J-A07001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADAM KANE, JENNIFER KANE AND               :   IN THE SUPERIOR COURT OF
    KANE FINISHING, LLC, D/B/A KANE            :        PENNSYLVANIA
    INTERIOR AND EXTERIOR                      :
    FINISHING                                  :
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :   No. 1242 MDA 2017
                                               :
                                               :
    ATLANTIC STATES INSURANCE                  :
    COMPANY, MOUNTAIN TOP                      :
    INSURANCE AGENCY, INC. AND                 :
    JOSEPH R. URBANICK SR.

                   Appeal from the Judgment August 31, 2017
                In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2014-CV-3243-CV


BEFORE:      PANELLA, J., OLSON, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.:                          FILED NOVEMBER 01, 2018

        This appeal concerns an insurance dispute. Appellants Adam Kane,

Jennifer Kane and Kane Finishing, LLC, d/b/a Kane Interior and Exterior

Finishing, appeal from the judgment entered in the Dauphin County Court of

Common Pleas in favor of Appellees Mountain Top Insurance Agency, Inc.

(“Mountain Top”) and Joseph R. Urbanick, Sr. Appellants contend the trial

court erred in applying contributory negligence standards and entering

judgment in favor of Appellees. We find the record supports the trial court’s

application of contributory negligence standards. But the trial court erred as a

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   Former Justice specially assigned to the Superior Court.
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matter of law in determining that Appellees did not have to prove Appellants’

contributory negligence was a substantial factor in causing their harm. So, we

reverse and remand for entry of judgment in favor of Appellants.

       In March of 2008, Appellants purchased property at 57 Sunset Drive in

Mechanicsburg, Pennsylvania. At the time of their purchase, Appellants

employed Urbanick, an agent for Mountain Top, to obtain insurance coverage

for their property. Urbanick ultimately obtained a homeowner’s policy of

insurance for Appellants through               Atlantic States Insurance Company

(“Atlantic”).

       Three years later, Appellants decided to build a detached garage behind

their residence in order to store equipment and supplies used in their home

carpentry business. Appellants contacted Urbanick to determine whether their

existing insurance policy would cover any damage to the detached garage and

its contents. Urbanick assured Appellants that their pre-existing Atlantic

insurance policy would cover any fire damage to the detached garage.

       In October 2013, a fire destroyed Appellants’ detached garage. After

Appellants discovered their homeowners insurance policy did not actually

cover the garage or its contents, Appellants filed suit against Appellees.1 In
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1 In conjunction with this matter, Appellants filed suit against Atlantic for
failure to pay their insurance claim. However, because Appellants’ insurance
policy did not include coverage for their detached garage, this court granted
Atlantic’s motion for summary judgment. See Trial Court Order, 4/12/17. That
decision is not a subject of this appeal.




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their complaint, Appellants asserted that Urbanick, acting as an insurance

agent for Mountain Top, negligently misrepresented to Appellants that their

pre-existing insurance policy would cover any damage to the detached

garage.2 As such, Appellants asserted Appellees were liable for the monetary

losses Appellants were unable to recoup through their insurance policy.

Appellees    denied     these    claims,       and   asserted   that   Appellants   were

contributorily negligent for failing to ensure their policy covered the detached

garage.

       Due to Appellees’ assertion of contributory negligence, Appellants

moved for a ruling on the applicability of Pennsylvania’s Comparative

Negligence Act, 42 Pa.C.S.A. § 7102. Following a hearing and a review of

applicable case law, the trial court determined that contributory, rather than

comparative, negligence standards should be applied. Additionally, the parties

stipulated that the damages to the detached garage and its contents

amounted to $180,000.

       Appellants took their negligent misrepresentation claim to trial in April

2017. Following two days of testimony, the trial court charged the jury and

presented them with a verdict sheet that read as follows:

       1. Do you find that the [Appellants] have proven by a
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2 In their initial complaint, Appellants’ also levied claims of fraud and violation
of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
against Appellees. See Complaint, 7/13/16, at ¶¶ 28-43. Following Appellees’
filing of preliminary objections, the trial court dismissed these claims. See
Order, 11/22/16. The dismissal of these additional claims is not a subject of
this appeal.

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       preponderance of the evidence that [Appellees] were negligent
       in securing insurance coverage for [Appellants’] detached
       garage?


       __________ Yes            __________ No

       If YES, proceed to question 2. If NO, STOP, sign the verdict
       form at the bottom, and return to the courtroom.

     2. Do you find that the negligence of [Appellees] was a substantial
        factor in causing [Appellants’] lack of insurance coverage?


       __________ Yes            __________ No

       If YES, proceed to question 3. If NO, STOP, sign the verdict
       form at the bottom, and return to the courtroom.

     3. Do you find that [Appellees] proved by a preponderance of the
        evidence that [Appellants] were negligent in failing to obtain
        insurance on the detached garage?


        __________ Yes           __________ No

        If YES, proceed to question 4. If NO, proceed to question 5.

     4. Do you find that [Appellees] proved by a preponderance of the
        evidence that the negligence of the [Appellants] was a
        substantial factor in causing their financial losses?


        __________ Yes           __________ No

        Proceed to question 5.

     5. What percentage of negligence do you attribute to the
        following:


           [Appellants]                                __________%




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              [Appellees]                                     __________%


                                                                      100     %

Verdict Slip, 4/27/17.3

       Ultimately, the jury found that: 1) Appellees were negligent; (2)

Appellees’ negligence was a substantial factor in Appellants’ resulting financial

losses;   (3)   Appellants     were     contributorily   negligent;    (4)   Appellants’

contributory negligence was not a substantial factor in their resulting financial

losses; and (5) 75% of the negligence was attributable to Appellees and 25%

to Appellants. Based upon the jury’s findings, the trial court concluded

Appellants were barred from recovery due to the finding of contributory

negligence. Therefore, the trial court molded the jury’s verdict to reflect this

conclusion, and entered judgment on behalf of Appellees. Appellants, alleging

the trial court erred in both its determination that the doctrine of contributory,

rather than comparative, negligence applied and by molding the verdict, filed

a post-trial motion seeking entry of judgment notwithstanding the verdict

(“JNOV”). The trial court denied the motion. This timely appeal follows.

       On appeal, Appellants raise the following issues:

       1. Did the Lower Court err in ruling that this case was governed
          by the decision in Westcoat [sic] v. National [sic] Savings
          Association, 378 Pa. Super. 295, 548 A.2d 619 (1988), and
          therefore incorrectly applied the Law of Contributory
          Negligence to the case instead of comparative negligence?

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3 The verdict slip was dated April 27, 2017, but was not filed until a day later.
As the jury rendered the verdict on April 27, 2017, we will continue to use
that date throughout our memorandum.

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      2. Did the lower court err in holding that the negligence of the
         [Appellants] barred their claim, when such negligence did not
         exceed fifty (50%), and the jury determined the [Appellants’]
         negligence was not a substantial factor in bringing about their
         injury?

Appellants’ Brief, at 4.

      Our standard of review of the denial of a motion for JNOV is as follows:

      Appellate review of a denial of JNOV is quite narrow. We may
      reverse only in the event the trial court abused its discretion or
      committed an error of law that controlled the outcome of the case.
      Abuse of discretion occurs if the trial court renders a judgment
      that is manifestly unreasonable, arbitrary or capricious; that fails
      to apply the law; or that is motivated by partiality, prejudice, bias
      or ill-will.

      When reviewing an appeal from the denial of a request for [JNOV],
      the appellate court must view the evidence in the light most
      favorable to the verdict[-]winner and give him or her the benefit
      of every reasonable inference arising therefrom while rejecting all
      unfavorable testimony and inferences.... Thus, the grant of a
      judgment n.o.v. should only be entered in a clear case and any
      doubts must be resolved in favor of the verdict[-]winner.
      Furthermore, [i]t is only when either the movant is entitled to
      judgment as a matter of law or the evidence was such that no two
      reasonable minds could disagree that the outcome should have
      been rendered in favor of the movant that an appellate court may
      vacate a jury’s finding.

Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932

(Pa. Super. 2013) (citations and quotation marks omitted).

      In their first issue, Appellants assail the trial court’s determination that

the doctrine of contributory, rather than comparative, negligence applied.

Appellants contend the trial court improperly relied upon the interpretation

of the Comparative Negligence Act found in Wescoat v. Northwest

Savings Assoc., 548 A.2d 619 (Pa. Super. 1988), a case they argue


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involved distinguishable characteristics, and ignored the fact that the parties

stipulated to $180,000 in damages to the detached garage. Therefore,

Appellants assert the trial court erred as a matter of law in determining

Appellants were barred from collecting damages, and entering judgment in

favor of Appellees.


      Appellants’ issue involves the application of a statute, 42 Pa.C.S.A. §

7102. “The application of a statute is a question of law, and our standard of

review is plenary.” Bell v. Dean, 5 A.3d 266, 269 (Pa. Super. 2010) (citation

and internal quotation marks omitted).

      In Pennsylvania, our courts historically adhered to the legal doctrine that

a plaintiff’s causal contributory negligence functioned as a complete bar to a

plaintiff’s recovery. See Elder v. Orluck, 515 A.2d 517, 524 (Pa. 1986)

(opinion announcing the judgment of the court). This doctrine was modified

by the enactment of the Comparative Negligence Act, which provides, in

relevant part:

      (a)   General rule.--In all actions brought to recover damages for
            negligence resulting in death or injury to person or property,
            the fact that the plaintiff may have been guilty of
            contributory negligence shall not bar a recovery by the
            plaintiff or his legal representative where such negligence
            was not greater than the causal negligence of the defendant
            or defendants against whom recovery is sought, but any
            damages sustained by the plaintiff shall be diminished in
            proportion to the amount of negligence attributed to the
            plaintiff.

42 Pa.C.S.A. § 7102(a).




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      While comparative negligence now governs determining ultimate

recovery in many situations, Wescoat reminded us that “[t]he [Comparative

Negligence Act] does not apply to all actions for negligence but only to those

resulting in death or injury to person or property.” Id., at 621. (emphasis

added).

      In Wescoat, a panel of this Court was tasked with determining whether

the Comparative Negligence Act applies to a negligence action in which a

“defendant allegedly failed to procure an insurance policy for the plaintiff and

failed to notify the plaintiff that the insurance was not obtained.” Id., at 620

(footnote omitted). As the comparative negligence statute required “death or

injury to person or property” as a precursor to application, the panel analyzed

the facts of plaintiff’s negligence action in light of this phrase. Id., at 621.

      The panel determined that defendant’s failure to obtain insurance clearly

did not constitute death or injury to a person. See id. Interpreting the

legislature’s use of the term property in the Act to mean only “tangible

property,” the panel reasoned that purely monetary loss, which the plaintiff

had sustained for defendants’ failure to obtain insurance, did not constitute

damage to tangible property. Id., at 622. Because the plaintiff could not show

“death or injury to person or property,” the panel found that the comparative

negligence statute did not apply, and that therefore, “the doctrine of

contributory negligence bars recovery if the plaintiff’s negligence has

contributed to his loss.” Id., at 623.




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      Appellants argue the facts here are readily distinguishable from those in

Wescoat. Namely, they claim their case involved a misrepresentation in

insurance coverage, as opposed to the lack of insurance coverage found in

Wescoat, and that, unlike there, the parties here stipulated to $180,000 of

damage to the detached garage and its contents.

      Appellants’ argument misses the rationale behind the holding in

Wescoat. Contributory negligence did not apply there not because the

plaintiff in that case failed to prove a certain amount of damages or the

defendant failed to get an insurance policy, but rather because the Court found

the monetary damage caused by defendant’s failure to obtain an insurance

policy did not constitute damage to tangible property. See id., at 622. Here,

as in Wescoat, Appellants asserted Appellees caused them monetary damage

due to their negligent misrepresentations. As monetary damage does not

constitute damage to tangible property, which is necessary to invoke the

Comparative Negligence Act, we find no fault with the trial court’s ruling that

contributory negligence standards applied instead. See id., at 623. See also

Gorski v. Smith, 812 A.2d 683, 702 (Pa. Super. 2002) (finding that

contributory negligence applied in legal malpractice case because there was

no damage to tangible property). Therefore, we find no merit to Appellants’

first issue on appeal.

      Appellants’ next argument challenges the trial court’s decision to mold

the verdict in favor of Appellees. Appellants argue that because the jury found

Appellants’ contributory negligence was not a substantial factor in causing

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Appellants’ financial losses, Appellants are not barred from recovery under the

contributory negligence doctrine. As such, Appellants contend the trial court

erred as a matter of law in denying their request for JNOV, and by entering

judgment in favor of Appellees.

       Conversely, the trial court and Appellees frame Appellants’ claim as a

challenge to allegedly inconsistent interrogatories, which Appellant waived

by failing preserve by objecting to the verdict slip before it was presented to

the jury.4 Finding no inconsistency, we agree with Appellants.

       “It is well established in Pennsylvania that there is a presumption of

consistency with respect to a jury’s findings which can only be defeated when

there is no reasonable theory to support the jury’s verdict.” Giovanetti v.

Johns-Manville Corp., 539 A.2d 871, 875 (Pa. Super. 1988) (citation

omitted). After reviewing the verdict slip, we find no reason to disturb the

presumption of consistency.

       There is no question as to the jury’s finding that Appellees were

negligent, and that Appellees’ negligence was a proximate cause of Appellants’

failure to obtain insurance on the attached garage. Thus, Appellees are


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4  The trial court and Appellees also argued that the jury’s finding that
Appellants were 25% negligent was a general verdict which should control
over the special finding that Appellants’ negligence was not a substantial
factor in bringing about their harm pursuant to Fritz v. Wright, 907 A.2d
1083, 1091-1092 (Pa. 2006). However, the argument relies upon a conclusion
that these two findings are inconsistent. As we determine below that these
findings are not inconsistent, this argument necessarily fails.

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properly held liable for all of Appellants’ damages. Further, despite Appellees

attempt to classify this as an “inconsistent verdict,” there is no confusion

apparent on the verdict slip regarding Appellants’ contributory negligence. The

jury clearly found that Appellants’ negligence was not a substantial factor in

causing their losses.

      Pursuant to the contributory negligence doctrine, a plaintiff is barred

from collecting from a negligent defendant if their own negligence contributed

in any way to their injury. See Elder v. Orluck, 515 A.2d 517, 524 (Pa.

1986). However, in order for a plaintiff’s own negligence to bar their recovery,

the fact-finder must determine that the plaintiff’s contributory negligence was

a substantial factor, or proximate cause, in bringing about their harm. See

McCay v. Philadelphia Elec. Co., 291 A.2d 759, 761 (Pa. 1972). See also

Whitner v. Von Hintz, 263 A.2d 889, 893 n.2, 894 (Pa. 1970) (finding the

term “substantial factor” interchangeable with “proximate cause” and “legal

cause”).

      As the jury found that Appellants’ negligence was not a substantial factor

in bringing about their harm, their contributory negligence does not bar them

from recovering from Appellees. See McCay, 291 A.2d at 761. Because the

25% of negligence assigned to Appellants’ in question 5 was not specified as

causal negligence, or negligence which had a substantial factor in bringing

about Appellants’ harm, it does not conflict with the finding that Appellants’

negligence was not a substantial factor. Thus, the trial court erred as a matter


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of law by entering judgment in favor of Appellees, and by failing to grant

Appellants’ request for JNOV.

      Judgment reversed. Case remanded for entry of judgment in favor of

Appellants. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2018




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