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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

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

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

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.