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KEMMERER v. STATE FARM INSURANCE CO.

United States District Court, E.D. Pennsylvania


January 16, 2004.

DEEDE SMITH KEMMERER, Plaintiff,
v.
STATE FARM INSURANCE CO.'S Defendants

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

MEMORANDUM AND ORDER

MEMORANDUM

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. No. 24).

 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 Page 2 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 Page 3 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).

 III. Analysis

 

A. Burden of Proof and Rules of Construction in Insurance Coverage Cases
  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 Page 4 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 Page 5 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 Infestation
  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 Page 6 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., Page 7 260 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.

 IV. Conclusion

  Accordingly, this Court grants Defendant's Motion for Summary Judgment and denies Plaintiff's Motion for Summary Judgment. An appropriate order follows. Page 8

  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.

20040116

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