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Home My WebLink About2006-4768 Civil JEFFREY and DONNA F. MAURER, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW V. : : ERIE INSURANCE COMPANY, : ERIE INSURANCE EXCHANGE, : and ERIE INSURANCE : PROPERTY & CASUALTY : COMPANY, MEMBERS OF THE : ERIE INSURANCE GROUP and : EUGENE J. AUFIERO & : ASSOCIATES, INC., : Defendants : No. 2006-4768 CIVIL IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE HESS, J., OLER, J., AND EBERT, J. ORDER OF COURT AND NOW , this 7th day of January, 2008, upon consideration of the Preliminary Objections filed by Erie Insurance Company, Erie Insurance Exchange and Erie Insurance Property and Casualty Company, Members of the Erie Insurance Group (collectively hereinafter “Erie Insurance”), and Eugene J. Aufiero and Associates, Inc. (hereinafter “Aufiero”), IT IS HEREBY ORDERED AND DIRECTED that the Preliminary Objections HEREBY SUSTAINED of Erie Insurance and Aufiero are and Counts III and IV of the DISMISSED Plaintiffs’ Second Amended Complaint are with prejudice. BY THE COURT, M.L. Ebert, Jr. J. BARLEY SNYDER LLC Ronald H. Pollock, Esquire Court I.D. No. 52586 Julie S. Lee, Esquire Court I.D. No. 92848 126 East King Street Lancaster, PA 17602 Attorneys for Defendant Erie Insurance Steven G. Bardsley, Esquire 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Attorney for Defendant Aufiero Douglas G. Miller, Esquire West Pomfret Profession Building 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs 2 JEFFREY and DONNA F. MAURER, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW V. : : ERIE INSURANCE COMPANY, : ERIE INSURANCE EXCHANGE, : and ERIE INSURANCE : PROPERTY & CASUALTY : COMPANY, MEMBERS OF THE : ERIE INSURANCE GROUP and : EUGENE J. AUFIERO & : ASSOCIATES, INC., : Defendants : No. 2006-4768 CIVIL IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE HESS, J., OLER, J., AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., January 7, 2008 - In this civil action, Defendants Erie Insurance Company, Erie Insurance Exchange, and Erie Insurance & Casualty Company, Members of the Erie Insurance Group (collectively hereinafter “Erie Insurance”) and Eugene J. Aufiero & Associates, Inc. (hereinafter “Aufiero”) filed preliminary objections in the nature of a demurrer to counts III and IV asserted against them by Plaintiffs Jeffrey and Donna Maurer. Plaintiffs in this case, Jeffrey and Donna Maurer, claim that; 1) they have pled sufficient factual averments to support their claims against Defendants Erie Insurance and Aufiero for negligence and breach of fiduciary duty, and 2) Defendants Erie Insurance and Aufiero had a duty to warn Plaintiffs of the dangerous condition of their basement wall when it undertook an inspection of the wall and agreed to prepare an expert report of its condition. For the reasons stated in this opinion, Defendants Erie Insurance and Aufiero’s preliminary objections are sustained. STATEMENT OF THE FACTS Plaintiffs, Jeffrey and Donna Maurer, filed a complaint on May 18, 2007, against Defendants alleging various claims for damages arising out of the collapse of a basement wall at their property. In August 2004, prior to the collapse of the basement wall, Plaintiffs discovered that one of the basement walls was bowed. (Pl. Compl. at 11). Upon discovery, the Plaintiffs contacted the insurer of the property, Erie Insurance. Id. at 8,12. Subsequently, on September 13, 2004, Erie Insurance sent an engineer from Aufiero to investigate the basement’s condition. Id. at 15. After the visit, in a report dated September 14, 2004, Defendant Aufiero concluded that three of the basement’s walls were “severely bulged inward.” Id. at 18. On September 17, 2004, an agent from Erie Insurance met Plaintiffs at the property to take additional photographs of the basement. Id. at 17. However, on September 18, 2004, the rear basement wall of the home collapsed. Id. at 23. After the collapse, an investigation was undertaken by Erie Insurance to investigate the Plaintiffs’ claim. Id. at 28. On October 1, 2004, Erie Insurance denied coverage of the Maurer’s claim, stating that the collapse was caused by “earth pressure over an extended period of time, saturated earth, and hydrostatic pressure.” See Exhibit “C” to Second Amended Complaint. Plaintiffs’ Complaint against Defendants Erie Insurance and Aufiero alleges negligence and breach of fiduciary duty in Count III, and failure to warn in Count IV. Defendants Erie Insurance and Aufiero filed preliminary objections in the nature of a demurrer to all counts asserted against it by Plaintiffs. Subsequently, Plaintiffs filed an Amended Complaint to clarify their claims and address the preliminary objections filed on behalf of Defendants Erie Insurance and Aufiero. 2 The Plaintiffs, Jeffrey and Donna Maurer, continue to claim that: 1.They have pled sufficient factual averments to support their claims against Defendants Erie Insurance and Aufiero for negligence and breach of fiduciary duty; and 2.Defendants Erie Insurance and Aufiero had a duty to warn Plaintiffs of the dangerous condition of their basement wall when it undertook an inspection of the wall and agreed to prepare an expert report of its condition. DISCUSSION It is well settled that the standard of review for preliminary objections is to accept as true all well pled facts. However, conclusions of law or unjustified references contained in a complaint completely inadmissible for the purpose of preliminary objections. See Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). The Plaintiffs allege that when Erie Insurance provided a professional engineer to inspect their property, and when the Plaintiffs correspondingly placed trust in Erie Insurance and Aufiero, a fiduciary relationship was created between the parties. Plaintiffs further allege that the Defendants’ actions created a good faith obligation to protect and or warn the Plaintiffs. Unfortunately, for the Plaintiffs “[i]n Pennsylvania, there is no separate tortlaw cause of action against an insurer for negligence and breach of fiduciary duty: such claims must be brought in contract.” Ingersoll Rand Equipment Corp. v. Transportation Ins. Co., 963 F. Supp. 452, 453-54 (M.D. Pa. 1997). The Plaintiffs have stated in Count I of their Second Amended Complaint a cause of action for breach of contract, to which the Defendant Erie Insurance maintains the policy specifically relieves them of any contractual obligation. In regard to Count III of the complaint, negligence and breach of fiduciary duty are unrecognized as a cause of action against insurers in Pennsylvania. The policy itself specifically notified Plaintiffs that the purpose of any and all inspections undertaken by the Defendants “relate only to insurability and the premiums to be charged.” Under Pennsylvania law, “[t]he 3 mere fact that an insurer and insured enter into an insurance contract does not automatically create a fiduciary relationship.” Belmont Holdings Corp. v. Unicare Life & Health Insurance Company, CIV.A. 98-2365, 4, 1999 WL 123489. Plaintiffs in paragraphs 57 – 59 of their Second Amended Complaint basically maintain that the Defendants breached their fiduciary duty by not acting in good faith under the insurance policy. As noted in Belmont, Id., “although the duty of good faith and fair dealing closely resembles the duty owed by a fiduciary, Pennsylvania law does not establish a fiduciary duty based on a duty of good faith and fair dealing.” Connecticut Indem. Co. v. Markman, No. 93-799, 1993 WL 304056 at *6 (E.D.Pa. Aug. 6, 1993). In this case, the Plaintiffs in Count II of their Second Amended Complaint have alleged a count of “bad faith.” But this claim is based on the insurer’s failure to act in “good faith” under the insurance contract. Accordingly, the courts will dismiss a breach of fiduciary duty claim as redundant to a claim for such a breach of contract. Belmont, Id. Since there were no factual averments to support their claims against Defendants for negligence and breach of fiduciary duty, the first preliminary objection by Defendants Erie Insurance and Aufiero should be sustained and the Plaintiffs’ first claim should be dismissed for failure to state a cause of action for which relief can be granted. Next, Plaintiffs allege that Defendants Erie Insurance and Aufiero had a duty to warn Plaintiffs of the dangerous condition of their basement wall when they undertook an inspection of the wall and agreed to prepare an expert report of its condition. Generally the law does not impose affirmative duties absent the existence of some special relationship, be it contractual or otherwise. Elias v. Lancaster General Hosp., 710 A.2d 65, 85 (Pa. Super. Ct. 1998). Under the facts presented in this case, the law of Pennsylvania holds that such a “special relationship” is not created just because an insurer and an insured enter into an insurance contract. The Plaintiffs can point to no contractual obligation to “warn” Plaintiffs of the alleged imminent collapse. 4 The Defendants were obligated to investigate the Plaintiffs’ claim that their basement wall was damaged and then render a decision on whether such claim was covered by the insurance policy. The Defendants fulfilled this obligation by hiring Defendant Aufiero to conduct an inspection. They also fulfilled their duty by rendering a second investigation after the wall collapsed. No further duty arose that obligated Defendants to “warn” Plaintiffs of any alleged “imminent danger” of the collapsed basement wall. Since there were no factual averments to support the Plaintiffs’ claim of the Defendant’s duty to warn, the preliminary objection should be sustained and the Plaintiffs’ second claim should be dismissed for failure to state a cause of action for which relief can be granted. CONCLUSION Having considered the facts of the case along with the relevant case law, this Court finds that the Plaintiffs’ averments in Counts III and IV of their Second Amended Complaint do not state a cause of action for which relief can be granted. Therefore, Defendants Erie Insurance and Aufiero’s preliminary objections to Plaintiffs’ Second Amended Complaint will be sustained. Accordingly, the following order will be entered: 5 ORDER OF COURT AND NOW , this 7th day of January, 2008, upon consideration of the Preliminary Objections filed by Erie Insurance and Aufiero, IT IS HEREBY ORDERED AND DIRECTED that the Preliminary Objections HEREBY SUSTAINED of Erie Insurance and Aufiero are and Counts III and IV of the DISMISSED Plaintiffs’ Second Amended Complaint are with prejudice. BY THE COURT, M.L. Ebert, Jr. J. BARLEY SNYDER LLC Ronald H. Pollock, Esquire Court I.D. No. 52586 Julie S. Lee, Esquire Court I.D. No. 92848 126 East King Street Lancaster, PA 17602 Attorneys for Defendant Erie Insurance Steven G. Bardsley, Esquire 475 Allendale Road, Suite 200 King of Prussia, PA 19406 Attorney for Defendant Aufiero Douglas G. Miller, Esquire West Pomfret Profession Building 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs 6