Allstate Ins. Co. v. Rochkind
| Decision Date | 31 March 2019 |
| Docket Number | Civil Action No. ELH-17-3400 |
| Citation | 381 F.Supp.3d 488 |
| Parties | ALLSTATE INSURANCE COMPANY, Plaintiff, v. Stanley ROCHKIND, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Amanda C. Sprehn, Hyatt and Weber, P.A., Annapolis, MD, for Plaintiff.
Brian Marshall Spern, Law Office of Brian M. Spern, John Amato, IV, Goodman Meagher and Enoch LLP, Baltimore, MD, for Defendants.
"[A]n insurance company cannot be held liable for periods of risk it never contracted to cover." Pennsylvania National Mutual Casualty Ins. Co. v. Roberts , 668 F.3d 106, 109 (4th Cir. 2012). The insurance dispute at here issue concerns this "straightforward" principle. Id. But, the dispute is anything but straightforward.
Plaintiff Allstate Insurance Company ("Allstate") has filed a declaratory judgment action against defendants Stanley Rochkind, individually and as trustee of the assets of both Dear Management and Construction Company ("Dear Management") and Uptown Realty Co. Limited Partnership ("Uptown").1 See ECF 1 ("Complaint"). Allstate has also sued Malik Sherald, who was the plaintiff in a lead paint action that he filed against Rochkind in February 2017 in the Circuit Court for Baltimore City (the "Tort Case"). In the Tort Case, Sherald alleged injury from lead paint exposure in connection with a property owned, maintained, and/or managed by Rochkind. See ECF 1-2 (the Tort Case Complaint).2
Beginning in June 1988, Allstate issued a Personal Umbrella Policy (ECF 1-3, the "Policy") to Rochkind, who owns and manages residential properties in Baltimore. ECF 1, ¶ 11. The Policy, which provided excess personal liability coverage to Rochkind, was continually renewed over the next decade. Id. But, on June 13, 1999, Allstate modified the terms to exclude coverage for claims arising from lead paint exposure. Id. Then, on or about June 13, 2000, Allstate cancelled the Policy. ECF 1-3 at 8; see also ECF 22-1 at 2; ECF 38 at 9. Allstate now seeks a declaration that it has no duty to defend or indemnify Rochkind for injuries allegedly sustained by Sherald arising from lead paint exposure on or after June 13, 1999, i.e. , the effective date of the lead paint exclusion. Id. ¶ 12.
According to Allstate, Sherald's total lead exposure was 3858 days; it insured Rochkind for 1195 days; and therefore Allstate's total liability is 30.1% of any damages awarded against Rochkind (1195/3858). ECF 25 at 1.3 According to Allstate, Rochkind is liable for the remaining 69.9% of any judgment in favor of Sherald. ECF 1 at 6.
Three motions are now pending. First, Allstate has moved for summary judgment (ECF 22), supported by a memorandum of law (ECF 22-1) (collectively the "Allstate Motion") and two exhibits. ECF 22-2; ECF 22-3. Defendants filed a consolidated opposition and a cross motion for summary judgment or, in the alternative, to certify issues to the Maryland Court of Appeals. ECF 25 ("Cross Motion"). They also submitted two exhibits. ECF 25-1; ECF 25-2. Plaintiff filed a consolidated reply and opposition. ECF 29. Defendants replied (ECF 38) and submitted the Affidavit of Paul Rogers, M.D., an expert in neurodevelopmental pediatrics. ECF 28-1. The Affidavit pertains to Sherald's period of exposure to lead.
Allstate has moved to strike the Affidavit of Dr. Rogers. ECF 39. Defendants oppose the motion (ECF 40), and Allstate submitted a reply. ECF 43.
The Motions are fully briefed and no hearing is necessary to resolve them. See Local Rule 105.6. For the foregoing reasons, I shall deny the motions.
On February 27, 2017, in the Circuit Court for Baltimore City, Sherald sued Rochkind, individually and as trustee of the assets of Dear Management and Uptown. Sherald v. Rochkind , No. 24-C-17-000943; see also ECF 1-2. Sherald, who is now 23-years of age, alleged claims of negligence. He asserted that his mother, grandparents, and great grandmother lived at or visited 2722 Riggs Avenue in Baltimore City ("Property") from 1964 to the "present." Id. at 5, ¶ 5. According to Sherald, the Property was operated and controlled by Rochkind, Dear Management, and Uptown. Id. at 4-5, 13-15. Moreover, he asserted that he was exposed to lead paint at the Property from the time of his birth on March 6, 1996, to the "present," while either residing or visiting at the Property. Id. at 5. However, Sherald also appears to have alleged that damaging exposure occurred only until June 1999. Id. at 13-15; see ECF 25 at 33, 43-45.
Allstate was not a party to the Tort Case. The parties do not state whether Allstate provided a defense to Rochkind in the suit. See ECF 1-2.
During the pendency of the Tort Case, the parties engaged in discovery. During discovery, Sherald stated in an answer to an interrogatory: "Since birth, [Sherald] has always spent most of his time at [Rochkind's] rental property located at 2722 Riggs Avenue, where he currently resides." ECF 22-2 at 5. However, Sherald also stated that his parents "held [other] rental residences where Plaintiff would usually, but not always, sleep and call home." Id. He identified three other residences where he had lived: One from birth to age 2; a second from ages 2 to 7; and a third from 2003 to the present. ECF 22-2 at 5.
Of relevance here, Sherald described the condition of the Property, id. at 7:
The premises were not maintained by the landlord, and the painted surfaces were deteriorating throughout the rental property. Areas of chipping, peeling and flaking paint include the trim/woodwork around windows, doors and the baseboards. Also, walls, doors and kitchen cabinets. These areas of deteriorated paint were in most all rooms of the house, including the bedrooms, living room and kitchen. The front porch area woodwork was chipping, peeling
and flaking as well. Plaintiff was frequently at or near these areas of deteriorated paint as an infant and toddler, and throughout his life.
Further, Sherald stated that Rochkind "did not correct the deteriorated paint conditions when asked to do so or when otherwise informed of the presence of chipping peeling
and flaking paint inside the premises." Id. at 7-8.
In addition, Sherald provided his blood lead levels with respect to five dates. Id. at 9. His first test is dated March 7, 1997, and his last test is dated September 27, 2006. Id. The parties appear to agree for the purposes of the motions that Sherald's final blood lead levels were elevated. See ECF 25 at 33; ECF 29 at 7.
After some discovery, the Tort Case settled, and the parties stipulated to a dismissal of that case, with prejudice. See Sherald v. Rochkind , No. 24-C-17-000943, ECF 56/0, ECF 57/0 (Feb. 8, 2019; March 13, 2019).4 The parties have not provided the Court with the terms of the settlement.
As noted, Allstate's request for declaratory judgment arises out of a Personal Umbrella Policy of insurance issued to Rochkind. See ECF 1-3. The Policy covered the Property from June 13, 1988 until June 13, 2000. Id. at 8; ECF 1, ¶ 11.
The Policy (ECF 1-3) "applies to an occurrence anywhere in the world while the insurance is in force." Id. at 10. An "occurrence" is "an accident or continuous exposure to conditions." Id.
Pursuant to the Policy, "Allstate will defend an insured if sued as the result of an occurrence covered by this policy even if the suit is groundless, false or fraudulent." Id. at 14. Further, "Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence ." Id. at 12.5 The Policy defines "personal injury," in relevant part, to include "bodily injury, sickness, disease or death of any person." Id. at 11.
Effective June 13, 1999, Allstate added an endorsement to the Policy. Id. at 17-19 (the "Endorsement"). The Endorsement contains several exclusions, including an exclusion for physical injury resulting from exposure to lead. Id. at 18, Exclusion 10 (the "Lead Coverage Exclusion"). The Endorsement provides, id. at 17-19:
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