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Allstate Insurance Company v. John and Mary Atkins

June 14, 2011


The opinion of the court was delivered by: O'neill, J.


On September 13, 2010, plaintiff Allstate Insurance Company filed this declaratory judgment action. Allstate seeks an Order declaring that it does not have a duty to defend or indemnify defendants John and Mary Atkins in a lawsuit filed against them by defendant-herein Susan Ricca in the Court of Common Pleas for Delaware County (civil action number 10-000817). Allstate moved for summary judgment on January 11, 2011. Proceeding pro se, the Atkinses filed a response on February 1, 2011.*fn1 For the following reasons, I will grant Allstate's motion.


On February 23, 2007, the Atkinses sold the property located at 20 Oriole Avenue, Media, PA 19063 to Ricca. Prior to the sale, the Atkinses completed a "Seller's Property Disclosure Statement." The Atkinses' answers to two of the questions on the disclosure statement are at issue in the underlying lawsuit. First, the Atkinses answered "no" to the v. question "[a]re you aware of any water leakage, accumulations or dampness within the basement or crawl space?" Second, they answered "no" to the question "[a]re you aware of any past or present hazardous substances present on the property (structure or soil) . . . ?" In addition, the Atkinses allegedly orally represented to Ricca that there were no defects in the property aside from those identified in the disclosure statement.

In alleged reliance on the Atkinses' disclosure statement and oral assurances Ricca purchased the property. She quickly concluded, however, that groundwater enters the basement of the Oriole Avenue property through the rear cinderblock wall of the house, causing up to two inches of water to pool over 120 square feet of floor space. Further investigation revealed that the basement ceiling was constructed out of three sheets of asbestos wallboard. These undisclosed defects forced Ricca to spend a substantial amount of money to remove the asbestos sheets and to prevent the reappearance of mold and mildew. She asserted that the basement leak is not correctable absent complete excavation of the surrounding area.

On April 29, 2010, Ricca sued the Atkinses, Re/Max and McFadden in the Court of Common Pleas for Delaware County for alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa. Cons. Stat. § § 2011, et seq. She asserted that "[i]nstead of undertaking repairs required [to] completely restore the Residence, the Atkins[es] concealed the evidence of asbestos, and prior leakage and/or drainage problems and/or defects in the basement of the Residence so that potential purchasers would not be able to detect them upon personal inspection." Del. Co. Compl. ¶ 27.

During the time period in which the Atkinses owned the Oriole Avenue property, they held two insurance policies with Allstate. Policy number 098678779 was a "Deluxe Homeowners Policy" which insured the Oriole Avenue property. Policy number 918926269 was a "Personal Umbrella Policy" which provided excess insurance coverage. Allstate concedes that these policies were in force at all times relevant to this lawsuit. See Pl.'s Br. at 2.


Summary judgment will be granted "against a party who 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex, 477 U.S. at 322-23. If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A fact is "material" if it might affect the outcome of the case under governing law. Id.

To establish "that a fact cannot be or is genuinely disputed," a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility ...

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