Anderson, B. v. Brown & Brown

J-A04019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIDGET ANDERSON, AS ASSIGNEE : IN THE SUPERIOR COURT OF

OF BIKE & BUILD, INC. : PENNSYLVANIA

:

Appellant :

:

v. :

:

BROWN & BROWN OF LEHIGH :

VALLEY, LP; HULL & COMPANY, INC. :

:

Appellee : No. 1468 EDA 2020

Appeal from the Order Entered June 9, 2020

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No. 170702999

BEFORE: KUNSELMAN, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED JUNE 02, 2021

Appellant, Bridget Anderson, as assignee of Bike & Build, Inc., appeals

from the order entered in the Philadelphia County Court of Common Pleas,

which granted summary judgment in favor of Appellee, Brown & Brown of

Lehigh Valley, LP.1 We affirm.

The relevant facts and procedural history of this case are as follows.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The caption for this case includes an additional party, Hull & Company, Inc.

(“Hull”). In her complaint, Appellant explained that Hull “served as a

‘Wholesale Broker/Managing General Agent’ for Bike & Build.” (Complaint,

filed 11/9/18, at 5; R.R. at 35a). On January 9, 2020, the parties entered

into a stipulation whereby they agreed to the dismissal of Appellant’s claims

against Hull without prejudice. The parties also requested that the

prothonotary amend the caption to omit Hull, however, the caption went

unchanged.

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Bike & Build is a non-profit entity that organizes service-oriented cycling trips

throughout the United States to benefit affordable housing. In 2014, Bike &

Build’s insurance carrier ceased offering coverage for bike touring companies.

Bike & Build obtained an interim policy and looked for new coverage. In the

first months of 2015, Bike & Build discussed their insurance needs with

Appellee, a broker who secures insurance coverage for businesses in

Southeastern Pennsylvania. During these discussions, Bike & Build’s Director

of Operations and Outreach, Justin Villere, informed Appellee’s representative,

John Ahern, about Bike & Build’s primary insurance needs:

[Appellee’s Counsel]: And what did you tell him about

Bike & Build’s risk exposures?

[Mr. Villere]: The history that the organization

has, the 2010 fatality, the 2011 fatality,[2] and then the

various instance[s] that our riders are at risk for on the

road, whether it is during cycling, falling themselves, an

accident with other riders or an accident with the vehicle, or

being on the build site where building with Habitat for

Humanity or other affordable housing organizations that are

building homes, so there is risk there, obviously, and so

those are our two primary exposures, and so I … did go over

those with him.

(Memorandum of Law in Support of Appellant’s Response to Summary

Judgment Motion, filed 2/6/20, at Exhibit A; R.R. at 486a).

____________________________________________

2 Earlier in the deposition, Mr. Villere discussed the fact that many cyclists

who participated in Bike & Build’s trips suffered injuries, including two “trip

leaders” who were killed. (Memorandum of Law in Support of Appellant’s

Response to Summary Judgment Motion, filed 2/6/20, at Exhibit A; R.R. at

482a).

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On May 6, 2015, Bike & Build and Appellee entered into a broker services

agreement. As part of the agreement, Appellee promised to assist Bike &

Build “in preparing applications for coverages that Customer has indicated it

wishes to procure through Broker.” (Complaint at 4; R.R. at 34a). Thereafter,

Appellee procured two insurance policies for Bike & Build, effective May 7,

2015 to May 7, 2016. Specifically, Appellee procured a commercial general

liability policy with Nautilus Insurance Company (“Nautilus”), as well as a

commercial excess liability policy with United Specialty Insurance Company

(“United”). Both policies, however, contained a “participants exclusion,”

which did not cover personal injuries to Bike & Build’s participating cyclists.

Although Appellee’s employees were aware of the participants exclusion,

Appellee did not recommend that Bike and Build obtain different insurance

coverage. (See Complaint at 7-8; R.R. at 37a-38a). During a May 7, 2015

telephone call, Mr. Villere asked Mr. Ahern about the impact the participants

exclusion would have on Bike & Build’s coverage. Mr. Ahern assured Mr.

Villere that the exclusion was standard, and “this wasn’t something that we

had to worry about….” (Memorandum of Law in Support of Appellant’s

Response to Summary Judgment Motion at Exhibit A; R.R. at 495a).

Ultimately, Bike & Build purchased the Nautilus and United policies.

On July 30, 2015, Appellant participated as a cyclist in one of Bike &

Build’s cross-country trips. While traveling through Oklahoma, a motorist

struck Appellant, and she sustained serious injuries. Bike & Build immediately

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notified Appellee about the potential claims arising from the accident.

Nevertheless, on August 17, 2015, Bike & Build’s insurers issued a reservation

of rights letter, informing Bike & Build that there may be no coverage for

Appellant’s potential claims. On June 6, 2016, the insurers formally denied

coverage to Bike & Build. Appellant filed a negligence lawsuit against Bike &

Build on June 15, 2016.

On September 7, 2016, Nautilus filed an action in federal court, seeking

a declaration that its policy excluded coverage of claims arising from

Appellant’s lawsuit. United filed a crossclaim in the declaratory judgment

action on October 24, 2016, also seeking a declaration that it need not defend

or indemnify Bike & Build. The federal court subsequently granted summary

judgment in favor of Nautilus and United.

In February 2017, Bike & Build resolved Appellant’s claims by entering

into a settlement and release. The agreement required the entry of a consent

judgment for ten million dollars in Appellant’s favor:

4. Entry of Consent Judgment. Within five (5)

days after her execution of this Settlement Agreement and

Release, [Appellant] and Bike & Build shall enter into a

consent judgment … for $10,000,000.00 and that will

provide that the proceeds from any action or lawsuit against

any of the entities named in ¶ 2, above, will be the sole

recourse available to [Appellant] for the claims raised in the

Action, and that [Appellant] will cause her counsel to mark

the judgment satisfied upon [Appellant’s] receipt of said

proceeds.

* * *

(Complaint at Exhibit 2; R.R. at 56a-57a). Bike & Build also assigned all of its

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rights and claims against the insurance companies and Appellee to Appellant.3

(See id.; R.R. at 55a). In exchange, Appellant agreed not seek any recovery

from Bike & Build:

3. Release. [Appellant], her heirs, executors,

administrators, and successors and assigns, by entering into

this Settlement Agreement and Release, do hereby

completely release, acquit, and forever discharge Bike &

Build of and from any and all known or unknown past,

present, or future claims, actions, causes of action,

demands, lawsuits, obligations, liens, rights, damages,

costs, claims for expense and/or compensation, claims for

attorneys’ fees and/or claims of any nature whatsoever, in

law or equity, including but not limited to all the claims

raised in or which could have been raised in the Action,

which concern, relate, or refer in any way to Bike & Build

based on alleged injuries or other harm experienced by

[Appellant].

(Id.; R.R. at 56a).

On July 27, 2017, Appellant, as assignee of Bike & Build, commenced

____________________________________________

3 Our Supreme Court has summarized the relevant principles governing

assignments as follows:

An assignment is a transfer of property or a right from one

person to another; unless qualified, it extinguishes the

assignor’s right to performance by the obligor and transfers

that right to the assignee. Under the law of assignment, the

assignee succeeds to no greater rights than those possessed

by the assignor. An assignee’s rights, however, are not

inferior to those of the assignor. Ultimately, an assignee

stands in the shoes of the assignor. Privity is not an issue

in cases involving assignment claims; an assignee does not

pursue a cause of action in its own right.

Crawford Cent. School Dist. v. Commonwealth, 585 Pa. 131, 136-37, 888

A.2d 616, 619-20 (2005) (internal citations and quotation marks omitted).

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an action against Appellee by filing a writ of summons. 4 Following a stay,

Appellant filed her complaint on November 9, 2018. Appellant alleged that

Appellee breached its broker services agreement and carelessly obtained

insurance policies that excluded the most significant risk faced by Bike & Build.

On January 6, 2020, Appellee moved for summary judgment on multiple

grounds, including that Appellant had failed to provide sufficient evidence of

damages. Appellant filed an answer to the summary judgment motion on

February 6, 2020. Regarding damages, Appellant claimed that she demanded

consequential damages from Appellee, which include “loss of good will

damages (or prospective damages, as they are sometimes termed).”

(Memorandum of Law in Support of Appellant’s Response to Summary

Judgment Motion at 22; R.R. at 452a). Appellant explained that loss of good

will claims “should not be barred ab initio, and that ‘plaintiffs should be given

an opportunity to set forth and attempt to prove their damages.’” (Id.)

Appellant also contended that the ten-million-dollar judgment against Bike &

Build “will obviously impair [its] ability to borrow money, purchase and sell

property or otherwise obtain credit unless and until the judgment is marked

satisfied.” (Id. at 22-23; R.R. at 452a-53a).

On June 9, 2020, the trial court granted Appellee’s summary judgment

____________________________________________

4 At that time, the federal court had yet to resolve the insurance companies’

declaratory judgment action. Consequently, the Court of Common Pleas

stayed Appellant’s case, pending resolution of the federal litigation.

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motion and dismissed Appellant’s complaint with prejudice. The court also

entered judgment in favor of Appellee and against Appellant. Significantly,

the court determined that Appellant “failed to present any evidence to

establish that Bike & Build sustained an ‘actual loss or damage’ or ‘resultant

damage’ from the negligence or breach of contract.” (Order and Opinion, filed

6/9/20, at 2) (emphasis in original). Appellant timely filed a motion for

reconsideration on June 19, 2020, which the court denied on July 7, 2020. On

July 8, 2020, Appellant timely filed a notice of appeal. The court did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal.

Appellant raises one issue for our review:

Does the summary judgment record, viewed in the light

most favorable to [Appellant], contain sufficient evidence

concerning the bare existence of damages such that

summary judgment was wrongly granted on that issue?

(Appellant’s Brief at 2).

Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347

(Pa.Super. 2006).

Judicial discretion requires action in conformity with law on

facts and circumstances before the trial court after hearing

and consideration. Consequently, the court abuses its

discretion if, in resolving the issue for decision, it misapplies

the law or exercises its discretion in a manner lacking

reason. Similarly, the trial court abuses its discretion if it

does not follow legal procedure.

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Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations and quotation marks omitted). Our scope of review is plenary.

Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert.

denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing

a trial court’s grant of summary judgment:

[W]e apply the same standard as the trial court, reviewing

all the evidence of record to determine whether there exists

a genuine issue of material fact. We view the record in the

light most favorable to the non-moving party, and all doubts

as to the existence of a genuine issue of material fact must

be resolved against the moving party. Only where there is

no genuine issue as to any material fact and it is clear that

the moving party is entitled to a judgment as a matter of

law will summary judgment be entered. All doubts as to the

existence of a genuine issue of a material fact must be

resolved against the moving party.

Motions for summary judgment necessarily and directly

implicate the plaintiff’s proof of the elements of [a] cause of

action. Summary judgment is proper if, after the

completion of discovery relevant to the motion, including

the production of expert reports, an adverse party who will

bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action or defense

which in a jury trial would require the issues to be submitted

to a jury. In other words, whenever there is no genuine

issue of any material fact as to a necessary element of the

cause of action or defense, which could be established by

additional discovery or expert report and the moving party

is entitled to judgment as a matter of law, summary

judgment is appropriate. Thus, a record that supports

summary judgment either (1) shows the material facts are

undisputed or (2) contains insufficient evidence of facts to

make out a prima facie cause of action or defense.

Upon appellate review, we are not bound by the trial court’s

conclusions of law, but may reach our own conclusions.

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Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

“[A]rguments not raised initially before the trial court in opposition to

summary judgment cannot be raised for the first time on appeal.” Rohrer v.

Pope, 918 A.2d 122, 128 (Pa.Super. 2007) (quoting Devine v. Hutt, 863

A.2d 1160, 1169 (Pa.Super. 2004)).

[A] non-moving party’s failure to raise grounds for relief in

the trial court as a basis upon which to deny summary

judgment waives those grounds on appeal…. A decision to

pursue one argument over another carries the certain

consequence of waiver for those arguments that could have

been raised but were not. This proposition is consistent with

our Supreme Court’s efforts to promote finality, and

effectuates the clear mandate of our appellate rules

requiring presentation of all grounds for relief to the trial

court as a predicate for appellate review.

Id. (quoting Walsh v. Borczon, 881 A.2d 1, 5 (Pa.Super. 2005) (emphasis

omitted)).

On appeal, Appellant contends the summary judgment record “sufficed

to permit a jury to award an amount of damages that was higher than zero.”

(Appellant’s Brief at 15). Appellant claims her complaint alleged that Bike &

Build suffered both financial and reputational injuries, and she sought actual

and punitive damages. Regarding economic damages, “the record showed

that Bike & Build had incurred specific out-of-pocket costs from [Appellee’s]

misconduct,” including the payment of broker, policy, administrative, and

insurance fees. (Id. at 15-16). Appellant complains that Bike & Build incurred

other out-of-pocket losses by paying the premiums for “insurance policies that

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did not respond to [Bike & Build’s] requirements.” (Id. at 16).

Further, Appellant argues that Bike & Build suffered losses in

conjunction with the settlement of Appellant’s original suit. Appellant posits

that Appellee’s failure to obtain an insurance policy that would cover personal

injury actions by injured cyclists “left Bike & Build to fend for itself after

Nautilus disclaimed coverage and refused to provide a defense” for Appellant’s

initial lawsuit. (Id. at 17). Appellant asserts Bike & Build was limited in its

ability to defend against the suit, and it “was not well positioned to negotiate

favorable settlement terms.” (Id.) As a result, Bike & Build’s settlement with

Appellant did not include “a confidentiality agreement to protect its reputation,

public standing, and goodwill.” (Id.) Appellant emphasizes the fact that the

ten-million-dollar consent judgment remains unsatisfied, which “destabilized

Bike & Build’s finances, including its ability to borrow money and obtain credit

for its ongoing business operations.”5 (Id. at 18). Appellant also avers that

Bike & Build suffered non-economic losses due to negative publicity for its

touring business, as well as loss of “standing in the community as a

____________________________________________

5 In support of this proposition, Appellant cites to an excerpt from the

deposition of Ronald Stepanek, a former Bike & Build employee. (Motion for

Reconsideration, filed 6/19/20, at Exhibit D; R.R. at 798a-99a). Although Mr.

Stepanek referenced certain “financial troubles” for Bike & Build, he did not

mention the consent judgment or link Bike & Build’s “troubles” to any aspect

of Appellant’s prior lawsuit.

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trustworthy non-profit partner that could be responsible for its bike riders.”6

(Id. at 19).

In analyzing the record for evidence of damages, Appellant insists that

the trial court improperly focused “on the fact that Bike & Build had no

affirmative obligation to pay the $10 million judgment.” (Id. at 21). Viewing

all of the evidence in the light most favorable to Appellant as the non-moving

party, Appellant maintains that the record contains evidence that would permit

a jury to find some amount of compensable harm, “irrespective of whether

the [consent] judgment itself must be paid” by Bike & Build. (Id. at 22).

Appellant also suggests “the record would permit the conclusion that

[Appellee’s] failure to procure appropriate insurance coverage caused Bike &

Build to settle [Appellant’s original lawsuit] during the early stages of litigation

on unfavorable terms.” (Id.) Appellant concludes the court should not have

granted summary judgment in favor of Appellee based upon a finding that

Appellant did not present evidence to establish that Bike & Build suffered an

actual loss or damages.

Appellee counters that Appellant failed to preserve many of her

arguments regarding the damages Bike & Build suffered. Specifically,

Appellee contends that Appellant’s response to the summary judgment motion

____________________________________________

6 Moreover, Appellant contends a jury would be entitled to find negligence or

breach of contract and award only nominal damages, and the record supports

the request in her complaint for punitive damages. (See Appellant’s Brief at

19-21).

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raised two arguments regarding damages: 1) Bike & Build suffered adverse

reputational effects due to Appellee’s conduct; and 2) entry into the consent

judgment resulted in damages to Bike & Build. Based upon this response,

Appellee insists Appellant has waived the ability to argue that Bike & Build

suffered any other type of damages.

Regarding the arguments Appellant preserved in her response, Appellee

maintains Appellant did not produce evidence that Bike & Build suffered any

damages. Appellee acknowledges that Appellant relies on a portion of Mr.

Villere’s deposition testimony to support the claim that Bike & Build suffered

damages to its reputation. Appellee maintains this testimony, however,

merely established that Bike & Build had “concerns” about bad publicity due

to Appellant’s accident. (Appellee’s Brief at 22). To the extent Appellant also

suggests that entry into the consent judgment resulted in damages to Bike &

Build, Appellee emphasizes that Appellant entered into a settlement

agreement that gave Bike & Build a full and unconditional release from all

claims related to Appellant’s accident. Under these circumstances, Appellee

maintains the settlement and consent judgment had no financial impact on

Bike & Build. Appellee concludes the court correctly granted summary

judgment in light of Appellant’s failure to produce evidence of damages. We

agree with Appellee that no relief is due.

“Generally, to state a cause of action for negligence, a plaintiff must

allege facts which establish the breach of a legally recognized duty or

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obligation of the defendant that is causally connected to actual damages

suffered by the plaintiff.” Scampone v. Highland Park Care Center, LLC,

618 Pa. 363, 387, 57 A.3d 582, 596 (2012). “The burden of proving the

existence of negligence rests upon the party who has asserted it.” Schmoyer

by Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 707 (Pa.Super. 1994).

“Damages awarded in a negligence action compensate a plaintiff for his

or her losses.” Phillips v. Cricket Lighters, 584 Pa. 179, 189, 883 A.2d

439, 446 (2005). “The amount and items of pecuniary damage cannot be

presumed but must be proved by the establishment of facts.” Cohen v.

Albert Einstein Medical Center, Northern Div., 592 A.2d 720, 729

(Pa.Super. 1991), appeal denied, 529 Pa. 644, 602 A.2d 855 (1992) (quoting

Gordon v. Trovato, 338 A.2d 653, 654 (Pa.Super. 1975)). See also Rizzo

v. Haines, 520 Pa. 484, 504-05, 555 A.2d 58, 68 (1989) (explaining mere

breach of professional duty, causing only nominal damages, speculative harm,

or threat of future harm—not yet realized—does not suffice to create cause of

action for negligence); Miller Oral Surgery, Inc. v. Dinello, 611 A.2d 232,

236 (Pa.Super. 1992), appeal denied, 533 Pa. 651, 624 A.2d 111 (1993)

(providing general rule that damages are not recoverable if they are too

speculative, vague or contingent and are not recoverable for loss beyond

amount that evidence permits to be established with reasonable certainty).

“To support a claim for breach of contract, a plaintiff must allege: 1) the

existence of a contract, including its essential terms; 2) a breach of a duty

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imposed by the contract; and 3) resultant damage.” Pittsburgh Const. Co.

v. Griffith, 834 A.2d 572, 580 (Pa.Super. 2003), appeal denied, 578 Pa. 701,

852 A.2d 313 (2004). “The purpose of damages in a breach of contract case

is to return the parties to the position they would have been in but for the

breach.” Id. “To that end, the aggrieved party may recover all damages,

provided ‘(1) they were such as would naturally and ordinarily result from the

breach, or (2) they were reasonably foreseeable and within the contemplation

of the parties at the time they made the contract, and (3) they can be proved

with reasonable certainty.’” Ely v. Susquehanna Aquacultures, Inc., 130

A.3d 6, 10 (Pa.Super. 2015), appeal denied, 635 Pa. 764, 136 A.3d 982

(2016) (quoting Helpin v. Trustees of Univ. of Pennsylvania, 608 Pa. 45,

50, 10 A.3d 267, 270 (2010)).

“In order to recover for damages pursuant to a breach of contract, the

plaintiff must show a causal connection between the breach and the loss.”

Logan v. Mirror Printing Co. of Altoona, Pa., 600 A.2d 225, 226 (Pa.Super.

1991).

The Superior Court has observed that “the test of whether

damages are remote or speculative has nothing to do with

the difficulty in calculating the amount, but deals with the

more basic question of whether there are identifiable

damages…. Thus, damages are speculative only if the

uncertainty concerns the fact of damages rather than the

amount.”

Id. at 227 (quoting Pashak v. Barish, 450 A.2d 67, 69 (Pa.Super. 1982)

(emphasis in original)).

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Instantly, Appellee requested summary judgment due to, among other

things, Appellant’s failure to establish that Bike & Build suffered a

compensable loss:

The record in this matter is devoid of any evidence that Bike

& Build: (1) incurred any financial loss as a result of

[Appellee’s] purported negligence, or (2) had any exposure

to rider claims that necessitated insurance coverage or

otherwise could have caused a loss, because [Appellant]

waived all of her claims against Bike & Build.

* * *

Stated simply, Bike & Build does not have any damages

caused by [Appellee]. Because [Appellant] cannot satisfy

this required element to support her negligence claim as

Bike & Build’s assignee, [Appellee] is entitled to summary

judgment.

(Memorandum of Law in Support of Summary Judgment Motion, filed 1/6/20,

at 17-18; R.R. at 118a-19a).

In response, Appellant claimed that Appellee ignored her demand for

consequential damages, which include damages for loss of good will. (See

Memorandum of Law in Support of Appellant’s Response to Summary

Judgment Motion at 22; R.R. at 452a). Appellant also alleged that the ten-

million-dollar consent judgment impaired Bike & Build’s ability to conduct

business. (Id. at 22-23; R.R. at 452a-453a). Appellant, however, did not

advance arguments regarding the propriety of specific out-of-pocket costs

related to Appellee’s misconduct, such as the payment of broker, policy,

administrative, and insurance fees. Consequently, we limit our review to

those arguments Appellant included in her response to the summary judgment

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motion.7 See Rohrer, supra.

Following the submission of Appellee’s summary judgment motion and

Appellant’s response, the trial court determined that Appellant failed to

present evidence to establish that Bike & Build sustained an actual loss or

damages. The court analyzed the deposition testimony from Mr. Villere, which

Appellant relies on to support the assertion that Bike & Build suffered a loss

of good will. The relevant portion of Mr. Villere’s deposition provides as

follows:

[Appellee’s Counsel]: And Bike & Build—was Bike &

Build concerned about how much it would cost to defend

[Appellant’s] lawsuit?

[Appellant’s Counsel]: Objection to form. You can

answer.

[Mr. Villere]: Among all of the concerns

related to the lawsuit, that would have been one of them.

[Appellee’s Counsel]: And what other concerns did Bike

& Build have about the lawsuit?

[Mr. Villere]: How it would impact upcoming

trips, of course, publicity, outcome.

____________________________________________

7 We acknowledge that Appellant’s response to the summary judgment motion

included argument on the propriety of punitive damages. (See Memorandum

of Law in Support of Appellant’s Response to Summary Judgment Motion at

31-34; R.R. at 461a-64a). Nevertheless, “punitive damages, unlike

compensatory damages and injunction, are generally not available for breach

of contract[.]” Barnes v. Gorman, 536 U.S. 181, 187, 122 S.Ct. 2097, 2102,

153 L.Ed.2d 230, ___ (2002). Moreover, “If no cause of action exists, then

no independent action exists for a claim of punitive damages since punitive

damages is only an element of damages.” DiGregorio v. Keystone Health

Plan East, 840 A.2d 361, 370 (Pa.Super. 2003) (quoting Kirkbride v. Lisbon

Contractors, Inc., 521 Pa. 97, 101, 555 A.2d 800, 802 (1989)).

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[Appellee’s Counsel]: Any other concerns?

[Mr. Villere]: I don’t recall any others at the

particular time.

(Memorandum of Law in Support of Appellant’s Response to Summary

Judgment Motion at Exhibit A; R.R. at 512a).

Likewise, Mr. Villere also discussed the practical consequences of Bike

& Build’s entry into the settlement agreement:

[Appellee’s Counsel]: Under the terms of this

settlement agreement, Bike & Build was not going to have

responsibility to pay the $10 million to [Appellant]; correct?

[Mr. Villere]: From what I understand of this

wording, correct.

[Appellee’s Counsel]: Any recovery of that $10 million

number would come either from the insurance carriers or

from [Appellee]; correct?

[Mr. Villere]: From what I understand, yes.

[Appellee’s Counsel]: And there was no finding made

by any court after the presentation of evidence that Bike &

Build was responsible to pay $10 million in damages;

correct?

[Appellant’s Counsel]: Objection to the form. You can

answer.

[Mr. Villere]: That’s correct.

(Id.; R.R. at 510a).

In analyzing the summary judgment record, the trial court carefully

scrutinized Mr. Villere’s testimony:

Mr. Villere never testified how [Appellant’s] litigation

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actually affected or would affect Bike & Build. He only said

that the officers of Bike & Build were concerned about

publicity about the litigation; but failed to identify the

publicity at issue and how it actually affected Bike & Build.

Mr. Villere’s testimony was too speculative because it did

not identify specific damages flowing from [Appellant’s]

litigation.

* * *

[Appellant] next asserted that [Appellee’s] conduct caused

Bike & Build to incur a $10 million consent judgment against

itself in favor of [Appellant]. [Appellant] baldly alleges that

such a substantial judgment will impair Bike & Build’s ability

to borrow money, purchase and sell property, or otherwise

obtain credit unless and until the judgment is marked

“satisfied.” However, [Appellant] failed to cite to any actual

evidence in the record that supports any of these

speculative claims. [Appellant] did not provide any

affidavits explaining Bike & Build’s actual attempts to borrow

money, obtain credit, or purchase or sell property that were

hampered by the judgment. [Appellant] did not present

expert testimony explaining the effect of the judgment on

Bike & Build’s ability to borrow money, obtain credit, or

purchase or sell property.

These “facts” are not facts; they are merely argument by

[Appellant’s] attorney without any evidentiary support in

the summary judgment record.

* * *

Mr. Villere testified that under the terms of the settlement

agreement between [Appellant] and Bike & Build, Bike &

Build would not have to pay any part of the $10 million

consent judgment. The sole sources for the $10 million

were [Appellee] and the two insurance carriers who had

produced policies for Bike & Build. There has been no

finding by any court that Bike & Build was responsible to pay

the $10 million judgment.

(Order and Opinion at 3-5) (internal citations and footnote omitted) (emphasis

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in original).

The court concluded that Appellant failed to present evidence

demonstrating that Bike & Build sustained actual loss or damages. The record

supports the court’s determination. Here, Mr. Villere testified that Bike & Build

had “concerns” about Appellant’s lawsuit. Such concerns do not equate to

quantifiable damages. See Logan, supra; Cohen, supra. Further, the

record is devoid of evidence of negative consequences of Bike & Build’s entry

into the settlement agreement. While Appellant attempts to characterize the

settlement as having “unfavorable” terms that were effectively forced upon

Bike & Build, the settlement provided Bike & Build with a mechanism to end

its involvement with Appellant’s claims without having to pay for a judgment.

On this record, we agree that any suggestion of damages to Bike & Build is

too speculative to support a cause of action. See Logan, supra; Cohen,

supra. Absent more, the court did not abuse its discretion or commit an error

of law by entering summary judgment in favor of Appellee. See Mee, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2021

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