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Berkley Mid-Atlantic Group, LLC v. G.G. Hoch Co., Inc.

United States District Court, Third Circuit

November 20, 2013

G.F. HOCH COMPANY, INC., etal., Defendants.


CATHY BISSOON, District Judge.

For the reasons that follow, Defendants' Motion to Dismiss (Doc. 9) will be denied, without prejudice to Defendants renewing their arguments on summary judgment.



In this diversity action, Plaintiffs are a group of affiliated companies that provide insurance (at times, collectively, "the Insurer"), and Defendants are insurance agents ("the Agent") who sold Plaintiffs' policies. See generally Compl. (Doc. 1-1) at ¶¶ 1-17. The Complaint references, in passing, an "Agency Agreement" entered between the parties in December 2007, but the terms of the parties' agreement(s) are not referenced in the Complaint. Compare id. at ¶ 16 with remainder of Compl.

Beginning in 2009, the Agent sold the Insurer's policies to a trucking company located in Pennsylvania ("the Insured"). See id. at ¶¶ 19-20. Over the course of two-plus policy years, the Insurer provided through the Agent commercial motorist insurance for the Insured, including a "reduced underinsured motorist[, or UIM,] coverage limit" of $50,000. See generally id. at ¶¶ 20-30, 32-40. The Insurer alleges that, for each coverage period, the Agent erroneously failed to secure from the Insured (or retain) "a valid written request" for reduced UIM, as purportedly required under Pennsylvania statute. See id. at ¶¶ 31, 36, 41 & 48.

During the final coverage period, an employee of the Insured was injured in a motor vehicle accident involving an underinsured driver. See id. at ¶¶ 42-43. The employee made a UIM claim under the Insurer's policy, and, according to the Complaint, the Insurer was required to provide full UIM coverage ($1 million) because it did not possess a written request for reduced coverage. See id. at ¶ 48. The Insurer settled the underlying claim for $900,000, and it now seeks recovery from the Agent under theories of professional negligence (Count I) and common law indemnity (Count II). Id.

In its Motion to Dismiss, the Agent argues that the Insurer's negligence claim is barred by the economic loss doctrine, and it argues that the common law indemnity claim fails under the substantive laws of Pennsylvania. See Defs.' Br. (Doc. 10) at 5-7; id. at 7-11.


As a threshold matter, the Court must determine which state's law should apply. Regarding choice-of-law, the Agent-Defendants have presumed that either Pennsylvania or Ohio law applies, and the Insurer-Plaintiffs firmly state that Pennsylvania law controls. Compare Defs.' Br. at 4-5 with Pls.' Opp'n Br. (Doc. 11) at 4-5. Given the parties' agreement regarding the potential application of Pennsylvania law, the Court will apply the law of this forum-state. See In re Columbia Gas Sys. Inc., 50 F.3d 233, 240 n.10 (3d Cir. 1995) (where "the parties do not make an issue of choice of law, [the Court has] no obligation to make an independent determination of what rule would apply if they had made an issue of the matter") (citation to quoted source omitted).[1]

Turning to the substance of Defendants' Motion, Pennsylvania's economic loss doctrine (at times, "ELD") provides that "no cause of action exists for negligence that results solely in economic damages unaccompanied by physical or property damage." Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 222 (3d Cir. 2010) (citation to quoted source omitted).[2] As often observed, the precise contours of the Pennsylvania ELD are, at times, blurry, and harmonizing the various state and federal court decisions can be challenging, if not impossible. In many instances, the doctrine's application is strongly influenced by the context in which it is presented, and blending the various tests can easily result in apples-to-oranges comparisons. Compare, e.g., Azur at 223 (interpreting Pa. Supreme Court's decision in Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (2005) as creating "narrow" exception to ELD, under Restatement (2d) Section 552, for negligent misrepresentations made by businesses providing information to non-contracting parties for pecuniary gain) with, e.g., Bilt-Rite, 866 A.2d at 288 (stating in dicta that "Pennsylvania has long recognized that purely economic losses are recoverable in a variety of tort actions including... professional malpractice actions"). The Court takes the law as it finds it, however, and the undersigned is charged with applying the doctrine in the specific context of this case.

The Insurer characterizes its claims as sounding in "professional negligence," and it argues that such claims categorically are exempted from the economic loss doctrine. See Pls.' Opp'n Br. at 7-8. Although some court decisions may appear to have painted with such a broad brush (whether advertently or inadvertently), the undersigned is not convinced that the line is so clearly drawn. Cf., e.g., Rapidigm, Inc. v. ATM Mgmt. Servs., LLC, 63 Pa. D. & C.4th 234, 241-42 (Pa. Comm. Pl. Jul. 10, 2003) (noting that Pennsylvania courts have allowed professional negligence actions to be maintained only against certain licensed professionals, and opining that "[t]he decision of whether to restrict professional negligence actions to traditionally-recognized professions or to allow these actions to be brought against any providers of services requiring special skill and training depends on whether parties contracting with service providers should receive the protections of tort law or whether their rights should be governed solely by the terms of their agreement").

Rather than deal in generalities, this Court will focus on the Insurer's specific claims, namely the purported negligence of an insurance agent/broker. Under Pennsylvania law:

[F]or ordinary negligence purposes, the relationship between an insurance broker and client is an arm's length relationship.... In the context of an insurance transaction,... an insurance broker is not under an affirmative duty to... advise a client regarding the extent of coverage[, but] an insurance broker may be held liable if he/it affirmatively undertakes such duties and then negligently performs, or if a special relationship is present between the parties.... Moreover, a plaintiff acquires a cause of action... where the broker ...

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