Housing & Redevelopment Insurance Exchange v. Lackawanna County

46 Pa. D. & C.5th 408
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedApril 20, 2015
DocketNo. 08 CV 961
StatusPublished

This text of 46 Pa. D. & C.5th 408 (Housing & Redevelopment Insurance Exchange v. Lackawanna County) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Housing & Redevelopment Insurance Exchange v. Lackawanna County, 46 Pa. D. & C.5th 408 (Pa. Super. Ct. 2015).

Opinion

MINORA, J.,

The court has before it the County of Lackawanna’s motion for post trial relief along with its supplementary brief and reply brief. This motion is opposed by H.A.R.I.E. in their answer, supporting brief and sur reply brief as well as opposed by defendant Verrastro by answer and brief. Judgment in favor of defendant Verrastro has been entered by separate order of this court dated April 14, 2015.

The court entertained extensive argument by able and well prepared counsel on March 26, 2015. Previously on November 6, 2014, the court wrote an extensive forty-four (44) page decision and order following trial without jury pursuant to Pa. R.C.P. 1038. That decision contained twenty-six (26) undisputed stipulations of fact.

Additionally, it also contained the court’s one hundred and nine (109) findings of fact and conclusions of law. The entire November 6, 2014 decision and order is [411]*411incorporated herein by reference and will not be restated here.

POST TRIAL RELIEF ISSUES

The two issues raised by the County of Lackawanna in their post trial motions are stated as follows:

1. The court erred in concluding that Durkin had authority to cancel the H.A.R.I.E. policy and, therefore, the court should amend its findings and conclude that the H.A.R.I.E. policy covering the amphitheater was in full force and effect at the time when the loss occurred on February 14-15, 2007.

The County of Lackawanna (hereinafter “county”) in their supporting brief characterizes this as the “paramount issue in this case.” See county’s brief in “support of its motion for post trial relief.” p. 4. The county goes on to articulate general principles of agency law that apply to this case and this issue.

In support of their position, they cite “... a considerable body of legal authority as to the authority of an agent to cancel an insurance policy on behalf of a principal.” Id. at 4. Unfortunately, the county only cites to secondary sources such as Appleman on Insurance Law (2d.Ed. Lexis 1999); Corpus Juris Secundum (CJS); and American Jurisprudence (2d. ed. Thompson Reuters 2013). They also cite to case law from other jurisdictions.

The county candidly admits, “While not extensive the Pennsylvania case law on the issue of cancellation also provides that an agent or broker who secures a policy of insurance has no general authority to cancel a policy unless specifically authorized to do so.” Id. at 5.

[412]*412The first case that county cites in support of their position is Jones v. Dubuque Fire & Marine Ins. Co., 317 Pa. 144, 17 A. 208 (1934). In this 1934 case, there was an action based on a policy of insurance for a loss sustained by fire resulting in judgment for the insured.

The issues on appeal resulted from the trial court’s refusal to receive an offer of evidence. There was an admission that the Dubuque insurance policy was still in possession of the insured. This is a clear distinction from our case wherein the policy was surrendered by Durkin to H.A.R.I.E. prior to the occurrence of the loss. This distinction matters because surrender of a policy from an insured to an insurer is tantamount to a request for cancellation. See paragraphs 25-43, pages 18-23 of this court’s November 16, 2014 opinion.

An additional distinction is that in Jones, supra, there were two owners to the insured property at the time of the loss and one of the owners (Bessie Jones) did not consent to the cancellation and substitution of another insurance company’s policy. Jones, 17 A. at 208-209. Our supreme court ruled, ‘Where property is owned jointly, and so insured, one owner cannot cancel the policy of insurance and substitute another therefore without that consent of the coinsured.” Jones, Ibid. There was no such issue in this case. The offer to cancel in Jones did not attempt to show the consent of both owners.

In this context of a retained policy without the consent of both owners the court stated, “An agent who secures a policy of insurance has no general authority to cancel the policy and substitute another therefore, unless specifically authorized to do so. Jones. Ibid.

The statement quoted does not deal with our facts of a [413]*413previously surrendered policy and no dispute of authority for cancellation among co-owners before the loss occurred. Therefore, the court rules that the 1934 case cited is not applicable herein.

The county’s next case cited is Hendricks v. Continental Ins. Co. of City of New York, 121 Pa. Super. 390, 183 A. 363 (1936). This 1936 case is clearly not applicable to the facts in our case and the citation of it as such is quite disturbing to this court and counsel’s obligation of candor to the tribunal.

In our case, the county, the insured through its agent Durkin, surrendered the policy to H.A.R.I.E. and initiated the cancellation of the policy erroneously thinking that the Toyota Pavilion was also sold when Montage Mountain was sold to Sno Mountain.

In Hendricks, supra., at 393, 364, the superior court quite clearly stated in its recitation of the facts, “On March 13, 1934 the defendant company mailed to the plaintiff from its Philadelphia office, written notice of cancellation of the policies.” Hendricks, 183 A. 393-394. emphasis added. All parties and this court are aware of the state of the law that different standards apply when an insurance policy is cancelled at the initiation or instance of the insurance company (H.A.R.I.E. herein) then when cancelled at the insured’s initiation or instance (County herein): See court’s November 6, 2014 opinion at pages 27-31, paragraph 62-72. See also Coppola v. Insurance Placement of Pennsylvania, 386 Pa. Super. 413, 415, 563 A.2d 134 (1986); Scott v. Southwestern Mutual Life Association, 436 Pa. Super 242, 642 A.2d 587, 590 (1994).

Although not binding on this court, we also reviewed county’s citation to H.R. Woolridge Co. v. Smith, 5 Pa. [414]*414D.&C.3d 230 (1978), a case out of Clearfield County. This case involved a dispute between the plaintiff, an insurance agency and the defendant an insured. Significantly, no insurance company was involved in this dispute, so it is factually distinct from our case.

The case revolved around an insured not reimbursing his agent who advanced premium payments on the insured’s behalf. The two types of insurance involved were workman’s compensation and auto coverage.

The court in Woolridge, supra, states that the plaintiff H.R. Woolridge Co. as an insurance broker, “is considered by law to be an agent for the insured.” Woolridge, 5 Pa. D.&C. at 234. The court goes on to state, “courts tend to give a broker broad authority in acting to meet a client’s needs.” Woolridge, Ibid.

However, in Woolridge, the court states, “...while a broker’s authority to purchase insurance is broad, his authority to cancel is quite narrow.” Id. at 235.

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Related

Densmore v. Hartford Accident & Indemnity Company
221 F. Supp. 652 (W.D. Pennsylvania, 1963)
Scott v. Southwestern Mutual Fire Ass'n
647 A.2d 587 (Superior Court of Pennsylvania, 1994)
Retenauer v. Flaherty
642 A.2d 587 (Commonwealth Court of Pennsylvania, 1994)
Coppola v. Insurance Placement Facility
563 A.2d 134 (Supreme Court of Pennsylvania, 1989)
Jones v. Dubuque Fire & Marine Insurance
176 A. 208 (Supreme Court of Pennsylvania, 1934)
Hendricks v. Continental Insurance
183 A. 363 (Superior Court of Pennsylvania, 1935)

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Bluebook (online)
46 Pa. D. & C.5th 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/housing-redevelopment-insurance-exchange-v-lackawanna-county-pactcompllackaw-2015.