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Dagit v. Allstate Property and Casualty Insurance Co.

United States District Court, E.D. Pennsylvania

June 8, 2017

CHARLES DAGIT and MARYKATE DAGIT
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY

          MEMORANDUM

          O'NEILL, J.

         The present case involves an ongoing dispute between plaintiffs, husband and wife Charles and MaryKate Dagit, and their homeowner's insurer, defendant Allstate Property and Casualty Insurance Company, regarding the amount of loss plaintiffs sustained to their property during a June 2015 storm. In a previous order, I dismissed plaintiffs' breach of contract claim, but left intact plaintiffs' bad faith claim. Defendant's present motion seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 with respect to this remaining bad faith claim. For the following reasons, I will grant Allstate's motion.

         FACTUAL BACKGROUND

         Defendant Allstate issued a policy of insurance covering plaintiffs' property located at 124 Gulph Hills Road, Wayne, PA 19087. Def.'s Mot. Summ. J., ECF No. 23, Ex. 3A. The policy was comprised of a Homeowners Policy Form APC 215, a Pennsylvania Amendatory Endorsement Form AP4794, an Extended Protection Amendatory Endorsement Form APC232, and a Sinkhole Activity Coverage Endorsement Form AP4869. Id. It also contained an appraisal provision, which mandated as follows:

If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand, each party must select a competent and impartial appraiser and notify the other of the appraiser's identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire.
The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to you and to us the amount agreed upon shall be the amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award agreed upon by any two will determine the amount of loss.
Each party will pay the appraiser it chooses, and equally bear expenses for the umpire and all other appraisal expenses.

Id. at 19-20 (emphasis in original).

         On June 22, 2015, while the policy was in full force and effect, plaintiffs suffered sudden and accidental physical damages to the insured premises caused by a windstorm, rain and a fallen tree. Am. Compl., ECF No. 10, ¶ 6. Plaintiffs gave timely notice of the loss to defendant, claiming they incurred expenses ranging from between approximately $190, 000 to approximately $270, 000. Id. ¶¶ 7-15. Moreover, due to the extent of the damage, plaintiffs were obligated to hire a registered design professional to submit permits to Upper Merion Township for the repair/rebuild of the property. Id. ¶ 11.

         Because Allstate and plaintiffs disagreed on the amount of loss, [1] Brian DiBricida of Young Adjustment Company, Inc., working on behalf of plaintiffs, demanded an appraisal through a November 10, 2015 notice to Allstate. Def.'s Mot. Summ. J., ECF No. 23, Ex. 3D. On November 24, 2015, Allstate sent plaintiffs additional correspondence to “update” them on “the status of the claim.” Pls.' Supp. Resp. Opp'n, ECF No. 27, Ex. 26. Allstate further noted that its investigation of the loss was continuing and the claim was pending appraisal review. Id. On November 25, 2015, DiBricida e-mailed Allstate, notifying it that plaintiffs were naming Joel Heffelfinger as their appraiser and requesting that defendant forward the name and contact information of its appraiser. Id., Ex. 27. When Allstate did not respond, DiBricida again emailed defendant on December 2, 2015, advising that “Allstate may be in violation of the insuring agreement by not declaring the name of their appraiser within the 20-days of receiving the insured's demand for appraisal.” Id., Ex. 28. Then again, on December 21, 2015, DiBricida emailed Allstate claiming that it had ignored its obligations under the policy by not naming an appraiser, and threatening to file a bad faith claim if no response was received by January 8, 2016. Id., Ex. 29.

         On December 15, 2015, just prior to this last e-mail, Allstate sent DiBricida a notice acknowledging plaintiff's written request dated November 10, 2015, but stating that “[t]o start the appraisal process, [Allstate] must have a signed request for appraisal from a named policyholder Charles Dagit.” Def.'s Mot. Summ. J., ECF No. 23, Ex. 3D. It further noted that upon receipt of the signed request from the insured, it would name CIS as its appraiser. Id.

         DiBricida responded on December 21, 2015, both emphasizing that his contract with the plaintiffs gave him the ability to demand appraisal on their behalf and questioning defendant's motives for waiting over five weeks to seek plaintiffs' signed request for appraisal if it was required. Pl.'s Supp. Resp. Opp'n, ECF No. 27, Ex. 30. Nonetheless, the letter attached Charles Dagit's signed demand for appraisal, which stated that “[t]his will serve as notice that the demand for appraisal submitted by Young Adjustment Company, Inc. on November 10, 2015 was requested on our behalf.” Id. The notice further reiterated that plaintiffs had chosen Joel Heffelfinger as their appraiser. Id.

         On January 4, 2016, Victor Hoffman of CIS Specialty Claim Services acknowledged his assignment as Allstate's appraiser. Def.'s Mot. Summ. J., ECF No. 23, Ex. 3F. Mr. Hoffman first attempted to contact Mr. Heffelfinger on January 6, 2016. Id., Ex. 3G. On January 15, 2016, however, Mr. Heffelfinger advised Mr. Hoffman that he had not yet obtained a signed contract from plaintiffs and would not proceed until that contract was received. Id., Ex. 3G. Plaintiffs then executed a consulting/appraisal service agreement on January 27, 2016. Id., Ex. 3L. Mr. Hoffman and Mr. Heffelfinger subsequently executed the Declaration of Appraisers on January 30, 2017 and February 1, 2017 respectively. Id., Ex. 3H.

         On February 17, 2016, both Mr. Hoffman and Mr. Heffelfinger inspected the property. Id., Ex 3I. In a narrative report, issued September 30, 2016, Mr. Hoffman detailed his appraisal inspection, which included interviews with plaintiffs' engineer, architect and contractor, the Township building inspector and Allstate's engineer. Id. Mr. Heffelfinger similarly engaged in additional appraisal investigation between March 25 and April 4, 2016-including a return visit to the property and communication with Creative Comfort Solutions regarding HVAC issues. Id., Exs. 3K. He prepared two revised versions of his estimates and submitted the third version to Mr. Hoffman on May 12, 2016. Id. On May 13 and 16, 2016, Mr. Heffelfinger and Mr. Hoffman discussed the claim. Id.

         On June 10, 2016, plaintiff Charles Dagit e-mailed Mr. Hoffman asking that the appraisal process be completed “in the most timely way possible.” Id., Ex. 3M. Mr. DiBridica responded asking that Mr. Dagit not directly contact Mr. Hoffman regarding the appraisal, but rather that he run everything through either himself or Mr. Heffelfinger. Id. Mr. DiBridica further commented that Mr. Heffelfinger was in Florida for his mother's funeral and that Mr. Hoffman was “ready to work out ...


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