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Perlman v. Universal Restoration Systems, Inc.

United States District Court, Third Circuit

September 19, 2013




Diane Perlman (Plaintiff) commenced this diversity action[1] against Universal Restoration Systems, Inc., 1 Source Safety & Health, Inc. (1 Source), INX Technology Corporation of Pennsylvania (INX), Great Northern Insurance Company (Great Northern) d/b/a Chubb Group of Insurance Companies (Chubb), and John Little[2] for damages and other costs in an amount greater than $100, 000 related to Plaintiff’s breach of contract, negligence, and insurance bad-faith claims. Four of the five defendants are no longer in the case, leaving only 1 Source.[3]This memorandum pertains only to Plaintiff’s negligence and breach-of-contract claims against 1 Source. 1 Source filed a motion for summary judgment on both claims, to which Plaintiff responded.[4] After the Court heard oral argument on 1 Source’s motion and all related filings, including argument on whether one of Plaintiff’s expert witnesses, Dr. Jack Thrasher, meets the threshold requirements under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the matter is now ripe for review. For the reasons that follow, the Court will grant 1 Source’s motion.


Plaintiff alleges that mold contamination was first discovered on her Narberth, Pennsylvania property (the Narberth home) in August 2001. Pl.’s Resp. Ex. A, Perlman Dep., at 81:17-21, Jun. 14, 2011, ECF No. 142-1. Both her attic and basement were affected at this time. Id. at 82:9-18. She filed a claim with her property insurer, Chubb, and Chubb had Universal perform mold remediation work on the Narberth home in September 2001. Def.’s Mot. Summ. J. Ex. I, Pl.’s Resp. to Interrogs. No. 8, ECF No. 140-2. Plaintiff claims Universal failed to adequately remove the mold. First Am. Comp. ¶ 29. She further claims that, from 2001 to 2003, she experienced allergies, shortness of breath, fatigue, joint stiffness, concentration problems, reading and writing difficulties, vertigo, inflammation, head sweats, weight gain, and hypothyroidism as a result of the mold exposure. Pl.’s Resp. to Interrogs. No. 9.

Plaintiff rediscovered mold in the Narberth home in June 2003. Id. No. 8. On June 23, 2003, Jake Yasgur of Mold Detective inspected the property and collected mold samples. Id. No. 2. The samples were processed by NAL East Mold Testing, which confirmed the presence of toxic mold and elevated levels of Stachybotrys. Notice of Removal Ex. A, 2003 NAL East Report, ECF No. 1. After Plaintiff informed Chubb of the NAL East Report indicating mold contamination, Little referred her to speak with 1 Source’s vice president, Harry Neil, a Certified Industrial Hygienist (CIH). Perlman Dep. 130: 14-15; Pl.’s Resp. Ex. P, 1 Source Visual Inspection, Moisture Testing and Sampling Report 1, 6, ECF No. 146-16 [hereinafter 1 Source Report]. 1 Source submitted an inspection proposal to Plaintiff on June 18, 2003, Def.’s Mot. Summ. J. Ex. B, Proposal, ECF No. 146-2, but Neill stated that he was unable to begin the inspection until August 2003 due to vacation plans and other work projects, Def, ’s Mot. Summ. J. Ex. C, Neill Dep., at 41:10-14, Jan. 31, 2012, ECF No. 146-3. Consequently, Plaintiff chose not to hire 1 Source to perform the inspection. Perlman Dep. 130:14-132:11. However, Chubb requested that 1 Source investigate, on its behalf, an area in the attic of the Narberth home and throughout the house for moisture sources after Plaintiff submitted a claim to Chubb in July 2003. 1 Source Report 1.

1 Source inspected the Narberth home on August 4, 2003, and September 2, 2003. Id. The company reported that it performed moisture-meter testing using a Tramex “Moisture Encounter” meter and a Delmhorst Moisture Probe and collected air samples using a pbi surface-air-system. Id. at 1-2. The air samples were processed by P&K Microbiology Services, Inc. Id. at 2. 1 Source’s report to Chubb also indicated the presence of elevated moisture levels in the attic sitting room and a bathroom, damp basement walls suggesting fungal amplification, and staining in the master bedroom and closet suggesting prior moisture damage. Id. at 3-5. Accordingly, 1 Source recommended that a structural engineer perform further inspection, that Plaintiff take cleaning measures including HEPA air washing and vacuuming, and that she seek medical attention regarding her health concerns. Id. at 5-6. 1 Source submitted invoices to Chubb on September 9, 2003, for moisture and mold investigation totaling $2, 552.35 and on October 7, 2003, for moisture and mold investigation totaling $3, 389.28. Pl.’s Resp. Ex. S, 1 Source Invoices, ECF No. 146-19. INX subsequently completed mold remediation work at the Narberth home in 2003. First Am. Compl. ¶ 59.

Plaintiff temporarily moved to Washington, D.C. on September 8, 2003. Pl.’s Resp. to Interrogs. No. 2. At the time, she moved her furniture, clothing, and books from the Pennsylvania residence to D.C. Id. Due to this transfer of belongings, she claims that her temporary D.C. residence became contaminated with mold from the Narberth Home. Id.

Thereafter, Plaintiff permanently moved to D.C. on July 26, 2004, and she purchased a residence there on February 15, 2005 (the permanent D.C. home). First Am. Comp. ¶¶ 66-67. Meanwhile, she was forced to seal her contaminated property in plastic boxes and place them in long-term storage. Id. ¶ 68. Plaintiff contends that she experienced re-exposure to toxic mold in the permanent D.C. home when her neighbor’s apartment flooded and caused water damage to the residence. Id. ¶¶ 87-88. She alleges that her original symptoms caused by mold exposure in the Narberth home were aggravated by and caused a hypersensitivity to mold exposure in the permanent D.C. home. Id. ¶ 86-87, 124.

Overall, she alleges experiencing serious mycotoxin exposure symptoms as a result of: (1) 1 Source’s participation in the mold remediation of the Narberth home (2); further exposure to mold found on furniture and other belongings that she moved from the Narberth home to her temporary D.C. residence; and (3) aggravated symptoms based on re-exposure to mold in the permanent D.C. home. Id. ¶ 162.


Summary judgment is appropriate “if the movant shows 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). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

Federal courts sitting in diversity generally apply the substantive choice-of-law rules of the forum state, which is Pennsylvania. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 219 (3d Cir. 2005). Here, the parties rely on Pennsylvania law in their written submissions to the Court, which indicates their agreement that Pennsylvania law governs the interpretation of the instant insurance contract. Therefore, to the extent the law of a state other than Pennsylvania would control, the parties waive the issue and Pennsylvania law will apply. See Advanced Med., Inc. v. Arden Med. Sys., Inc., 955 F.2d 188, 202 (3d Cir. 1992); Mellon Bank v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1005 n.1 (3d Cir. 1980).


Plaintiff asserts that 1 Source was negligent in its role during the 2003 mold remediation of the Narberth home and thus violated Pennsylvania law. She also argues that 1 Source is liable for breach of contract on a third-party beneficiary theory. 1 Source moves for summary judgment, arguing that Plaintiff has not produced sufficient evidence to survive summary judgment as to either of these causes of ...

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