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Walls v. Phoenix Insurance Co.

May 19, 2009

CHRISTINE T. WALLS, APPELLANT
v.
THE PHOENIX INSURANCE COMPANY, APPELLEE



Appeal from the Order entered May 28, 2008, in the Court of Common Pleas, Philadelphia County, Civil Division, January Term, 2008, No. 2057.

The opinion of the court was delivered by: McEWEN, P.J.E.

BEFORE: KLEIN, SHOGAN, JJ., and McEWEN, P.J.E.

OPINION

¶ 1 Appellant, Christine T. Walls, appeals from the order of the Court of Common Pleas of Philadelphia transferring this case to the Court of Common Pleas of Monroe County on grounds of forum non conveniens. We reverse.

¶ 2 The operative facts of this case are not in dispute, and were ably summarized by the trial court as follows:

This case involves the denial of an insurance claim submitted under plaintiff [appellant herein] Christine T. Walls' policy of insurance ("policy") with defendant [appellee herein], the Phoenix Insurance Company covering her Monroe County residence, which is located at RR #2, Box 2255 Lake Road, Canadensis, PA 18325. Plaintiff "submitted a claim for sudden and accidental direct physical loss and damage resulting from a partial collapse of the house which occurred on or about October 10, 2007."

At the request of defendant, the property was inspected by an engineer, Franklin M. Davis, Jr., B.S.E. of F.M. Davis Associates, Inc., whose business address is 213 Hackney Lane, Schwenksville, Montgomery County, PA 19473. Mr. Davis authored a report ("report") dated October 17, 2007, which described his inspection of plaintiff's property and provided his opinion as to what happened to it. The opinion expressed in the report was: "some degree of structural failure" had occurred in the living room beam which allowed the ceiling of the living room area and the floor of the above second floor area to "deflect," or collapse a few inches. "This was no doubt due to the beam being unable to properly support the dead load of the floor structure together with the live load of furniture and people, combined with the drying out of the beam members over a long period of time[,]" according to the report.

On October 24, 2007, after receiving the report, defendant, through its adjuster, Robert Moyl[e]n, sent plaintiff a letter denying her claim. Mr. Moyl[e]n's business address is 2632 Cherry Lane, Bethlehem, Northampton County, PA 18015.*fn1 Unsatisfied by defendant's denial of her claim, plaintiff filed a [civil] complaint on January 17, 2008, alleging breach of contract and bad faith on the part of defendant. According to plaintiff's complaint:

[o]n or about October 10, 2007, while the policy was in full force and effect, plaintiff suffered direct physical loss and damage to the insured premises believed to be the result of a peril insured against under the policy of insurance issued by defendant, to wit, direct physical loss and damage and/or collapse resulting in damage to the insured premises and those areas and to the extent set forth in the report of F.M. Davis Associates, Inc. . .

The complaint [further] alleged "defendant's refusal to indemnify plaintiff's loss constitutes a breach of the insurance contract" and defendant's failure to, inter alia, "pay plaintiff's covered loss in a prompt and timely manner" constitutes bad faith conduct toward plaintiff. Defendant filed an answer with new matter asserting, inter alia, "plaintiff has been fully compensated for the entirety of her covered losses."

Subsequently, on February 25, 2008, pursuant to Pa.R.C.P. 1006(d)(1), defendant filed a forum non conveniens petition to transfer venue to Monroe County. Defendant argued this action could have been brought in Monroe County and that it was both oppressive and vexatious to defendant to have this action in Philadelphia County, and that the case should be transferred to Monroe County because, inter alia, the "occurrence giving rise to this litigation happened in Monroe County;" "[t]rial in Monroe County would provide easier access to conduct a site inspection . with a jury;" and "[n]o witnesses expected to be called at the time of trial are located in Philadelphia County[.]" In response, plaintiff argued that defendant had not shown "the choice of Philadelphia as venue is vexatious or oppressive." An argument and evidentiary proceeding was held on May 22, 2008, to determine whether venue in Philadelphia County was oppressive or vexatious to defendant.

By an order docketed May 28, 2008, this court granted defendant's petition and transferred the case to the Court of Common Pleas of Monroe County, Pennsylvania.

Trial Court Opinion, June 19, 2008, pp. 1--3 (footnotes and record citations omitted). This appeal followed.

ΒΆ 3 Appellant, in the brief filed in support of this appeal, raises three questions for our review, all of which can be subsumed within the single question of whether the record before the trial court supported its conclusion that the plaintiff's choice of ...


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