United States District Court, E.D. Pennsylvania
January 16, 2004.
DEEDE SMITH KEMMERER, Plaintiff,
STATE FARM INSURANCE CO.'S Defendants
The opinion of the court was delivered by: LEGROME DAVIS, District Judge
MEMORANDUM AND ORDER
Presently before this Court are the Motion for Summary Judgment (Def.'s
Mot. for Summ. J., Doc. No. 19) filed on June 20, 2003 by State Farm
Insurance Company ("Defendant"), the Response by Plaintiff to Defendant's
Motion for Summary Judgment (Pl's Resp., Doc. No. 22) filed on July 7,
2003 by Deede Kemmerer ("Plaintiff"), the Reply to Plaintiff's Response
to State Farm's Motion for Summary Judgment filed on July 15, 2003 by
Defendant (Def's Reply, Doc. No. 23) the Motion for Summary Judgment
(Pl.'s Mot. for Summ. J., Doc. No 20) filed on June 26, 2003 by
Plaintiff, and the Response to Plaintiff's Motion for Summary Judgment
(Pl.'s Resp., Doc. No. 21) filed on July 15, 2003 by Defendant, and the
Response and Additional Brief in Support of Plaintiff's Motion for
Summary Judgment filed on July 31, 2003 by Plaintiff (Pl's Brief, Doc.
I. Factual Background and Procedural History
Pursuant to the terms of her homeowner's insurance policy with
Defendant, Plaintiff seeks damages for destruction to personal property
from a mold infestation. The term of the
policy covered Plaintiff's house and personal property at 114
Cambria Court, St. Davids, Pennsylvania from June 23, 2000 until June 23,
2001. The policy provides coverage for "physical loss to personal
property by certain specified perils, including sudden and accidental
discharge or overflow of water or steam from within a plumbing, heating,
air conditioning or automatic fire protective sprinkler system, or from
within a household appliance." Def's Mot. for Summ. J. at 2, Ex. B.
Plaintiff states, in her deposition, that on September 30, 2000, when she
returned from a two-month trip to Arizona, she found her home and
belongings significantly damaged from a mold infestation. Pl.'s Dep. at
¶ 6. To support that claim, Plaintiff provides an expert report from
an environmental consultant who concludes that the house contained
elevated levels of Aspergillus/Penicillium and Cladosporium molds; the
expert does not address the cause of the increased levels. Def.'s Mot.
for Summ. J. at Ex. D. Defendants move for summary judgment because they
contend that Plaintiff has not adduced evidence sufficient to create a
genuine issue of fact, "that a peril specified by the policy caused the
bloom of mold in her home." Id. at 4. Plaintiff contends that
mold infestation and the origins of such occurrences are matters of
common knowledge and receive widespread coverage in periodicals. Pl.'s
Mot. for Summ. J. at ¶ 8. She further contends that her testimony
combined with the expert report and the lay testimony of Anne Butler, the
individual who took care of the house in Plaintiff's absence,
conclusively establish that a leak from the powder room toilet was the
source of the mold infestation. Id. at ¶ 9.
II. Standard of Review
Summary judgment is appropriate when "there is no genuine issue of
material fact and . . . the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48
(1986). In reviewing the record, "a court must view the facts in the
light most favorable to the nonmoving party and draw all inferences in
that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768,
777 (3d Cir. 1994). The moving party bears the burden of showing that the
record discloses no genuine issues as to any material fact and that he or
she is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). Once the moving party has met its burden, the
non-moving party must go beyond the pleadings to set forth specific facts
showing that there is a genuine issue for trial. See Fed.R.Civ.P.
56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). There is a genuine issue for trial "if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative
evidence regardless of whether it is direct or circumstantial
must amount to more than a scintilla, but may amount to less (in
the evaluation of the court) than a preponderance." Williams v.
Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
A. Burden of Proof and Rules of Construction in Insurance
Plaintiff bears the burden of proving that the damage caused to her
personal property resulted from the occurrence of a specified peril as
outlined in the policy. Only then will insurance coverage be triggered
and will Defendant be required to assert an affirmative defense. In order
to survive a motion for summary judgment, a party must, by affidavit or
by reference to interrogatories, admissions to positions or other
evidentiary material of record, demonstrate a genuine material issue for
trial. Fed.R.Civ.P. 56(e); Sunshine Books. Ltd. v. Temple
University, 697 F.2d 90
, 96 (3d Cir. 1982). Summary
judgment motions are determined on the basis of the then existing record
presently before the court. Rouse Chamberlin, Inc. v. Fidelity and
Deposit Co. of Maryland, 1987 WL 10664, *4 (E.D.Pa. May 8, 1987).
Specifically, the question of which party bears the burden of proof in a
diversity case is a matter of state substantive law. Koppers Co.,
Inc. v. Aetna Gas. and Sur. Co., 98 F.3d 1440
, 1446 (3d Cir. 1996).
In Pennsylvania, the insured bears the burden of proving facts that bring
its claim within the policy's affirmative grant of coverage. See,
e.g., Riehl v. Travelers Ins. Co., 772 F.2d 19
, 23 (3d Cir. 1985).
By contrast, 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. See, e.g.,
Aetna Life & Gas. Co. v. Barthelemy, 33 F.3d 189
, 194 (3d Cir.
1994); Compagnie des Bauxites de Guinee v. Insurance Co. of N.
Am., 551 F. Supp. 1239, 1243 (W.D.Pa. 1982). The specified perils
covered under the policy include a "sudden and accidental discharge or
overflow" (peril no. 12), which Plaintiff asserts should cover the damage
to her personal property caused by the mold infestation. Defendant's
primary contention, however, is that without an expert report to
establish the cause of the infestation, Plaintiff has not satisfactorily
established a genuine issue of material fact for trial. Def.'s Mot. for
Summ. J. at 5.
The written contract provision of the insurance policy plainly outlines
sixteen specified perils; a powder room toilet leak would qualify as a
"sudden and accidental discharge or overflow." The language of this
insurance contract is unambiguous. Pennsylvania law requires that a clear
and unambiguous contract provision be given its plain meaning, unless to
do so would be contrary to a clearly expressed public policy.
Lazovick v. Sun Life Ins. Co. of Am., 586 F. Supp. 918, 922
(E.D.Pa. 1984). An ambiguity in insurance policy requires ambiguous
provision be construed in favor of the insured Redevelopment
Auth. v. International Ins. Co., 685 A.2d 581, 588
(Pa. Super. 1996). Where the language of a policy is clear and unambiguous,
however, the court cannot, under the guise of contract construction, find
coverage if to do so would conflict with the clear meaning of the policy.
City of Harrisburg v. Int'l Surplus Lines Ins. Co., 596 F. Supp. 954,
958 (M.D.Pa.1984). Furthermore, public policy is more than a vague
goal which may be used to circumvent the plain meaning of the contract.
Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760
(Pa. Super. 1994). If the leak from the powder room caused the mold
infestation, that leak would fall within the peril no. 12 outlined
in the homeowner's insurance policy.
B. Necessity of an Expert Opinion to Establish Cause of Mold
Plaintiff contends that a leaking toilet in the powder room used by
workmen during her absence created the conditions that allowed the mold
infestation to accelerate. Def.'s Mot. for Summ. J. at 7. Defendant
alleges that Plaintiff lacks the requisite formal training or education
required to render an opinion as to the cause of that infestation;
instead, the cause of the mold levels involves the scientific, technical
or other specialized knowledge typical of an expert and beyond the
perception of a lay witness. Def.'s Mot. for Summ. J. at 3 citing
Asplundh Manufacturing Div. v. Benton Harbor Engineering,
57 F.3d 1190
(3d Cir. 1995). Plaintiff contends that her testimony, the expert
report, and Anne Butler's lay testimony conclusively establish that a
leak from the powder room toilet was the source of the mold infestation.
Pl.'s Mot. for Summ. J. at ¶ 9. To establish such an element of
complex causation, however, Plaintiff must provide evidence beyond lay
opinions. In a case involving complex issues of causation not readily
apparent to the fact finder, plaintiff must present admissible expert
testimony to carry her
burden. Soldo v. Sandoz Pharmaceuticals Corp.,
244 F. Supp.2d 434, 525 (W.D.Pa. 2003); see Heller v. Shaw Indus.,
Inc., 167 F.3d 146
, 153 (3d Cir. 1999) (expert testimony required to
establish that alleged respiratory ailments were caused by carpet fumes);
Nagy v. Ostfeld, 1996 WL 46222, *3 (E.D.Pa. Jan. 29, 1996)
(granting summary judgment where plaintiff failed to prove essential
elements of their claim through expert reports thereby failing to
establish the existence of a material fact) citing Levy v. Thomas
Jefferson University, 572 F. Supp. 65 (1983) (granting defendant's
motion for summary judgment in holding that plaintiff had failed to
establish a genuine issue of material fact, where instead of producing
her own expert witnesses, plaintiff sought to establish defendant's
negligence solely by cross-examining the defendant physician);
see also Conde v. Velsicol Chem. Corp., 24 F.3d 809,
814 (6th Cir. 1994) (holding insufficient showing of causation where
expert testimony failed to rule out other causes); Sakaria v. Trans
World Airlines, 8 F.3d 164
(4th Cir. 1993) (upholding district
court's grant of summary judgment to defendant in wrongful death case.
Causation was not proved beyond a possibility, jury would have to
speculate if allowed to consider plaintiff's proof); Richardson v.
Richardson-Merrell. Inc., 857 F.2d 823, 829-32 (D.C. Cir. 1988)
cert. denied, 493 U.S. 882
(1989). The report provided by
Plaintiff's expert provides conclusions as to the presence, levels, and
likely health hazards of mold cultures in the house. Def.'s Mot. for
Summ. J. at Ex. C. It does not speak to the cause of the mold
infestation. If the expert testimony cannot support both general and
specific causation, summary judgment for the defendant must be granted.
Soldo v. Sandoz Pharmaceuticals Corp., 244 F. Supp.2d at 525.
Opinions merely expressing "possibilities" do not suffice to support the
admissibility of expert testimony; an expert must supply more than a
bottom line to be of value to the judicial process. Id. at 526
citing Saldana v. Kmart Corp.,
260 F.3d 228
, 234 (3d Cir. 2001) ("the mere possibility that something
occurred in a particular way is not enough, as a matter of law, for a
jury to find it probably happened that way"); see Mid-State
Fertilizer v. Exchange Nat'l Bank, 877 F.2d 1333
, 1339 (7th
Cir. 1989)(holding that an expert's declaration, full of assertion but
lacking adequate reason will not survive a motion for summary judgment).
Conversely, Defendant provides an expert report that concluded that "the
wide variety of molds [sic] recovered from dust samples suggest the
accumulation of spores from many sources and growth of xerophilic fungi."
While the Defendant's expert relied primarily on written reports, he
observed high humidity and stagnant air, wet basement, dampness in powder
room from neighboring greenhouse, and humid summer weather, all
contribute to the growth of Xerophilic fungi. Def.'s Mot. for Summ. J at
Ex. B. The expert further deduces that "the mold [sic] on the animal
skins, contents, and furniture items are not due to the leak on the floor
of the powder room . . . the one gallon of water, even if it evaporated,
in the powder room had minimal or no effect on fungal growth on the
contents and furniture in the living room." Id. Without a
contrary expert conclusion, Plaintiff fails to adequately establish that
a numerated specified peril under her homeowner's policy caused the mold
infestation and resulting property damage. She does not satisfy her
burden of establishing a genuine material issue for trial.
Accordingly, this Court grants Defendant's Motion for Summary Judgment
and denies Plaintiff's Motion for Summary Judgment. An appropriate order
AND NOW, this day of January, 2004, upon consideration of the Motion
for Summary Judgment (Def.'s Mot. for Summ. J., Doc. No. 19) filed on
June 20, 2003 by State Farm Insurance Company ("Defendant"), the Response
by Plaintiff to Defendant's Motion for Summary Judgment (Pl.'s Resp.,
Doc. No. 22) filed on July 7, 2003 by Deede Kemmerer ("Plaintiff), the
Reply to Plaintiff's Response to State Farm's Motion for Summary Judgment
filed on July 15, 2003 by Defendant (Def.'s Reply, Doc. No. 23) the
Motion for Summary Judgment (Pl.'s Mot. for Summ. J., Doc. No 20) filed
on June 26, 2003 by Plaintiff, and the Response to Plaintiff's Motion for
Summary Judgment (Pl.'s Resp., Doc. No. 21) filed on July 15, 2003 by
Defendant, and the Response and Additional Brief in Support of
Plaintiff's Motion for Summary Judgment filed on July 31, 2003 by
Plaintiff (Pl's Brief, Doc. No. 24). it is hereby ORDERED that
Plaintiff's Motion for Summary Judgment is DENIED, that the
Defendant's Motion for Summary Judgment is GRANTED, and that
all Counts of Plaintiff's Complaint are dismissed, with prejudice.
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