.

Defense Digest

Assignment of Benefits Contractor Precluded from Recovery Pursuant to Mortgagee Clause

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

Key Points:

  • The buyer of a home was not considered a mortgagee under a homeowners insurance policy when the proceeds from the sale were used to pay off the mortgage but there was no evidence that the buyer assumed any legal rights under the mortgage. 
  • Assuming the buyer was a mortgagee, he had no rights to recover under the homeowners policy’s mortgage clause because the mortgage was satisfied. 

Sometimes non-insured individuals and entities concoct creative ways to recover payments under homeowners insurance policies to which they are not a party. For example, one avenue is to obtain an assignment of benefits (AOB) from the insured after a loss occurs. However, if this avenue is closed, for example, due to a denial of coverage based on the actions or inactions of the insured, inventive non-insureds may pursue another avenue to recover insurance benefits—as illustrated in the case of Williams v. Nationwide Insurance, 2023 WL 2632212 (E.D. Pa. Mar. 24, 2023).

In Williams, Thomas P. Williams, Sr., the owner of a contracting company, filed a declaratory judgment action against Nationwide Insurance seeking a declaration that the insurer was required to pay him the insurance proceeds for a loss to the insured property. Judge Edward G. Smith, however, granted summary judgment in favor of the insurer and denied Williams’ artful attempt to secure insurance proceeds under the policy. 

Mark and Elizabeth Ann Ruch had purchased a homeowners policy with Nationwide Insurance. A fire destroyed their home on June 18, 2020. The Ruchs filed a claim with Nationwide, which ultimately denied their claim for, among other reasons, their failure to comply with the policy’s duties after loss conditions. 

Three days after the loss, Williams procured an AOB of the proceeds of the policy from the Ruchs. A few months later, Williams purchased the property from the Ruchs for $155,000. At the time, the home had a mortgage with PNC for approximately $135,000. The Ruchs satisfied the mortgage with the proceeds from the sale of the property to Williams.

Williams and the Ruchs revoked the AOB after Nationwide denied coverage for the claim, presumably because the denial would also foreclose Williams’ ability to recover under the policy as he stood in the shoes of the Ruchs based on the AOB. Williams, therefore, attempted a different avenue to recover insurance proceeds from Nationwide, arguing he was a mortgagee entitled to payment under the policy’s mortgagee clause. 

The Nationwide policy contained a standard mortgagee clause, which stated: “[i]f a mortgagee is named in the policy, any loss payable under [the policy] will be paid to the mortgagee and [the named insured].” The clause further stipulated, in part, that if the claim is denied, “the denial will not apply to a valid claim of the mortgagee,” provided certain conditions are met. 

Williams argued that he was entitled to the policy benefits under the mortgagee clause on the basis that his payment to the Ruchs to purchase the home was directly used by the Ruchs to pay off the mortgage and, therefore, Williams maintained that he became a mortgagee by standing in the shoes of PNC. In opposition, Nationwide argued that Williams merely purchased the home, thereby stepping into the shoes of the insureds as homeowners, and Williams assumed the same rights as the Ruchs. 

The court first analyzed whether Williams’ interest in the home was as a purchaser/homeowner or a mortgagee. The court held that, although the “sale proceeds were used to pay the mortgage, this [did] not give the buyer (Williams) any legal standing with respect to the mortgage.” The court noted that PNC did not assign the mortgage to Williams. Further, all the documentation, such as the settlement documents and the homeowners policy, did not identify Williams as a lender or mortgagee. The court held that Williams was a purchaser of the property and the simple fact that the sale proceeds were used to satisfy the mortgage did not transform Williams from a purchaser to a mortgagee. 

The distinction was important in this case because the mortgagee clause contained in Nationwide’s policy was a standard mortgagee clause. A standard mortgagee clause protects the mortgagee’s interest, even in some circumstances when the insurer denies the insured’s claim. 

Although the answer to the first question was dispositive of the case, the court next analyzed whether Williams (assuming he was a mortgagee) would be entitled to payment under the mortgagee clause. The court noted that the standard mortgagee clause essentially creates two contracts with Nationwide: the first with the insureds to provide benefits for covered losses; and the second with the mortgagee to pay to protect the mortgagee’s interest. The court noted that mortgagee clauses only allow the mortgagee to recover the amount of any outstanding mortgage and “no more[,]” and, to allow otherwise, would result in unjust enrichment. The mortgage was fully satisfied by the Ruchs from the proceeds of the sale of the home. Accordingly, the court ruled that, even if Williams was a mortgagee, he could not seek further payment under the policy. 

There has been an uptick is claims filed by individuals, mitigation companies, and contractors attempting to secure payments under homeowners policies on which they are not insureds. This trend has largely hinged on obtaining AOBs from the insureds. The Williams case shows that the AOB avenue is not the only option available to these non-insured individuals or entities. They may attempt to secure benefits through the mortgagee clause. However, insurers need to carefully analyze whether the non-insured person or entity seeking benefits is actually a mortgagee and whether the original mortgage has been satisfied post loss.



 

Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. 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Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ.