from the Order September 4, 2015 In the Court of Common Pleas
of Greene County Civil Division at No(s): A.D. No. 1218 of
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER,
and Sabrina Brown, h/w, (collectively, the Browns) appeal
from the order, entered in the Court of Common Pleas of
Greene County, granting summary judgment in favor of
Appellees, Everett Cash Mutual Insurance Company, Dennis
Holsinger (as agent and/or employee of Everett Cash Mutual),
and William T. Scott (collectively, Everett Cash). After
careful review, we reverse and remand.
Brown and her father, William T. Scott ("Scott"),
owned a farm home ("residence") in Carmichaels,
Pennsylvania, as joint tenants with a right of survivorship.
The residence was covered by an insurance policy issued by
Everett Cash. Sabrina and Scott were the named insureds on
the policy. In July 2007, the residence burned to the ground
as a result of an accidental electrical fire; the home was
deemed a "total loss." The fire qualified as a
covered loss under the insurance policy.
January 2008, Dennis Holsinger, an adjuster on behalf of
Everett Cash, prepared an itemized breakdown of losses, costs
and depreciation, less the policy deductible, to arrive at an
actual cash value of the residence. Specifically, Holsinger
valued the replacement cost of the house at $100, 269.39,
with a 35% depreciation of $35, 094.29, for an actual cash
value of $65, 175.10. With an additional payment of $6,
000.00 for debris removal minus the insureds' $250.00
deductible and a $9, 456.68 contribution to the Cumberland
Township Fire Escrow Fund, Everett Cash issued the insureds a
check for $61, 468.42 in January 2008. Under the policy the
insurance company was required to issue reimbursement checks
payable to both Sabrina and Scott; Scott refused to sign the
check. As a result, the first reimbursement check expired 180
days after its issuance. Everett Cash ultimately requested a
stop-payment order on the check and reissued another check,
in October 2008, to Sabrina and Scott for the same amount.
addition to a check for the actual cash value of the house,
Everett Cash also paid the Browns four months of living
expenses totaling $1, 800. In a letter dated November 7,
2007, Everett Cash denied the insureds' request for
additional living expenses under the policy because the
residence had not been rebuilt in a reasonable amount of time
following the fire. Specifically, Everett Cash denied the
request based on the following policy language:
D - Additional Living Costs and Loss of Rent
"We" pay the necessary and reasonable increase in
living costs "you" incur to maintain the normal
standard of living of "your" household if a part of
the "insured premises" is made unfit for use by an
insured loss. "We" pay only for the period of
time reasonably required to make the "insured
premises" fit for use or until "your"
household is permanently relocated, whichever is less.
PAYMENT OF LOSS OR CLAIM
2. Additional Living Costs - If the
"insured premises" is made unfit for use for more
than one month, covered costs are paid on a monthly basis.
"You" must give "us" proof of such
Everett Cash Mutual Farmowners Policy, AAIS Form FO-1, at 5;
FO-20, at 6 (emphasis added).
October 30, 2008, the Browns filed a civil complaint against
Everett Cash raising claims of breach of contract, bad faith,
civil conspiracy and respondeat superior liability.
In addition to their claims that Everett Cash breached the
insurance agreement and denied them policy benefits in bad
faith, the Browns also alleged that Scott entered into a
conspiracy with Everett Cash's adjuster, Holsinger, to
pay Scott 100% of the proceeds of the loss.
trial court ultimately determined that Everett Cash was
entitled to summary judgment, specifically concluding that
because the Browns failed to agree on how to use the
insurance proceeds, they were at fault for not rebuilding
within a reasonable amount of time as required under the
policy provisions. With regard to the Browns' bad faith
claim, the court determined that the claim failed, as a
matter of law, because the Browns did not "provide any
evidence that the Defendants' actions were motivated by
self-interest or ill-will. [Rather, ] Plaintiff's claims
were denied because they failed to satisfy the prerequisites
for coverage[.]" Trial Court Opinion, 9/4/15, at 8.
October 5, 2015, the Browns filed a notice of appeal from the
trial court's summary judgment order. They present one
issue for our consideration: Was it appropriate for the trial
court to grant summary judgment where issues of fact, issues
of law and compliance with an insurance policy are left
disputed and unresolved?
Th[e] scope of review of an order granting summary judgment
is plenary. Our standard of review is clear: the trial
court's order will be reversed only where it is
established that the court committed an error of law or
clearly abused its discretion. Summary judgment is
appropriate only in those cases where the record clearly
demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter
of law. The reviewing court must view the record in the light
most favorable to the nonmoving party, resolving all doubts
as to the existence of a genuine issue of material fact
against the moving party. When the facts are so clear that
reasonable minds cannot differ, a trial court may properly
enter summary judgment.
Valentino v. Phila. Triathlon, LLC, 2016 PA Super
248 at *15 (Pa. Super. filed Nov. 15, 2016) (citing
Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d
1218, 1221-22 (Pa. 2002)). Moreover,
the non-moving party must adduce sufficient evidence on an
issue essential to his case and on which he bears the burden
of proof such that a jury could return a verdict in his
favor. Failure to adduce this evidence establishes that there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
Ertel v. Patriot-News Company, 674 A.2d 1038, 1042
reviewing an insurance contract on appeal, we note that our
Court's scope of review is plenary. Cresswell v.
Pennsylvania National Mutual Casualty Ins. Co., 820 A.2d
172 (Pa. Super. 2003). Moreover,
[i]n interpreting the terms of an insurance contract, the
appellate court examines the contract in its entirety, giving
all of the provisions their proper effect. The court's
goal is to determine the intent of the parties as exhibited
by the contract provisions. In furtherance of its goal, the
court must accord the contract provisions their accepted
meanings, and it cannot distort the plain meaning of the
language to find an ambiguity. Moreover, it will not find a
particular provision ambiguous simply because the parties
disagree on the proper construction; if possible, it will
read the provision to avoid an ambiguity.
Burton v. Republic Ins. Co., 845 A.2d 889, 893 (Pa.
Cost v. Actual Cash Value
Browns assert that they were entitled to full replacement
value, not just actual cash value, under the Everett ...