J-A32006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADRIENNE GAIL KANTZ AND JOHN               :   IN THE SUPERIOR COURT OF
    MARION KANTZ                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 806 MDA 2017
    EVERETT CASH MUTUAL                        :
    INSURANCE COMPANY                          :

                Appeal from the Judgment Entered April 19, 2017
                 In the Court of Common Pleas of Tioga County
                     Civil Division at No(s): 0754-CV-2015


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 03, 2018

        Adrienne Gail Kantz and John Marion Kantz, siblings, appeal from the

judgment entered on April 19, 2017, in Tioga County, granting Everett Cash

Mutual Insurance Company’s (Everett) motion for summary judgment. In this

timely appeal, Adrienne and John Kantz raise two issues. They claim the court

erred, first, in determining no enforceable insurance contract existed at the

time of loss, and, second, in determining Everett was not estopped from

denying coverage, or in the alternative had not waived any policy defenses.

After a thorough review of the submissions by the parties, relevant law and

the certified record, we affirm on the basis of the trial court’s opinion, dated

June 30, 2017.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
J-A32006-17



      Briefly, the underlying facts of this matter are as follows. The property

in question, 141 Johnson Hill Road, Mansfield, Pennsylvania, was owned by

Elinor Kantz, mother of Adrienne and John Kantz. She insured the property

with a homeowner’s policy issued by Everett.           Elinor passed away on

December 7, 2012, leaving her estate to her children, Adrienne and John, as

residuary beneficiaries. The property remained titled in the name of Elinor

Kantz until December 29, 2014, when Adrienne and John, as co-executors of

the estate, transferred title of the property to themselves, individually, as co-

tenants. The homeowner’s policy remained, through all relevant times, in the

name of Elinor Kantz. Everett was not informed of either Elinor Kantz’ passing

nor of the transfer of title to her children. Approximately two months after

the property was deeded to Adrienne and John Kantz, a pipe burst in the

residence, causing significant damage.

      Everett denied indemnity for the claim, asserting no valid contract of

insurance existed at the time of loss, as neither Elinor Kantz nor her Estate

owned the property. Adrienne and John Kantz filed suit, claiming breach of

contract. Everett reiterated its position that no valid insurance policy existed

at the time of loss and the trial court agreed, granting summary judgment in

favor of Everett.

      Our scope and standard of review for a challenge to the grant of

summary judgment are well settled:

      [O]ur scope of review is plenary, and our standard of review is the
      same as that applied by the trial court. Our Supreme Court has
      stated the applicable standard of review as follows: [A]n appellate

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J-A32006-17


      court may reverse the entry of a summary judgment only where
      it finds that the lower court erred in concluding that the matter
      presented no genuine issue as to any material fact and that it is
      clear that the moving party was entitled to a judgment as a matter
      of law. In making this assessment, we view the record in the light
      most favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party. As our inquiry involves solely questions
      of law, our review is de novo.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow a
      fact-finder to render a verdict in favor of the non-moving party,
      then summary judgment should be denied.

Windows v. Erie Insurance Exchange, 161 A.3d 953, 956 (Pa. Super.

2017) (citations omitted).

      Our review of the certified record leads us to the inescapable conclusion

that the trial court properly determined no valid insurance policy existed

between Adrienne and John Kantz and Everett and that neither waiver nor

estoppel can create the contract where none otherwise exists.

      We highlight the trial court’s holding that although Adrienne and John

Kantz did have an insurable interest in the subject property; they were not

a party to any contract of insurance.     The policy of insurance at question

protected the interest of Elinor Kantz and then the interest of her Estate. The

trial court also correctly noted that an insurance policy, such as the one at

issue, protects the personal interest of the insured in the property and not the

property in general.    That personal interest terminated when title to the


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J-A32006-17


property transferred to her children. “If [Adrienne and John Kantz] wanted to

insure their new interest in the property they needed to obtain their own

insurance policy.”   Trial Court Opinion at 5.   Adrienne and John Kantz’s

argument does not persuade us otherwise.         Accordingly, we affirm the

judgment.

     Judgment affirmed. The parties are directed to attach a copy of the trial

court opinion dated June 30, 2017, in the event of further proceedings.

     Judge Dubow joins the majority decision.

     Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




                                    -4-
                                                                                     Circulated 04/09/2018 03:01 PM




ADRIENNE GAIL KANTZ and                                  :IN THE COURT OF COMMON PLE
                                                                                                      COPY
JOHN MARION KANTZ                                                                         FiL.ED
VS.                                                      :OF TIOGA COUNTY PENNSXLLYMTIA pA
EVERETT CASH MUTUAL
INSURANCE COMPANY                                        :NO. 754 CV 2015       22    ,,kjN   30   PH 12:   (8
                                                                                                            &
                                               OPINION
                                                                                              OF COURTS

           Plaintiffs, Adrienne Gail Kantz and John Marion Kantz, appeal this court's Order of

April 19, 2017 granting Defendant's Motion for Summary Judgment and denying Plaintiffs'

Motion for Summary Judgment. As set forth more fully below, the Order should be affirmed.


      I.      BACKGROUND


           In 1994 Defendant, Everett Cash Mutual Insurance Company ("Everett"), issued an

insurance policy to Boyer Kantz for property located at RR     1,   Box 206, Mansfield),

Pennsylvania (the property's current address is 141 Johnson Hill Road, Mansfield, Pennsylvania.

At the time the property was titled in the name of Boyer Kantz and his wife Elinor Kantz. In

2010 the Katitz's insurance agent requested the Name of Insured be changed from Boyer Kantz

to Elimor Kantz because Boyer passed away in 2008 and Elinor became the property's sole

owner. Thereafter, Everett renewed the policy annually in the name of Elinor Kantz with the last

premium paid on December        1,   2014. Elinor Kantz passed away December 7, 2012 leaving her

entire estate to her two adult children, Plaintiffs Adrienne Kantz and John Kantz. On December

29, 2014 Ms. Kantz's children, as co -executors of her estate, transferred title of the subject

property to themselves individually as co -tenants. They did not inform Everett of either Elinor's

passing or the transfer of the property from the estate to the children as individuals.


           Plaintiffs reported to Everett on February 25, 2015 that the residence was damaged by a

burst pipe and Everett retained an independent insurance adjustor to inspect and investigate the



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loss. It was during this investigation Everett first learned of Elinor Kantz passing, the

administration of her estate, and the transfer of the property from the estate to Adrienne and John

Kantz individually. Everett denied the claim.


         Plaintiffs filed a complaint on October   1,   2015. After the discovery process both parties

filed Motions for Summary Judgment. The court held argument on the respective motions on

March 15, 2017 and issued an Order granting Defendant's Motion for Summary Judgment and

denying Plaintiffs' Motion for Summary Judgment. The Plaintiffs filed a timely notice of appeal

and the court files this Opinion in accordance with Pa.R.A.P. 1925(b)


   II.      ISSUES


         Plaintiffs raise the following issues on appeal:


                 1.   Failure of the Court to find that Appellee insurance company waived all
                      insurable interest defenses by continuing the policy in effect until months after
                      the loss and filing of the claim despite its full knowledge of ownership of the
                      insured property.

                 2. Failure    of the Court to find that Appellants did indeed have an insurable
                      interest in the insured premises due to the fact of their ownership and that any
                      loss or damage to the premises would be to their economic detriment.

                 3.   Failure of the Court to find that the Appellee insurance company was estopped
                      to deny coverage by its conscious decision to continue the policy for months
                      following the loss and filing of claim by Appellants with full knowledge of
                      the fact that Appellants owned the insured premises.

                 4.   Failure of the Court to find specifically that Appellants possessed an insurable
                      interest in the insured premises.

                 5.   Failure of the Court to enter summary judgment in favor of the Appellants
                      since it is without question that the policy was in full force and effect at the
                      time of the loss, Appellants possessed an insurable interest, and Appellee
                      insurance company's defenses to the claim were either waived or Appellee is
                      estopped because of its conduct.



                                                        2
   III.      DISCUSSION

          The court may grant summary judgment if no genuine issue of material fact exists.

Pa.R.C.P. 1035.2. "[S]ummary judgment may be granted only in those cases in which the record

clearly shows that no genuine issues of material fact exist and that the moving party is entitled to

judgment as a matter of law." Burger v. Owens Illinois, Inc., 966 A.2d 611, 614 (Pa.Super.

2009). "In determining whether to grant summary judgment, the trial court must view the record

in the light most favorable to the non-moving party and must resolve all doubts as to the

existence of genuine issue of material fact against the moving party." Id. An issue is considered

material "if its resolution could affect the outcome of the case under the governing law."

McCarthy v. City of Bethlehem, 962 A.2d 1276, 1278 (Pa,Super. 2008) (quoting Strine v. Med.

Care Availability & Reduction of Error Fund, 894 A.2d 733, 738 (Pa, 2006))). The court

granted Everett's Motion for Summary Judgment in this case because even though Plaintiffs had

an insurable interest in the subject property they did not have an enforceable insurance contract

with Everett at the time of the property damage.

          Plaintiffs' first, second, and fourth claims of error are related to if they possessed an

insurable interest in the subject property. Specifically stating the court erred in failing to

determine Everett waived any insurable interest defense, failing to determine Plaintiffs had an

insurable interest, and failing to specifically find Plaintiffs had an insurable interest. These

claims are moot as the court's decision on the respective summary judgement motions was not

based on the insurable interest issue but rather on the lack of an enforceable contract between the

parties at the time of the loss. In fact, the court agrees with Plaintiffs that they did, and still do,

have an insurable interest in the subject property. "An insurable interest exists in any party who

would be exposed to financial loss by destruction of certain property." Kellner v Aetna Cas. And


                                                     3
Sur. Co., 605 F.Supp. 331, 333 (1984). The Plaintiffs, as co -executors   of their mother's estate,
deeded the subject property to themselves as individuals in December 2014, months prior to the

damage in question in this case. As the titled owners of the property Plaintiffs clearly were

"exposed to financial loss by destruction" of said property and therefore had an insurable interest

in the property at the time of the loss. As noted above, however, the insurable interest issue was

not critical to the court's rulings on the respective summary judgment motions.

       Plaintiffs third issue is the court's failure to find Everett was estopped from denying

coverage by its decision to continue the policy following Plaintiffs' filing their claim with full

knowledge that the Plaintiffs owned the property. The doctrine of estoppel, however, can not

apply to or create a contract where none exists. Donovan v. New York Cas. Co., 94 A.2d 570,

572 (Pa. 1953); Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 63 (Pa. Super. 1967). An

insurance contract is a personal contract on the insured's interest in the property and not on the

property in general. See In Re Gorman's Estate, 184 A. 86, 87 (Pa. 1936); Christ Gospel Temple

v. Liberty Mut. Ins. Co., 417 A.2d 660, 663 (Pa. Super. 1979); Mut. Ben. Ins. Co. v.

Goschenhoppen Mut. Ins. Co., 572 A.2d 1276, 1276 (Pa. Super. 1990).

       The evidence presented in the parties' respective summary judgment motions and at the

summary judgment hearing is clear the policy at issue was originally in Boyer Kantz's name

until after his death when Elinor Kantz became the named insured. When Ms. Kantz died

nobody informed Everett or applied to replace her as the named insured. Once the Plaintiffs, as

co -executors of their mother's estate, deeded the property to themselves as individuals Ms. Kantz

no longer had an insurable interest in the property. The Plaintiffs, as the new owners of the

property, did not obtain an insurance policy for their individual interest. As an insurance policy

is not an   indemnity on property in general but is instead and indemnity on the insured's interest,



                                                   4
Plaintiffs cannot use Ms. Kantz's old policy on her interest as an indemnity on their new interest.

The Plaintiffs therefore did not have an enforceable insurance contract at the time of the property

damage. Since the doctrine of estoppel cannot be used to create a contract where none exists

Everett's delay in formally cancelling Ms. Kantz's policy has no bearing on any possible

obligation to Plaintiffs.

            Plaintiffs' fifth and final issue is the court's failure to enter summary judgment in

their favor and against Everett as they allege it is without question the policy was in full force

and effect at the time of the loss, Plaintiffs possessed an insurable interest, and Everett's defenses

were either waived or estopped because of its actions. The court discussed each of these issues

above. First Plaintiffs did in fact have an insurable interest in the property at the time of the

damage. They did not, however, have an enforceable insurance policy at the time. The

insurance policy Ms. Kantz had with Everett was for her interest in the property and not in the

property in general and therefore the policy was no longer enforceable when Ms. Kantz no

longer had an insurable interest. Ms. Kantz's insurable interest in the property expired when the

Plaintiff's, as co -executors of Ms. Kantz's estate, transferred the property from the estate to

themselves as individuals as neither Ms. Kantz nor her estate were exposed to financial loss by

the destruction of the property. If Plaintiffs wanted to insure their new interest in the property

they needed to obtain their own insurance policy. Waiver, like estoppel, cannot create a contract

where none exists. Donovan at 572. Due to that fact Everett's action did not and could not

create an insurance policy between them and Plaintiffs. Since an enforceable policy did not exist

between Plaintiffs and Everett at the time of the property damage the court's grant of summary

judgment was correct.




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   IV.      CONCLUSSION

   For the foregoing reasons the court's decision granting summary judgment in favor of

Defendant Everett Cash Mutual Insurance Co. and against Plaintiffs Adrienne and John Kantz

was correct and should be upheld.


                                                                                  By the Court,




                                           Hon.      eorge W. Wheeler, President Judge

                                                  UE AN    CORRECT   Col
Gilliam A. Hebe, Esq.                   RTiFiED
                                          Tioga Co     Protnonotafy
                                             And Clerk of Count
         Stephen L. Dugas, Esq.




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