Wade Clark Mulcahy LLP

With the turn of the new year in a lawsuit entitled <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/01/Dwyer-v.-Ameriprise-Financial-et-al..pdf">Dwyer v. Ameriprise Financial, et al.</a> </em>No.: 519 WDA 2021, on January 9, 2023, the Pennsylvania Supreme Court has agreed to consider whether a court may triple the damages awarded against a defendant in a consumer protection suit in which the plaintiff already won punitive damages and attorney fees. <em>Dwyer</em> remains a case to watch as Pennsylvania’s highest court determines whether the heightened damages available under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) constitutes an unlawful second bite at the apple.

Specifically, <em>Dwyer </em>arises from a universal life insurance policy dispute in which Plaintiffs claim that in issuing their life insurance policy, Ameriprise Financial engaged in deceptive trade practices and made false misrepresentations you Plaintiffs about the terms / scope of their policy. As such, Plaintiffs commenced suit and the case was tried before a jury in the Philadelphia Court of Common Pleas. After establishing claims of negligent misrepresentation, fraudulent misrepresentation, violation of the UTPCPL, breach of fiduciary duty and negligent supervision, the jury returned a judgment subject to attorney’s fees and punitive damages totaling $244,172.57. The Pennsylvania Superior Court upheld the trial court’s denial of remedial treble damages under the UTPCPL, attorney’s fees, totaling $123,175.57, in addition to the jury’s award of punitive damages totaling $75,000. Importantly, the UTPCPL affords the trial court discretion to “award up to three times the actual damages sustained.”  73 P.S. § 201-9.2(a).

However, the novel question of just how much discretion a Pennsylvania judge has in awarding UTPCPL tremble damages on top of punitive damages obtained under alternate causes of action will soon be clarified by the Pennsylvania Supreme Court per its January 9, 2023 Order granting <em>Dwyer</em> certiorari. <em>Dwyer </em>remains a Pennsylvania case to watch for defense attorneys and the risk management industry alike. Often, the approach one takes to manage its risk depends significantly on what is at stake.

thanks to Kendall Hutchings for her contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.