Erie Insurance Exchange v. Maier

963 A.2d 907, 2008 Pa. Super. 297, 2008 Pa. Super. LEXIS 4378, 2008 WL 5413481
CourtSuperior Court of Pennsylvania
DecidedDecember 31, 2008
Docket2094 WDA 2007
StatusPublished
Cited by5 cases

This text of 963 A.2d 907 (Erie Insurance Exchange v. Maier) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erie Insurance Exchange v. Maier, 963 A.2d 907, 2008 Pa. Super. 297, 2008 Pa. Super. LEXIS 4378, 2008 WL 5413481 (Pa. Ct. App. 2008).

Opinions

OPINION BY

KLEIN, J.:

¶ 1 Erie Insurance Exchange (Erie) appeals from a declaratory judgment ordering it to defend and indemnify Mark W. Maier and Emily A. Maier and denying its cross-motion to refuse to order it to defend and indemnify.1 We reverse both orders and rule that Erie is under no obligation to either defend or indemnify the Maiers.

¶ 2 The underlying lawsuit was brought by First National Bank of Pennsylvania as successor in interest to National Bank of Northeast (collectively, “the Bank”). Essentially, the Bank claimed that the Maiers participated in a fraud on the Bank as a creditor. The Bank represents creditors of Jeffrey Anthony and Caroyln Dolak-Anthony, secured by a home they owned. The Maiers purchased the home for $650,000, and because the Bank believed that was all that could be received from the property, agreed to forego its interest in a balance larger than that. However, it is alleged by the Bank that the Maiers agreed to pay an additional $200,000 for [909]*909“personal property” which was worth much less than that. The reason was to induce the creditors to allow the interest in the property to pass and have the Antho-nys receive some cash.

¶ 3 While it is clear the allegations of intentional misrepresentation and conspiracy are not covered by the Erie homeowners’ policies, the Maiers alleged and the trial court held that because one count claimed “negligent misrepresentation,” the policies should cover the First National lawsuit. We disagree for a number of reasons.

Negligent Misrepresentation is not an Occurrence

¶ 4 We first note the Pennsylvania Supreme Court in Kvaemer Metals Division of Kvaemer U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888 (2006) has cautioned against looking beyond the underlying complaint and being overly inclusive in defining an “occurrence.” It said that words should be used in their normal context, and be used in their natural, plain and normal sense. An occurrence has been defined by our Supreme Court as an “accident.” An accident is a “something that occurs unexpectedly or unintentionally.” The key term in the ordinary definition of “accident” is “unexpected.” “Id. at 898.” Thus, an occurrence is generally an unintended event. Viewing an occurrence this way makes sense in most circumstances and follows the idea that intentional acts are not occurrences. Following this definition, even a “negligent” purchase agreement of $200,000 for personal property is not an “occurrence.”

¶ 5 The gist of the action in the First National case is a charge of conspiracy and fraud. While the Anthonys may have had a relationship and duty to First National, the Maiers did not. It is hard to see how the Maiers could be responsible to First National unless they intentionally participated in a fraud.

¶ 6 The language of the complaint, typically the touchstone in determining coverage in a declaratory judgment action, indicates the acts complained of were intentional. For example:

At the time they signed and executed the Articles of Agreement, Settlement Statement, and other closing documents, Defendants knew that the true purchase price of the Property was $850,000.00.

Plaintiffs Complaint, Count III — Negligent Misrepresentation, ¶ 125, 9/22/06.

Defendants’ representation on the Articles of Agreement, Settlement Statement, and other closing documents that the full purchase price of the Property was $650,000.00 was a misrepresentation of a material fact.

Id. at ¶ 126.

Defendants misrepresented the purchase price of the Property with the intent of inducing MBNE to release liens on the property.

Id. at ¶ 129.

¶ 7 In its complaint against the Maiers, the Bank makes allegations that the Mai-ers affirmatively knew of the incorrect price2 and that the Maiers intended the Bank to rely upon the misrepresentation to the Bank’s detriment. Thus, we are faced with allegations, although generally labeled as “negligent misrepresentation,” which actually go to specific and intentional actions and results. Therefore, the alle[910]*910gations do not constitute an “occurrence” as required by the policy.

¶ 8 This result can be seen by looking at the four requirements to prove a claim of negligent misrepresentation.

Negligent misrepresentation requires proof of: 1) a misrepresentation of a material fact; 2) made under circumstances in which the misrepresenter ought to have known its falsity; 3) with an intent to induce another to act on it; and 4) which results in injury to a party acting in justifiable reliance on the misrepresentation.

Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 277 (2005).

¶ 9 The elements of the claim as given by our Supreme Court demonstrate that while a specific knowledge of the falsity of the claim is not a requirement3 there is an intent for another person to rely on the misrepresentation. Here, in the underlying claim, the complaint alleges that there was specific knowledge of the falsity of the statement. This makes the claim as found in the complaint more akin to intentional misrepresentation. Even so, the claim of negligent misrepresentation still contains an element of specific intent which takes the claim outside the realm of the unintentional.

¶ 10 Therefore, this was not an “occurrence” or accident. As demonstrated, even if this were “negligent” (i.e. the defendants should have known the falsity of the statement) misrepresentation, there is still no liability unless there was a concurrent intent to have the other person act in detrimental rebanee. Therefore, even if this situation could be stretched to be considered an “occurrence” after Kvaemer, there is no coverage because it is an intentional act.

There was no Loss of Use

¶ 11 We begin by noting that no party has cited to any binding Pennsylvania case law on this specific question.

¶ 12 The suffering of economic loss on a transaction does not constitute “loss of use” of the property, the only damage that could possibly bring this under the coverage of the policies. Here, the only “damage” is the Bank’s release of its ben on the property. Once again, that damage is not within the common sense coverage of homeowner’s policies. While insurance policies are to be construed against the insurance company if there are ambiguities, when the words are clear and unambiguous, they must be given their plain meaning. Kvaemer, supra. “Loss of use” of the property comes when some accident makes the property unusable. We can find no support for the notion that loss of use includes the loss of a ben.

¶ 13 There are three policies involved in this matter: a Personal Catastrophe poh-cy, a “Homeproteetor” pobey and a “Homeowners” policy. All three policies define “property damage” to include the loss of use of tangible property.

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963 A.2d 907 (Superior Court of Pennsylvania, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
963 A.2d 907, 2008 Pa. Super. 297, 2008 Pa. Super. LEXIS 4378, 2008 WL 5413481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erie-insurance-exchange-v-maier-pasuperct-2008.