[J-27-2017][M.O. – Baer, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

MATTHEW RANCOSKY, 

ADMINISTRATOR DBN OF THE ESTATE 

OF LEANN RANCOSKY AND MATTHEW 

RANCOSKY, EXECUTOR OF THE 

ESTATE OF MARTIN L. RANCOSKY,

Appellee

v.

WASHINGTON NATIONAL INSURANCE 

COMPANY, AS SUCCESSOR BY 

MERGER TO CONSECO HEALTH 

INSURANCE COMPANY, FORMERLY 

KNOWN AS CAPITAL AMERICAN LIFE 

INSURANCE COMPANY,

Appellant

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No. 28 WAP 2016

Appeal from the Order of the Superior 

Court entered 12/16/15 at No. 1282 

WDA 2014, affirming in part and 

vacating in part the judgment of the 

Court of Common Pleas of Washington 

County entered on 8/1/14 at No. 2008-

11797, and remanding 

ARGUED: April 4, 2017

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: SEPTEMBER 28, 2017

I join Parts I and III of the majority opinion. 

As to Part II, I support the holding that a denial of insurance benefits in the 

absence any reasonable supporting basis, coupled with knowledge or reckless 

disregard on the part of the insurer, is sufficient to constitute bad faith for purposes of 

Section 8371 of the Judicial Code. That said, my reasoning does not fully comport with 

some of the majority’s rationale. For example, I differ with the assertion that “an ill-will 

level of culpability would limit recovery in any bad faith claim to the most egregious 
[J-27-2017][M.O. – Baer, J.] - 2

instances only where the plaintiff uncovers some sort of ‘smoking gun’ evidence 

indicating personal animus towards the insured.” Majority Opinion, slip op. at 22. To 

the contrary, inferences regarding intent are legitimately and regularly drawn from

circumstantial evidence (including actions and inaction) in other contexts, including in 

the criminal law. See, e.g., Commonwealth v. Kloiber, 378 Pa. 412, 426, 106 A.2d 820, 

827 (1954) (“It is clearly settled that a man may be convicted on circumstantial evidence

alone, and a criminal intent may be inferred by the jury from facts and circumstances 

which are of such a nature as to prove defendant's guilt beyond a reasonable doubt.”). I 

see no reason why the General Assembly could not have envisioned similar treatment 

in the bad-faith arena.

Instead, I endorse the threshold of at least reckless disregard, since I believe that 

this captures a sufficient measure of wrongfulness to comport with the Legislature’s 

remedial purposes and yet conveys that a finding of bad faith requires more than mere 

negligence.1

As to punitive damages, I believe these should also be adjudged according to 

conventional standards, including the applicable constitutional limitations. In this 

regard, the Supreme Court of the United States has explained that the federal Due 

Process Clause of the Fourteenth Amendment to the United States Constitution 

requires a circumstance-specific assessment of the “degree of reprehensibility” relative 

to punitive damage awards. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 

 

1

It should be acknowledged, however, that term “recklessness” itself carries some 

ambiguity. See Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 1978 (1994) 

(“[T]he term recklessness is not self-defining.”). From my own point of view, civil-law 

recklessness as defined by the Supreme Court of the United States, see id. at 836-37, 

114 S. Ct. at 1978-79, should suffice to support the compensatory damages and feeshifting provided in Section 8371. However, the question whether it will support punitive 

damages in any given amount, consistent with constitutional norms, must be addressed 

according to the federally-prescribed standards discussed below.
[J-27-2017][M.O. – Baer, J.] - 3

408, 418-19, 123 S. Ct. 1513, 1520-21 (2003). In the absence of more specific and 

appropriate legislative guidance, trial courts must be sensitive to the attendant 

considerations and limitations, see id. at 419, 123 S. Ct. at 1521, lest their awards 

reflect unconstitutional applications of Section 8371.

Finally, I agree with the remand on the terms prescribed by the majority for the 

reasons that it sets forth at the conclusion of Part II of its opinion. See Majority Opinion, 

slip op. at 23.