United States District Court, E.D. Pennsylvania
J. Pappert Judge
Mary Lou Doherty and her sons James and John own numerous
properties which they rent, primarily to college
students. This case pertains to two of them, halves
of a twin dwelling unit with a shared wall located at 949 and
951 Glenbrook Avenue, Bryn Mawr, Pennsylvania. Bryn Mawr is
located in Radnor Township. Doherty acquired title to the
properties from her mother and has been responsible for
managing and maintaining them since 1975 or 1976.
See (Doherty Dep., ECF No. 132, Ex. LL, at
insured the properties with Allstate in 2005. In 2014,
tenants complained about their condition and Radnor Township
cited Doherty for numerous violations of the Township's
Rental Housing Code. The Township subsequently revoked the
Dohertys' rental licenses for the properties and then
sued the Dohertys for, among other things, refusing to allow
inspections of the units.
thereafter sued Allstate claiming that the insurer was
required to compensate her for the damage which precipitated
the notices of violations and revocations. She also contends
that Allstate is obligated to defend her family against the
Township's lawsuit. Doherty claims as well that in its
dealings with her, Allstate violated the Pennsylvania Unfair
Trade Practices and Consumer Protection Law, 73 P.S. §
201-1, -9.2(a), and the Commonwealth's bad faith statute,
42 Pa. Cons. Stat. § 8371.
an extensive procedural history, Allstate filed a motion for
summary judgment as to all of Doherty's claims. The Court
grants the motion and dismisses the case for the reasons
November 2005, Doherty began researching online for landlord
property insurance policies. (ECF No. 92-1, ¶¶
27-28.) She found a brochure for Allstate's Landlords
Package Insurance Policy (“the Landlords Policy”
or “the Policy”). (Id. ¶ 29); (ECF
No. 144-11.) On December 1, 2005, Doherty met with Thomas
McKeon (“Mr. McKeon”) of the McKeon Agency and
Lynn Fredricks, the McKeon office manager, to discuss her
insurance needs. (ECF No. 92-1, ¶ 30); (McKeon Dep., ECF
No. 132, Ex. V, at 16:15-18.) The McKeon Agency
(“McKeon”) is a small office of sales agents who
are licensed to sell Allstate insurance policies and, to a
limited extent, provide customer service on those
accounts. See (McKeon Dep., at 18:8-9,
27:11-14, 42:8-13, 53:2-7). McKeon does not, however, handle
claims or have any role in the claims adjusting process.
See (id. at 42:8-13, 53:2-7). If a customer
purports to have a claim, McKeon's role is to help
connect them to Allstate's claims department.
See (id.). This can take the form of
directly transferring a customer who is on the telephone to
the claims department, informing the customer of the
different ways in which he can open a claim or opening a
claim for the customer themselves. See (id.
at 42:8-44:3). In sum, Mr. McKeon testified that
“claims is a whole different animal. So however the
claims department handles that -- we are sales and service.
So we are geared more toward selling the thing, taking care
of the customer, and if they have a claim situation handing
them off to claims.” (Id. at 53:2-7.)
alleges that at her December 1 meeting with Mr. McKeon and
Fredricks, she was seeking the “best possible
landlord-related property insurance.” (ECF No. 92-1,
¶ 27.) Though it is unclear from her Second Amended
Complaint exactly what Doherty communicated to Mr. McKeon and
Fredricks, Doherty claims she “explained to
Defendant's Agents the concerns and needs of the
Plaintiffs as identified in the foregoing paragraphs, ”
informed them that she wanted to insure ten or more
properties and stated that if Allstate was unable to provide
such assurances of coverage, she would be leaving to continue
her search. (Id. ¶ 31.) Doherty contends that
in response, “Defendant's Agents assured [her] that
its [Landlords Policy] was the best possible coverage”
for the properties, (ECF No. 92-1, ¶ 32), and
“made representations that its [Landlords Policy] had
better benefits, advantages, and conditions” than those
offered by other insurers, (id. ¶ 40).
around December 19, 2005, McKeon employees inspected the
properties and executed individual declaration pages for the
policies covering each. (Id. ¶¶ 37-38);
(ECF No. 144-12.) According to Doherty, McKeon provided these
initial declaration pages to Doherty in a folder “to
support and confirm the representations being made to
Plaintiffs.” (ECF No. 92-1, ¶ 39.) Doherty
accepted the documentation, left McKeon, stopped looking for
other insurance providers and cancelled all of
Plaintiffs' existing policies. (Id. ¶¶
43-45.) Doherty claims she “justifiably relied on the
representations of Defendants that the desired coverages
would be expressed in and through the contracts.”
(Id. ¶ 47.) Doherty also claims that McKeon
“failed to advise [her] of any exclusions which were
applicable” and “failed to give [her] a copy of
the insurance contracts, or give [her] the opportunity to
review the insurance contract.” (Id.
¶¶ 46, 48.) Doherty received a copy of the policy
in the mail a few weeks later. See (Doherty Dep., at
46:6-20); (McKeon Dep., at 47:12-48:2). Thereafter, Doherty
renewed the Policy annually, each time receiving renewal
declaration pages and a copy of the same Policy.
See (Doherty Dep., at 101:16-102:1); (Tr. of
Hr'g 2, at 8:3-15, ECF No. 172); (ECF No. 1, at 3).
Landlords Package Insurance Policy, Policy Number 908879295,
covers the Glenbrook properties. The “Landlord Package
Policy Declarations” contains an overview of the
“Policy Coverages and Limits of Liability.” (ECF
No. 132-4.) Page 3 of the declarations states: “Your
Landlords Package policy consists of this Policy Declarations
and the documents listed below. Please keep these
together.” (Id.) It then lists four documents:
Landlords Package Policy Form AS84, Notice of Terrorism
Insurance Cov. Form AP3337-2, Pennsylvania LPP Amendatory
End. AS122-2, and Standard Fire Policy Provisions form
AS277-2. (Id.) The Policy thus consists of five
separate documents, two of which are relevant here: the
declaration pages, which contain the Policy Declarations, and
the Landlords Package Policy Form AS84, which contains the
policy terms, conditions and exclusions.
Landlords Policy offers myriad “coverages, ”
three of which-coverages A, B and D-are at issue in this
case. See (ECF No. 132-5, at 7). Coverage A is
titled “Dwelling Protection.” It covers property
damage to an insured's dwelling and attached structures
at the residence premises. (Id. at 6.) Coverage B is
titled “Other Structures Protection” and covers
property that is separated from an insured's dwelling by
a clear space. (Id.) The Policy enumerates what
losses are insured under each of the various coverages. It
We will cover sudden and accidental direct physical loss to
property described in Coverage A-Dwelling Protection and
Coverage B- Other Structures Protection except as limited or
excluded in this policy.
(Id. (emphasis in original).)
Policy then sets forth various limitations and exclusions.
Under the heading “Losses We Do Not Cover Under
Coverages A and B, ” the Policy explains that Allstate
does not cover losses to the property caused by, among other
Water or any other substance on or below the surface of the
ground, regardless of its source. This includes water or any
other substance which exerts pressure on, or flows, seeps or
leaks through, any part of the residence
premises. (Id. at 7, ¶ 4.)
. . . .
Enforcement of any building codes, ordinances or laws
regulating the construction, reconstruction, maintenance,
repair, placement or demolition of any building
structure, other structure or land at the
residence premises. (Id. at 7,
. . . .
Wear and tear, aging, marring, scratching, deterioration,
inherent vice, or latent defect . . . mechanical breakdown .
. . Growth of trees, shrubs, plants or lawns whether or not
such growth is above or below the surface of the ground . . .
Settling, cracking, shrinking, bulging or expansion of
pavements, patios, foundations, walls, floors, roofs or
ceilings . . . Insects, rodents, birds or domestic animals.
(Id. at 8, ¶ 13.)
. . . .
Seepage, meaning continuous or repeated seepage or leaking
over a period of weeks, months, or years, of water, steam or
fuel . . . from a plumbing, heating, air conditioning or
automatic fire protection system or from within a domestic
appliance; or . . . from within or around any plumbing
fixtures, including, but not limited to, shower stalls,
shower baths, tub installations, sinks or other fixtures
designed for the use of water or steam. (Id. at 9,
(Id. at 7-9 (emphasis in original).)
Policy also excludes from coverage losses caused by
vandalism, defined in the Policy as “willful or
malicious conduct resulting in damage or destruction of
property. Vandalism does not include theft of
property.” (Id. at 3, ¶ 12;
id. at 9, ¶ 18.)
excluded from coverage are losses caused by “[a]ny act
of a tenant, or guests of a tenant, unless the act results in
sudden and accidental physical damage” caused by
specifically enumerated sources. (Id. at 9, ¶
caused by “faulty, inadequate or defective . . .
maintenance” are not covered. (Id. at 10,
¶ 21.) Nor are losses “[c]onsisting or caused by
mold, fungus, wet rot, dry rot or bacteria, ” including
“any loss which, in whole or in part, arises out of, is
aggravated by or results from mold, fungus, wet rot, dry rot
or bacteria.” (Id.)
D covers specified losses of fair rental income and will be
discussed in more detail infra in subsection
III.A.vi. (Id. at 14.) Section III of the Policy,
titled “Optional Protection, ” provides, as its
title suggests, optional coverage which the insured can
purchase at an additional cost:
The following optional coverages may supplement coverages
found in Section I or Section II and apply only when they are
indicated on the Policy Declarations. The Provisions of this
policy apply to each Optional Coverage in this section unless
modified by the terms of the specific Optional Coverage.
(ECF No. 132-6, at 27.)
December 20, 2005, Doherty's Policy was amended to
include, for an additional premium, the optional Building
Code Coverage. See (ECF No. 92-1, ¶ 49); (ECF
No. 144-15); (Tr. of Hr'g 2, at 77:15-85:25). This
provision will be discussed in more detail infra in
around October 21, 2013, Doherty leased 949 and 951 Glenbrook
Avenue to two groups of tenants, Villanova University
students Scott DiSciullo, Patrick O'Brien and
others. (ECF No. 92-1, ¶ 54); (ECF No. 93-2.)
The leases were to run from June 1, 2014 to May 31, 2015,
though the tenants did not plan to move in until late August.
(ECF No. 92-1, ¶ 55); (ECF No. 93-2.) On August 22,
2014, the incoming tenants alerted Radnor Township Police to
extensive damage to the properties,  including but not limited to
broken windows, buckled hardwood floors, water stains and
ceiling damage, removed and damaged fixtures and doors,
detached ceiling lights and smoke alarms, water damage in the
basement, peeling paint, an overgrown lawn, dirty floors and
surfaces, a broken stove and refrigerator and trash and mice
droppings. See (ECF No. 92-1, ¶ 65); (Daly
Dep., ECF No. 132, Ex. V, at 15:12-16, 18:13-17); (ECF Nos.
93-3, 93-4, 93-17, 93-18). The police came to the units and
completed two incident reports, which included the written
statements from DiSciullo and O'Brien. (ECF No. 93-3.)
The police also notified the Radnor Township Department of
Community Development. (ECF No. 92-1, ¶ 59); (Daly.
Dep., at 18:18-19:3.) Radnor Township Code Official Ray Daly
then inspected and photographed the properties and began
preparing a list of property damage and code violations.
See (ECF No. 92-1, ¶ 60); (ECF No. 93-4); (Daly
Dep., at 12:19-22, 20:6-15); (ECF Nos. 132-21-132:42). Daly
testified that the descriptions of the properties'
damaged conditions contained in the tenants' written
statements to the police comported with his recollection of
what he observed at the properties on August 22.
(Id. at 15:12-16, 18:13-17); (ECF No. 93-3.)
August 27, 2014, Daly returned to the premises to post
notifications of violation which listed, and directed Doherty
to correct, various code infractions. See (ECF No.
92-1, ¶¶ 61-62); (ECF No. 93-4); (Daly Dep., at
20:16-22). Doherty claims she did not see any posted
notifications. See (Doherty Dep., at 183:10-11). In
an August 31 letter, the tenants told Doherty that they were
breaking their leases because the premises were
uninhabitable. (ECF No. 92-1, ¶ 63); (ECF No. 96-1.) The
tenants also sent Doherty an e-mail to this effect on the
same day. (ECF No. 132-19.) In a September 5, 2014 letter,
the law firm representing Radnor Township notified Doherty
that her student rental licenses for the 949 and 951
Glenbrook Avenue homes were being revoked due to building
code violations and the Dohertys' failure to permit the
Township to perform mandated inspections for several
years. (ECF No. 132-43.) Doherty claims she
received the tenants' August 31 letter on September 6 and
immediately went to the properties, at which time she
discovered the damage. (ECF No. 92-1, ¶ 64).
September 6, Doherty faxed and sent by certified mail a
letter to McKeon and to Allstate's corporate office in
Northbrook, Illinois. (ECF No. 92-1, ¶¶ 73-74);
(ECF No. 93-6.) The subject line read: “RE: notice of
claim under policies (908 879295) for 949-51 Glenbrook
Avenue, Bryn Mawr Pa.” The letter states:
Dear Allstate and Allstate McKeon Agency:
Please be advised of a claim being made for property damage
which has occurred at the above properties. In addition, the
properties have been vacated by the tenants so that there is
also claim being made by your insured, James and John Doherty
and Mary Lou Doherty for loss of rent.
put the letter in the file of a pre-existing claim involving
the Dohertys (“the Chester file”). See
(ECF No. 132-2, at 18); (ECF Nos. 132-55, 132-56); (Erskine
Dep., ECF No. 132, Ex. W, at 25:15-24, 39:16-43:1).
the record shows that McKeon employee Kathy Wagner received
Doherty's letter on September 9 and on the same day left
a voicemail for Doherty seeking more information about the
alleged loss. (ECF No. 132, at 15.) Specifically,
McKeon's files include a copy of Doherty's September
6 letter on which Wagner wrote: “9/9 - Rec'd - no
claim recorded. L/M for Mary Lou
Doherty.” (ECF No. 132-44.) At her deposition,
Doherty testified that she does not know whether she received
a voicemail from McKeon on September 9, 2014. See
(Doherty Dep., at 211:24-213:13). In any event, no claim was
opened at that time.
September 24, 2014, Radnor Township sued the Dohertys in the
Delaware County Court of Common Pleas based upon the
properties' condition and the Dohertys' alleged
failure, for several years, to permit the Township to inspect
the premises in accordance with the Township's Rental
Housing Code. (ECF No. 93-5.) The Complaint, a copy of which
is attached as Exhibit G to Doherty's Second Amended
Complaint, details the Township's efforts to inspect the
Glenbrook Avenue units going back to 2008 and the fact that
in 2009 the court ordered the Dohertys to permit the
inspections. (Id. ¶¶ 14-32.) According to
the Complaint, however, all of the Township's letters to
the Dohertys seeking to schedule inspections went either
challenged or unanswered and the Township did not succeed in
inspecting the properties. (Id.)
Township's Complaint details the August 2014
communications Township officials had with the tenants of the
Glenbrook properties. (Id. ¶¶ 33-36.) It
states that after contacting the Township with their
complaints, the tenants allowed the Township to inspect the
properties and that, upon inspection, the Township discovered
numerous violations of the Township's Property
Maintenance Code and ultimately found both units to be
“unfit for human habitation.” (Id.
¶¶ 37-43.) Finally, the Complaint states that
“[o]n September 5, 2014, the Township Solicitor
forwarded a letter to the Dohertys stating that their rental
licenses for the Properties for the 2014-2015 year have been
revoked.” (Id. ¶ 44.)
October 4, 2014, Doherty faxed and sent by certified mail
another letter to McKeon asking the company why it had failed
to respond to her September letter and how the claim could be
adjusted. (ECF No. 92-1, ¶¶ 80-81); (ECF No. 93-8.)
She also sent a copy of the letter by certified mail to
Allstate, which Allstate claims was again misfiled in the
Chester file. (ECF No. 92-1, ¶ 83); (ECF No.
93-8); (ECF No. 133, at 18); (ECF No. 132-55). In her Second
Amended Complaint, Doherty claimed that McKeon received the
letter the same day and did not respond to the follow-up
request. (ECF No. 92-1, ¶¶ 82, 85.) The record
shows, however, that McKeon received Doherty's letter on
October 8, 2014 and that Wagner called and spoke with Doherty
the same day. (ECF No. 133, at 15.) Allstate produced, from
McKeon's files, a copy of Doherty's October 4 letter
with a handwritten note by Wagner stating that she spoke with
Doherty and told her that she could set up a claim by calling
1-800-ALLSTATE. (ECF No. 132-45.) Wagner also followed
up the conversation with an e-mail to Doherty, again
instructing Doherty to file a claim by calling the hotline
and following the prompts. (ECF No. 132-46.) Though Doherty
repeatedly claimed that her letters went unanswered
altogether, see, e.g., (ECF No. 92-1, ¶ 101);
(Pls.' Am. Compl., ¶ 66, ECF No. 66), her story
changed after Allstate produced evidence of the phone call
and e-mail from Wagner. At her deposition, Doherty conceded
that she spoke with someone from McKeon on October 8.
(Doherty Dep., at 218:21-219:17.) Though she only “sort
of” recalled the details of the conversation, she
stated that her notes from that conversation, which she
accidentally placed in her file related to the Chester case,
said: Tom McKeon, call 1-800-ALLSTATE,
prompts. See (id. at 218:21-220:14). When
asked whether she followed Wagner's instructions, Doherty
claimed that she attempted to utilize the 1-800-ALLSTATE
hotline but was unable to get through and concluded that it
was a non-functioning number. In any event, a claim was not
opened at this time and Doherty made no further attempts to
contact Allstate or McKeon until July of 2015.
interim, Doherty hired John Rush, a home repair contractor,
to assess the damage, prepare an “Estimate of
Repairs” and fix the properties. (ECF No. 92-1, ¶
87); (ECF Nos. 93-17, 93-18.) Rush worked for Doherty from
October 2014 through May of 2015 and allegedly performed $32,
252.00 worth of repairs. (ECF No. 92-1, ¶¶ 87-88);
(ECF Nos. 93-17, 93-18.) Doherty testified that Wayne
Bevilaqua and Mike Gormley also did work on the property
during this time. (Doherty Dep., at 237:11-15.) Though the
house was not “the same as it was pre-loss, ”
Doherty testified that the properties had been repaired and
“Rush had done what he could to mitigate it.”
(Id. at 162:14-19, 233:1-10.)
November 2014, Doherty received inquiries about leasing 951
Glenbrook from a group of prospective tenants, among them
Devin Good. (ECF No. 92-1, ¶ 90.) Undeterred by the
Township's prior revocation of her rental licenses,
Doherty leased the unit to Good and two other Villanova
students, with the lease to run from June 1, 2015 to May 31,
2016. (ECF Nos. 93-19, 93-20.) According to Doherty, the
prospective tenants “inspected the property on several
occasions, expressed their satisfaction with the premises,
and between February and June 2015, paid their respective
portions of the security deposits, accepted the keys, and
commenced moving into the properties.” (ECF No. 92-1,
¶ 91); (ECF Nos. 93-19, 93-20.) A written statement
provided by Devin Good to the Radnor Police tells a different
Mary Lou and James Doherty of Havertown, PA
owning/representing the property at 951 Glenbrook Avenue,
Bryn Mawr, PA entered into a lease agreement with me and (my
father as a signatory) early in the year of 2015. Three
months of rent were paid plus a full month of security
deposit whereas the lease agreement should have commenced on
June 1, 2015 and ending on May 31, 2016. Mary Lou and James
Doherty failed to supply the keys to said premises until late
June thereby denying me access and living accommodations that
I paid for most of June. After receiving the keys in late
June I attempted to move in during the second week of July.
Upon entering the premises, the conditions were deplorable.
Active leaking septic pipes in the basement, black mold
throughout, exposed wiring, overflowed and nonfunctioning
toilet, missing or smoke detectors five plus years past
expiration to name a few of the conditions. We also
discovered shortly after that Radnor Township had denied
application for said property to be used as a rental prior to
the commencement of my lease arrangement - the Dohertys were
aware of this Town order, the deplorable and unsafe
conditions but continued to take and cash rental checks and
hide both facts from me. When speaking with the Town shortly
after my attempt to move in they also said we can't live
in the house due to the aforementioned conditions and our
safety as we described.
(ECF No. 132-48.)
to Doherty, “[o]n July 2nd, 2015, Plaintiffs
unexpectedly received notification and lock-out of the
premises at issue from the Local Municipality, being the
Township of Radnor, alleging that the premises at issue was
in violation of Local Building Codes and had not been
inspected.” (ECF No. 92-1, ¶ 103); (ECF No.
132-47.) Then, on July 11, Doherty contends that “the
tenants of Plaintiffs, through Devin Good, claimed to have
problems with the premises at issue which were untrue and not
even possible.” (ECF No. 92-1, ¶ 105.)
30, 2015, Doherty faxed and sent by certified mail another
letter to McKeon, complaining about Allstate's refusal to
acknowledge the claim. (ECF No. 92-1, ¶ 108); (ECF No.
93-11.) She also sent a copy of the letter by certified mail
to Allstate's corporate office. (ECF No. 92-1, ¶
109); (ECF No. 93-11.) She informed Allstate that her damages
were now almost $400, 000.00 and, for the first time, that
Radnor Township's September 2014 lawsuit against her had
triggered Allstate's duty to defend. (ECF No. 92-1,
¶ 110); (ECF No. 93-11.)
opened its claim file for the Glenbrook properties on August
7, 2015. (ECF No. 132-73.) The first entry in the claim log
is dated that day and states that the insured sent “a
very large package of legal documents stating claim was filed
in September and Allstate never responded.”
(Id. at 5.) An entry by an Allstate employee
reflects that Allstate contacted Doherty on August 7 and
noted that she was “very upset and would like to speak
to another customer service rep.” (Id. at 4.)
August 8, 2015, Tiara Myrick, an Allstate claims adjuster,
called Doherty. (Id.) She did not reach Doherty so
she left a voicemail message. (Id.); (Myrick Dep.,
ECF No. 132, Ex. AA, at 79:14-19, 85:23-86:21.) In the
message, Myrick provided Doherty with her First Party Claim
Number, 0379581976. (ECF No. 92-1, ¶ 112); (ECF No.
132-73); (Myrick Dep., at 85:23-86:21.) That day, Myrick
wrote in the claim log: “Called insured left a vm/m
regarding the claim that was submitted. Left my name, #, and
office hours for insured to contact me.” (ECF No.
132-73, at 3.) Myrick left Doherty another voicemail to this
effect on August 11. (Id.) (Myrick Dep., at
86:2-87:5.) Doherty did not call Myrick back. She instead
sent a letter on August 11 to McKeon (by fax) and Allstate
(by certified mail). (ECF No. 132-74); (Myrick Dep., at
76:22-87:5.) In her letter, Doherty stated that Myrick left
her a message regarding her claim and gave her a callback
number that was different from a prior number she had been
given. (ECF No. 132-74.) She then writes: “[t]here
seems to be some confusion in Allstate's claims handling
process” and requests that someone “look into
this by August 17, 2015 and get back to [her].”
testified that she then contacted McKeon to see if they could
assist her in contacting the insured or provide her with an
alternate phone number for Doherty. (Myrick Dep., at
89:4-90:10.) The claim log shows that on August 12 Myrick
spoke to Lynn Fredricks from McKeon, who told Myrick that
Doherty “will not respond to anyone's phone
call.” See (ECF No. 132-73, at 3); (Myrick
Dep., at 89:3-90:10, 106:8- 107:16). According to the entry,
Fredricks told Myrick that “she [had] tried to call the
insured and get a feel for what the claim is being filed for,
but the insured only responds with numerous legal
documents.” (ECF No. 132-73, at 3.) According to the
claim log, Myrick called Doherty again on August 12 and left
another voicemail: “Called the insured explained that I
did receive the docs that were sent to her agent for me. I
explained that I have been trying to reach her for the last
few days .. left a vm/m with my name, #, and office
hours.” (Id.); see also (Myrick Dep.,
at 90:11-22). On August 13, 2015, Myrick sent Doherty a
letter confirming that she had been assigned to handle the
claim, stating that she had tried and been unable to reach
Doherty by phone and requesting that Doherty return her call.
See (ECF No. 132-75); (ECF No. 132-73, at 3);
(Myrick Dep., at 90:23-92:7). Doherty nevertheless repeatedly
claimed that neither Allstate nor McKeon ever responded to
her August 11 letter. See (ECF No. 92-1,
¶¶ 115-116); (ECF No. 66, ¶¶ 96-97).
heard nothing from Doherty and unaware that Doherty sued
Allstate in the Delaware County Court of Common Pleas the day
before, Myrick again called and left a message for Doherty on
August 19. See (ECF No. 132-73, at 3); (Myrick Dep.,
at 92:8-21). On August 21, 2015, Myrick emailed Doherty
stating that she was the claims adjuster and had
“attempted to contact [Doherty] on several occasions
via phone and letter correspondence to discuss the details of
your claim in depth.” (ECF No. 132-76.) The e-mail
states: “[i]t is imperative that I make voice to voice
contact with you to get accurate loss facts regarding the
claim that you submitted” since “[t]he claims
process is reliant on the information that is shared between
‘you' the insured and ‘me' the claims
adjuster.” (Id.) She provided her contact
information and asked Doherty to contact her. (Id.)
Again, Doherty did not do so. See (Myrick Dep., at
August 26, 2015, Myrick called Doherty yet again.
See (id. at 94:8-95:15); (ECF No. 132-73,
at 2). The log states: “Called the insured. Mrs.
Insured answered the phone, explained that she could not
speak with me because she was in pending litigation and hung
up the phone - at this time we'll get a manager involved
for the appropriate steps.” (ECF No. 132-73, at 2.) The
file was then given to Clare Erskine, an Allstate litigation
representative. (Myrick Dep., at 44:22-47:24, 64:8-23).
Erskine reviewed the file and wrote a note in the claim log
on August 27, 2015 stating: “Apparently litigation has
been filed against Allstate in this matter as stated by the
insured.” See (ECF No. 132-73, at 2). She then
reviewed the Chester file to make sure it had nothing to do
with the property claim, at which point she found the letters
Doherty had previously sent. See (Erskine Dep., at
25:15-24, 39:16-43:1); (ECF Nos. 132-55, 132-56).
herself represented the Plaintiffs when she filed their
initial Complaint in this case in Delaware
County. The Complaint alleged that Allstate
breached the insurance contract by failing to pay for covered
losses. (Pls.' Compl., ECF No. 1.) Though the Complaint
was vague with respect to the factual circumstances
surrounding the alleged losses, it did include two purported
dates of loss, August 27, 2014 and July 2, 2015. (Pls.'
Compl., ¶¶ 9, 15.) With respect to both dates, the
On [date], while Allstate's  Renewal Policy was in full
force and effect, the owners suffered physical loss and
damage to the insured property, believed to be the result of
a peril insured against under the policy issued by Allstate
resulting in damage to the insured premises Glenbrook as well
as loss of rent totaling in excess of [amount].
(Id.) Again, August 27, 2014 was the date on which
Daly posted his notifications of violations at the premises
and July 2, 2015 is the date Doherty “unexpectedly
received” notification from Radnor Township
“locking her out” of the properties for code
violations. (ECF No. 92-1, ¶¶ 61-62, 103); (ECF No.
93-4); (Daly Dep., at 20:16-22); (ECF No. 132-47.)
removed the case on September 16, 2015. (ECF No. 1.) At some
point, Allstate's counsel contacted Doherty requesting
clarification on the basis of the lawsuit. On October 15,
2015, Doherty sent counsel a letter purporting to explain her
claim and provide “an overview of the loss that may be
helpful to you - which spans over five years.” (ECF No.
132-80.) The overview, however, merely recounted the history
of disputes between Doherty and Radnor Township, culminating
in the revocation of Doherty's rental licenses.
See (id.). The letter did not contain any
information about the alleged property damage, the alleged
cause of the losses or the factual circumstances forming the
basis of her suit against Allstate. See
Court held a Rule 16 conference on October 26, 2015. (ECF No.
18.) In her capacity as Plaintiffs' counsel, Doherty was
questioned by the Court and provided responses on the
record. (ECF No. 132-81.) Doherty explained that
there was friction between her and Radnor Township concerning
the properties and posited that the damage to the properties
may have been caused by Radnor Township officials in
retaliation for prior decisions by the Delaware County Court
of Common Pleas, stating: “I think Radnor had a key to
the property and they shook it apart or whatever you want to
call it.” See (id. at 11:19-13:10,
18:19-19:2). She identified August 27, 2014 as the date when
the supposedly sudden and accidental loss occurred and
repeated her belief that Radnor Township officials were
responsible for “negligence and/or just shaking things
apart so that you could say that the place was in violation
of maintenance codes of Radnor Township.” (Id.
at 12:21-25, 16:12-17:12.) When asked if she was contending
that Radnor Township was responsible for the damage to the
properties, Doherty said: “They were the last ones in
there, had access to it, and testified in a court proceeding
in Delaware County that they were in the properties through
mid-September 2014.” (Id. at 13:11-16.)
Allstate's counsel pointed out that the policy expressly
excluded from coverage losses caused by vandalism, to which
Doherty responded: “Okay, I consider that to have been
vandalism, in my personal opinion.” (Id. at
18:14-19:7.) Though the Court repeatedly probed Doherty as to
why she was suing Allstate for damage allegedly caused by
Radnor Township or her tenants, since such perils were
expressly excluded from coverage under the Policy, Doherty
was unable to articulate an explanation. See
(id. at 13:11-14:13, 16:3-19:7, 19:20-20:23, 22:4-8,
after the Rule 16 conference, Allstate's counsel, citing
Doherty's description of the circumstances surrounding
the alleged losses and information Allstate had learned when
it received the Radnor Township Police incident reports,
asked her to withdraw the lawsuit. See (ECF No.
29-11). He followed up with a similar e-mail on October 28,
2015. (Id.) On November 12, 2015, Allstate's
lawyer sent Doherty another letter indicating that her
ongoing issues with Radnor Township did not constitute a
legally cognizable claim under the Landlords Policy.
See (ECF No. 29-13).
subpoenaed records related to the Dohertys' properties
from various entities and individuals, including Radnor
Township, the Radnor Township Police Department, Villanova
University, Philadelphia Electric Company, Haverford Township
and Devin Good. Allstate received, inter alia, a
package of documents from Good, including his written
statement to the police, various letters sent by his father
to Doherty and the photographs he took of the property in
July 2015; the Radnor Township Complaint; the 2009 Common
Pleas Court Order compelling the Dohertys to allow the
Township to inspect the properties; the September 5, 2014 and
July 2, 2015 notices from Radnor Township revoking
Doherty's rental licenses; various complaints about
Doherty submitted to Villanova by students and parents
alleging poor maintenance of rental properties and misconduct
as a landlord (in renting the properties at issue and
others); pictures of the damage taken by Daly on August 22,
2014; the August 27, 2014 notifications of violation letters;
and four incident reports filed with the Radnor Police-two by
DiSciullo and O'Brien in August 2014, one by Good in July
2015 and one by the parent of a previous tenant of 951
Glenbrook in 2006. See (ECF No. 29, at 4-5); (ECF
Nos. 132-10-132-12, 132-14-132-54).
December 10, 2015, counsel for Allstate wrote Doherty a
letter enclosing the subpoenaed records from Villanova.
See (ECF No. 29-14). The letter states that the
“records show that the properties were uninhabitable
prior to the dates of loss listed in the complaint.”
(Id.) On December 17, 2015, after receiving
additional subpoenaed documents from the Radnor Police,
counsel again wrote Doherty. (ECF No. 29-15.) He enclosed the
four police reports and stated that the records showed that
the tenants had been unable to move in to the properties in
August 2014 and July 2015, that Doherty had been informed of
the property damage five days before the purported date of
loss and that there had been complaints about maintenance
issues dating back to 2006. (Id.)
April 4, 2016, after receiving the documents from Devin Good,
defense counsel wrote Doherty again, stating: “We
recently received these documents from Devin Good and the
Radnor Police Department. It is clear that the damages
alleged in the Complaint pre-exist the purported date of
loss.” (ECF No. 29-16.) Doherty then retained counsel
who entered his appearance on May 18, 2016. (ECF No. 36.) On
June 13, 2016, Doherty filed a motion for leave to file an
amended complaint, seeking to add claims under the bad faith
statute, 42 Pa. Cons. Stat. § 8371, as well as the
Pennsylvania Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”), 73 P.S. § 201-1, -9.2(a).
(ECF No. 41.) The Court granted the motion and in her Amended
Complaint, Doherty alleged that Allstate violated the bad
faith statute by failing to open a claim in a timely manner,
failing to investigate the claim and refusing to pay for
covered losses without a reasonable basis. She also alleged
that Allstate, through McKeon, violated the UTPCPL by
misrepresenting to Doherty the terms and benefits of the
Landlords Policy. Though the Amended Complaint remained vague
about the types and causes of losses Doherty allegedly
sustained, Doherty claimed that “Defendant
misrepresented the benefits, advantages, conditions, and
terms of its policy so as to make Plaintiffs believe that
they would be covered for losses which are the basis of their
Complaint.” (ECF No. 41, ¶ 118.)
August 10, Allstate filed a motion to dismiss Doherty's
UTPCPL claim, Count III of the Amended Complaint. (ECF No.
67.) On September 27, 2016, the Court granted Allstate's
motion and gave Doherty leave to file a Second Amended
Complaint with more specific allegations as to the alleged
misrepresentations and the manner in which they were made.
(ECF No. 90.) Doherty filed her Second Amended Complaint on
October 11. (ECF No. 92-1.) Allstate filed another motion to
dismiss Count III on November 1. (ECF No. 99.)
was deposed on November 15, 2016. Allstate's counsel
asked Doherty about the circumstances surrounding the alleged
August 27, 2014 loss:
Counsel: All right. So the date of August 27, 2014, the date
that you said that on August 27, 2014 the owner suffered
physical loss and damage to the property, the physical loss
and damage to the property you're referring to was the
inspection by Ray Daly of Radnor Township Code Enforcement?
Doherty: No. It wasn't the inspection, it was the
information as to the condition.
Counsel: Okay. What caused the condition?
Doherty: I would assume somebody damaged the property. It was
Counsel: All right. What date did that occur?
Doherty: Some time on or about August 27th. I would assume it
would have been before Ray Daly would have written his
report. Maybe they damaged it after. I don't want to be
sarcastic but you never know.
Counsel: Who caused the loss to your property?
Doherty: The only people that I know were the tenants and Ray
Daly and possibly whomever else they had with them, family.
. . . .
Counsel: Okay. What is the cause of the damage to the
Doherty: Tenant abuse I would assume is about the best way to
describe it. Not unless Ray Daly did it, you know, I
wouldn't rule it out. Because I've had inspectors
knock a hole in the wall to check the insulation supposedly.
(Doherty Dep., at 32:11-33:8, 34:3-9.) The parties returned
to this topic later in the deposition:
Counsel: And what caused those conditions was it vandalism?
Doherty: Okay. I consider it to have been abuse of the
property by a [sic] either the tenants, their guests, or
possibly code officials, but somebody was there. I believe it
Counsel: The conditions as -- Doherty: It wasn't the wind
and it wasn't the rain.
Counsel: Okay. The conditions as described by Ray Daly and
photographed by Ray Daly and the letters dated August 27,
2014, you believe that to be the result of tenant abuse from
either the tenants or Radnor Township?
Doherty: I believe it occurred while they had custody and
control of the property, that's the only way I can put
. . . .
Counsel: All right. And on August 27, 2014 there wasn't
any weather-related event that caused damage to the property,
Doherty: Not to my knowledge. (Id. at 81:18-83:7.)
Counsel also attempted to discern the circumstances
surrounding the alleged loss on July 2, 2015, the same date
that Radnor Township notified Doherty (for the second time)
that her rental licenses were not being renewed:
Counsel: So what's the physical loss and damage of the
insured property that you suffered as the owner on July 2,
Doherty: I went over there and I believe the tenants were in
there. Somebody was in there.
Counsel: Somebody was in there on July 2, 2015?
Doherty: Yeah. Yes. Excuse me.
Counsel: Your license to rent had been revoked by Solicitor
Rice in September of 2014, correct?
Doherty: No. He just thought he had. Unfortunately he
doesn't have the authority to do it. So let's just
not get overboard.
(Id. at 57:21-58:9.)
December 6, 2016, Doherty filed a response in opposition to
the motion to dismiss Count III, (ECF No. 116); Allstate
replied on December 14, (ECF No. 125). On January 13, 2017,
before the Court could rule on the motion to dismiss,
Allstate filed its motion for summary judgment. (ECF No.
132.) On January 19, 2017, Doherty purported to
“verify” the allegations in her Second Amended
Complaint. (ECF No. 135.) Doherty responded to the summary
judgment motion on February 4, 2017, (ECF No. 144), and
Allstate filed its reply on February 24, 2017, (ECF No. 152).
The Court heard oral argument on March 7 and March 15,
2017. (ECF Nos. 153, 172.) With leave of
Court, Doherty filed her surreply brief in opposition to
summary judgment on March 8, 2017. (ECF No. 162.) The Court
has reviewed the parties' submissions and the record
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the non-moving party, the moving party is entitled to
judgment as a matter of law. Smathers v. Multi-Tool,
Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 194 (3d Cir. 2002); see
also Fed. R. Civ. P. 56(c). A genuine issue of material
fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere
scintilla of evidence in support of the non-moving party will
not suffice; there must be evidence by which a jury could
reasonably find for the non-moving party. Id. at
252. The Court's role at the summary judgment stage
“is not . . . to weigh the evidence and determine the
truth of the matter but to determine whether . . . there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” Id. at
249. In making this determination, “the court is
required to examine the evidence of record in the light most
favorable to the party opposing summary judgment, and resolve
all reasonable inferences in that party's favor.”
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
However, the party opposing summary judgment must identify
evidence that supports each element on which it has the
burden of proof. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
Count I of the Second Amended Complaint, Doherty contends
that Allstate breached the insurance contract by both
refusing to pay for covered losses and failing to defend her
in the lawsuit brought by Radnor Township. (ECF No. 92-1,
¶¶ 125, 126.) Where federal jurisdiction is based
on diversity of citizenship, as it is here, the Court applies
the choice-of-law rules of the state in which the Court sits.
Canal Ins. Co. v. Underwriters at Lloyd's
London, 435 F.3d 431, 434 (3d Cir. 2006) (citations and
quotations omitted). Under Pennsylvania choice-of-law rules,
an insurance contract is governed by the law of the state in
which the contract was made. Id. “An insurance
contract is made in the state in which the last act legally
necessary to bring the contract into force takes
place.” Id. Here, the parties agree that the
insurance contract was made in Pennsylvania and,
consequently, Pennsylvania substantive law
applies. (Tr. of Hr'g 2, at 16:25-17:7.)
contends initially that Allstate breached the contract by
refusing to pay for covered losses. To prove a breach of
contract under Pennsylvania law, a plaintiff must establish
“(1) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the
contract and (3) resultant damages.” Ware v. Rodale
Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003) (citation
omitted). Plaintiffs have proven the existence of a contract
between them and Allstate-the Landlord Package Insurance
respect to proving a breach, the general rule in Pennsylvania
is that the insured has the burden “to establish
coverage under an insurance policy.” Nationwide
Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206 (3d Cir.
2001). Put differently, “the insured bears the burden
of proving facts that bring its claim within the policy's
affirmative grant of coverage.” Koppers Co. v.
Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir.
1996). If (and only if) the insured does so, the burden
shifts to the insurer to establish an applicable exclusion to
coverage. Cosenza, 258 F.3d at 206; see also
Koppers, 98 F.3d at 1446 (“[T]he insurer bears the
burden of proving the applicability of any exclusions or
limitations on coverage, since disclaiming coverage on the
basis of an exclusion is an affirmative defense.”).
Exclusions are “strictly construed against the insurer
and in favor of the insured.” Cosenza, 258
F.3d at 206-7. If the insurer demonstrates that an exclusion
is triggered, the burden shifts back to the insured to show
either that the exclusion does not apply or that an exception
to the exclusion applies. Spector v. Fireman's Fund
Ins. Co., 451 F. App'x 130, 136 (3d Cir. 2011)
(citing Air Prods. & Chems., Inc. v. Hartford
Accident & Indem. Co., 25 F.3d 177, 180 (3d Cir.
1994); see also Northern Ins. Co. v. Aardvark Assocs.,
Inc., 942 F.2d 189, 195 (3d Cir. 1991).
makes four arguments as to why the alleged losses are covered
under the Policy: (1) the Policy is an “all-risk”
policy and therefore she need only prove that losses occurred
in order for them to be covered; (2) even if she is required
to prove that the losses were sudden and accidental to
trigger coverage, she has done so through her testimony and
that of her proposed expert; (3) the losses are covered under
the Policy's provisions relating to building codes and
lost rental income; and (4) under the reasonable expectations
doctrine, her expectation that the Policy would include
coverage for losses caused by tenant abuse, vandalism and
building code violations defeats even the unambiguous
language of the Policy. The Court examines each argument in
lawsuit is predicated, first and foremost, on the assertion
that the Landlords Policy is an “all-risk”
policy. An “all-risk” policy is a special kind of
insurance policy that “covers every kind of insurable
loss except what is specifically excluded.” Betz v.
Erie Ins. Exch., 957 A.2d 1244, 1255-57 (Pa. Super. Ct.
2008) (quoting Black's Law Dictionary 815 (8th ed.
2004)); see also § 148:50 Nature and scope of
coverage, 10 Couch on Ins. § 148:50 (“A property
insurance policy which covers ‘physical loss or damage
to property insured from any external cause' is properly
construed to be an ‘all-risk' policy.”).
other words, a typical “all-risk” policy, by its
terms, states that it covers any kind of loss from any
external cause as long as it is not specifically excluded.
See PECO Energy Co. v. Boden, 64 F.3d 852, 856-57
(3d Cir. 1995) (policy insured “against all risks of
physical losses or damage however caused” unless
excluded); Intermetal Mexicana, S.A. v. Ins. Co. of N.
Am., 866 F.2d 71, 74-75 (3d Cir. 1989) (policy covered
“all risks of direct physical loss or damage from any
external cause” except those causes specifically
excluded); Easy Corner, Inc. v. State Nat'l Ins. Co.,
Inc., 154 F.Supp.3d 151, 154-55 (E.D. Pa. 2016) (policy
insured against “direct physical loss of or damage to
Covered Property . . . caused by or resulting from any
Covered Cause of Loss” where any cause of loss was
covered unless excluded).
benefit to a plaintiff-insured with an “all-risk”
policy is that in order to carry her initial burden of
“proving facts that bring its claim within the
policy's affirmative grant of coverage, ”
Koppers Co., 98 F.3d at 1446, she need only prove
that she suffered a loss to the insured property. See
Easy Corner, Inc., 154 F.Supp.3d at 154 (“In other
words, all losses are covered unless specifically excluded,
so Plaintiff need only show that a loss occurred to meet its
burden.”); see also Miller v. Boston Ins. Co.,
218 A.2d 275, 279 (Pa. 1966) (“It is axiomatic that
plaintiff must show that the loss falls within the risks
insured against, but it is also axiomatic, that it is for the
defendant to show that the loss was not due to one of the
risks insured against but rather to an excepted cause. It
would seem that all plaintiff need show in such a case is a
loss, since losses from all causes are covered.”).
Doherty thus argues that since the Landlords Policy is an
“all-risk” policy, she need only prove a loss
occurred in order to shift the burden to Allstate to prove an
applicable exclusion. Doherty supports her assertion that the
Policy is an “all-risk” policy with two
first contends, citing Easy Corner, 154 F.Supp.3d at
154-55, that the Landlords Policy's language is identical
to insurance contracts that have been deemed
“all-risk” policies by other courts. See
(Tr. Of Hr'g 1, at 12:10-16:8); (ECF No. 144-2, at 6-7).
This is incorrect. Unlike other “all-risk”
policies, the Landlords Policy does not purport to cover all
physical losses from any cause unless excluded; rather, it
unambiguously narrows its coverage to “sudden and
accidental direct physical loss to property . . . except
as limited or excluded in this policy.” (ECF No. 132-5,
at 7); Cf. Boden, 64 F.3d at 856-57 (above);
Intermetal Mexicana, S.A., 866 F.2d at 74-75
(above); Easy Corner, Inc., 154 F.Supp.3d at 154-55
(above). Thus, to fall within the Landlords Policy's
grant of coverage, the insured's losses must, at a
minimum, be sudden and accidental. The language contained in
the Landlords Policy is materially different from and not as
broad as that contained in typical “all-risk”
policies. At oral argument, Plaintiffs' counsel
acknowledged that by the Policy's own terms, it does not
cover all losses from all causes not specifically excluded:
“And I stand corrected that it doesn't cover
everything -- but it covers a very good bit amount of the
circumstances.” (Tr. Of Hr'g 1, at 15:9-13.)
the Landlords Policy is not a typical “all-risk”
policy because it does not cover “all losses
unless excluded, ” it does provide
“all-risk” coverage with respect to “sudden
and accidental losses, ” all of which are covered
unless excluded. Thus, whereas a plaintiff with a standard
“all-risk” policy can shift the burden to the
insured to prove an exclusion by merely proving a loss to
insured property, Doherty can only do so by showing a sudden
and accidental loss to insured property. See, e.g.,
Wehrenberg v. Metro. Prop. & Cas. Ins. Co., No.
2:14-01477, 2017 WL 90380, at *4 (W.D. Pa. Jan. 10, 2017)
(granting summary judgment where plaintiff subject to
identical policy language failed to show that the loss was
sudden and accidental); Hamm v. Allstate Prop. & Cas.
Ins. Co., 908 F.Supp.2d 656, 667 (W.D. Pa. 2012)
(requiring plaintiffs subject to identical policy language to
show that the losses were sudden and accidental in the first
instance); see also Raschkovsky v. Allstate Ins.
Co., No. 15-0021, 2015 WL 9463882, at *5 (C.D. Cal. Dec.
21, 2015) (same); Garrison Prop. & Cas. Co. v.
Silva, No. 1:15-8, 2015 WL 13081330, at *3 (S.D.Miss.
Sept. 24, 2015), aff'd, 652 F. App'x 240
(5th Cir. 2016); Babai v. Allstate Ins. Co., No.
12-1518, 2014 WL 12029279, at *1 (W.D. Wash. Oct. 8, 2014);
Nicholson v. Allstate Ins. Co., 979 F.Supp.2d 1054,
1061 (E.D. Cal. 2013); Capriotti v. Allstate Prop. &
Cas. Ins. Co., No. 11-7779, 2012 WL 3887043, at *3 (E.D.
Pa. Sept. 6, 2012); Schaber v. Allstate Ins. Co.,
No. 06-6007, 2007 WL 4531707, at *8 (N.D. Cal. Dec. 18,
2007); Tinucci v. Allstate Ins. Co., 487 F.Supp.2d
1058, 1059 (D. Minn. 2007). Doherty nevertheless contends
that she has a typical “all-risk” policy and thus
need only prove that a loss occurred.
also argues that reading the Policy as a whole, the phrase
“$500 All Peril Deductible” in the Policy
Declarations transforms the Policy into the typical
“all-risk” policy. See (Doherty Dep., at
26:7-30:3, 35:12-38:5, 106:19-107:14); (Tr. of Hr'g 1, at
8:9-23). The Policy Declarations are contained in the renewal
declaration pages, a separate document from the
“Landlord Package Insurance Policy Form AS84, ”
which outlines the terms and conditions of coverage.
See (ECF No. 132-5). A section in the Policy
Declarations labeled “Policy Coverages and Limits of
Liability” lists the various types of coverage
Plaintiffs purchased-among them “Dwelling Protection,
” “Other Structures Protection, ” and
“Personal Property Protection”-as well as the
limits of liability with respect to each. See
(id.). Underneath each of these three headings is a
bulletpoint that reads: “$500 All Peril Deductible
Applies.” (Id.) According to Allstate, this
phrase references the fact that a $500 deductible will apply
to any and all perils that are covered under the Policy. Put
differently, the $500 deductible does not vary depending on
which covered peril causes the loss. See (Tr. of
Hr'g 2, at 40:21-41:20); (ECF No. 125, at 6-7). Doherty
contends that the reference to a “$500 All Peril
Deductible” signals that she has purchased
“all-peril, ” or “all-risk, ”
coverage. See (ECF No. 144-2, at 6-7); (Doherty
Dep., at 26:7-30:3, 35:12-38:5, 106:19-107:14); (Tr. of
Hr'g 1, at 8:9-23).
then uses the supposed “all-risk” nature of the
Policy to assert that regardless of the types of losses she
suffered or what perils caused them, they are covered.
See (ECF No. 144-2, at 6-14); (Doherty Dep., at
26:7-30:3, 35:2-37:18, 42:3- 45:14, 48:1-52:14, 80:17-81:17,
106:19-108:10, 189:21-192:5, 197:18-198:9). For instance,
Doherty testified to her belief that that the properties were
damaged by the tenants, possibly at the suggestion of Radnor
Township officials, several times. See (Doherty
Dep., at 31:13-34:14, 38:6-39:17, 78:3-83:11, 108:2-110:1,
193:3-195:4, 197:18-200:24). Since neither tenant abuse nor
vandalism is a covered peril (both are expressly excluded),
Allstate's counsel repeatedly asked Doherty to identify
which covered peril would entitle her to coverage for those
alleged losses. Doherty responded, “I have an all
perils policy so it basically covered the gamut.”
(Id. at 35:12-15.) When pushed further, the
following exchange ensued:
Counsel: It says right here, ma'am, believed to be the
result of a peril insured against. So what was the peril that
- Doherty: I have all perils.
Counsel: Okay. So what does that mean?
Doherty: It means I lucked out.
Counsel: Okay. That means all perils means you - Allstate
wrote you a policy that would give you coverage for anything
that would happen to the property?
Doherty: That's where we got into I was - I was laughing
because I could remember contract law first year law school
and some professor asked about that and a kid was saying it
was a quasi-contract, ...