Nationwide Property and Casual v. Randy Shearer , 650 F. App'x 115 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-1837
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NATIONWIDE PROPERTY AND CASUALTY INSURANCE CO;
NATIONWIDE MUTUAL FIRE INSURANCE CO
v.
RANDY SHEARER; ERIN SHEARER, husband and wife;
WALTER G. FOX (deceased); ROSEMARY FOX, husband and wife;
PATRICK B. IORIO; PHILOMENA IORIO, husband and wife;
JEFFREY IORIO; DIANE IORIO; husband and wife; EDITH TOMEI
Walter G. Fox;
Rosemary Fox;
Patrick B. Iorio;
Philomena Iorio;
Jeffrey Iorio;
Diane Iorio;
Edith Tomei,
Appellants
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-14-cv-00735)
District Judge: Honorable Terrence F. McVerry
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 18, 2016
Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed: May 26, 2016)
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OPINION *
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HARDIMAN, Circuit Judge.
This appeal arises out of a property dispute between Randy and Erin Shearer and
Appellants (collectively, the Policyholders), who were insured by Nationwide Property
and Casualty Insurance Company and Nationwide Mutual Fire Insurance Company
(collectively, Nationwide). After discovering the discharge of sewage and other waste on
their property, the Shearers sued the Policyholders under various theories sounding in
trespass, nuisance, and violations of state environmental law.
Nationwide initially defended the Policyholders subject to a reservation of rights.
Nationwide informed the Policyholders that it would investigate the circumstances
surrounding the Shearers’ claims, but stipulated that “this investigation [was] subject to a
Reservation of Rights, meaning that [Nationwide] specifically reserve[d] the right to
later deny coverage on [the] claim at the conclusion of its investigation.” App. 462, 472,
482; see App. 491. Nationwide highlighted the fact that each of the Policyholders’
contracts contained exclusions for pollution or biological deterioration, which might
apply. In a supplemental reservation of rights letter, Nationwide cautioned each
Policyholder to “be aware that as the facts are determined, [Nationwide] may assert the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
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right to deny coverage and withdraw from the handling of this claim for any valid reasons
that may arise.” App. 465, 475, 485, 497. And Nationwide made clear that its assumption
of the Policyholders’ defense “shall not be deemed to be a waiver of or estoppel of these
and all rights under the policy and applicable law.” App. 463, 473, 483; see App. 496.
On June 9, 2014, Nationwide filed a complaint seeking a declaratory judgment that
it had no duty to defend or indemnify the Policyholders in connection with the Shearers’
lawsuit, citing the pollution and biological deterioration exclusions. After discovery, the
parties filed cross-motions for summary judgment. The Policyholders did not challenge
the applicability of the pollution and biological deterioration exclusions. Instead, they
argued that Nationwide should be equitably estopped from withdrawing because it had
been defending them for several years and such an untimely withdrawal would prove
prejudicial.
The District Court rejected the Policyholders’ arguments and granted summary
judgment in favor of Nationwide. Because Nationwide’s reservation of rights letters made
clear that its defense “shall not be deemed to be a waiver of or estoppel of these and all
rights under the policy and applicable law,” the Court held that Pennsylvania law
“completely undercuts the Policyholders’ estoppel argument.” App. 22 (citing Brugnoli v.
United Nat’l Ins. Co., 426 A.2d 164, 167 (1981)). Nor was the Court persuaded by the
Policyholders’ unsupported claim that Nationwide was required to take steps to withdraw
its defense “within a certain period of time after issuing [its] reservation of rights
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letter[s].” App. 23. Although the Court recognized that a reservation of rights letter will
not trump an estoppel argument in every case, see Willis Corroon Corp. v. Home Ins. Co.,
203 F.3d 449, 452 (7th Cir. 2000), it described a reservation of rights as “a lofty hurdle”
that can be cleared only by a showing of “actual prejudice.” App. 27. Finding “no
allegations, let alone evidence, of prejudice,” the Court held that “there is no basis to
estop Nationwide from asserting its coverage defenses.” App. 28. The Policyholders
appealed. 1
The Policyholders claim the District Court erred in refusing to equitably estop
Nationwide from withdrawing its defense of the Shearers’ lawsuit. They contend that,
notwithstanding their receipt of timely and unambiguous reservation of rights letters,
“Nationwide . . . made it clear that [it would represent them] and did represent [them] for
in excess of two years without [indicating that it might] withdraw as counsel.”
Policyholders Br. 5–6. They further argue that Nationwide’s about-face left them “in the
lurch,” requiring them to spend time and money “to retain new counsel” and forcing them
into “a disadvantaged position” in their ongoing litigation. Id. at 3. The Policyholders
characterize these circumstances as the inducement, detrimental reliance, and prejudice
needed to make out a defense of equitable estoppel. We disagree.
1
The District Court had jurisdiction under 28 U.S.C. §§ 2201(a) and 1332. We have
jurisdiction under 28 U.S.C. §§ 2201(a) and 1291. We exercise plenary review of a district
court’s order granting summary judgment. Fed. Home Loan Mortg. Corp. v. Scottsdale Ins.
Co., 316 F.3d 431, 443 (3d Cir. 2003).
4
Under Pennsylvania law, “[e]quitable estoppel is a doctrine of fundamental
fairness intended to preclude a party from depriving another of a reasonable expectation,
when the party inducing the expectation knew or should have known that the other would
rely to his detriment upon that conduct.” TIG Ins. Co. v. Tyco Int’l Ltd., 919 F. Supp. 2d
439, 456 (M.D. Pa. 2013) (quoting Straup v. Times Herald, 423 A.2d 713, 720 (Pa.
Super. Ct. 1980), overruled on other grounds by Kreutzer v. Monterey Cty. Herald Co.,
747 A.2d 358 (Pa. 2000)). In the insurance context, “there must be such conduct on the
part of the insurer as would, if the insurer were not estopped, operate as a fraud on some
party who has taken or neglected to take some action to his own prejudice in reliance
thereon.” Titan Indem. Co. v. Cameron, 2002 WL 242346, at *2 (E.D. Pa. Feb 19, 2002)
(quoting Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 63 (Pa. Super. Ct. 1967)).
Accordingly, an insured must show “(1) an inducement, whether by act, representation, or
silence when one ought to speak, that causes one to believe the existence of certain facts;
(2) justifiable reliance on that inducement; and (3) prejudice to the one who relies if the
inducer is permitted to deny the existence of such facts.” TIG Ins. Co., 919 F. Supp. 2d at
456–57.
Here, Nationwide preserved its coverage defenses by mailing reservation of rights
letters to the Policyholders. Brugnoli, 426 A.2d at 167. Each Policyholder was informed
that Nationwide could withdraw its defense for various reasons. The fact that Nationwide
defended the case for some time before citing an exclusion and denying coverage does
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not somehow turn the defense it did provide into fraudulent inducement. See Argonaut
Great Cent. Ins. Co. v. Phil’s Tavern, Inc., 2001 WL 1346327, at *4 (E.D. Pa. Oct. 29,
2001). Nor does it turn the Policyholders’ decision to allow Nationwide to provide them
with a defense into detrimental reliance. Id. at *5.
Finally, the Policyholders are unable to show prejudice. While they were
understandably disappointed by Nationwide’s decision to withdraw its defense, the fact
that it was entitled to do so under the terms of the insurance contracts means that the
defense it did tender was a temporary benefit to the Policyholders.
We will affirm the judgment of the District Court for the reasons stated.
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