance with said policy.

12. On or about November 1,2011, Plaintiff notified the Maxum Defendants of the October 24,
2011 accident and that he was initiating a claim under said underinsured motorist policy.

13. On or about February 20, 2012, Plaintiff provided to the Maxum Defendants any and all medical records and itemized billing arising out of the subject accident. Furthermore, Plaintiff made demand on the Maxum Defendants to tender the underinsured policy limits pursuant to Burch v. Allstate, 977 P. 2d 1057.

14. On or about April 3, 2012, Plaintiff advised the Maxum Defendants that the third party had tendered its policy limits.

15. The Maxum Defendants would not waive its right to subrogation until May 7, 2012, well over a month from the time it was advised that the third party had tendered policy limits, and almost three months from when it had received Plaintiffs medical bills and records.

16. On or about April 5,2012, Plaintiffs counsel, Oleg Roytman, received a letter from Robert Poindexter Coffey, Jr., referencing a case styled Povlick v. VIP Motors, requesting a medical authorization signed by the Plaintiff.

17. Plaintiffs counsel, Oleg Roytman, advised Mr. Coffey that he was not involved in any such litigation and requested that Mr. Coffey advise as to why he was in need of an executed medical authorization.

18. Mr. Coffey contacted Mr. Roytman via telephone and advised Mr. Roytman that he had been retained by the Maxum Defendants to evaluate Plaintiffs claim for underinsured motorists benefits.

19. Plaintiff subsequently re-submitted all of his medical records and bills, along with an additional medical authorization, to Mr. Coffey’s attention.

20. To date, the Maxum Defendants have unreasonably failed and refused to pay the benefits under the insurance policy for which it has been receiving premiums from the Plaintiff since 2010.

CAUSES OF ACTION

(As TO DEFENDANT GDK INSURANCE)

I. BREACH OF CONTRACT

21. Paragraphs 1-20 are incorporated herein by reference.

22. Prior to the aforementioned acts and omissions a contract was formed between Plaintiff and Defendant GDK Insurance.

23. Defendant GDK Insurance agreed to provide Plaintiff with an automobile insurance policy that would afford Plaintiff uninsured/underinsured motorist coverage where in the event Plaintiff was injured in an automobile collision and his injuries exceeded the tortfeasor’ s insurance coverage, then Plaintiff would be provided uninsured/underinsured motorist benefits,

24. Defendant GDK Insurance breached this contract by failing to provide a policy that afforded Plaintiff this coverage.

25. As a result of this breach of contract, Plaintiff has suffered actual damages in excess of
$75,000.00.

II. FRAUD IN THE INDUCEMENT

26. Paragraphs 1-25 are incorporated herein by reference.

27. Defendant GDK Insurance made material representations to the Plaintiff that Defendant would provide an insurance policy with coverage that in the event Plaintiff was injured in an automobile collision and his injuries exceeded the tortfeasor’s insurance coverage, then Plaintiff would be provided uninsured/underinsured motorist benefits under said policy.

28. Defendant GDK Insurance made these material representations with knowledge of their falsity and/or made them recklessly without knowledge as to their truth or falsity. These material representations were meant to induce Plaintiff into purchasing uninsured/underinsured motorist coverage.

29. Defendant GDK Insurance made these material representations as positive assertions with the intention that they be acted upon by Plaintiff in purchasing an automobile insurance policy including uninsured/underinsured motorist coverage.

30. Plaintiff in fact relied on the material representations made by Defendant GDK Insurance. Plaintiff chose to enter into a contract for uninsured/underinsured motorist coverage based on the representations made by Defendant GDK Insurance that said coverage would be applicable to Plaintiff.

31. Because of Defendant GDK Insurance’s fraud, Plaintiff has suffered actual damages in excess of $75,000.00.

(As TO THE MAXUM DEFENDANTS)

32. Paragraphs 1-31 are incorporated herein by reference.

33. In its handling of Plaintiffs claim for underinsured motorist benefits under the insurance policy in effect as of October24, 2011, and as a matter of routine practice in handling similar claims, the Maxum Defendants breached its contractual obligations as well as its duty to deal fairly and in good faith towards Plaintiff in the following respects:

a. Requiring Plaintiff to pursue a claim against another party before he could be entitled to benefits under the policy with Defendant(s);

b. Unreasonably reliising to waive subrogation or make a proper substitution in relation to the third-party liability limits tendered to Plaintiff;

c. Failing to have knowledge or formal training regarding the terms of its underinsured motorist policy with Plaintiff;

d. Failure to comply with industry standards;

e. Failing to reasonably construe the law applicable to Plaintiffs claim(s) and policy;

f. Attempting to shift the burden of investigation onto Plaintiffs counsel;

g. Unreasonably handling Plaintiffs claim causing Plaintiff to institute unnecessary litigation;

h. Failing to pay Plaintiff the insurance benefits that he was entitled to under the policy at the time when Defendant(s) knew that the Plaintiff was entitled to those benefits;

i. Unreasonably delaying payment of benefits without a reasonable basis;

j. Refusing to pay Plaintiff’s claim for reasons contrary to the express provisions of the law;

k. Intentionally and recklessly misapplying the provisions of the insurance policy;

1. Using its unequal wealth and bargaining position to overwhelm and take advantage of the Plaintiff and to effect an economic gain for the Defendant(s) by not paying an amount that it owed by virtue of the insurance contract;

m. Failing to properly investigate the Plaintiffs claim for benefits;

n. Failing to properly evaluate the investigation that was done on Plaintiffs claim for benefits;

o. Failing to adopt and implement reasonable standards for the prompt investigation and handling of claims arising under the policies including the claims of the Plaintiff;

p. Failing to attempt to act in good faith to effectuate a prompt, fair settlement for Plaintiffs claim.

34. As a direct result of the Maxum Defendants breach of contract and breach of the implied covenant of good faith and fair dealing, Plaintiff has suffered the loss of his insurance policy benefits, mental and emotional distress, anxiety, embarrassment, medical expenses and financial hardship, all of which are in excess of seventy-five thousand dollars ($75,000).

35. The Maxum Defendants have acted intentionally, maliciously and in reckless disregard for the rights of the Plaintiff. As a result, the Plaintiff is entitled to recover punitive damages against Defendant Maxum for these actions.

(As TO ALL DEFENDANTS)

Punitive Damages

36. Paragraphs 1-35 are incorporated herein by reference.

36. The intentional, wanton and reckless conduct ofDefendants in disregard of the rights of Plaintiff and others is, and was, conducted with full knowledge, in that Defendants knew, or should have known, of the severe adverse consequences of their acts and omissions, That such actions and/or inactions were not only detrimental to Plaintiff but the public in general.

WHEREFORE, based on the foregoing, Plaintiff prays that this Court enter judgment against Defendants and grant him the relief sought including, but not limited to, actual damages in excess of Seventy Five Thousand Dollars ($75,000.00), punitive damages in excess of Seventy Five Thousand Dollars ($75,000.00), costs, pre-judgment interest, post-judgment interest, reasonable attorneys fees, and all other relief deemed appropriate by this Court.

Outcome: Settled and dismissed with prejudice as to all defendants except for Maxum Indemnity Company, which was dismissed without prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: