Zimmerman v. Harleysville Mutual Insurance

860 A.2d 167, 2004 Pa. Super. 383, 2004 Pa. Super. LEXIS 3363
CourtSuperior Court of Pennsylvania
DecidedSeptember 30, 2004
StatusPublished
Cited by18 cases

This text of 860 A.2d 167 (Zimmerman v. Harleysville Mutual 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
Zimmerman v. Harleysville Mutual Insurance, 860 A.2d 167, 2004 Pa. Super. 383, 2004 Pa. Super. LEXIS 3363 (Pa. Ct. App. 2004).

Opinions

OPINION BY

MUSMANNO, J.:

¶ 1 Harleysville Mutual Insurance Company (“Harleysville”) appeals from the $756,009.00 judgment entered in favor of David Zimmerman (“David”) and Marianne Zimmerman (“Marianne”) (collectively, the “Zimmermans”), d/b/a/ Frontier Lanes, for their insurance bad faith claim against Harleysville. The Zimmermans have filed a cross-appeal from the judgment entered by the trial court. We affirm.

¶ 2 This case originated as an insurance coverage dispute between the Zimmer-mans, Harleysville, and Fireman’s Fund Insurance Company (“Fireman’s”). In a prior appeal, this Court summarized the factual and procedural history of the coverage dispute as follows:

Since 1987, [the Zimmermans] have owned and operated Frontier Lanes, a bowling alley, with a lounge.1 The bowling lanes were housed in a building with [169]*169an arched roof supported by laminated timber trusses. An aluminum gridwork hung from the roof and supported a suspended tile ceiling which had an overlay of insulation and paper.
From the time of the purchase until June 30, 1993, [the Zimmermans’] business insurance2 was provided by [Fireman’s]. In April 1993, Fireman’s informed [the Zimmermans] that they would no longer write workers’ compensation policies for small accounts. Through their agent, [the Zimmermans] submitted an application for coverage, including workers’ compensation, to [Harleysville,] which on June 21, 1993 agreed to “write the account.” [The Zimmermans’] agent worked out details of coverage with the Harleysville underwriter on June 25 and had [the Zimmer-mans] sign the policies on June 30, 1993. Harleysville did not inspect the bowling alley before writing the insurance [policies].
On June 28, 1993, tiles fell £com the ceiling of the bowling alley.3 On July 2, 1993, [the Zimmermans] called their agent for a recommendation of someone to determine what the problem was. On July 13,1993, the recommended contractor, accompanied by [David], investigated the area above the ceiling and found that three of sixteen trusses supporting the roof had begun to separate.4 No immediate repairs were recommended, but it was suggested that an engineer look at the problem. Based on the eon-tractor’s report of July 14, 1993, [stating] that damage had been caused by the heavy ice and snow of the previous winter, a loss report was filed with [Fireman’s],
On July 23, 1993, a structural engineer retained by Fireman’s examined the building. He advised [the Zimmer-mans] to hire their own contractor and, on July 26,1993 issued a report in which he found that eight of the sixteen trusses were “failing/failed and in danger of collapsing.” As advised, [the Zimmer-mans] hired a local contractor, who inspected the bowling alley, accompanied by a second engineer on July 26, 1993. Both agreed they would wait for Fireman’s engineer’s report before undertaking repairs.
In the early evening of July 29, 1993, a day of high winds, [David] returned to his office, and once again, found tiles and gridwork on the alleys. After cleaning up the debris and calling his wife to tell her what had happened, he heard a loud snap and saw additional tiles and gridwork start to fall. Running to the counter area, he hid under a desk while the roof of the building collapsed.
Claims for the loss from collapse of the structure were filed with both Fireman’s and Harleysville. On September 14, 1993, Fireman’s agent sent [the Zim-mermans] a check for $21,798 for the [170]*170pre-collapse repair of eight trusses5 and denied any further liability. On November 5, 1993, Harleysville declined to cover the claim, stating that Fireman’s was responsible for the loss. On December 17, 1993, [the Zimmermans] brought suit for declaratory relief asking the Court to determine which policy provided coverage. The parties stipulated to the operative facts, and filed cross-motions for summary judgment. On June 30, 1995, the trial court held [that] Harleys-ville was obligated to indemnify [the Zimmermans] for all damage, except the amount tendered earlier by Fireman’s; Harleysville’s obligation was $668,828.00. A final order was entered on June 12, 1996.

Zimmerman v. Harleysville Mut. Ins. Co., et al, No. 1283 Pittsburgh 1996, 701 A.2d 792 (Pa.Super. filed June 18, 1997), slip opinion at 1-4 (footnotes in original). Thereafter, Harleysville filed an appeal.

¶ 3 On appeal, a panel of this Court affirmed the judgment of the trial court. Id. In an unpublished Memorandum, the panel noted that Harleysville disclaimed responsibility for coverage of the roof collapse on the grounds that (a) under the language of the policy, there was no coverage; and (b) the Zimmermans violated their contractual obligations because they did not disclose the defect to Harleysville. Id. at 5-6. The Zimmermans countered that both the windstorm and the weight of the snow were specified causes of the loss. Id. at 6. They asserted that nothing in the policy required them to prove that the precipitating cause (the weight of the snow) of the ultimate loss occurred during the policy period. Id. The Zimmermans further argued that the legal theories advanced by Harleysville, i.e., “loss in progress” and “fortuity,” each require evidence that the Zimmermans had prior knowledge of an ongoing or imminent collapse, which they did not have. Id.

¶ 4 In resolving Harleysville’s claims, this Court did not disturb the trial court’s finding of fact that two “occurrences”6 had caused distinct effects to the structure at different times: “the injurious effect of the past winter weather occurred when tiles fell and the trusses began to separate; and the injurious effect of high winds took place when the roof collapsed.” Id. at 8. The panel further concluded that there is no ambiguity in Pennsylvania law for determining liability when damages occur over time and under different insurers. Specifically, the panel concluded that Pennsylvania has not adopted the “loss in progress” theory advanced by Harleysville, but has adopted the “cause and effect” test first set forth in Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir.1982), and adopted by this Court in D’Auria v. Zurich Ins. Co., 352 Pa.Super. 231, 507 A.2d 857 (1986). Zimmerman, slip opinion at 8. “This test looks to whether there was but one proximate, uninterrupted and continuing ‘cause’ or whether there were multiple occurrences.” Id. [171]*171“In the latter situation, the court fixes the time of the occurrence by reference to the time when the injurious effects of the occurrence took place.” Id. (emphasis in original) (citing Appalachian Ins. Co., 676 F.2d at 62). Because “Pennsylvania law provides clear authority for determining liability when damages occur over time and under different insurers[,]” and “[i]n the absence of ambiguity in this area of the law,” the panel held that Harleysville was the insurer when the collapse occurred and therefore liable for the loss. Id. at 9.

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Bluebook (online)
860 A.2d 167, 2004 Pa. Super. 383, 2004 Pa. Super. LEXIS 3363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerman-v-harleysville-mutual-insurance-pasuperct-2004.