                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 16-3671
                                 _____________

                        AHSAKI GORDON;
           THE PENNSYLVANIA HOUSING FINANCE AGENCY,
                 ITS SUCCESSORS AND/OR ASSIGNS

                                        v.

      ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY,
                            Appellant
                        _____________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                        District Court No. 2-15-cv-03088
                 District Judge: The Honorable Joel H. Slomsky
                                 _____________

                              Argued July 11, 2017

      Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK,*
                             Chief District Judge

                          (Opinion Filed: July 26, 2017)


Allan D. Goulding, Jr.,               [ARGUED]
Curtin & Heefner LLP
250 North Pennsylvania Avenue
Morrisville, PA 19067


*
 Honorable Leonard P. Stark, Chief Judge of the United States District Court for
the District of Delaware, sitting by designation.
      Counsel for Appellant Allstate Property & Casualty Insurance Co.

Marc H. Edelson
Liberato P. Verderame                  [ARGUED]
Edelson & Associates
3 Terry Drive, Suite 205
Newtown, PA 18940

      Counsel for Appellee Ahsaki Gordon

Sean A. Kirkpatrick                  [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120

      Counsel for Appellee Pennsylvania Housing Finance Agency

                             _____________________

                                    OPINION
                             _____________________

SMITH, Chief Judge.

      Allstate Property and Casualty Insurance Co. (“Allstate”) appeals a jury

verdict in favor of homeowner Ahsaki Gordon on a breach of contract claim.

Allstate’s appeal primarily concerns its claim that the District Court erred by

allowing the jury to consider Gordon’s reasonable expectations of insurance

coverage. We conclude that any error was harmless, and will affirm the judgment

of the District Court.

                                          I.


 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                          2
      After a storm, on March 10 and 11, 2015, portions of the stone façade of

Gordon’s home collapsed. Allstate denied Gordon’s claim for coverage on the

basis that her policy was limited to “sudden and accidental physical loss to the

property” caused by a named peril, including windstorms. J.A. 73a. According to

Allstate, the damage to Gordon’s home was caused by neglect, not the storm.

      On June 3, 2015, Gordon filed a one-count breach of contract complaint in

the United States District Court for the Eastern District of Pennsylvania. The

Philadelphia Housing Finance Agency (“PHFA”), Gordon’s mortgagee, was joined

as a plaintiff. After a four-day trial, the jury returned a verdict for Gordon, finding

that she and PHFA “proved by a preponderance of the evidence that the collapse of

the exterior wall . . . was a sudden and accidental physical loss caused by a

windstorm as covered under her policy with defendant.” J.A. 724a. The jury

awarded Gordon $177,684.74, and the District Court entered judgment

accordingly. After Allstate moved for, and was denied, judgment as a matter of

law and a new trial, Allstate timely filed this appeal.1

                                          II.

      At trial, Allstate filed a motion in limine seeking to prevent Gordon from

testifying about her reasonable expectations of coverage. The District Court


1
  The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate
jurisdiction under 28 U.S.C. § 1291.

                                           3
denied Allstate’s motion, permitted the testimony, and later provided instructions

to the jury concerning that testimony.2 Allstate claims that the District Court erred

in doing so, contending there was no basis for permitting the jury to consider

testimony regarding Gordon’s reasonable expectations of coverage.3

      Even if Allstate could demonstrate that Gordon’s testimony should have

been excluded as a matter of Pennsylvania law,4 “errors in the admission or


2
  Gordon testified that, when she purchased her home, she had the following
conversation with an insurance agent: “When he asked me, you know, what kind of
– type of insurance do I want, I said I don’t know. You tell me what type of
insurance I should get. It’s a 100 something years old. The house is old. I don’t
have any money . . . so tell me what is – what policy that I can get that can fix it if
anything goes wrong. I don’t know anything about houses, so I won’t – I don’t
know what to ask you . . . you’re the professional, you tell me what you think I
should’ve based on everything I told you about the house? And he said oh, I have a
policy great for you.” J.A. 265a–66a. When asked, “what were your concerns
specifically when you’re talking to the agent about you wanted to buy a policy?,”
Gordon responded, “[t]hat I wanted to be covered.” J.A. 267a.
3
  We review both the District Court’s evidentiary ruling and its decision regarding
the jury instructions for abuse of discretion. Abrams v. Lightolier, Inc., 50 F.3d
1204, 1213 (3d Cir. 1995) (evidentiary rulings); Fahie v. Virgin Islands, 858 F.3d
162, 169 (3d Cir. 2017) (jury instructions).
4
  Pennsylvania law is not entirely clear as to the circumstances under which an
insured’s reasonable expectations of coverage are to be considered. Compare
Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 567 (Pa. 1983)
(“[W]here, as here, the policy limitation relied upon by the insurer to deny
coverage is clearly worded and conspicuously displayed, the insured may not avoid
the consequences of that limitation by proof that he failed to read the limitation or
that he did not understand it.”), with Tonkovic v. State Farm Mut. Auto. Ins. Co.,
521 A.2d 920, 926 (Pa. 1987) (“The reasonable expectation of the insured is the
focal point of the insurance transaction . . . . Thus, regardless of the ambiguity, or
lack thereof, inherent in a given set of insurance documents . . ., the public has a
right to expect that they will receive something of comparable value in return for
                                          4
exclusion of evidence cannot be grounds for reversal or a new trial if they

constitute harmless error.” Abrams, 50 F.3d at 1213 (citing Fed. R. Civ. P. 61).

An error is harmless when there is a “high probability” that the discretionary error

did not contribute to the verdict. Langbord v. U.S. Dep’t of Treasury, 832 F.3d

170, 196 (3d Cir. 2016) (en banc).

      Here, any error would be harmless because Gordon presented sufficient

evidence to support the jury’s determination that the collapse of Gordon’s home

was a “sudden and accidental physical loss caused by a windstorm as covered

under her policy with defendant.” J.A. 724a. For instance, Gordon presented

expert testimony from an engineer who opined that the collapse was a sudden,

catastrophic event and that “the wind damage [wa]s the final nail in the coffin that

cause[d] the collapse of this. . . . [He] would attribute this [collapse] more to a

wind event . . . .” J.A. 475a–76a. Gordon also presented testimony from the

contractor who repaired her home, who personally observed that “there was

damage by the scupper box along the fascia board which in [his] assessment had

blown off and turned into a catch funnel.” J.A. 337a.



the premium paid.” (quoting Collister v. Nationwide Life Ins. Co., 388 A.2d 1346,
1353 (Pa. 1978))); see also Bensalem Twp. v. Int’l Surplus Lines Ins. Co., 38 F.3d
1303, 1311 (3d Cir. 1994) (“Faced with Collister, Standard Venetian Blind, and
Tonkovic, we are unable to draw any categorical distinction between the types of
cases in which Pennsylvania courts will allow the reasonable expectations of the
insured to defeat the unambiguous language of an insurance policy and those in
                                           5
      Because Gordon presented ample evidence to support the determination that

the loss was caused by a windstorm—and therefore was covered by the express

terms of the contract—it is highly probable that the jury would have reached that

same result even without Gordon’s reasonable expectations testimony. Any

claimed error in admitting Gordon’s reasonable expectations of coverage—and any

related error in instructing the jury regarding that evidence—was therefore

harmless.5 E.g., Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 411

(3d Cir. 2006) (“An error will be deemed harmless only if it is ‘highly probable’

that the error did not affect the outcome of the case.” (quoting Forrest v. Beloit

Corp., 424 F.3d 344, 349 (3d Cir. 2005))).

                                         III.

      Allstate also contends that the District Court erred in denying its motion for

judgment as a matter of law because, according to Allstate, the evidence presented

at trial demonstrated that the “predominant cause” of the damage to Gordon’s

home was a lack of maintenance, and the loss was therefore not covered by the




which the courts will follow the general rule of adhering to the precise terms of the
policy.”).
5
  Allstate further contends that the jury instructions regarding reasonable
expectations were “mutually exclusive and inconsistent.” We have reviewed the
instructions and conclude that they accurately apprised the jury of the applicable
law. See Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009).

                                          6
policy. The District Court denied Allstate’s motion at trial, as well as its renewed

post-trial motion.6

      A motion for judgment as a matter of law “should be granted only if,

viewing the evidence in the light most favorable to the nonmovant and giving it the

advantage of every fair and reasonable inference, there is insufficient evidence

from which a jury reasonably could find liability.” Avaya Inc. v. Telecom Labs,

Inc., 838 F.3d 354, 373 (3d Cir. 2016) (quoting Lightning Lube, Inc. v. Witco

Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). Such a motion should be granted only

sparingly. Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).

      As already discussed, we are satisfied that the jury’s verdict rested upon

sufficient evidence of liability. Accordingly, the District Court properly denied

Allstate’s motion.

                                         IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




6
 We exercise plenary review over the District Court’s denial of judgment as a
matter of law. See Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009).
                                          7
