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Grammenos v. Allstate Insurance Co.

April 28, 2009


The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge


Presently before this court is Defendant Allstate Insurance Company's ("Allstate") Motion For Partial Summary Judgment (Doc. No. 43), requesting that the court grant judgment in Allstate's favor on Count II of plaintiff's Complaint, alleging that Allstate acted in bad faith in the handling of plaintiff's claim under Allstate's insurance policy, and plaintiff's response thereto (Doc. No. 53.) For the reasons stated below, the court will grant Allstate's motion for partial summary judgment.


On June 12, 2006, Allstate received a notice of claim from a public adjuster, third-party defendant, Aclaim Adjustment Company, Inc. ("Aclaim"). Specifically, Aclaim reported to Allstate that on June 10, 2006 at approximately 12:00 a.m., a water loss occurred at 2004 Bergen Street, Philadelphia, Pennsylvania, a house plaintiff recently purchased on May 25, 2006.

Allstate immediately investigated the claim. During a statement made under oath, plaintiff claimed that on June 9, 2006, he was at the newly purchased house and noticed a small leak emanating from a pipe behind the second floor bath tub. Plaintiff opened the access panel, turned off the water and inspected the crack in the pipe. Plaintiff, who operated an auto body shop, stated that he left the home, and went to his body shop to retrieve tools to repair the leaky pipe. Plaintiff claims that he returned to the home and repaired the pipe by soldering it with a heated torch. Plaintiff then turned on the water and left the house. According to plaintiff, when he returned to the house the next day, June 10, 2006, there was massive flooding in the house, caused by the detachment of the same pipe he allegedly fixed the previous day.

During the course of its investigation, Allstate obtained a tape recorded interview of John Fickenscher of CPR Restoration & Cleaning Service. Mr. Fickenscher stated, with certainty, that he was contacted on the night of June 9, 2006, by a man named Paul DeFinis, who was an agent of Aclaim. Mr. DeFinis asked Mr. Fickenscher to come to plaintiff's house because there was extensive water damage and the house needed to be cleaned up. Mr. Fickenscher came to the house on June 9, 2006 and met Mr. DeFinis and plaintiff.

The next day, June 10, 2006, Mr. Fickenscher returned to the house, at which time, plaintiff executed a contract with his company to remove water damaged items from the house. On that same date, Mr. Fickenscher and his staff removed dry wall, carpets and other items that were damaged. Allstate was never notified of the claim prior to the commencement of this work by Mr. Fickenscher. Contrary to the testimony of Mr. Fickenscher, Mr. DeFinis testified that he visited plaintiff's home only once, on June 10, 2006, and says Mr. Fickenscher and plaintiff were there. Mr. DeFinis says that he took several photographs of the damaged portions of the house with a disposable camera he purchased that day at a local Rite Aid Drug Store, as well as with a Polaroid camera he carried with him. Eventually, Aclaim submitted estimates for repair to the home which appear to exceed the damage represented by the photographs taken by Mr. DeFinis on June 10, 2006 (according to Mr. DeFinis) or June 9, 2006 (according to Mr. Fickenscher).

In the course of the investigation, Allstate retained a master plumber, Alan Insogna, and two forensic engineers, Daniel Seeley and James Conroy, of the firm of Peter Vallas Associates, Inc. All of these experts examined the pipes from which the water allegedly discharged. In a June 28, 2006 report, Messrs. Seeley and Conroy reported the following:

... The separation and/or failure of the pipe reportedly occurred after the insured had attempted to repair a previous minor leaking condition. The pipe reportedly failed after he left the property after the completion and/or repairing of the minor leak.

Metallurgical evaluations of the pipe and tub diverter however indicate that the method used to re-solder and/or attempt to re-attach the piping or prevent additional leakage was improper and non-existent. There was no evidence to indicate that any effort to re-solder the pipe to the tub diverter was performed. The flow of the solder indicates that it was heated up to the point where it weakened the bond and solder was never re-applied.

See Allstate's Motion, Ex. F at 5.

On June 29, 2006, Master Plumber Alan Insogna reported the following:

Per the insured's verbal statement, he had attempted to make a repair to the sweat connection using a map gas tank, solder, and a pair of pliers. Typically, soldered joints will begin to weep, staining the copper piping, and progress over the long term eventually resulting in partial and then complete failure of the connection. This type of deterioration was not present at the above mentioned sweat connection. We also noted the ceramic tile wall and drywall backing board that housed the tub faucet, as a whole, was sound and in good condition with some minimal staining.

See Allstate's Motion, Ex. G at 1.

Mr. Insogna elaborated on his report in his deposition taken on February 3, 2009. ...

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