J-A22023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOOLITTLE INVESTMENTS, LLC                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

MOTORISTS MUTUAL INSURANCE
COMPANY

                                                       No. 235 MDA 2016


             Appeal from the Order Entered December 31, 2015
             In the Court of Common Pleas of Lancaster County
                     Civil Division at No(s): CI-08-01714


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 16, 2016

      Appellant, Doolittle Investments, LLC (“DI”), appeals from the order

granting summary judgment to its insurer, Motorists Mutual Insurance

Company (“Motorists”) on DI’s claims for declaratory judgment and

insurance bad faith. DI argues that the trial court erred in concluding, as a

matter of law, that its loss was not covered under the insurance contract as

no “collapse” had occurred. We conclude that DI provided sufficient evidence

to create a triable issue of fact, and therefore reverse.

      This case centers on the application of the term “collapse,” as utilized

in an insurance policy issued by Motorists, to essentially undisputed facts.

The insurance policy provided coverage for damage “caused by collapse of a

building or any part of a building … if the collapse is caused by … (2) Hidden
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decay [or] … (6) Use of defective material or methods in construction,

remodeling, or renovation if the collapse occurs during the course of the

renovation.” The policy explicitly excludes coverage for any loss caused by

“[s]eizure or destruction of property by order of governmental authority.”

         DI owned a historic property (“the property”) in Columbia Borough,

Lancaster County, and desired to remodel the interior to allow for multiple

commercial uses. Pursuant to this goal, DI hired Beaver Creek Construction,

LLC (“Beaver Creek”) to investigate the basement of the property to

determine whether it could be remodeled to suit commercial use.

         As part of its investigation, Beaver Creek excavated inside the

foundation walls to determine the structure of the foundation. Several weeks

later, David Doolittle, principal owner of DI, contacted Jeffrey Helm, a

municipal officer for Columbia. Helm held several positions for Columbia:

zoning officer, planning officer, manager of code compliance, health officer,

emergency management coordinator, and the historic district liaison to the

Historic Architectural Review Board. Doolittle asked Helm to come look at

the property due to the discovery of several large cracks in the outside

walls.

         Helm arrived at the property on a Saturday morning. After walking

through the building, Helm was concerned with the instability he observed.

Doolittle asked Helm about the likelihood of an emergency demolition of the




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property. Helm responded, “I don’t have the authority to do that. You need

to get a structural engineer … here to make a professional determination.”

      Doolittle contacted a structural engineer, Christian H. McKee, Jr.

McKee inspected the property that same morning and immediately informed

Doolittle that the building was collapsing. He further opined that the building

could be saved, but not without risks to the contractors and neighbors.

Doolittle informed McKee that he did not want to risk anyone’s life and

preferred demolishing the structure. To that end, he requested that McKee

immediately prepare     a written report documenting            his findings and

conclusions.

      McKee prepared and sent his report to Doolittle that same day. In his

report, McKee opined that he “found several indications of instability that will

endanger the health, safety, property, and public welfare.” He indicated that

the chimney, on the north wall of the second floor, had “dropped 2½

[inches] from this morning and is still moving.” He noted a significant

sloping of the first floor towards the north exterior wall. In the basement, he

observed a “considerable bow to the overhead floor system. The stone is

currently separating from the wall.” Additionally, the excavation in the

basement had left the foundation wall “with virtually no support.” As a

result, the written report recommended “the demolition start as soon as

possible due to the rapid[] deterioration of the north wall.”




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       After receiving this report, Helm issued an emergency demolition

permit for the property. The property was demolished shortly thereafter. DI

demanded coverage under the policy, and Motorists denied the claim.

       DI subsequently instituted this action against Beaver Creek and

Motorists. On January 8, 2013, DI signed a joint tortfeasor release with

Beaver Creek, releasing and discharging Beaver Creek’s liability for all claims

arising out of the destruction of the property. The release indicates that it

discharged liability on behalf of DI and, among others, its insurers, in

exchange for the sum of $250,000.

       Ultimately, Motorists filed a motion for summary judgment. In this

motion, it raised three issues. First, that no collapse had occurred under the

policy. Second, that the loss was not covered due to the governmental

action exclusion. Finally, that DI had waived its claims when it released

Beaver Creek, as the release destroyed Motorists’ subrogation rights.

       On December 31, 2015, the trial court granted summary judgment to

Motorists on the first and second grounds, and thus did not reach Motorists’

third argument. On February 1, 2016, Doolittle electronically filed a notice of

appeal and request for transcripts.1 The Prothonotary rejected the filing due

to the lack of specificity in the request for transcripts. However, the


____________________________________________


1
  The thirtieth day after December 31, 2015, was January 30, 2016.
However, that date fell on a Saturday. Thus, the appeal period ran until
(Footnote Continued Next Page)


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      [f]ailure of an appellant to take any step other than the timely
      filing of a notice of appeal does not affect the validity of the
      appeal, but is subject to such action as the appellate court
      deems appropriate, which may include, but is not limited to,
      remand of the matter to the lower court so that the omitted
      procedural step may be taken.

Pa.R.A.P. 902. “A timely notice of appeal triggers the jurisdiction of the

appellate court, notwithstanding whether the notice of appeal is otherwise

defective.” Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014).

Thus, the defect in the request for transcript did not act to nullify our

jurisdiction. Any errors in the notice of appeal or request for transcript have

been corrected, and we may turn to the merits of this appeal.

      On appeal, DI challenges the trial court’s grant of summary judgment

to Motorists. We review a decision granting summary judgment according to

the following standard.

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      nonmoving party to adduce sufficient evidence on an issue
                       _______________________
(Footnote Continued)

Monday, February 1, 2016. See 1 Pa.C.S.A. § 1908 (providing for
computation of time).



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     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (citation omitted).

     In granting summary judgment, the trial court held that DI had not

established that it was entitled to coverage under the policy and that

coverage was explicitly excluded under the policy. “The interpretation of an

insurance policy is a question of law for the court.” Continental Casualty

Co. v. Pro Machine, 916 A.2d 1111, 1118 (Pa. Super. 2007) (citation

omitted). Our goal in interpreting the language of an insurance policy is to

“ascertain the intent of the parties as manifested by the language of the

written instrument.” Kane v. State Farm Fire and Casualty Co., 841 A.2d

1038, 1042 (Pa. Super. 2003). (citation omitted). “The polestar of our

inquiry is the language of the insurance policy.” Continental Casualty Co.,

916 A.2d at 1118 (citation omitted). This Court’s function in analyzing an

insurance policy is to construe words of common usage in their natural,

plain, and ordinary sense. See id.

     “In an action arising under an insurance policy, our courts have

established a general rule that it is a necessary prerequisite … for the

insured to show a claim within the coverage provided by the policy.”

McEwing v. Lititz Mutual Insurance Co., 77 A.3d 639, 646 (Pa. Super.

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2013) (citation and internal quotation marks omitted). In contrast, where

denial of coverage under the policy is based upon the application of a policy

exclusion, “the insurer has asserted an affirmative defense, and accordingly,

bears the burden of proving such defense.” Id. (citation omitted).

      The trial court based its grant of summary judgment on two grounds.

First, that DI had not established that its loss was a covered loss under the

policy. DI bore the burden of proof on this issue. We therefore we review

whether the trial court committed an error of law in determining whether DI

had adduced sufficient evidence to create an issue of material fact.

      The trial court rightfully focused its analysis on the policy language

that provided coverage for losses “caused by collapse of a building or any

part of a building.” The trial court also correctly observes that Pennsylvania

case law has long held that the term “collapse” is not ambiguous, and that it

requires a “sudden falling together of a structure.” 401 Fourth Street, Inc.

v. Investors Insurance Group, 879 A.2d 166, 172 n.2 (Pa. 2005).

However, it is important to note that the Supreme Court has noted that the

argument that the term “collapse” is ambiguous carries “some force,” id., at

172. Furthermore, at least one justice (now Chief Justice), explicitly

endorsed the expansion of the term to include an imminent collapse where

there has been no actual falling down of the structure, see id., at 176

(Saylor, J., dissenting), while the Majority suggested, in dicta, that

“collapse” can “reasonably be interpreted” to include both immediate


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collapse and “settling, cracking or bulging” that “result[s]” in collapse, id., at

174-175 n. 3.

      Here, as in 401 Fourth Street Inc., there is no need to reconsider

the precise meaning of “collapse,” as we conclude that DI adduced sufficient

evidence to support a finding that a collapse was in progress. In his opinion

letter dated February 24, 2007, professional engineer Charles McKee

provided his own personal observations of the property. He noted that “[t]he

chimney, on the north wall, on second floor, has dropped 2 ½ [inches] from

this morning and is still moving. The floor is pulled away from North exterior

brick wall 2 [inches] and the ceiling from the same wall ½ [inch].” (emphasis

supplied). Furthermore, he noted that the first story floor system sloped

considerably towards the north wall. In the basement, there was a vertical

crack in the foundation of the north wall, and “considerable bow” to the

overhead first story floor system. From the exterior, he observed that the

north wall was bowed and cracked.

      In addition, DI submitted the November 2, 2012, expert report of

professional    engineer   David   Aufiero.   Aufiero   provided   that,   in   his

professional opinion, “[a]t the time the partial collapse was discovered it was

not feasible or prudent to attempt to stabilize the building as an extremely

unsafe and hazardous work environment existed … and the exterior masonry

walls of the structure had already experienced significant settlement

damages.” (emphasis supplied).


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      Viewed in a light most favorable to DI, these reports establish that the

property’s chimney was sinking at a rate of greater than 2½ inches per day.

Furthermore, they establish that the north wall of the property was bowing

outwards, creating a separation from interior floor systems and causing a

significant slope down towards the north wall. Both engineers opined that

the collapse could accelerate at any moment and thus it would endanger the

lives of workers to attempt to fix the property. These findings would support

a conclusion that the property was in the process of collapsing on February

24, 2007. At the very least, the finding that the chimney was falling at a rate

of over 2½ inches per day is sufficient to support a conclusion that a part of

the property had collapsed. We therefore conclude that the trial court erred

when it concluded that DI had failed to adduce sufficient evidence to

establish that its loss was covered under the policy.

      In its alternative conclusion, the trial court held that the governmental

action exclusion in the policy applied to exclude coverage of DI’s loss. Under

“Exclusions,” the policy provides that Motorists “will not pay for loss or

damage caused directly or indirectly by … [s]eizure or destruction of

property by order of governmental authority.” As a policy exclusion,

Motorists bore the burden the establishing its application. See McEwing,

supra. Thus, in order to justify a grant of summary judgment on this

ground, Motorists was required to demonstrate the absence of any dispute of

material fact regarding its application.


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      The trial court held that Motorists had established that the property

was destroyed pursuant to the order of Helm. Helm testified that he was the

“zoning and planning officer … manager of the code compliance department,

… health officer for the Columbia board of health, emergency management

coordinator for the borough, and the historic district liaison to the [Historic

Architecture Review Board].” N.T., Deposition, 12/13/11, at 7. He was

primarily involved with DI and the property in his role as liaison to the

Historic Architecture Review Board. See id., at 13; 15.

      On February 24, 2007, Doolittle contacted Helm and asked him to

come to the property and “help him determine what exactly he should do.”

Id., at 16. After a tour of the property, Doolittle asked Helm about “the

likelihood of doing an emergency demolition due to the instability.” Id., at

21. Helm responded, “I don’t have the authority to do that. You need to get

a structural engineer … here to make a professional determination.” Id.

      When questioned by counsel for DI, Helm answered affirmatively to

the question “you had the ultimate call as to whether or not the building

could be demolished, is that correct?” Id., at 26 (emphasis supplied).

However, later in the deposition, while being questioned by counsel for

Motorists, the following exchange took place.

            Q.    … Did you mean you needed a structural engineer’s
      opinion before you had authority to make a decision on
      demolition?

            A.    That’s correct.


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            Q.    And once the structural engineer, you had
      discussions with him, you had the decision to make to demolish
      the building?

              A.   That’s correct.

            Q.     And in doing so, you did so in your official capacity
      as an official of Columbia Borough?

              A.   Yes, sir.

Id., at 39.

      There is no other evidence regarding the scope of Helm’s authority or

under what authority he was acting when he approved the demolition of the

property. The record does not contain any reference to the powers or

authority granted to Helm by Columbia.

      Based on this evidence, several different conclusions could be reached.

First, it is possible that Helm ordered the demolition of the property under

his authority as a health officer or as the emergency management

coordinator. However, it is equally possible, under this evidence, to conclude

that Helm approved Doolittle’s request to demolish the building under his

authority as Historic Architecture Review Board liaison. If a fact-finder were

to come to the first conclusion, Motorists would be entitled to a defense

verdict on this policy exclusion. In contrast, if a fact-finder were to reach the

second conclusion, Motorists would not be entitled to a defense verdict

pursuant to this policy exclusion. As the moving party seeking summary

judgment on an issue upon which it bore the burden of proof, Motorists was

required to adduce evidence capable of conclusively resolving this issue in its

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favor. As either finding would be supported by the evidence in the certified

record, Motorists has not met this burden, and the trial court erred in

granting summary judgment on this ground.

       Motorists argues that we can affirm the grant of summary judgment

based upon the fact DI has destroyed Motorists subrogation rights against

Beaver Creek. The trial court did not reach this issue, but Motorists did

assert it as a ground for summary judgment in its motion. Thus, contrary to

DI’s   arguments,    this   issue   is   preserved   for   our   analysis.   See

Commonwealth v. Burns, 988 A.2d 684, 690 n.6 (Pa. Super. 2009).

       In its brief argument in support of this issue, Motorists contends that

pursuant to Zourelias v. Erie Insurance Group, 691 A.2d 963 (Pa. Super.

1997), DI’s rights to sue it were extinguished when DI released Beaver

Creek on behalf of itself and its insurers. Perhaps tellingly, Motorists does

not cite to the provision of the policy that grants it subrogation rights. Our

review has located a provision under the conditions section of the policy that

provides “If any person or organization to or for whom we make payment

under this coverage form has rights to recover damages from another, those

rights are transferred to us to the extent of our payment.” (emphasis

supplied). As Motorists has concededly not made any payments to DI, those

rights were never transferred to Motorists.

       This distinguishes the present case from Zourelias. See 691 A.2d at

965 (reviewing and applying a clause that obligated the insured to do


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“whatever was proper to secure the insurer’s subrogation rights” and “do

nothing to harm these rights”). Furthermore, Zourelias and the cases cited

therein arose in the context of uninsured and underinsured motorists claims.

See id. Thus, the statutory rights to subrogation found therein arise from

the Financial Responsibility Law (“FRL”), which is a comprehensive statutory

framework intended to address the issue of automobile insurance. See

Melendez v. Pennsylvania Assigned Claims Plan, 557 A.2d 767, 768

(Pa.   Super.   1989).   While   Motorists    references   a   statutory   right   to

subrogation in its short argument on appeal, it does not cite to or otherwise

identify this authority. Clearly, the FRL does not apply in this case, and

Motorists has not identified any other statutory basis for its argument. We

therefore conclude that Motorists has failed to establish that it is entitled to

summary judgment on this ground.

       Any concerns that DI might receive a double recovery, or that

Motorists would suffer a loss through the release with Beaver Creek can be

addressed through a molded verdict, if necessary. As we can find no basis

upon which Motorists was entitled to summary judgment, we reverse the

order and remand for further proceedings.

       Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2016




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