January 7, 2010
Written By: C. Scott Rybny and Jennifer A. Coughlin
This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
A federal judge in the Eastern District of Pennsylvania has refused to grant summary judgment in a "matching" case. In short, the court in Collins v. Allstate Insurance Company, 2009 WL 4729901 (E.D. Pa. Dec. 10, 2009) surprisingly rejected Allstate's argument that it had no obligation to replace undamaged portions of an insured's roof after paying for those sections of the roof that were damaged.
How should insurers reconcile this decision with the Pennsylvania Superior Court's prior matching decision in Greene v. United Services Auto. Ass'n, 936 A.2d 1178 (Pa. Super. 2007)?
Collins concerned homeowner's policy language requiring replacement with "like kind and quality," or reimbursement of repair costs for "equivalent construction for similar use." Collins alleged damage to a slate roof and resulting interior damage due to a wind and rainstorm. Allstate issued payment to include replacement of only the damaged sections of that roof. Collins retained a public insurance adjuster who claimed that the entire roof needed replacement, even those portions that were undamaged, since slate tiles sufficiently similar in color, size and texture to those that were damaged were unavailable and the roof would not maintain a consistent appearance.
Allstate sought to dismiss Collins' breach of contract claim on summary judgment consistent with Greene. The Collins court refused, finding that genuine issues of material fact arising from a public adjuster's Affidavit. The Collins court distinguished its facts from Greene, because Greene involved evidence that roof shingles of a similar color and texture were available and that the use of these replacement shingles would be considered "like construction" under the policy.
PRACTICE TIPS
Collins is a decision by a federal trial court. While some state and federal courts may accept that decision as persuasive, it is not binding.
Moreover, insurers should read Collins as a reminder that public adjusters and the plaintiff's bar continue to seek to distinguish the Greene decision. Courts will continue to assess whether or not materials (shingles, siding, etc.) of the same function, color and shape remain available to replace those damaged or missing areas.
Questions regarding this matter or any issues related to first-party property claims may be directed to the authors.
