The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge
(Magistrate Judge Blewitt)
On December 10, 2007, Plaintiffs Thomas F. and Helen K. Fitzmartin commenced the present action for breach of an insurance contract (Count I) and bad faith (Count II) based on Defendant Allstate Property & Casualty Company's refusal to cover all of the alleged damages a broken pipe caused to Plaintiffs' house. Specifically, the present action stems from damage to Plaintiffs' property located at 17 Woodridge Circle, Wellsboro, Pennsylvania (the "Property"), and Defendant's refusal to pay Plaintiffs' full estimate of damages, averring that it was overvalued. Defendant seeks Partial Summary Judgment on Count II of Plaintiff's Complaint alleging Bad Faith.
This case was removed by Defendant from the Court of Common Pleas of Philadelphia County, Pennsylvania, to the United States District Court for the Eastern District of Pennsylvania on March 19, 2008. (Doc.1). By Order of August 21, 2008, the matter was transferred to the United States District Court for the Middle District of Pennsylvania. (Doc. 13). The case was electronically transferred to the Middle District on April 3, 2009, and it was assigned the above-captioned civil number. (Doc. 15). The parties consented to the jurisdiction of the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(c), on April 30, 2009. (Doc. 19).
On February 23, 2010, Defendant Allstate moved for partial summary judgment on Count II, bad faith claim, regarding its refusal to pay the full amount of Plaintiffs' estimated damages to the Property. (Doc. 26). Defendant timely filed its support Brief with attached exhibits. (Doc. 26). However, Defendant failed to file its required Statement of Material Facts.
On March 16, 2010, Defendant was ordered to file its Statement of Material Facts pursuant to Local Rule 56.1 M.D.Pa., as well as a Certificate of Concurrence/Non-Concurrence, concerning its Doc. 26 Motion for Partial Summary Judgment. (Doc. 29). In this Order, Plaintiffs were also directed to file their opposition brief to Defendant's Partial Summary Judgment Motion and to respond to Defendant's Statement of Material Facts within 10 days after Defendant's filing. (Doc. 29). Defendant filed its Certificate of Non-Concurrence on March 18, 2010 (Doc. 30), as well as its Statement of Facts on March 24, 2010. (Doc. 32). Plaintiffs filed their Brief in Opposition to Defendant's Partial Summary Judgment Motion, with attached exhibits, on April 1, 2010 (Doc. 34), as well as their Answer to Defendant's Statement of Facts. (Docs. 34 and 35). On April 16, 2010, Defendant filed its Reply Brief with attached exhibits and its Response to Plaintiff's Counter Statement of Material Facts. (Docs. 36 & 38).
As the pleadings in the matter are now closed, and the deadline for discovery has passed, the present Motion for Partial Summary Judgment on Count II of Plaintiff's Complaint alleging Bad Faith is ripe for disposition.
II. Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or non-existence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Aramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule56 summary judgment must be entered where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Moreover, the Third Circuit has recently indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(Non-Precedential)(citation omitted).
Thus, "summary judgment is proper, when, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Anderson v. General Motors, 2009 WL 237247, *2 (3d Cir.)(citation omitted); Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144 at 145 (3d Cir. 2007) (the court must "view the facts in the light most favorable to the party opposing the [summary judgment] motion when making [its] determination.").
III. Allegations of Complaint
In their Complaint, Plaintiffs allege that Defendant has refused to fully pay their claim under their Allstate insurance policy, and that Defendant has paid only a fraction of their damages. As stated above, Plaintiffs raise two claims, namely, (I) breach of contract and (II) bad faith. Plaintiffs aver that as a result of Defendant's failure and refusal to pay their contractor's estimation of damages, as well as Defendant's mishandling of their claim, they have suffered damages. As relief, Plaintiffs seek damages, including delay and punitive damages, counsel fees and costs, together with interest on their claim. (Doc. 15, pp. 4 and 6).*fn1
Since Defendant has submitted its Statement of Material Facts (Doc. 32), and since Plaintiffs have responded to it (Doc. 35), we consider the facts stated by both parties which are properly supported by citation to evidence in the light most favorable to Plaintiffs, the nonmoving parties.
Plaintiffs were issued a homeowners insurance policy by Defendant, and there is no dispute that the insurance policy which Plaintiffs purchased from Defendant entitled Plaintiffs to certain basic loss benefits. Plaintiffs aver that the policy is a replacement cost policy, citing the following:
Building Structure Reimbursement will not exceed the smallest of the following amounts:
1) the replacement cost of the part(s) of the building structure(s) for equivalent construction for similar use on the same premises;
2) the amount actually and necessarily spent to repair or replace the damaged building structure(s) with equivalent construction for similar use on the same residence premises; (Doc. 35, p. 6 citing Ex. C, p. 18) (emphasis added).
Defendant denies that the policy was a replacement cost policy, averring that it instead allows for replacement cost if the insured complies with the express terms of the policy. (Doc.38, p. 1).
On or about December 10, 2006, while Plaintiffs were not home, the Property suffered water damage as a result of a pipe that burst in the second story laundry room. (Doc. 27, Ex. A at ¶5).*fn2 Plaintiffs contacted Alliance Public Adjustment ("Alliance") to represent them in presenting their claim to Defendant Allstate. According to the claim log prepared by Allstate Representative, Joyce Pringle, Defendant contends that Mrs. Fitzmartin reported the claim to Allstate's claims center on December 11, 2006, at 9:30 a.m. (Doc. 27, Ex. B). According to the claim log, Mrs. Fitzmartin reported that there was water damage to the Property as a result of pipes leaking in the second floor laundry room and bathroom. (Doc. 27, Ex. B at p.1).
Upon being notified of the loss, Ms. Pringle contacted Service Master, an emergency water remediation company, to dispatch a team to undertake emergency repairs to the Property. (Id.). Service Master performed a tear out and remediation of the affected areas, and Defendant remitted payment to Service Master for their services in an amount of $11, 005.60. (Doc. 27, Ex. C). Specifically, Service Master Team Leader, Robert Boyle, stated in his December 14, ...