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NORFOLK & DEDHAM MUT. FIRE INS. CO. v. ROY

August 25, 1992

NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY Plaintiff,
v.
ROY AND WILMA DeMARTA and CHRISTIAN DeMARTA Defendant.



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J.

 August 25, 1992

 Plaintiff, Norfolk & Dedham Mutual Fire Insurance Company ("Norfolk & Dedham"), brought this suit seeking declaratory relief regarding defendants' claim for loss of property which collapsed and, in defendants' absence, was then demolished by the City of Philadelphia. Defendants counterclaimed, seeking damages of approximately $ 125,000.00 pursuant to the insurance policy at issue in this suit.

 Now before the Court are the parties' cross-motions for summary judgment. Because we find that the unambiguous language of the policy covers the situation here and that the demolition constituted mere recognition of a loss which already had occurred, we will grant defendants' motion.

 Jurisdiction is based upon diversity of citizenship and the Declaratory Judgment Act, 28 U.S.C. ยง 2201.

 Factual Background

 Roy and Wilma DeMarta owned & two-story rowhouse located at 26 south Yewdall Street in Philadelphia. The DeMartas live in California. *fn1" There is no dispute that the DeMartas' homeowners "named peril" policy was in effect and the premiums were paid as of December 31, 1990, the time the dwelling was lost. The DeMartas received notice dated January 3, 1991 from the City of Philadelphia Department of Licenses and Inspections ("L&I") that the building was condemned and had been demolished. Although the DeMartas were then unable to determine the cause of loss, they wrote Norfolk & Dedham on January 9, 1991, informing the insurer of the loss and stating that their only knowledge of it was the notice from L&I. They also submitted a Property Loss Notice listing the cause of loss as unknown. Norfolk & Dedham instituted this action, contending that the claim was not compensable.

 During discovery, the DeMartas produced the affidavit of Walter Weaver, the L&I building inspector who examined the dwelling before L&I demolished it. The affidavit is uncontested; indeed, both parties rely upon it in support of their motions. Weaver, who has been a housing inspector for fourteen of the twenty-three years he has worked at L&I and has inspected "thousands" of houses, stated, in pertinent part, that:

 it was evident . . . that the building was in extremely dangerous condition. It had partially collapsed: namely that the rear portion of the south bearing wall of the structure had collapsed, leaving 12 second floor joists completely unsupported. . . . There is no question the building would have completely collapsed if not immediately demolished. The deteriorated condition was caused by long term exposure to elements of wind and rain leading to hidden decay and deterioration of the foundation and bearing wall. Upon closer inspection, it was evident that the rain conductors had been removed from the property, therefore, allowing rain to flow freely down the walls, contributing to the collapse. It was also evident that at some point someone had tried to repair the wall, in that there was relatively new mortar compared to the other parts of the structure along the south bearing wall. I cannot say with any certainty, however, whether or not this new construction or attempted renovation in any way contributed to the collapse of the building.

 Affidavit of Walter Weaver, dated June 2, 1992, attached as Exhibit E to Plaintiff's Motion for Summary Judgment.

 After Weaver, on behalf of L&I, recognized the partial collapse, which was about to result in an immediate total collapse, L&I employees unsuccessfully attempted to reach the DeMartas in California. Because it was a safety risk, the house was immediately demolished.

 Legal Analysis

 We now turn to the merits of the parties' motions for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When there are no material underlying facts in dispute, summary judgment is appropriate to dispose of questions of insurance coverage. McMillan v. State Mut. Life Assur. Co., 922 F.2d 1073, 1074 (3d Cir. 1990). Under Pennsylvania choice of law ...


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