Sclabassi v. Nationwide Mutual Fire Insurance

789 A.2d 699, 2001 Pa. Super. 360, 2001 Pa. Super. LEXIS 3510
CourtSuperior Court of Pennsylvania
DecidedDecember 17, 2001
StatusPublished
Cited by14 cases

This text of 789 A.2d 699 (Sclabassi v. Nationwide Mutual Fire Insurance) 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
Sclabassi v. Nationwide Mutual Fire Insurance, 789 A.2d 699, 2001 Pa. Super. 360, 2001 Pa. Super. LEXIS 3510 (Pa. Ct. App. 2001).

Opinion

DEL SOLE, President Judge:

¶ 1 This is an appeal from the order dated October 20, 2000, in the Court of Common Pleas of Allegheny County, which sustained Appellee’s preliminary objections to Appellants’ action in assumpsit. Upon review, we affirm.

¶2 The relevant facts and procedural history are as follows. Appellants, Jack Sclabassi and his wife, Mariko Sando, filed suit against their insurance company, Nationwide Mutual Fire Insurance Company, Appellee, for reimbursement of legal fees and other expenses incurred by Appellants in defense of a law suit brought by Mr. and Mrs. Giegucz.

¶ 3 On September 17, 1993, Appellants sold their residence to the Gieguczs. On November 11, 1995, an act of vandalism occurred causing damage to a nearby sewer owned by the Borough of Dormont across from the Gieguczs’ residence. The damage to the sewer caused water and sewer damage to the basement of the Gie-guczs’ residence for which they claimed to have incurred significant expenses in repairs. They also claimed to have suffered various physical ailments and emotional distress. When their insurance company denied coverage, the Gieguczs filed suit against the company and various other parties, including Appellants. They settled their claims with all parties except Appellants. The trial court granted a compulsory nonsuit in favor of Appellant, Mariko Sando, and the jury returned a verdict in favor of Appellant, Jack Sclabas-si.

¶ 4 Three counts in the complaint brought by the Gieguczs, counts XIII, XIV and XV, alleged claims against Appellants. In count XIII they alleged fraud and deceit on the part of Appellants with regard to representations made in the Seller’s Disclosure Statement. They alleged that Appellants falsely and intentionally repre *701 sented that the property was served by a public sewer instead of a private sewer, and that Appellants had knowledge of the condition of the sewer line, necessary maintenance costs and potential liability to the Gieguczs if the sewer line caused contamination. The Gieguczs further alleged that Appellants falsely represented that only minor dampness occurred in the basement of the residence when there had been sewage overflows in the past, which would likely reoccur in the future. Also, they alleged that Appellants falsely stated that no violations of local regulations existed when a sump pump had been improperly connected to the sewer line. In count XIV, the Gieguczs incorporated count XIII, and alleged that Appellants caused them to suffer discomfort and inconvenience as a direct result of the misrepresentations. The Gieguczs indicated they suffered damages in that they were unable to use their basement and appliances, were required to use a laundromat, and suffered loss of sleep, headaches, nausea and emotional stress. In count XV, the Gieguczs incorporated counts XIII and XIV, and alleged that the fraudulent misrepresentations made by Appellants constituted intentional infliction of emotional distress.

¶ 5 Appellants sought coverage from Ap-pellee in the above lawsuit. Initially, Ap-pellee appointed counsel to represent them, pursuant to a reservation of rights letter. However, Appellee later declined to provide coverage after determining that the claim was not covered by Appellants’ policy.

¶ 6 Appellants then filed an action against Appellee claiming a violation of Pennsylvania’s bad faith statute. Appellee filed preliminary objections and both parties filed supplemental pleadings. Following a hearing on the pleadings, the trial court granted Appellee’s preliminary objections and dismissed Appellants’ claim with prejudice. This appeal followed.

¶ 7 Herein, Appellants raise the following issues for our consideration:

1. Did the underlying complaint against the insureds aver facts which support the conclusion that there had been an “occurrence” as defined by the policy of insurance?
2. Did the underlying complaint against the insureds aver facts which support the conclusion that the insureds “expected or intended” the injuries suffered by the plaintiffs in the underlying complaint?

Appellant’s Brief at 4.

¶ 8 Our standard of review for an order granting a preliminary objection in the nature of a demurrer is as follows:

¶ 9 All material facts set forth in the pleading at issue as well as all inferences reasonably deducible therefrom are admitted as true. CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1057 (Pa.Super.1999). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. Where a doubt exists whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. When reviewing a grant of demurrer, “we are bound neither by the inferences drawn by the trial court, nor by its conclusions of law.” Id. Our scope of review is plenary. Id.

¶ 10 A preliminary objection in the nature of a demurrer will be granted where the contested pleading is legally insufficient. See Pa.R.C.P. 1028(a)(4). “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demur *702 rer.” Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 883 (Pa.Super.2000).

¶ 11 Appellants argue they are entitled to reimbursement for expenses incurred in defense against the suit brought by the Gieguczs because the vandalism to the sewer line, which in turn damaged the Gieguczs’ residence, constituted an “occurrence,” and therefore Appellee was obligated to defend them under their insurance policy. They concede that Appellee would have had no duty to defend them if the only claims for damages had been those for economic losses caused by the alleged misrepresentations. They argue however, that, because those damages represented only a portion of the case, Appel-lee had a duty to defend them until the claim for damages caused by vandalism was dismissed. We disagree and find that none of the claims against Appellants were covered by the policy.

¶ 12 In General Accident Ins. Co. of Am. v. Allen, 547 Pa. 693, 692 A.2d 1089 (1997), our Supreme Court explained that it is not necessary for an insurer to defend all claims against an insured. Rather, to determine the insurer’s duty to defend we must look to the claims made in the complaint. We restated the analysis to be applied when determining whether an insurance company has a duty to defend in Redevelopment Auth. v. International Ins. Co., 454 Pa.Super. 374, 685 A.2d 581 (1996):

The duty to defend is a distinct obligation, separate and apart from the insurer’s duty to provide coverages. Erie Ins. Exchange v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Country Pools & Spas, Inc. v. Erie Insurance
Superior Court of Pennsylvania, 2024
Erie Ins. Exchange v. Wilton, K.
Superior Court of Pennsylvania, 2022
Steadfast Insurance Co. v. Berkley National Insurance Co.
217 F. Supp. 3d 904 (S.D. West Virginia, 2016)
Donaldson, K. v. Davidson Brothers, Inc.
144 A.3d 93 (Superior Court of Pennsylvania, 2016)
Penn-America Insurance v. Peccadillos, Inc.
27 A.3d 259 (Superior Court of Pennsylvania, 2011)
Tower Insurance v. Dockside Associates Pier 30 LP
834 F. Supp. 2d 257 (E.D. Pennsylvania, 2011)
American & Foreign Insurance v. Jerry's Sport Center, Inc.
948 A.2d 834 (Superior Court of Pennsylvania, 2008)
Glassmere Fuel Service, Inc. v. Clear
900 A.2d 398 (Superior Court of Pennsylvania, 2006)
Millan v. Laporta
80 Pa. D. & C.4th 105 (Lackawanna County Court of Common Pleas, 2005)
Aluise v. Nationwide Mutual Fire Insurance
625 S.E.2d 260 (West Virginia Supreme Court, 2005)
Wiltz v. Pazzalia
71 Pa. D. & C.4th 427 (Lackawanna County Court of Common Pleas, 2004)
Lytle v. CitiFinancial Services, Inc.
810 A.2d 643 (Superior Court of Pennsylvania, 2002)
Philadelphia Contributionship Insurance v. Shapiro
798 A.2d 781 (Superior Court of Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
789 A.2d 699, 2001 Pa. Super. 360, 2001 Pa. Super. LEXIS 3510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sclabassi-v-nationwide-mutual-fire-insurance-pasuperct-2001.