                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-7-2005

Overdorf v. Travelers Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2142




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Recommended Citation
"Overdorf v. Travelers Ins Co" (2005). 2005 Decisions. Paper 1469.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1469


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-2142
                                    ____________

                     DAVID H. OVERDORF, Administrator of the
                    Estate of KRISTEN R. OVERDORF, Deceased,

                                                  Appellant
                                          v.

                   THE TRAVELERS INSURANCE COMPANIES;
                            JOHN D. NEWBORG
                               ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 01-cv-02076)
                     District Judge: Honorable Gary L. Lancaster
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 27, 2005

       Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.

                                (Filed March 7, 2005)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      David H. Overdorf (“Overdorf”) appeals the District Court’s grant of summary

judgment in favor of The Travelers Insurance Companies (“Travelers”) on his claims of
breach of contract and bad faith, 42 Pa. Cons. Stat. § 8371, asserted on behalf of the

estate of his deceased daughter Kristen Overdorf, who was fatally injured while riding her

bicycle, by an automobile operated by Sharon Fonner. Overdorf obtained a judgment

against Fonner in excess of the $50,000 Travelers’ policy limit in a wrongful death action

tried in the Court of Common Pleas of Washington County, Pennsylvania. Overdorf

subsequently filed this action as an assignee of Fonner in which he is pursuing recovery

of the excess judgment from Travelers. The procedural and factual background of this

action was thoroughly discussed by the District Court, and is known to the parties.

       This appeal specifically challenges the District Court’s grant of summary judgment

regarding the breach of contract claim based upon the District Court’s determination from

Overdorf’s pretrial statement that Overdorf was no longer pursuing that claim. Overdorf

contends that the District Court erred in not permitting Overdorf an opportunity to be

heard on the merits of the contract claim. After conducting plenary review of the factual

and legal contentions of the parties, we affirm the grant of summary judgment in favor of

Travelers.

       It is undisputed that the Amended Complaint alleged that Travelers had an express

contractual duty to pay the delay damages assessed against Fonner in the Washington

County, Pennsylvania action and post-judgment interest pursuant to the “Supplementary

Payments” clause. Travelers moved for summary judgment on both the bad faith and

breach of contract claims raised by Overdorf. While Travelers’ briefing primarily



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focused on the bad faith claim, it nonetheless sought dismissal of the entire action,

specifically naming both the bad faith and the breach of contract claims. Overdorf’s

opposition to summary judgment pertained only to the bad faith claim and raised no

argument regarding the breach of contract claim or the “Supplementary Payments” clause

despite the fact that Travelers’ moving brief indicated that “most” of the breach of

contract claims had been abandoned. Nor did Overdorf’s pretrial statement advance the

breach of contract theory as one that was being pursued for purposes of trial.

       Overdorf’s omission of any reference to the breach of contract action in its

opposition to summary judgment, coupled with his failure to request reconsideration of

the District Court’s determination based on the pretrial statement that the breach of

contract claim was no longer being pursued by Overdorf, leads us to conclude that the

District Court’s assessment regarding that claim was correct – at the time summary

judgment was entered, the breach of contract theory was not advanced by Overdorf. See,

e.g., Shafer v. Reo Motors, Inc., 205 F.2d 685, 688 (3d Cir. 1953) (where no questions of

fact were raised in the District Court in opposing summary judgment they may not be

presented for appellate review given that summary judgment is to be determined based

upon the record the parties have actually presented); Price v. Inland Oil Co., 646 F.2d 90,

95-96 (3d Cir. 1981) (recognized that the scope of a case will be limited by a pre-trial

order or in its absence by the pre-trial representations of the parties).




                                               3
       We have considered all of the arguments of the parties and conclude that no

further discussion is necessary. We will affirm the judgment of the District Court.

________________________




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