Berenato v. Seneca Speciality Insurance Co.
Berenato v. Seneca Speciality Insurance Co.
Opinion of the Court
MEMORANDUM OPINION
This case, which is before the Court on the Motions for Summary Judgment of Defendants Seneca Specialty Insurance Co., Gallagher Bollinger, and All Risks, Ltd., presents a thicket of tort, contract, and insurance issues: Plaintiffs vacant warehouse burned in a fire after he turned off its sprinkler system, and he now seeks to recover for that loss through an insurance policy that was not sent to him. Defendants respond that the unambiguous language of the policy bars coverage, and that Plaintiff is responsible for the loss because he disabled the sprinkler system. As explained below, Defendants’ motions will be granted.
I. BACKGROUND
The material facts are undisputed. Plaintiff Paul Berenato, Sr., owned a vacant
We will not pay for loss or damage caused by or resulting from fire if, prior to the fire, you:
1, Knew of any suspension or impairment in any protective safeguard listed in the Schedule above and failed to notify us of that fact; or
2. Failed to maintain any protective safeguard ... over which you had control in complete working order.
If part of an Automatic Sprinkler System ... is shut off due to breakage, leakage, freezing conditions or opening of sprinkler heads, notification to us will not be necessary if you can restore the full protection within 48 hours.4 ,
The property’s sprinkler system suffered leaks on at,least three occasions between January and March 2015.
This case also involves Bollinger and All Risks, both of which assisted Plaintiff in procuring insurance from Seneca. Bollinger acted as. Plaintiffs broker.
All parties' were under the impression that Plaintiff had a working sprinkler system when he applied for insurance. When Plaintiff completed an insurance application with Matthew Jakubowski, a Bollinger employee, he informed Mr. Jakubowski that there was a “wet sprinkler system throughout the building.”
Seneca then issued the policy, but Plaintiff never received it due to a transmission error.
After Seneca denied coverage, Plaintiff commenced suit in state court, asserting a claim for breach of contract against Seneca, claims for breach of contract and negligence against Bollinger, and a claim for negligence against All Risks. Bollinger then removed the case to this Court on the basis of diversity-jurisdiction.
II. LEGAL STANDARD
“The underlying purpose of summary judgment is to. , avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”
In evaluating a summary judgment motion, a court “must view the facts in the light. most favorable to the non-moving party,” and make every reasonable inference in that party’s favor.
III. DISCUSSION
A. Seneca’s Motion
Seneca moves for summary judgment on Plaintiffs breach-of-contract claim, arguing that the protective safeguards endorsement bars coverage. Plaintiff responds that the protective safeguards endorsement is ambiguous, and that Seneca cannot invoke it because Plaintiff never received the policy.
1. The Protective Safeguards Endorsement Is Unambiguous
Seneca argues that the protective safeguards endorsement is unambiguous because it states that Seneca “will not pay for loss or damage caused by or resulting from fire” in the event that Plaintiff “failed to maintain any protective safeguard ... over which [he] had control in complete working order,” and that Plaintiff violated this requirement when he turned off the sprinkler system.
“Under Pennsylvania law, the interpretation of an insurance contract is a matter of law for the court,”
Here, the protective safeguards endorsement set an unambiguous baseline requirement that Plaintiff keep his sprinkler system on. To “maintain” a system in “complete working order” necessarily means that the system is operational, not merely that it exists. While reasonable minds could perhaps differ about the scope of the “complete working order” requirement in the abstract, there can be no doubt that it prevented Plaintiff from intentionally disabling the system, as he did here. In other eases where a policyholder either did not have a working sprinkler system in place or turned off the system, courts have found that similar protective safeguards endorsements bar coverage, and the Court reaches the same conclusion here.
Plaintiffs attempts to create ambiguity in this language are unavailing. First, Plaintiff argues that the protective safeguards endorsement is ambiguous because it contains a provision to the effect that Plaintiff was not required to notify Seneca of a shutoff in the sprinkler system if he was able to “restore the full protection within 48 hours.”
2. Seneca Is Not Barred from Asserting the Protective Safeguards Endorsement
Plaintiff next argues that Seneca cannot assert the protective safeguards endorsement because he never received the insurance policy. This argument fails because Seneca, as a surplus lines insurer, had no duty under Pennsylvania law to deliver the policy, and Plaintiff cannot establish that he had a reasonable expectation of coverage for fire-related losses in the absence of a working sprinkler system.
Seneca was not required to deliver the policy because Pennsylvania law places that duty on All Risks, the surplus lines licensee.
Plaintiff also suggests that Seneca’s failure to ensure that the policy was delivered caused his loss of coverage because if he had received the policy, “he would have sat down with Mr. Jakubowski to go over the requirements, and not allowed the system to remain off even for a limited period.”
Finally, Plaintiff argues that Seneca cannot invoke the protective safeguards endorsement because, having never received the policy, he had no reason to believe that a' working sprinkler system was a precondition to coverage.
The reasonable expectations doctrine is inapplicable here because undisputed evidence shows Plaintiff was aware that he needed to maintain a working sprinkler system. Plaintiff informed Mr. Jakubowksi when applying for insurance that his property had “100%” sprinkler coverage
There is also no evidence that Seneca led Plaintiff to believe that it would cover a fire-related loss in the absence of a working sprinkler system. Plaintiff claims that because Seneca sent an inspector to his property, but did not advise him of the sprinkler system requirement during the inspection, he had a reasonable expectation of coverage notwithstanding his deactivation of the system.
Because Plaintiff failed to maintain the sprinkler system in working order, as the Policy required, and Plaintiff had no reasonable expectation of coverage with the system shut off, summary judgment will be entered in favor of Seneca.
Bollinger, the broker, moves for summary judgment on Plaintiffs breach-of-contract and negligence claims. Bollinger argues that both claims fail because Plaintiff has presented no evidence that any breach of contract or negligence by Bol-linger caused his loss of insurance coverage.
1. Plaintiffs Breach-of-Contract Claim
Plaintiff claims that Bollinger breached an agreement by failing to ensure that he was properly represented when he purchased insurance. A breach-of-contract claim requires: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.”
Plaintiffs claim fails for two reasons. First, there is no evidence that Bol-linger agreed to do anything other than procure insurance for Plaintiff, which it did, satisfying any contractual obligations. An implied-in-fact contract “arises when the intention of the parties is not expressed, but an agreement in fact creating an obligation is implied or presumed from their acts.”
Second, there is no evidence that Bollinger’s alleged breach caused Plaintiffs damages. “In order to recover damages for a contractual breach, a plaintiff must also establish a causal relationship between the breach and the loss.”
2. Plaintiffs Negligence Claim
Plaintiff also' alleges that Bol-linger was negligent because it failed to explain the policy or ensure that it was delivered to Plaintiff.
Plaintiffs negligence claim fails for the same reason as his breach-of-contract claim: there is no evidence that Plaintiff would have maintained a working sprinkler system if-. Bollinger had acted differently, meaning Plaintiff cannot show that Bollinger’s alleged negligence was either the but-for or proximate cause of his loss,
Plaintiffs claim also fails because Plaintiffs contributory negligence bars recovery. Under Pennsylvania law, an insurance broker cannot be held liable for a customer’s loss caused by his negligence where “the customer is also guilty of failure to exercise care of a reasonably prudent businessman for the protection of his own property and business which contributes to the happening of such loss.”
Bollinger argues that Plaintiff was negligent for turning off the sprinkler system.
Plaintiff responds that he was not aware that his insurance policy required him to maintain a working sprinkler system, but as already explained, the uncontroverted evidence establishes that Plaintiff knew of this requirement despite not receiving the policy.
Plaintiff also argues that contributory negligence is an issue for the jury. While that is often true, decisions that predate the Comparative Negligence Act demonstrate that summary judgment is appropriate in cases such as this where there is no genuine factual dispute regarding the plaintiffs negligence.
C. All Risks’ Motion
All Risks moves for summary judgment on Plaintiffs claim that All Risks was negligent in failing to deliver the insurance policy to Plaintiff.
IV. CONCLUSION
For the reasons stated above, Defendants’ motions will be granted. An appropriate Order will be entered.
. Doc. No. 26 (Seneca’s Motion for Summary Judgment) at 1.
. Id.
. Id. at 1, 5-6.
. Id. at 6; see also Doc, No. 27-2 (Ex. M to Bollinger’s Motion for Summary Judgment) (Seneca Policy) at 8-9 (ECF pagination unless otherwise noted).
. Id. at 2-3; Doc. No. 32 (Plaintiff’s Omnibus Memorandum of Law in Opposition to Defendants’ Summary Judgment Motions)'at 7-10.
. Doc. No. 26 at 2; Doc. No. 32 at 2, 7, 9-10.
. Doc. No. 26 at 2; Doc. No. 27 (Bollinger's Motion for Summary Judgment) at 5; Doc. No. 28 (All Risks’ Motion for Summary Judgment) at 6-7; Doc. No. 32 at 10-11,
. Doc. No. 26 at 3; Doc. No. 32 at 12.
. Doc. No. 32 at 14; see also Doc. No 27-3 (Ex. N. to Bollinger’s Motion for Summary Judgment) (June 12, 2015 Ltr. from Seneca to Plaintiff) at 3-4.
. Doc. No. 32 at 5.
. Id. at 5; Doc. No. 26 at 3. Plaintiff questions Bollinger’s efforts to obtain insurance . from an admitted carrier before turning to the surplus lines market, Doc. No. 32 at 5, but that is immaterial for summary judgment purposes, as the parties agree that Plaintiff ultimately obtained surplus lines insurance from Seneca.
. Doc. No. 32 at 6-7; Doc. No. 28 at 3.
. Doc. No. 27 at 3; Doc. No. 27-1 (Ex, C to Bollinger's Motion for Summary Judgment) (Oct. 28, 2014 email) at 75; Doc. No. 32 at 6 ("As part of their discussions, Mr. Berenato advised Mr. Jakubowski that there was a wet sprinkler system throughout the building.").
. Doc. No. 26 at 4; Doc. No. 27 at 5-6; Doc. No, 27-1 (Ex. E to Bollinger’s Motion for Summary Judgment) (Seneca Quote) at 91; Doc, No. 28 at 3.
. Doc. No. 27-1 (Ex. A to Bollinger’s Motion for Summary Judgment) (Complaint) ¶¶ 8-9.
. Doc. No. 32 at 7-9; see also Doc. No. 26 at 1,4.
. Doc, No. 26 at 1; Doc. No. 27 at 5; Doc. No. 28 at 7; Doc. No. 32 at 7-9.
. Doc. No. 32 at 12.
. Doc. No. 1 (Notice of Removal),
. Walden v. Saint Gobain Corp., 323 F.Supp.2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
. Fed. R. Civ. P. 56(a).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
. Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).
. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),
. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).
. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
. Peterman v. Sakalauskas, 978 F.Supp.2d 439, 443 (E.D. Pa. 2013) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
. Doc. No. 26 at 9 (citing policy).
. Lexington Ins. v. W. Penn. Hosp., 423 F.3d 318, 323 (3d Cir. 2005) (citing Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999)).
. Fireman’s Fund Ins. Co. v. Zurich Am. Ins. Co., Civil Action No. 10-cv-429, 2011 WL 2937421, at *3 (E.D. Pa. July 19, 2011) (citing Lexington Ins., 423 F.3d at 323).
. Id. (citing Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983)).
. Id. (citations omitted).
. Id. (citations omitted).
. Id. (citations omitted).
. Id. (citations omitted).
. Yera, Inc. v. Travelers Cas. Ins. Co. of Am., No. 1398 EDA 2013, 2014 WL 10936714, at *3-4 (Pa. Super. Ct. Apr. 22, 2014) (finding identical protective safeguard endorsement unambiguous, and affirming grant of summary judgment for defendant where plaintiff's building did not have a sprinkler system); see also Scottsdale Ins. Co. v. Logansport Gaming, L.L.C., 556 Fed.Appx. 356, 359-360 (5th Cir. 2014) (affirming summary judgment for defendant in insurance case involving identical protective safeguards endorsement because it was undisputed that plaintiff’s sprinkler system did not work on the day of the fire); Chaucer Corp. Capital (No. 2) Ltd. v. Norman W. Paschall Co., 525 Fed.Appx. 895, 896 (11th Cir. 2013) (holding that the "district court properly determined that coverage was barred by the exclusion that applies where [defendant] failed to maintain its automatic sprinkler system, over which it had control, in complete working order, because [defendant's] maintenance employee had turned off an entire system of the automatic sprinkler system”); Great Lakes Reins. (UK), PLC v. JDCA, LLC, No. 11-00001-WGY, 2014 WL 6633039, at *11 (D. Conn. Nov. 21, 2014) (concluding that protective safeguards endorsement requiring presence of an automatic sprinkler system was unambiguous and created a condition precedent to recovery under insurance policy); Am. Way Cellular, Inc. v. Travelers Prop. Cas. Co. of Am., 216 Cal.App.4th 1040, 157 Cal.Rptr.3d 385, 398 (2013) (concluding that similar protective safeguards endorsement required policyholder "to have a functioning, operational sprinkler system during the period of coverage”).
. Doc. No. 32 at 18.
. In support of his position, Plaintiff cites an email chain from February and March 2015 in which Mr. Jakubowski informs him that an inspector sent by Seneca discovered leaks in the ceiling, and gave Mr. Berenato 60 days to correct them. Plaintiff thus reasons that he should have been afforded a similar grace period regarding the defects in the sprinkler system. Doc. No. 32 at 18, Doc. No. 33-4 (Ex. N to Plaintiff’s Opposition). But nothing in the emails suggests that Seneca agreed to modify the unambiguous language of the protective safeguards endorsement, so they are irrelevant on this point.
. Control, Black’s Law Dictionary (9th ed. 2009).
. Plaintiff also apparently breached a separate requirement that he "maintain heat in the building ... at a minimuin of 55 degrees Fahrenheit,” Doc. No. 26-2 (Seneca Policy) at 13, which could explain why the pipes kept . freezing.
. Plaintiff's expert, Jane" M. Downey, opines in her ‘.‘Supplemental Report” that Seneca breached an additional requirement under Pennsylvania’s surplus lines statute that it issue a binder including a description of its insurance policy along with any material limitations, such as the sprinkler requirement. Doc. No. 37-1 at 2. However, this is irrelevant, as Ms. Downey acknowledges that Seneca did in fact issue a binder noting the existence of "Protective Safeguards, Sprinklers” in the policy, and does not opine that this shorthand description somehow misled Plain- • tiff into believing he could disable his sprinklers and still receive- coverage for fire-related losses.
Ms. Downey’s “Supplemental Report” is also untimely, as it was issued more than two months after the briefing for summary judgment concluded and nearly five months after the deadline for Plaintiff’s expert reports. See Doc, No. 24 (Scheduling Order). While Plaintiff claims that the Supplemental Report was necessitated by “additional discovery” that took place after summary judgment briefing, this “additional discovery” appears to consist exclusively of Ms. Downey’s own deposition testimony, which presumably was available to Plaintiff before that, Át no point during summary judgment briefing did Plaintiff request additional time for discovery, which is "usually fatal" to such late-breaking requests to supplement the record. See Pastore v. Bell Tel. Co. of Penn., 24 F.3d 508, 511 (3d Cir. 1994); see also Fed. R. Civ. P. 56(d) (when nonmovant cannot present facts essential to justify its opposition to summary judgment, a court may defer the motion or allow additiorial discovery); Hartle v. FirstEnergy Generation Corp., 7 F.Supp.3d 510, 517 (W.D. Pa. 2014) (explaining that while parties may supplement expert reports in certain circumstances, "[c]ourts distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from gamesmanship, and have therefore repeatedly rejected’ attempts to avert summary judgment by ‘supplementing’ an expert report with a ‘new and improved’ expert report.”) (quoting Wright & Miller, Federal Practice & Procedure § 2049.1). In any event, the rest of Ms. Downey's new report, which consists mostly of reiterating fact witness deposition testimony, has no bearing on the issues here,
. 40 P.S. § 991.1612(a). Under the statute, the “writing producer” is "[t]he insurance producer which brings about or negotiates contracts of insurance directly on behalf of the consumer seeking insurance,” which here is Bollinger, the broker. 40 P.S. § 991.1602.
. 40 P.S. § 991.1601; see also Al's Cafe, Inc. v. Sanders Ins. Agency, 820 A.2d 745 (Pa. Super. Ct. 2003) (discussing legislative purpose).
. Tudor Ins. Co. v. Twp. of Stowe, 697 A.2d 1010, 1018 (Pa. Super. Ct. 1997); see also Nations First Mortg. LLC v. Tudor Ins. Co., No. 3:CV-05-2527, 2009 WL 3182967, at *9 (M.D. Pa. Sept. 30, 2009) (explaining that surplus lines insurers "must rely on” surplus , lines licensees "to conduct business in Pennsylvania”).
. Doc. No. 32 at 21,
. E.g., Gonzalez v. Sec'y of Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (“conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment”) (citations and internal quotation marks omitted),
. Doc. No. 27-1 (Ex, B to Bollinger’s Motion for Summary Judgment) (Deposition of Paul Berenato, Sr.) at 36:21-38:6; see generally Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("When, without a satisfactory explanation, a nonmovant’s affidavit contra- . diets earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists.”).
. Doc. No. 32 at 20-21.
. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 903 (3d Cir. 1997).
. Id.
. Liberty Mut. Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 344 (3d Cir. 2005) (citing Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 109 n.8 (1999)).
. Id. (quoting Frain v. Keystone Ins. Co., 433 Pa.Super. 462, 640 A.2d 1352, 1354 (1994)).
. Doc. No. 26-1 at 20 (Exhibits to Seneca’s Motion for Summary Judgment).
. Doc. No. 27-1 (Ex. C to Bollinger’s Motion for Summary Judgment) at 75.
. Doc. No. 27-1 (Ex. E to Bollinger's Motion for Summary Judgment) (Seneca Quote) at 91.
. Doc. No. 27-1 (Ex. H. to Bollinger’s Motion for Summary Judgment) (Feb. 18, 2015 Ltr. from Plaintiff to Edward’s Fire Protection) at 105 (emphasis added).
. Doc. No. 32-1 (Ex. D to Plaintiff's Opposition to Defendant's Summary Judgment Motions) at 83.
. Doc. No. 32 at 20-21.
. Id.
. See Smith v. Cont'l Cas. Co., 347 Fed.Appx. 812, 814 n.1 (3d Cir. 2009) (affirming grant of summary judgment in insurance case, rejecting argument based on "reasonable expectations" doctrine, and noting that "unreasonable expectations will never control”).
. Doc. No. 27 at 18-20.
. Id. at 14-18, 21-23.
. CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999).
. Bricklayers of W. Penn. Combined Funds, Inc. v. Scott’s Dev. Co., 625 Pa. 26, 90 A.3d 682, 695 (2014) (quoting In re Montgomery’s Estate, 299 Pa. 452, 149 A. 705, 707 (1930)).
. See Loomis v. KEYW Corp., Civil Action No. 13-974, 2015 WL 2237046, at *4 (E.D. Pa. May 13, 2015) (granting defendant's summary judgment motion on insurance broker’s implied-in-fact contract claim because there was "no evidence in the summary judgment record” that any such contract existed).
. Ins. Co. of Greater N.Y. v. Fire Fighter Sales & Serv. Co., 120 F.Supp.3d 449, 459 (W.D. Pa. 2015) (quoting Brader v. Allegheny General Hosp., 64 F.3d 869, 878 (3d Cir. 1995)).
. First Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F.Supp.2d 362, 388-89 (E.D. Pa. 2013). While rare, cases do exist in which courts have granted summary judgment on breach-of-contract claims after finding that the plaintiff could not establish causation as a matter of law. E.g., Community Preschool & Nursery of E. Lib., LLC v. Tri-State Realty, Inc., 430 Fed.Appx. 125, 128 (3d Cir. 2011) (affirming grant of summary judgment on breach-of-contract claim because there was "no genuine issue of material fact as to causation”).
. Doc. No. 32 at 23-24.
. Gonzalez, 678 F.3d at 263 (non-movant’s "own, sworn statements are insufficient to survive summary judgment”); McBride v. Am. Substance Abuse Prof'ls., Inc., 917 F.Supp.2d 419, 426 (E.D. Pa. 2013) (explaining that "[t]o determine whether a nonmoving party's deposition testimony alone is insufficient to withstand summary judgment, the assertions must be compared to the other evidence of record to determine whether they are sufficient” to create a genuine factual dispute, and holding that plaintiff’s deposition testimony was not enough to establish negligence claim).
. Doc. No. 32 at 23,
. Laventhol & Horwath v. Dependable Ins. Assocs., 396 Pa.Super. 553, 579 A.2d 388, 391 (1990).
. Al's Cafe, 820 A.3d at 750 (citations and internal quotation marks omitted).
. See Harmelin v. Man Fin. Inc., Civil Action No. 06-1944, 2007 WL 3146666, at *3 (E.D. Pa. Oct. 26, 2007) ("There are two lands of causation, 'but for’ causation and proximate cause, both of which are generally necessary to establish legal causation,”),
While the Court assumes for the purposes of this opinion that Plaintiff can establish the other elements of a negligence claim, it is debatable whether Bollinger owed Plaintiff a duty to explain the protective safeguards endorsement in detail, as Plaintiff alleges. Plaintiff’s primary evidence in support of the existence of such a duty is Ms. Downey's opinion regarding the customs and practices of the insurance industry, see Doc. No. 32-1 (Ex. D to Plaintiff's Opposition to Defendant's Summary Judgment Motions), but case law suggests that an insurance broker’s duty to his or her clients is more circumscribed. See Allegrino v. Conway E & S, Inc., Civil Action No. 09-1507, 2010 WL 3943939, at *8 (W.D. Pa. Oct. 6, 2010) ("In the context of an insurance transaction, the insured is presumed to know what type of coverage he/it needs or wants, and an insurance broker is not under an affirmative duty to inspect a property and recommend insurance to a client, or to advise a client regarding the extent of coverage.”) (citations omitted); Wisniski v. Brown & Brown Ins. Co., 906 A.2d 571, 581 (Pa. Super. Ct. 2006) (holding that insurance broker did not owe clients a duty to inform them that their policy lacked flood insurance even though an inspection of the property would have revealed that it was at risk of flooding).
. See generally Bushman v. Halm, 798 F.2d 651, 657 (3d Cir. 1986) ("Where there can be no two factual conclusions, or where there is some applicable rule of law decisive of the issue, it is the function of the court to determine whether a defendant’s conduct is the legal cause of plaintiff's harm.’’); see also Galullo v. Fed. Express Corp., 937 F.Supp. 392, 399 (E.D. Pa. 1996) (in negligence suit where plaintiff alleged that she slipped on a package left by defendant, granting summary judgment for defendant because plaintiff "presented no evidence tending to prove what caused her fall’’); Amarhanov v. Fassel, 442 Pa.Super. 111, 658 A.2d 808, 810 (1995) (in negligence suit where plaintiff suffered injuries while rummaging through a dumpster when it was struck by a car, summary judgment was warranted for defendants who - owned the premises because there was no evidence that the placement of the dumpster caused plaintiff’s injuries); Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459, 463 (1987) (in negligence suit where plaintiff-motorcyclist was struck by car, affirming grant of summary judgment for defendant who allegedly made hand signal that caused motorcyclist to turn into oncoming traffic because there was no evidence hand signal caused collision).
. Consol. Sun Ray, Inc. v. Lea, 401 F.2d 650, 656 (3d Cir. 1968); see also Indus. Valley Bank & Tr. Co. v. Dilks Agency, 751 F.2d 637, 641 (3d Cir. 1985) (insured’s failure to exercise reasonable care barred negligence action against broker).
. Wescoat v. Nw. Savings Ass’n, 378 Pa.Super, 295, 548 A.2d 619, 623 (1988); see also Acands, Inc. v. Aon Risk Servs., Civil Action No. 01-3277, 2004 WL 2601035, at *4 (E.D. Pa. Nov. 10, 2004) (applying contributory negligence doctrine in insurance case). Of course, this action involves an "injury to property” in the sense that it arises out of a fire in Plaintiff’s building, but that does not bring it within the scope of the Comparative Negligence Act because Plaintiff does not allege that Bollinger (or All Risks) caused the fire, but rather that they caused him to suffer financial losses due to a lack of insurance coverage. See Rizzo v. Michener, 401 Pa.Super. 47, 584 A.2d 973, 976 (1990) (explaining that for, the Comparative Negligence' Act to apply, the action must concern "a tortious episode which causes damage to tangible real or personal property,” and holding that contributory négligence governed' plaintiffs’ claim that defendant .negligently failed to discover termite damage on plaintiffs' property because, defendants negligence did not cause the damage). In, any event, although. Plaintiff does not concede that contributory negligence governs here, Doc. No. 32 at 25, he also does not present any argument as to why the Comparative Negligence Act applies, and the Court .will apply the doctrine of contributory negligence.
. Doc. No. 27 at 23.
. See Consol. Sun Ray, Inc., 401 F.3d at 656.
. Doc. No. 32 at 25.
. See generally Monahan v. Toro Co., 856 F.Supp. 955, 965 (E.D. Pa. 1994) (“The test of negligence is whether the wrongdoer could have foreseen the likelihood of harm to the plaintiff resulting from defendant’s conduct.”) (citation omitted); see also Scottsdale Ins. Co. v. Weiner, Civil No. 03-3857 (JBS/JS), 2010 WL 445649, at *1, 7 (D.N.J. Feb. 1, 2010) (under New Jersey law, finding defendants negligent and liable for fire that destroyed "Dracula’s Castle,” a tourist attraction, after they disabled the Castle’s smoke alarms and sprinkler systems),
. E.g., Slater v. Erie Lackawanna Ry. Co., 300 F.Supp. 1, 4 (W.D. Pa. 1968) (granting summary judgment for defendant based on plaintiff's contributory negligence where undisputed evidence showed that plaintiff stopped her car at a railroad crossing and failed to move before being hit by a train); Kronk v. W. Penn Power Co., 422 Pa. 458, 222 A.2d 720, 722 (1966) (affirming judgment of nonsuit on contributory negligence grounds where plaintiff raised the mast of his drilling rig into power lines in broad daylight) (plurality opinion); Just v. Son's of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308, 310 (1976) (affirming grant of summary judgment for defendant based on plaintiff’s contributory negligence where plaintiff fell while attempting to walk down a staircase in total darkness).
. Sipko v. Penn R. Co., 332 Pa. 106, 2 A.2d 717, 718 (1938).
. Doc. No. 28.
. Id. at 18-33.
Reference
- Full Case Name
- Paul BERENATO, Sr. v. SENECA SPECIALITY INSURANCE COMPANY
- Cited By
- 6 cases
- Status
- Published