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Fishman v. State Farm Fire And Casualty Co.

United States District Court, E.D. Pennsylvania

November 6, 2017



          SCHMEHL, J.

         Plaintiff brought this action, claiming the Defendant breached the terms of a homeowners insurance contract it maintained with Plaintiff when it denied coverage for damage to the roof of Plaintiff's residence. Plaintiff alleged that she suffered a sudden and accidental loss and damage to the roof as the result of hail and wind. The case was tried to the Court sitting without a jury. For the reasons that follow, the Court finds in favor of the defendant and against the Plaintiff.

         Prior to trial, the parties stipulated to the following facts:

         1. Plaintiff Sandra J. Fishman ("Plaintiff ') lives [in a house] located at 1402 Farr Road, Reading, Pennsylvania 19211-1714 ("Property").

         2. On May 22, 2014, the Property was insured by State Farm Fire and Casualty Company Insurance Homeowner Policy 78-EB-0308-2 ("Policy").

         3. The Property has a slate roof.

         4. It was reported to State Farm that the Property was damaged as a result of a storm on May 22, 2014 involving reported hail and wind damage to the roof and gutters at the Property.

         5. The loss was reported to State Farm by Plaintiff on September 30, 2014.

         6. Plaintiff retained the services of Gillespie Contracting Inc. (“Gillespie”) related to the damages and repairs to the slate roof.

         7. On October 15, 2014, State Farm representative George Dickey ("Dickey") inspected the Property with Eric Moe (“Moe”) of Gillespie.

         8. Based on his inspection, Dickey prepared an initial $12, 661.94 Replacement Cost Value ("RCV") estimate with an Actual Cost Value ("ACV") of $7, 657.28, and, after applying depreciation ($4, 747.68) and the deductible ($500.00), Dickey issued a $7, 657.28 check to Plaintiff and Wells Fargo Bank.

         9. On October 16, 2014, after review of the steep roof pitch, Dickey increased the State Farm estimate to $13, 029.53 RCV and issued a second check to Plaintiff and Wells Fargo in the amount of $124.57.

         10. The October 16, 2014 State Farm estimate provides for repairs to limited areas of the Property's roof.

         11. On April 29, 2015, Gillespie prepared an April 29, 2015 Proposal which provided a $85, 186.56 RCV estimate with additional supplements costs of $4, 991.50, for a total of $90, 178.06 RCV ("Gillespie Proposal").

         12. The Gillespie Proposal provides for the replacement of the Property's entire slate roof.

         13. On May 27, 2015, a second inspection of the Property was performed by State Farm specialist Marvin A. Moore ("Moore") and Gillespie representatives, Moe and Caleb Arnwine (“Arnwine”).

         14. The purpose of the second inspection was to reconcile the price differences between State Farm's $13, 029.53 RCV estimate and Gillespie's $90, 178.06 RCV estimate.

         15. The May 27th inspection did not result in reconciliation of the price differences.

         16. As a result of the difference between the State Farm estimate and the Gillespie estimate, State Farm retained independent slate roofing expert Joseph C. Jenkins ("Jenkins"), to inspect the Property's slate roof and provide an opinion regarding any damage to the roof, the cause of the damage, and an estimate for repairs related to hail or wind damage to the Property's roof.

         18. Jenkins inspected the Property's roof on September 10th and 11th, 2015 with representatives of both State Farm and Gillespie present for the inspection. As a result of his inspection of the Property, Jenkins prepared an October 9, 2015, report regarding the cause of the alleged damages to the Property's roof.

         19. Jenkins' Report concluded that the damages to the slate roof were not hail damages.

         20. Based on Jenkins' Report, State Farm sent an October 16, 2015 letter denying further coverage for the May 22, 2014 loss.

         21. The parties agreed that the only witnesses to be called at trial were Moe of Gillespie (for the plaintiff) and State Farm's retained slate roofing expert, Jenkins (for the defendant).

         22. There are two issues for the Court to determine:

a. Whether the reported damages to the slate roof at the Property were the result of the May 22, 2014 hail storm; and if so,
b. The amount of damages to be awarded to Plaintiff.

(ECF 28.)

         After hearing testimony, the Court makes the following Findings of Fact:

         1. Moe testified that he is senior project manager for Gillespie and has been in the roofing industry for eight and a half years. (N.T. 11, 12.)

         2. Moe did not prepare an actual expert curriculum vitae, but instead relied on his LinkedIn account profile that he had prepared three years earlier. (N.T. 15; Stipulated Exhibit 2.)

         3. Although Moe testified on direct examination that he had inspected over 250 slate roofs (N.T. 12), he admitted on cross-examination that his LinkedIn page did not state that he had inspected over 250 slate roofs. Moe further admitted that his LinkedIn page did not state that he had experience as actually doing roofing work, had experience as a slate roofer, had replaced valleys on slate roofs, or had installed slate roofs (N.T. 16)

         4. When asked if he had any personal accreditations or memberships in roofing associations, Moe testified that he had taken Jenkins' Slate Roofing Contractors Association (“SRCA”) course in 2015 (after the hail storm and after he prepared the Gillespie Proposal). (N.T. 17.) Moe admitted that although he had completed the SRCA course, he was not accredited. (N.T. 57-58.)

         5. Jenkins testified that the SRCA seminar Moe attended was “a training session on slate--basic slate roof installation only. . . It had nothing to do with repair restoration.” (N.T. 92-93.)

         6. Moe's LinkedIn page stated that he worked for Metro Public Adjustment from October 2006 to December of 2012. Moe admitted that he had never worked for Metro Public Adjustment. (N.T. 49.)

         7. Moe admitted that he had not started working for Gillespie until June of 2014 which was after the hail storm of May 22, 2014. (N.T. 50.)

         8. Moe admitted that he had not provided Plaintiff's counsel with information that he had worked for CMR Construction and Roofing, prior to working for Gillespie. (N.T. 50.)

         9. Moe admitted that his LinkedIn profile stated that one of his goals is to increase revenue for Gillespie. (N.T. 18.)

         10. When asked on cross where in his LinkedIn profile does it indicate that he is a qualified expert on slate roofing, Moe replied, “I don't believe this case has-this case is more about policy and direct physical loss by hail damage, than to be a qualified state roofer.” (N.T. 18.)

         11. Moe testified that his expertise in slate roofing is based on “working hand in hand with adjusters across the board, including [State ...

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