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Ross v. Foremost Insurance Co.

June 11, 2010

DANIEL F. ROSS, APPELLANT
v.
FOREMOST INSURANCE COMPANY, SENTRY SERVICES, INC., APPELLEE



Appeal from the Order Entered February 23, 2009, In the Court of Common Pleas of Allegheny County, Civil Division at No(s). GD 05-001848. Before McCARTHY, J.

The opinion of the court was delivered by: Ott, J.

BEFORE: BENDER, PANELLA and OTT, JJ.

Daniel F. Ross appeals from the order entered on February 23, 2009 granting a motion for summary judgment filed by Sentry Services, Inc. ("Sentry") and dismissing his complaint. After careful review, we affirm.

In April of 2001, Ross purchased a 1984 Travel Trailer, a wheeled, 35 feet long by eight feet wide, licensed trailer that could be pulled on the open highway by a hitch. After purchasing the trailer, he secured insurance coverage from Foremost Insurance Company ("Foremost"), through an insurance agent, Sentry. Ross selected Sentry because he wanted Foremost insurance and Sentry was one of the brokers listed in the phone book as an agency that dealt with Foremost. During a telephone conversation with a Sentry agent, he was asked what type of vehicle he wished to insure, the size of the vehicle, the condition of the vehicle, and the address of the campground where the trailer was parked. Ross provided a description of the travel trailer, stated that the trailer was to be used for seasonal living, and it was to be parked at the Indian Brave Campground in Harmony, Pennsylvania. The campground bordered the Connoquenessing Creek and Ross' lot was within 1,500 feet the creek.

On April 6, 2001, Sentry sent Ross two copies of a Mobile Home Insurance Worksheet ("Worksheet") and requested that he complete the questions and sign the second page of the document. Ross complied and submitted a check for $221.75 for coverage of the trailer. He also disclosed the proximity of the trailer to the creek on the Worksheet. A footnote to the inquiry stated that, due to such proximity, "[the] risk will qualify only if flood insurance is excluded from the coverage." Mobile Home Insurance Worksheet, 4/6/2001, at 2.

Several weeks later, Ross received a copy of an insurance policy from Foremost titled "Mobile Home Insurance Policy" (the "Policy"). The Policy specifically excluded loss caused by "[f]lood, water, surface water, waves, tidal water or overflow of a body of water from any source including spray, whether or not driven by wind[.]" Foremost's Mobile Home Policy, at 7. He also received a mobile home declarations page, which listed general information about Ross's policy with respect to his trailer and notified of available features, liability coverage choices, and items that lowered his premium. Additionally, under the bold-print heading, "For your information," the notice stated: "If you need flood coverage, you should contact your representative to ask about obtaining the coverage through the National Flood Insurance Program." Sentry's Motion for Summary Judgment, Exhibit E, at 3. Ross admitted when he received the policy and declarations page, he glanced at them and filed them away. Ross did not read the insurance policy or the declarations page. Ross also stated that each year following his purchase of the Policy, he received a new declarations page which contained the same information as the original declarations page.

On September 17, 2004, flooding of Connoquenessing Creek, incidental to Hurricane Ivan, damaged Ross' trailer and its contents. Three days later, he submitted a claim with Foremost for damage to the trailer. On September 23, 2004, Foremost wrote a letter to Ross denying his claim because the Policy did not cover for flood loss.

On January 20, 2005, Ross filed a complaint against Foremost and Sentry alleging negligence and violation of the Unfair Trade Practices and Consumer Protection law ("UTPCPL"), *fn1 which was later amended on March 15, 2005. Pleadings and discovery were exchanged.

On January 23, 2008, Ross entered into a settlement agreement and release (the "Release") of Foremost. On December 10, 2008, Sentry filed a motion for summary judgment, asserting the release of Foremost effectively applied to Sentry as well, because, as alleged in the complaint, Sentry was Foremost's agent and the two were not joint tortfeasors. Sentry contended the release of Foremost as principal operated as a release of Sentry as its agent.

Sentry also argued it was not negligent and did not owe a duty to inspect the property, recommend flood insurance coverage, or advise that floods were excluded from the policy. Moreover, Sentry stated Ross' argument, that he should recover because his trailer was a travel trailer and not a mobile home, was unfounded where he admitted he did not intend to travel with the trailer on the open road.

Sentry also contended that Ross' claim for consumer fraud failed because he could not make a prima facie case evidencing any false or misleading statement on the part of Sentry and justifiable reliance by Ross, causing the loss.

Finally, Sentry argued there was no evidence to put the issue of punitive damages to the jury. Ross opposed Sentry's motion. On February 23, 2009, the trial court granted judgment in favor of Sentry and against Ross and dismissed his complaint with prejudice. Ross filed this timely appeal. *fn2

Ross raises the following three issues on appeal: whether the trial court erred in granting Sentry its motion for summary judgment (1) by finding the release of Foremost acted as a release of Sentry as its agent; (2) by finding that Sentry did not violate the UTPCPL; and (3) by finding that ...


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