Wehrenberg v. Metro. Prop. & Cas. Ins. Co.

• Decision Date: 10 January 2017
• Docket Number: 2:14-cv-01477
• Citation: Wehrenberg v. Metro. Prop. & Cas. Ins. Co., 228 F.Supp.3d 512 (W.D. Pa. 2017)
• Parties: Edward WEHRENBERG, Plaintiff, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

228 F.Supp.3d 512

Edward WEHRENBERG, Plaintiff,

v.METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

2:14-cv-01477

United States District Court, W.D. Pennsylvania.

Signed January 10, 2017

Edward Wehrenberg, Pittsburgh, PA, pro se.

Danielle M. Vugrinovich, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Defendant.

OPINION

Mark R. Hornak, United States District Judge

This is the third Opinion in Plaintiff's insurance coverage case. Plaintiff's Amended Complaint, ECF No. 37, contains two counts: one for breach of contract and one for bad faith denial of insurance coverage. Previously, the Court denied Plaintiff's Motion for Joinder of an Additional Defendant, ECF No. 35, Wehrenberg v. Metro. Prop. & Cas. Ins. Co. , No. 2:14-CV-01477, 2015 WL 1643043 (W.D. Pa. Apr. 9, 2015), and Defendant's Motion to Dismiss, ECF No. 57, Wehrenberg v. Metro. Prop. & Cas. Ins. Co. , No. 2:14-CV-01477, 2015 WL 4716305 (W.D. Pa. Aug. 7, 2015). Now pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 81. For the reasons which follow, Defendant's Motion is granted as to both Counts I and II, and summary judgment is entered in favor of the Defendant.

I. BACKGROUND

The Court has twice before recounted the facts in this case. In summary, they are as follows:

Wehrenberg owned a house located at 226 Sheryl Lane, Pittsburgh, Pa 15221 ("226 Sheryl Lane"), which was insured by a homeowners insurance policy issued by Metropolitan. 226 Sheryl Lane was subject to a mortgage held by Wells Fargo. In October 2011, Wehrenberg leased 226 Sheryl Lane to Alphonso Hyman. Under the agreement, Hyman was to lease 226 Sheryl Lane for five years starting in November, 2011, and Hyman was to pay each month's rent directly to the mortgage company. An option in the lease gave Hyman the right to purchase 226 Sheryl Lane by doing this.

In early 2012, Hyman stopped making his monthly rent payments, and around June 2012 Wehrenberg received notice from the mortgage company that foreclosure proceedings had begun. Wehrenberg called and emailed Hyman unsuccessfully and so he visited 226 Sheryl Lane around June 24, 2012, where he found that the locks had been changed. Wehrenberg looked through the windows and saw that "in essence, the place was gutted done [sic ] to the bare studs." Wehrenberg was then able to get ahold of Hyman on the phone (the next day) and told him that he (Hyman) did not have permission to gut the house or to do any work on 226 Sheryl Lane and that the property had been damaged. Hyman responded that he was a contractor, that the house had major structural problems that he had decided to fix and which required him to gut the house, and that he would put the house back together.

Wehrenberg did not notify Metropolitan of this turn of events, but instead he allowed Hyman to continue his "work" on the property. Wehrenberg told Hyman to get the mortgage caught up and to get the house put back together as soon as possible, which Hyman did. In January 2013, Wehrenberg noticed that a rental payment was late and called Hyman, who assured Wehrenberg that payment would be made by January 15, 2013 and that the house was coming along. But Hyman never made the payment. Wehrenberg called Hyman again but found that the phone was disconnected, so Wehrenberg went to 226 Sheryl Lane and found not only that the first floor was in the same disassembled condition but that the basement and second floor had been gutted also. Three bathrooms, flooring, bedroom walls, closets, furnaces, and air conditioner had all been removed. The furnaces and air conditioners had, however, been replaced.

On February 28, 2013, Wehrenberg filed a claim with Metropolitan, asserting that the property had been vandalized. Wehrenberg says that the Metropolitan adjuster came out to take pictures of the damages and "threatened to leave the premises" almost immediately, told Wehrenberg that Metropolitan would not cover the claim, and was "short" with him (Wehrenberg). After that, Wehrenberg says he called Metropolitan regarding his claim but was "pushed from agent to agent and many times his phone calls were not returned." Wehrenberg eventually lost the house to foreclosure (though no foreclosure date was included in either the Complaint or the Amended Complaint). Metropolitan has never made an offer of settlement under the policy.

Wehrenberg v. Metro. Prop. & Cas. Ins. Co. , No. 2:14-CV-01477, 2015 WL 4716305, at *1–2 (W.D. Pa. Aug. 7, 2015) (internal citations and alterations omitted).

On May 20, 2016, Defendant filed a Motion for Summary Judgment. The Court has considered all of the parties' papers and held oral argument on the Motion on August 30, 2016.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Furthermore, to evaluate a motion for summary judgment, the Court must "view[ ] the evidence in the light most favorable to the nonmoving party and draw[ ] all inferences in favor of that party." Schock v. Baker , 663 Fed.Appx. 248, 251 (3d Cir. 2016) (citing Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006) ). Under Rule 56, an issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court may consider all of the materials in the record, Fed. R. Civ. P. 56(c)(3), including "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

III. DISCUSSION

A. Breach of Contract

In this case, both parties agree that Pennsylvania law applies. ECF No. 82 at 6; ECF No. 88 at 2. "In Pennsylvania, the insured bears the burden of proving facts that bring its claim within the policy's affirmative grant of coverage." Koppers Co. v. Aetna Cas. & Sur. Co. , 98 F.3d 1440, 1446 (3d Cir. 1996). However, "the insurer bears the burden of proving the applicability of any exclusions or limitations on coverage, since disclaiming coverage on the basis of an exclusion is an affirmative defense." Id. Additionally, as the Court explained in its second Opinion in this case, the Third Circuit has stated:

The interpretation of an insurance contract is a question of law that is properly decided by the court. Standard Venetian Blind Co. v. American Empire Ins. Co. , 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983). In determining whether a contract is ambiguous, the court must examine the questionable term or language in the context of the entire policy and decide whether the contract is "reasonably susceptible of different constructions and capable of being understood in more than one sense." Gamble Farm Inn, Inc. v. Selective Ins. Co. , 440 Pa.Super. 501, 656 A.2d 142, 143–44 (Pa. Super. Ct. 1995) (quoting Hutchison v. Sunbeam Coal Corp. , 513 Pa. 192, 519 A.2d 385, 390 (Pa. 1986) ). Where a provision of a policy is ambiguous, the provision should be construed in favor of the insured and against the insurer, the drafter of the agreement. Standard Venetian Blind , 469 A.2d at 566. If, however, the terms of the policy are clear and unambiguous, the general rule in Pennsylvania is to give effect to the plain language of the agreement. Bensalem Tp. v. International Surplus Lines Ins. Co. , 38 F.3d 1303, 1309 (3d Cir. 1994). Reliance Ins. Co. v. Moessner , 121 F.3d 895, 900–01 (3d Cir. 1997), as amended (Aug. 28, 1997).

Wehrenberg , 2015 WL 4716305 at *3.

The insurance policy ("Policy") that the Court will be examining in this case includes the following relevant provisions:

THE POLICY

CAUSES OF PROPERTY LOSS

SECTION I—LOSSES WE COVER

(Special Perils)

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COVERAGE A—DWELLING AND COVERAGE B—PRIVATE STRUCTURES

We will pay for sudden and accidental direct physical loss or damage to the property described in Coverages A and B, except as excluded in SECTION I—LOSSES WE DO NOT COVER.

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SECTION I—BROAD NAMED PERILS

Whenever Broad Named Perils is referred to in this policy, the following causes of loss will apply for sudden and accidental direct physical loss.

Under the names perils below, we do not cover loss or damage, no matter how caused, to the property which results directly or indirectly from fungus and mold . There is no coverage for loss which, in whole or in part, arises of, is aggravated by, contributed to by acts or omissions of persons, or results from fungus and mold . This exclusion applies regardless of whether fungus and mold arises from any other cause of loss, including, but not limited to a loss involving water, water damage or discharge, which may be otherwise covered by this policy, except as granted under SECTION I—ADDITIONAL COVERAGES for Fungus and Mold Remediation.

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8. Vandalism or Malicious Mischief

We do not pay for any loss caused by any act committed in the course of the vandalism or malicious mischief including any ensuing loss or fire if the residence was vacant for more than 30 consecutive days immediately prior to the loss. A residential premises being constructed is not considered vacant.

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SECTION I—LOSSES WE DO NOT COVER

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2. We do not insure under any coverage for any loss consisting of one or more of the items below. However, we pay for any ensuing loss unless the ensuing loss is itself excluded by any other provision in this policy. Further, we do not insure for loss described in Exclusion 1.above and Exclusion 3. below regardless of whether one or more of the items below(a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss. The items are:

A. conduct, act, failure

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