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HomeMy WebLinkAbout2008-925 Civil DONEGAL MUTUAL INSURANCE : IN THE COURT OF COMMON PLEAS OF COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : HARLEYSVILLE MUTUAL : INSURANCE COMPANY, : DEFENDANT : 08-0925 CIVIL TERM IN RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., February 19, 2009:-- February 8, 2008 On , plaintiffs, Donegal Mutual Insurance Company, Erie Insurance Exchange, and Federated Insurance filed a complaint for a declaratory judgment against defendant, Harleysville Mutual Insurance Company. Plaintiffs seek a declaration that defendant is responsible for a prorated share of a settlement they paid to Jeffrey L. Souder and Mary Ellen Robinson in a suit instituted by Souder and Robinson for damage to their home at 5845 Spring Court in East Pennsboro Township, Cumberland County. Plaintiffs filed a motion for summary judgment. Subsequently, an order was entered on December 4, 2008, removing Erie Insurance Exchange and Federated Insurance as plaintiffs and referring their dispute with Harleysville Mutual Insurance Company to arbitration. The motion for summary judgment by the remaining plaintiff, Donegal Mutual Insurance Company, and a cross-motion for summary judgment by defendant, Harleysville Mutual Insurance Company, were briefed and February 4, 2009 argued on . Jeffrey Souder and Mary Robinson took possession of their home on March 4, 08-0925 CIVIL TERM 1997. In a suit filed on August 10, 2005, they sought damages for water damage and 1 mold growth against the builder, The McNaughton Company. McNaughton joined an additional defendant, Jeffrey A. Wilbur Plumbing & Heating, Inc., alleging that when it installed a drainpipe in an upstairs shower it left it unconnected which led to a leak of drain water into a basement crawl space during times that the shower was used. This resulted in continuous damage to the property which was not discovered by the owners until May 23, 2004. The Souder and Robinson suit was settled for $140,000 with a release entered into between Souder and Robinson and The McNaughton Company, Jeffrey A. Wilbur Plumbing & Heating, Inc., Pennsylvania Mutual Casualty Insurance Company, Erie Insurance Exchange, Donegal Mutual Insurance Company and Federated Insurance. Defendant Harleysville, which insured the Wilbur company, was placed on notice of the underlying litigation but refused to participate in the defense or the funding of the settlement. Jeffrey A. Wilbur Plumbing & Heating, Inc., was insured by plaintiff, Donegal Mutual Insurance Company from March 1997 to May 1, 1998; by defendant, May 1, 1998 to May 1, 2001 Harleysville Mutual Insurance Company from ; by Federated Insurance from May 1, 2001, to October 30, 2002; and by Erie Insurance Exchange from November 1, 2002, to May 25, 2004. Thus, Harleysville did not insure __________ 1 Their complaint alleged causes of action for breach of a sales agreement, fraudulent misrepresentation, negligent misrepresentation, innocent misrepresentation, negligence, violation of the Interstate Land Sales Act, violation of the Real Estate Seller Disclosure Act, unfair trade practices, and breach of an implied warranty of habitability, all secondary to a purported latent construction defect in the home and failure to -2- 08-0925 CIVIL TERM the Wilbur company when it installed the drainpipe in 1997 nor when the alleged damages caused by the alleged negligent installation of the bathroom drainpipe was discovered in 2004. DISCUSSION Harleysville has not admitted that any damages occurred to the Souder/Robinson property in the manner as alleged by plaintiff. Those facts being in dispute, Donegal’s motion for summary judgment must be denied. Harleysville maintains that its motion for summary judgment must be granted because, even if some damages caused by the water leak continuously occurred to the Souder/Robinson property, and even if those damages were caused by the negligence of the Wilbur company in 1997 and were not discovered by the owners until 2004, its insurance coverage in force between May 1, 1998, and May 1, 2001, by law, is not applicable to the Souder/Robinson claim. Harleysville maintains that under Pennsylvania law the general rule is that a tort occurs for insurance coverage purposes when the injuries caused by the tort first become apparent or manifest themselves in a way that would put a reasonable person on notice of an injury: the manifestation trigger theory. Plaintiff maintains that on the facts alleged in this case insurance coverage is triggered continuously from first exposure through when the injuries caused by the tort first become apparent: the continuous trigger theory. In every case cited by plaintiff and defendant the court interpreted language in remediate that defect. -3- 08-0925 CIVIL TERM an insurance policy that set forth when coverage applied. The Harleysville insurance policy covering the Wilbur company between May 1, 1998, and May 1, 2001, is not in the record. Plaintiff has made no averments as to any part of the policy language, defendant has made no admission as to any part of the policy language, nor is there a stipulation as to any part of the policy language. The record is insufficient for us to considered granting summary judgment for a declaration on an issue regarding the scope of coverage. ORDER OF COURT AND NOW, this day of February, 2009, the cross-motions of plaintiff and ARE DENIED. defendant for summary judgment, By the Court, Edgar B. Bayley, J. Thomas E. Brenner, Esquire For Plaintiff Christine L. Line, Esquire 1200 Camp Hill Bypass, Suite 205 Camp Hill, PA 17011 For Defendant :sal -4- DONEGAL MUTUAL INSURANCE : IN THE COURT OF COMMON PLEAS OF COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : HARLEYSVILLE MUTUAL : INSURANCE COMPANY, : DEFENDANT : 08-0925 CIVIL TERM IN RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of February, 2009, the cross-motions of plaintiff and ARE DENIED. defendant for summary judgment, By the Court, Edgar B. Bayley, J. Thomas E. Brenner, Esquire For Plaintiff CHRISTINE L LINE ESQUIRE 1200 CAMP HILL BYPASS SUITE 205 CAMP HILL PA 17011 For Defendant :sal