Zimmerman v. Harleysville Mutual Insurance

860 A.2d 167, 2004 Pa. Super. 383, 2004 Pa. Super. LEXIS 3363
Superior Court of Pennsylvania·Decided September 30, 2004·Published·Cited by 18 cases

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] an 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] pre-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.

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

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

860 A.2d 167 (Zimmerman v. Harleysville Mutual Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

DeVincenzo, D. v. Erie Insurance Exhange
2025 Pa. Super. 235 (Superior Court of Pennsylvania, 2025)
Cicconi Auto v. Delikat, J.
Superior Court of Pennsylvania, 2022
Williamson, D. v. Liberty Mutual Fire Insurance
Superior Court of Pennsylvania, 2018
Rancosky v. Washington National Insurance
130 A.3d 79 (Superior Court of Pennsylvania, 2015)
Davis, R. v. Fidelity Natl. Title
Superior Court of Pennsylvania, 2015
Grossi v. Travelers Personal Insurance Co.
79 A.3d 1141 (Superior Court of Pennsylvania, 2013)
Davis v. Fidelity National Insurance
32 Pa. D. & C.5th 179 (Lackawanna County Court of Common Pleas, 2013)
Smith v. Allstate Insurance
912 F. Supp. 2d 242 (W.D. Pennsylvania, 2012)
Jurinko v. Medical Protective Co.
305 F. App'x 13 (Third Circuit, 2008)
Johnson v. Commissioner of Correction
951 A.2d 520 (Supreme Court of Connecticut, 2008)
Toy v. Metropolitan Life Insurance
928 A.2d 186 (Supreme Court of Pennsylvania, 2007)
Condio v. Erie Insurance Exchange
899 A.2d 1136 (Superior Court of Pennsylvania, 2006)
Donegal Mutual Insurance Co. v. Baumhammers
893 A.2d 797 (Superior Court of Pennsylvania, 2006)
Catagnus v. Allstate Insurance Co.
864 A.2d 1259 (Superior Court of Pennsylvania, 2004)