BOND v. STATE FARM INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAMELA BOND, )

)

Plaintiff ) Case No. 1:18-cv-000176 (Ene)

)

vs. )

) RICHARD A. LANZILLO

STATE FARM INSURANCE ) UNITED STATES MAGISTRATE JUDGE

COMPANY, )

) MEMORANDUM OPINION ON

Defendants ) DEFENDANT’S MOTION FOR

) SUMMARY JUDGMENT

)

) ECF NO. 78

Plaintiff Pamela Bond (Bond) brings this action, pro se, against Defendant State Farm

Insurance Company (State Farm) claiming breach of contract.’ ECF No. 9. Before the Coutt is

State Farm’s motion for summary judgment. ECF No. 78. The parties have consented to the

jurisdiction of a United States Magistrate Judge for these proceedings. ECF No., 5, ECF No. 18.

For the reasons that follow, the motion will be GRANTED?

I. Background and Procedural History

Bond’s Response to State Farm’s Motion for Summary Judgment does not comply with

Federal Rule of Civil Procedute 56 because it omits a concise statement of (a) material facts that she

contends present genuine issues for trial, and (b) any additional facts that arguably preclude

summaty judgment. See, ¢.g., La Xia Lu v. United States, 2019 WL 2371759, at *1 (E.D. Pa. June 4,

2019). Thus, the following factual background is derived from State Farm’s Concise Statement of

Material Facts and deemed to be undisputed because Bond did not respond to State Farm’s Concise

Bond’s claimed violations of the McCarran-Ferguson Act, the Sherman Act, and Clayton Act, and the Federal Trade

Commission Act were previously dismissed with prejudice. See ECF No. 31.

2 The parties have consented to the jurisdiction of a United States Magistrate Judge, including the entry of final

judgment. See ECF Nos. 5, 18.

Statement or otherwise submit any evidence in opposition to the motion for summary judgment.

See, ¢.g., Tustin v. Strawn, 2020 WL 3084064, at *2 (W.D. Pa. June 10, 2020); Boyles v. Am. Heritage Life

Ins. Co., 383 F. Supp. 3d 470, 476 (W.D. Pa. 2019), afPd, 809 F. App'x 104 8d Cir. 2020) (citing

LCvR 56.E (‘Alleged material facts set forth in the moving party's Concise Statement of Material

Facts ... will for the purpose of deciding the motion for summary judgment be deemed admitted

unless specifically denied or otherwise controverted by a separate concise statement of the opposing

patty.”).

Bond moved into a house on Dawson Street in Bradford, Pennsylvania in July of 2017. She

insured her property through State Farm. ECF No. 81-5, p. 13, In. 20-230. Shortly after moving in,

Bond experienced difficulties with her home. She claimed, for example, that vandals damaged her

property. See ECF No. 80, §[ 2. Bond has claimed that

[flifteen walls of varying sizes have been destroyed by vandal(s). The

vandal(s) are as of yet unidentified. The damages occurred over a

period of several months. Each time the owner and Plaintiff, Pamela

Bond, left her abode, it was noted upon her return that things had

been stolen, destroyed, and moved about.

ECF No. 9, p. 5, 4 2. Vandals have made extensive physical changes to the property:

The bathtub has been changed twice. Two doors have been removed.

altogether, four doors have been changed. Old molding has been

nailed into the knotty pine estimated to have been worth $164,000.00

in the State Farm Insurance binder. A beetle infestation has resulted.

It is also believed that much of the good wood was removed because

the boards left behind are not long enough to result in the finished

look of uninterrupted Pennsylvania planks of highly polished

undamaged wood.

4okK

The period appropriate molding was all removed and replaced with

trash lumber. Estimated cost of replacing the molding runs into the

thousands of dollars. When the cheap wood was removed it was

noted that excessive damages along with newly placed wires were

being hidden by the new “molding”. New flowers and shrubs were

doused with wine. Floors became scratched and actual holes

appeared in the floorboards. Some of the holes in the upstairs

bedroom walls ate two and three inches wide.

Id., p. 6-7. Bond also claimed that the vandals infiltrated her home with beetles and voles. She

notes that

Exterminators do not ordinarily expect beetles to accomplish so

much damage to wood and so very

quickly. The vandal who leaves his name as gentus on the computers

and phones he ot she left hacked understood how to manipulate

natural forces and engage in biological warfare (Exhibit G). Voles

now live within the walls and floorboards. People at local hardware

stores claim that it is known that they were invited by increased heat

in the basement and a smashed foundation wall. Also, cut out areas

upstairs and in the attic obviously been used to insert food into the

walls for the rodents’ consumption.

Id., p. 7.

After State Farm denied her claim, Bond filed suit 1n this Court, alleging a breach of her

insurance contract. See ECF No. 3. She later filed an amended complaint, which is the operative

pleading. ECF No. 9. After a period of discovery, State Farm filed its motion for summary

judgment under Federal Rule of Civil Procedure 56. It also filed a Concise Statement of Material

Facts, to which Bond did not directly respond. Instead, she file three Responses in Opposition

(ECF Nos. 88, 90, and 91) along with a personal affidavit. ECF No. 93. ‘Thus, the matter is now

ready for disposition.

II. Standards for Summary Judgment

Federal Rule of Civil Procedure 56(a) requires a court to enter summary judgment “if the

movant shows that there is no genuine dispute as to any material fact and the movant 1s entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard “the mete existence of

some alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of

its existence or nonexistence would affect the outcome of the case under applicable substantive law.

Anderson, ATT U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue

of material fact 1s “genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and

Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether a genuine issue of material fact remains for trial, the court must

view the record and all reasonable inferences to be drawn from it in favor of the nonmoving patty.

_ v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cit.

1992); White v. Westinghouse Electric Co., 862. F.2d 56, 59 Gd Cir. 1988). To avoid summary judgment,

however, the nonmoving patty may not rest on the unsubstantiated allegations of his or her

pleadings. Instead, once the movant satisfies its burden of identifying evidence that shows the

absence of a genuine issue of material fact, the nonmoving party must to go beyond his pleadings

with affidavits, depositions, answers to interrogatories or other record evidence to demonsttate

specific material facts that give rise to a genuine issue. Céelotex Corp. v. Catrett, 477 U.S. 317, 324

(1986).

Further, under Rule 56, a defendant may seek summary judgment by pointing to the lack of

a genuine fact issue on one or more essential claim elements. ‘The Rule mandates summary

judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When

Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof

concerning an essential element of the nonmoving patty’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. GA.P. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

The summaty judgment standard, as recounted above, “is somewhat relaxed with respect to

pro se litigants. Where a party is representing himself pro se, the complaint is to be construed

liberally. A pro se plaintiff may not however, rely solely on his complaint to defeat a summary

judgment motion.” Muller v. McClure, et al., 2020 WL 1049750, *6 (W.D. Pa. Mar. 4, 2020) (citing

Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported

motion for summary judgment may not rest upon mete allegation or denials of his pleading, but

must set forth specific facts showing that there is a genuine issue for trial.”’)). Allegations made

without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 Gd Cir. 2000); see

also Schoch v. First Pid. Bancorporation, 912 F.2d 654, 657 3d Cir. 1990) (“[U]nsupported allegations ...

and pleadings are insufficient to repel summary judgment.”). With these standards in mind, the

Court will address Bond’s claims.

U1. Discussion

This Court has jurisdiction over this diversity action under 28 U.S.C. § 1332. See, e.g. Koppers

Co. v. Aetna Cas. Sur. Co., 98 F.3d 1440, 1445 Bd Cir. 1996). Bond is a resident of Pennsylvania

and State Farm, for purposes of this case, 1s a resident of the state of Illinois. See ECF No. 9, pp. 1-

2. Pennsylvania law governs this case. In an insurance coverage dispute under Pennsylvania law,

interpretation of an insurance contract regarding the existence or non-existence of coverage is

‘generally performed by the court.” Tartour v. Safeco Ins. Co. of I/linots, 2020 WL 489467, at *2 (B.D.

Pa. Jan. 30, 2020) (quoting Minnesota Fare and Cas. Co. v. Greenfield, 855 A.2d 854, 861 (Pa. 2004)

G@nternal citation omitted)). Bond, as the insured, has the burden of first making a prima facie

showing that her claim falls within the policy’s coverage. Koppers Co., 98 F.3d at 1446 (d Cir. 1996)

(applying Pennsylvania law). If coverage is shown, then State Farm has the burden to prove that a

coverage exclusion applies. Tartour, 2020 WL 489467, at *3.

Bond has alleged that unidentified vandals “ruined” or “damaged” the Dawson Stteet

residence by stealing, destroying, or moving things within the dwelling during their numerous

intrusions. See ECF No. 9, pp. 5-7. She appears to argue these actions and subsequent damages

should be covered under het homeownet’s policy as “accidental direct physical loss to property.”

See ECF No. 81-4, pp. 12-13. To determine whether the damage alleged is covered by the State

Farm policy, the Court must evaluate whether the damage constitutes “accidental direct physical loss

to property.” ECF 81-4, p. 13. Based on the record, the Court determines that the damaged caused

by the unidentified vandals was not accidental and that Bond has not made a prima facie showing

that her insurance claim is covered.

Under Pennsylvania law, an “accident” in the context of insurance coverage provisions is

“an unexpected and undesirable event occurring unintentionally.” Donegal Mut. Ins. Co. v.

Baumbhammers, 938 A.2d 286, 292 (2007) (citing Kyaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial

Union Ins. Co., 908 A.2d 888, 898 (Pa. 2006)). Courts have emphasized that the “key term in the

definition of the ‘accident’ 1s ‘unexpected’ which implies a degree of fortuity.” Id. Importantly,

damage is not accidental if “the injury was the natural and expected result of the insured’s actions.”

Id. (citing Lower Paxton Twp. v. U.S. Fidelity and Guar. Co., 557 A.2d 393, 398 (Pa. 1989)); see also State

Farm Fire ¢ Cas. Co. v. Estate of Meblman, 589 F.3d 105, 111 Gd Cir. 2009) (noting that “[a}n

accident, simply stated, is merely an unanticipated event”) (citation and quotation marks omitted);

Robinson v. Allstate Prop. ¢ Cas. Ins. Co., 306 F. Supp. 3d 672, 679 (E.D. Pa. 2018) (summarizing

Pennsylvania case law); McMahon v. State Farm Fire C Cas. Co., 2007 WL 137760, at *4 (E.D. Pa. May

8, 2007) (““‘Accidental’ is an adjective meaning happening by chance, unexpectedly, not in the usual

course of things.”). See Tartour, 2020 WL 489467, at *3. State Farm’s policy on the Dawson Street

ptoperty included coverage for “accidental direct physical loss” resulting from “vandalism or

malicious mischief,” which the policy defined as “willful and malicious damage to or destruction of

property.” ECF No. 81-4, p. 13.

State Farm denied Bond’s claim after conducting an inspection of her home. ECF No. 9, p.

10. Bond’s claim of vandalism was rejected. Id. The claim specialist determined that

At the time of the inspection ... the outside vinyl siding had not been

painted and after review of the realtor’s photo prior to the purchase

of the home, the items in question were in this condition prior to the

purchase of the property. We appreciate your business and regret

that the items shown and discussed ate not a result of an Accidental

Direct Physical Loss. We regret we can make not payment in

reference to your claim.

Id., pp. 10-11. Bond has not brought forth any evidence to support the conclusion that vandals

caused property damage at her Dawson Street home. Instead, she has submitted unsubstantiated

accusations and vague references to nonexistent reports of experts.

For example, Bond states that “Orkin exterminators were called to evaluate the damages to

the walls; these changes resembled scratches, burns, and mud crusting. The licensed exterminator

said that these problems were due to an infestation of wood eating beetles.” ECF No. 88, 74. But

no report from this exterminator is part of the summary judgment record. Regarding the damage to

her walls, Bond claims that “whoever was doing this never showed up when the Plaintiff was at

home.” Id. 3. She also states that the Kane Police Department was called to investigate her claims

of vandalism, but provides no police report. Id. 45. Bond argues that the changes to her property

“were not requested by the Plaintiff; therefore they are attributable to vandalism.” Id. 9. None of

this, however, is evidence which creates a genuine issue of material fact that the damage constituted

“accidental direct physical loss” resulting from “vandalism or malicious mischief’ within the

meaning of the subject policy.

Indeed, State Fatm has submitted the report of an expert to the contrary. The insurance

company hired an outside investigator who concluded that the damage Bond claimed was not

caused by vandals. An investigator from Insurance Restoration Consultants, after examining Bond’s

home, stated that

e The wallboards Bond claimed were “replaced without her knowledge/consent, wete in

fact miteted joints of the original tongue and groove knotty pine paneling” and that no

evidence existed to show that the paneling was altered after it was initially installed;

e The basement door Bond claimed was removed was actually still located on the

property;

e The squeaking sounds Bond attributed to voles were actually emanating from smoke

detectors that needed battery replacement;

e ‘There was no evidence of beetle infestation and the holes in the walls Bond attributed

to beetle activity were actually caused by nails or fasteners that had been used to hang

pictures, calendars, etc.

e Bond’s claim of “beetle hives” were actually knots in the wood paneling, which is a

natural occurrence.

ECF No. 81-8, generally.

Bond has the burden, as the party bearing the burden of proof at trial, and opposing

summary judgment, to submit competent evidence to support her claims. Scott v. Cafpin, 2012 WL

3019955, at *5 (D.N,J. July 24, 2012), affd, 527 Fed. Appx 123 Gd Cir. 2013) (citing Player v. Motiva

Enters., LLC, 240 Fed. Appx 513, 522 n. 4 (3d Cir.2007) (holding that, when a patty moving for

summary judgment points out to the district court that no evidence supports the nonmoving party’s

case, and the party opposing summary judgment beats the burden of proof, it is the nonmoving

party’s burden to identify evidence of record that creates a genuine issue of material fact)). Further,

is not the Court’s obligation ... to comb the ... record ... to identify a material factual dispute

where the patty opposing summary judgment has not done so under Local Rule 56.1(a)”). Benjamin

v. State Farm Ins. Co., 2017 WL 3535023 at n.1 (D.NJ. Aug. 17, 2017). Bond has failed to meet her

burden in opposing State Farm’s motion in this case. For example, bond has not produced an

expert to counter the conclusions teached by State Fatm’s expert. The Court notes that she did

identify Lacey Love, Executive Director of the Bradford, Pennsylvania Public Library, as a

purported expert. ECF No. 72. No report from Ms. Love was ever filed, however. Bond has filed

an affidavit. See ECF No. 93. But this affidavit does not provide any evidence to support her claims

and solely relies on speculation and het own conclusory allegations. Bond avers that

e She phoned the Kane Police Department after hearing “the sound of a door

opening” after having “bricked up the back door because the locks are vandalized;”

e The police always say that I am imagining everything;

e The back porch is “ruined;”

e The police left with the comment, “you have been back there;”

e She finds “signs that someone has been in my house. I hear my neighbor Terty call

to Joe Stauffer in the middles (sic) of the night. “You are in thete every day, Joe, go

home;”

Id., at pp. 1-2. No police report, testimony, or affidavits from neighbors, are part of the summaty

judgment record.

Such conclusory allegations simply cannot support a genuine dispute of material fact to

warrant denial of summary judgment to State Farm. See, ¢.g., Parker v. Sch. Dist. of Philadelphia, 415 F.

Supp. 3d 544, 566 (E.D. Pa. 2019), aff'd, 2020 WL 4530107 Gd Cir. Aug. 6, 2020). As one Court

recently noted:

[C]onclusory, self-serving affidavits are insufficient to withstand a

motion for summary judgment. Kzrleis v. Dickie, McCamey ¢» Chilcote,

P.C., 560 F.3d 156, 161 3d Cir. 2009) (quoting Blair v. Scott Specialty

Gases, 283 F.3d 595, 608 (3d Cir. 2002)). See also Lujan v. National

Wildlife Fed’'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L.Ed.2d 695

(1990) (‘The object of [Rule 56] is not to replace conclusory

allegations of the complaint ... with conclusory allegations of an

affidavit.”). Instead, the affiant must set forth specific facts that

reveal a genuine issue of material fact. Id. (collecting cases). Because

they ate not subject to cross-examination, affidavits are scrutinized

carefully. In re CitX Corp., 448 F.3d 672, 680 (3d Cir. 2006) (citing

10A Charles Alan Wright, Arthur R. Millet & Mary Kay Kane, Fed.

Prac. & Proc. Civ. § 2722, at 373, 379 Gd ed. 1998)).

Mahalik v. Cantania, 2019 WL 5862170, at *3 (E.D. Pa. Nov. 7, 2019). See also Berrada v. Cohen, 2019

WL 5618181, at *2 (3d Cir. Oct. 31, 2019) (affirming grant of summary judgment where plaintiff

offered no corroboration for his testimony and where plaintiff's testimony was contradicted by

indisputable evidence).

Bond has not proffered sufficient evidence to rebut State Farm’s basis for denying het claim.

Capps v. Mondelex Glob., LLC, 847 F.3d 144, 152-55 3d Cir. 2017) (affirming district court’s grant of

summary judgment because plaintiff had not adduced any meaningful evidence that would allow a

reasonable factfinder to find pretext). No reasonable jury could find based on the evidence before

the Court that State Farm improperly denied her property insurance claim.

IV. Conclusion

Given the foregoing, the Court will GRANT Defendant State Farm’s Motion for Summary

Judgment. An ORDER to that effect will follow.

Entered this 24" day of August, 2020.

eLarel

RICHARD A. LANZILLO

United States Magistrate Judge

10