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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

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

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.