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ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 97-1583 civil Term
JAMES B, MCNERNEY SR"
BRANDON K, SCHROLL, TYLER
KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION - DECLARATORY
JUDGMENT
AND NOW on this
ORDER
day of
, 1997, upon
consideration of the Motion for Summary Judgment by Plaintiff
Erie Insurance Exchange,
It is hereby ORDERED AND DECREED that the Motion is granted,
and that judgment is entered in favor of Plaintiff Erie Insurance
Exchange, declaring that Plaintiff Erie Insurance Exchange is not
obligated to defend or indemnify Brandon K. Schroll with respect
to any and all claims asserted against him arising out his
conduct on or about February 13, 1995,
BY THE COURT:
, J.
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ERIE INSURANCE EXCHANGE
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
v.
No.: 97-1583
JAMES B, MCNERNEY, SR" BRANDON
K. SCHROlL, TYLER KAPP
and JAMES LAUCK
CIVIL ACTION
..,
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Deft!ndants
MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
lAMES B. MCNERNEY, SR.
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Pursuant to Pa. R.C.P, 1035, Defendant James B, McNerney, Sr, moves for Summary
Judgment and in support thereof, avers as follows:
1, The present action arises from a fire that occurred on February 13, 1995, at
a former Pizza Hut building owned by Defendant James B, McNerney, Sr,
2, On this date, defendant, Brandon Schroll, along with defendants James Lauck
and Tyler Kapp, participated in setting a small fire upon an abandoned sofa located behind
the Pizza Hut. After lighting this fire upon a cushion, they extinguished the flames and
doused the burned area with soda. Exhibit "A" at p, 16, line 11-14; p, 17, line 3-8,
3. At the time Brandon Schroll left the premises with his companions, there was
no visible flame nor smoke coming from the sofa, and Schroll believed that the fire was
completely extinguished. Exhibit "A" at p. 16, line 3-10.
4. Some time after the boys left the premises, the sofa apparently flared up, with
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Exhibit "B,"
I
the flames and/or heat eventually spreading to the building, resulting in its total destruction,
5, Schroll was eventually apprehended for his involvement in the setting of the
fire and pled guilty to arson endangering property, At the guilty plea and sentencing
hearings, Schroll, through his attorney, repeatedly stressed that he had no intention to burn
the Pizza Hut building, See Exhibits "C" at page 4, lines 1-18 and "D" at page 2, line 13,
6. James 8. McNerney, Sr, in his own right, and his insurer, SI. Paul Fire and
p, 3, line 11,
Marine Insurance Company, made demand upon Mr. Schroll for the damages they sustained
as a result of this fire, which Schroll turned over to his insurance carrier, Erie Insurance
Exchange ("Erie"). Exhibit "E,"
7, In response to the demand letter from McNerney, Erie forwarded a
"Reservation of Rights" letter to Schroll's parents, wherein they denied coverage under a
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section of the policy commonly known as "expected or intended" exclusion. See Exhibit
IlF.1I
8, A Writ of Summons was also filed on January 27, 1997, in the name of James
McNerney in the Court of Common Pleas of Cumberland County, Civil Action No, 97-1583,
9, Erie Insurance Exchange subsequently filed the present declaratory judgment
action in the Court of Common Pleas of Cumberland County, in order to resolve the
outstanding coverage issues under the policy, James 8, McNerney, Sr, was named as a
defendant in this action along with Erie's insured, Brandon Schroll.
10, Brandon Schroll's deposition was conducted on July 28,1997, at which time
2
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he stated that he neither Intended to burn the Pizza Hut building (Exhibit "A" at p, 16, line
18-12), nor did he expect that the fire which he extinguished on the sofa would ever flare
up and spread to the building, Exhibit "A" at p, 20, line 2-10,
,
,
,
11, Based upon the deposition testimony of Brandon Schroll, as well as
Pennsylvania case law Interpreting the "expected or intended" exclusion contained in the
Erie policy, summary judgment granting coverage to Brandon Schroll for the damages
caused by the fire of February 13, 1995 is appropriate,
WHEREFORE, defendant James B. McNerney, Sr, moves for summary judgment
determining that defendant Brandon Schroll is entitled to coverage under the Erie pol icy for
this incident as a matter of law, The basis for this Motion will be more fully set forth in the
enclosed Memorandum of law along with the Exhibits attached thereto,
Respectfully submitted,
COZEN AND O'CONNOR
By:
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J TONER, ESQUIRE
I.D, No,: 57430
1900 Market Street
Philadelphia, PA 19103
215-665-2178
Attorneys for Defendant
James p, McNerney, Sr.
3
CERTIFICATE OF SERVICE
I hereby certify that on this date, a true and correct copy of the within
Motion for Summary Judgment and Memorandum of Law was served by first-class mall,
postage prepaid upon the following:
Mr, Tyler Kapp
do Mrs, Janice Kapp
217 Geary Avenue
New Cumberland, PA 17070
Mr, Brandon K, Schroll
330 Hillcrest Drive
New Cumberland, PA 17070
Mr, James Lauck
513 Marsh Run Road
New Cumberland, PA 17070
I hereby certify that on this date, a true and correct copy of the within
Motion for Summary Judgment was served by Federal Express upon counsel as follows:
Kathleen A, Wolowski, Esquire
McNees, Wallace & Nurick
100 Pine Street
P,O. Box 1166
Harrisburg, PA 17106-1166
Date: September.JL, 1997
r, Esquire
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1 ERIE INSURANCE
EXCHANGE.
2 Plaintiff.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
3
VB.
NO. 97-1583
4 JAMES B. McNERNEY, SR,.
BRANDON K, SCHROLL.
5 TYLER KAPP and JAMES
LAUCK.
6 Defendants,
CIVIL ACTION
19 MCNEES. WALLACE & NURICK
BY: KATHLEEN A, WOLOWSKI, ESQUIRE
20 - and-
HARVEY FREEDENBERG. ESQUIRE
21 FOR - PLAINTIFF
22 COZEN & O'CONNOR
BY: JEFFREY R, STONER, ESQUIRE
23 FOR - DEFENDANT JAMES B, MCNERNEY. SR.
24
25
COpy
1
1
Q
When you were driving up who was driving?
2
A
Tyler was driving, His car is a red Chevy
3 1000. The car was
mine never at Pizza Hut that day.
4 It wasn't running,
5
Q
So Tyler Kapp was driving, you were a
6 passenger and you went to James Lauck's house also?
7
A
Yeah. We picked him up, Not because we
8 wanted to though. They never really liked him.
9
You went to James Lauck's house?
Q
10
A
Yes.
11
About what time did you get to Mr, Lauck's?
Q
12
To tell you the truth, I can't remember. It
A
13 was probably sometime around 3:30, 4:00, at the earliest
14 two,
15 Q About 3:30 p.m,?
16 A On that day, yeah.
17 Q What did you do after you got to Mr, Lauck's?
18 A Went out and partied a little bit,
19 Q Drinking?
20 A Yeah.
21 Q Okay. For about how long were you drinking?
22 A Maybe 45 minutes, a half hour,
23 Q At some point you came to the Pizza Hut
24 restaurant; is that correct?
25
Yeah. We were going up to the Capital City
A
8
,
,
1 Mall,
2 Q Okay, Between the time that you started
3 drinking and the time you got to the Pizza Hut, how many
4 drinks had you consumed?
5 A More than my fair share,
6 Q Can you give an approximation? Again, another
7 one of the rules before we go any further. If it's a pure
8 guess, you have nothing to base it on, don't guess,
9 A That's it.
10 Q If you give an estimate, that's fine, If you
11 can say I know it was between four and six or whatever
12 number it would be and you're comfortable with that, fine,
13 If it's a pure guess, don't guess, It doesn't help any of
14 us,
15 A I know it was more than two six packs.
16 Q Okay. In a 45-minute period?
17 A Forty-five-minute period, yeah, We did a lot
18 of beer balling a lot back then.
19 Q Were you drinking in Mr, Lauck's car?
20 A No. It was Tyler that was driving.
21 Q Oh, Tyler's car. Excuse me,
22 A No, we weren't drinking in his car.
23 Q Were you drinking at James Lauck's house?
24 A No.
25 Q Where were you drinking at?
9
1 A The park for one, down by the river, anywhere
2 where there's nobody else,
3 Q Anything else besides drinking alcohol?
4 A Yeah, smoking dope.
5 Q Do you know how many joints you smoked prior
6 to getting to Pizza Hut?
7 A We were smoking bongs, Probably killed about
8 four or five' bongs, Each one of those holds enough hits
9 for three people, Probably four hits a person, 12 hits a
10 bong,
11 Q Do you remember anything else besides drinking
12 beer I think you said and then
13 A Smoking dope, no, I didn't get into anything
14 harder to later after that happened,
15 Q At some point you ended up at the Pizza Hut
16 restaurant; is that correct?
17 A Yup, We were going past there on the way to
18 Capital City Mall and Tyler needed to call his mom and
19 tell her that he was going to be late, We stopped at a
20 pay phone so he could call his mom.
21 Q Okay. So then the reason that __ was the
22 reason that you pulled into the Pizza Hut was so that
23 Tyler could call his mom?
24 A Yeah, to tell her we were going to be
25 significantly late,
d,
10
11
1
Q
What did you do -- first off, again this was
2 Tyler was driving?
3 A Yup,
4 Q Where did Tyler pull his vehicle?
5 A Right behind where the pay phone was, in a
6 parking space directly across from where the pay phone
7 was,
8
Q
What happened after you parked the car?
9
A
I got out to take a leak, We went around back
10 and saw the couch, And that's just the thing that burnt
11 the building down.
12
Q
Let's go back, You got out to take a leak?
13
A
YUp.
14
Q
Did you walk up to the sofa?
15
A
Yeah. Well, I walked around back and that's
16 when I found that the sofa was back there.
17
Q
Okay. Were you by yourself when you walked to
18 the back?
19
A
No, Jamie came back too to take a leak.
20
Q
Is that the first place you walked to after
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21 you got out of the car?
22
A
Yup,
23
Q
Was there anyone else in the parking lot when
24 you got there?
25
A
No. Or we wouldn't have been peeing back
12
1 there,
2 0
3 back?
4 A Yeah.
5 0 So it's you and Jamie going to the back and
6 you relieved yourself on the sofa?
7 A Yeah, on one of the cushions,
8 Q On a cushion. Describe for me the sofa, if
9 you will, that was back there?
10 A To tell you the truth, I can't even remember
11 what it looked like, It was a couch though,
12 Q As we sit here today, do you have a
13 recollection of what that back area of the building looked
14 like?
15 A Oh, yeah, I'm not sure where every little
16 door and window was placed or anything like that, but I
17 know what the back looked like.
So you looked for a little privacy around
18 Q If I give you a piece of paper and pen, could
19 you give me a fair approximation of what your recollection
20 is of the back of the building?
21 A Oh, yeah.
22 Q Shape-wise?
23 A I'm not much of an artist,
24 Q That's okay. Again, we're not
25 looking we'll understand this is not to scale, but I'm
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1
A
No more than about a foot and a half, a foot
2 and a half away.
3
o
I know you said you don't have a specific
4 recall of the sofa, but do you have a recollection was it
S generally like an average sofa with three cushions, a
6 normal-sized sofa?
7
A
Yeah,
8
o
Anything unusual that sticks out in your mind
9 about it?
10 A Besides it being a piece of junk, no,
11 0 As you walked to the back and you relieved
12 yourself on the sofa with Jamie you said?
13 A Yes, Tyler was on the phone with his mom.
14 0 What happened after that?
lS A We tried to see if piss would burn,
16 0 You thought maybe the alcohol content would
17 help it ignite?
18 A Yeah.
19 0 Is that the first time you thought about
20 lighting the sofa on fire, you wanted to see --
21 A Yeah, after that,
22 0 After you urinated you wanted to see if it
23 would burn?
24
A
Yeah,
2S
o
Do you know whose suggestion it was to ignite
15
1 it; do you recall?
2 A Actually it was like both of us.
3 0 At the time you turned into the pizza Hut
4 parking lot, did you personally have any intention of
5 lighting anything on fire?
6 A No,
7 0 Had you set any fires earlier that day?
8 A No, I haven't set any fires ever, That \~as
9 the first thing that -- the couch was the first thing I
10 set on fire,
11 0 Okay, So you wanted to see if your urine
12 would burn?
13 A Yes.
14 0 What did you do next?
15 A Lighted it and it didn't work. There was a
16 gash in the couch, Jamie said about folding up some
17 newspaper. There was a stack of newspapers sitting beside
18 the couch, Folded up a newspaper, lit the end on fire,
19 stuffed it into the sofa inside the couch the foam rubber
20 inside the couch,
21 Q Did that burn?
22 A Oh, yeah.
23 Q Did the paper burn then?
24 A Well, no. The couch burned then. Just about
25 that big. A little fire, Tyler got off the phone and
16
1 came back and wasn't too happy about it and helped us pat
2 it out, We patted it out, took off,
3 Q So at the time that you left, you had
4 extinguished the fire that you had set to the sofa?
5 A Obviously not, but we thought we did,
6 Q Let me rephrase it, To your knowledge at the
7 time you left the Pizza Hut you had extinguished the fire
8 that was burning?
9 A Yes. I just got out of jail. I didn't want
10 to go back,
11 Q How did you try to extinguish the fire?
12 A Patted on it, dumped some soda on it, We
13 patted it out first and then splashed a little bit of soda
14 on it. We didn't have that much,
15 Q When you walked away from the sofa, did you
16 see any visible flames?
17 A No, No flames, no smoke,
18 Q When you lit the sofa on fire, did you intend
19 to burn to have the Pizza Hut building catch on fire
20 also?
21 A No, I told you already, I didn't want to go
22 back to jail.
23 Q So when you put it out, when you put the fire
24 out on the sofa, it was yourself, Tyler and Jamie?
25 A Yeah, We -- all three of us helped to pat it
18
1 thought that it would still smolder or whatever happened
2 that caught the overhang on fire,
3
Q
You left the Pizza Hut after that and you said
4 you went to your girlfriend's house?
5
A
Yes, That was probably three quarters of a
6 mile away from the Pizza Hut, And where her house is was
7 like catty-corner from the Pizza Hut, There's a bunch of
8 woods that separated where she lived on the back roads.
9
Q
10 again?
11 A
12 Q
13 lot and the
14 expired?
- 15 A
1 16 Q
17 house?
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18
A
I'm sorry. What was your girlfriend's name
Alicia Worley.
Between the time you pulled into the parking
time you left, do you know how much time had
No more than half an hour, 25 minutes tops,
How long did you stay at your girlfriend's
About ten minutes, We saw
when we got
19 there, we only stayed ten minutes. As we backed into the
20 driveway we saw smoke from over the trees and we left to
21 see what it was,
22
Q
23
A
24
Q
This was after you came back out?
Yeah.
So you had been at her house and she was about
25 three quarters of a mile away you said?
I':'
1
A
2 Q
3 the trees?
4
A
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6
A
7 was,
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A
19
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Yes,
Then you saw that the smoke was coming over
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Yes,
What did you do then?
We went to follow the smoke to see what it
Where did you end up?
"
We went on the highway that goes across the
10 police station, and the Pizza Hut's up the way, and we saw
11 that it was the Pizza Hut that was on fire.
12
Q
13 it?
14
A
15
Q
16
A
17
Q
18
A
19
Q
20 time?
21
A
22 paramedics.
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23
Q
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When you first observed the fire, where was
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On the roof,
The roof was involved?
Yeah, the whole roof was,
In flames at that time?
Yeah.
Were there any firefighters there at that
Oh, yeah, a whole bunch of them, cops,
Did you realize at that time -- did you have a
24 thought at that time as to what had caused the fire?
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25
A
Yeah, The couch because we didn't put it out
20
1 good enough,
2 Q Prior to seeing the Pizza Hut on fire though,
3 did you did you think that your activity would cause
4 the building to burn?
5 A No, When I saw that was on fire though I did,
6 Q After you saw what had happened?
7 A Yeah,
8 Q Was that the first time that you realized what
9 you had done could have caused the building to burn?
10
11
A
Q
Yup,
Was it your lighter that you used to light the
12 newspapers?
13 A To tell you the truth, I can't even remember.
14 We all had lighters. We all smoke,
15 Q When you were at the Pizza Hut building and
16 you were back by the sofa urinating, did you observe above
17 you that there was a roof soffit that was over the
18 sidewalk?
19 A No. In the back there wasn't any sidewalk,
20 It was just blacktop,
21 Q And you didn't observe any kind of a roof
22 soffit?
23 A No. We didn't have any reason to look up,
24 Q And you know what a roof soffit is from the
25 building trades?
1 would give me.
2 0 Do you have any other criminal record?
3 A As a minor, yes, That's been sealed once I
4 turned 18.
5 0 What about as an adult?
6 A No, I do not,
7 0 It was my understanding at the guilty plea for
8 the arson endangering property that there was also a
9 charge of disorderly conduct?
10 A Yeah, But that was -- they related it to
11 that, It was completely different, It was on a different
12 night.
13 0 But that is part of your criminal record?
14 A Oh, yes. That's part of my criminal record,
15 but that never got proceeded in court.
16 MS, WOLOWSKI: No other questions,
17 BY MR, STONER:
18 Q I just want to clarify, You gave a
19 description of the size of the flames with your hands?
20
21
A
Q
Yeah.
Would it be fair to say it was about a foot in
22 diameter?
23 A Not even a foot, About like that. (Witness
24 indicating.)
25 0 About that being the size of a football,
23
24
~ 1 smaller?
2 A No, About the size of a honeydew, And the
3 flames, they came about that high off the couch, (Witness
4 indicating.)
5 0 Okay, Indicating approximately six inches?
6 A Yes, About that big around, that high off the
7 couch. It was just the very center of the cushion,
8 What I talked to you about on the phone about
9 what I got sent in the mail that said any damage was
10 intended, you know, that I wanted to do the damage, can I
11 address that?
12 0 Well, that would be something that was a
13 document that wasn't sent by me so it's not --
14 A You can check the criminal transcripts of the
15 criminal recording, you will see that no damage was ever
16 intended to that building,
17 MR, STONER: Okay, Thank you, You'll have a
18 chance -- what we'll do, we'll give you the opportunity
19 after this, if you'd like, you ~an read over this
20 transcript that's just been prepared and you can see if
21 there are any mistakes, Perhaps you said one word but the
22 court reporter misinterpreted it and put it down as
23 another word. So you have what's called the right to read
24 and to sign the deposition transcript to say that what's
25 in there is in fact accurate, Would you like to do that?
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1 Tuesday, October 24, 1995
2 Carlisle, PennsYlvania
3
4 MR. GABIG: Your Honor, this is for a plea at
5 docket 95-1279, to Count Band E, in full satisfaction.
6 THE COURT: Band E?
7 MR. GABIG: Band E, Your Honor.
a B is Arson Endangering Property, graded as a
9 felony of the second degree, carrYing a maxi~um term of
10 imprisonment of ten years and a maximum fine of $25,000.00,
11 And Count E is a felony of the third degree -- actually I
12 think this is Just a plea to Count E in full satisfaction
13 Count B, Count B, what I Just went over, the F-2, I'm sorry,
14 Arson Endangering Property, in full satisfaction of all
15 charges,
16 THE COURT: All right.
17 MR. GABIG: What happened in this case, there
18 is a Pizza Hut located, I believe, on Simpson Ferry __
19 MR. JONES: Carlisle Road.
20 MR. GABIG: -- Carlisle Road in Lower Allen
21 Township, near the intersection of Simpson Ferry Road. The
22 place was the Pizza Hut, was in the process of being sold
23 and was unoccupied, not in business at the time. But it was
24 a building, a structure,
25 And the defendant went there with two
7
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Juveniles. They were intoxicated with some type of
intoxicant, They were driving. It happened on February 13.
1995. There was some snow on the parking lot. They were
doing doughnuts. They stopped. One of the Juveniles went
to urinate. He urinated on a couch which was right next to
the --
THE COURT:
MR. GABIG:
On a what?
A couch. a sofa, that was
outside.
THE COURT: Oh.
MR, GABIG: And it was right next to the
wall. UP against the back wall of the Pizza Hut, He
urinated on that. One of the other fellows said, I wonder
if urine. or words to that effect, burns.
The defendant and/or one of the juveniles
took a piece of paper. the other person took a match. they
lit it. They put it on the couch. The couch began to
smolder and then become inflamed, The defendants ultimatelY
fled the scene.
That fire caused the building to catch on
fire. the Pizza Hut. and did substantial damage to the Pizza
Hut. It is still. the last time I saw it. was charred. So
he committed arson. started a fire there. He and his
accomplices. Caused significant damage to this building.
MR. JONES: Your Honor. it is my
~
1 understanding that it smoldered while he was there. the
2 three of them left the scene. that is when the couch caught
3 fire subsequent to that time. Leading UP to the eaves of
4 the Pizza Hut and eventuallY burning down the structure. I
5 do not believe it was -- the couch was actuallY in flames
6 when they left.
7 THE COURT: All right.
8 MR. JONES: But it was still a reckless
9 setting of a fire that eventuallY led to the destruction of
10 the structure,
11 THE COURT: Well, it is similar to setting a
12 fuse on a bomb and having a half hour to take off before the
13 bomb goes off,
14 MR. JONES: Correct, I understand this is
15 reckless. They didn't intend to burn down the Pizza Hut.
16 That was not the intent, It happened, and it was reckless
17 in that nature. but it still is a violation of the statute,
18 But reckless rather than knowing.
19 THE COURT: All right. What about the second
20 case on the list?
21 MR, GABIG: The other docket is 95-1418
22 Criminal Term. The defendant will be pleading to Count A,
23 which is Disorderly Conduct. in full satisfaction of the
24 charges. This is graded as a misdemeanor of the third
25 degree. carrying a maximum one year imprisonment and
4
1 $2500,00 fine.
2 This happened the oight before the
3 preliminary hearing was scheduled on the orson charge. The
4 defendant was out drinking, out drinking alcohol and
5 consuming whatever other intoxicants he was consuming.
6 The pOlice were ultimately summoned to the
7 scene, And as they were attempting to make the underage
8 drinking arrest, the defendant became disorderly with the
9 pOlice officers that were attempting to do that, kicking and
10 otherwise being disorderly with them. He was taken to the
hospital and sUbsequentlY released,
12 THE COURT: Sounds like yoU have a booze
13 problem,
14 THE DEFENDANT: Yes, I do, Your Honor.
15 THE COURT: Where ore YOU from?
THE DEFENDANT: New Cumberland, PennsYlvania,
sir,
THE COURT: How old are you?
THE DEFENDANT: Eighteen.
THE COURT: Eighteen?
THE DEFENDANT: Yes, sir.
THE COURT: And YOU have got an alcohol
problem?
THE DEFENDANT: Yes.
THE COURT: How long hove yoU been drinking?
5
1 THE DEFENDANT: Oh. probably since I was
2 thirteen or fourteen.
3 THE COURT: Where do you get the booze?
4 THE DEFENDANT: Friends that are 21 ar older.
5 I give them money to go out and buy it.
6 THE COURT: Did you do these acts the D.A.
7 said you did?
8 THE DEFENDANT: Yes, I did, Your Honar.
9 THE COURT: And you want to plead gUilty?
10 THE DEFENDANT: Yes, I do.
11 THE COURT: I tell you that yOU are presumed
12 to be innocent and you have a right to be tried by a Jury on
13 the charges against you.
14 If you went to trial, the burden would be on
15 the D,A. to prave your guilt beyond a reasonable doubt.
16 Whenever yOU plead gUilty, you give UP your
17 right to present any defense in your own behalf, As a
18 matter of fact, drinking alcohol and being intoxicated is
19 not a defense to criminal acts.
20 Do you understand that a plea of guilty
21 waives the benefits of these trial rights I am telling yOU
22 about?
23 THE DEFENDANT: Yes, I do.
24 THE COURT: You could be sent to Jail for up
25 to ten years on the arson case and UP to one year on the
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1 disorderly conduct. Plus pay substantial fines in each
2 case, and also to face the possibilities of restitution,
3 Which could be significant here. We will have to look at
4 that situation,
5 Are you drinking any alcohol down at Jail?
6 THE DEFENDANT: No. I am not doing any drugs
7 down there.
8 THE DEFENDANT: No. sir.
9 THE COURT: Huh?
10 THE DEFENDANT: No. sir.
11 THE COURT: Anybody promised you a particular
12 sentence in this case of any kind?
13 THE DEFENDANT: Promise, no. It is to you.
14 as far as I understand it.
15 THE COURT: Knowing everything I have put to
16 you. do you still want to plead guilty?
17 THE DEFENDANT: Yes, I do,
18 THE COURT: Accept the plea.
19 (Whereupon. the following Order was entered,)
20 AND NOW, October 24, 1995. 12:13 p.m..
21 Brandon K. Schroll. having appeared in open court together
22 with court-appointed counsel. James K, Jones, Esquire, and
23 the defendant having tendered a plea of gUilty to Count B at
24 95-1279 Criminal Term, and having tendered a plea of guilty
25 to Count A at 95-1418 Criminal Term. which pleas the D,A.
7
1 accepts in full satisfaction of any other charges in these
2 informations, after having had his various trial rights
3 explained to him and having waived the benefits of the same,
4 his pleas are accepted and recorded. The defendant is
5 directed to appear for sentence in this courtroom on
6 Tuesday. December 12, 1995. at 9:30 a.m. after completion of
7 a short form presentence investigation report.
8 By the Court,
9 /s/ Gearoe E. Hoffer. J.
10 MR. JONES: Your Honor, we would like to
11 address the alcohol problem at this point. He turns
12 nineteen on January 18 of 1996, at which point he will no
13 longer be covered by his insurance. At that point. we would
14 like to have the Court consider either inpatient treatment
15 or a time served sentence, or whatever the Court may deem
16 necessary. But in order for him to be able to serve a
17 thirty day inpatient treatment facility, he would have to
18 complete that by the 18th of January of 1996. But--
19 THE COURT: You mean he has got to have it
20 done by that time?
21 MR, JONES: His parents insurance. which he
22 is covered under until he turns nineteen, would, correct, it
23 would have to be treated. completed. His treatment would
24 have to be completed by that time.
25 So what I would ask the Court, if possible,
R
1 to schedule sentencing for December 12. which would give the
2 thirty doys. Of course. no one is guaronteed that the Court
3 would octually give him credit for that or whatever. but at
4 least that would give us the oppartunity to put something in
5 place. present it to Probation and Your Honor.
6 THE COURT: All right. Change the 19th to
7 the 12th of December.
S MR. GABIG: Thank YOU, Your Honor.
9 (Whereupon. the proceeding was
concluded ot 12:15 p,m.)
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1 Tuesday, December 12, 1995
2 Carlisle, PennsYlvania
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4 MS. TAYLOR: Next case is number 12 and 13,
5 Brandon Schroll, here for sentence.
6 MR. JONES: Your Honor, I have had an
7 opportunity to review the presentence report with my client.
8 We find it complete with no additions or
9 modifications, with one exception. At the end of the
10 official version, in regard to the arson, there is a
11 sentence that says the official version that they left the
12 scene knowing the fire was still burning.
13 I tried to make that as clear as I could
14 during the time of the plea that this was a recklessly set
15 fire. There was no evidence that was produced at the
16 preliminary hearing, and no evidence in discovery that I
17 have seen, that indicated that when they actually left the
18 scene of the fire, that they knew it was still lit.
19 It was my understanding at the time that at
20 best it was smOldering within the couch. As the court will
21 prObably remember, this started when the smoldering couch
22 caught fire, that then caught fire to the eaves of the Pizza
23 Hut, which then burned down the rest of the Pizza Hut.
24 Our position from the beginning was that this
25 was not an intentionallY set fire upon the Pizza Hut. But
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1 that because it had been left smoldering, it created a fire
2 and burned down the Pizza Hut. It is still an arson, but we
3 contend the fact that it was intentionallY set as far as
4 burning down the Pizza Hut.
5 THE COURT: That is a distinction without a
6 difference.
7 MR. JONES: I understand that as far as the
8 charge is concerned. But as far as the intent is concerned,
9 I think that may be a concern, as far as the court. He
10 wasn't going around trYing to burn down Pizza Huts is
11 basically what I am trYing to say.
12 But what he does recognize is what led him to
13 do what he did in burning even the couch. In that he was
14 heaVily intoxicated at the time.
15 The second offense in regard to disorderly
16 conduct, he was also heaVily intoxicated. And he realizes
17 at this point that it is not getting him anywhere. As a
18 matter of fact, has got him several months in prison at to
19 point.
20 As indicated in the presentence report, Mr.
21 Myers has already set UP through his mother an evaluation
22 through Roxbury. And he aCknowledges that in the past he
23 may have paid lip service to it, but he also sees where that
24 got him at this point, back in prison again.
25 This is the first time that he has been
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before the court. But he realizes that he has a serious
alcohol problem. And he wants to do whatever he needs to in
order to do that. The presentence report indicates he does
have an evaluation with Roxbury set up for tomorrow. So, to
that extent, we would ask for a time served sentence, which
certainlY would be within the standard range under the
circumstances. So that he could attend that evaluation.
Even if Roxbury is unable to take him, he has
also been evaluated by Gaudenzia, and they likewise have a
program that he would be eligible for. But he -- the
evaluation through Roxbury would be paid by his mother's
insurance provider, if Roxbury accepts him within the next
week.
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So, to that extent, we would like the
evaluation done by tomorrow so that if there is bed space
available, he can take advantage of that and medical
assistance or whoever would not have to pay for it. But
even if it goes beyond his 19th birthday, which is next
month, and that cuts off his insurance coverage, there are
other prOViders that would be available in order to have him
continue with this.
So basically while Brandon certainly has no
objection to a condition of his parole to be that he enter
and successfully complete an alcohol rehabilitation program,
we would ask for a time served sentence so that he could do
4
1 that.
2 THE COURT: Credit date is July 28?
3 MS. TAYLOR: Yes.
4 MR. JONES: That is my understanding.
5 MS. TAYLOR: Yes, Your Honor.
6 THE COURT: What is the last Job you had,
7 sir?
8 THE DEFENDANT: Well, the last full-time Job
9 I had, Your Honor, was working at Taylor Rental in Camp
10 Hill. After that, I was on ROR bail with that, and I Quit
11 that Job, and I worked for I believe it was Manpower
12 Temporary Services --
13 THE COURT: Well--
14 THE DEFENDANT: -- for a week.
15 THE COURT: Well, Taylor Rental, how long
16 were you down there?
17 THE DEFENDANT: I was there two yeors. I was
18 laid off for the winter when business got slow and picked
19 back UP again in the spring. So two years minus the winter.
20 THE COURT: You Quit that Job?
21 THE DEFENDANT: Yes, I did.
22 THE COURT: Why?
23 THE DEFENDANT: Drugs, sir.
24 THE COURT: What?
25 THE DEFENDANT: It wasn't paying enough to
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1 support mY drug habit.
2 THE COURT: How much was it paying?
3 THE DEFENDANT: Five dollars an hour.
4 THE COURT: So what drugs were you using,
5 feeling you had to have?
6 THE DEFENDANT: I was using marijuana,
7 cocaine, a little bit of cocaine. MostlY marijuana and
8 alcohol. And I was using hallucinogenics once in awhile.
9 THE COURT: I don't want to violate your
10 Fifth Amendment rights, but where were you getting the
11 money?
12 THE DEFENDANT: Working at Taylor, I spent
13 all the money on that.
14 THE COURT: You Just told me you didn't get
15 enough money there.
16 THE DEFENDANT: Yeah, I didn't get enough
17 money to get all the drugs I wanted. That is whY I quit. I
18 got enough money to get a little bit I needed. Well, not a
19 little bit, I spent more than three-fourths of my paycheck
20 on it.
21 THE COURT: If you quit, you didn't have any
22 money coming in.
23 THE DEFENDANT: Yeah, I know.
24 THE COURT: YoU kept taking drugs. Where did
25 you get the money?
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1 THE DEFENDANT: Bumming off of friends.
2 Selling what I had.
3 THE COURT: How old are you now?
4 THE DEFENDANT: Eighteen, sir.
5 THE COURT: When did you become eighteen?
6 THE DEFENDANT: I became eighteen January 18
7 of last year -- or this year, sir.
8 THE COURT: Uh-huh. Well, my friend, you are
9 at the point where yOU have got to turn it around right now
10 and fast. To have a felony record at age eighteen, boy, oh,
11 boy. You have got to try to do something. And if your palS
12 have the same problem you have, you have got to get rid of
13 those people and find some new friends. You have got to do
14 something.
15 So if Roxbury has a program for you, or
16 somebody else like that, you are readY to gO UP and do it?
17 THE DEFENDANT: Yes, I am, sir.
18 THE COURT: How about if they require to you
19 stay thirty, sixty, ninety days?
20 THE DEFENDANT: I will stOY as long as they
21 require.
22 THE COURT: Do YOU have anything, ma'am?
23 MS. TAYLOR: No, Your Honor, I think the
24 court fullY understands the situation.
25 THE COURT: Okay.
7
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1 (Whereupon, the follOWing Order was entered.)
2 AND NOW, December 12, 1995, 10:33 a.m..
3 Brandon K. Schroll, having appeared in open court together
4 with the court-appointed counsel, James K. Jones, Esquire,
5 and the court having received a presentence investigation
6 report, sentence of the court at 95-1279 Criminal Term is
7 that the defendant pay the costs of prosecution and that he
8 undergo imprisonment in the Cumberland County Prison for a
9 period of not less than six months nor more than two years
10 less one day. We give the defendant credit for service on
11 this sentence from the date of his incarceration on July 28,
12 1995.
13 The court has heard that the defendant has an
14 inpatient interview and evaluation scheduled with the
15 Roxbury Treatment Center for tomorrow. We now place the
16 defendant on parOle for the balance of the unexpired term on
17 the condition that he be and remain on good behavior and
18 comply with the instructions and directions of his Probation
19 Officer, and that he take advantage of any inpatient program
20 offered by Roxbury or any other treatment facility and, once
21 admitted, succeSSfullY complete that program until released
22 in writing by the service provider. Upon his release, he is
23 directed to maintain full-time employment.
24 Mr. Myers, do you have your finger on this
25 Roxbury bUSiness?
8
1 MR. MYERS: Yes, sir.
2 THE COURT: DirectlY from the people? Or are
3 you Just getting it from it him?
4 MR. MYERS: No, I am getting it from his
5 mother. And because of the insurance set up, we are working
6 it through her.
7 THE COURT: Okay. I am going to ask YOU to
8 check UP at Roxbury and see what is going on, keep your eye
9 on the situation UP there.
10 Do yoU understand what YOU are supposed to
11 do?
12 THE DEFENDANT: Yes, I do, sir.
13 THE COURT: Any questions?
14 MR. JONES: No.
15 THE DEFENDANT: No.
16 THE COURT: Go and do it.
17 MR. JONES: There is another sentence.
18 THE COURT: Pardon me.
19 Sentence of the court at 95-1418 Criminal
20 Term is that the defendant pay the costs of prosecution.
21 By the Court,
22 Is/ Georoe E. Hoffer. J,
23 George E. Hoffer, J.
24 (Whereupon, the proceeding was concluded
25 ot 10:35 a.m.)
9
September 29, 1995
Page 2
Thanking you for your attention regarding the above, I
am,
Very truly yours,
COZEN AND O'CONNOR
BY: JEFFREY R. STONER
JRS/kt
cc: Jerry Nolan
st. Paul Fire & Marine Ins. Co.
Claim No. RR06611058-37B002
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November 3, 19915
Thoma. J. Lubold and
Ch~yl A. LUbold
330 Hiller..t Drive
Rew CUmberland, P^ 17070-3034
.~KK"~.I.nm va.TT.
RRftI'IIH 1lECdPr kgo(Jl5liTmI
our Claim Ho.:
Polioy No. I
Date ot Loss:
;~V0191~08 ~~
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2-13-$115
Dear Hr. and Hr.. Lubold:
Attaohed i8 our Reservation ot Riqhts Statement. W. have i.cued
thi. dooUJIIBnt becau.. ot the que.tion ot coverage described within
the Reservation ot Rights. If you have any qu..t1ons concerning
the Re..r,vation of Rignte, I suggest you oonsult vith an attorney.
.
Sinoerely,
Linda D. KUhl, AIC
Claims supervisor
U/dl.Jc
Enolosure/Reservation ot Ri~nts
co: File
co: parnh8.11 Insuranoe Agency
507 North York street
P. O. Box 2470
Meohan1osburq, PA 17055
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I ERIE INSURANCE GROUP
The ERIE II AbaJ8 Allin SERvice. . Since 1925
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1tA;l"UMlll P-TPT IlBQUE8TED
010170191C108
IlESEIlVA'1'IOW OF RIGIl1'S
This re.ervation of right. lIubmitted to 'I'hollae J. Lubold and
Cheryl A. Lubold, hereinaft.tl." cCllled insured, by ERIB Insurance
Group, hereinafter the oompany, which has heretofore ieeuod to the
tnaured ite polioy number Q'G 08021592 H, that any action taken by
the eOlllpany in invelUqatinq that certain occurrence allegad to
have ooaurrGd on the 13th day of February, 19915, and all facte
pertaininq thereto includinq tho cau.a, Injurieo, 10.. and
d~aqe., 8hall not in any way ohange, vaive, invalidate or forfeit
any of the teras, condition. and requ1rGDont. of said polloYI and
in tho event any suit has beon or shall be filed aqa1nst the
insured qrovlnq out of said accident, should the company elect to
defend auit or partioipate therein, said doten.e or participation
therein by it .hall not be oonstrued to ohanqe, waive, invalidate
or torte it any ot the torms and oondition. of said polioy or any
at ita rights thereundor. No aot at the cOlllpany dona by way ot
.aid invostigation or deten.. shall b. oonotrued as an admission
ot oovorage under Baid policy. 'I'he .pacitic rellson tor this
r..ervation ot rlqhts ie:
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OUr initial rl!lDort of this inoidllnt indicates that vour Bon ia
llDrlarentlv beina implicated in an arAon caBe.
Please refer to
Dnae 1~ of your HameProtector Extracover POlicy and you will note
undnr the cantion "What We Do Not Cover - ExoluBion., Perlll'lnal
Liabilitv Coveroae and Medical PaYments tq Others Covarage: We do
not cov8f un~er Personal Liftbilitv Covnrftae and Medical PAvmants
to Others Coveraaar (1\ bodilv injury or nropertv damage .~eotod
or intended bv anyone we protoot:..
lPinllllVa the aO!lbl!lnv will
avail it801~ of anv othor noliov defenses whioh mav arIse.
log,,,
919144515060
09-13-98 03,35PK P003 #14
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INSURANCE POLICY
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2003 EXTRACOVER EDITION
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ERIE.
ERIE INSURANCE GROUP
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The Pioneer In The Insurance World
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WHl:riE TO LOOK IN YOUR POLICY
PAGE
Additional Losses We Will Pay-Section I
Automatic Garage 000" Opener ....,.............,...,.......8
Colla pse ". ......." ....".",."..,....,. ,......., ....""..".."....,.... 8
Credit Card, Charge Plate,
Check FOl'gcI'Y nnd Counterfeit
Money Protection ,.."..,....,....,....,..,.."......",......,..9
Debris Removal Mter Loss ..........,...........................9
Emergency Removal of Property ............,................9
Fire Department Service Charges .......,.................. 9
Fire Extinguisher R~charge ........,...........,...............9
Lock Replacement After Loss ..................................9
Loss Assessment (Sections I & 11)...............,....,.....,9
Mechanical Servant and Robot Protection ,.......... 10
Necessary Repairs After Loss .........,.....................10
Non,Owned Residences ....,..........,........................,10
Refrigerated Products .......,..,..,..............................10
Temperature Change ..................,..................,.......10
Trees, Shrubs, Plants and Lawns ......................... 10
Ag reement ..",...."..",..,.. ,.,........",....,......"",...,.."""...,. 3
Amounts of Insurance-Section II ..........................,13
Coverages-Sections I & II
Dwelling Coverage ,..............,............................,......5
Loss of Use Coverage ,......,.........,............................. 6
;'vledical Payments To Others Coverage .........,...., 13
Other Structures Coverage ,....................................5
Personal Liability Coverage ..,....,.........,................13
Personal Property Coverage ....,..........,.................... 5
Deductible-Section I ............,................................... 10
Description of Insured Property........,.... Declarations
Perils We Insure Against-Section I ..........................6
Policy Definitions-Sections I & II .............................3
Rights and Duties-Conditions
General Policy Conditions-Section III
..\ccoun ting ......... ............ .......... .................. ............. 17
Assignment .................,......,..,............,...........,.......1;
Cancellation "'" ".,.,....""......"..".....,."..,.........., .".. 1;
Concealment, Fraud, or :.\Iisrepresentation ...,.....1;
Cooperation ..,.............................................".........,1;
How Your Policy :.\[ay Be Changed ........,..............1;
PAGE
No Contingent Liability ...........................,....,........17
Our Right To Recover From Others .................,....18
Policy Acceptance and Cooperation ....,...........,....,18
Policy Period ..........................................................18
Priority .............."...",......",..,....,..,..................,....,,18
Time of Inception .................................,....,.........,..18
Home and Family Liability Protection-
Conditions-Section II
Bankruptcy of Anyone We Protect ........................16
Duties of An Injured Person-
Medical Payments To O~her3 COl'erage ,..........16
Limits of Protection ............................................... 16
Other Insurance-Personal Liability Coverage... 16
Suit Against Us ............................,....,...........,........16
Your Duties After a Loss ......................................,16
Property Protection-Conditions-Section I
Abandonment of Prope.ty ...................,..,..............10
Appraisa!,...."..,.",..,.."".,...,....,.",....,......,.."...,......10
Automatic Adjustment of Coverage Amounts .....,10
Erie Option "...".,.""..""",...",..,.",..,....,......,....."..,11
Glass Replacement ...........................................,....11
Increase of Hazard ............,........,..........................,11
Loss Payment ..."...",...,..,......",......,....,........,.........11
Loss Settlement .......................................,.............11
Loss To a Pair or Set.............................................,12 '
;'vlortgage Clause ........,......,........,..........................,12
No Benefit to Bailee ..,............................................12
Other Insurance .....................................................12
Permission Granted To You ....................,............,12
Recol'ered Property .......................................,........12
Suit Against Us ...............,...................,..................12
Your Duties After a Loss ......,...............................,12
Whal We Also Pay-Section II
Claim Expenses ...................,.................,...............15
Damage To Property of Others .............................15
First Aid Expenses ......,..........................................15
Loss Assessment-Personal Liability Coverage ..15
What We Do Not Cover-Excluslons-
Sections I & II
Home and Family Liability Protection ....,............13
Property Protection ..,.."""....",....,....,.........."..,......,8
2
EHlE INSURA"CE GROUP i5 prouu to present The
ERlE's Extrnco\'er Policy, This importnnt contract be'
tween YOU anu The ERIE consists of this policy with
coverage agreements, Iimitntions, exclusions and conui,
tions, n Declarations, plus any endorsements. It i3
written in pbin, simple terms so that it can be easily
understoou, We urge YOU to reau it,
This policy contnins many EXTRA PRO'n:CTION I'EA,
TURES developed byThe ERIE. WherevCl' an "X" appears
in the mar"inllfthis policy, YOU receive EXTRA PRO.
TECTION, either as additional coverage or as a coverage
that is not in most homeowners policies,
The protection given by this policy is in keeping with the
single purpose of OUI' Founders: "To provide YOU with
as near PF.RI'F.Cl' PROTECTION, as near PERFECT
SERVICE, os is hUlllanly possible, and to do so at the
LOWEST POSSIBLE COST,"
AGREEMENT
ERIE INSURANCE EXCHANGE ONLY
In return for your timely premium payment. your
compliance with all of the provisions of this policy, and
your signing of a Subscribel"s Agreement with Erie
Indemnity Company and other Subscribers, we agree
to provide the coverages you have purchased. Your
coverages and (amounts of insurance) are shown on the
Declarations, which are part of this policy,
Your signing the Subscriber's Ab'1'eement, which
includes a limited power,of.attorney. permits Erie In,
demnity Company, as Attorney.in.Fact, to make recip.
rocal insurance contracts between you and other Sub.
scribers and otherwise manage the business of the Erie
Insurance Exchange. This power.of.attorney applies
only to your insurance business at the Exchange and is
limited to the purposes described in the Subscriber's
Agreement.
Your responsibility as a Subscriber is determined by
this policy and the Subscriber's Agreement. You are
liable for just the policy premiums charged and are not
subject to any other premium liability under the policy,
This agreement is made in reliance on the information
you have given us. and is subject to all the terms of this
policy.
This policy, all endorsements to it, and the Subscriber's
Agreement constitute the entire agreement between
you nnd us.
ERIE INSURANCE COMPANY ONLY
In return for your timely premium payment and your
compliance with all of the provisions of this policy, we
agree to provide the coverages you have purchased,
Your coverages and (amounts of insurance) are shown
on the Declarations. which are part of this policy,
This agreement is made in reliance on the information
you have given us, and is subject to all the terms ofthis
policy,
This policy and all endorsements to it constitute the
entire agreement between you and us,
APPLICABLE TO ERIE INSURANCE EXCHANGE
and ERIE INSURANCE COMPANY
We promise, upon timely payment of the premium and
compliance with the provisions of this policy and its
endorsements:
(1) To cover you from 12:01 A,M" Standard Time, at
the location of the insured property, on the date
shown on the Declarations as the first day of the
policy period, Coverage \vill continue in force until
terminated,
(2) To protect you up to the amounts specified in the
policy.
You may not transfer this policy \\;thout our consent,
This policy is made and accepted subject to these an~
follo,,;ng provisions, including those which maybe added
by endorsement,
POLICY DEFINITIONS
Throughout ynur policy nnd its endorsements the fol,
lowing words have a specinI menning when they appenr
in bold type.
"aircraft" means any machine or device capable oi
atmospheric flight except model airplanes.
'anyone we protect" menns you and the following
residents of your household:
( (1) l'elatives and wards;
(2) other persons in the care of anyone we protect, X
Under Home and Family Liability Protection. anyone
we protect also mean3:
(3) any person or organization legally responsible for
animals or watercraft which are owned by you, or
any person included in (1)01'(2). and covered b)' this
policy, Any person or organization using or having
cust"ody of these animals or watercraft in the course
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u\....ner i:i not anyone W(~ protc..~;
'(.I) any perSOll with respect to any vehicle covered by
thi:; p01icy. Any persollusing or havinij custody of
this vehicle in the course of any business use, 01'
without permission of the owne,' is not anyone we
protect.
"bodily injut.y" means physical harm, sickness 01' dis'
X c:tse, including mental anguish. nnd includes care, 105$
of services, or resulting de:tlh.
Bodily injury does not include:
(1) any communicable disease or condition transmitted
by any insured to any other person through a
parasite, virus, bacteria or any other organism,
(2) the exposure to or transmission of any disease,
parasite, virus, bacteria or other organism by any
insured to any other person,
"business" means any activity engaged in as a trade.
profession or occupation, including farming,
"Declarations" means the form which shows your
coverages, amounts of insurance, premium charges and
other information. This form is part of your policy, Your
policy is not complete without this form, The Declara-
tions may be revised and updated by a form called the
_4mended Declarations which then becomes the appli,
cable coverage,
Ilinsured location" means:
(1) the residence premises;
(2) the part of any other p.'emises, other structures,
and grounds acquired by you during the policy
period which you intend to use as a residence
premises;
1,3) any premises used by anyone we protect in
connection with premises included in (1) or (2);
(4) any part of a non,owned premises:
(a) where anyone we protect is temporarily re-
siding; or
(b) occasionally rented to anyone we protect for
non,business purposes;
'5) \'acant land, other than farmland, owned by or
rented to anyone we protect;
,,,} land owned by or rented to anyone we protect on
which a one or two family residence is being built
for occupancy by anyone we protect;
t 7) cemetery plots or burial vaults of anyone we
protect.
"medical expense" means reasonable charges for nec'
essary medical, surgical, x-ray and dental services, in,
c1uding prosthetic devices, eyeglasses, contacts. hearing
aids and pharmaceuticals; and also includes ambulance,
hospital, licensed nursing and funeral services,
"occurrence" means an accident, including continuous
or repeated exposure to the same general harmful con-
ditions,
properlY ltal1laj IIWan:i d;JfllJ.;';C tu or 105s or use of
tangible properly,
".'esidell"e employee" means an employee of anyone
we protect who performs duties in connection with the
maintenance or use of the residence premises, includ-
ing simibr duties elsewhere, not in connection with the
husiness of anyone we protect.
"l'esidcncc prcmiscs" meJ.I1S the dwelling where you
reside. including the structures and grounds, or that
part of any other building where you reside and which
is shown as "residence premises" on the Declarations,
ADDITIONAL ERIE INSURANCE
EXCHANGE DEFINITIONS
The following words have a special meaning in policies
issued by Erie Illsltrallce Exchange when they appear in
bold type,
"Subscriber" means the person(s) who signed the
Subscriber's Agreement.
"Subscriber's Agreement" means the agreement, in-
cluding a limited power-of,attorney, among the Sub-
scribers and the Erie Indemnity Company, as Attor.
ney-in-Fact,
"\Vel" l'US" or !lour" means the Subscribers at Erie
Illsurance Exchange as represented by their common
Attorney,in-Fact, Erie Indemnity Company,
"You," lIyour" or "Named Insured" means the Sub-
scriber and others named in Item 1 on the Declara-
tions, Except in the GENERAL POLICY CONDITIONS,
these words include the spouse of the Subscriber if a
resident of the same household.
ADDITIONAL ERIE INSURANCE COMPANY
DEFINITIONS
The following words have a special meaning in policies
issued by Erie Insurance Company when they appear in
bold type,
"\Ve/' IIUg" or "our" means Erie lnsurance Company.
"Y ou,....your" or"Named Insured" means the person(s)
named in Item 1 on the Declarations, Except in the
GE);ER.-\L POLICY CO~DlT[O"S, these words in-
clude your spouse if a resident of the same household..
WHE:-l.-\..'ffi WHERE THIS POLICY APPLIES
This policy applies to losses that occur during the policy
period, The policy period is shown on the Declarations
or Amended Declarations.
Section I-Property Protection, This policy applies to
property losses as designated in the specific coverage
and at the location(s) insured under this policy, In
addition, Personal Property is covered while located
anywhere in the world,
Section /I-Home and Familv Liabilitv Protection, This
policy applies to bodily inju-ry and p~operty damage
losses occurring anywhere in the world.
.1
SECT...JN I-PROPERTY PROTEl. .ION
DWELLING COVERAGE-OUR PROMISE
We will pay for 1055 to:
(1) Your dw'clling allhc I'csidcncc premises shown
on the Declarations, Dwelling inclnd"" at'.ach"d
structures, and building equipment ;]nd fixtures
servicing the premises,
(2) Construction material at the residence premises
for use in connection with YOUI' dwelling,
This coverage does not apply to land,
OTHER STRUCTURES COVERAGE--
OUR PROMISE
We will pay for 1055 to:
(1) Other structures at the residence Pl'emises sepa'
rated from the dwelling, including garages, fences,
shelters, tool sheds or carports,
Structures connected to the dwelling by only a
fence, utility line, or similar connection are consid,
ered to be other structures,
(2) Construction material at the residence premises
for use in connection with your other structures.
We do not pay for 1055 to structures used in whole or in
pa.'t for business purposes (except rental or holding for
rental. of structures used for private garage purposes).
This coverage does not apply to land,
PERSONAL PROPERTY COVERAGE-
OUR PROMISE
We will pay for 1055 to:
(1) Personal property owned or used by anyone we
protect anywhere in the world.
(2) At your option, personal property owned by others
while the property is on your residence pre,
mises.
(3) At your option, personal property of:
(Oli guests and residence employees while the
property is in a residence occupied by anyone
we protect;
X Ib) residence employees away from the resi.
dence premises while actually engaged in
the service of anyone we protect,
X i4) At your option, building additions, alterations,
fixtures, improvements or installations made, or
acquired at your expense, by you to residences
occupied by but not owned by you, for an amount
not exceeding 10~ of the amount of insurance
under this coverage, Payment will not increase the
applicable amount of insurance under this policy.
'5) Cemetery property. including monuments, head.
stones. gravemarkers, and urns.
((jl ,\nimals, birds and fish, but only while on the X
residence premises, for the following perils CO\'.
ered under Pails lI'e Illsllre Against: Fire or Light,
tlillg, Wi1ldstorm or /IoU, Explosioll. SOlll'C Boom,
I/iol orCit'il Comma/ioll, Aircl'aft, \lehicles, Smoile
and \lolldalism or Malicious Mischief.
(7) Electronic apparatus while in or upon a motor X
vehicle aI' other motorized land conveyance, if the
electronic apparatus is equipped to be operated by
power from the eleetrical system of the vehicle or
conveyance while retaining its capability of being
operated by other sources of power. Electronic ap.
paratus includes cellular phones, fax machines,
radios, tape players and accessories used in con.
junction with such apparatus including antennas,
tapes, wires, records, discs or other media,
We do not pay for loss to: X
(1) Land motor vehicles and parts, We do cover ve.
hicles designed to assist the handicapped, and
vehicles used to service the residence premises,
,not subject to motor vehicle registration.
(2) Aircraft and parts,
(3) Property rented or held for rental to others away
from the residence premises,
(4) Property of roomers, boarders or tenants not re-
lated to anyone we protect,
(5) (a) Books of account, drawings. or other paper
records; or
(b) electronic data processing tapes, wires, records,
disks, or other software media; containing
business data. However, we do cover the cost
of unexposed or blank records or media,
(6) Radios, tape players and other equipment' or de-
\;ces for the recording, reproduction, receiving or
transmitting of sound or pictures which may be
operated by power from the electrical system of a
land motor vehicle and permanently mounted while
in or upon that vehicle. Accessories to these devices,
including antennas, tapes and records are not cov-
ered while in or upon 0 land motor ,'ehicle, .
(7) Radar detectors.
(8) Property specifically insured by this or any other
insurance,
(9) Except os provided under Personal Property Limi,
tations, property pertaining to a business con-
ducted away from the residence premises unless
at the time of 1055 such property is on the resi.
dence premises, However, we do not cover such
property on the residence premises while it is
stored, held os samples, or held for sale or delivery
after sale.
5
tim'ita'tiolls aj;V1y to the following pl~r.-;I)Il;t1 Ill'OllL1rty.
These limits do nut increase the amount of in.'illl'.IfH:l!
under }'t!rSUIlCl/ ProJ1erty CVl't!rogt?;
Total Amount Description of Pcrsol1~1
of Insurance Propert)' Subject to
fn Any One In.ss Limitations
$ 2,;0
x
.) 2.')0
x
$2000
x
$2000
x
$2000
x
$2000
$2500
x
x
X
$3000
53000
x
83000
10':< of Personal'
Property
Cot.:erage_
(but not Ie,s
than 52000)
. ..\nimals, bird, and ii,h
. ~loney, bank note:i, bullion, numi:i.
matic property, gold olher than
gold ware 0" gold'plated \\":II'e, ,ii,
I'er other than sill'crware or silver,
plated ware, and platinum
. Accounts, bill" deed;, evidence, of
debt, letters of credit, notes other
than bank notes, passport>, ,ecuri,
ties, tickets, stamps and philatelic
property
. Trailers and campers not other.
wi,e insured, whether licen,ed Or
not
. Watercraft, inclUding their trailers
(whether licensed or not), furnish_
ings, equipment and outboard mo.
tors
. ManUSCripts
. Property pertaining to a business
actually conducted on the resi,
dence premises, including prop,
erty in storage, held as sample" or
held for sale or delivery after sale,
A $500 limitation applies to any
business property away from the
residence premises, regardles,
of whether the business is con.
ducted on or away from the resi.
dence premises,
. Theft of guns
. Theft of jewel!")', watches, furs, pre.
ciou; and semi'precious stones
Th~ft of ;ilverware, sil\'er'plated
ware, gold ware, gold'plated ware
and pewterware
Personal property usually situated
at any residence owned or occupied
by nnyone we protect other than
a residence p.'emises. Personal
property in a newly.acquired prin,
cipal residence is not subject to this
limitation for the 30 days ir.lmedi~
ately after you begin to move prop.
erty there,
LOSS OF USE COVERAGE_OUR PROMISE
Ii an insured property loss makes your residence
premises uninhabitable, We will pay all reasonable
"dditionalliving e.~penses while you and members of
)'OUr household reside elsewhere,
I'd:.""ent shall be for the sl",nt'st time required to repair
or replace the premises or, if you choose, for you to
permallently relocate.
These payments will not exceed a 12 month period.
We will also pay for YOIll'la,s of normal rents resulting,
from the 1055, le.:i5 charges and expenses which do not;
conlinlle while the rented part of the residence pre,
mises is uninhabitable, We "ill pay thi, loss of normal
rents only until the rented part is habitable,
If a loss from a peril covered under Perils lYe Insure I
Against OCcurs at a neighboring premises, we will pay \
additional living expenses and loss of normal rents for
up to two weeks should civil authorities prohibit you
from Occupying YOUI' premise" .
These periods of time are not limited by the expiration of
this policy,
No deductible applies to this coverage,
We will not pay for loss or e,~pense due to the cancella-
tion of any lease or agreement,
This coverage also applies to a loss at a Covered second.
ary location,
PERILS WE INSURE AGAINST
DWELLING AND OTHER STRUCTURES
COVERAGES
We pay for risks of direct physical loss to property
insured under the Dwelling and Other Structures Co~'er'
ages except as excluded or limited herein,
We do not pay for loss:
(1) Invohing collapse, other than as provided in Addi.
tional Losses \Ve \ViIl Pay, (2) Collapse;
(2) Caused by freeZing by temperature reduction of a
plumbing, heating, air conditioning, or fire proteI"
tive system, or of a household appliance, or by
discharge, leakage or overflow from \\ithin the
system or appliance caused by freeZing, while the
dwelling is vacant, unoccupied orbeingconstructed.
There is coverage if you have used reasonable care
to:
(a) maintain heat in the building; or
I bl shut off the water supply and drain the ,)'stem
or appliances of water,
(3) By freezing, thawing, pressure or weight of Water
Or ice, whether driven by "ind or not, to a fence.
pavement, patio, swimming pool, foundation. re-
taining wall, bulkhead, pier, wharf or dock,
W Caused by:
ia) tennites, insects, vennin or rodents;
l b) mechanical breakdown, deterioration. wear and
tear, marring, inherent vice,latentdefect, rust,
smog, wet or dry rot and mold;
(c) contamination;
(c\) smoke from agricultural smudging or indus-
'trialoperations;
6
(c) 'buI6ring, cri.lckillg, CXI)<lrlsion, s('ttlin~ or slllink.
ing in ceilings, foumbtions, floors, patins, p:l\.~.
ments, roofs or walls,
If(a) through(e)cause watef damage not otherwise
cxcludcd, from n plumuing. heatinH. nil' condition.
ing, or fire protective system. hOlls~holu appliance,
X walcl'ucu 01' aquarium. we cover lO.5:i caused by the
water, Coverage includes the cost of tearing out and
replacing Ull}' part of a building nCCC55Ul')' to repair
the system or appliance, This docs not include loss
to the defective system Of appliance (other than a
waterbed or aquarium) ffom which the water es,
caped,
(5) Caused by weather conditions if any peril excluded
by this policy contributes to the loss in any way,
(6) Caused by acts or decisions, including the failure to
act or decide, of any person, group, organization, or
governmental body if any peril excluded by this
policy contributes to the loss in any way.
(7) Caused by, resulting from, contributed to or aggra-
vated by faulty or inadequate
(a) planning, zoning, development;
(b) design, development of specifications, work,
manship, construction;
(c) materials used in construction; or
(d) maintenance; of property whether on or off the
residence premises by any person, group,
organization, or governmental body ifany peril
excluded by this policy contributes to the loss
in any way.
(8) Caused by animals or birds kept by anyone we
protect or kept by a residence employee of
anyone we protect.
(9) By then. of property from within a dwelling under
construction unless that property has become a
part of the building, or of materials and supplies for
use in the construction until the dwelling is com-
pleted and occupied.
ender items (1) through (9) any ensuing loss not ex,
duded is covered.
See Section I-What IVe Do Not COLw-Exc!llsions for
,dditionallosses excluded,
PERSONAL PROPERTY COVERAGE
We pay for direct physical loss to property insured under
Pasonal Property Coverage caused by any of the follow.
ing perils, unless the loss is excluded elsewhere under
this policy:
(1) Fire or Lightning,
12) Windstorm or Hail.
This docs not include:
(a) loss caused by frost, cold weather, ice, snow,
sleet, sand or dust;
lb) loss to property contained in a building, unless
the building is first damaged by the direct force
of wind or hail;
(cl los3 to watcrcraft (except rowboats and canoes
at all illsure,1 lucation) and thei:' trailers,
fUfnishings, equipment and motors unless in.
side a fully enclosed building,
Ll) Explosion.
(I) SOllic Boom, X
(5) Hiot ur Civil Cummution,
(6) Aircraft, inclnding missiles and spacecraft.
(7) Vehicles.
(8) Smoke, if the 103s is sudden and accidental.
This docs not include loss caused by smoke from
agricultural smudging or industrial operations.
(9) Vandalism or Malicious Mischief,
(10) Theft, including attempted theft and loss of prop- X
erty from a known location when it is likely that the
property has been stolen. We also cover direct loss
of covered personal property by then. while it is
unattended in or on a motor vehicle, trailer, or
watercran.,
This does not include:
(a) then. committed by anyone we protect;
(b) theft of property from within a dwelling under
construction unless that property has become
a part of the building, or of materials and
supplies for use in the construction until the
dwelling is completed and occupied;
(c) theft of property while at another dwelling or
adjacent structures owned by, rented to, or
occupied by anyone we protect unless any-
one we protect is temporarily residing there,
Property of a student we protect is covered X
while at a residence away from home, XX
Theft losses must be promptly reported to us and to
the police,
(11) Falling Objects,
This docs not include:
(a) loss to property contained in a building, unless
the falling object first damages the building
exterior; .
Ib) damage to the falling object,
(12) Weight of Ice, Snow or Sleet.
This docs not include loss to personal property
outside the building,
(13) Sudden and accidental tearing apart, crack-
ing, burning or bulging of a steam or hot
water heating system, an air conditioning
system, or fire protective system, or an appli-
ance for heating water,
This does not cover loss caused by or resulting from
freezing.
(14) Freezingby temperature reduction ofa plumb-
ing,.heating. air conditioning. or fire protec-
tive system, or of a household appliance,
7
This doe:; not include IO:is on the residence IJn~'
mises while the dweliin!: is unoccupie,lnnless yon
have used reasonable c:lre to:
(a) maint3in he3t in the building, or
(b) shut off the water supply a ",1 drain th., 5ystem
a" appliances of water,
(15) Accidental discharge 01' overflow of water or
stenm from within n plumhinu, hcatin~, air
condltioninu, 01' fire protective system, house-
hold appliance, watel'bed 01' u'Iual'ium,
This does not include:
(a) loss to the defective system or appliance lather
th3n a waterbed or aqu:lrium);
(b) loss caused by or resulting from freezing;
(c) loss on the residence premises c3used by
nccident31 discharge or overllow which occurs
off the residence premises,
(16) Damage due to a sudden and accidental surge
oC electrical current,
This does not include loss to tubes, transistors or
similar electronic components,
(17) Volcanic Eruption,
This does not include loss caused by earthquake,
land shock waves or tremors.
Volc3:lic eruptions occurring within a 72 hour pe-
riod will be considered one volcanic eruption,
WHAT WE DO NOT COVER-EXCLUSIONS
IAlso see specific Exclusions under DIve/ling and Other
Structures Coverages-Perils IVe Insure Against)
We do not P3Y for loss resulting directly or indirectly
from any of the following, even ifother events or happen-
ings contributed concurrently, or in sequence, to the
loss:
(1) by e3rth movement, due to natural or m3nmade
events, meaning earthquake including land shock
waves, or tremors before, during or after a L'olcanic
eruption: mine subsidence; landslide; mudslide:
mud now; earth sinking, rising or shifting. Direc:
loss by Fire, E,tplasion, Sonic Boom, Theft or Breck.
age aiGlass resulting from earth mo,'ement, mine
subsidence, landslide, mudslide, mud now, e3r:h
sinking, rising or shifting is covered.
(2) by water damage, meaning:
(3) nood, surface water, waves, tides, Lid31 w:lves
or overllow ofa body of water, We do not cover
spray from any of these, whether or not driven
by wind;
(b) water or sewage which backs up through sew-
ers or drains; or
(c) water below the surface of the ground, This
includes water which exerts pressure on, or
nows, seeps or leaks through any part of a
building or other structure, sidewalk, dri,'e-
way, foundation, or swimming pool.
W" do pay for direct luss that follows, caused by fire,
explo.iion, sonic boom 01' theft,
(:1) by power interruption if the interruption takes
place away from the .'esidenee premises, Ifa loss
from a peril covered under ['erils IVe IlIsure Against
happens on the rcsid"nce Jlremises liS II result of
a power interruption, we will cO....cl'on\y los5 caused
by that peril,
(,I) by war, whether declared or undeclared, discharge
of a nuclear weapon (even if accidental), hostile or
warlike action in time of peace or war, insurrection,
rebellion, revolution, civil war, usurped power, in-
cluding action taken by governmental authorit}' in
defending against such an occurrence.
(5) by nuclear action or radiation or radioactive con-
tamination, however caused, Nuclear action in-
cludes nuclear reaction, discharge, radiation or
radioactive contamination, whether man-made or
occurring naturally,
Loss caused by nuclear action is not considered loss
by fire, explosion, sonic boom or smoke.
Ifloss by fire results, we will pay for that resulting
loss,
(6) by radon gas contamination,
(7) by the enforcement of an ordinance or law regulat-
ing the construction, repairordemolitionofa build-
ing or other structure, unless specifically provided
under this policy, We do co\'er loss caused by
actions of civil authorities to prevent the spread oC
a fire caused by a peril covered under Perils We
Insure ..\gainst,
(S) by neglect of anyone we protect to use all reason-
able means to protect covered property at and after
the time ofloss or when property is threatened by
a peril covered under Perils We Insure Against,
(9) by intentional loss, meaning any loss arising from
an act committed by or at the direction of anYIJne
we protect with the intent to cause a loss,
ADDITIONAL LOSSES WE WILl. PAY X
(1) AUTOMATIC GARAGE DOOR OPENER
We will pay up to S500 for loss to personal property,
including the garage door, at the residence premises
resulting from the use or malfunction of an automatic
garage door opener,
(2) COLLAPSE
We will pay for direct physical loss to insured property
invoh;ng collapse ofa building, or any part ofa building,
caused only by one or more of the following:
(a) lire or lightning, windstonn or hail, explosion,
sonic boom, riot or civil commotion, aircraft,
vehicles, vandalism or malicious mischief,
breakage of glass, falling objects, or weight of
ice, snow or sleet;
(b) hidden decay, or hidden insect or vennin
damage;
8
. ,
(c) weight o( people, :lnil1la!:i, contenLi or equip-
ment;
(d) weight of rain which collects on a roof;
(e) use of defective materials or methods in con,
struction, remodeling, or renovation iftht1 col.
bpsc OCCU1'5 during the course of the Clln.::itrtlc.
lion, remodeling or rcnovation.
\V e will not be liable for 10s5 under(bl, (c). (d) or (e) above
to the following properlY unless the loss is a direct result
of the collapse of a building:
X Cloth awnings, fences, pavements, patios, swim,
ming pools, underground pipes, flues, drains, ce5S.
pools, septic tanks, foundations, retaining walls,
bulkheads, piers, wharves or docks,
Collapse does not include set:ling, cracking, shrinkage.
bulging or expansion,
Payment will not increase the nmount of insurance
applying to the loss,
(3) CREDIT CARD, CHARGE PLATE, CHECK FORG-
ERY & COUNTERFEIT MONEY PROTECTION
X We will pay up to $2500 for the regal obligation of
nnyone we protect to pny because of theft, forgery or
unauthorized use of nny credit or fund trnnsfer card,
charge plnte, check or negotiable instrument issued to or
registered in the name of anyone we protect, We "ill
also pay for loss each time anyone we protect unknow-
X ingly accepts counter-feit money, No deductible applies.
We require evidence ofloss.
We will not pay for:
(a) loss arising from any business;
(b) loss arising from anyone we protect.
When loss is discovered anyone we protect must gi"e
us immediate notice, If the loss involves a credit or fund
transfer card or charge plate, anyone we protect must
also give immediate notice to the issuer of the card or
plate. Failure to comply with the terms and conditions of
the card or plate voids this protection,
X If a loss occurring during the policy period is discovered
within a year aiter' the policy has been canceled, we will
?_IY for the 1055. If a prior 1055 is disco,'ered during the
policy period and no other insurance applies, we will pay
for the 1053. \Ve have the right to inve5tigate and settle
any claim or suit before making payment, Full payment
of the amount of insurance ends our obligation under
each clnim or suit,
Repeated losses caused by or il1\'olvingone person are to
be considered one 1055.
Ifa claim is made or suit is brought against anyone we
protect for liability under the Credit Card or Charge
Plate Protection, we will orovide a defense. The defense
will be at our expense, ,,:ith a lawyer we choose.
We have the option under the Check Forgery Protectioll
to defend at our expense anyone we protect or their
bank against a suit for the enforcement of payment,
(-I) DEBRIS REI.10VAL AFTER LOSS
\\'e will pay the e'ponse for removal of:
(a) debri, of co,-ored property following loss undel'
Perils We IlIslIre Agaillst;
(bl ash, dust or particles from volcanic eruption
that has causod direct 1055 to n building or
property within a building; or
(c) f,llIon trees which cause damage to covered
property, provided coverage is not afforded
elsewhere by this policy,
If the nmount of insurance applying to the loss is ex-
hausted, we will pay up to an additional 5~ of the
amount of insurance applying to the damaged property
for removal of debris.
We will nlso pay up to $500 per occurrence for the
removal of fallen trees on the residence premises if
loss is caused by windstorm, hail or weight of ice, snow
or sleet even when covered property is not damaged,
~) EMERGENCY REMOVAL OF PROPERTY
We will pay for property damaged in any way while
removed from your residence premises because of
danger from an insured peril. Coverage is limited to a 30-
day period from date of removal. Payment ,viII not
increase the amount of insurance applying to the loss,
(6) FIRE DEPARTMENT SERVICE CHARGES X
We will pay all reasonable fire department service
charges to save or protect insured property, Payment is
in addition to the amount of insurance appl}ing to the
loss, No deductible applies.
(7) FIRE EXTINGUISHER RECHARGE
We will pay expenses incurred to recharge portable fire X
extinguishers after they are used to fight a fire.
No deductible applies,
(8) LOCK REPLACEMENT AFTER LOSS X
At your request, we will pay up to $250 to replace keys
and locks to the exterior doors of the residence pre'
mises, as well as keys and locks to your other property
I autos, boats, etc.), if the keys are stolen during a theft
loss, This coverage does not apply to keys and locks
pertaining to business property, ~o deductible applies,
We will pay for replacement oi automatic garage door X
transmittErs when a transmitter has been stolen, Cover.
age is also pro'ided for the cost to reprogram the fre.
quency on additional transmitters and/or the control
unit box.
;';0 deductible applies to the replacement of automatic
garage door transmitters,
(9) LOSS ASSESSMENT
(Applicable to Section I & Section II, Personal Liability
Cot'erage Only)
We ,viII reimburse you for an assessment charged against
you as owner or tenant of the residence premises by
an association or corporation of property owners. minus
any other valid and collectible insurance available to the
9
J.S.:oCial~iOl)' 01' rOI:por.:1tioll cu\'pl'ing lh." ;;ame a:;"SI~S:1.
,ment. The nsseS::ilJlenl Il1l1~t result li'olll an OeClIITl'IlCL'
cOloered under this policyo
Unless otherwise shown on the Declarations, Olll'
:< amount of insllrunce for this protection is $5000 pel'
assessment.
If\"oll arc asse"ed for a Cov!'red watel'I,,;s, We will pay
your share oCthe cost 0f tearing out and I'cplacillci an~;
pan of an insllrcd location necessary to repair tl",
system or appliance.
The policy deductible applies under Swiolll only,
We will not pay if the loss is caused by earthquake or
land shock waves or tremors which occur before, dUring
or after a volcanic eruption,
We also will not pay for any loss assessments charged by
a governmental body,
:< (10) MECHANICAL SERVANT AND ROBOT
PROTECTION
We will pay up to $500 for loss to personal property at the
residence premises caused by malfunction of a me-
chanical servant or robot.
lll) NECESSARY REPAIRS AFTER LOSS
We will pay the reasonable expense for necessary re-
pairs to protect covered property from further damage
after loss by a peril covered under Perils lVe Insure
,~gainst, Payment will not increase the amount ofinsur,
ance applying to the loss,
(12) NON-OWNED RESIDENCES
We will pay up to S1000 for loss by theft and vandalism
or malicious mischief to residences occupied by but not
oWTled by anyone we protect.
(13) REFRIGERATED PRODUCTS
We will pay for loss to the contents of refrigerator or
freezer units on the residence premises from either
;:ower or mechanical failure,
Coverage will be void if the contents are on the resi.
dence premises for business purposes.
I,W TEMPERATURE CHANGE
We will pay for loss to insured personal property result,
bg from change of temperature. There must first be
carnage done by a peril covered under Perils lVe Insure
Against occurring at the residence premises, Pay-
ment will not increase the amount of insurance appl}ing
to the loss,
15) TREES, SHRUBS, PLANTS AND LAWNS
We will pay up to an additional 5% of the amount of
onsurance under Dwelling Couerage for loss to trees,
;hrubs, plants and lawns at the residencc pt'cmiscs.
:overage applies only to loss caused by the following
'erils covered under Perils lVe Insure Against: fire or
ightning, explosion, sonic boom, riot or civil commotion.
drcraft, vehicles, smoke, vandalism or malicious mis.
hief and theft.
\\'<, wdlnot pay li,r:
I a) more than $500 on anyone tree, shrub or plant;
IIJ) damage to lawns by vehicles owned or operated
by a resident of the residence pl'emises;
Ic) trees, shrubs, plants or lawns grown for busi-
ness purposes.
DEDUCTIBLE
We will pay for loss minus the deductible shown on the
Declarations, In the event of total loss to the DILoelling X
from a covered peril, the deductible will not apply,
The deductible does not apply to:
(a) Loss of Use Coverage,
(0) Credit Card, Charge Plate, Cheell Forgery &
Counterfeit Money Protection,
Ie) Fire Departmetlt Service Charges,
(eI) Fire Extinguisher Recharge
(e) Loel, Replacement After Loss
RIGHTS AND DUTIES-CONDITIONS
(1) ABANDONMENT OF PROPERTY
We will not accept abandoned property,
(2) APPRAISAL
If you and we fail to agree on the amount oCloss, either
party may make written demand for an appraisal. Each
party will select an appraiser and notify the other of the
appraiser's identity within 20 days after the demand is
receil'ed, The appraisers will select a competent and
impartial umpire, If the appraisers are unable to agree
upon an umpire within 15 days after both appraisers
have been identified, you or we can ask ajudge ofacourt
of record in the state where your residence premises
is located to select an umpire.
The appraisers shall then set the amount ofloss, If the
appraisers submit a written report of an agreement to
us, the amount agreed upon shall be the amount oCloss,
If they cannot agree, they \\;11 submit their differences to
the umpire. A written award by two \\ill detennine the
amount of los5.
Each party will pay the appraiserit chooses, and equally
bear expenses for the umpire and all other expenses of
the appraisal. However, if the written demand for ap-
praisal is made by us, we \\ill pay forthe reasonable cost
of your appraiser and your share of the cost of the
umpire,
We \\ill not be held to have waived any rights by any act
related to appraisal.
(3) AUTOMATIC ADJUSTMENT OF COVERAGE X
AMOUNTS
This policy provides you with a guard against the effect
ofinllation in construction costs, The amount ofco\'er-
age ~'ou have today may not be enough to rebuild your
home at a later date in the event of serious loss,
10
\Ve will keep track of cost, and at the next policy period
we will adjust the amullnt OfYOUl' butl(hn~ covcr:l~e If
necessary. Adjustmen ts in other coverages (01 her Slmc.
lures, Personal Properly and Loss, of Us~) Will also be
made proportionately, YOlll' prcmlum wIll be adjusted
at each policy period to rellect any change Intbe amUU/lL
oi insurance.
During the policy period, if tbere is an, increase in
construction costs ami n 10:55 OCClII'S, we wllll'ctlect the
increase in tbe amount of insurance before making
payment, There will be no charge for this additional
co\'erage.
However, if for any reason the amount of insurance on
\"our home becomes inadequate or if you made substan-
tial improvements to your home and failed to notify us
to increase the amount of your insurance, the amountof
insurance shown on the Declarations will be the full
amount available should a loss occur.
(-I) ERIE OPTION
If we giye you written notice within 30 days after we
receive your signed, sworn statement of loss, we m.a~'
repair or replace any part of the property damaged wltn
equivalent property,
(5) GLASS REPLACEMENT
Loss to glass caused by a peril covered under Perils We
]nsureAgainst will be settled on the basis of replacement
with safety glazing materials when required by law.
(6) INCREASE OF HAZARD
Unless we agree beforehand, coverage is suspended if
the hazard is substantially increased by any means
w;thin the control or knowledge of anyone we pro teet,
(7) LOSS PAYMENT
We will settle any claim for loss w;th you or anyone who
has a legal interest in the property, We will pay w;thin
30 days after we receive your proof of loss and the
amount ofloss is finally detennined by:
(a) agreement between you and us;
(b) an appraisal award; or
(c) a court judgment.
'S} LOSS SETTLEMENT
(al The following types of losses will be settled on
an actual cash value basis, This means that we
will deduct for depreciation,
Losses to:
. property insured under Personal Property Co~'
erage
. structures that are not buildings or carports
. carpeting
. domestic appliances
X . cloth awnings
. outdoor antennas and outdoor equipment,
whether or not attached to buildings
. insurctl huildings and structures which do not
n",et tbe requirements fur a replacement cost
settlement described in Subsections (8)(b) and
(8l(c),
Tbe actual cash value will be determined at the
time oftbe 10ss,I'ayment will not exceed the amount
necessary to repair or replace the damaged prop.
erty,
(h> Loss to buildings and carports insured under
DIL'ellin!J COL'erage or Other Structures COL'er,
age (except as included in (a) above) will be
settled by one of the following methods:
1. Replacement cost $ettlement (meaning that
we will not deduct for depreciation):
a, provided the Declarations show that X
the Automatic No, Depreciation Settle,
ment applies; or
b, ifat the time of the loss, the amount of
insurance applying to the insured build-
ing is 80% or more of the full replace-
ment cost of the building immediately
prior to the loss; or
c. if the cost to repair or replace the dam- X
age to an insured building is both:
1) less than $2500; and
2) less than 5% of the amount of in-
surance on the building.
In making a replacement cost settlement,
we will pay you the cost of repair or
replacement, without deduction fordepre-
ciation. Payment will not exceed thesmall-
est of the following amounts:
. the amount of insurance applying to
the building;
. the replacement cost of that part of the
building damaged for equivalent con-
struction and use on the same pre-
mises;
. the amount actually and necessarily
spent to repair or replace the damaged
building.
In determining 80% of the full replace-
ment cost of the building, the value of the
following w;ll be disregarded: .
. excavations
. foundations below the basement floor
. piers and other suPPOrtS below the base-
ment floor
. if there is no basement, the value of all
items below the surface of the ground
inside the foundation walls,
2, Less than full replacement cost settlement,
If full replacement cost settlement does
not apply. we will pay the larger of the
following amounts, but not exceeding the
amount of insurance under this policy
applying to the building:
a, the actual cash value of that part of the
building damaged; or
,-
Ir-',
11
h.lh:ll proportion of l.1t: full cost to rt'p;ll r
or replace the damage which the total
alllount of instll';\llCI' in Ihis policy on the
damaged building beors to 80'1 of the
replacement cost of the building,
(c) We will pay no 1Il0re than the actual cash value
of the damage until the actual repair 01' re.
pbcement is cOlllplded, 1I0ll'e\'er, when the
loss j,; both lesothan $2500 and Ie" than 5<:< of
the amount of insurance on lllt.! building. we
will pay the full replacement cost before actLlol
repair or replacement is completed,
(d) You may disregard the replacement cost pro.
vision and make claim for loss or damage to
buildings on an actual cash value basis, How.
ever, you still have the right to make claim,
within 180 days after the loss, for any addi,
tional amounts we will be required to pa::
under this Loss S~ttlel1lellt provision,
(9) LOSS TO A PAIR OR SET
In case of a loss to a pair or set we may:
(a) repair or replace any part to restore the pair or
set to its value before the loss; 0"
(b) pay the difference between actual cash value oi
the property before and after the loss,
(10) MORTGAGE CLAUSE
Loss under Dwelling COL'erage or Other Structures COL"
eroge shall be payable to mortgagees named on the
Declarations, to the extent of their interest and in the
order of precedence.
Our Duties
Wcwill:
(a) protect the mortgagee's interests in an insured
building, This protection will not be invali.
dated by any act or neglect of anyone we
protect, any breach of warranty, increase in
hazard, change of ownership, 01' foreclosure ii
the mortgagee has no knowledge of these
conditions;
X Ibl give mortgagee 30 days notice before cancella.
tion or refusal to continue this policy,
I.lorlgagee's Duties
The mortgagee will:
(a) furnish proof of loss within 60 days if you fail
to do 30;
(bi pay upon demand any premium due if you fail
to do so;
I c) notify us of any change of ownership 0,1' occu,
pancy or any increase in hazard of which the
mortgagee has knowledge;
(d) giv~ us the right of recovery against any party
liable for loss:
lei after a loss, permit us to satisfy the mortgage
requirements and receh'e full transfer of the
llIort;:age and all :-:~rllrilies held as collateral
to the mortgage debL.
Policy conditions relating to Appraisal, Loss P"yment
and Suit Against Us apply to the mortgagee,
This mortgagee interest provision shall apply to any
trustee or loss payee named on the Decllll'alions,
(11) NO BENEFIT TO BAILEE
I
Thi.s inStlr3nCe will not in an}' way heneflt any person or
organization who nwy be caring for or handling your
property for a fee.
(12) OTHER INSURANCE
If both this insurance and other insurance appl)' to a
loss, we will pay our share. Our share will be the
proportionate amount that this insurance bears to the
total amount of all applicable insurance, except insur.
ance in the name of an association or corporation of
property owners,
[fthere is other insurance in the name of an association
or corporation of property owners covering the same
property covered by this policy. the other insurance
applies first.
(13) PERMISSION GRANTED TO YOU
Coverage applies even when your described dwelling is
vacant or unoccupied, except where limited under Perils
We Insure Against,
You may make alterations, additions and repairs to
your building. and complete structures under con-
struction.
You may waive your rights to recovery against another
invoh'ing the insured property. This must be done in
writing prior to a loss,
(14) RECOVERED PROPERTY
[f we have made payment on property which has later
been recovered by you or us, you or wc will notify the
other of the recovery, You have a right to the reco\'ered
property. If you elect to have the property, you ,,'ill
repay us the amount of our payment to you,
(15) SUIT AGAINST US
We mav not be sued unless there is full comoliance ,,'ith
all the terms of this policy, Suit must be brought \\'ithin
one year (V.-\.-2 )'ears, :\ID-3 years) aner the loss or
damage occurs,
(16) YOUR DUTIES AFTER A LOSS
[n case of a covered loss, you must perform the follo\\'ing
duties:
(a) give us or our .-\.gent immediate notice, If a
then loss, also notify the police;
(b) protect the property from further damage, If
necessary for property protection, make rea.
sonable repairs and keep a record of all repair
costs;
(c) furnish a complete inventoryofdamaged prop-
erty including quantity, actual cash value Bnd
.. 'amount of loss claimed;
12
(d) produce for examination, with permission lo
copy, all books of accounts, bills, invoices, re,
ceipls and other vouchers as we may reason,
ably require;
(c) show us or ollr represl'ntative lfw damaged
property, 0.5 often as may be rea.sonably re-
quired;
<n submit to examinations under oath and sign a
transcript of the same;
(g) send us, within 60 days after the loss, your
signed and swam to proof of loss stalement
which includes:
1. time and cause orloss;
2, your interest in the property and the
interest of all others involved;
3, any encumbrances on the property;
,I. other policies which may cover the loss;
5, any changes in title, use, occupancy or
possession of the propeny which occurred
during the policy term;
G. when required by us, any plans, specifica.
tions and estimates fOl' the repair of the
(bmaged huilding;
7, the inventory of damaged property as pre'
pared in (16) (c);
S, receipts for any additional living costs as a
result of the loss, and records of pertinent
rental loss;
9. in case of claim under Credit Card, Charge
Plllte, Checl< Forgery & COllnterfeit Money
Protection, an affidavit stating amount,
time and cause of loss,
SECTION II-HOME AND FAMILY LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE_
OUR PROMISE
We will pay all sums up to the amount shown on the
Declarations, which anyone we protect becomes
legally obligated to pay as damages because of bodily
injury or property damage resulting from an Occur.
rence during the policy period, We will pay for only
bodily injury or property damage covered by this
policy,
We may investigate or settle any claim or suit for
damages against anyone we protect, at our expense,
If anyone we protect is sued for damages because of
bodily injury or property damage covered by this
policy, we will provide a defense with a lawyer We
choose, even if the allegations are not true, We are not
obligated to pay any claim or judgment or defend any
suit if we have already used up the amount oiinsurance
by paying a judgment or settlement,
MEDICAL PAYMENTS TO OTHERS
COVERAGE-OUR PROMISE
We will pay the necessary medical expenses incurred
or medically determined within three years from the
date of an accident causing bodily injury, This three,
year limitation does not apply to funeral expenses.
This coverage does not apply to you or regular residents
of your household, other than residence employees,
To others, we will pay only in the following situations:
(l) To a person on an insured location with the
permission of anyone We protect; or
(2) To a person off an insured location if the bodily
injury:
(a) arises out of a condition on an insured loca-
tion or adjoining ways;
(b) is caused by the activities of anyone we pro-
tect;
(c) is caused by a residence employee in the
course of employment by anyone we protect;
(d) is caused by an animal an)'one we protect
owns or is caring for.
Payment under this coverage is not an admission of
liability by us or anyone we protect,
WHAT WE DO NOT COVER-EXCLUSIONS
PERSONAL LIABILITY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not cover under Personal Liability Coverage and
Medical Payments To Others COL'erage:
fl) Bodily injury or property damage expected or
intended by anyone We protect, .
(2) Bodily injury or property damage arising out of
business pursuits of anyone we protect.
We do cover:
(a) activities normally considered non-business;
(b) business pursuits of salespersons, collectors, X
messengers and clerical office workers em-
ployed by others, We do not coverinstallation.
demonstration and senicing operations;
(e) business pursuits of educators while employed X
by others, including corporal punishment of X
pupils;
(d) incidental business activities of anyone we X
protect. These include babysitting. caddying,
' . lawn care. newspaper delivery and other simi.
lar activities:
x (0) lhe owner,hip of newly-acquired 001' or lwo
f:lmily dwellings, but only for a penod of 30
conseculive days after acquisition unless de.
scribed on the Declarations.
13) Bodily injuryor propel'ty dmnnge arising out of
the rental or holding for renlal of the residence
premises by anyone we protect.
We do cover if the residence premises is:
(a) occasionally rented or held for renlallo others
as a residence;
(b) rented or held for rental in part as a residence,
unless for the accommodation of more than
three roomers or boarders;
(c) rented or held for rental in part as an office,
school, studio or pril'ate garage,
(4) Bodily injul'y or property damnge arising out of
the rendering or failing to render professional 51'1"
vices (other than professional services rendered by
educators),
(5) Bodily injury or property damage arising out of
any premises owned by or rented to anyone we
protect which is not an insured location. This
exclusion does not apply to bodily injury to a
residence employee arising out of and in the
course of employment by anyone we protect.
(6) Bodily injury or property damage arising out of
the ownership, maintenance or use of:
(a) aircraft;
(b) any land motor vehicle owned or operated by or
rented or loaned to anyone we protect,
We do cover motor vehicles if:
1. used exclusivelv at an insured location
and not subject to motor vehicle registra.
tion;
2. kept in dead storage at an insured loca-
tion;
3, a recreational land motor vehicle not de.
signed for use on public roads while at an
insured loeation;
< 4, a golf can, wherever used or located;
< 5, a lawn or fnrm type ,'ehicle or snowblower,
wherever used or located, if not subject to
motor vehicle registrntion.
(c) wntercraft:
< 1. owned by or frequently rented to anyone
we protect if it has inboard or inboard.
outdrive motor power of more than 7.5
horsepower:
< 2, owned by or frequently rented to anyone
we protect if it is a sailing vessel 26 feet
or more in length: or
'J, powered by one or more outboard motors
< with more than 75 total horsepower owned
by nnyone we protect at the beginning
of the policy period.
llowever, ifnnyone We protect ncquires X
\\':ttercraft, regardless of horsepower I co\".
erage applies during the policy period. If
the watercraft is acquired within 60 days
of the end of the policy period, we \\;11
provide covernge for n maximum of 60
dnys, We have the right to charge you an
additionnl premium.
ExclllSiol1 (6)(c) does notnpply while the water.
craft is stored on shore,
ExclllSiol1 (6) does not apply to bodily injury to nny
l'esidenee employee nrisingout of and in the course of
employment by anyone we protect.
We do not pay for liability arising out of the negligent
entrustment of an aircraft, motor vehicle or watercraft
covered under this policy,
We also do not cover statutorily imposed vicarious pa.
rental liability for the actions ofa child or minor using an
aircraft, motor ,'ehicle or watercraft excluded abo"e.
(7) Bodily injury or property damage arising out of
war (declared or undeclared), civil war, insurrec.
tion, rebellion or revolution,
Discharge of a nuclear weapon is considered a
warlike act even if accidental.
(S) Bodily injury and property damage which arises
out of or results from a communicable disease or
condition transmitted by anyone we protect to
any other person through a parasite, virus, bacte-
ria or any other organism.
(9) Except as provided in paragraph 2(1') under "What
We Do Not Cover, Personal Liabilitv and Medical
Payments To Others Coverage, bodily injury or
property damage which arises out of the semal
molestation, corporal punishment or physical or
mental abuse by anyone we protect,
(10) Bodily injury and property damage which arises
out of the use, sale. manufacture, delivery, transfer
or possession by any person of a Controlled
Substance{s) as defined bv the Federal Food and
Drug Law at 21 U.S,C..-\: Sections 811 and 812,
Controlled Substances include but are not limited
to cocaine, LSD, marijuana and all narcotic drugs:
However, this exclusion does not apply to the legiti,
mate use of prescription drugs by a person follow-
ing the orders of a licensed physician,
(11) Bodily injury and propel'ty damage which arises
out of the discharge, disposal, release or escape of:
(al vapors, fumes, acids, toxic chemicals, toxic
liquids or toxic gasses;
I,b) waste materials or other irritants, contami.
nants or pollutants.
We do not cover under Personal Liability COL'erage:
(1) Liability assumed under any oral contract or agree-
ment. or by contract or agreement in connection
with any business of anyone we protect.
14
x
: I'.!) Li~d)ilit.v flJr YOUI' share of any IO:-d ;l:,;-.t';;..;f1Iefll
charged against all fllcmucrs of an ns:.;oci;ltilHl or
corporation ofpl'openy owners. This exclusion doL':)
not opply toAdditiollal',osses IVe 1Yi:ll'oy,I9J l.oss
Assessmellt, SeclioJll / or lhis policy,
I:}) Pl'OpCl'ty darna~e tfl properly owned by anyone
we protect.
1.-1) Property dalllag-c to property rented to, OI'Cllpicd
01' lIsed by, or in the CUl'e of anyone we Ju'otcct.
This exclu5ion does not apply to prop!!rty dallla~!!
caused by lire, explosion, sonic boom 01' smoke, or by
accidentol discharge or waleI' rrom a walerbed or
aquarium,
I..j) Bodily inju.'y lo any person eligible to receive any
benefils required lo be provided or volul1larily
provided by anyone we p.'otect under any work,
ers' compensation 01' occupalional disease law,
,6) Bodily injury 01' property damage for which
anyone we protect is co\'ered under any nuclear
energy liability policy, or would be covered if its
amounts of insurance had not been exhausled,
Cnder ,Hedical Payments To Others Coverage we do not
cover:
(1) Bodily injury to a residence employee if it
occurs offan insured location and does not arise
out of orin the course of employment by anyone we
protect.
(2) Bodily injury to any person eligible to receive any
benefits required to be provided or \'oluntarily
provided under any workers' compensalion oroccu-
pational disease law,
(3) Bodily injury from any nuclear reaction. radia-
tion or radioactive contamination, or any conse-
quence of any or these,
WHAT WE ALSO PAY
Payment for the follo\\ing is in addition to the amounts
oiinsurance shown onlhe Declarations,
x
(1) CLAIM EXPENSES
We pay:
(a) all exp'enses we incur and all costs against
anyone we protect in a suit we defend;
(b) premiums on bonds in a suit we defend, but not
for bond amoul1lS greater than the limit for
Personal Liability COLwage, We will also pay
up lo S500 for each bail bond required of any-
one we protect because of an accident or
traffic violation arising out of the use of a
vehicle covered b>' this policy, We have no
obligation to apply for or furnish bonds;
(c) I'easonable lawyers' fees up to S5D thaL any-
one we protect incurs because of arrest re-
sulting rrom an accident involving a vehicle
covered by this policy;
x
IdJ 1't'.l.,l)llabll~ t'xpt!n;ie~ incurred by anyone \\'e
protect alour reque;l. This includes actual
I",,, of "al'llin~5 (bul nolloss of other income)
an,1 vacalion time or other benefit loss up to
S100 per day for helping us in the investigation X
Ill' defense uf any claim or suit;
(e) all intrreslon the full amountofnny judg!':1e:n
!Hl a .:luit we deCend until we offer 01' deposit in
courl the amount for which we are linble;
(f) prejlld~ll1enl interesl awarded on the amount
ofthejud~menl we P3Y. Ifwe offer to pay the
applicable nmounl of insurance, we will not
pay any prejudgment interest for the period of
lillle after the orfer,
(2) DAMAGE TO PROPERTY OF OTHERS
We pay, on a replacement cost basis, up to SIOOO per X
occurrence for p.'operty damage to property of others
caused by anyone we protect. This coverage also X
applies to property of others in the possession ofnnyone
wc protect.
We will not pay for property damage:
(a) to the extent of any amount recoverable under
Section I of this policy;
(b) caused intentionally by anyone we protect
who has attained the age of 13;
(c) to property owned by anyone we protect;
(d) to property owned by or rented to a tenant of
anyone we protect or a resident of ;):our
household;
(e) arising out of:
1. an act or omission in connection \vith a
premises (other than an insured loca-
tion) owned, rented or controlled by any-
one we protect;
2. business pursuits; or
3, ownership, maintenance or use ofa motor
vehicle, aircraft or watercraft, We \\i1l
pay for property damage to a land motor
vehicle designed for recreational use ofT
public roads while in the possession of or
caused by anyone we protect if:
a, not subject to motor vehicle reg;strli.-
tion, and
b, not owned by anyone we protect,
13) FIRST AID EXPENSES
We pay reasonable expenses for iirst aid to other persons
and animals at the time of an accident invohing anyone X
we protect.
(4l LOSS ASSESSMENT-PERSONAL LIABILITY
COVERAGE
See Loss ,-\ssessment, paragraph (9), Section /. _-\ddi,
tiollal Losses IVe \ViII Pay,
15
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I
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RIGHTS AND DUTIES-CONDITIONS
(1) BANKRUPTCY OF ANYONE WE PROTECT
Bankruptcy or insolvency of anyone we protect
or nnyone we protect's c3tatc will not relieve us
of any of our oblig:ltions under this policy.
(~) DUTIES OF AN INJURED PERSON-MEDICAL
PAYMENTS TO OTHERS COVERAGE
The injured person or someone acting on behalf of
that person will:
(a) give us written proof of claim, as soon as
pos.ible, under oath if required;
(b) sign papers at our request to allow us to obtain
medical reports and copies of record.,
The injured person will submit to mental and physi.
cal examination by doctors selected by us as often
as reasonably required. We may pay the injured
person or the provider of the services,
(3) LIMITS OF PROTECTION
This insurance applies separately to anyone we pro-
tect. Regardless of the number of people we protect,
claims made or persons injured, our total liability under
Personal Liability Couerage for damages resulting from
one occurrence will not exceed the amount shown on the
Declarations, All bodily injury and propel'ty dam.
age resulting from one accident or from continuous or
repeated exposure to the same general conditions is
considered the result of one occurrence,
Our total liability under Medical Payments To Otlters
COl'erage for all medical expense payable for bodily
injury to anyone person will not exceed the "Each
Person" amount shown on the Declarations,
(4) OTHER INSURANCE-PERSONAL LIABILITY
COVERAGE
This insurance is excess over anv other valid and collect.
ible insurance, However, if the other insurance is specifi.
cally written as excess insurance over this policy, the
limits of this policy apply first.
If at the time ofloss there is other insurance in the name
of an association or corpol'ation of property owners
covering the 5ame property covered b}" this policy, the
inwrance afforded by this policy shall be excess over the
amount recoverable under such other insurance.
I~I SUIT AGAINST US
The terms of this policy mu.t be complied with before
suit rnny be bl'oughlngainst liS.
The legal liability of lInyone we protect must be
determined before suit under l'asrJllnl I.iabilitl' COI'a'
(/!je may be brought against liS. This determination may
be hy a court ariaI\' or by written a~rel'ment of all parties,
including us,
No one has the right to make us a party to a suit to
determine the liability of lInyone we [ll'otect.
(6) YOUR DUTIES AFTER A LOSS
\,11en there is an accident or occurrence anyone
we protect will:
(a) notify us or our Agent, in writing, as soon as
possible, stating:
1. your name and policy nUlllber;
2, the time, place, and circumstances of the
accident or occurrence;
3, names and addresses of injured persons
and witnesses;
(b) send us promptly any papers that relate to the
occident or occurrence;
(c) at our request:
1. assist in making settlement;
2. help us enforc'e any right or'recovery
against any party liable to anyone we "
protect; ,
3, assist in the conduct of suits;
4, attend hearings and trials;
5. secure and give evidence and obtain the
attendance of lvitnesses,
(d) under the coverage Damage To Property Of
Otlters, send us, \vithin 60 days of the loss,
sworn proof ofloss, Anyone we protect shan
also exhibit the damaged property if within
their control.
Anyone we protect will not, except at one's own cost,
make payments, assume obligations or incur expenses,
other than for first aid to other persons and animals at
the time of the bodily injury,
16
''sC:C710N IH_RlGH7~"\ND DUTIES-GENERAL. olleY CONDITIONS
,
W'e, yoU and anyone else protected by this policy Il1U,t
do certain things in order for the tCrlns of the poltcy to
apply,
II) ACCOUNTING IErie Illsurallce ExclwllIJ" Only)
X Eric Indemnity Company ll1ay keep up to 2;'~' of th"
premium written or assumed by Erie Insurancc Ex'
change as compen;ation for (A) becoming and acting as
AllOrney,in,Fact, (Ul managing the bnsiness and affair,
of Erie Insurance Exchange, its affiliates and subsidiar'
ies, and (C) paying general administrative expenses,
including sales commissions, salaries and employee
benefits, taxes, rent, depreciation, supplies and data
processing,
The rest of the premium will be placed on the books of tile
Erie Insurance Exchange, We will deposit or invest this
amount as permittcd by law, This amount will be used
to pay losses, loss adjustment expenses, investment
expenses, damages, legal expenses, court costs, taxes.
assessments, licenses, fees, and other governmental
fines and charges, establishment of reserves and sur-
plus, and reinsurance, and may be used for dividends
and other purposes Erie Indemnity Company decides
are to the advantage of the Subscribers.
(2) ASSIGNMENT
Interest in this policY may be transferred only with our
written consent,
If you die, the policy will cover:
(a) anyone we protect who is a member of your
household at the time of your death, but only
while a resident of the residence premises;
(b) anyone having lawful possession of insured
property until a representative is appointed,
but only until the end of the policY period
during which your death occurs;
(c) your legal representative, but only while per'
forming duties as your representative and
only until the end of the policy period during
which your death occurs.
3i CANCELLATION
Your Right to Cancel
You may cancel this policY by mailing or delivering to)
our Agent or us written notice 5tJting :;it what future
date YOll want the cancellation to take effect, We may
waive these requirements by confirming the date ot"
cancellation to you in writing,
Our Right to Cancel or Refuse to Continue
We may cancel or refuse to continue this policy by
mailing you written notice stating the effective date ot"
0\11' action, QUI' action will comply with the laws of the
statc in which YOUI' residence pl'emises is located. We
reserve the right to cancel for YOUI' noncompliance with
0111' premium payment plans, We do not waive our right
to cance\. even if we have acccpted prior late payments,
Olll' cancellation or refu,al to continue this policy will
not take efrect until at least:lO daysOlaryl:\I1d-~5 days
except for non,payment of premium) after we send it.
r,lethod 01 Giving tlotice
~Iailing notice to the address shown OIl the Declara'
tiolls will he suftici"nt procfnfnotice. The policy period
will end on the date and time stated in the notice,
Return 01 Premium
If your policy is canceled by YOU or us, we will return
the pro rata unused share of your premium. Cancella,
tion will be ct'feclive even if we have not given or offered
any return premium.
(,I) CONCEALMENT, FRAUD OR
MISREPRESENT A TION
This entire policy is void if, before or after a loss, anyone
we protect has intentionally concealed, or misrepre,
sented, any material fact or circumstance concerning
this insurance,
In the event of a fraudulent claim, we will not make
payment for the loss,
(5) COOPERATION
You agree to cooperate with us by:
(a) truthfully completing and promptly returning
questionnaires and audit forms about this in-
surance~
(b) permitting and helping with inspections and
audits; and
(c) complying with specific recommendations to
improve your risk,
1,6} HOW YOUR POLICY MAY BE CHANGED
This policy conforms to the laws of the state in which
your residence premises is located. If the laws of the
state change, this policy will comply with those changes,
You may change your policy by asking us, Your re-
quest must contain enough information to identify yOU,
A5king our .-\gent is the same as 3sking us. If\ve agree
with your request, we will then issue an Amended
Declarations,
We will give you the benelit of any change in coverage
made by us, if it does not require additional premium,
This change will be effective as of the date we implement
the change for you in your state,
If the information we use to determine the premium for
your coverage(s) changes during the policy period, we
may c.djust your premium, Premium adjustments ,viII
be made using rules and rates in effect for our use,
17} NO CONTINGENT LIABILITY
IErie Insltrance Exchange Only}
You will not be assessed for the losses of Subscribers,
17
"(Sf 01JR'rllc,HT TO'RECOVER FR. _ OTHERS
Attel' we make a payment under this policy, we will
ha"e the right to recover from anyone else held respon-
sible, This right will not apply under Section / if you
have waived it in writing prior to loss,
Anyone we (lrotect will sign papers and do whatever
is requirecl to transfer this right to us, and do nothing to
harlll this right.
Anyone receiving payment from us and someone else for
the same loss will reimburse us up to ou.' payment,
This condition docs not apply under Section II to,\/edical
Payments To Others Coverage 01' Damage 1'0 Property O{
Others,
(9) POLICY ACCEPTANCE AND COOPERATION
By accepting this policy, you agree that the policy
contains all agreements relating to this insurance,
You also agree to cooperate with us in such things as:
(a) completing and returning questionnaires and
audit forms about this insurance;
(1)) pennittii. :mu helping Wilh inspections and
audits; and
(c) complying with specific recommendations to
improve your risk,
(10) POLICY PERIOD
This policy applies only to loss which occurs during the
policy period, The policy period is shown on the Decla.
rations 01' Amended Declarations, An Amended Dec/a,
rations tells YOII that the policy has been changed,
(11) PRIORITY X
At Our option, this insu.'ance will firstprotectyou,your
Spouse residing in your household and then others we
protect.
(12) TIME OF INCEPTION
If this policy replaces coverage in other policies which
end on the inception date of this policy, but at a different
time, then this policy will take e/Tect when the other
coverage ends.
THIS POLlCY HAS BEEN SIGNED ON OUR BEHALF AT ERIE, PENNSYLVANIA BY OUR PRESIDENT
AND SECRETARY, IF REQUIRED BY LAW, IT HAS BEEN COUNTERSIGNED ON THE DECLARATIONS
BY OUR AUTHORlZED AGENT.
~ c? 9L
Secretary
kL ~""~
~
ERIE,
ERIE INSUR,lNCE GROUP
,""eme ClIlee' tca Erre InSlJrarc:! ~:a.:e' Erce.?A ~a5'::O' (81-1) 8:'O.2CCO
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,
ERIE INSURANCE EXCHANGE
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
v,
No,: 97-1583
JAMES B, MCNERNEY, SR" BRANDON
K, SCHROLL, TYLER KAPP
and JAMES LAUCK
CIVIL ACTION
Defendants
MEMORANDUM OF LAW JN SUPPORT OF DEFENDANT
lAMES B, MCNERNEY. SR.'S MOTION FOR SUMMARY JUDGMENT
The present Motion for Summary Judgment requires this Court to determine whether
plaintiff Erie Insurance Exchange has properly denied coverage to its insured, Brandon
Schroll, under the "expected or intended" exclusion in his policy of insurance, for fire
damage ultimately caused to a building owned by defendant/movant James B, McNerney,
Sr, For the reasons set forth herein, defendant submits that this exclusion is inapplicable to
the undisputed facts of this case, requiring that coverage for the damages caused herein be
granted as a mailer of law,
FACTUAL BACKGROUND
This case arises from a fire that occurred on February 13, 1995, at a former Pizza Hut
building owned by defendant James B, McNerney, Sr, ("McNerney"), This building, which
had been vacant for several months prior to this fire, was insured by SI. Paul Fire & Marine
Insurance Company,
On the date of this loss, Defendant Brandon Schroll was an eighteen (18) year old
individual who resided with his parents, Thomas and Cheryllubold, at 330 Hillcrest Drive,
New Cumberland, PA 17070, The lubolds were insured on that date under a home
owners' policy issued by Plaintiff Erie Insurance ~xchange, under polley no, 2560602592,
with liability limits of $100,000, It is undisputed that Mr, Schroll was an insured under this
policy on the date of loss,
The relevant events leading up to this incident began early in the afternoon on
February 13, 1995, when defendant Brandon Schroll went to the home of his friend, Tyler
Kapp, The two of them got in Mr, Kapp's car and drove to the home of another friend,
James lauck, These three individuals went out partying for approximately 45 minutes, at
which time at least two six packs of beer were consumed by Schroll, along with four or five
bongs of marijuana between the boys, See deposition transcript of Brandon Schroll at
Exhibit "A" at p, 6, line 5 - p, 10, line 5,
After partying for a while at a park, the three boys decided to go to Capital City Mall,
On the way to the Mall, Tyler Kapp realized that he needed to call his mother to advise her
of his whereabouts, so they pulled their vehicle into the parking lot of the Pizza Hut
building to use a pay phone, Id, at p, 10, lines 15-20, While Mr, Kapp called his mother,
Mr, Schroll and Mr, lauck went to the rear of the vacant building, where an abandoned sofa
was located about 1 1/2 feet away from the back of the brick faced building, See post-fire
photo of rear of building attached as Exhibit "B", Apparently Mr, Schroll's and Mr, lauck's
bladders were feeling the effects of their beer consumption, and they proceeded to relieve
themselves upon this sofa, Exhibit "A" at p, 11, line 9 - p, 12, line 7, After relieving
I
2
themselves, the young men became curious as to the flammability properties of their urine,
given their recent consumption of alcohol. A cigarette lighter was produced, and Mr,
Schroll and Mr, Lauck attempted to see if the sofa cushion that they urinated upon would
ignite, Id, at p, 14, lines 11-15, According to Mr, Schroll,their first attempts at ignition
were unsuccessful. Thereafter, some nearby newspaper was ignited and thereafter shoved
into the center of one of the sofa cushions, Id, at p, 15, lines 14-20, This attempt was more
successful, and Schroll testified that an area the size of a small honeydew melon began to
burn, with flames that were approximately six (6) inches high, Id, at p, 23, line 16 - p, 24,
line 7,
At this time, Tyler Kapp finished his telephone call, and came to the back of the
building where the fire on the sofa cushion was burning, After he expressed his displeasure
with this activity, Schroll and Lauck proceeded to pat out the flames, Id, at p, 15, line 24 -
p, 16, line 2, Once the flames were completely extinguished, Schroll thereafter took about
a quart of soda contained in a two liter container and further poured it upon the burned area
of the sofa, in order to completely extinguish the fire, Id, at p, 17, lines 3-6, After patting
out the flames and dousing the sofa cushion with soda, and seeing no further smoke or
flames, Schroll believed that the fire was completely extinguished, Their efforts to
extinguish the fire took approximately seven (7) to ten (10) minutes, according to Schroll.
Id,
After putting out this fire, the young men got back in Kapp's car, and went to the
home of Brandon Schroll's girlfriend, Alicia Worley, who lived approximately 3/4 of a mile
from the Pizza Hut building, After staying for some time at Ms, Worley's home, the boys
3
saw smoke rising from the across the field between Ms, Worley's home and the Pizza Hut.
lQ, at p, 18, lines 18-21. The boys decided to go and investigate what was burning, and
ended up at the Pizza Hut building, At this time, they saw the entire roof of the Pizza Hut
building engulfed in flames, with fire fighters and other rescue personnel engaged in rescue
operations, Id, at p, 19, lines 9.22, It was at this time that Mr, Schroll first realized that
their prior activity in lighting the sofa was the likely cause of the extensive fire that they
were now witnes5ing, involving almost the entire building, Id, at p, 19, line 23 - p, 20, line
5,
As a result of the fire, Mr, McNerney's building was completely destroyed, The
actual cash value of the building damage was determined by St. Paul to be $145,865,60,
after deductions for depreciation and wear and tear, However, due to the building being
unoccupied for in excess of 60 sixty days prior to the 1055, the actual cash value amount
payable to Mr, McNerney was reduced by 15%, along with McNerney's $1,000 deductible,
Thus, the insured damages related to this fire were reduced to $122,985,76, and Mr,
McNerney sustained uninsured damages from this fire in the amount of $22,879,84,1
Kapp, Lauck and Schroll were eventually identified and apprehended for their
involvement in this fire, Kapp was not charged with any criminal activity, while Lauck pled
no contest to charges of reckless burning, and Schroll pled guilty to charges of arson
endangering property, Significantly, during the guilty plea and sentencing colloquies of Mr,
Schroll, Mr, Schroll, through his attorney, repeatedly expressed to the Court that it was not
I This Motion does not seek to have the amount of defendants' damages detennined as a
matter of law,
4
his intention to burn down the Pizza Hut building, although that was the end result of his
activity, See Exhibit "C" at p, 4, lines 8-18 and "D" at p, 2, line 13 - p, 3, line 11,
Through counsel herein, McNerney, as well as McNerney's insurer, St, Paul, made
demand upon Schroll to recover the damages sustained as a result of this fire, See Exhibit
"E", Schroll forwarded this demand to Erie, which subsequently denied coverage under the
policy, After counsel herein filed a writ of summons against Schroll, Erie filed the present
declaratory judgment action,
Mr, Schroll has continued to express his complete lack of expectation or intent to
cause fire damage to the Pizza Hut building during the deposition he provided in the
present litigation, Based upon the clear lack of evidence necessary to bring the damages
claimed herein under the "expected or intended" exclusion in the Erie policy, defendant
James McNerney submits that coverage for the fire damage to the building should be
provided as a matter of law,
ARGUMENT
A, Standard for Summarv ludgment
A motion for summary judgment will be granted if the pleadings, depositions,
answers to interrogatories, admissions, and affidavits show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law,
Pa, R,C,P, 1035; Consumer Partv of Pa, v, Commonwealth, 510 Pa, 158, 174-75,507 A,2d
323, 331 (1983), The moving party bears the initial burden of demonstrating that no
genuine issue exists as to any material fact, This burden can be satisfied by showing that
there is a complete failure of proof concerning an element essential to the non-moving
5
party's claim, Godlewski v, Pars Manufacturing Co" 408 Pa, Super, 425, 597 A,2d 106,
109-10 (1991), citing Celotex Corp, v, Catrett, 477 U,S, 317, 322 (1986), In the present
case, defendant McNerney will show that there is no proof that Schroll expected or intended
to cause fire damage to the Pizza Hut building, which is an essential element of Erie's
invocation of its policy exclusion, Once this showing is made, the non-moving party cannot
rely on the mere allegations or denials of its pleadings, but must come forward with
admissible evidence demonstrating the existence of a genuine Issue of material fact. Pa,
R,C,P, 1035{d); Samarin v, GAF Corp" 391 Pa, Super, 340, 347,571 A,2d 398, 402 (1989),
B, Standards for Interpreting Insurance Contracts
Pennsylvania's standards for reviewing insurance contracts are well settled, This
court must initially interpret the present insurance contract in light of the parties' reasonable
expectations, Standard Venetian Blind Co, v, American Empire Ins, Co" 503 Pa, 300, 469
A,2d 563 (1983), Words in the policy must be given their ordinary meaning, Erie Ins,
Exchange v, TransAmerica Ins, Co.. 352 Pa, Super, 78, 83, 507 A.2d 389, 392 (1986),
Ambiguous terms in an insurance policy should be construed against the insurer, and
presumption favors coverage when a policy provision is unclear, Evans v, Baltimore Life
Ins, Co.. 216 Pa, Super, 425, 268 A,2d 155 (1970), A term is deemed ambiguous if
"reasonably intelligent men on considering it in the context of the entire policy would
honestly differ as to its meaning," Id, Finally, a liability insurer relying upon a policy
exclusion must establish that the exclusion clearly and unambiguously applies to the
underlying claims, Island Associates, Inc, v, Erie Group, Ine.. 894 F,Supp, 200 {W,O,Pa,
6
1995),
C. Based Upon The Uncontroverted Testimony of Brandon Schroll,
As Well As All Other Evidence In This Matter, Coverage
Should Be Found Under The Erie Policv As A Matter of law,
A review of all of the relevant evidence in this matter demonstrates that Erie's
insured, Brandon Schroll, did not expect or intend to cause any fire damage to the Pizza
Hut building owned by Mr, McNerney, Accordingly, under the policy language and
applicable Pennsylvania case law, judgment in favor of coverage must be entered as a
matter of law,
The relevant policy language relied upon by Erie in denying coverage to Mr, Schroll
is quoted in Erie's Reservation of Rights letter sent to Schroll's parents, Therein, it states:
What We Do Not Cover - Exclusions, Personal liability
Coverage and Medical Payments to Others Coverage:
We do not cover under Personal liability Coverage and
Medical Payments to Others Coverage: 1, Bodily Injury or
propertv damage expected or intended by anyone we protect.
See Exhibit "F"i see also Erie policy at Exhibit "G," at 13 (emphasis added), The foregoing
"expected or intended" policy exclusion has been interpreted by Pennsylvania courts as
requiring the carrier to demonstrate that the insured intended by his act to produce the
damage which did in fact occur, This Erie cannot do,
The seminal Pennsylvania case interpreting and applying this exclusion is Eisenman
v, Hornberger, 438 Pa, 46, 264 A,2d 673 (1970), wherein Hornberger and another juvenile
broke into the Eisenman's home to steal liquor, In order to see their way around the house,
the juveniles lit matches, and as each match burned down, it was dropped or thrown to the
floor, One match apparently lodged in the cushion of a chair, There was no sign of fire
7
infliction of emotional Injury by an insured, the policy exclusion was functionally identical
, I
,
to that in the present case, That policy provided that "personal liability '.. coverage ,.. [does)
not apply to bodily injury or property damage: (a) which is expected or intended by the
Insured," 358 Pa, Super, at _' 517 A,2d at 985, After closely examining this exclusion,
the court first held that this exclusion was ambiguous as a matter of law, and construed it
against the insurer, 358 Pa, Super, at _,517 A,2d at 987, The exclusion In the present
case must similarly be found ambiguous, and therefore construed against Erie, and in favor
of coverage for Schroll. Evans v, Baltimore life Ins, Co" i!JQ@,
.,
The Elitzkv opinion thereafter thoroughly analyzed the terms "intended" and
"expected," and found they were synonomous as used in this exclusion, 358 Pa, Super, at
, 517 A,2d at 991. It adopted the definition of "intent" set forth in Nationwide
.'
~
Mutual Ins, Co, v, Hassinger, 325 Pa, Super, 484, 473 A,2d 171 (1984), That court held
that "intent" means that the actor desired to cause the consequence of his act, or that he
,-
.,.
acted knowing that the consequences were "substantially certain" to result, 325 Pa, Super,
at 493, 473 A,2d at 175, In the present case, there is absolutely no evidence that Brandon
Schroll desired to burn the Pizza Hut building, nor that he was substantially certain that the
building would burn as a result of his actions, In fact, the only thing that Schroll was
"substantially certain" of was that he had completely extinguished the fire on the sofa
cushion, prior to leaving, Thus, it is evident that Schroll had no "intent" to cause fire
damage to the building,
In examining the term "expected," the Elitzkv court stated that it connotes an element
of "conscious awareness" on the part of the insured, 358 Pa, Super, at -' 517 A,2d at
11
991, The previously quoted testimony of Erie's Insured, Brandon Schroll, unmistakably
demonstrates that he had no "conscious awareness" that the Pizza Hut building would
sustain fire damage, especially after he and the other two juveniles had spent seven to ten
minutes palling out the flames, and dousing the sofa cushion with soda, Exhibit "A" at p,
16, line 23 - p, 17, line 20, These actions were specifically intended to prevent further fire
damage to the sofa, and to his understanding, would prevent fire damage to anything else
in the area,
It is readily evident that Schroll negligently failed to extinguish the fire on the sofa
cushion, which should be covered under the Erie policy, As pointed out by the court in
Elitzkv, great care must be taken not to exclude injuries or damages caused by the
negligence of the insured under the "expected or intended" exclusion, 358 Pa, Super, at
_, 517 A,2d at 991, Thus, this exclusion cannot apply to Schroll's negligence in pUlling
out the sofa fire, and the subsequent building fire,
Finally, providing coverage for the fire damage to the building does not violate any
public policy principles, See generallv, Eisenman v, Horberger, 438 Pa, at ,264 A,
2d at 675 (if policy not procured in contemplation of crime, did not promote unlawful act,
and denial of coverage would not serve as crime deterrant, no overriding public policy
would preclude recovery), Rather, the Innocent parties who sustained financial damages
as a result of this fire - McNerney and 51. Paul - will be made whole by Erie, which
accepted premium payments from Schroll's parents, and contractually agreed to Indemnify
Schroll for incidents of this type, pursuant to the terms it drafted in the policy it Issued,
12
.. .
ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, r; 7 . /.5<;] i,U;.dJ~fl'"
v,
JAMES B, McNERNEY, SR"
BRANDON K, SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
NOTICE
You have been sued in court, If yOU wish to defend aqainst
the claims set forth in the followinq paqes, vou must take action
within twenty (20) days after this complaint and notice are
served. bv enterinq a written appearance personally or bv attor-
nev and filinq in writinq with the court your defenses or obiec-
tions to the claims set forth aqainst YOU, You are warned that
if YOU fail to do so the case may proceed without YOU and a
iudqment mav be entered aqainst YOU bv the court without further
notice for any money claimed in the complaint or for any other
claim or relief requested bv the plaintiff, You may lose money
or property or other riqhts imoortant to vou,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
A V ISO
USTED HA SIDO DEMANDADO/A en corte, Si usted desea
defenderse de las demandas que se presentan mas adelante en las
siguientes paginas, debe tomar accion dentro de los proximos
veinte (20) dias despues de la notificacion de esta Demanda y
Aviso radicando personalmente 0 por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus
defensas de, y objecciones a, las demandas presentadas aqui en
contra suya, Se le advierte de que si usted falla de tomar
ace ion como se describe anteriormente, el caso puede proceder sin
,
j,
5, Upon information and belief, Defendant James Lauck
(hereinafter "Lauck") is an adult individual residing at 513
Marsh Run Road, New Cumberland, Pennsylvania 17070,
II. NATURE OF THE ACTION
6, This is an action for declaratory judgment pursuant to
42 Pa, C,S, ~7531, et seq, for the purpose of determining a
question of actual controversy between Erie and Schroll, as
hereinafter more fully appears,
7, McNerney, Kapp and Lauck are persons who claim
interests which would be affected by the declaratory judgment
sought herein, as hereinafter more fully appears,
III, BACKGROUND OF THE ACTION
8, On or about February 13, 1995, Schroll, Kapp and Lauck
entered the parking lot of a vacant Pizza Hut located at 2025
Carlisle Road, Camp Hill, Pennsylvania,
9. Schroll and Kapp attempted to set fire to a couch which
was up against the back of the building, The roof eaves of the
building extended over the area where the couch was located,
10, After Schroll, Kapp and Lauck left the premises where
the Pizza Hut was located, the couch ignited, and the resulting
fire caused extensive damage to the Pizza Hut building,
11, As a result of his involvement with the aforesaid fire,
Schroll pled guilty to "arson endangering property," a second
degree felony under 18 Pa, C,S,A, ~3301(c),
- 2 -
12, On or about February 13, 1995, Erie insured Thomas J,
Lubold and Cheryl A, Lubold (hereinafter "the Lubolds") under a
Homeowner's Policy, No, Q56 0802592 H, (hereinafter "the
Policy"), a true and correct copy of which is attached hereto as
Exhibit "A" and incorporatfJd herein,
13, Upon information and belief, on or about February 13,
1995, Schroll, the Lubolds' son, resided in the Lubolds' home and
therefore was an insured under the Erie policy,
14, McNerney, through his counsel, has informed Erie that
as a result of Schroll's conduct on February 13, 1995, fire
destroyed the Pizza Hut,
15, McNerney, through his counsel, has contended that Erie
is obliged to indemnify schroll for his alleged liability for the
property damage to the Pizza Hut,
16, By letter dated November 3, 1995, McNerney's counsel
notified Erie of the claim against its insured, Schroll, A true
and correct copy of the November 3, 1995, letter is attached
hereto as Exhibit "B" and incorporated herein,
17, By letter dated November 3, 1995, Erie sent the Lubolds
a Reservation of Rights Statement, reserving all of Erie's rights
under the Policy, A true and correct copy of this November 3,
1995, letter is attached hereto as Exhibit "e" and incorporated
herein,
18, On or about January 22, 1997, McNerney initiated an
action arising out of the incident described in paragraphs 8-10,
above, by filing a Writ of Summons against Schroll, Kapp and
!
/0,
- 3 -
Lauck in the Court of Common Pleas of Cumberland County,
Pennsylvania, a true and correct copy of which is attached hereto
as Exhibit "D" and incorporated herein,
IV. AGREEMENT BETWEEN SCHROLL AND ERIE
19, The Policy, under SECTION II-HOME AND FAMILY LIABILITY
PROTECTION, provides in pertinent part:
We will pay all sums up to the amount shown
on the declarations, which anyone we protect
becomes legally obligated to pay as damages
because of bodily injury or property damage
resulting from an occurrence during a policy
period, We will pay for only bodily injury
or property damage covered by this policy,
Extracover Policy, Section II-Home and Family Liability
Protection, Personal Liability Coverage-Our Promise, p, 13
(emphasis in original) ,
20, In the same Section of the Policy, under the heading
WHAT WE DO NOT COVER-EXCLUSIONS, the Policy provides in pertinent
part:
We do not cover under Personal Liability
Coverage and Medical Payments To Others
Coverage:
(1) Bodily injury or property damage
expected or intended by anyone we protect,
Extracover Policy, Section II-Home and Family Liability
Protection, What We Do Not Cover-Exclusion, p, 13 (emphasis in
original) ,
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to provide coverage or a defense to Schroll with respect to any
and all claims asserted against him arising out of his conduct on
or about February 13, 1995, on the Pizza Hut premises,
McNEES, WALLACE & NURICK
BY_~ K~fm~
Attorney I,D, No, 49674
Kathleen A, Wolowski
Attorney I,D, No, 78104
100 Pine Street
p, 0, Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiffs
Dated: March 26, 1997
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........lI."l.... "'"1"'9 I"" """"" (1)
exhibit A
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WHERE TO LOOK IN YOUR POLICY
PAGE
Additional Losses We Will Pay-Section I
Aulolllnlk Gnl'l1ge DOlll' OPI'IH'I' .....,..................,...., H
Coil n pse """',.,"'".""",.",.."""""".,..""""""""",.." H
Credit Cnrd, Chnrge Plnte,
Check 1"llI'ge,'y nnd Counlerfeit
Money Proteclion .............,..........,...........,..,....,..,!)
Debris 1l1'lIIovnl Ane.' Loss ......,...........,..,..........,...., 0
Emergency Ilelllovnlof Pl'Operty ,.......,..,......,..........!J
Fire Depnrtlllent Service Chnrges ..........,............,.. 0
Fh'e Extinguisher Ilcchnrge ....................................0
Lock Ileplncemcnt After Loss .....................,............ 9
Loss Assesslllent (Sections I & 111...........,..............,9
Mechnnicnl Servant and Hobot Protection ,..,.......10
Necessnry Hepairs After Loss .......,......,..,.............10
Non,Owned Hesidences ...,..,................,.............,..,10
Hefrigeraled Products ..,...............,........,..........,..,..10
Temperature Change ....................,.........,.......,.....,10
Trees, Shrubs, Plants and Lawns ,........,......,........10
Agreement "..,..,."..,....""......,....,..,....""..,.."."..,...,..",.3
Amounts of Insurance-Section II ..,..,.....................13
Coverages-Sections I & II
Dwelling Coverage ,........."....,....."..,..,....",..",..,..",.5
Loss of Use Coverage .........,..........,......,........,..........6
Medical Payments To Others Coverage ..............,13
Other Structures Coverage .......................,............,5
Personal Liability Coverage .............,.......,............13
Personal Property Coverage ....,...............................5
Deductible-Section I ,...........,............,..,.............,....,10
Description of Insured Property..,.....,.... Declarations
Perils We Insure Against-Section I .....................,....6
Polley Definitions-Sections I & II ....,..,.....................3
Rights and Duties-Conditions
General Polley Conditions-Section III
Accounting ,..,.....,..,.."........,..",..,....,..,.."..,.."...,...,,17
Assignment ..,...."......",..,.."..,.....,.."..,......,..........,,17
Cancellation ..,..,...........,..".......,....,.."..,...,..".."..".17
Concealment, Fraud, or l\lisrepl'esentation ,........17
Cooperation ,...."..",......",......,..,..""....,....,.."..,......17
How Your Policy !\lay Be Changed ......................,17
PAGE
Nn Contingent Linbility ................,......................., 17
Our Ilight To Ilecover Frolll Othel'8.........,.......,....18
Policy Acceptnnce nnd Cooperntion ..,................... 18
Polky Perind ..................................,..,..,...........,....,18
Priority .."..,',.,.".,."..""".."".,.,..,.",...."..,..".."",,.,18
'l'inll' of Inception ................,..........,.........,..........,..18
Home and Family Liability Protectlon-
Conditions-Section II
Bnnkruptcy of Anyone We Protect ,.......................16
Duties of An Injured Person-
MedicnlPnyments To O\hers Coverage ..........,16
Limits of Protection .......,...................,...................16
Other Insul'l1nce-Personall.iability Covel'llge ,..16
Suit Agninst Us ................,...........,......,.......,..........16
YOUI' Duties After n Loss .....................,.............,..,16
Property Protectlon-Condltlons-Sectlon I
Abandonment of Property ...................,..,........,....,10
Appraisal,.."..."""..,...."....,..""".,..,.."",..,.."....,..,,10
Automatic Adjustment of Coverage Amounts ......10
Erie Option ......................,........,........................,....11
Glass Replacement ......,......,.........,........................11
Increase of Hazard .........,.......................................11
Loss Payment "..,..,..,......................,.."",....,....,......11
Loss Settlement ....,..,..,.....,................,...................11
Loss To a Pair or Sel......,..................,..........,.........12 .
Mortgage Clause ,........,....,..,...............,......,..........,12
No Benefit to Bailee ........,........................,......,......12
Other Insurance ..........,......,..............,....................12
Permission Granted To You ............,....................,12
Recovered Property..,...........................,..........,....., 12
Suit Agninst Us .....,..........,........,.............,.............,12
Your Duties After a Loss ,......................................12
What We Also Pay-Section II
Claim Expenses .....................................................15
Damage To Property of Others ...................,........,15
First Aid Expenses ................................................,15
Loss AssesEment-Personal Liability Coverage ..15
What We Do Not Cover-Excluslons-
Sections I & II
Home and Fnmily Liability Protection ,....,..........,13
Property Protection ,.."....,..................,..,..............,..,8
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ERIE INSUHANCE GHOUl' is proud to present The'
EHlE's Extrucover Policy, This important contruct be.
tween YOU and The EHlE consists of this policy with
coverage ohrrecmcnts,limitotions. exclusions und condi-
!ions, n Declarations, plus nny endorsements, It is
written in plain, simple terms so that it can be easily
understood, We urge YOU to read il.
This policy contains many EXTHA pHOTECTION FEA,
TUHESdevelopedbyThe EHIE. Wherever an "X" appears
inthe margin of this policy, YOU receive EXTHA pHO.
TECTION, either as additional coverage or as a coverage
that is not in most homeowners policies,
The protection given by this policy is in keeping with the
single purpose of our Founders: "To provide YOU with
as near PERFECT PROTECTION, as near PERFECT
SERVICE, as is humanly possible, and to do so at the
LOWEST POSSIBLE COST,"
AGREEMENT
ERIE INSURANCE EXCHANGE ONLY
In return for your timely premium payment, your
compliance with all of the provisions of this policy, and
your signing of a Subscriber's Agreement with Erie
Indemnity Company and other Subscribcrs, we ab'!'ee
to provide the coverages you have purchased. Your
coverages and (amounts of insurance) are shown on the
Declaration., which are part of this policy,
Your signing the Subscriber'. Agreement, which
includes a limited power,of.attorney, permits Erie In.
demnity Company, as Allorney.in,Faet, to mak" recip.
rocal insurance contracts between you and other Sub.
scribers and otherwise manage the business of the Eric
Insurance Exchange. This power.of,allorney applies
only to your insurnnee business otthe Exchange and is
limited to the purposes described in the Subscribcr'.
Agreement,
Your responsibility as a Subscriber is determined by
this policy and the Subscriber'. Agrccmcnt. You ore
lioble for just the policy premiums charged and are not
subject to any other premium liobility under the policy,
This ogreement is made in reliance on the information
you have given us, and is subject to all the terms of this
policy,
This policy, all endorsements toit, and theSubscribcr's
Agreement constitute the entire agreement between
you and us.
ERIE INSURANCE COMPANY ONLY
In return for your timely premium payment and your
compliance with all of the provisions of this policy, we
ab'!'ee to provide the coverages you have purchased,
Your coverages and (amounts of insurance) arc shown
on the Dcclaratlons, which are part of this policy,
This ab'!'eement is made in reliance on the information
you have given us, and is subject to all the terms of this
policy,
This policy and all endorsements to it constitute the
entire agreement between you and us,
APPLICABLE TO ERIE INSURANCE EXC/lANGE
and EmE INSURANCE COMPANY
We promise, upon timely payment of the premium and
compliance with the provisions of this policy and its
endorsements:
(1) To cover you from 12:01 A,M" Standard Time, at
the location oflhe insured properly, on the date
shown on the Declarations as the first day of the
policy period, Coverage will continue in force until
terminated,
(2) To protect you up to the amounts specified in the
policy,
You may not transfer this policy without our consent,
This polky is made and accepted subject to these and
following provisions, including those which may be added
by endorsement.
POLICY DEFINITIONS
Throughout your policy and its endorsements the fol,
lowing words have a special meaning when they appear
in bold type,
"aircraft" means any machine or device capable of
atmospheric night except model airplanes,
"anyone we protect" means you and the following
residents of your household:
X (1) relatives and wards;
(2) other persons in the care of anyone we protect, X
Under /lome ond Family Liabilily Proleclion, anyone
we protect also means:
(3) any person or organization legally reaponsibla for
animals or watercraft which are owned by you, or
any person included in (1) 01'(2), and covered by this
policy, Any person or organization ualng or having
custody ofthese anlmala or watercraft In the course
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of any bushless, or without permission of the
owner is not anyone we protect;
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(41 any person with respect to any vehicle covered by
this policy, Any person using or having custody of
this vehicle in the course of any business use, or
without permission of the owner is not unyone we
protect,
"bodily Injury" means physical harm, sickness or dis,
X ense, including mental anguish, and includes cnre, loss
of services, or resulting death,
Bodily Injury does not include:
(1) nny communicnble disense or condition transmitted
by any insured to any other person through a
parasite, virus, bncteria or any other orgnnism,
(2) the exposure to or transmission of any disease,
parasite, virus, bncteria or other organism by any
insured to any other person,
"business" means any aclivity engaged in os n trude,
profession or occupation, including farming.
"Declarations" means the form which shows your
coverages, amounts of insurance, premium charges nnd
other information. This form is port of your policy, Your
policy is not complete without this form, Thc Dcclara-
tlons may bc revised and updated by 0 form called the
Amended Dee/arations which tben becomes tbe appli-
cable coverage,
"Insured location" means:
(!) the residence premises;
(2) the port of any other premises, other structures,
and grounds acquired by you during the policy
period which you intend to use os 0 residence
premises;
(3) nny premises used by anyone we proteet in
connection with premises included in (1) or (2);
(4) any port ofa non,owned premises:
(0) where anyone we proteet is temporarily re-
siding; or
(b) occasionally rented to anyone we proteet for
non,buslness purposes;
(51 vacant Innd, other than farmland, owned by or
rented to anyone we protect;
(6) land owned by or rented to anyone we protect on
which 0 one or two family residence is being built
for occupancy by anyone we protect;
(7' cemetery plots or burial vaults of anyone we
proteet,
"medleal expense" means reasonable charges for nec'
eSBary medical, surgical, x,ray and dental services, in,
X c1uding prosthetic devices, eyeglasses, contacts, hearing
aids and pharmaceuticals; and also includes ambulance,
X hospital, licensed nursing and funernl services,
"occurrence" means un accident, including continuous
or repeated exposure to the some general harmful con-
ditions,
"property damnge" IIll'UIlH dumage to OJ'IOSH of Ul'lt! of
tangible property, '
"residence employee" meUllH un 1'1l1)Jlo)'t.1(' uf anyone
we protect who performs duties in connection with the
muintennnce or use uftht.' residence premhwH, includ.
ing similnr duti,'s elsl'where, not in connection with the
huslness of anyone we protect,
"residence premises" menns the dWt'lling wlll're you
reside, including the structures and grounds, Ill' thnt
pnrt of any otlwr building where you reside and which
is shown as "residence premisl's" on the Ueclarutions,
ADDITIONAL ERIE INSURANCE
EXCHANGE DEFINITIONS
The following words huve a special meaninll in policies
issued by Erie Insl/rance Exchange whe'1 they uppear in
bold type,
"Subseriber" means the person(s) who signed the
Subscrlher's Agreement,
"Suhscrlher's Agreement" meuns the agreement, in.
c1uding 0 limited power,of,attorney, among the Sub.
scribers and the Erie Indemnity Company, os Attor-
ney,in-Fact,
"We," "us" or "our" means the Subscribers at Erie
Insl/rance Exchange os represented by their common
Attorney-in,Fact, Erie Indemnity Company,
"You," "your" or "Named Insured" means the Sub.
scriber and others named in Item 1 on the Declara.
tions, Except in the GENERAL POLICY CONDITIONS,
these words include the spouse of the Subserlber if a
resident of the some household.
ADDITIONAL ERIE INSURANCE COMPANY
DEFINITIONS
The following words hove 0 special meaning in policies
issued by Eric Insl/rance Company when they appear in
bold type,
"Wc/' "us" or "our" means Erie Insurance Company.
"Y ou,""your" or "Named Insured" means the person(s)
named in Item 1 on the Dee1aratlons, Except in the
GENERAL POLICY CONDITIONS, these words in-
clude your spouse if 0 resident of the some household,
WHEN AND WHERE THIS POLICY APPLIES
This policy applies to losses that occur during the policy
period, The policy period is shown on the Declarations
or Amended Dee/orations,
Section I-Property Protection, This policy applies to
property losses os designated in the specific coverage
and at the location(s) insured under this policy, In
addition, Personal Property is covered while located
anywhere in the world,
Seetio/III-Home and Family Liability Protection, This
policy applies to bodily Injury and property damage
losses occurring anywhere In the world,
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SECTION I-PROPERTY PROTECTION
DWELLING COVERAGE-OUR PROMISE
We will pay for loss to:
(1) Your dwelling lit the residenee premises shown
on the Declarations, Dwelling includes allached
stractures, und building equipment and fixtures
servicing the premises.
(2) Construction materilll utthe residence premises
for use in connection with your dwelling,
This coverllge does not IIpply to IlInd.
OTHER STRUCTURES COVERAGE-
OUR PROMISE
We will pay for loss to:
(1) Other structures at tbe residence premises sepll-
rated from the dwelling, including garages, fences,
shelters, tool sheds or carports,
Structures connected to the dwelling by only II
fence, utility line, or similar connection are consid-
ered to be other structures,
(2) Construction materilll at the residence premises
for use in connection with your other structures.
We do not pay for loss to structures used in whole or in
part for business purposes (except rental or holding for
rental of structures used for private garage purposes),
This coverage does not apply to land.
PERSONAL PROPERTY COVEi'lAGE-
OUR PROMISE
We will pay for loss to:
(1) Personal property owned or used by anyone we
protect anywhere in the world.
(2) At your option, personal property owned by others
while the property is on your residence pre-
mises,
(3) At your option, personal property of:
(a) guests and rcsldence employees while the
property is in a residence occupied by anyone
we protect;
X (b) residence employees away from the resl.
dence premises while actually engaged in
the service of anyone we protect,
X (4) At your option, building additions, alterations,
fixtures, improvements or installations made, or
acquired at your expense, by you to residences
occupied by but not owned by you, for an amount
not exceeding 10'70 of the amount, of insurance
under this coverage, Payment will not increase the
applicable amount of insurance under this policy,
(5) Cemetery property, including monuments, head-
stones, gravemarkers, and urns,
(6) Animllls, birds and fish, but only while on the X
residence premises, for' the following perils co v-
,'red under /"'I'i1.. IVe /l/s"I'e Agail/st: Fire or Light,
I/il/g, IVim/stol'/II or IInil. Exp/o..iol/. SOl/ic nOO/ll,
RiotorCillilCo/llllwtilm, Alreraft, Vehicles. S/IIolie
and Vnl/clnlis/ll or Malicioll,' Mischief.
(7) Electronic apparatus while in or upon u motor X
vehicle or other motol'ized land conveyance, if the
electronic apparutus is equipped to be operated by
power from the electrical system of the vehicle or
conveyance while retaining its capability of being
operated by other sources of power, Electronic ap-
paratus includes cellular phones, fax machines,
radios, tllpe players and accessories used in con-
junction with such apparatus including antennas,
tapes, wires, records, discs or other media,
We do not pay for loss to: X
(1) Land motor vehicles and parts. We do cover ve-
hicles designed to assist the handicapped, and
vehicles used to service the residence premises,
not subject to motor vehicle registration,
(2) Aircraft and parts,
(3) Property rented or held for rental to others away
from the residence premises,
(4) Property of roomers, boarders or tenants not re-
lated to anyone we protect,
(5) (a) Books of account, drawings, or other paper
records; or
(b) electronic data processing tapes, wires, records,
disks, or other software media; containing
business data, However, we do cover the cost
of unexposed or blank records or media,
(6) Radios, tape players and other equipment or de-
vices for the recording, reproduction, receiving or
transmitting of sound or pictures which may be
operated by power from the electrical system of a
land motor vehicle and permanently mounted while
in or upon that vehicle, Accessories to these devices,
inrluding antennas, tapes and records ore not cov-
ered while in or upon a land motor vehicle,
(7) Radar detectors,
(8) Property specifically insured by this or ony other
insurance.
(9) Except os provided under Personal Property Limi,
tations, property pertaining to a business con-
dueled away from the residence premises unless
at the time of loss such property is on the resl.
dence premises, However, we do not cover such
property on the residence premises while it is
stored, held as samples, or held for sale or delivery
after sale.
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l,imitatinns apply to the following personal property, Payment shall be forthe shortest time required to repair ,
These limits do not increase the amount of insurance 0'1' replace the premises or, if you choose, for you to i
under PerHtmal Properly COllt.'rage: pel'lllanently relocate, I
I
Total Amount De.crlptlon or Personal These payments will not exceed 0 12 month period. I
of Insurance Property Subject to We will also pay for your loss of norma I rents resulting I
In Any One Lo.. Limitation.
$ 250 · Animals, birds and fish from the loss, less charges and expenses which do not I t!
continue while the rented port of the residence pre-
X $ 250 . Moaey, bank notes, bullion, numis- mises is uninhabitable, We will pay this loss of norma I I
matic property, gold other than rents only until the rented part is habitable,
gold ware or gold'plated ware, sil- If a loss from a peril covered under Peril,. IVe Insllre i
Vel' other than silverware or silver, Alia ins/ occurs at a neighboring premises, we will pay ,
plated ware, and platinum additional living expenses and loss of normal rents for
X $2000 . Accounts, bills, deeds, evidences of up to two weeks should civil authorities prohibit you
debt, letters of credit, notes other from occupying your premises,
than bank notes, passports, securi- These periods of time are not limited by the expiration of
ties, tickets, stamps and philatelic this policy, I
property No deductible applies to this coverage,
X $2000 . Trailers and campers not other-
wise insured, whether licensed or We will not pay for loss or expense due to the can cella-
not tion of any lease or agreement. \
X $2000 . Watercraft, includingtheirtrailers This coverage also applies to a loss at a covered second-
(whether licensed or notl, furnish- ary location,
ings, equipment and outboard mo- I
tors PERILS WE INSURE AGAINST \
X $2000 . Manuscripts DWELLING AND OTHER STRUCTURES I
$2500 . Property pertaining to a business COVERAGES ~
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actually conducted on the resi- We pay for risks of direct physical loss to property ..
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denee premises, including prop- insured under the Dwelling and OtherStrllctllres Couer- i
erty in storage, held os samples, or age,. except os excluder! or limited herein. I
held for sole or delivery after sole. We do not pay for loss: i
X A $500 limitation applies to any I
business property away from the (1l Involving collapse, other than as provided in Addi- I
residence premises, regardless lianal Losses IVe IVill Pay, (2) Collapse; I
of whether the business is con- (2) Caused by freezing by temperature reduction of a I
ducted on or away from the resi- r
plumbing, heating, air conditioning, or fire protec- I
denee premises, tive system, or of a household appliance, or by
X $3000 . The{l of guns discharge, leakage or overflow from within the
X $3000 . Theft of jewelry, watches, furs, pre- system or appliance caused by freezing, while the
cious and semi-precious stones dwelling is vacant, unoccupied or being constructed,
X $3000 . Theft of silverware, silver-plated There is coverage if you have used reasonable care
ware, gold ware, gold-plated ware to:
and pewterware (a) maintain heat in the building; or
10'70 of Personal' Personal property usually situated (b) shut off the water supply and drain the system
Property at any residence owned or occupied or appliances of water,
Couerage- by anyone we protect other than (3) By freezing, thawing, pressure or weight of water
(but not less a residence premises, Personal or ice, whether driven by wind or not, to a fence,
X than $2000) property in a newly-acquired prin- pavement, patio, swimming pool, foundation, re-
cipal residence is not subject to this taining wall, bulkhead, pier, wharf or dock,
limitation for the 30 days immedi~ (4) Caused by:
ately after you begin to move prop-
erty there, (a) termites, insects, vennin or rodents;
LOSS OF USE COVERAGE-OUR PROMISE (b) mechanical breakdown, deterioration, wear and
tear, marring, inherent vice, latent defect, rust,
If an insured property loss makes your residence smog, wet or dry rot and mold;
premises uninhabitable, we will pay all reasonable (c) contamination; t.
additional living expcnses while you and members of (d) smoke from agricultural smudging or indus-
your household reside elsewhere, trial operations;
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(e)' bulb.jng, crucking, expunsion, settling or shrink-
ingin ceilings, foundutions, noors, patios, p3ve,
ments, roofs or wulls,
Inu) through (e) couse wuterdallluge not otherwise
excluded, from a plumbing, heating, air condition,
ing, or fire protective sY8tem, household appliance,
X wuterbed or uquarium, we cover luss caused by the
water, Coveruge includes the cost oftearingout and
replacing any part ofa building neces8ary tu repuir
the system or appliance, This dues nut include loss
to the defective system or appliance (other than a
waterbed or aquarium) from which the wuter es.
caped,
(5) Caused by weather conditions ifany peril excluded
by this policy contributes ta the loss in nny wny.
(6) Caused by acts or decisions, including the failure to
act or decide, of any per80n, group, organization, or
governmental body if any peril excluded by thi8
policy contributes to the loss in any way.
(7) Caused by, resulting from, contributed to or agb'l"a-
vated by faulty or inadequate
(a) planning, zoning, development;
(b) design, development of specifications, work-
manship, construction;
(c) materials used in construction; or
Cd) maintenance; of property whether on or off the
residence premises by any person, group,
organization,orgovernmental body ifany peril
excluded by this policy contributes to the loss
in any way,
(8) Caused by animals or birds kept by anyone we
protect or kept by a residenee employee of
anyone we protect,
(9) By theft of property from within a dwelling under
construction unless that property has become a
partofthe building, or of materials and supplies for
use in the construction until the dwelling is com-
pleted and occupied,
Under items 0) through (9) any ensuing loss not ex-
cluded is covered.
See Section I-IV"at IVe Do Not Cover-Exclusions for
additional losses excluded,
PERSONAL PROPERTY COVERAGE
We pay for direct physical loss to property insured under
Personal Property Coveroge caused by any of the follow-
ing perils, unless the loss is excluded elsewhere under
this policy:
(1) Fire or Lightning,
(2) Windstorm or Hail,
This does not include:
(a) loss caused by frost, cold weather, ice, snow,
sleet, sand or dust;
(b) loss to property contained in a building, unless
the building is first damaged by the direct force
of wind or hail;
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(c) loss to watercraft (except rowboats and canoes
at an In8ured location) and their trailers,
furnishings, equipment and motors unless in-
8ide a fully enclosed building,
(:ll Explosion,
1-11 Sonic Boom. X
(5) lUot or Civil Commotion,
(6) Aircraft, including missiles and 8pacecraft,
(7) Vehicles,
(8) Smoke, if the loss is sudden and accidental.
This does not include loss caused by smoke from
ab'l"iculturul smudb.jng or industrial operations.
(9) Vandalism or Malicious Mischief,
(10) Theft, including attempted theft and loss of prop- X
erty from a known location when it is likely that the
property has been stolen. We also cover direct loss
of covered personal property by theft while it is
unattended in or on a motor vehicle, truiler, or
watercraft,
This does not include:
(a) theft committed by anyone we protect;
(b) theft of property from within a dwelling under
construction unless that property has become
a part of the building, or of materials and
supplies for use in the construction until the
dwelling is completed and occupied;
(c) theft of property while at another dwelling or
adjacent structures owned by, rented to, or
occupied by anyone we protect unless any.
one we protect is temporurily residing there,
Property of a student we protect is covered X
while at a residence away from home. XX
Theft losses must be promptly reported to us and to
the police,
(11) Falling Objects,
This does not include:
(a) loss to property contained in a building, unless
the falling object first damages the building
exterior;
(b) damage to the falling object,
(2) Weight of Ice, Snow or Sleet,
This does not include loss to personal property
outside the building,
(3) Sudden and aecldental tearing apart, crack.
lng, burning or bulging of a steam or hot
water heating system, an all' conditioning
system, or fire protective system, or an ap;llll.
once for heating water,
This does not cover loss caused by or resulting from
freezing,
(14) Freezlngby temperature reductlonofa plumb-
Ing, heating, all' conditioning, or fire protec.
tlve system, or of a household appliance,
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This docs not include loss on the resldenee pre.
mlses while the dwell in!: is unoccupied unless you
have used reasonable care to:
(al maintain heat in the buildin!:, or
(b) shut ofTthe water supply and drain the Bystem
or appliances of water,
(}5) Accldcntal discharge or overflow of water or
steam from within a plumbing, heating, air
conditioning, or fire protective system, housc-
hold appliance, watcrbed or aquarium.
This docs not include:
(a) loss to the defective system or appliance (other
than a waterbed or aquarium);
(b) loss caused by or resulting from freezin!:;
(c) loss on the residence premises caused by
accidental discharge or overflow which occurs
ofT the residence premises,
(16) Damage due to a sudden and accidental surge
of electrical current,
This does not include loss to tubes, transistors or
similar electronic components,
(17) Volcanic Eruption,
This docs not include loss caused by earthquake,
land shock waves or tremors,
Volcanic eruptions occurring within a 72 hour pe-
riod will be considered one volcanic eruption,
WHAT WE DO NOT COVER-EXCLUSIONS
(Also see specific Exclusions IInder Dwelling and Other
Strllelllre,' Coverages-Perils IVe 1nsllre Again,,/)
We do not pay for loss resulting directly or indirectly
from any oCthe following, even ifotherevents or happen-
ings contributed concurrently, or in sequence, to the
loss:
(1) by earth movement, due to natural or manmade
events, meaning earthquake including land shock
waves, or tremors before, during or after a volcanic
eruption; mine subsidence; landslide; mudslide;
mud flow; earth sinking, rising or shifting, Direct
loss by Fire, Explosion, Sonic Boom, Theft or Break,
age of 01 ass resulting from earth movement, mine
Bubsidence, landslide, mudslide, mud flow, earth
sinking, rising or shifting is covered.
(2) by water damage, meaning:
(a) flood, surface water, waves, tides, tidal waves
or overflow ofa body of water, We do not cover
spray from any of these, whether or not driven
by wind;
(b) water or sewage which backs up through sew-
ers or drains; or
(c) water below the surface of the ground, This
includes water which exerts pressure on, or
flows, Beeps or leaks through any part of a
building or other structure, sidewalk, drive-
way, foundation, or swimming pool.
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We do pay for direct loss that follows, enused by fire,
explosion, sonic boom or theft,
(:ll by power interruption if the interruption tukes
place away from the residence premises, If a loss
from a peril covered under Perils IVe In 811 re Against
happens on the residence premises as a reBult of
a power interruption, we will cover only lOBS cauBed
hy that peril.
(4 1 hy war, whether declared or undeclared, diBcharge
of a nuclear weupon (even if accidental l, hostile or
warlike action in time of peace or war, insurrection,
rebellion, revolution, civil war, usurped power, in-
cluding action taken by !:overnmental authority in
defending against such an occurrence,
(5) hy nuclear action or radiation or radioactive con-
tamination, however caLsed, Nuclear action in-
cludes nuclear reaction, discharge, radiation or
radioactive contamination, whether man-made or
occurring naturally,
LOBS caused by nuclear action is not considered loss
by fire, explosion, sonic boom or smoke,
Ifloss by fire results, we will pay for that resulting
loss,
(6) by radon gas contamination,
(7) by the enforcement of an ordinance or law regulat-
ing the construction, repair or demolition ofa build-
ing or other structure, unless specifically provided
under this policy, We do cover loss caused by
actions of civil authorities to prevent the spread of
a fire caused by a peril covered under Perils IVe
1nsllre Against.
(8) by neglect of anyone we protect to use all reason-
able means to protect covered property at and after
the time of loss or when property is threatened by
a peril covered under Perils IVe 1nsllre Against,
(9) by intentional loss, meaning any loss arising from
an act committed by or at the direction of anyone
we protect with the intent to cause a loss,
ADDITIONAL LOSSES WE WILL PAY X
(1) AUTOMATIC GARAGE DOOR OPENER
We will pay up to $500 for 10SB to personal property,
including the garage door, at the residence premises
resulting from the use or malfunction of an automatic
garage door opener,
(2) COLLAPSE
We will pay for direct physical loss to inBured property
involvingcollapseofa building, or any partofa building,
cauBed only by one or more of the following:
(a) fire or lightning, windBtorm or hail, exploBion,
Bonic boom, riot or civil commotion, aircraft,
vehicleB, vandalism or maliciouB mlBchief,
breakage of glOBS, falling objectB, or weight of
ice, Bnow or Bleet;
(b) hidden decay, or hidden InBect or vermin
damage;
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(e)" weight of people, onimnls, cnntents or equip,
ment;
(d) weight of ruin which collect. on a roof;
(c) use of defective materinls or method. in con-
struction, remodeling, or renovntion irthe col-
lapse occurs during the course of the construc-
tion, remodeling or renovntion,
We will not be Iinble forlossunder(b), (c), (dlor(e)obove
tn the following property unless the loss is a direct result
of the collapse of a building:
X Cloth awnings, fences, pnvements, pntios, swim-
ming pools, underground pipes, flues, drains, cess-
pools, septic tonks, foundntions, retaining walls,
bulkheads, piers, wharves or docks,
Collapse does not include settling, cracking, shrinkage,
bulging or expansion.
Payment will not increase the amount of insurance
applying to the loss,
(3) CREDIT CARD, CHARGE PLATE, CHECK FORG-
ERY & COUNTERFEIT MONEY PROTECTION
X We will pay up to $2500 for the legal obligation of
anyone we protect to pay because of theft, forgery or
unauthorized use of any credit or fund transfer card,
charge plate, check or negotiable instrument issued tOOl'
registered in the name of anyone we protect. We will
also pay for loss each time anyone we protect unknow-
X ingly accepts counterfeit money. No deductible applies,
We require evidence orloss,
We will not pay for:
(a) loss arising from any business;
(b) loss arising from anyone we protect.
When loss is discovered anyone we protect must give
us immediate notice, Irthe loss involves a credit or fund
transfer card or charge plate, anyone we protect must
also give immediate notice to the issuer of the card or
plate, Failure to comply with the terms and conditions of
the card or plate voids this protection,
X Ifa loss occurring during the policy period is discovered
within a year after the policy has been canceled, we will
pay for the loss, If a prior loss is discovered during the
policy period and no other insurance applies, we will pay
for the loss. We have the right to investigate and settle
any claim or suit before making payment. Full payment
of the amount orinsurance ends our obligation under
each claim or suit.
Repeated losses caused by or involving one person are to
be considered one loss.
Ifa claim is made or suit is brought against anyone we
protect for liability under the Credit Card or Charge
Plate Protection, we will provide a defense. The defense
will be at our expense, with a lawyer we choose,
We have the option under the Check Forgery Protection
to defend at our expense anyone we protect or their
bank against a suit for the enforcement of payment.
(4) DEBRIS REMOVAL AFTER LOSS
We will pny the expense for removal of:
(n I debris of covered Jll'Operty following loss under
I'<'ri/" IV" Insure Against;
(b) nsh, dust or pnrticll's from volcnnic eruption
thnt hns ClIused dirf!ct loss to n building or
pl'Operty within n building; or
(c) fnllen trees which cnuse dnmnge to covered
pl'Operty, provided covernge is not nfTorded
elsewhere by this policy,
If the nmount of insurance npplying to the loss i. ex-
hausted, we will pay up to nn ndditional 5~ of the
nmount of insurance applying to the dnmaged property
for relllovnl of debris,
We will also pay up to $500 per occurrence for the
removnl of fnllen trees on the residence premises if
loss is cnused by windstorm, hnil or weight nrice, snow
or sleet even when covered property is not dnmnged,
(5) EMERGENCY REMOVAL OF PROPERTY
We will pny for property dnmaged in any way while
removed from your resldenee premises becnuse of
dnnger from an insured peril. Coverage is limited to a 30-
day period from dnte of removal. Pnyment will not
incrense the amount of insurnnce npplying to the loss,
(6) FIRE DEPARTMENT SERVICE CHARGES X
We will pny all reasonable fire department service
chnrges to save or protect insured property, Payment is
in nddition to the amount of insurance applying to the
loss, No deductible applies,
(7) FIRE EXTINGUISHER RECHARGE
We will pay expenses incurred to recharge portable fire X
extinguishers after they are used to light a fire,
No deductible applies,
(8) LOCK REPLACEMENT AFTER LOSS X
At your request, we will pay up to $250 to replace keys
and locks to the exterior doors of the residence pre.
mises, a8 well as keys and locks to your other property
(autos, boats, etc,), If the keys are stolen during a theft
loss. This coverage does not apply to keys and locks
pertaining to business property, No deductible applies,
We will pay for replacement of automatic garage door X
transmitters when a transmitter has been stolen, Cover-
age is also provided for the cost to reprogram the fre-
quency on additional transmitters and/or the control
unit box,
No deductible applies to the replacement of automatic
garage door transmitters,
(9) LOSS ASSESSMENT
(Applicable to Section I & Section I/. Personal Liability
Coverage Only)
We will reimburse you for an assessment charged against
you as owner or tenant of the residence premises by
an association or corporation of property owners, minus
any other valid and collectible insurance available to the
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osso~iotion .or corporotion covering the some assess-
ment, The assessment must result from an oecurrence
covered under this policy,
Unless otherwise shown on thl' Declllrotlons, our
X omount of insurance for this protection is $5000 per
assessment.
If you ore IIssessed for II covered water loss, we will pay
your shore of the cost of tearing out and replacing any
part of an Insured loclltlon necessary to repair the
system or opplillnce,
The policy deductible IIpplies under Section I only,
We will not pay if the loss is co used by eorthqullke or
IlInd shock wllves or tremors which occur before, during
or after II volconic eruption,
We III so will not pay for IIny lossllssessments chllrged by
o governmentol body,
X (10) MECHANICAL SERVANT AND ROBOT
PROTECTION
We will poyupto $500 forlossto personol property ot the
residence premises coused by malfunction of 0 me-
chonicol servant or robot.
(11) NECESSARY REPAIRS AFTER LOSS
We will poy the reosonable expense for necessory re-
poirs to protect covered property from further damoge
otter loss by 0 peril covered under Perils We Insure
Against, Poyment will not increase the amount ofinsur-
ance applying to the loss,
X (2) NON-OWNED RESIDENCES
We will pay up to $1000 for loss by theft and vandalism
or malicious mischief to residences occupied by but not
owned by anyone we protect,
X (13) REFRIGERATED PRODUCTS
We will pay for loss to the contents of refrigerator or
freezer units on the residence premises from either
power or mechanical failure,
Coverage will be void if the contents ore on the resi-
dence premises for business purposes,
X (14) TEMPERATURE C<lANGE
We will poy for loss to insured personol property result-
ing from chonge of temperature, There must first be
damage done by II peril covered under Perils IVe Insure
Against occurring ot the residence premises, Pay-
ment will not increase the amount ofinsurance applying
to the loss,
(15) TREES, SHRUBS, PLANTS AND LAWNS
We will pay up to an additional 5'70 of the amount of
insurance under Dwelling Coveroge for loss to trees,
shrubs, plants and lawns at the residence premises,
Coverage applies only to loss caused by the following
perils covered under Perils We Insure Against: fire or
lightning, cxplosion, sonic boom, riot or civil commotion,
X aircraft, vehicles, smoke, vandalism or molicious mis-
chief ond theft,
We will not pay for:
. (a) more than $500 on ony one tree, shruborplant;
(h) dllmnge to Inwns by vehicles owned oropernted
by II resident of the residence premises;
(c) trees, shrubs, plnnts or lawns grown for busi-
ness purposes,
DEDUCTIBLE
We will pny for loss minus the deductible shown on the
Dl'clarlltlons. In thl' event of total loss to the Dwelling
from a covered pl'ril, tlw deductible will not apply,
The deductible does not apply to:
(n) Loss of Use Coverage,
(b) Credit Card, Charge Plate, Check Forgery &
Counterfeit Money Protection,
(c) Fire Department Service Charges,
(d) Fire Extinguisher Recharge
(e) Loch Replacement A{ler Los,.
RIGHTS AND DUTIES-CONDITIONS
(1) ABANDONMENT OF PROPERTY
We will not accept abandoned property,
(2) APPRAISAL
If you and we fail to agree on the amount ofloss, either
party may make written demand for an appraisal. Each
party willsclect an 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, lethe appraisers are unable to agree
upon an umpire within 15 days after both appraisers
have been identified, you or we can ask ajudge ofll court
of record in the stllte where your residence premises
is located to seleel an umpire,
The appraisers shall then set the omount ofloss, lethe
appraisers submit a written report of an agreement to
us, the amount agreed upon shall be the amount ofloss,
If they cannot agree, they will submit their differences to
the umpire. A written oward by two will determine the
amount ofloss,
Eoch party will pay the approiser it chooses, and equally
bear expenses for the umpire ond all other expenses of
the opprnisal. However, if the written demond for op-
praisal is made by us, we will poy for the reasonable cost
of your appraiser and your shore of the cost of the
umpire,
We will not be held to have waived ony rights by ony oct
reloted to opproisaJ.
(3) AUTOMATIC ADJUSTMENT OF COVERAGE X
AMOUNTS
This policy provides you with 0 guord ogoinst the effect
of inflation in construction costs, The omount of cover-
oge you hove todoy moy not be enough to rebuild your
home ot 0 loter dote In the event of serious loss,
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We will keep track of costs and at the next policy period.
we will adjust the amount of your building coverage if
necessary, Adjustments in other coverages <other Struc,
tures, Personal Property and Loss of Use) will III so be
made proportionately, Your premium will be adjusted
at ellch policy period to reOect any change in the amount
of insurance,
During the policy period, if there is un increllse in
construction costs and a loss occurs, we willl'eOect the
increase in the amount of insurance before milking
pllyment, There will be no chllrge for this additional
coverage,
However, if for any rellson the amount of insurunce on
your home becomes inadequate or if you made substan-
tial improvements to your home and failed to notify us
to increase the amount of your insurance, the amount of
insurance shown on the Declarations will be the full
amount available should a loss occur,
(4) ERIE OPTION
If we give you written notice within 30 days aller we
receive your signed, sworn statement of loss, we may
repair or replace any part orthe property damaged with
equivalent property,
(5) GLASS REPLACEMENT
Loss to glass caused by a peril covered under Perils We
Insure Against will besettledon the basis of replacement
with safety glazing materials when required by law,
(6) INCREASE OF HAZARD
Unless we agree beforehand, coverage is suspended if
the hazard is substantially increased by any me~ns
within the control or knowledge of anyone we protect,
(7) LOSS PAYMENT
We will settle any claim for loss with you or anyone who
has a legal interest in the property, We will pay within
30 days aller we receive your proof of loss and the
amount orIoss is finally determined by:
(a) agreement between you and us;
(b) an appraisal award; or
(c) a court judgment.
(8) LOSS SETTLEMENT
(a) The following types orlosses will be settled on
an actual cash value basis. This means that we
will deduct for depreciation,
Losses to:
. property insured under Personal Property Coo'
erage
. structures that arc not buildings or carports
. carpeting
. domestic appliances
X . cloth awnings
. outdoor antennas and outdoor equipment,
whether or not attached to buildings
. insured buildings and structures which do not
meet the requirements for a replacement cost
settlement described in Subsections (8Xb) and
(8)(c),
The actual cash value will be determined at the
timeorthe loss, Payment will not exceed theomount
necessary to repair or replace the damaged prop-
erty,
(b) Loss to buildings and carports insured under
Dwelling Cooeroge or Other Structures Cover,
age (except as included ill (u) above) will be
settled by one of the following methods:
1. Replacement costselllement (meaning that
we will not deduct for depreciation);
a, provided the Declarations show that X
the Automatic No,Depreciatioll Sellle,
mellt applies; or
b, if at the time of the loss, the amount of
insurance applying to the insured build-
ing is 80% or more of the full replace-
ment cost of the building immediately
prior to the loss; or
c, irthe cost to repair or replace the dam- X
age to on insured building is both:
1) less than $2500; and
2) less than 5% of the amount of in-
surance on the building,
In making a replacement cost settlement,
we will pay you the cost of repair or
replacement, without deduction fordepre-
ciation, Payment will not exceed the small-
est orthe following amounts:
. the amount of insurance applying to
the building;
. the replacement cost orthat port orthe
building damaged for equivalent con-
struction and use on the some pre-
mises;
. the amount actually and necessarily
spent to repair or replace the damaged
building,
In determining 80% cf the full replace-
ment cost of the building, the value of the
following will be disregarded:
. excavations
. foundations below the basement Ooor
. piers and othersupports below the base-
ment Ooor
. irthere is no basement, the value of all
items below the surface orthe ground
inside the foundation walls,
2. Less thall full replacemellt cost selllemellt,
If full replacement cost settlement docs
not apply, we will pay the larger of the
following amounts, but not exceeding the
amount of insurance under this policy
applying to the building:
a, the actual cash value orthat partorthe
building damaged; or
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b, that proportion of the full cost to repair
or replace the damage which the tot-al
amount of insurance in this policy on the
damaged building bears to 80':, uf the
replacement cost of the building,
(c) We will pay no more than the actual cash value
of the damage until the actual repair or re,
placement is completed, However, when the
loss is both less than $2500 and less than 5~, of
the amount of insurance on the building, we
will pay the full replacement cost before actual
repair or replacement is completed,
(d) You may disregard the replacement cost pro.
vision and make claim for loss or damage to
buildings on an actual cash value basis, How.
ever, you still have the rigbt to make claim,
within 180 days after the loss, for any addi,
tional amounts we will be required to pay
under this Los., Se/tlemen/ provision,
(9) lOSS TO A PAIR OR SET
In case of a loss to a pair or set we msy:
(a) repair or replace any part to restore the pair or
set to its value before the loss; or
(b) pay the difTerence between aelual cash value of
the property before and after the loss,
(0) MORTGAGE CLAUSE
Loss under Dwelling Coverage or O/herS/ructures Coo'
erage shall be payable to mortgagees named on the
Declarations, to the extent of their interest and in the
order of precedence.
Our Duties
We will:
(a) protect the mortgagee's interests in an insured
building, This protection will not be invali.
dated by any act or neglect of anyone we
pro teet, any breach of warranty, increase in
hazard, change of ownership, or foreclosure if
the mortgagee has no knowledge of these
conditions;
X (b) give mortgagee 30 days notice before cancella-
tion or refusal to continue this policy,
Mortgagee's Duties
The mortgagee will:
(a) furnish proof of loss within 60 days if you fail
to do so;
(b) pay upon demand any premium due if you fail
to do so;
(c) notify us of any change of ownership or occu.
pancy or any increase in hazard of which the
mortgagee has knowledge;
(d) give us the right of recovery against any party
liable for loss;
(e) after a loss, permit us to satisfy the mortgage
requirements and receive full transfer of the
mortgage and all securities held as collateral
to the mortgage debt.
Pulicy conditions relating to Appraisal, Los" Payme"t
and Sui/ Agai"st U" apply to the mortgagee.
This mortgagee interest pruvision sholl apply to any
trustee or loss payee nanwd un the Declarations,
(1) NO BENEFITTO BAilEE
This insurance will not in any way benefit any person or
organization who may be coring for or hundling your
property for a fee.
(12) OTHER INSURANCE
If both this insurance and other insurance apply to a
loss, we will pay our share, Our share will be the
proportionate amount that this insurance bears to the
total amount of all applicable insurance, except insur-
ance in the name of on association or corporation of
property owners,
If there is other insurance in the nome of an association
or corporation of property owners covering the same
property covered by this policy, the other insurance
applies first.
(3) PERMISSION GRANTED TO YOU
Coverage applies even when your described dwelling is
vacant or unoccupied, except where limited under Perils
We In"ure Against,
You may make alterations, additions and repairs to
your building, and complete structures under con.
struction,
You may waive your rights to recovery against another
involving the insured property, This must be done in
writing prior to a loss.
(4) RECOVERED PROPERTY
Ifwe have made payment on property which has later
been recovered by you or us, you or we will notify the
other of the recovery, You have a right to the recovered
property, If you elect to have the property, you will
repay us the amount of our payment to you,
(5) SUIT AGAINST US
We may not be sued unless there is full compliance with
all the terms of this policy, Suit must be brought within
one year (V A-2 years, MD-3 years) after the loss or
damage occurs,
(16) YOUR DUTIES AFTER A lOSS
In case ofa covered loss, you must perform the following
duties:
(a) give us or our Agent immediate notice. If a
theft loss, also notify the police;
(b) protect the property from further damage, If
necessary for property protection, make rea-
sonable repairs and keep a record of all repair
costs;
(c) furnish a complete inventory of damaged prop-
erty including quantity, actual cash value and
amount ofloss claimed;
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(d) produce for examinution, with permission to
copy, ull books of uccounts, bills, invoices, re'
ceipts and other vouchers as we may reuson-
ably require;
(e) show us or our representotive the dlllllllged
property, as often us may be reusonably re-
quired;
<0 submit to eXllminations under oath IIl1d sign II
transcript of the sume;
(g) send us, within 60 dllYs after the loss, your
signed and sworn to proof of loss statement
which includes:
1. time and cause of loss;
2. your interest in the property and the
interest of all others involved;
3, any encumbrances on the property;
,I, other policies which may cover the loss;
5, any changes in tille, use, occupuncy or
possession of the properly which occurred
during the policy term;
6. when required by uS,uny pluns, spl'cificu-
tious und estimates for the repuir of the
damaged building;
7, the inventory of dum aged property us pre.
pured in (16) (c);
8. receipts for uny additionllllivingcostsusu
result of the loss, and records ofpertinent
rental loss;
9. in case ofcluim underCmlit Card, Charge
Plate, Check Forgery & Counterfeit Malley
Protectioll, on affidavit stating amount.
time and cause of loss,
SECTION II-HOME AND FAMILY LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE-
OUR PROMISE
We will pay all sums up to the amount showa on the
Declarations, which anyone we protect becomes
legally obligatcd to pay os damages because of bodily
Injury or property damage resulting from on occur.
rence during the policy period, We will pay for only
bodily Injury or property damage covered by this
policy.
We may investigate or settle any claim or suit for
damages against anyone we protect, at our expense,
If anyone we protect is sued for damages because of
bodily Injury or property damage covered by this
policy, we will provide 0 defense with 0 lawyer we
choose, even if the allegations ore not true, We ore not
obligated to pay any claim or judgment or defend any
suit if we hove already used up the amount oCinsurance
by paying 0 judgment or settlement,
MEDICAL PAYMENTS TO OTHERS
COVERAGE-OUR PROMISE
We will pay the necessary medical expenscs incurred
or medically determined within three years from the
dote of on occident causing bodily Injury, This three-
year limitation does not apply to funeral expenses,
This coverage does not apply to you or regular residents
of your household, other than residence employees,
To others, we will pay only in the following situations:
(1) To 0 person on on Insured location with the
permission of anyone we protect; or
(2) To 0 person ofT on Insured location if the bodily
Injury:
(0) arises out of 0 condition on on Insured loco,
tion or adjoining ways;
(b) is caused by the activities of anyone we pro-
tect;
(c) is caused by 0 residence employee in the
course of employment by anyone we protect;
(dl is caused by on animal anyone we protect
owns or is coring for,
Payment under this covcrage is not on admission of
liability by us or anyone we protect,
WHAT WE DO NOT COVER-EXCLUSIONS
PERSONAL LIABILITY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not cover under Personal Liability Coverage and
Medical Payments To Others Coveroge:
(1) Bodily Injury or property damage expected or
intended by anyone we protect,
(2) Bodily Injury or property damage arising out of
business pursuits of anyone we protect,
We do (Over:
(a) activities normally considered non-business;
(bl business pursuits of salespersons, collectors, X
messengers and clerical office workers em-
ployed by others, We do not cover installation,
demonstration and scrvicing operations;
(c) buslnesspursuitsofeducalorswhileemployed X
by others, including corporal punishment of X
pupils;
(d) incidental business activities of anyone we X
protect, These include babysitting, caddying,
lawn core, newspaper delivery and ather simi-
lar activities;,
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X, (c) the ownership of newly'acquired one or two
family dwellings, hut only for 0 period of 30
consecutive days after acquisition unless dc,
scrihed on the Declarations,
(3) Bodily Injury or property damago urisingoutof
the rrntal or holding for rental of the residence
premises hy anyone we protect,
We do cover if the rcsldence premises is:
(0) occasionally rented or held for rental to othcrs
as a rcsidence;
(h) rented or held for reatol in port os a residcnce,
unless for thc accommodation of more than
three roomers or hoarders;
(c) rented or held for rental in port as an office,
school, studiu or privatc garage,
(4) Bodily Injury or propcrty damage arising out of
the rendering or foiling to rcnder professionalser-
vices (other than prufessionalservices rendered hy
educators),
(5) Bodily Injury or property damage arising out of
any prcmises owned hy or rcnted to anyone we
protect which is not on Insured location, This
exclusion docs not apply to bodily Injury to a
residence employee arising out of and in the
course of employment hy anyone we protect,
(6) Bodily Injury or property damage arising out of
the ownership, maintenance or use of:
(a) aircraft;
(b) any land motor vehicle owned or operated byor
rented or loaned to anyone we protect,
We do cover motor vehicles if:
I. used exclusively at on Insurcd location
and not subject to motor vehicle registra-
tion;
2, kept in dead storage at an Insured loca-
tion;
3, a recreational land motor vehicle not dc,
signed for use on public roads while at an
Insured location;
X 4, a golf cart, wherever used or located;
X 5. a lawn or form type vehicle or snowblower,
wherever used or located, ifnotsubjeclto
motor vehicle registration,
(c) watercraft:
X 1. owned by or frequently rented to anyone
we protect if it has inboard or inboard-
outdrive motor power of more than 75
horsepower;
X 2, owned by or frequently rented to anyone
we protect ifit is 0 soiling vessel 26 feet
or more in length; or
3, powered by one or more outboard motors
X with more than 75 total horsepowerowned
by anyone we protect at the beginning
of the policy period,
However, ifanyone we protect acquir~s X
watercraft, regardless of horsepower, cov-
erage upplies during thc policy pcriod, If
the watercraft is acquired within 60 days
of thc end of the policy period, We will
provide coverage for 0 maximum of 60
duys, We hove the right to churge you un
additional premium,
f:xclllsion (6)(cJdoes not apply while the water-
cruft is stored on shore,
E'xclllsitm (6) dues nut apply to bodily Injury to any
residence employee arising out of and in the course of
employment hy anyone we protect,
We do nut pay for liability arising out of the negligent
entrustment of on aircruft, motor vehicle or watercraft
covered under this pulicy,
We also do not cover statutorily imposed vicarious po-
rental liability for the actions ofa child or minor using on
aircraft, motor vehicle or watercraft excluded above.
m Bodily Injury or property damage arising out of
war (declared or undeclared), civil war, insurrec-
tion, rebellion or revolution,
Discharge of a nuclear weapon is considered a
warlike ael even if occidental.
(8) Bodily Injury and property damage which arises
out of or results from a communicable disease or
condition transmitted by anyone we protect to
any other person through a parasite, virus, bacte-
ria or any other organism,
(9) Except os provided in paragraph 2(c) under "What
We Do Not Cover, Personal Liability and Medical
Payments To Other.. Coverage, bodily Injury or
property damage which arises out of the sexual
molestation, corporal punishment or physical or
mental ahuse by anyone we protect.
(10) Bodllylnjury and property damage which arises
outoftheuse, sale, manufacture, delivery, transfer
or possession by any person of a Controlled
Substance(s) os defined by the Federal Food and
Drug Low at 21 U,S,C.A. Sections 811 and 812,
Controlled Substances include but arc not limited
to cocaine, LSD, marijuana and all narcotic drugs,
However, this exclusion docs not apply to the legiti-
mate use of prescription drugs by a person follow-
ing the orders of a licensed physician,
(11) Bodily Injury and property damage which arises
out of the discharge, disposal, release or escape of:
(0) vapors, fumes, acids, toxic chemicals, toxic
liquids or toxic gasses;
(b) waste materials or other irritants, contami-
nants or pollutants,
We do not cover under Personal Liability Coverage:
(1) Liability assumed under any oral contract or agree-
ment, or by contract or agreement in connection
with any business of anyone we protect,
14
(2) liability for your share of any loss assessment.
cbarned against 011 members of an association or
corporntion of property owners, This exclusioa docs
not apply toAde/iliollal Losses IVe lViI/Pay, (9) Loss
A,,"cssmelll, Sectioll I of this policy,
(3) Property damage to property owned by anyone
we proteet,
(4) Property damage to property rented to, occupied
or used by, or in the core of anyone we proteet,
This exclusion docs not apply to property damage
caused by fire, explosion, sonic boom or smoke, or by
X accidental discharge of water from 0 waterbed or
aquarium,
(5) Bodily Injury to any person eligible to receive any
benefits required to be provided or voluntarily
provided by anyone we protect under any work.
ers' compensation or occupational disease low,
(6) Bodily Injury or property damage for which
anyone we protect is covered under any nuclear
energy liability policy, or would be covered if its
amounts ofinsurnnce hod not been exhausted,
Under MedicalPaymenls To Olhers Coverage we do not
cover:
(1) Bodily Injury to a residence employee if it
occurs ofT an Insured location and docs not arise
outofor in the course of employment by anyone we
protect,
(2) Bodily Injury to any person eligible to receive any
benefits required to be provided or voluntarily
provided under any workers' compensation or occu-
pational disease low,
(3) Bodily Injury from any nuclear reaction, radio.
tion or radioactive contamination, or any conse-
quence of any of these,
WHAT WE ALSO PAY
Payment for the following is in addition to the amounts
of insurance shown on the Declarations.
(1) CLAIM EXPENSES
We pay:
(0) all exp'enses we incur and all costs against
anyone we protect in a suit we defend;
(b) premiums on bonds in 0 suit we defend, but not
for bond amounts greater than the limit for
Persollal Liability Coveroge, We will also pay
X up to $500 for each bail bond required ofany-
one we protect because of an occident or
traffic violation arising out of the use of a
vehicle covered by this policy, We have no
obligation to apply for or furnish bonds;
X (c) reasonable lawyers' fees up to $50 that any-
one we protect incurs because of arrest re-
sulting from an accident involving 0 vehicle
covered by this policy;
(d) reasonable expenses incurred by anyone we
protect at our request. This includes actual
loss of earnings (but not loss of other income)
and vacation time or other henefit loss up to
$100 perduy for helping us in the investigation X
or defense of any claim or suit;
(c) 011 interest on the full amountofany judgment
on a suit we defend until we ofTer or deposit in
court the amount for which we arc liable;
(f) prejudgment interest awarded on the amount
of the judgment we pay, Ifwe ofTer to pay the
applicable amount of insurance, we will not
pay any prejudgment interest for the period of
time after the ofTer,
(2) DAMAGE TO PROPERTY OF OTHERS
We pay, on 0 replacement cost basis, up to $1000 per X
occurrence for property damage to property of others
caused by anyone we protect. This coverage also X
applies to property of others in the possession of anyone
we protect,
We will not pay for property damage:
(a) to the extent of any amount recoverable under
Seclioll I of this policy;
(b) caused intentionally by anyone we protect
who has attained the age of 13;
(c) to property owned by anyone we protect;
(d) to property owned by or rented to a tenant of
anyone we protect or a resident of your
household;
(e) arising out of:
1. an oct or omission in connection with a
premises (other than on Insured loea-
tlon) owned, rented or controlled by any-
one we protect;
2, business pursuits; or
3, ownership, maintenance or use ofa motor
vehicle, aircraft or watercraft, We will
pay for property damage to a land motor
vehicle designed for recreational use ofT
public roads while in the possession of or
caused by anyone we protect if:
a, not subject to motor vehicle registra-
tion,and
b. not owned by anyone we protect,
(3) FIRST AID EXPENSES
We pay reasonable expenses for first aid to other persons
and animals at the time of an accident involving anyone X
we protect.
(4) LOSS ASSESSMENT-PERSONAL LIABILITY
COVERAGE
See Loss Asses"melll, parngraph (9), Section I, Addi,
liollal Losses IVe IVill Pay,
15
RIGHTS AND DUTIES-CONDITIONS
(I) BANKRUPTCY OF ANYONE WE PROTECT
Bankruptcy or insolvency of anyone we protect
or anyone we protect's estate will not relieve U8
of any of our obligations under this policy.
(2) DUTIES OF AN INJURED PERSON-MEDICAL
PAYMENTS TO OTHERS COVERAGE
The injured person or someone ucting on bebulf of
thut person will:
(a) give us written proof of c1uim, as soon us
possible, under oath if required;
(b) sign papers at our request to allow us to obtuin
medical reports and copies of records,
The injured person will submit to mentulund physi.
cui examination by doctors selected by us as often
as reasoaably required, We may pay the injured
person or the provider of the services,
(3) LIMITS OF PROTECTION
This insurance applies separately to anyone we pro-
tect, Regardless of the number of people we protect,
claims made or persons injured, our total liability under
Personal Liability Coverage for damages resulting from
one occurrence will not exceed the amount shown on the
Declarations, All bodily Injury and property dam.
age resulting from one accident or from continuous or
repeuted exposure to the sam'e general conditions is
considered the result of one occurrence,
Our total liability under Medical Payment,. To Others
Coverage for all medical expense payable for bodily
Injury to anyone person will not exceed the "Euch
Person" amount shown on the Declarations,
(4) OTHER INSURANCE-PERSONAL LIABILITY
COVERAGE
This insurance is excess over any other valid und collect.
ible insurance, However, if the other insurnnce is specifi.
cally written as excess insurance over this policy, the
limits of this policy apply first.
Ifat the time orloss there is other insurance in the name
of an association or corporation of property owners
covering the same property covered by this policy, the
insurance afforded by this policy shall be excess over the
amount recoverable under such other insurance,
..--
i5) SUIT AGAINST US
The terms of this policy must be complied with before
suit mny be hrought ugainst us,
The Icgul linhility of anyone we protect must be
dctl'rmincd bcfore suit under Personal Liability Cover,
ng,- lllny bl! hrought ugainst us, This dcterminntion muy
be hy n court oflnw or hy written ngreement ofull parties,
including U8.
No one has the right to make U8 n purty to u suit tu
determine the Iiubility of anyone we protect.
(6) YOUR DUTIES AFTER A LOSS
When there is nn accident or occurrence anyone
we protect will:
(a) notify us or our Agent, in writing, ns soon as
possihle, stating:
1. your name and policy number;
2, the time, place, nnd circumstnnces of the
nccident or occurrence;
3, numes nnd addresses of injured persons
and witnesses;
(b) send us promptly any papers that relate to the
accident or occurrence;
(c) at our reqnest:
1. assist in making settlement;
2, help us enforce any right or'recovery
aguinst any party liable to anyone we
protect; .
3, assist in the conducL of suits;
4, attend hearings and trials;
5, secure and give evidence and obtain the
attendance of witnesses.
(d) under the coverage Damage To Property Or
Others, send us, within 60 days of the loss,
sworn proof orloss, Anyone we protect shall
also exhibit the damaged property if within
their control.
Anyone we protect will not, except at one's own cost,
make payments, assume obligations or incur expenses,
other than for first old to other persons and animals at
the time of the bodily Injury,
,"!
16
SECTION III-RIGHTS AND DUTIES-GENERAL POLICY CONDITIONS
We, you and anyone else protected by this policy must
do certnin things in order for the terllls of the policy to
npply,
(I) ACCOUNTING (Erie Insl/ranre Exchange Only)
X Erie Indemnity Company may keep up to 25~f of the
premium written or assumed by Erie Insurance Ex-
change as compensation for (A) becoming and ocling ns
Attorney-in-Fact, CD) mnnoging the business and ntTnirs
of Erie Insurnnce Exchange, its affiliates and subsidinr-
ies, and (C) paying general administrative expenses,
including soles commissions, salaries and employee
benefits, taxes, rent, depreciation, supplies and dnta
processing,
The rest of the premium will be placed on the booksofthe
Erie Insurance Exchange. We will deposit or invest this
nmount ns permitted by Inw, This amount will be used
to pay losseR, loss ndjustment expenses, investment
expenses, damages, legal expenses, court costs, taxes,
assessments, licenses, fees, and other governmental
fines and charges, establishment of reserves nnd sur-
plus, and reinsurance, and may be used for dividends
and other purposes Erie Indemnity Company decides
ore to the advantage of the Subscribers.
(2) ASSIGNMENT
Interest in this policy may be transferred only with our
written consent.
If you die, the policy will cover:
(0) anyone we protect who is a member of your
household at the time of your death, but only
while 0 resident of the residence premises;
(b) anyone having lawful possession of insured
property until a representative is appointed,
but only until the end of the policy period
during which your death occurs;
(c) your legal representative, but only while per-
forming duties os your representative and
only until the end of the policy period during
which your death occurs,
(3) CANCELLATION
Your Right to Cancel
You may cancel this policy by moiling or delivering to
our Agent or us written notice stating at what future
dote you want the cancellation to toke etTect. We may
waive these requirements by confirming the date of
cancellation to you in writing,
Our Right to Cancel or Reluse to Continue
We may cancel or refuse to continue this policy by
mailing you written notice stating the etTective date of
our action. Our oclion will comply with the laws of the
state in which your residence premises is located, We
reserve the right to cancel for your noncomplinnce with
our premium payment plans, We do not waive our right
to enncel, even if we have nccepted prior Inte payments.
Our cnncellntion or refusnl to continue this policy will
not tnke etTect untilnt lenst30 doys(Mnryland-45 dnys
except for non-paynwnt of premium) after we send it.
Method 01 Giving Notice
Mailing notice to the nddrl'ss shown on the Declara,
tlons will be suflicient proof of notice, The policy period
will end on the dnte nnd time stnted in the notice,
Return of Premium
If your policy is canceled by you or us, we will return
the pro rata unused shore of your premium, Cancella-
tion will bl! etTective even if we have not given or otTered
any return premium,
(4) CONCEALMENT, FRAUD OR
MISREPRESENTATION
This entire policy is void if, before or after a loss, anyone
we protect has intentionnlly concealed, or misrepre-
sented, any moterinl fact or circumstance concerning
this insurance.
In the event of a fraudulent clnim, we will not make
payment for the loss,
(5) COOPERATION
You agree to coopernte with us by:
(0) truthfully completing and promptly returning
questionnaires and audit forms about this in-
surnnce;
(b) permitting and helping with inspections and
audits; and
(c) complying with specific recommendations to
improve your risk,
(6) HOW YOUR POLICY MAY BE CHANGED
This policy conforms to the laws of the state in which
your residence premises is located, If the laws of the
state change, this policy will comply with those changes.
You may change your policy by asking us, Your re-
quest must contoin enough information to identify you.
Asking our Agent is the some as asking us, Ifwe agree
with your request, we will then issue an Amended
Declarations,
We will give you the benefit of any change in coverage
mode by us, if it docs not require additional premium,
This change will be etTective as of the date we implement
the change for you in your state,
If the information we use to determine the premium for
your coverage(s) changes during the policy period, we
may adjust your premium, Premium adjustments will
be mode using rules and rates in etTect for our use,
(7) NO CONTINGENT LIABILITY
(Erie Insl/rance Exchange Only)
You will not be assessed for the losses of Subscribers,
17
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COZEN AND O'CONNOR
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ATLANTA, Oil.
THC ATRIUM
CHARLOTTE, He
'.00 MARlte' '''tEU
Loa ANOELES, CA
PI-4ILADELPHIA, PA lalOJ
NEW VORM, NV
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SAN DIEDO, CA
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SCATTLE, WA
JEFFREY A. .TON~R
weSTMONT, N.J
cune' DIAL (III, .....1'.
November 3, 1995
Attention: Claims Department
Erie Insurance Group
P. O. Box 2013
Mechanicsburg, PA 17055
Re:
Your Insured:
Policy No.:
Date of Loss:
Our Client:
Sheryl Lubold
Q560802592H
2/13/95
st. Paul Fire & Marine Insurance Co.
as SUbrogee of Pizza Hut of Uniontown
51303
Our File:
Dear Sir/Madam:
Please be advised that I am the attorney representing the
subrogation interest of st. Paul, who insured a Pizza Hut that was
destroyed by fire on February 13, 1995. SUbsequent investigation
has determined that your insured's son, Brandon Schroll, who was
living with your insured at the time of this incident, was involved
in activity that eventually led to this fire. The fire caused
$122,985.00 worth of insured damage, along with approximately
$26,000.00 worth of uninsured damage. Please be advised that I
will be seeking compensation for these damages from Mr. Schroll.
Upon receipt of this correspondence, I would appreciate
being contacted by the claims adjUster responsible for handling
this file, in order to determine your claim number, policy limits,
and any additional information you may need regarding this claim.
I am further enClosing a copy of the letter that I forwarded to Mr,
Schroll, putting him on notice of this claim.
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November 3, 1995
Page 2
matter.
I look forward to working with you in resolving this
Very truly yours,
JRS/cl
Enclosure
cc: Jerry Nolan
st. Paul Fire & Marine Ins. Co.
Claim No.: RR06611058-37B002
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Thomas J. Lubold and
Cheryl A. Lubold
330 Hillcrest Drive
New Cumberland, PA 17070-3034
CERTIFIED HAIL
RETURN RECEIPT REQUESTED
November 3, 1995
Our Claim No.:
Policy No.:
Date of Loss:
(=",\........
.010170191608
Q56 0802592
2-13-95
Dear Mr. and Mrs. Lubold:
Attached is our Reservation of Rights statement, We have issued
this document because of the question of coverage described within
the Reservation of Rights. If you have any questions concerning
the Reservation of Rights, I suggest you consult with an attorney.
Sincerely,
Linda D. KUhl, AIC
Claims Supervisor
LK/dlk
Enclosure/Reservation of Rights
cc: File
cc: Farnham Insurance Agency
507 North York Street
P. O. Box 2470
Mechanicsburg, PA 17055
R-2
1"1
~ ERIE INSURANCE GROUP
~ TIle ERIE Is Above Allin SERViCE. ' S,ncc 1925
ERIE,
"
CERTIFIED HAIL
RETURN RECEIPT REQUESTED
010170191608
RESERVATION OF RIGlrrS
This reservation of rights submitted to Thomas J. Lubold and
Cheryl A. LUbold, hereinafter called insured, by ERIE Insurance
Group, hereinafter the company, which has heretofore issued to the
insured its policy number Q56 0802592 H, that any action taken by
the company in investigating that certain occurrence alleged to
have occurred on the 13th day of February, 1995, and all taots
pertaining thereto including the cause, injuries, loss and
damages, shall not in any way change, waive, invalidate or forfeit
any uf the terms, conditions and requirements of said policy; and
in the event any suit has been or shall be filed against the
insured growing out of said accident, should the company elect to
defend suit or participate therein, said defense or participation
therein by it shall not be construed to change, waive, invalidate
or forfeit any of the terms and conditions of said policy or any
of its rights thereunder. No act of the company done by way of
said investigation or defense shall be construed as an admission
of coverage under said policy. The specific reason for this
reservation of rights is:
Our initial report of this incident indicates that vour son is
apparentlY beinq implicated in an arson case.
Please refer to
paqe 13 of vour HomeProtector Extracover Policv and YOU will note
under the caption "What We Do Not Cover - Exclusions, Personal
Liabilitv Coveraqe and Medical PaYments to Others Coveraqe: We do
not cover under Personal Liabilitv Coveraqeand Medical PaYments
to Others Coveraqe: (11 bodilY iniurv or propertv damaqe expeoted
or intended bY anvone we protect".
Finallv. the company will
avail itself of anv other policy defenses which mav arise.
~
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CERTIFIED HAIL
RETURN RECEIPl' REQUESTED
01017019160B
,
RESERVATION OF RIGlrrS
This reservation of rights submitted to Thomas J. Lubold and
Cheryl A. Lubold, hereinatter called insured, by ERIE Insurance
Group, hereinafter the company, which has heretofore issued to the
insured its polioy number Q56 0802592 H, that any action taken by
the company in investigating that certain occurrence alleged to
have occurred on the 13th day of February, 1995, and all facts
pertaining thereto including the cause, injuries, loss and
damages, shall not in any way change, waive, invalidate or forfeit
any of the terms, conditions and requirements of said policy; and
in the event any suit has been or shall be filed against the
insured growing out of said accident, should the company elect to
defend suit or participate therein, said defense or participation
therein by it shall not be construed to change, waive, invalidate
or forfeit any of the terms and conditions of said policy or any
of its rights thereunder. No act of the company done by way of
said investigation or defense shall be construed as an admission
of coverage under said policy. The specific reason for this
reservation of rights is:
Our initial report of this incident indicates that vour son is
apparentlv beinq implicated in an arson case,
Please refer to
paqe 13 of vour HomeProtector Extracover policv and vou will note
under the caption "What We Do Not Cover - Exclusions. Personal
Liabilitv Coveraqe and Medical PaYments to Others Coveraqe: We do
not cover under Personal Liabilitv Coveraqe and Medical pa'ments
to Others Coveraqe: (1\ bodilv iniurv or nronertv damaqe expected
or intended bv anvone we nrotect".
Finallv. the companv will
avail itself of anv other nolicv defenses which mav arise.
w-
SUMMONS IN CIVIL ACTION
TO: BRANDON K, SCHROLL
330 Hillcrest Drive
New Cumberland, PA 17070
TYLER KAPP
217 Geary Avenue
New Cumberland, PA 17070
JAMES LAUCK
513 Marsh Run Road
New Cumberland. PA 17070
You are notified that the Plaintiff(s) bas/have commenced
you,
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SEAL OF
THE
COURT
DolO'6u- n. 19n
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by:
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~p 2G 1997
ERIE INSURANCE EXCHANGE
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
L
v,
No,: 97-1583
JAMES B, MCNERNEY, SR" BRANDON
K, SCHROLL, TYLER KAPP
and JAMES LAUCK
CIVIL ACTION
Defendants
DEFENDANT, JAMES B. McNERNEY, SR.'S RESPONSE IN
OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY U GMEN
Defendant, James B, McNerney, Sr" by his undersigned attorney, hereby responds
in opposition to plaintiff, Erie Insurance Exchange's Motion for Summary Judgment as
follows:
1, Admitted,
2, Admitted,
3, Admitted and denied, Admitted that Schroll and Lauck set fire to a couch
which was located in the back of the building; denied that this couch was in contact with
the exterior of the building, While it is further admitted that the roof eaves of the building
extended over the rear of the building in the area where the sofa was located, it is denied
that Schroll was aware of the existence of the roof eaves over the sofa at the time the fire
was set on the couch,
4, Admitted, By way of further answer, defendant Schroll testified that he
undertook extensive efforts to make certain that the fire on the couch was completely
.. .
extinguished, including patting out the flames, and dousing the sofa cushion with
approximately a quart of soda,
5, Admitted,
6, Admitted and denied, Admitted that Schroll entered a guilty plea to "arson
endangering property"; denied that Schroll pled guilty to intentionally burning the Pizza Hut
building, To the contrary, at all times Schroll has consistently denied intentionally burning
the Pizza Hut building, See Exhibit "e" to McNerney's Memorandum of Law in Support of
Summary Judgment at 4, and Exhibit "D" at 2-3,
7, Admitted,
8, Admitted,
9, Admitted,
10, Admitted,
11. Admitted,
12, Admitted upon information and belief,
13, Admitted,
14, Admitted and denied, Admitted that Erie contends that Schroll's conduct in
setting the couch on fire is not an "occurrence" as defined by the policy, relieving Erie of
its duty to defend and indemnify Schroll under the policy; denied that this contention is
either legally or factually correct.
15, Admitted that Erie contends that the property damage to the building arising
from this fire was "expected or intended" by Schroll, and that Erie therefore would not have
a duty to defend and indemnify Schroll under the policy; denied that property damage to
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten am subnitted in duplicate)
Please list the within matter for the next Argunent Court.
.
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TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
--------------------------------------------------~------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
ERIE INSURANCE EXCHANGE,
,
~
( Plaintiff)
vs.
JAMES B. McNERNEY,
BRANDON K. SCHROLL,
TYLER KAPP and AMES LAUCK,
(Defendant)
No.
97
Civil 1583
19
1. State matter to be argued (i.e., plaintiff's ITDtion for new trial, defendant's
demu:rer to ccmplaint, etc.): Plaintiff I s and Defendant James B.
McNerney's Cross Motions for Summary Judgment
2.
Identify counsel who will argue case:
Harvey Freedenberg
Kathleen A. Wolowski
McNees Wallace & Nurick
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108
Jeffrey R, Stoner
Cozen and Connor
The Atrium
1900 Market Street
I will notify all parti~hMWrtlrl\~i~thll\ tJ,9~s that this case has
been listed for argunent.
(a)
for plaintiff:
Address:
(b)
for defendant:
Address:
J.
4 . Argunent Court Date:
October 1, 1997
t-tlrI:1'i,' ,{.i' /(,1.'" ,Jti.
Attorney for Plaintiff
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ERIE INSURANCE EXCHANGE,
Plaintiff
v,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 97-1583
JAMES B, McNERNEY, SR"
BRANDON K, SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
PLAINTIFF ERIE INSURANCE EXCHANGE'S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Erie Insurance Exchange, by its attorneys, McNees,
Wallace & Nurick, hereby moves the Court to enter summary
judgment in its favor, and in support of said Motion states as
follows:
1, Plaintiff Erie Insurance Exchange ("Erie") instituted
this declaratory judgment action to determine whether Erie has a
duty to defend and indemnify Brandon K, Schroll ("Schroll") under
the provisions of his parents' homeowner's policy in connection
with a fire which resulted in extensive damage to a vacant Pizza
Hut building,
2, On February 13, 1995, Schroll, Tyler Kapp ("Kapp") and
James Lauck ("Lauck") entered the parking lot of a vacant Pizza
Hut located at 2025 Carlisle Road, Camp Hill, Pennsylvania,
3 , Schroll and Lauck set fire to a couch which was up
against the back of the building, The roof eaves of the building
extended over the area where the couch was located,
4 , Schroll, Kapp and Lauck attempted to put the fire out
but the couch continued to reignite, When they believed the fire
was out they left the premises where the Pizza Hut building was
located.
5. After Schroll, Kapp and Lauck left the premises, the
couch again reignited, and the resulting fire caused extensive
damage to the Pizza Hut building.
6. As a result of his involvement with the aforesaid fire,
Schroll pled guilty to "arson endangering property," a second
degree felony under 18 Pa. C.S.A. ~3301(c).
7. On or about February 13, 1995, Erie insured Thomas J.
Lubold and Cheryl A. Lubold ("Lubolds") under a Homeowner's
Policy, No. Q56 0802592 H, ("Policy"), a true and correct copy of
which is attached hereto as Exhibit "A" and incorporated herein
by reference.
8. On or about February 13, 1995, Schroll, the Lubolds'
son, resided in the Lubolds' home and therefore was an insured
under the Policy.
9. Defendant James B. McNerney ('McNerney"), the owner of
the Pizza Hut building, through his counsel, has informed Erie
that as a result of Schroll's conduct on February 13, 1995, fire
destroyed the Pizza Hut.
10. McNerney, through his counsel, has contended that Erie
is obliged to defend and indemnify Schroll for his alleged
liability for the property damage to the Pizza Hut.
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11. By letter dated November 3, 1995, McNerney's counsel
notified Erie of the claim against its insured, Schroll. A true
and correct copy of the November 3, 1995 letter is attached
hereto as Exhibit "B" and incorporated herein by reference.
12. By letter dated November 3, 1995, Erie sent the Lubolds
a Reservation of Rights Statement, reserving all of Erie's rights
under the Policy. A true and correct copy of this November 3,
1995, letter is attached hereto as Exhibit "C" and incorporated
herein by reference.
13. On January 22, 1997, McNerney initiated an action
arising out of the incident described in paragraphs 2-5, above,
by filing a Writ of Summons against Schroll, Kapp and Lauck in
the Court of Common Pleas of cumberland County, Pennsylvania. A
true and correct copy of the Writ of Summons is attached hereto
as Exhibit "D" and incorporated herein by reference.
14. Erie contends that Schroll's conduct in setting the
couch on fire, which resulted in the destruction of the Pizza
Hut, is not an "occurrence" as defined by the Policy, and
therefore, Erie does not have a duty to defend and indemnify
Schroll under the provisions of the Policy.
15. In addition, Erie contends that any property damage to
the Pizza Hut building arising from the fire was "expected or
intended" by Schroll, and therefore, providing insurance coverage
for Schroll's intentional conduct would violate the public policy
-3-
of this Commonwealth. Thus, Erie argues that it does not have a
duty to defend and indemnify Schroll under the provisions of the
Policy.
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16. Schroll's guilty plea to 'arson endangering property", a
second degree felony under 18 Pa. C.S.A. ~3301(c), conclusively
establishes that Schroll intentionally started a fire, and
therefore, Defendants in this action are collaterally estopped
from relitigating the issue of Schroll's intent.
WHEREFORE, Plaintiff Erie Insurance Exchange respectfully
requests that the Court grant its motion for summary judgment,
and declare that Plaintiff Erie Insurance Exchange is not
obligated to provide coverage or a defense to Brandon K. Schroll
.,
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with respect to any and all claims asserted against him arising
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out of his conduct on or abo~t February 13, 1995, on the Pizza
McNEES, WALLACE & NURICK
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Hut premises.
By
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"I,); dL'//?.' (I I'/nut'h'.,
Harvey Freedenberg
Attorney I.D. No. 23152
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
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Attorneys for Plaintiff
Dated: 'Illo/'n
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PAGE
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WHE:rtE TO LOOK IN YOUR POL'CY
PAGE
Additional Losses We Will Pay-Section I
Automatic Garage Door Opener .............................. S
Collapse ...... .................. ...... ............ ............ .............. S
Creuit Caru, Charge Plate,
Check Forgery and Counterfeit
Money Protection ................................................9
Debris Removal After Loss ......................................9
Emergency Removal of Property............................. 9
Fire Department Service Charges .......................... 9
Fire Extinguisher R~charge .................................... 9
Lock Replacement After Loss ..................................9
l.oss Assessment (Sections I & I!) ........................... 9
Mechanical Servant and Robot Protection ........... 10
Necessary Repairs After Loss ...............................10
Non-Owned Residences .........................................10
Refrigerated Products ............................................10
Temperature Change .............................................10
Trees, Shrubs, Plants and Lawns ........................10
Ag reement .................................................................... 3
Amounts of Insurance-Section II ...........................13
Coverages-Sections) & II
Dwelling Coverage ...................................................5
Loss of Use Coverage ...............................................6
~Iedical Payments To Others Coverage ...............13
Other Structures Coverage ..................................... 5
Personal Liability Coverage ..................................13
Personal Property Coverage .................................... 5
Deductible-Section I ................................................10
Description of Insured Property............. Declarations
Perils We Insure Against-Section I ..........................6
Polley Definitions-Sections I & II .............................3
Rights and Duties-Conditions
General Polley Conditions-Section III
Accounting ..............................................................17
Assignment ............................................................17
Cancel I a tio n ........................................................... 17
Concealment, Fraud, or :\lisrepresentation .........17
Cooperation ............................................................17
How Your Policy :\Iay Be Changed .......................17
No Contingent Liability .........................................17
Our Hight To Hecover From Others ......................18
Policy Acceptance and Cooperation ......................18
Policy Period ..........................................................18
Priority ...................................................................18
Time of Inception ...................................................18
Home and Family Liability Protectlon-
Condlllons-Sectlon II
Bankruptcy of Anyone We Protect ........................16
Duties of An Injured Person-
Medical Payments To O\hers Co\'erage ...........16
Limits of Protection ...............................................16
Other Insurance-Personal Liability Co\'emge ...16
Suit Against Us ......................................................16
Your Duties After a Loss .......................................16
Property Protection-CondItions-Section I
Abandonment of Property .....................................10
Appraisal ................................................................10
Automatic Adjustment of Coverage Amounts ......10
Erie Option .............................................................11
Glass Replacement ................................................11
Increase of Hazard .................................................11
Loss Payment .........................................................11
Loss Settlement .....................................................11
Loss To a Pair or Set.............................................. 12 .
~Iortgage Clause ....................................................12
No Benefit to Bailee ...............................................12
Other Insurance .....................................................12
Permission Granted To You ..................................12
Recovered Property ................................................12
Suit Against Us ......................................................12
Your Duties After a Loss .......................................12
What We Also Pay-Section II
Claim Expenses .....................................................15
Damage To Property of Others .............................15
First Aid Expenses .................................................15
Loss Assessment-Personal Liability Coverage ..15
What We Do Not Cover-Excluslons-
Sections I & II
Home and Family Liability Protection .................13
Property Protection .................................................. 8
2
EHlE INSURANCE GHOUl' h prouu to present The
ERIE's Extracover Policy. This important contract be.
tween YOU anu The ERlIo: consists of this policy with
coverage ob'1'eemcnls, limitations, exclusions and condi.
tions, n Dcclul'utions, plus any endorsements. It i:i
written in plain, simple tel'll" so that it can he easily
understood. We U1'ge YOU to read it.
This policy contain~ many EXTRA I'HOTECTION FEA.
TUHES developeu byThe Imm. Wherever an "X" appears
in the margin of this policy, YOU receive EXTRA PRO-
TECTION, either as auditional coverage or as a coverage
that is not in mo,t honwowners policies.
The protection given by this policy is in keeping with the
single purpose of om' Founders: "To provide YOU with
as near PERFECT I'HOTECTION, ns near PERFECT
SEHVICE, as is humanly possible, and to do 50 at the
LOWEST POSSIBLE COST."
AGREl::MENT
ERIE INSURANCE EXCHANGE ONLY
In return for your timely premium payment, your
compliance with all of the provisions of this policy, and
your signing ofa Subscriber's Ab....eement with Eric
Indemnity Company and other Subscribers, we agree
to provide the coverages you have purchased. YOUI'
coverages and (amounts of insurance) arc shown on the
Declarations, which arc part of this policy.
Your signing the Subscriber's Agreement, which
includes a limited power.of-attorney, permits Eric In-
demnity Company, as Attorney-in.Fact, to make recip-
rocal insurance contracts between you and other Sub-
scribers and otherwise manage the business of the Eric
Insurance Exchange. This power.of.attorney applies
only to your insurance business at the Exchange and is
limited to the purposes described in the Subscriber's
Agreement.
Your responsibility as a Subscriber is determined by
this policy and the Subscriber's Agreement. You arc
liable for just the policy premiums charged and arc not
subject to any other premium liability under the policy.
This agreement is made in reliance on the information
you have given us, and is subject to all the terms of this
policy.
This policy, all endorsements to it, and the Subscriber's
Agreement constitute the entire agreement between
)'ou and us.
ERIE INSURANCE COMPANY ONLY
In return for YOUI' timely premium payment and your
compliance with all of the provisions of this policy, we
agree to provide the coverages you have purchased.
Your coverages and (amounts of insurance) are shown
on the Declarations, which arc part of this policy.
This agreement is made in reliance on the information
you have given us, and is subject to all the terms of this
policy.
This policy and all endorsements to it constitute the
entire agreement between you and us.
APPLICABLE TO ERIE INSURANCE EXCHANGE
and ERIE INSURANCE COMPANY
We promise, upon timely payment of the premium and
compliance with the provisions of this policy and its
endorsements:
(1) To cover you from 12:01 A.M., Standard Time, at
the locution of the insured property, on the date
shown on the Declara tions as the first day of the
policy period. Coverage will continue in force until
terminated.
(2) To protect you up to the amounts specified in the
policy.
You may not transfer this policy without our consent.
This policy is made and accepted subject to these an~
following provisions, including those which may be added
by endorsement.
POLICY DEFINITIONS
Throughout your policy and its endorsements the fol.
lowing words have a special meaning when they appear
in bold type.
"aircraft" means any machine or device capable of
atmospheric flight except model airplanes.
"anyone we protect" means you and the following
residents of your household:
X (1) relatives and wards;
(2) other persons in the care of anyone we protect. X
Under Home and Family Liability Protection, anyone
we protect also means:
(3) any person or organization legally responsible for
animals or watercraft which are owned by you, or
any person incl uded in (1) art 2), and covered by this
policy. Any person or organization using or having
cust"odyofthese animals or watercraft in the course
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of ,nny husiness, 01' without 'mission of the
owncl' is not anyone we pt'otc,-~;
(.1) any person with respect to any vehicle co\'ereu by
this policy. Any person using or ha\'ing custody of
this vehicle in the course of any business use, or
without permission of the owner is not anyone we
protect.
"bodily injul'Y" means physical haml, sickness 01' dis-
X case, including mental anguish, and includes care, 1055
of services, or resulting death.
Bodily injury docs not include:
(1) any communicable disease or condition transmitted
by any insured to any other person through a
parasite, virus, bacteria or any other organism.
(2) the exposure to or transmission of any disease,
parasite, viI'us, bacteria or other organism by any
insured to any other person.
"business" means any activity engaged in as a trade,
profession or occupation, including farming.
"Declarations" means the form which shows your
coverages, amounts ofinsurance, premium charges and
other information. This form is part of your policy. Your
policy is not complete without this form. The Declara.
tions may be revised and updated by a form called the
Amended Declarations which then becomes the appli-
cable coverage.
"insured location" means:
(1) the residence premises;
(2) the part of any other premises, other structures,
and grounds acquired by you during the policy
period which you intend to use as a residence
premises;
(3) any premises used by anyone we protect in
connection with premises included in (1) or (2);
(4) any part of a non-owned premises:
(a) where anyone we protect is temporarily re-
siding; or
(b) occasionally rented to anyone we protect for
non.business purposes;
15) vacant land, other than farmland, owned by or
rented to anyone we protect;
1.6) land owned by or rented to anyonc wc protcct on
which a one or two family residence is being built
for occupancy by nnyonc we protect;
17) cemetery plots or burial vaults of anyone we
protect.
'medicnl expense" means reasonable charges for nec-
essary medical, surgical, x-ray and dental services, in-
X cluding prosthetic devices, eyeglasses, contacts. hearing
aids and pharmaceuticals; and also includes ambulance,
X hospital, licensed nursing and funeral services.
'oceurrcnce" means an accident, including continuous
or repeated exposure to the same general harmful con-
ditions.
"Jlrupel.ty dan"'1 means d."nuf:e to or loss of use of
tangihle properly.
"residence emJlloyee" means an employee ofnnyonc
We Jlrotect who performs dUlies in connection with the
maintenancuor use of the rcsidcnce premlscs, includ-
ing similar duties elsewhere, not in connection with the
huslness of unyone We Jll'otect.
"residence Jll'emises" means the dwelling where you
reside, including the stl'uctures and grounds, or that
part of un)' other building whel'c yc;u reside and which
is shown as "residence premises" on the Declurutions.
ADDITIONAL ERIE INSURANCE
EXCHANGE DEFINITIONS
The following words have a special meaning in policies
issued by Erie Insurance Exchange when they appear in
bold type.
"Subscribcr" means the person(s) who signed the
Subscl'ibe.Js Agreement.
"Subscriber's Agl'Celnent" means the agreement, in-
cluding a limited power-of-attorney, among the Sub.
scribers and the Eric Indemnity Company, as Attor-
ney.in-Fact.
"\Ve." UUSIl or "our" means the Subscribers at Erie
Insurance Exchange as represented by their common
Attorney.in.Fact, Eric Indemnity Company.
IOYou/' 'lyourll or "Named Insured" means the Sub.
scribcr and others named in Item 1 on the Declara.
tions. Except in the GENERAL POLICY CONDITIONS,
these words include the spouse of the Subscriber if a
resident of the same household.
ADDITIONAL ERIE INSURANCE COMPANY
DEFINITIONS
The following words have a special meaning in policies
issued by Erie Insurance Company when they appear in
bold type.
U\Ve," "US" or "our" means Erie Insurance Company,
"You," "YOUI''' or "Named Insured" means the person( s)
named in Item 1 on the Declarations. Except in the
GENERAL POLICY CONDITIOXS, these words in-
clude your spouse if a resident of the same household.,
WHEN A..'ID WHERE THIS POLICY APPLIES
This policy applies to losses that occur during the policy
period. The policy period is shown on the Declarations
or Amended Declarations.
Section I-Property Protection. This policy applies to
property losses as designated in the specific coverage
and at the location(s) insured under this policy. In
addition, Personal Property is covered while located
anywhere in the world.
Section II-Home and Family Liability Protection. This
policy applies to bodily injury and property damage
losses occurring anywhere in the world.
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SECT...JN I-PROPERTY PROTEl, .ION
DWELLING COVERAGE-OUR PROMISE
We will pay for loss to:
(1) Your dw'elling at the residence I"'emises shown
on the Declarations. Dwelling includes attached
structures, and building equipment and fixtures
servicing the premises.
(2) Construction material at the residence premises
for use in connection with your dwelling.
This coverage docs not apply to land.
OTHER STRUCTURES COVERAGE-
OUR PROMISE
We will pay for loss to:
(1) Other structures at the residence premises sepa-
rated from the dwelling, including garages, fences,
shelters, tool sheds 01' carports.
Structures connected to the dwelling by only a
fence, utility line, or similar connection arc consid.
ered to be other structures.
(2) Construction material at the residence premises
for use in connection with your other structures.
We do not pay for 1055 to structures used in whole or in
part for business purposes (except rental or holding for
rental of structures used for private garage purposes).
This coverage docs not apply to land.
PERSONAL PROPERTY COVERAGE-
OUR PROMISE
We will pay for loss to:
(1) Personal property owned or used by anyone we
protect anywhere in the world.
(2) At your option, personal property owned by others
while the property is on your residence pre-
mises.
(3) At your option, personal property of:
(a) guests and residence employees while the
property is in a residence occupied by anyone
we protect;
X Ib) residence employees away from the resi.
dence premises while actually engaged in
the service of anyone we protect.
X (4) At your option, building additions, alterations,
fixtures, improvements or installations made, or
acquired at your expense, by you to residences
occupied by but not owned by you, for an amount
not exceeding 10'7<: of the amount of insurance
under this coverage. Payment will not increase the
applicable amount of insurance under this policy.
15) Cemetery property, including monuments, head-
stones, gravemarkers, and urns.
(6) Animals, birds and fish, but only while on the X
residence premises, for the following perils cov-
ered under Pails We Insure Against: Fire or Light.
ning, Windstorm or Hail, Explosion, Sonic Boom,
Riot orCh'il Commotion, Aircraft, Vehicles, Smolw
and Vandalism or Malicious Mischief.
(7) Electronic appal'alUS while in or upon a motor X
vehicle 01' other motorized land conveyance, if the
electronic apparatus is equipped to be operated by
power from the electrical system of the vehicle or
conveyance while retaining its capability of being
operated by other sources of power. Electronic ap-
paratus includes cellular phones, fax machines,
radios, tapc players and accessories used in con-
junction with such apparatus including antennas,
tapes, wires, records, discs or other media.
~~~~~~~ X
(1) Land motor vehicles and parts. We do cover ve-
hicleJ designed to assist the handicapped, and
vehicles used to service the residence premises,
not subject to motor vehicle registration.
(2) Aircraft and parts.
(3) Property rented or held for rental to others away
from the residence premises.
(4) Property of roomers, boarders or tenants not re-
lated to anyone we protect.
(5) (a) Books of account, drawings, or other paper
records; or
(b) electronic data processing tapes, wires, records,
disks, or other software media; containing
business data. However, we do cover the cost
of unexposed or blank records or media.
(6) Radios, tape players and other equipment or de-
,;ces for the recording, reproduction, receiving or
transmitting of sound or pictures which may be
operated by power from the electrical system of a
land motor vehicle and permanently mounted while
in or upon that vehicle. Accessories to these devices,
including antennas, tapes and records are not cov-
ered while in or upon a land motor vehicle. .
(7) Radar detectors.
(8) Property specifically insured by this or any other
insurance.
(9) Except as provided under Personal Property Limi.
tations, property pertaining to a business con-
ducted away from the residence premises unless
at the time of loss such property is on the resi-
dence premises. However, we do not cover such
property on the residence premises while it is
stored, held as samples, or held for sale or delivery
after sale.
5
Limitations apply to thc followine: per,nnal property.
These limits do not incl'ca~c the amount of insurance
under Pt!rsotlCll Properly COl'eragl!:
Tatnt Amount Description of PCl'sonal
oC Insurance Property Suhject to
In Any One Loss Limitations
$ 250
x
$ 250
x
$2000
x
$2000
x
$2000
x
$2000
$2500
x
x
X
$3000
$3000
X
$3000
X
IO'7c of Personal.
Property
COL'erage-
(but not less
than $2000)
. Animals, hirds and !ish
. :\Ioney, bank nlltes, bullion, nUlllis.
matic propcrty, gold other than
goluware 0" gold.plated warc, sil.
\'er other than silverware or silver.
plated ware, and platinum
. Accounts, bills, deeds, evidences of
debt, letters of credit, notes othcr
than bank notes, passports, securi.
ties, tickets, stamps and philatelic
property
. Trailers and campe,'s not other.
wise insured, whether licensed or
not
. Watercraft, including their trailers
(whether licensed or not), furnish-
ings, equipment and outboard mo-
tors
. Manuscripts
. Property pertaining to a business
actually conducted on the resi-
dence premises, including prop-
erty in storage, held as samples, or
held for sale or delivery after sale.
A $500 limitation applies to any
business property away from the
residence premises, regardless
of whether the business is con-
ducted on or away from the resi.
dence premises.
. Theft of guns
. Theft of jewelry, watches, furs, pre-
cious and semi-precious stones
. Theft of silverware, silver'plated
ware, goldware, gold'plated ware
and pewterware
Personal property usually situated
at any residence owned or occupied
by anyone we protect other than
a residence premises. Personal
property in a newly.acquired prin-
cipal residence is not subject to this
limitation for the 30 days immedi-
ately after you begin to move prop.
erty there.
LOSS OF USE COVERAGE-OUR PROMISE
If an insured property 1055 makes your residence
premises uninhabitable, we will pay all reasonable
additional living expenses while you and members of
your household reside elsewhere.
P"Ylllent,h"ll be for the shortest time required to repair
01' replan! the pJ'cmbes 01", if yuu choose, for ,you to
perlllanently relocate.
These paYlllents will not exceed a 12 month period.
We will aloo pay fill' your loss of normal rents resulting,
frlllll the loss, less charges and expenses which do not'
cllntinue while thc rented part of the residence pre-
mises is uninhabitablc. We will pay this loss of normal
l'l'nts only until the renteu part is habitable.
If a loss f,'olll a peril covered under Pails lVe Insure \
..IliailJ"t occurs nt a neighboring premises, we will pay \
additional living expenses and 1055 of normal rents for
up to two weeks should civil authorities prohibit you
from occupying your premises. .
These periods of time arc not limited by the expiration of
this policy.
No deductiblc applies to this coverage.
We will not pay for loss or expense due to the cancella-
tion of any lease or agreement.
This coverage also applies to a loss at a covered second-
ary location.
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PERILS WE INSURE AGAINST
DWELLING AND OTHER STRUCTURES
COVERAGES
We pay for risks of direct physical loss to property
insured under the Dwelling and Other Structures COL'er.
ages except as excluded or limited herein.
We do not pay for 1055:
(1) Invoh;ng collapse, other than as provided in Addi-
tional Losses lVe lViII Pay, (2) Collapse;
(2) Caused by freezing by temperature reduction of a
plumbing, heating, air conditioning, or fire protec-
tive system, or of a household appliance, or by
discharge, leakage or overflow from within the
system or appliance caused by freezing, while the
dwelling is vacant, unoccupied or being constructed.
There is coverage if you have used reasonable care
to:
la) maintain heat in the building; or
(b I shut off the water supply and drain the system
or appliances of water.
(3) By freezing, thawing, pressure or weight of water
or ice, whether driven by \vind or not, to a fence,
pavement, patio, swimming pool, foundation. re-
taining wall, bulkhead, pier, wharf or dock.
(4) Caused by:
(a) termites, insects, \'ermin or rodents;
I b) mechanical breakdown, deterioration, wear and
tear, marring, inherent vice,latentdefect, rust,
smog, wet or dry rot and mold;
Ie) contamination;
(d) smoke from agricultural smudging or indus-
-trial operations;
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(e) bu1tdng, l'l'aL'kil\l~, l'xpan~ion, sl'tllingllr shrink.
ill~~ in ceilillgs, foundations, floors, patios, pave.
ml'nts, roofs 01' wall:;.
[f(a) through (c) cause water damage not otherwise
cxcluded, from a plumbing, hcating, air condition.
ing, 0" firc protective system, houschold appliance,
X waterbcd 01' aquarium, we covCr loss causcd by the
water. Coverage includes thc cost oftcaring out and
replacing any part ofa building neceS5[l1'y to I'epair
the system or appliance. This uocs not include loss
to the defective system or appliance (other than a
waterbed or aquarium) from which the water es-
caped.
(5) Caused by weather conditions ifany peril excludeu
by this policy contributes to the loss in any way.
(6) Caused by acts or decisions, including the failure to
act or decide, of any person. group. organization, or
governmental body if any peril excludeu by this
policy contributes to the loss in any way.
(7) Caused by, resulting from, contributed to or aggra-
vated by faulty or inadequate
(a) planning, zoning, development;
(b) design, development of specifications, work-
manship, construction;
(c) materials used in construction; or
(d) maintenance; of property whether on or off the
residencc premises by any person, group,
organization, or governmental bod} ifany peril
excluded by this policy contributes to the loss
in any way.
(8) Caused by animals or birds kept by anyone we
protect or kept by a residence employee of
anyone we protect.
(9) By theft of property from within a dwelling under
construction unless that property has become a
part of the building, or of materials and supplies for
use in the construction until the dwelling is com-
pleted and occupied.
Under items (l) through (9) any ensuing loss not ex-
cluded is covered.
See Section I-\Vhat lVe Do Not Cover-Exclusions for
additional losses excluded.
PERSONAL PROPERTY COVERAGE
We pay for direct physical loss to property insured under
Personal Properly Coverage caused by any of the follow-
ing perils, unless the loss is excluded elsewhere under
this policy:
(l) Fire or Lightning.
12) Windstorm or Hail.
This docs not include:
(a) loss caused by frost, cold weather, ice, snow,
sleet, sand or dust;
(b) loss to property contained in a building, unless
the building is first damaged by the direct force
of wind or hail;
(c) loss to watercraft (except rowboats anu canoes
at an insured Jocation) anu theil' trailers,
flll'nishinlls, equipment and motors unless in-
side a fully cnclosed building.
1:3) Explosion.
(01) Sonic Boom. X
(5) Hiot 01' Civil Commotion.
(6) Aircraft, including missiles and spacecraft.
(7) Vehicles.
(8) Smol<e, if the loss is sudden and accidental.
This docs not includc loss caused by smoke from
agricultural smudging or industrial operations.
(9) Vandalism or Malicious Mischief.
(10) Theft, including attcmpted theft and loss of prOP- X
erty from a known location when itislikely that the
pl'Operty has been stolen. We also cover direct loss
of covered personal property by theft while it is
unattended in or on a motor vehicle, trailer, or
watercraft.
This does not include:
(a) theft committed by anyone we protect;
(b) theft of property from within a dwelling under
construction unless that property has become
a part of the building, or of materials and
supplies for use in the construction until the
dwelling is completed and occupied;
(c) theft of property while at another dwelling or
adjacent structures owned by, rented to, or
occupied by anyone we protect unless any-
one we protect is temporarily residing there.
Property of a student we protect is covered X
while at a residence away from home. XX
Theft losses must be promptly reported to us and to
the police.
(11) Falling Objects.
This docs not include:
1 a) loss to property contained in a building, unless
the falling object first damages the building
exterior;
ib) damage to the falling object.
(12) Weight of Ice, Snow or Sleet.
This docs not include 1055 to personal property
outside the building.
(13) Sudden and accidental tearing apart, crock-
ing, burning or bulging of 0 steam or hot
water heating system, an air conditioning
system, or fire protective system, or on appli-
ance for heating water.
This docs not cover 1055 caused by or resulting from
freezing.
(14) Freezingby temperature reduction ofa plumb-
ing,.heating, air conditioning, or fire protec-
tive system, or of a household appliance.
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This docs not include loss on the residence pre.
mises while the dwellin~ is unoccupie{lllnless~'ou
have uscu reasonable care to:
(a) maintain heat in the builuinij, or
(b) shut off the water supply and drain the system
01' app1inncc~ of waler.
(15) Accidental discharge or overflow of water 01'
steam from within a plumhing, heating, air
conditioning, 01' fire protective system, house.
X hold appliance, watel'hed Ot. uqunl'ium.
This docs not include:
(a) loss to the defectivc system or appliance (other
than a waterbcd or aquarium);
(b) loss caused by or resulting from freezing;
(c) loss on the residence premises caused by
accidental discharge or overflow which occurs
off the residence premises.
(16) Damage due to a sudden and accidental surge
of electrical current.
This docs not include loss to tubes, transistors or
similar electronic components.
(I7) Volcanic Eruption.
This docs not include loss caused by earthquake,
land shock waves or tremors.
Volcanic eruptions occurring within a 72 hour pe-
riod will be considered one volcanic eruption.
WHAT WE DO NOT COVER-EXCLUSIONS
t-tlso see specific Exclusions under Dlt'elling arzd Other
Structures Cot'erages-Perils IVe Insure Against)
We do not pay for 1055 resulting directly or indirectly
from any of the following, even ifother events or happen-
ings contributed concurrently, or in sequence, to the
loss:
(l) by earth movement, due to natural or manmade
events, meaning earthquake including land shock
waves, or tremors before, during or after a eolcanic
eruption; mine subsidence; landslide; mudslide;
mud flow; earth sinking, rising or shifting. Direct
1055 by Fire, Explosion, Sonic Boom, Theft or Break.
age of Glass resulting from earth movement, mine
subsidence, landslide, mudslide, mud flow, earth
sinking, rising or shifting is covered.
(2) by water damage, meaning:
(a) flood, surface water, waves, tides, tidal waves
or overflow ofa body of water. We do not cover
spray from any of these, whether or not driven
by wind;
(b) water or sewage which backs up through sew-
ers or drains; or
(c) water below the surface of the ground. This
includes water which exerts pressure on, or
flows, seeps or leaks through any part of a
building or other structure, sidewalk, drive-
way, foundation, or swimming pool.
We do pay fOl' dircct loss that follows, causeu by fire,
explosion, sonic hoom or theft.
(:11 by power interruption if the interruption takes
place away from the l'('sidcncc prenliscs. Ira loss
from a peril covered unucr Perils Il'e Itlsure Against
happens on thc t'esidenee premises 05 0 result of
a power interruption, we will cover only loss caused
by that peril.
(.1) hy war, whether declared or undeclared, discharge
of a nuclcor weapon (even if accidentall, hostile or
warlike action in time of peace or war, insurrection,
rebellion, revolution, civil war, usurped power, in-
cluding action taken by ~overnmental authority in
defendin~ against such an occurrence.
(5) by nuclear action or rauiation or radioactive con.
tamination, however caused. Nuclear action in.
eludes nucleOl' reaction, discharge, radiation or
radioactive contamination, whether man-made or
occurring naturally.
Loss caused by nuclear action is not considered loss
by fire, explosion, sonic boom or smoke.
Ifloss by fire results, we will pay for that resulting
loss.
(6) by radon gas contamination.
(7) by the enforcement of an ordinance or laIV regulat-
ing the construction, repair or demolition ofa build-
ing or other structure, unless specifically provided
under this policy. We do cover loss caused by
actions of civil authorities to prevent the spread of
a fire caused by a peril covered under Perils IVe
Insure Against.
(8) by neglectofanyone we protect to use all reason-
able means to protect covered property at and after
the time ofloss or when property is threatened by
a peril covered under Perils IVe Insure Against.
(9) by intentional loss, meaning any 1055 arising from
an act committed by or at the direction of anyone
we protect with the intent to cause a loss.
ADDITIONAL LOSSES WE WILL PAY X
(1) AUTOMATIC GARAGE DOOR OPENER
We will pay up to $500 for loss to personal property,
including the garage door, at the residence premises
resulting from the use or malfunction of an automatic
garage door opener.
(2) COLLAPSE
We will pay for direct physical loss to insured property
involving collapse ofa building, or any part ofa building,
caused only by onc or more of the following:
(a) fire or lightning, windstorm or hail, explosion,
sonic boom, riot or civil commotion, aircraft,
vehicles, vandalism or malicious mischief.
breakage of glass, falling objects, or weight of
icc. snow or sleet;
(bl hidden decay, or hidden insect or vermin
damage;
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(c) weight of p,'ople, animals, contcnts 01' equip'
ment;
(d) weight of rain which collects on IIrllllf;
(el use of defective mllterials 01' methous in clln.
slructioll, remodeling, ai' renovatioll iflhe col.
lapse occurs during the coursc ofthc Ctlnstruc'
tion, remodeling 01' renovation.
We will not be liable fOI'loss under(bl,(c), (d)or(e)ahove
to the following property unlcss the loss is a din'ct result
of the collapse of a building:
X Cloth awnings, fences, pavements, pntio$, swim-
ming pools, underground pipes, nues, drains, cess.
pools. septic tanks, foundations, retaining' walls,
bulkheads, piers, wharves or docks.
Collapse does not include settling, cracking, shrinkage,
bulging or expansion.
Payment will not increase the amount of insurance
applying to the loss.
(3) CReDIT CARD, CHARGE PLATE. CHECK FORG-
ERY & COUNTERFEIT MONEY PROTECTION
X We will pay up to $2500 for the regal obligation of
anyone we protect to pay because of theft, forgery or
unauthorized use of any credit or fund transfer card,
charge plate, check or negotiable instrument issued to or
registered in the name of anyone we protect. We will
also pay for loss each time anyone we protect unknow-
X ingly accepts counterfeit money. No deductible applies.
We require evidence of 1055.
We will not pay for:
(a) 1055 arising from any business;
(b) 1055 arising from anyone we protect.
When loss is discovered anyone we protect must give
us immediate notice. If the loss involves a credit or fund
transfer card or charge plate, anyone we protect must
also give immediate notice to the issuer of the card or
plate. Failure to comply with the terms and conditions of
the card or plate voids this protection.
X If a 1055 occurring during the policy period is discovered
within a year after the policy has been canceled. we will
pay for the loss. If a priOl'loss is discovered during the
policy period and no other insurance applies. we will pay
for the loss. We have the right to investigate and settle
any claim or suit before making payment. Full payment
of the amount of insurance ends our obligation under
cach claim or suit.
Repeated losses caused by or involving one person are to
be considered one 1055.
If a claim is made or suit is brought against anyone we
protect for liability under the Credit Card or Charg.!
Plate Protection, we will provide a defense. The defense
will be at our expense. with a lawyer we choose.
We have the option under the C"ecl~ Forgery Protectioll
to defend at our expenso anyone we protect or their
bank against a suit for the enforcement of payment.
(.\) DEBRIS REMOVAL AFTER LOSS
We will pay thc expense for removal of;
(a) uebris ofcuvcreu property following loss under
l't!rils \\'l! 11Isure A;:nill.'it;
Ih) nsh, dust 01' Pllrticles from volcanic eruption
that has causeu direct loss to a building or
property within a building; or
(c) fallcn t.rees which cause damage to covered
property, pru\'iueu co\'erage is not afforded
elsewhere by this policy.
If the amount of insurance applying to the loss is ex-
hausted, we will pay up to an ndditional 51} of the
amount of insurance applying to the damaged property
for removal of dcbris.
We will also pay up to $500 per occurrence for the
remoml of fallen trees on the residence premises if
loss is caused by windstorm, hail or weight of ice, snow
or sleet even when covered property is not damaged.
(5) EMERGENCY REMOVAL OF PROPERTY
We will pay for property damaged in any way while
removed from your residence premises because of
danger from an insured peril. Coverage is limited to a 30-
day period from date of removal. Payment will not
increase the amount of insurance applying to the 1055.
(6) FIFlE DEPARTMENT SERVICE CHARGeS X
We will pay all reasonable fire department sen~ce
charges to save or protect insured property. Payment is
in addition to the amount of insurance appl>~ng to the
loss. No deductible applies.
(7) FIRE EXTINGUISHER RECHARGE
We will pay expenses incurred to recharge portable fire X
extinguishers after they arc used to fight a fire.
No deductible applies.
(8) LOCK REPLACEMENT AFTER LOSS X
At your request, we will pay up to $250 to replace keys
and locks to the exterior doors of the residence pre-
mises, as well as keys and locks to your other property
I autos, boats, etc.), if the keys are stolen during a theft
loss. This coverage does not apply to keys and locks
pertaining to business property. No deductible applies.
We will pay for replacement of automatic garage door X
transmitters when a transmitter has been stolen. Cover-
age is also provided for thc cost to reprogram the fre-
quency on additional transmitters and/or the control
unit box.
No deductible applies to the replacement of automatic
garage door transmitters.
(9) LOSS ASSESSMENT
IApplicablc to Scction 1& Soctiollll. Personal Liability
Cot'crago Only)
W e\\~ll reimburse you for an assessment charged against
you as owner or tenant of the re.idence premises by
an asso~iation or corporation of property owners, minus
any other valid and collectible insurance available to the
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l ussodation or rurporation covering tht; ~ame a~:iCss'
l ment. The assessment must fesull from an UCCUlTClll'C
I covereu unde,' this policy.
I Unless otherwise shown on the DecJal'ations, our
I'X amount of insurance for this protection is $5000 pel'
assessment.
If you arc assessed for a covered watcl'loss, we will pay
)'our share of the cost of tearinll out and repbcinll any
part of an insured Jocntion necessary to repair the
system or appliance.
The policy deductible applies undel' Sectiolll only.
We will not pay if the loss is caused by earthqunke or
land shock waves or tremOl'S which occur before, during
or after a volcanic emption.
We also will not pay for any 1055 assessments charllcu by
a governmental body.
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(10) MECHANICAL SERVANT AND ROBOT
PROTECTION
We will pay up to $500 for loss to personal property at the
residence premises caused by malfunction of a me.
chanical servant or robot.
(11) NECESSARY REPAIRS AFTER LOSS
We will pay the reasonable expense for necessary re.
pairs to protect covered property from further damage
after 1055 by a peril covered under Perils IVe IlIsure
Against. Payment will not increase the amountofinsur.
ance applying to the loss.
(12) NON-OWNED RESIDENCES
We will pay up to $1000 for loss by theft and vandalism
or malicious mischief to residences occupied by but not
owned by anyone we protect.
X (13) REFRIGERATED PRODUCTS
We will pay for 1055 to the contents of refrigerator or
freezer units on the residence premises from either
power or mechanical failure.
Coverage will be void if the contents arc on the resi.
dence premises for business purposes.
X (14) TEMPERATURE CHANGE
We will pay for loss to insured personal property result.
ing from change of temperature. There must first be
damage done by a peril covered under Perils We Insure
..\gainst occurring at the residence premises. Pay-
ment will not increase the amount ofinsurance applying
to the loss.
(15) TREES, SHRUBS, PLANTS AND LAWNS
We will pay up to an additional 5% of the amount ef
insurance under Dwelling Coverage for 1055 to trees,
shrubs, plants and lawns at the residence premises.
Coverage applies only to loss caused by the following
perils covered under Perils IVe Insure Against: fire or
lightning, explosion, sonic boom, riot or civil commotion,
X uircraft, vehicles, smoke, vandalism or malicious mis.
chief and theft.
We will not pay for:
I a I more than $,500 on anyone tree, shmb or plant;
(bi damage to lawns by vehicles owned or opcrated
by a resident of the residence premises;
(c) trees, shrubs, plants or lawns grown for busi-
ness purposes.
DEDUCTIBLE
We will pay for loss minus the dcductiblc shown on the
Declarations. In the event of total loss to the DIi'elling X
from a covered peril, the deuuctible will not apply.
Thc deductible does not apply to:
(a) Loss or Use COLwagc.
(bJ Cmlit Cllrd, Charge Plate, Chcch Forgery &
CO/llllerreit MOlley Protcctioll.
I c) Fire Departmellt Service Charges.
Id) Fire Extillguisher Recharge
Ie) Loch Replacemellt Arter Loss
RIGHTS AND DUTIES-CONDITIONS
(1) ABANDONMENT OF PROPERTY
We will not accept abandoned property.
(2) APPRAISAL
If you and we fail to agree on the amount ofloss, either
party may make written demand for an appraisal. Each
party will select an 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 after both appraisers
have been identified, you orwe can ask ajudge ofacourt
of record in the state where your residence premises
is located to select an umpire.
The appraisers shall then set the amount ofloss. If the
appraisers submit a written report of an agreement to
us, the amount agreed upon shall be the amount ofloss.
rftheycannot agree, they will submit theirdifTerences to
the umpire. A written awurd by two will detennine the
amount of 1055.
Each party will pay the appraiser it chooses, and equally
bear expenses for the umpire and all other expenses of
the appraisal. However, if the written demand for ap-
praisal is made byus, we will pay for the reasonable cost
of your appraiser and your share of the cost of the
umpire.
We will not be held to have waived any rights by any act
related to appraisal.
(3) AUTOMATIC ADJUSTMENT OF COVERAGE X
AMOUNTS
This policy provides you with a guard against the efTect
of inllation in construction costs. The amount of cover-
age you have today may not be e.lough to rebuild your
home at a later date in the event of serious 1055.
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We will kccp track of costs and at the next policy period
we will adjust the amount of)'olll' buildin" covcra"e if
necessary. Adjustments in othercovera!:cs WtherStruc.
tures, Persollal Property and Loss o( Use) will also be
made proportionately. Yo II I' premium will hc adjusteu
at each policy period to reflect any chan"e in till' amount
of insurance.
During the policy period, if thcre is an increase in
construction costs and a 1055 occu,.s, we will reflect the
increase in the amount of insurance before making
payment. Thcre will be no charge for this additional
co\'erage.
However, if for any reason the amount of insurance on
your home becomes inadequate or jfYOll made substan-
tial improvements to your home and failed to notify liS
to increase the amount of your insurance, the amountof
insurance shown on the Declarations will be the full
amount available should a 1055 occur.
(4) ERIE OPTION
If we give YOll written notice within 30 days after we
receive your signed, sworn statement of loss, we may
repair or replace any part of the property damaged with
equivalent property.
(5) GLASS REPLACEMENT
Loss to glass caused by a peril covered under Perils lVe
Insure Against will be settled on the basisofrcplacement
with safety glazing materials when required by law.
(~INCREASEOFHAZARD
Unless we agree beforehand, coverage is suspended if
the hazard is substantially increased by any means
within the control or knowledge of anyone we protect.
(7) LOSS PAYMENT
We will settle any claim for loss with you or anyone who
has a legal interest in the property. We will pay within
30 days after we receive YOllr proof of loss and the
amount of loss is finally detennined by:
(a) agreement between YOll and us;
(b) an appraisal award; or
(c) a court judgment.
(8) LOSS SETTLEMENT
(a) The following types oflosses will be settled on
an actual cash value basis. This means that we
will deduct for depreciation.
Losses to:
. property insured under Persollal Property Cov.
erage
. structures that arc not buildings or carports
. carpeting
. domestic appliances
X . cloth awnings
. outdoor antennas and outdoor equipment,
whcther or not attached to buildings
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. insurcd buildings and structures which do not
mr.ct the requirements for a replacement cost
scttlemcnt described in Subsections (8)(b) and
(8)(c).
The actual cash value will be dctermined at the
timc of the loss. Payment will not exceed the amount
necessary to repair or rcplace the damaged prop'
erty.
(b) Loss to buildings and carports insured under
DwellilllJ Coverage or Other Structures Cover.
age (except as included in (a) above) will be
settled by one of the following methods:
1. Replacemellt cost settlemellt (meaning that
we will not deduct for depreciation);
a. provided the Declarations show that X
the Automatic No.Depreciatioll Settle.
mellt applies; or
b. if at the time of the loss, the amount of
insurance applying to the insured build-
ing is 80% or more of the full replace-
ment cost of the building immediately
prior to the loss; or
c. if the cost to repair or replace the dam- X
age to an insured building is both:
1) less than $2500; and
2) less than 5% of the amount of in-
surance on the building.
In making a replacement cost settlement,
we will pay YOll the cost of repair or
replacement, without deduction fordepre-
ciation. Payment will not exceed the small-
est of the following amounts:
. the amount of insurance applying to
the building;
. the replacement cost of that part of the
building damaged for equivalent con-
struction and use on the same pre-
mises;
. the amount actually and necessarily
spent to repair or replace the damaged
building.
In determining 80% of the full replace-
ment cost of the building, the value of the
following will be disregarded:
. excavations
. foundations below the basement floor
. piers and othersupports below the base-
ment floor
. if there is no basement, the value of all
items below the surface of the ground
inside the foundation walls.
2. Less than (ull replacement cost settlement.
If full replacement cost settlement does
not apply, we will pay the larger of the
following amounts, but not exceeding the
amount of insurance under this policy
applying to the building:
a. the actual cash value of that part of the
building damaged; or
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b.that proportion ofL,," full co,t to repair
or rcplace the damage which the total
amount of insurancl' in this policy on the
damagcd building bears to SO"; of the
replacement cost of the building.
(c) We will pay no more than the aClllal ca,h value
of the damage unlil the actual repair 01' rc.
placement is completed. However', wlwn thc
loss is both lcss than $2500 and le,;s '.han 5re of
the amount of insurance on the builuing, we
will pay the full replaceml'nt cost bcfore actual
repa;,' or replacement is complell'cl.
(d) You may disregard the replacement cost pro.
vision and make claim for loss or dama~:e to
buildings on an actual cash value basis. How-
ever, you still have the right to make claim,
within 180 days after' the loss, for any addi-
tional amounts we will be required to pay
under' this Loss Settlel/lt'llt provision.
(9) LOSS TO A PAIR OR SET
In case of a loss to a pair 01' set we may:
(a) repair or replace any part to restore the pair or
set to its value before the loss; 01'
(b) pay the difference between actual cash value of
the property before and after the loss.
(10) MORTGAGE CLAUSE
Loss under Dwelling COl'erage or Other Structures Cov.
erage shall be payable to mortgagees named on the
Declarations, to the extent of their interest and in the
order of precedence.
Our Dulles
We will:
(a) protect the mortgagee's interests in an insured
building. This protection will not be invali.
dated by any act or neglect of anyone we
protect, any breach of warranty, increase in
hazard, change of ownership, or foreclosure if
the mortgagee has no knowledge of these
conditions;
X tb) give mortgagee 30 days notice before cancella.
tion or refusal to continue this policy.
Mortgagee's Duties
The mortgagee will:
(a) furnish proofofloss within 60 days if you fail
to do so;
(b) pay upon demand any premium due if you fail
to do 50;
(c) notify us of any change of ownership or occu-
pancy or any increase in hazard of which the
mortgagee has knowledge;
(d) give us the right of recovery against any party
liable for loss;
tel after a loss, permit us to satisfy the mortgage
requirements and receive full transfer of the
mortgage and all ,ecurities held liS collateral
to the Illortgage uebt.
Policy conditions relatinl: to Approisal. Loss l'aymellt
and Suit Agaillst Us apply to the Illortgagee.
This mortgagee interest provision shall apply to any
trustee or loss payee named on thc DecJul'ations.
(II) NO BENEFIT TO BAILEE
This insurance will not in any way benefit any person or
organization who may be caring for 01' handling your
property for a f"e.
(12) OTHER INSURANCE
If both this insurance and other insurance apply to a
loss, we will pay our share. Our share will be the
proportionate amount that this insurance bears to the
total amount of all applicable insurance, except insur-
ance in the name of an association 01' corporation of
property owners.
If there is other insurance in the name of an association
or corpol'ation of property owners covering the same
property covereu by this policy, the other insurance
applies first.
(13) PERMISSION GRANTED TO YOU
Coverage applies even when your described dwelling is
vacant or unoccupied, except where limited under Perils
lVe Insure Against.
You may make alterations, additions and repairs to
your building, and complete structures under con-
struction.
You may waive your rights to recovery against another
invo!\'ing the insured property. This must be done in
writing prior to a 1055.
(14) RECOVERED PROPERTY
If we have made payment on property which has later
been recovered by you or us, you or we will notify the
other of the recovery. You have a right to the reco\'ered
property. If you elect to have the property, you will
repay us the amount of our payment to you.
115) SUIT AGAINST US
Wc mav not be sued unless there is full compliance with
all the terms of this policy. Suit must be brought \\;thin
one year tVA-2 years, :\iD-3 years) after the 1055 or
damage occurs.
(16) YOUR DUTIES AFTER A LOSS
In case of a covered 1055, you must perform the follo\\;ng
duties:
(a) give us or our Agent immediate notice. If a
theft loss, also notify the police;
(b) protect the property from further damage. If
necessary for property protection, make rea-
sonable repairs and keep a record of all repair
costs;
(c) furnish a complete inventory ofuamaged prop-
erty including quantity, actual cash value and
. 'amount of 1055 claimed;
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(d) prouuce for examination, with permission to
copy, all books of accounts, bills, invoiccs, re.
ceipts and other vouchers as we may reason,
ably require;
(c) show us or 0111' representative the dalllllgeu
property, as often as may bl! reasonably re.
quireu;
(I) submit to eXlIminations under oath lInd sign a
transcript of the same;
(g) send us, within 60 days after the loss, YOllr
signed and sworn to proof of loss statement
which includes:
1. time and cause of loss;
2. your interest in the property and the
interest of all others involved;
3. any encumbrances on the property;
01. other policies which may cover the 1055;
5. any changes in title, use, occupancy or
possession of the property which occurred
during the policy term;
6. when required by us, any plans, specifica-
tions and estimates for the repair of the
damaged building;
7. the inventory of damaged property as pre.
pared in (16) (c);
8. receipts for any additional living costs as a
result of the 1055, and records of pertinent
rental loss;
9. in caseofclaim under Credit Card, Charge
Plate, Checil Forgery & COllnterfeit Money
Protection, an affidavit stating amount,
time and cause of 1055.
SECTION II-HOME AND FAMILY LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE-
OUR PROMISE
We will pay all sums up to the amount shown on the
Declarations, which anyone we protect becomes
legally obligated to pay as damages because of bodily
Injury or property damage resulting from an occur-
rence during the policy period. We will pay for only
bodily injury or property damage covered by this
policy.
We may investigate or settle any claim or suit for
damages against anyone we protect, at our expense.
If anyone we protect is sued for damages because of
bodily injury or property damage covered by this
policy, we will provide a defense with a lawyer we
choose, even if the allegations are not true. We are not
obligated to pay any claim or judgment or defend any
suitifwe have already used up the amount of insurance
by paying a judgment or settlement.
MEDICAL PAYMENTS TO OTHERS
COVERAGE-OUR PROMISE
We will pay the necessary medical expenses incurred
or medically determined within three years from the
date of an accident causing bodily injury. This three-
year limitation docs not apply to funeral expenses.
This coverage does not apply to you or regular residents
of your household, other than residence employees.
To others, we will pay only in the following situations:
(1) To a person on an insured location with the
permission of anyone we protect; or
(2) To a person orran insured location if the bodily
injury:
(a) arises out of a condition on an insured loca-
tion or adjoining ways;
(b) is caused by the activities of anyone we pro-
tect;
(c) is caused by a residence employee in the
course of employment by anyone we protect;
(d) is caused by an animal anyone we protect
owns or is caring for.
Payment under this coverage is not an admission of
liability by us or anyone we protect.
WHAT WE DO NOT COVER-EXCLUSIONS
PERSONAL LIABILITY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not cover under Personal Liability Cocerage and
Medical Payments To Others Cocerage:
fl) Bodily injury or property damage expected or
intended by anyone we protect. .
(2) Bodily injury or property damage arising out of
business pursuits of anyone we protect.
We do cover:
(a) activities normally considered non-business;
(b) business pursuits of salespersons, collectors, X
messengers and clerical office workers em-
ployed by others. We do not cover installation,
demonstration and servicing operations;
(c) business pursuits of educators while employed X
by others, including corporal punishment of X
pupils;
(d) incidental business activities of anyone we X
protect. These include babysitting, caddying,
. . lawn care, newspaper delivery and other simi-
lar activities;
'0
x (e) the ownership of ncwly-acqllireu one or two
family dwellings, but only lor a period of 30
consecutive days after IIcquisition unless de.
sCI'ibed on the Declal'l\tions.
(3) Bodily injury or propel.ty damage Ilrising out of
the rental or holding 1'01' rental of the residence
premises by anyone we Pl'otect.
'Ve do cover if the l"csidcnce Jll'cmises is:
(a) occnsionally rented 01' held fOI'rental to othcrs
us a residence;
(b) rented or held for rental in pllrt as a residcncc,
unless for the accommodation of more than
three roomers or boardel's;
(c) rented or held for rental in part 05 an office,
school, studio 01' private garage.
(.1) Bodily injUl'y or property damage arising out of
the rendering or failing to render pl'Ofessienalser-
vices (other than professional services rendered by
educators).
(5) Bodily injury 01' property damage arising out of
any premises owned by or rented to anyone we
protect which is not an insured location. This
exclusion docs not apply to bodily injury to a
residence employee arising out of and in the
course of employment by anyone we protect.
(6) Bodily inju'ry or property damage arising out of
the ownership, maintenance or use of;
(a) aircraft;
(b) any land motor vehicle owned or operated byor
rented or loaned to anyone we protect.
We do cover motor vehicles if;
1. used exclusively at an insured location
and not subject to motor vehicle registra-
tion;
2. kept in dead storage at an insured loca-
tion;
3. a recreational land motor vehicle not de-
signed for use on public roads while at an
insured location;
X .1. a golf cart, wherever used or located;
X 5. a lawn or farm type \'ehicle or snowblower,
wherever used or located, ifnot subject to
motor vehicle registration.
(c) watercraft;
X 1. owned by or frequently rented to anyone
we protect if it has inboard or inboard-
outdrive motor power of more than 75
horsepower;
2. owned by or frequently rented to anyone
we protect if it is a sailing vessel 26 feet
or more in length; or
3. powered by one or more outboard motors
with more than 75 total horsepower owned
by anyone we protect at the beginning
of the policy period.
However, iflln~'olle we protect acquires X
watercraft, regardless of horsepower, cov.
eroge applies during the policy period. If
the watercraft is ocqllired within 60 days
of the cnd of the policy period, we will
provide coverage for a maximum of 60
days. We have the right to charge you an
additional premium.
Exclusioll (6)(c) docs not apply while the water-
craft is stored on shore.
E:xclusioll (6) docs not apply to bodily injury to on)'
,'esidence employee arising out of and in the course of
employment by IInyone we pl'otect.
We do not pay for liability arising out of the negligent
entrustment of an aircraft, motor vehicle or watercraft
covereu under this policy.
We also do not cover statutorily imposed vicarious pa-
rental liability for the actions ofa child or minor using an
aircraft, motor \'ehicle or watercraft excluded above.
(7) Bodily injuryorpl'operty damage arising out of
war (declared or undeclared), civil war, insurrec-
tion, rebellion or revolution.
Discharge of a nuclear weapon is cOlIsidered a
warlike act even if accidental.
(8) Bodily injury and property damage which arises
out of or results from a communicable disease or
condition transmitted by anyone we protect to
any other person through a parasite, virus, bacte-
ria 01' any other organism.
(9) Except as provided in paragraph 2(c) under "What
We Do Not Cover - Personal Liability and "'Iedical
Payments To Others Cocerage, bodily injury or
property damage which arises out of the sexual
molestation, corporal puni:;hment or physical or
mental abuse by anyone we protect.
(10) Bodily injury and property damage which arises
outofthe use,sale, manufacture, delivery, transfer
or possession by any person of a Controlled
Substance(s) as defined by the Federal Food and
Drug Law at 21 U.S.C.A. Sections 811 and 812.
Controlled Substances include but are not limited
to cocaine, LSD, marijuana and all narcotic drugs:
Howe\'er, this exclusion does not apply to the legiti-
mate Use of prescription drugs by a person follow-
ing the orders of a licensed physician.
il1) Bodily injury and property damage which arises
out of the discharge, disposal, release or escape of;
la) vapors, fumes, acids, toxic chemicals, toxic
liquids or toxic gasses;
Ib) waste materials or other irritants, contami-
nants or pollutants.
We do not cover under Personal Liability COL'erage;
(11 Liability assumed under any oral contractor agree-
ment, or by contract or agreement in connection
with ony business of anyone we protect.
14
x
(~) Liability fur your share of any loss assessment
charged against all members of on n5~ociation 01'
corporation of property owners. This exclusion does
not apply toAdditio/la/ [,osscs \Vc Will Pay, (9) Loss
'\SSCSSIIICllt, Sectioll [ of this policy.
(3) Property damnge to property owned hy an~'one
we Pl'otcct.
(4) Property dnmage to property rented to, occupieu
or useu by, 01' in the care of nnyone we protect.
This exclusion docs not apply to property damage
caused by fire, explosion, sonic boolllor smuke, or by
acciuental discharge of water from a waterbed 01'
aquarium.
(5) Bodily injl1l'y to any person eligible to receive any
benefits required to be provided or voluntarily
provided by anyone we prntect unuer any work-
ers' compensation 01' occupational disease law.
(6) Bodily injury 01' property damage for which
anyone we protect is covered under any nuclear
energy liability policy, or would be covered if its
amounts of insurance had not been exhausted.
Under ,Uedica/ Payments To Others Coveragc we do not
cover:
(1) Bodily injury to a residence employee if it
occurs off an insured location and docs not arise
out of orin the course of employmen t by anyone we
protect.
(2) Bodily injury to any person eligible to receive any
benefits required to be provided or voluntarily
provided under any workers' compensation oroccu-
pationaI disease law.
(3) Bodily injury from any nuclear reaction, radia-
tion or radioactive contamination, or any conse-
quence of any of these.
WHAT WE ALSO PAY
Payment for the following is in addition to the amounts
of insurance shown on the Declarations.
x
(1) CLAIM EXPENSES
We pay:
(n) all exp"enses we incur and all costs against
anyone we protect in n suit we defend;
(b) premiums on bonds in a suit we defend. but not
for bond amounts greater than the limit for
Personal Liability Coverage. \Ve will also pay
up to 8500 for each bail bond required of any.
one we protect because of an accident er
traffic violation arising out of the use of a
vehicle covered by this policy. We have no
obligation to apply for or furnish bonds;
(c) reasonable lawyers' fees up to S50 that any-
one we protect incurs because of arrest re-
sulting from an accident involving a vehicle
covered by this policy;
X
Idl reasonahle expenses incurred by anyone we
fll'otect at our request. This includes actual
loss of earnings (but not loss of other income)
and vacation time or other benefit loss up to
8100 pel' day forhelpingus in the investigation X
0" uel'cnse of any claim or suit;
Ie) all interest on the full amount ofanyjudb'lnent
on a suit we defend until we offel' 01' deposit in
court the amount for which we arc liable;
If) prejudgment interest awarded on the amount
of the judgment we pay. Ifwe offer to pay the
applicable amount of insurance, we will not
pay any prejudgment interest for the period of
time after the offer.
(2) DAMAGE TO PROPERTY OF OTHERS
We pay, on a replacement cost basis, up to $1000 per X
occurrence for property damage to property of others
caused by anyone we protect. This coverage also X
applies to property of others in the possession of anyone
we protect.
We will not pay for property damage:
(a) to the extent of any amount recoverable under
Section I of this policy;
Cb) caused intentionally by anyone we protect
who has attained the age of 13;
(c) to property owned by anyone we protect;
(d) to property owned by or rented to a tenant of
anyone we protect or a resident of your
household;
Ie) arising out of:
1. an act or omission in connection with a
premises (other than an insured loea.
tion) owned, rented or controlled by any.
one we protect;
2. business pursuits; or
3. ownership, maintenance or use of a motel'
vehicle, aircraft or watercraft. We will
pay for property damage to a land motor
vehicle designed for recreational use off
public roads while in the possession of or
caused by anyone we protect if:
a. not subject to motor vehicle registra.
tion, and
b. not owned by anyone we protect.
13) FIRST AID EXPENSES
We pay reasonable expenses for first aid to other persons
and animals at the time of an accident involving anyone X
we protect.
(ol) LOSS ASSESSMENT-PERSONAL LIABILITY
COVERAGE
See Loss Assessment, paragraph (9), Section I, .4.ddi-
tional Losses \Vc \Viii Pay.
15
.. .----..---.....------.----.-.-.------.-----. - ---- _..-----
RIGHTS AND DUTIES-CONDITIONS
(1) BANKRUPTCY OF ANYONE WE PROTECT
Bankruptcy 01' insolvency of nnyone we proted
or anyone we [llOolcct's estate will not rl'lieve us
of any of our obligations untlcr this policy.
(2) DUTIES OF At) INJURED PERSON-MEDICAL
PAYMENTS TO OTHERS COVERAGE
The injureu person 0" someone actinli on behalf of
that person will:
(al give us written proof of claim, as soon as
possible, under oath if required;
(bl sign papers at our request to allow us to obtain
medical reports and copies of recerds.
The injured person will submit to mental and physi-
cal examination by doctors selected by us as often
as reasonably required. We may pay the injured
person or the provider of the services.
(3) LIMITS OF PROTECTION
This insurance applies separately to anyone we pro-
tect. Regardless of the number of people we protect,
claims made or persons injured, our total liability under
Personal Liability Coverage for damages resulting from
one occurrence will not exceed the amount shown on the
Declarations. All bodily injury and property dam-
age resulting from one accident or from continuous or
repeated exposure to the san;e general conditions is
considered the result of one occurrence.
Our total liability under Mcdical Payments 7'0 Others
COl'erage for all medical expense payable for bodily
injury to anyone person will not exceed the "Each
Person" amount shown on the Declarations.
(4) OTHER INSURANCE-PERSONAL LIABILITY
COVERAGE
This insurance is excess over any other valid and collect-
ible insurance. However, if the other insurance is specifi-
cally written as excess insurance over this policy, the
limits of this policy apply first.
Ifat the time ofloss there is otherinsurance in the name
of an association or corporation of property owners
covering the same p~operty covcred by this policy, the
insurance afforded by this policy shall be excess over the
amount recoverable under such other insurance.
(51 SUIT AGAINST US
The terms of this policy must be complied with before
suit may be Lrought ngainst us.
The legal liability of nnyone we protect must be
ul'lermined before suit under /'asollal Liability COl'a.
a/il' may be brought at;ainst us. This determination may
be by acourtoflaworby written alireementofall parties,
includint; us.
No one has thc right to make us a party to a suit to
detcrmine the liability of anyone we protect.
(6) YOUR DUTIES AFTER A LOSS
When there is an accident or occurrence anyone
we protect will:
(al notify us or our Agent, in writing, as soon as
possible, stating:
1. your name and policy number;
2. the time, place, and circumstances of the
accident or occurrence;
3. names and addresses of injured persons
and witnesses;
(bl send us promptly any papers that relate to the
accident or occurrence;
(cl at our request:
1. assist in making settlement;
2. help us enforc'e any right or'recovery
against any party liable to anyone we
protect; .
3. assist in the conduct of suits;
4. attend hearings and trials;
5. secure and give evidence and obtain the
attendance of witnesses.
(dl under the coverage Damage To Property Or
Others, send us, \vithin 60 days of the 1055,
sworn proof ofloss. Anyone we protect shall
also exhibit the damaged property if within
their control.
Anyone we protect will not, except at one's own cost,
make payments, assume obligations or incur expenses,
other than for first aid to other persons and animals at
the time of the bodily injury.
16
I
11
,
SECTION III-RIGHT~~ND DUTIES-GENERAL. OLICY CONDITIONS
We, you and anyone else protected by this policy must
do certain things in order fOI' the terms of thc policy to
apply.
(1) ACCOUNTING (Erie InslIrance Exchallge Only)
X Eric Indemnity Company may kcep up to 25<:;; of the
premium written 01' assumed by Eric Insurance Ex.
change as compensation for (Al bccoming and acting as
Attorney-in.Fact, (il) mana6ring the business and affait.s
of Eric Insurance Exchange, its affiliates and subsiuiar-
ies, and fC) paying general administrative expenses,
including sales commissions, salaries and employee
benefits, taxes, rent, depreciation, supplies and data
processing.
The rest of the premium will be placed on the books of the
Eric Insurance Exchange. We will deposit or invest this
amount as permitted by law. This amount will be used
to pay losses, loss adjustment expenses, investment
expenses, damages, legal expenses, court costs, taxes,
assessments, licenses, fees, and other governmental
fines and charges, establishment of reserves and sur-
plus, and reinsurance, and may be used for dividends
and other purposes Eric Indemnity Company decides
arc to the advantage of the Subscribers.
(2) ASSIGNMENT
Interest in this policy may be transferred only with our
written consent.
If you die, the policy will cover:
fa) anyone we protect who is a member of your
household at the time of your death. but only
while a resident of the residence premises;
(b) anyone having lawful possession of insured
property until a representative is appointed,
but only until the end of the policy period
during which your death occurs;
(c) your legal representative, but only while per-
forming duties as your representative and
only until the end of the policy period during
which your death occurs.
13) CANCELLATION
Your Right to Cancel
You may cancel this policy by mailing 01' delivering to
our Agent or us written notice stating at what future
date you want the cancellation to take effcct. We mav
waive these requirements by confirming the date of
cancellation to you in writing.
Our Right to Cancel or Refuse to Continue
We may cancel or refuse to continue this policy by
mailing you written notice stating the cffective date of
ou,' action. Our action will comply with the laws of the
state in which your residence premises is located. We
reserve the right to cancel for your noncompliance with
our premium payment plans. We do not waive our right
to cancel, even if we have accepted prior late payments.
Our cancellation 01' rcfusal to continue this policy will
not take effcct until at least 30 days C\Iaryland-45 days
except for non.payment of premium) after we send it.
Method of Giving Notice
~lailing notice to the address shown on the Deelm'a.
tions will be sufJicient proof of notice. The policy period
will end on the date and time stated in the notice.
Return of Premium
If you l' policy is canceled by you or us, we will return
the pro rata unused share of your premium. Cancella-
tion will be effective even if we have not given or offered
any return premium.
(4) CONCEALMENT, FRAUD OR
MISREPRESENTATION
This entire policy is void if, before or after a loss, 3nyone
we protect has intentionally concealed, or misrepre-
sented, any material fact or circumstance concerning
this insurance.
In the event of a fraudulent claim, we will not make
payment for the 1055.
(5) COOPERATION
You agree to cooperate with us by:
(a) truthfully completing and promptly returning
questionnaires and audit forms about this in-
surance;
(b) permitting and helping with inspections and
audits; and
(c) complying with specific recommendations to
improve your risk.
(6) HOW YOUR POLICY MAY BE CHANGED
This policy conforms to the laws of the state in which
your residence premises islocated.lfthe laws of the
state change, this policy will comply with those changes.
You may change your policy by asking us. Your re-
quest must contain enough information to identify you.
Asking our Agent is the same as asking us. Ifwe agree
with your request, we will then issue an Amended
Declarations.
We will give you the benefit of any change in coverage
made by us, if it does not require additional premium.
This change will be effective as of the date we implement
the change for you in your state.
If the information we use to determine the premium for
)'our coverage(s) changes during the policy period, we
may adjust )'our pl'emium. Premium adjustments will
bc made using rules and rates in effect for our use.
(7) NO CONTINGENT LIABILITY
IErie InslIrance Exchange Only)
You will not be assessed for the losses of Subscribers.
17
(8) oLIA RIGHT TO RECOVER FR,. OTHERS
After we make u payment under this policy, we will
have the right to recover from anyone else held respon-
sible. This right will not apply under Sectioll l if ~'ou
have waived it in writing prior to loss.
Anyone we protect will sign papers anu do whatever
is required to transfer this right to us, and uo nothing to
harm this right.
Anyone receiving payment from us and someone elsc for
the same loss willl'eimburse us up to our payment.
This condition does not apply unde,'&ctiollll to.lledical
Paymettts To Others Coveragc or Damage To Property O{
Others.
(9) POLICY ACCEPTANCE AND COOPERATION
By accepting this policy, you agree that the policy
contains all agreements relating to this insurance.
You also agree to cooperate with us in such things as:
(a) completing and returning questionnaires and
audit forms about this insurance;
(b) pennittil. :IllU helping with inspections and
auuits; and
(c) complying with specific recolllmendations to
improve your risk.
(10) POLICY PERIOD
This policy applies only to loss which occurs during the
policy period. The policy period is shown on the Decla.
I'lltions 0" Amellded Dee/Clratiolls. An ,\mellded Decla.
ratiolls tells you that the policy has been changed.
(Ill PRIORITY X
At our option, this insurance will first protectyou,your
spouse residing in YOUl' household and then others we
protect.
(12) TIME OF INCEPTION
If this policy replaces coverage in other policies which
end on the inception date of this policy, but at a different
time, then this policy will take effect when the other
coverage ends.
THIS POLICY HAS DEEN SIGNED ON OUR DEHALF AT ERIE, PENNSYLVANIA DY OUR PRESIDENT
AND SECRETARY. IF REQUIRED DY LAW, IT HAS DEEN COUNTERSIGNED ON THE DECLARATIONS
DY OUR AUTHORIZED AGENT.
~. C? 9L
Secretary
kL h.~I~
~
ERIE,
ERIE I~ISURANCE GROUP
~crr,e CUice. lca Er:e lnsurar,ce ?'ace' Erre. ?A 16530' (BIoi) 870.2CCO
2':03 E,'lr3CO~er Ea.llcn IEo. 12.921
18
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L.olWorne"
,.
i'
COZEN AND O'CONNOR
'" ""orlIIIONAL. eO""O"A'ION
ATLANTA,OA
T~ I: .--TAIUM
1800 """'''"l' "RllT
LOS ANGELES, CA
C~"'Al.OTTE. NC
PHILAO[l.P~I"', p... lfiJlOJ
NEW YORK, NY
COLUMBI.... SC
UII18155'IOOO
ceOOIIU3'Ieoo
SAN 011:00, C...
CAl.LAS, TX
''''CSU04ILl
UIS) 081"013
SEATTLE, w'"
WE:5TMONT, N.J
JEF'F'REV R. STONER
DllItleT DIAL. tltll ....11'.
November 3, 1995
Attention: Claims Department
Erie Insurance Group
P. O. Box 2013
Mechanicsburg, PA 17055
Re: Your Insured:
Policy No.:
Date of Loss:
Our Client:
Our File:
Sheryl Lubold
Q560B02592H
2/13/95
St. Paul Fire & Marine Insurance Co.
as Subrogee of Pizza Hut of Uniontown
51303
Dear Sir/Madam:
Please be advised that I am the attorney representing the
subrogation interest of st. Paul, who insured a Pizza Hut that was
destroyed by fire on February 13, 1995. Subsequent investigation
has determined that your insured's son, Brandon Schroll, who was
living with your insured at the time of this incident, was involved
in activity that eventually led to this fire. The fire caused
$122,985.00 worth of insured damage, along with approximately
$26,000.00 worth of uninsured damage. Please be advised that I
will be seeking compensation for these damages from Mr. Schroll.
Upon receipt of this correspondence, I would appreciate
being contacted by the claims adjuster responsible for handling
this file, in order to determine your claim number, policy limits,
and any additional information you may need regarding this claim.
I am further enclosing a copy of the letter that I forwarded to Mr.
Schroll, putting him on notice of this claim.
.~
'. . ... .,.....
.......__ .......4.....,.........""...~...-....----.........
.......-............-.. .
CERTIFIEn MAIL
RETURN RECEIPT REQUESTED
010170191608
RESERVATION OF RIGIlTS
This reservation of rights submitted to Thomas J. Lubold and
Cheryl A. Lubold, hereinafter called insured, by ERIE Insurance
Group, hereinafter the company, which has heretofore issued to the
insured its policy number Q56 0802592 H, that any action taken by
the company in investigating that certain occurrence alleged to
have occurred on the 13th day of February, 1995, and all facts
pertaining thereto including the cause, injuries, loss and
damages, shall not in any way change, waive, invalidate or forfeit
any of the terms, conditions and requirements of said policy; and
in the event any suit has been or shall be filed against the
insured growing out of said accident, should the company elect to
defend suit or participate therein, said defense or participation
therein by it shall not be construed to change, waive, invalidate
or forfeit any of the terms and conditions of said policy or any
of its rights thereunder. No act of the company done by way of
said investigation or defense shall be construed as an admission
of coverage under said policy. The specif ic reason for this
reservation of rights is:
Our initial report of this incident indicates that vour son is
apparentlv beina implicated in an arson case.
Please refer to
paae 13 of vour HomeProtector Extracover policv and vou will note
under the caption "What We Do Not Cover - Exclusions. Personal
Liabilitv Coveraae and Medical PaYments to others Coveraae: We do
not cover under Personal Liabilitv Coveraae and Medical PaYments
to Others Coveraae: (1\ bodilY iniurv or property damaae expected
or intended bv anvone we protect".
Finallv. the companv will
avail itself of anv other policv defenses which mav arise.
,
n ,IN THE COURT OF COM, .iN PLEAS OF CUMBERLAND COU _~ V, t'ENNSVLVANIA
JAMES B. MCNERNEY, SR.
400 North Woodlawn
Wichita, Kansas 67208
NO. 17- !;-6-;L"
6A
CivilAction
vs.
,
BRANDON K. SCHROLL
330 Hillcrest Drive
New Cumberland, PA 17070
and
TYLER KAPP
217 Geary Avenue
New Cumberland, PA 17070
and
JAMES LAUCK
513 Marsh Run Road
New Cumberland, P A 17070
",
:r.
PRAECIPE FOR SUMMONS
TO THE PROTHONOTARY:
,,/ . . .. ..~t-...:" "f{:~:r~;, ,i
""_J ..... .100. .,,__ _..f
~:"';;1;t... .., '~15#W.ti.",h.:..o:
'~'<:"!" ~".' . .:' :Z'.:~~~~;p.~:~:.t~;'~"
'. "
ID Number: 57430
.
form a belief as to the remaining allegations, and they are accordingly denied.
10. Admitted,
11. Admitted and denied. Admitted that Schroll pled guilty to "arson
endangering property." After reasonable investigation, answering defendant is without
sufficient knowledge and information to form a belief as to the remaining allegations,
and they are accordingly denied,
12. Admitted and denied. Admitted that the Lubolds were insured by
Erie at the time of this loss. After reasonable investigation, answering defendant is
without sufficient knowledge and information to form a belief as to the remaining
allegations, and they are accordingly denied,
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted and denied. Admitted that attached to plaintiff's
Complaint as Exhibit "C" is correspondence that purports to be a "Reservation of Rights,"
After reasonable investigation, answering defendant is without sufficient knowledge and
information to determine whether Erie has in fact properly reserved its rights against its
insured, and the same is therefore denied. By way of further answer, Exhibit "C" is a
writing which speaks for itself.
1 B. Admitted.
19. Denied. The policy of insurance referred to in this paragraph is a
2
I.
writing which speaks for itself.
20. Denied. The policy of insurance referred to In this paragraph is a
writing which speaks for itself.
I'
I
21. Denied. The policy of insurance referred to in this paragraph is a
writing which speaks for itself.
22. Denied. Answering Defendant specifically denies that Schroll's
conduct in attempting to ignite the couch which resulted in the destruction at the Pizza
.,
Hut was not an "occurrence" as defined by the Policy. The Policy is a writing which
speaks for itself. By way of further answer, the allegations contained herein are
ccnclusions of law to which no response is required.
23. Denied. Answering Defendant specifically denies that the property
damage to the Pizza Hut building arising from the fire was "expected or intended" by
.-
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Schroll. To the contrary, at no time relevant hereto did Schroll expect or intend to cause
property damage to the Pizza Hut building. By way of further answer, the allegations
contained herein are conclusions of law to which no response is required.
24. Denied. Answering Defendant specifically denies that under the
terms of the Policy, Erie has no obligation to provide coverage to Schroll in connection
with any claims asserted against him arising from the fire damage to the Pizza Hut. The
Policy is a writing which speaks for itself. By way of further answer, the allegations
contained herein are conclusions of law to which no response is required.
25. Admitted.
3
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I, James B. McNerney, Sr., hereby verify that I am the defendant in the above-
referenced lnilttN. and that the information contained In the foregoIng Answer and New
Matter is true and acc:urale to the best of my Information, knowledge, and belie!. I
undersland that the statements herein are made subject to the penalties of 18 Pa, C.S. S4904
relating to un~worn falsification to authorities.
~J.
Dated: May IZ.~, 1997
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ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-1583 Civil Term
JAMES B. MCNERNEY SR.,
BRANDON K. SCHROLL, TYLER
KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION - DECLARATORY
JUDGMENT
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RETURNS OF SERVICE OF COMPLAINT
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1'011 Office OUI 114M
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Pholle (717)-24lJ-HI43
1'0' (717)-24<J-H3H<J
Affidavit of Service
I, Karl Rominger, did on April 7, 1997 at 6:27 P.M., personally hand to Brandon
Schroll, at his place of employment, Karn' s Foods, 99 Lewisberry Road, New
Cumberland, P A 17070, a certified copy of a complaint, being and bearing the following.
Erie Insurance Exchange v. James B. McNerney, Sr., Brandon K. Schroll, Tyler Kapp,
and James Lauck, Civil Action NO: 97-1583 Civil Tenn, in the Court of Common Pleas,
Cumberland County, Pennsylvania. The recipient being an young male oflanky build,
with a tattoo visible on his ann, and who identified himself to me as Brandon Schroll.
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Post Office DOl 114K
Cartb)e. PA 170lJ-614K
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Affidavit of Service
I, Karl Rominger, did on April 6, 1997 al 5:35 P.M., personally hand to Tyler Kapp, at his
residence, 217 Geary Avenue, New Cumberland, P A 17070, a certified copy of a
complaint, being and bearing the following, Erie Insurance Exchange v. James B.
McNerney, Sr., Brandon K. Schroll, Tyler Kapp, and James Lauck, Civil Action NO. 97-
1583 Civil Tenn, in the Court ofCornmon Pleas. Cumberland County, Pennsylvania.
The recipient being a young male, of thin build, who identified himself to me as Tyler
Kapp.
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Affidavit of Service
I, Karl Rominger, did on April 5, 1997 at 12:02 P.M., personally hand to James
Lauck, at his residence, 513 Marsh Run Road, New Cumberland, PA 17070, a certified
copy of a complaint, being and bearing the following, Erie Insurance Exchange v. James
B. McNerney, Sr., Brandon K. Schroll, Tyler Kapp, and James Lauck, Civil Action NO.
97-1583 Civil Tenn, in the Court of Common Pleas. Cumberland County. Pennsylvania.
The recipient being an older male who identified himself to me as James Lauck.
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ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-1583 civil Term
JAMES B. MCNERNEY SR"
BRANDON K. SCHROLL, TYLER
KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION - DECLARATORY
JUDGMENT
ACCEPTANCE OF SERVICE OF COMPLAINT
1'n(
AND NOW, this
day of April, 1997, pursuant to
Pa.R.civ.p. No, 402(b), I accept service of the Complaint on
behalf of James B. McNerney Sr., and certify that I am authorized
Date: April 7 ' 1997
Esquire
to do so.
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ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-1583
JAMES B, McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendant;]
CIVIL ACTION
PRAECIPE FOR DEFAULT JUDGMENT
~
TO: LAWRENCE E. WELKER, PROTHONOTARY
Pursuant to Pennsylvania Rule of civil Procedure 1037(b),
enter judgment by default in favor of Plaintiff and against
Defendant, Tyler Kapp, for failure to file an answer to the
Complaint or otherwise respond.
,
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McNEES, WALLACE & NURICK
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By l'~dA {"L'I'~.. {. ,.1'" 'Jill
Donald B. Kau man
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney 1.0. No. 78104
100 pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiff
Dated: ~ /13/17
addressed to Defendant Kapp at the following address: 217 Geary
Avenue, New Cumberland, PA 17070,
McNEES, WALLACE & NURICK
By
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Donal B. Kaufman '
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Dated: 5'/13/97
Attorneys for Plaintiff
,
CERTIFICATE OF SERVICE
I hereby certify that on this date a true and correct copy
of the foregoing document was served by first-class mail, postage
I
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prepaid, upon the following:
JEFFREY R STONER ESQUIRE
COZEN AND O'CONNOR
THE ATRIUM
1900 MARKET ST
PHILADELPHIA PA 19103
.
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Donald B. Kaufman ~
BRANDON K. SCHROLL
APARTMENT #2, RAMBLEWOOD DRIVE
YOCUMTOWN, PA 17319
TYLER KAPP
217 GEARY AVENUE
NEW CUMBERLAND, PA 17070
JAMES LAUCK
513 MARSH RUN ROAD
NEW CUMBERLAND, PA 17070
Dated: May i , 1997
ERIE INSURANCE EXCHANGE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-1583
v.
JAMES B. McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
TO: TYLER KAPP, DEFENDANT
You are hereby notified that on
.-rnu
aga~nst you
in the above-
/j , 199_,
judgment by default has been entered
captioned case.
Date:
s- (5~- f7
I hereby certify that the nam
of the proper
person to receive this notice is:
Tyler Kapp
217 Geary Avenue
New Cumberland, Pennsylvania 17070
McNEES, WALLACE & NURICK
By
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r/d~{I;l/1 '" {{. 1.:.rr:~7L:t./)o,{
Donald B. Kaufman -
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys fur Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-1583
,
ERIE INSURANCE EXCHANGE,
plaintiff
JAMES B. McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT
.,
TO: JAMES LAUCK
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FII,E IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE
OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A
HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
FOLLOWING OFFICE TO FIND OUT vlliERE YOU CAN GET LEGAL HELP:
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CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
McNEES, WALLACE & NURICK
By
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Donald B. Kaufman
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney 1.0. No. 78104
100 pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for plaintiff
Dated: May! ' 1997
EXHIBIT A
CERTIFICATE OF SERVICE
I hereby certify that on this date a true and correct copy
of the foregoing document was served by first-class mail, postage
prepaid, upon the following:
JEFFREY R STONER ESQUIRE
COZEN AND O'CO~~OR
THE ATRIUM
1900 MARKET ST
PHILADELPHIA PA 19103
BRANDON K. SCHROLL
APARTMENT U2, RAMBLEWOOD DRIVE
YOCUMTOvm, PA 17319
TYLER KAPP
217 GEARY AVENUE
NEW CUMBERLAND, PA 17070
JAMES LAUCK
513 MARSH RUN ROAD
NEW CUMBERLAND, PA 17070
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Donald B. Kaufman '.
Dated:
I
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May
iI,
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v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-1583
I
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ERIE INSURANCE EXCHANGE,
Plaintiff
JAMES B. McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
TO: JAMES LAUCK, DEFENDANT
You are hereby notified that on
~~(j
aga~nst you
/5
, 199_,
judgment by default has been entered
in the above-
captioned case.
I hereby certify that
ll..-t.
.1,-- I~- - Ci'7
Date: ...J J
of the proper
person to receive this notice is:
James Lauck
513 Marsh Run Road
New Cumberland, Pennsylvania 17070
McNEES, WALLACE & NURICK
By
'J/ . I . /) } (( : .
'J~dl>lf't/J;lA IN'rfdJf.v.
Donald B. Kaufman -
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiff
.
,
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ERIE INSURANCE EXCHANGE,
Plaint if f
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-1583 Civil Term
JAMES B. MCNERNEY SR.,
BRANDON K. SCHROLL, TYLER
KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION - DECLARATORY
JUDGMENT
ERIE INSURANCE EXCHANGE'S REPLY TO NEW MATTER
OF DEFENDANT JAMES B. MCNERNEY. SR.
26. Denied. Paragraph 23 of the Complaint is incorporated
herein by reference.
27. Denied. Paragraph 22 of the Complaint is incorporated
herein by reference.
28. Denied. Paragraph 24 of the Complaint is incorporated
herein by reference.
McNEES, WALLACE & NURICK
By 9:.urft'l'.l1ll t!:.t,UllaU
Donald B. Kaufman
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiff
Dated: 1/0/'11
-~{
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CERTIFICATE OF SERVICE
I hereby certify that on this date a true and correct copy
of the foregoing document was served by first-class mail, postage
prepaid, upon the following:
JEFFREY R STONER ESQUIRE
COZEN AND O'CONNOR
THE ATRIUM
1900 MARKET ST
PHILADELPHIA PA 19103
BRANDON K. SCHROLL
APARTMENT #2, RAMBLE WOOD DRIVE
YOCUMTOWN, PA 17319
TYLER KAPP
217 GEARY AVENUE
NEW CUMBERLAND, PA 17070
JAMES LAUCK
513 MARSH RUN ROAD
NEW CUMBERLAND, PA 17070
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Wolowski
Dated: September 4, 1997
ERIE INSURANCE EXCHANGE,
Plaint if f
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-1583
v.
JAMES B. McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT
TO: BRANDON K. SCHROLL
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE
OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A
HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
McNEES, WALLACE & NURICK
By
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Donald B. Kaufman-
Attorney I.D. No. 49674
Kathleen A. Wolowski
Attorney I.D. No. 78104
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Dated: May J , 1997
Attorneys for Plaintiff
ERIE INSURANCE EXCHANGE,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-1583
JAMES B. McNERNEY, SR.,
BRANDON K. SCHROLL,
TYLER KAPP and JAMES LAUCK,
Defendants
CIVIL ACTION
TO: BRANDON K. SCHROLL, DEFENDANT JLll 1...
You are hereby notified that on
I '
judgment by default has been entered ag,Hnst you
r , 1997,
in the above-
captioned case.
Date: q- 1'- f7
~L J Jf
-,
I hereby certify that
and address of the proper
person to receive this notice is:
Brandon K. Schroll
Apartment #2, Ramblewood Drive
Yocumstown, Pennsylvania 17319
McNEES, WALLACE & NURICK
By
~ 1 j /. .
IJrinl { loltl"k(J..~
athleen A. Wolowski
Attorney I.D. No. 78104
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Attorneys for Plaintiff
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ERIE INSURANCE EXCHANGE
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
V.
JAMES B. MCNERNEY, SR., BRANDON
K. SCHROlL, TYLER KAPP
and JAMES LAUCK
No,: 97-1583
CIVIL ACTION
Defendants
PRAECIPE FOR ARGUMENT LIST
To: Prothonotary
Please place Defendant James B. McNerney Sr.'s Motion for Summary
Judgement on the upcoming Argument list scheduled for October 1, 1997, pursuant to Rule
210-2 of the Cumberland County Rules of Procedure. A copy of same has been forwarded
to all parties and counsel.
COZEN AND O'CONNOR
BY:~~
Jeff 0 er, Esquire
The Atrium - 3rd Floor
1900 Market Street
Philadelphia, PA 19103
(215) 665-2178
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on this date, a true and correct copy of the within Praecipe for
Argument List was served via first-class mail, postage prepaid upon the following:
Kathleen A. Wolowski, Esquire
McNees, Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Mr. Tyler Kapp
do Mrs. Janice Kapp
217 Geary Avenue
New Cumberland, PA 17070
Date:
September ~ 1997
;.~~
J e}\ R S ner, Esquire
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Mr. Brandon K. Schroll
330 Hillcrest Drive
New Cumberland, PA 17070
Mr. James Lauck
513 Marsh Run Road
New Cumberland, PA 17070
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ERIE INSURANCE EXCHANGE, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 97-1583 CIVIL TERM
JAMES B. McNERNEY, Sr.,
BRANDON K. SCHROLL, TYLER
KAPP and JAMES LAUCK,
Defendants
.
.
: CIVIL ACTION: For Declaratory Judgment
I
I
FF' A D DEFENDAN ' R
FOR SUMMARY JUDGMENI
BEFORE 1:I0FFER. P.J. AND OLER. J.
OPINION
HOFFER, P.J,:
In this opinion, we address Plaintiff's and Defendants' Cross Motions for
Summary Judgment. The Impetus of this dispute is a fire, which occurred on
February 13, 1995, at a former Pizza Hut building In Camp HIli, Pennsylvania. The
building, owned by Defendant James B. McNerney, Sr., was completely destroyed.
The parties agree that this case Is purely a question of law and should be settled
by summary judgment.
FACTUAL BACKGROUND
On February 13, 1995, Brandon K. Schroll, Tyler Kapp, and James Lauck
entered the parking lot of the former Pizza Hut because Kapp needed to use the
pay phone. Schroll and Lauck went to the rear of the building where they found
an abandoned sofa sitting under the eaves of the building. Schroll and Lauck lit
some nearby newspaper and shoved it into one of the sofa cushions. An area of
the sofa, about the size of a small melon, began to burn with flames approximately
97.1583 CIVIL TERM
six Inches high.
Kapp completed his phone call and proceeded to the rear of the building.
When he saw the flames, he was not happy with his friends. All three of the young
men then attempted to put out the fire. They patted down the cushion and poured
soda on It to extinguish the flames. They worked to put out the fire for seven to
eight minutes. When they believed the fire to be fully extinguished, they left the
scene.
Schroll, Kapp and Lauck then went to a friend's home, nearby. When they
left the friend's home they saw smoke In the distance. The young men followed
the smoke to the site of the former Pizza Hut which was now engulfed in flames.
Although they had no intention to burn down the building, It was clear to them that
the fire they had started In the sofa had not In fact been extinguished and had
smoldered and Ignited the building. As a result, the former Pizza Hut was
completely destroyed.
At the time of the fire, the building was Insured by St. Paul Fire and Marine
Insurance Company. St. Paul found the actual cash value of the damage to
McNerney's building to be $145,865.60. Due to the fact that the building had been
vacant for more than sixty days, the amount paid to McNerney was reduced by
fifteen percent, In addition to his $1000 deductible. McNerney ultimately received
2
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97.1583 CIVIL TERM
I
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$122,985.76 from St. Paul. Therefore, McNerney suffered an uninsured loss of
$22,879.84, based upon SI. Paul's calculations.
Schroll, Kapp and Lauck were eventually apprehended for their Involvement
In the fire. At the time of the fire, Schroll was eighteen years old. He lived at
home with his parents. Schroll was Insured under his parents' homeowner's polley
Issued by Plaintiff Erie Insurance Exchange. After the fire, McNerney and St. Paul
made a demand on Schroll to recover for the damage sustained In the fire. Schroll
forwarded this demand to Erie. Erie subsequently denied coverage based upon
the "expected or Intended" exclusion in the polley. 1
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A provision In the Erie polley states that:
We will pay all sums up to the amount shown on the
declarations, which anyone we protect becomes legally
obligated to pay as damages because of bodily Injury or
property damage resulting from an occurrence during a
polley period. We will pay for only bodily Injury or
property damage covered by this polley.
Plaintiffs Complaint. p. 4. Erie defined an occurrence as "an accident, Including
continuous or repeated exposure to the same general harmful conditions."
Plaintiff's Complaint. p. 5. Defendants contend that the fire damage to the former
I The exact provision in the Erie policy is: "We do not cover under Personal
Liability Coverage and Medical Payments To Others Coverage: (1) Bodily injury or
property damage expected or intended by anyone we protect." Plaintiff's Complaint. p.
4.
3
97-1583 CIVIL TERM
Pizza Hut was an occurrence, as defined by the Erie policy. According to
Defendants, the damage was accidental because Schroll, Kapp and Lauck did not
Intend or expect the Pizza Hut building to catch fire or to be destroyed. Therefore,
Defendants argue that the 'expected or Intended' exclusion does not apply and
that Erie does have a duty to defend and a duty to indemnify Schroll.
Plaintiff filed this declaratory judgment action on March 27,1997. Plaintiff's
Complaint requests a declaration 'that Erie is not obligated to provide coverage or
a defense to Schroll with respect to any and all crimes asserted against him arising
out of his conduct on or about February 13, 1995, on the Pizza Hut premises. ,2
Plaintiff's argument is based on an allegation that the destruction of the former
Pizza Hut building caused by the fire was of the same general type of damage
Intended or expected by Schroll, Kapp, and Lauck when they lit the abandoned
couch on fire.
DISCUSSION
Motions for summary judgment are governed by Pa.R.C.P. 1035.2 which
provides that:
After the relevant pleadings are closed, but within such
2 This Court will only determine if Erie has a duty to defend Schroll In any pending
or future litigation arising from his actions at the former Pizza Hut on February 13, 1995.
The duty to defend Is a broader duty than the duty to Indemnify, ~ Nationwide
Insurance v. Board of Trustees of the Unlversltv of illinois. 116 F,3d 1154 (7th Clr. , 997).
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97.1583 CIVIL TERM
time as not to unreasonably delay trial, any party may
move for summary judgment In whole or in part as a
matter of law
(1) whenever there Is no genuine Issue of any
material fact as to a necessary element of the cause of
action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, Including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Pa.R.C.P. 1035,2. In deciding a motion for summary judgment, the Court will 'view
the record in the light most favorable to the non moving party, and all doubts as
to the existence of a genuine Issue of material fact must be resolved against tile
moving party.' Ertel v. Patriot News Co., 544 Pa. 93, , 674 A.2d 1038, 1041
(1996).
DAMAGE TO THE FORMER PIZZA Hlf(
The task of this Court is to determine If, under the terms of the Erie policy,
the damage to the former Pizza Hut falls under the clause in the polley which
excludes damage 'expected or intended' by the insured. We find that, as a matter
of law, the damage to the former Pizza Hut, caused by Schroll, was not expected
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97.1583 CIVIL TERM
or at the direction of the Insured. ~Isenman at 49, 264 A.2d at 674. The court
found that '[t]here Is a very real distinction between Intending an act and Intending
a result and the polley exclusion addresses Itself quite clearly to the latter.' .tQ.
The court therefore held that because there was no basis on which to conclude
that the Insured Intended total destruction of the home, the Insurance company
must provide coverage. .tQ.
Our holding in the case at bar Is controlled by the Pennsylvania Supreme
Court's holding In Eisenman. As with someone who lights matches, believing them
to be extinguished, drops them to the ground, and later finds a home totally
destroyed, Schroll, Kapp, and Lauck were surprised by the destruction of the
former Pizza Hut. They did Ignite the couch but they did not leave the scene until
they believed that the fire was fully extinguished. It was their negligence In
attempting to extinguish the fire that caused the destruction of the Pizza Hut. Like
the boys In Eisenman, Schroll, Kapp and Lauck's Intentional acts resulted In
damage which they did not intend or expect. Therefore, Erie Is obligated to defend
Schroll In any litigation concerning the events of February 13, 1995.
The Plaintiff relies on two cases, United Services Automobile v. EI~, 385
Pa. Super. 362, 517 A.2d 982 (1986), and Nationwide Insurance v. Board of
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97.1583 CIVIL TERM
Trustees oflhe Unlversltv of~, 116 F.3d 1154 (7th Clr. 1997)4, to argue that
they should not be compelled to defend Schroll. Both of these cases deal with
exclusion provisions in homeowner's Insurance policies. Neither case controls the
outcome of the case at bar.
United Services Automobile Association v. Elltzky, 385 Pa. Super. 362, 517
A.2d 982 (1986), Involved an Insurance company which filed a declaratory
judgment action to get a determination that It need not defend Its Insureds who
were subjects of a defamation suit. The Superior Court addressed the decision In
Eisenman In the Elitzky opinion. The court said that 'Eisenman appears to align
Pennsylvania with those jurisdictions which hold that the exclusion applies if the
insured intended to cause harm of the same general type as that which did occur.'
United Services AutomoQlle Association at 372,517 A.2d at 987.
Erie points to the above language to try to convince the Court that Erie
should not be obligated to defend Schroll. They argue that the damage
intentionally caused by Schroll, Kapp and Lauck when they lit the couch on fire and
the total destruction of the former Pizza Hut that actually resulted was of the same
general type and should therefore be considered 'intended or expected' by Schroll
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· The Nationwide Insurance v. Board of Trustees of the University of illinois, 116
F.3d 1154 (7th Cir. 1997), decision comes from the 7th Circuit but it addresses
Pennsylvania law because the insurance policy in question was Issued in Pennsylvania.
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97-1583 CIVIL TERM
and excluded from coverage under the Erie polley.
We believe that the destruction of the former Pizza Hut was not damage of
the same general type as the damage Schroll and his friends intended or expected
when they lit the abandoned couch on fire. The facts in this case compel this
conclusion because Schroll and his friends lit only the couch on fire and did not
Intend or expect for there to be damage to the former Pizza Hut. They did not
leave the scene until they believed that the fire in the couch was fully extinguished.
In this case, Erie is obligated to defend Schroll for accidental damage brought upon
by the negligence of his actions.5
Erie also directs this Court's attention to Nationwide Insurance v. Board of
Trustees of the Universitv of illinois, 116 F.3d 1154 (7th Cir. 1997). This is a
decision from the United States Court of Appeals, 7th Circuit, in which the court
addressed the interpretation of a homeowner's policy. The policy was issued In
Pennsylvania and therefore controlled by Pennsylvania law. 1Q, at 1155. In
Nationwide, the insured attempted to mark an astroturf football field with the letters
F-Q.Q so that the letters could be read from above during a football game. 1Q, at
1156. The insured used lighter fluid to form the letters, then lit them on fire to
· Erie has made an argument that Pennsylvania publiC polley will be violated If
Erie Is compelled to defend Schroll. This argument falls because it is clear that the
purpose of liability insurance is to provide coverage for accidents.
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97.1583 CIVIL TERM
make the mark. ~ The Insured, In a drunken haze, left the stadium while the
letters were still burning, making no attempt to extinguish the fire. ~ at 1157. The
fire to the astroturf football field resulted In damage In excess of $600,000. k!.. at
1155.
The Insured In Nationwide Insurance testified that he did not Intend for
extensive damage to result, even claiming that he did not believe any damage to
the astroturf would result. ~ at 1156. The court rejected the Insured' claims and
found that the Insurance company was not obligated to defend the insured In
litigation concerning damage to the footbail field. Id. at 1158.
Even If Nationwide Insurance Is a precedent to follow, the case Is
distinguishable from the facts of the case at bar. The insured In Nationwide
Insurance walked away from the fire he started in the mistaken belief that it would
not cause any permanent damage. Nationwide Insurance at 1157. The
destruction of the footbail field, a result of the fire, was damage of the same type
that the insured could have expected when he lit the football field on fire in an
attempt to mark the playing surface for ail to see. Id. at 1156. The insured's
drunken haze did not excuse his actions because the damage to the football field
was a direct result of the Insured intentionaily lighting It on fire.
Instead, SChroil, Kapp and Lauck attempted to extinguish the fire they started
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97.1583 CIVIL TERM
~ j
~ r
it.
In the couch and they did not leave the scene until they believed that the fire was
out. The fire that destroyed the former Pizza Hut was a result of their negligent,
botched attempt to extinguish the fire In the couch. They did not Intend or expect
the former Pizza Hut to be destroyed because they did not light that structure on
fire. The damage to the former Pizza Hut resulted after Schroll and his friends
believed the fire they started In the couch was out.
In conclusion, Erie is obligated to defend Schroll In any pending or future
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litigation related to his actions at the former Pizza Hut on February 13. 1995. In
accord with this opinion, Plaintiff's Motion for Summary Judgment is denied and
Defendants' Motion for Summary Judgment Is granted.
11