Slaubaush Farm, Inc., et al.
Farm Family Cas. Ins. Co.
Francis J. Jones, Jr., Esquire Morris James, LLP
Malatesta, Jr., Esquire Kent & McBride, P.C.
D. Schultz, Esquire
G. Culley, Esquire Tybout, Redfearn & Pell
Kenneth M. Doss, Esquire Casarino Christman Shalk Ransom
& Doss, P.A.
Counsel, This is my decision on the Plaintiffs' Motion
for Reargument of my decision granting summary judgment in
favor of Defendant Farm Family Casualty Insurance Company on
its denial of insurance coverage for the collapse during a
blizzard of the Plaintiffs' chicken house.
Plaintiffs are "puzzled" by my assertion that
neither of Farm Family's engineers had recommended to
Farm Family that additional testing, or investigation, of the
Plaintiffs' collapsed chicken house was necessary. There
is no reason for the Plaintiffs to be puzzled. At the time
that Farm Family denied coverage for the Plaintiffs'
claim - which is the relevant time frame under the applicable
- neither of Farm Family's engineers had made such a
recommendation. Indeed, it was not until almost seventeen
months after Farm Family initially denied coverage for the
Plaintiffs' claim that Harvey Kagan, one of the two
engineers hired by Farm Family to inspect the Plaintiffs'
collapsed chicken house, said that it was his intent to do a
more in-depth investigation. Seventeen months later was not
the relevant time frame. I do note that after Harvey Kagan
reviewed the Plaintiffs' expert report, he remained
convinced that his original opinion about snow causing the
Plaintiffs' chicken house to collapse was still correct.
Plaintiffs argue that Harvey Kagan's report was
unreliable on its face. This is nothing more than a repeat of
the Plaintiffs' original argument. Moreover, I did not
think so. Harvey Kagan is an engineer. Kagan conducted a
visual inspection of the Plaintiffs' collapsed chicken
house and concluded that the three-day blizzard put so much
snow on the roof that the chicken house collapsed. I
certainly understand that the Plaintiffs - who are not
engineers - felt that Kagan should have done more. However,
the Plaintiffs never offered the opinion of an engineer -
even though they had one - that Kagan's work was too
shoddy to rely on. Conclusory allegations from non-experts
are not persuasive. I note further that Farm Family had a
second engineer also conduct a visual inspection of the
Plaintiffs' collapsed chicken house. Thus, a visual
inspection alone did not strike me as being unreasonable
under the circumstances.
Plaintiffs argue that whether or not it was proper for Farm
Family to rely on Harvey Kagan's report is a matter best
left for the jury. Unfortunately, the Plaintiffs ignored the
procedural posture of this issue. The Plaintiffs filed for
summary judgment and argued that no issue of material fact
existed and that they were entitled to summary judgment as a
matter of law. Farm Family filed its response, agreed that no
issue of material fact existed, and argued that it was
entitled to summary judgment as a matter of law. Since both
parties agreed that the facts were undisputed and had both
asked for summary judgment, it was appropriate for me to
consider the matter on that basis. The Plaintiffs knew the
procedural posture of this issue and said nothing. Now, after
having lost, the Plaintiffs complain. The Plaintiffs'
complaint is too late.
Plaintiffs argue that it was improper for me to consider
David Fender's opinion about the cause of the
Plaintiffs' collapsed chicken house because his opinion
came after Farm Family initially denied coverage.
Plaintiffs' argument misses the fact that I considered
Farm Family's first denial of coverage separately from
its second denial of coverage. Farm Family first hired Harvey
Kagan to inspect the Plaintiffs' collapsed chicken house.
Kagan inspected it on January 25, 2016. Kagan sent a memo to
Farm Family the same day stating that the chicken house
collapsed because of the snow on the roof. Farm Family issued
its denial of coverage letter to the Plaintiffs on January
Family then hired a second engineer, David Fender, to inspect
the Plaintiffs' collapsed chicken house. Fender inspected
it on January 29, 2016. Fender concluded that the chicken
house collapsed because the metal connector plates failed due
to the weight of the snow on the roof. Fender issued his
report to Farm Family on February 5, 2016. Farm Family issued
a second denial letter to the Plaintiffs on February 16,
2016. Thus, Farm Family had issued two denial letters to the
Plaintiffs in a period of just fifteen days based on
inspections done three days apart by two different engineers.
decision granting summary judgment in favor of Farm Family, I
considered Farm Family's first denial of coverage and
reliance on Kagan's report separately, stating the
I conclude that Farm Family was justified in relying upon the
expert opinion of Mr. Kagan that, at the time the
Plaintiffs' claim was presented to Farm Family, the cause
of the poultry house's collapse was snow accumulation on
the poultry house's roof that the poultry house's
trusses could not support and that a more thorough
investigation was not necessary.
went on to separately conclude that Farm Family's second
denial of coverage was also appropriate. Thus, I did consider
Farm Family's first denial, which was based solely on
Kagan's report, independently of Fender's report.
Moreover, the Plaintiffs knew that Farm Family had relied
upon Fender's report in its response to the
Plaintiffs' motion for summary judgment and said nothing.
The Plaintiffs' objection now is simply too late. The
Plaintiffs further note that my reliance on Fender's
report is unfair because they ...