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HomeMy WebLinkAbout95-3899 civilFRANK ROBERTO and IN THE COURT OF COMMON PLEAS OF JUNE ROBERTO, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs · v. NO. 95-3899 CIVIL TERM ERIE INSURANCE EXCHANGE, Defendant IN RE: PLAINTIFFS' AND DEFENDANT'S MOTION FOR POST TRIAL RELIEF ORDER OF COURT AND NOW, January 15, 1998, after careful consideration, Plaintiffs' Motion for Post Trial Relief is denied and Defendant's Motion for Post Trial Relief is denied. By the Court, .U. William P. Douglas, Esquire Douglas, Douglas & Douglas 27 West High Street P.O. Box 261 Carlisle, PA 17013 For the Plaintiffs Donald B. Kaufman, Esquire Debra P. Fourlas, Esquire McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 For the Defendant FRANK ROBERTO and · IN THE COURT OF COMMON PLEAS OF JUNE ROBERTO, ' CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs · v. · NO. 95-3899 CIVIL TERM ERIE INSURANCE EXCHANGE, · Defendant · IN RE: PLAINTIFFS' AND DEFENDANT'S MOTION FOR POST TRIAL RELIEr' OPINION HOFFER, P.J. In this opinion, we address Plaintiffs' Motion for Post Trial Relief and Defendant's Motion for Post Trial Relief. The facts of this case are as follows: Plaintiffs built the home at issue in 1972. (Notes of Tdal Testimony, November 12, 13, 1996, hereinafter 'N.T.', page 67.) Plaintiffs have had home owners insurance with Erie Insurance since 1962. (N.T., 68.) In 1976, aluminum siding on Plaintiffs' home was damaged by hail and Plaintiffs decided to replace the siding with a brick facing on two sides of the house. (N.T., 68, 69.) The contractor dug a trench four to five feet down, next to the house, and hand tamped the earth in the trench to pack it down· (N.T., 7, 8.) A footer was placed in the trench using reinforced concrete to support the brick facing· (N.T., 8.) After a proper curing period, the bricks were layered on top of the footer, using wall ties for additional support. (N.T., 9.) A small space, called a finger joint, was left between the brick and the home. (N.T., 13.) 95-3899 CIVIL TERM From the time the bdck was installed in 1976 until eady 1994, the Plaintiffs had no obvious problems with the bdck facing. (N.T., 74.) However, the brick facing on Plaintiffs' home suffered damage in the winter of 1993-94 when excessive snowfall and cold temperatures occurred. (N.T., 47.) In January of 1994, water damaged part of the master bedroom and bath, an area around the front door, and a small portion of the dining room. (N.T., 83, 84.) A few days later the Plaintiffs discovered that the bdck facing had separated from the walls of the home. (N.T., 79.) On January 21, 1994, the Plaintiffs contacted the Defendant to make a claim. Plaintiffs were told Ede was very busy, due to the severe winter, and to wait until an adjuster could come out to investigate. (N.T., 85.) When the adjuster ardved, he said it was a sizable claim that he could not handle on his own and he told the Plaintiffs to get an independent appraisal and bid on the necessary repairs. (N.T., 87.) Plaintiffs obtained an estimate for $35,717.46 and submitted it to the Defendant. (N.T., 88.) Ede sent an engineer to investigate the damage to Plaintiffs' home in June of 1994. (N.T., 89.) Defendant's engineer determined that the damage was a maintenance problem, due to settling, and payment was denied. (N.T., 90.) Plaintiffs hired their own engineer to inspect the damage. This engineer determined that the problem with Plaintiffs' bdck facing was caused by 2 95-3899 CIVIL TERM water in the finger joint behind the facing, which froze and pushed the bdck away from the home. The engineer stated that this was a result of the accumulation of snow and ice. (N.T., 28.) Plaintiffs challenged Ede's decision to refuse.the claim and a complaint was filed July 21, 1995. (Plaintiffs' Complaint.) Defendant claimed that the Plaintiffs' policy included a clause which limited the time in which a cause of action could be filed against Ede to one year from the time damage was incurred. Throughout the proceedings, Defendant maintained that Plaintiffs' complaint was barred by the provision in the Policy because the complaint was filed in July of 1995, eighteen months after the damage occurred. The case proceeded to a jury tdal. The tdal was bifurcated and, after the Plaintiffs rested their case, the jury found that the Defendant, by its conduct, waived the enforcement of the one year time limit provision. After the jury's finding, the tdal continued with respect to whether Defendant was obliged to pay for the damage to Plaintiffs' home. The jury found in favor of the Defendant. Plaintiffs filed a Motion for Post Tdai Relief, asking for either judgment in their favor not withstanding the verdict, or a new tdal. Plaintiffs presented altemative theories on which relief could be granted: (1) the jury's verdict was against the weight of the evidence; or (2) a collapse provision in the Policy should apply to oblige Defendant to pay Plaintiffs' claim. Defendant also filed a Motion for 95-3899 CIVIL TERM Post Trial Relief asking for judgment in its favor on the basis that Plaintiffs' suit was barred by the one year time limit provision in the Policy. Discussion A new trial can be granted only when a jury's verdict is so against the weight of the evidence that it shocks one's sense of justice. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995). "It is black letter law in this jurisdiction that a new trial should not be granted because of a mere conflict in testimony, and that the finder of fact is free to believe all, part, or none of a witness' testimony." Watson v. Amedcan Home Assur. Co, 454 Pa. Super. 293, 303-304, 685 A.2d 194, 199 (1996). Moreover, it is within the province of the jury to reconcile conflicting statements while reaching a verdict: ~Seewagen v. Vanderkluet, 338 Pa. Super. 534, 540, 488 A.2d 21, 24 (1985). At trial, Plaintiffs' engineer testified that the damage was a result of snow and ice accumulating on the Plaintiffs' home. Defendant's engineer testified that the damage was a maintenance problem caused by settling and faulty construction. The jury's role was to hear this testimony and value it in order to reach a verdict. It was the province of the jurors to render a verdict. The jury heard conflicting testimony, they weighed the testimony, and the jury found in favor of the Defendant. 95-3899 CIVIL TERM Plaintiffs' also assert that a collapse provision in the Policy is applicable in this case and should oblige Defendant to pay for the damage to Plaintiffs' home. The Superior Court has recognized that for damage to fall under a collapse provision, total destruction is required. Dominick v. Statesman Ins. Co ,. Pa. Super. , ,692 A.2d 188, 190 (1997). The collapse provision in the Policy does not apply because Plaintiffs' home is' substantially intact. The walls of Plaintiffs' home are still standing; the brick facing is merely bulging and cracking. There is nothing in the record which says that the Plaintiffs were unable to live in their home while the damage was visible. The damage to the brick facing is exterior damage only and does not constitute collapse. Defendant is not obligated under the collapse provision of the Policy to pay for the damage to Plaintiffs' home. Defendant also filed a Motion for Post Tdal Relief asking for judgment in its favor not withstanding the verdict on the issue of whether Defendant waived the enforcement of the one year time limit provision in the Policy. As cited above, it is the province of the jury to believe all, part, or none of a witness' testimony. ...Watson at 304, 199. The jurors heard testimony during Plaintiffs' case in chief that led them to find that the Defendant, through its own actions, waived the one year time limit provision in the Policy. This Court will not upset the jury's finding, and, in any event the issue became moot when the jury found in Defendant's favor on 5 95-3899 CIVIL TERM causation. For the reasons stated, neither Plaintiffs nor Defendant merit a new trial or judgment not withstanding the verdict. Plaintiffs' Motion for Post Trial Relief is denied and Defendant's Motion for Post Trial Relief is denied. 6