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Luse v. Liberty Mutual Fire Insurance Co.

July 7, 2010


The opinion of the court was delivered by: J. Rambo


Before the court is Defendant Liberty Mutual Fire Insurance Company's ("Liberty") motion for summary judgment. (Doc. 17.) For the reasons that follow, the motion will be granted.


A. Facts*fn1

This case arises out of a fire that occurred in Plaintiffs Robert and Kay Luses' (the "Luses") home on August 4, 2007, in York County, Pennsylvania. (Def.'s Statement of Material Fact ("SMF"), ¶ 3.) At the time of the fire, the Luses were insured under a LibertyGuard Condominium Policy which had been issued by Liberty. (Id., ¶ 4.) The Luses promptly reported the fire to Liberty, and on August 6, 2007, a home inspection was scheduled. (Doc. 17-5, at 8 of 30; Dep. of Kay Luse, at 28.) On August 7, 2007, an inspection was done by William Kishbaugh, an employee of Liberty.*fn2 (Id., ¶ 17.) During this visit, only Mrs. Luse was present. Mr. Kishbaugh observed fire and smoke damage in the kitchen, and significant sooting in the kitchen, as well as into the living room/dining room area. (Id., ¶ 18.) Despite the damage, Mr. Kishbaugh determined that the house was nonetheless liveable, and no request was made by Mrs. Luse to have the family moved out of the condominium.*fn3

(Id., ¶¶ 18, 19.) During this visit, Mr. Kishbaugh informed Mrs. Luse that Liberty would only provide secondary coverage for the damage because the Luses had a condominium policy, in addition to the Liberty policy, which provided primary coverage. (Doc. 17-11, at 12 of 74; Dep. of William Kishbaugh, at 44, 45.) Mr. Kishbaugh also requested a copy of the master condominium insurance policy, which Mrs. Luse indicated she did not have at that time. (Doc. 17-11, at 12 of 74; Dep. of William Kishbaugh, at 44.) At the time of the inspection, Mr. Kishbaugh had not seen a copy of the Luses' separate condominium policy, and had only briefly reviewed the Liberty policy with regard to its scope of coverage, the effective date, and any limits or special endorsements. (Doc. 17-11, at 13 of 74; Dep. of William Kishbaugh, at 46-47.) Thus, Mr. Kishbaugh's determination that the Liberty policy would nonetheless be secondary to the condominium policy was made based on his previous experience because "[t]hey always are." (Id., at 46.) Later, Mr. Kishbaugh confirmed that the master condominium policy was in fact the primary policy with regard to building and structure coverage, but that it had policy limits when it came to additional living expenses, such as relocation coverage, and that any additional living expenses were to be covered under the Liberty policy. (Doc. 17-11, at 13 of 74; Dep. of William Kishbaugh, at 48.) This was not explained to Mrs. Luse at the time of the inspection. In any event, Mr. Kishbaugh did not believe it was necessary to explain relocation costs for "such a small incident" and because the house did not seem to him to be unliveable. (Doc. 17-13, at 12 of 74; Dep. of William Kishbaugh, at 48-49.)

On August 10, 2007, Mrs. Luse called Anthony Waslesyn, Mr. Kishbaugh's supervisor, to discuss the case. (SMF, ¶ 20.) Mr. Waslesyn made a note of this phone call, which indicated that Mrs. Luse asked for authorization to have the house cleaned because there were two people living there with respiratory issues-- Mr. Luse and the couple's grandson. (SMF, ¶¶ 20, 21.) Authorization was given to have the house cleaned. Nothing in Mr. Waslesyn's notes indicated that Mrs. Luse asked to have the family relocated. (SMF, ¶ 21.) Four days later, Mr. Waslesyn received a call from Mr. Luse. (SMF, ¶ 22.) Mr. Waslesyn's deposition indicates that Mr. Luse again requested authorization to have the house cleaned, and that Mr. Waslesyn informed Mr. Luse that he had already authorized cleaning during his conversation with Mrs. Luse on August 10, 2007. (SMF, ¶ 22.) Plaintiffs contest this fact to the extent that they claim it does not fully reflect the conversation. Plaintiffs state that Mr. Luse called to express his frustration over the information that the master condominium policy would be the primary provider of insurance coverage, and his confusion over what coverage Liberty was willing to provide.*fn4

(Pl.'s Statement of Material Facts, ¶ 22.)

On August 24, 2007, Paul Schrembeck, Mr. Waslesyn's supervisor, received a call from Barbara Shultz, Mr. Luse's respiratory therapist. (SMF, ¶¶ 23, 26.) Mr. Schrembeck was told by Ms. Shultz that the conditions in the home might be adversely affecting Mr. Luse's respiratory issues. (SMF, ¶ 26.) Mr. Schrembeck then took immediate action to have the family relocated. (Id.)

Prior to this phone call, but over two weeks after the fire had occurred, on August 21, 2007, Ms. Shultz tested Mr. Luse and found that there had been a drop in his oxygen saturation levels. (SMF, ¶ 24.) Ms. Shultz indicated in her report that the fire could "perhaps" have been a cause of the decreased oxygen levels. (SMF, ¶ 25.) Ms. Shultz also testified that, if someone from Liberty had contacted her right after the fire she would have informed them that the conditions were inadequate for Mr. Luse's respiratory condition. (Pls.' Statement of Material Facts, ¶ 25.) There is no indication in the record that anyone from Liberty knew that Mr. Luse was seeing a respiratory therapist.

B. Procedural History

The Luses filed a complaint in the Court of Common Pleas of York County, Pennsylvania, on June 8, 2009. On June 26, 2009, Liberty removed the case to this court. (Doc. 1.) Shortly thereafter, on July 7, 2009, they filed its answer and affirmative defenses. (Doc. 3.) On May 14, 2010, Liberty filed their motion for summary judgment, supporting brief, and statement of material facts. (Docs. 17, 18, 19). On May 21, 2010, the Luses filed their brief in opposition and counter-statement of material facts. (Docs. 20, 21.) Liberty replied on June 4, 2010. (Doc. 23.) The motion is now ripe for disposition.


Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to ...

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