United States District Court, E.D. Pennsylvania
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.
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
Id. at 19-20 (emphasis in original).
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.
Allstate and plaintiffs disagreed on the amount of loss,
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.
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.
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.
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.
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.
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 ...