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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

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.

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. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. 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