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Currie v. State Farm Fire and Casualty Co.

United States District Court, E.D. Pennsylvania

August 19, 2014



ROBERT F. KELLY, Sr., District Judge.

Presently before the Court is Defendant, State Farm Fire and Casualty Company's ("State Farm"), Motion for Partial Summary Judgment, Plaintiffs, Robert Currie and Kathleen Currie's ("Plaintiffs"), Response, State Farm's Reply, and Plaintiffs' Sur-Reply. For the reasons stated below, the Motion is granted in part and denied in part.


On October 3, 2013, Plaintiffs instituted this action by filing a Writ of Summons in the Bucks County Court of Common Pleas, and on October 21, 2013, Plaintiffs filed a Complaint averring breach of contract (Count I), and bad faith (Count II). On November 19, 2013, State Farm filed a Notice of Removal to this Court.

Plaintiffs, husband and wife, own a dwelling at 504 Heatons Mill Drive, Langhorne, Pennsylvania (the "Property") which was covered by a homeowner's insurance policy (the "Policy") issued by State Farm. On October 29, 2012, while Plaintiffs were away in Washington State, Superstorm Sandy struck the area causing a tree on the Property to crash into the dwelling resulting in damage. Compl. ΒΆ 4. The housesitter immediately contacted Plaintiffs to report the tree strike. (Pls.' Resp. Mot. Summ. J at 2.) Plaintiffs then contacted State Farm to report the loss. (Id.) They also contacted Kanga Roof ("Kanga"), a roofing company with whom Plaintiffs had a maintenance contract. (Id.)

At a later date, an inspection of the loss was conducted by State Farm adjuster, Travis Hengst ("Hengst"), and Ted Vingless ("Vingless") of Kanga Roof. (Id. at 3.) Plaintiffs assert that the inspection focused on the exterior damage to the Property, although Plaintiffs recall showing interior damage in the first, second, and third floors to Hengst. (Id.) Plaintiffs recall Vingless verbally quoting the roof replacement at more than $100, 000. (Id.)

Thereafter, Plaintiffs received State Farm's estimate dated November 19, 2012, and State Farm's check for $56, 940.54 (the actual cash value amount of the estimate less the deductible). (Id.) Plaintiff questioned the adequacy of the estimate including the roof replacement allowance of $50, 338.47, especially in light of the verbal estimate given by Kanga of more than $100, 000. ( Id., Ex. C at 15.) Plaintiff then contacted Russell Roofing Contractors ("Russell") for a further estimate, and hired Richard Green & Son Public Adjuster ("Green"), and Tantala Associated, LLC ("Tantala") to assess damages. (Id. at 3.) On March 8, 2013, Green submitted to State Farm its estimated loss of $363, 804.98, which incorporated estimates for roof and chimney replacement by Russell in the amount of $132, 944 and $29, 158. (Id. at 3-4.) The engineering report of Tantala was also submitted to State Farm. (Id.) These submissions prompted State Farm to hire its own engineer, Gary Popolizio (Popolizio"), who inspected the dwelling on April 11, 2013, with Hengst. (Id. at 4.) This inspection resulted in a second estimate from State Farm dated May 27, 2013, and a supplemental payment to Plaintiffs in the amount of $9, 502.09. (Pls.' Resp., Ex. D.)

Plaintiffs assert that they still did not have sufficient funds to properly repair the damages from the loss and, subsequently, through Green, sent State Farm written demands for appraisal on June 4 and June 18, 2013.[1] ( Id., Ex. J.) State Farm rejected the demand in a denial letter dated July 2, 2013, which states:

This claim involves certain items for which State Farm has not admitted liability. These items include, but are not necessarily limited to, sanding and refinishing of the wood floors. Since the dispute goes beyond the amount of loss, appraisal is not an appropriate method of resolution.

(Def.'s Mot. Summ. J., at 4.)

State Farm filed the instant Motion for Partial Summary Judgment on June 16, 2014. Plaintiffs filed a Response on June 27, 2014. State Farm filed a Reply on July 11, 2014, and Plaintiffs a Sur-Reply on July 16, 2014.


Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp. , 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether... one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be genuine, ' i.e., the evidence must be such that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs , 995 F.Supp. 554, 561 n.14 (E.D. Pa. 1998).

Summary judgment must 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 , 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc. , 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios ...

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