Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


August 16, 2002


The opinion of the court was delivered by: Pollak, District Judge


On September 28, 2000, plaintiff Carmen M. Smith filed a praecipe to issue writ of summons in the Court of Common Pleas for Philadelphia County. Ms. Smith's complaint, filed in that court on November 28, 2000, asserted causes of action against defendant American Equity Insurance Co. ("American Equity") arising out of a failure by American Equity to pay homeowner's insurance claims that she had filed. The complaint stated two causes of action: one for breach of contract, and one for unfair and deceptive business practices in violation of 73 Pa. C.S.A. § 201-1. On December 14, 2000, the defendant filed a notice of removal, asserting that federal jurisdiction existed under 28 U.S.C. § 1332.*fn1

After a contentious period of discovery, in which this court was obliged at one point to compel the plaintiff to respond to discovery requests, American Equity filed a motion for summary judgment on January 7, 2002. (Docket #12). The next item on the docket sheet is a document filed on February 12, 2002, by the defendant entitled "Reply to Plaintiff's Reply to Defendant's motion for summary judgment" (Docket #13). Although the discussion in that document establishes that the plaintiff composed a response to the motion for summary judgment, that response has never been filed with this court, despite repeated and persistent inquiries by chambers staff. In the absence of a timely response, this court will rule on the summary judgment motion according to the standard of Fed.R.Civ.P. 56(c). See E.D. Pa. Rule 7.1. According to Rule 56, summary judgment is appropriate, "if the pleadings, depositions, answers to interrogatories, and admissions on files, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."

Count I — Breach of Contract

American Equity's motion for summary judgment asserts that plaintiff's first claim is time-barred. Paragraph 8 of the "Conditions" section of the insurance policy at issue in this case states:

Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of the loss.

Contractual limitations on actions which are shorter than an applicable statute of limitations are valid under Pennsylvania law so long as they are not manifestly unreasonable. See 42 Pa.C.S.A. § 5501(a)*fn2; Bostick v. ITT Hartford Group, Inc., 56 F. Supp.2d 580, 585-86 (E.D.Pa. 1999) (applying one-year contractual period of limitation in homeowner's insurance case) (Reed, J.). The plaintiff has not suggested that the one-year period specified in her policy is unreasonable in any way.

Paragraph 8 appears to this court to bar the plaintiff's claim. The complaint asserts that "On or about August 23, 1999 . . . [plaintiff] suffered damage to her home from which Defendant received due and timely notice." But Ms. Smith does not appear to have initiated legal action until more than one year later, by filing her praecipe for writ of summons on September 28, 2000. Ms. Smith not having provided a substantive response, the court accepts the foregoing chronology as correct, and will therefore grant summary judgment for the defendant on the breach of contract claim. See Fed.R.Civ.P. 56(c).

Count II — Unfair Business Practices

American Equity moves for summary judgment on Ms. Smith's unfair business practices claim on the ground that she fails to allege that American Equity is guilty of malfeasance. As pointed out by American Equity, the Third Circuit has held that:

In Pennsylvania, only malfeasance, the improper performance of a contractual obligation, raises a cause of action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq., and an insurer's mere refusal to pay a claim which constitutes nonfeasance, the failure to perform a contractual duty, is not actionable. Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 264, 548 A.2d 600, 604 (1988). See Raab v. Keystone Ins. Co., 271 Pa. Super. 185, 187-88, 412 A.2d 638, 639 (1979).

Horowitz v. Federal Kemper Life Assur. Co., 57 F.3d 300, 307 (3d Cir. 1995) (rejecting claim that insurer's denial letter constituted unfair trade practice and bad faith dealing by leading plaintiff to believe that she had no hope of recovery).

In order to be covered for interior water damage to your dwelling, there must be a physical opening in the exterior of the dwelling caused by the force of the wind, during the policy period. The water must enter through the physical opening. In this instant matter, there was no indication of any windstorm damage to the property. It was this adjuster's opinion that the water damage inside your dwelling has been occurring over a long period of time and certainly had been occurring prior to the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.