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Legal Updates for Insurance Agents & Brokers

Plaintiffs’ Claims of Alleged Reliance Sink in Pool Damage Coverage Dispute

Legal Update for Insurance Agents & Brokers – February 3, 2022

February 3, 2022

by Dana A. Gittleman

In Palek v. State Farm Fire & Cas. Co., 535 F. Supp. 3d 382 (W.D. Pa. Apr. 21, 2021), the court granted the defendant insurer’s motion to dismiss claims for equitable reformation of contract, bad faith insurance practices under 42 P.S. § 8371 and unfair trade practices under 73 P.S. § 201 et seq. 

The genesis of the plaintiffs’ claims was an alleged misrepresentation at policy inception that their homeowner’s policy would cover their in-ground pool for damage arising from foreseeable types of harm. The plaintiffs claimed to have relied upon the insurance agent’s representation that the policy “covered their swimming pool” and were unaware that a potential “common risk” of damage arising from earth movement or subsurface water was excluded. The plaintiffs suffered a loss resulting from hydrostatic pressure in their pool (pool pop), which was denied under the aforementioned exclusion. Following the denial, the plaintiffs claimed that, had they known of the risk of pool pops (which they contended are common risks known in the insurance and swimming pool industries), they would have selected another policy, an additional rider or sought coverage elsewhere. 

When damage occurs for which coverage is denied, insureds often look for a source of blame. In such cases, the blame is frequently directed toward the insurance agent who procured the policy, irrespective of the nuances of the policy or the insureds’ failure to appreciate the scope of the coverages afforded. Insurance agents are certainly not clairvoyants, able to predict all hypothetical consequences of their customers’ insurance elections or whether their insurance customer understands the limitations of these elections. Thus, this decision is favorable for insurance agents, as it constrains claims for alleged “misrepresentation” (including negligent misrepresentation and fraud) where, as here, the agent has no knowledge of an insured’s mistaken belief and makes no affirmative representation regarding coverage. Vague representations as to “foreseeable” types of harm are distinguishable from affirmative assurances of coverage. 

The Palek decision is also a lesson in what not to do with respect to foreseeable risks of coverage, as it is possible that extrication from the litigation would have been complicated had the insurance agent attempted to categorize foreseeable vs. non-foreseeable events. Had the agent specifically delineated foreseeable risks, and either failed to mention or mischaracterized pool pops as an excluded risk of harm, the court may not have dismissed the plaintiffs’ claims arising from justifiable reliance. Insurance agents should always be wary of providing coverage opinions or analyses, but particularly in preemptively attempting to exhaust all possible risks and their coverage implications. 

The Court's Evaluation
In evaluating the reformation argument, the court examined whether there was evidence of a unilateral or mutual mistake justifying equitable reformation. In light of the language of the operative complaint— alleging the defendant had superior knowledge about pool pops and had denied such claims—the court concluded that the plaintiffs must establish that the defendant knew of and exploited their mistaken belief as to the coverages afforded. Importantly, the court concluded that the plaintiffs failed to show that the defendant knew of their ignorance of the subject exclusion or that the defendant unilaterally limited the policy beyond the “usual incident” of coverage. Indeed, the plaintiffs neither alleged that the water damage exclusion was unusual in a policy covering swimming pools or that it “changed the basic nature of the homeowners’ policy,” nor did they specifically request a coverage that the defendant unilaterally excluded. 

The court considered similar factors in rejecting the plaintiffs’ unfair trade practices claim in the absence of justifiable reliance. While Pennsylvania courts do not require an insured to “pore over their written policies to discover fraudulent misrepresentations,” there is a general duty to read the policy if it would be unreasonable under the circumstances not to do so. See Toy v. Metro. Life Ins. Co., 928 A.2d 186, 207 (Pa. 2007); Rempel v. Nationwide Life Ins. Co., 370 A.2d 366, 369 (Pa. 1977). The plaintiffs based their UTPCPL claim on an allegedly misleading statement by the defendant’s agent, that the policy would cover their pool from damage arising from foreseeable types of harm, yet the coverage did not include the (per the plaintiffs) common and foreseeable harm of pool pops. 

The court held that the defendant’s representation regarding the scope of coverage was too vague for reliance on it to be reasonable. It also found no allegation that the defendant made affirmative representations about coverage for pool pops or that the policy covered “all” foreseeable harms or “reasonably” foreseeable harms. In the absence of a specific representation about the policy at issue, i.e., what was or was not foreseeable, the court found that the plaintiffs were unreasonable to rely on a vague representation of coverage for “foreseeable” damage without further inquiry. 

The allegations in Palek were made against the insurer directly, with the agent not named individually, and the complaint asserted claims not generally made against an insurance agent (reformation, bad faith and unfair trade practices). However, the implications for insurance agents, both independent and captive, are readily foreseeable as the heart of the issue was an alleged misrepresentation about coverage terms and exclusions, a claim ripe for litigation against insurance agents.
 

Legal Update for Insurance Agents & Brokers – February 3, 2022, has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tgventura@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.