Ka Together, Inc. v. Aspen Specialty Ins. Co.

362 F. Supp. 3d 281
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 24, 2019
DocketCIVIL ACTION NO. 18-142
StatusPublished

This text of 362 F. Supp. 3d 281 (Ka Together, Inc. v. Aspen Specialty Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ka Together, Inc. v. Aspen Specialty Ins. Co., 362 F. Supp. 3d 281 (E.D. Pa. 2019).

Opinion

Slomsky, District Judge.

I. INTRODUCTION

On December 14, 2017, Plaintiff KA Together, Inc. ("Plaintiff" or "KA Together") filed a Complaint in the Delaware County Court of Common Pleas against its insurer, Defendant Aspen Specialty Insurance Company ("Defendant" or "Aspen"), alleging claims for breach of contract and bad faith stemming from Defendant's denial of an insurance claim made by Plaintiff for losses incurred at its real property located at 21-39 69th Street, Upper Darby, Pennsylvania (the "Property"). Plaintiff filed the insurance claim for water damage caused by two individuals who had been residing in a third-floor apartment in the Property. On January 11, 2018, Defendant timely removed the case to this Court.

Before the Court is Defendant's Motion for Summary Judgment as to both of Plaintiff's claims. Defendant argues that Plaintiff's claims are barred by the "entrustment exclusion" of Plaintiff's insurance policy, which expressly excludes coverage for all losses resulting from dishonest or criminal acts by persons to whom Plaintiff entrusts the Property. (Doc. No. 15-1.) In opposing summary judgment, Plaintiff contends that the entrustment exclusion does not apply because Plaintiff never entrusted the Property to the two individuals responsible for causing the water damage. (Doc. No. 16-2.) For the reasons that follow, the Court will grant Defendant's Motion (Doc. No. 15).

II. BACKGROUND

KA Together is a corporation that owns the real property located at 21-39 69th Street in Upper Darby, Pennsylvania (the "Property"). (Doc. No. 1-1.) The Property is a mixed commercial and residential building, with "Lou's Loans" operating out of the storefront and second floor, and a rental apartment on the third floor. (Doc. No. 15-3 at 12:18-13:10.) KA Together insures the Property with Defendant pursuant to a Commercial Property Policy (the "Policy"). (Doc. No. 15-5.) The Policy contains several exclusions from coverage, including *284an "entrustment exclusion" which reads as follows:

2. We will not pay for loss or damage caused by or resulting from any of the following:
* * *
h. Dishonest or criminal act by you, any of your partners, members, officers, managers, employees (included leased employees), directors, trustees, authorized representatives or anyone to whom you entrust the property for any purpose:
(1) Acting alone or in collusion with others; or
(2) Whether or not occurring during the hours of employment
This exclusion does not apply to acts of destruction by your employees (including leased employees); but theft by employees (including leased employees) is not covered.

(Doc. No. 15-5 at 32-33.) Since February 2015, KA Together has contracted with Sang Mook Ha, Jr. ("Ha"), employing Ha as the manager of the Property. (Id. at 9:7-9, 9:21-25.)

On February 17, 2013, KA Together executed a lease agreement for the Property's third-floor apartment with Camilo Moreno Marquez ("Marquez").1 (Doc. No. 15-4.) The agreement prohibited Marquez from transferring the lease or subletting the Property to any person without first obtaining written permission from Plaintiff. (Id. at 10.) After Marquez executed the lease agreement, a female by the name of Stephanie moved into the apartment with him. (Doc. No. 15-3 at 23:11-24:3.) For years, Marquez timely paid the rent each month. (Id. at 28:12-29:8.) Beginning with the payment due on July 1, 2016, however, Marquez and Stephanie stopped paying rent. (Id. )

On July 20, 2016, following the expiration of the grace period for Marquez's monthly rental payment, Ha visited the apartment and hand-delivered to Stephanie a ten-day notice to pay or leave the premises. (Id.; id. at 48:12-14.) Stephanie promised Ha that she and Marquez would pay the past-due rent, but Ha never received the July payment. (Id. at 29:25-30:2.) At some point in late July or early August, Marquez and Stephanie were arrested at the apartment on weapons charges and removed from the Property. (Id. at 30:7-11, 35:15-20.)

Ha had not been made aware of the arrest and was still under the impression that Marquez and Stephanie were residing in the third-floor apartment when he received a phone call from an individual claiming he had signed a lease for the apartment with Stephanie. (Id. at 40:20-41:6.) Ha told the individual on the phone that Stephanie had no authority to lease the apartment because she was not the owner of the Property or "even a signed tenant." (Id. at 41:2-25.) Ha urged the individual "not to do anything with" Stephanie and told him that any lease agreement signed between him and Stephanie was invalid and would not be accepted. (Id. at 41:24-25, 42:19-21.)

In early August 2016, shortly after receiving this phone call, Ha went to the apartment with a contractor to change the locks. (Id. at 37:7-13.) When Ha arrived, however, he encountered two individuals living in the apartment, Patrick Wideman *285("Wideman") and Tiana Barksdale ("Barksdale"). (Id. at 37:16-24.) Wideman identified himself to Ha as the individual who had previously called him about leasing the apartment from Stephanie. (Id. at 49:25-50:4.) Ha informed Wideman again that the lease he signed with Stephanie was invalid and that he and Barksdale would need to vacate the apartment. (Id. at 50:6-9.)

Wideman and Barksdale agreed to move out of the apartment, but asked Ha for some time to do so. (Id. at 50:17-51:1.) Ha agreed and allowed Wideman and Barksdale to remain in the apartment for two weeks. (Id. ) At the end of the two-week period, on or around August 24, 2016, Barksdale called Ha to request more time and Ha permitted her and Wideman one more week in the apartment. (Id. at 52:23-54:21.) One week later, on or around September 1, 2016, Barksdale called Ha begging for three more days. (Id. at 54:24-55:6.) Ha agreed. (Id. )

On September 10, 2016, once three days had past and having heard nothing further from Wideman or Barksdale, Ha went to the Property with a contractor to change the locks at the apartment. (Id. at 55:10-12; 57:5-14.) When Ha arrived, he found Wideman and Barksdale still in the apartment but "packing and moving things down to the street level." (Id. at 57:19-22.) Upon seeing this, Ha allowed Wideman and Barksdale another day, until September 11, 2016, to vacate the Property. (Id. )

On September 12, 2016, Ha received a phone call from the owner of Lou's Loans, Stan Meyerson ("Meyerson"), the business that operates on the first and second floors of the Property. (Id. at 12:18-13:4.) Meyerson told Ha that "[w]ater was flowing and flooding his store as well as his office on the second floor." (Id. at 13:9-14.) Ha immediately went to the Property and found "three sources of water running with the drains blocked" in the third-floor apartment. (Id. at 16:10-13.) More specifically, Ha found: (1) a plastic container blocking the kitchen sink drain; (2) a cloth shoved into the bathroom sink drain; and (3) the bathtub drain turned to the "closed" position. (Id.

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Bluebook (online)
362 F. Supp. 3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ka-together-inc-v-aspen-specialty-ins-co-paed-2019.