Gordon v. Allstate Property & Casualty Insurance Co. , 704 F. App'x 149 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3671
_____________
AHSAKI GORDON;
THE PENNSYLVANIA HOUSING FINANCE AGENCY,
ITS SUCCESSORS AND/OR ASSIGNS
v.
ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-15-cv-03088
District Judge: The Honorable Joel H. Slomsky
_____________
Argued July 11, 2017
Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK,*
Chief District Judge
(Opinion Filed: July 26, 2017)
Allan D. Goulding, Jr., [ARGUED]
Curtin & Heefner LLP
250 North Pennsylvania Avenue
Morrisville, PA 19067
*
Honorable Leonard P. Stark, Chief Judge of the United States District Court for
the District of Delaware, sitting by designation.
Counsel for Appellant Allstate Property & Casualty Insurance Co.
Marc H. Edelson
Liberato P. Verderame [ARGUED]
Edelson & Associates
3 Terry Drive, Suite 205
Newtown, PA 18940
Counsel for Appellee Ahsaki Gordon
Sean A. Kirkpatrick [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Counsel for Appellee Pennsylvania Housing Finance Agency
_____________________
OPINION
_____________________
SMITH, Chief Judge.
Allstate Property and Casualty Insurance Co. (“Allstate”) appeals a jury
verdict in favor of homeowner Ahsaki Gordon on a breach of contract claim.
Allstate’s appeal primarily concerns its claim that the District Court erred by
allowing the jury to consider Gordon’s reasonable expectations of insurance
coverage. We conclude that any error was harmless, and will affirm the judgment
of the District Court.
I.

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
After a storm, on March 10 and 11, 2015, portions of the stone façade of
Gordon’s home collapsed. Allstate denied Gordon’s claim for coverage on the
basis that her policy was limited to “sudden and accidental physical loss to the
property” caused by a named peril, including windstorms. J.A. 73a. According to
Allstate, the damage to Gordon’s home was caused by neglect, not the storm.
On June 3, 2015, Gordon filed a one-count breach of contract complaint in
the United States District Court for the Eastern District of Pennsylvania. The
Philadelphia Housing Finance Agency (“PHFA”), Gordon’s mortgagee, was joined
as a plaintiff. After a four-day trial, the jury returned a verdict for Gordon, finding
that she and PHFA “proved by a preponderance of the evidence that the collapse of
the exterior wall . . . was a sudden and accidental physical loss caused by a
windstorm as covered under her policy with defendant.” J.A. 724a. The jury
awarded Gordon $177,684.74, and the District Court entered judgment
accordingly. After Allstate moved for, and was denied, judgment as a matter of
law and a new trial, Allstate timely filed this appeal.1
II.
At trial, Allstate filed a motion in limine seeking to prevent Gordon from
testifying about her reasonable expectations of coverage. The District Court
1
The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate
jurisdiction under 28 U.S.C. § 1291.
3
denied Allstate’s motion, permitted the testimony, and later provided instructions
to the jury concerning that testimony.2 Allstate claims that the District Court erred
in doing so, contending there was no basis for permitting the jury to consider
testimony regarding Gordon’s reasonable expectations of coverage.3
Even if Allstate could demonstrate that Gordon’s testimony should have
been excluded as a matter of Pennsylvania law,4 “errors in the admission or
2
Gordon testified that, when she purchased her home, she had the following
conversation with an insurance agent: “When he asked me, you know, what kind of
– type of insurance do I want, I said I don’t know. You tell me what type of
insurance I should get. It’s a 100 something years old. The house is old. I don’t
have any money . . . so tell me what is – what policy that I can get that can fix it if
anything goes wrong. I don’t know anything about houses, so I won’t – I don’t
know what to ask you . . . you’re the professional, you tell me what you think I
should’ve based on everything I told you about the house? And he said oh, I have a
policy great for you.” J.A. 265a–66a. When asked, “what were your concerns
specifically when you’re talking to the agent about you wanted to buy a policy?,”
Gordon responded, “[t]hat I wanted to be covered.” J.A. 267a.
3
We review both the District Court’s evidentiary ruling and its decision regarding
the jury instructions for abuse of discretion. Abrams v. Lightolier, Inc., 50 F.3d
1204, 1213 (3d Cir. 1995) (evidentiary rulings); Fahie v. Virgin Islands, 858 F.3d
162, 169 (3d Cir. 2017) (jury instructions).
4
Pennsylvania law is not entirely clear as to the circumstances under which an
insured’s reasonable expectations of coverage are to be considered. Compare
Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 567 (Pa. 1983)
(“[W]here, as here, the policy limitation relied upon by the insurer to deny
coverage is clearly worded and conspicuously displayed, the insured may not avoid
the consequences of that limitation by proof that he failed to read the limitation or
that he did not understand it.”), with Tonkovic v. State Farm Mut. Auto. Ins. Co.,
521 A.2d 920, 926 (Pa. 1987) (“The reasonable expectation of the insured is the
focal point of the insurance transaction . . . . Thus, regardless of the ambiguity, or
lack thereof, inherent in a given set of insurance documents . . ., the public has a
right to expect that they will receive something of comparable value in return for
4
exclusion of evidence cannot be grounds for reversal or a new trial if they
constitute harmless error.” Abrams, 50 F.3d at 1213 (citing Fed. R. Civ. P. 61).
An error is harmless when there is a “high probability” that the discretionary error
did not contribute to the verdict. Langbord v. U.S. Dep’t of Treasury, 832 F.3d
170, 196 (3d Cir. 2016) (en banc).
Here, any error would be harmless because Gordon presented sufficient
evidence to support the jury’s determination that the collapse of Gordon’s home
was a “sudden and accidental physical loss caused by a windstorm as covered
under her policy with defendant.” J.A. 724a. For instance, Gordon presented
expert testimony from an engineer who opined that the collapse was a sudden,
catastrophic event and that “the wind damage [wa]s the final nail in the coffin that
cause[d] the collapse of this. . . . [He] would attribute this [collapse] more to a
wind event . . . .” J.A. 475a–76a. Gordon also presented testimony from the
contractor who repaired her home, who personally observed that “there was
damage by the scupper box along the fascia board which in [his] assessment had
blown off and turned into a catch funnel.” J.A. 337a.
the premium paid.” (quoting Collister v. Nationwide Life Ins. Co., 388 A.2d 1346,
1353 (Pa. 1978))); see also Bensalem Twp. v. Int’l Surplus Lines Ins. Co., 38 F.3d
1303, 1311 (3d Cir. 1994) (“Faced with Collister, Standard Venetian Blind, and
Tonkovic, we are unable to draw any categorical distinction between the types of
cases in which Pennsylvania courts will allow the reasonable expectations of the
insured to defeat the unambiguous language of an insurance policy and those in
5
Because Gordon presented ample evidence to support the determination that
the loss was caused by a windstorm—and therefore was covered by the express
terms of the contract—it is highly probable that the jury would have reached that
same result even without Gordon’s reasonable expectations testimony. Any
claimed error in admitting Gordon’s reasonable expectations of coverage—and any
related error in instructing the jury regarding that evidence—was therefore
harmless.5 E.g., Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 411
(3d Cir. 2006) (“An error will be deemed harmless only if it is ‘highly probable’
that the error did not affect the outcome of the case.” (quoting Forrest v. Beloit
Corp., 424 F.3d 344, 349 (3d Cir. 2005))).
III.
Allstate also contends that the District Court erred in denying its motion for
judgment as a matter of law because, according to Allstate, the evidence presented
at trial demonstrated that the “predominant cause” of the damage to Gordon’s
home was a lack of maintenance, and the loss was therefore not covered by the
which the courts will follow the general rule of adhering to the precise terms of the
policy.”).
5
Allstate further contends that the jury instructions regarding reasonable
expectations were “mutually exclusive and inconsistent.” We have reviewed the
instructions and conclude that they accurately apprised the jury of the applicable
law. See Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009).
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policy. The District Court denied Allstate’s motion at trial, as well as its renewed
post-trial motion.6
A motion for judgment as a matter of law “should be granted only if,
viewing the evidence in the light most favorable to the nonmovant and giving it the
advantage of every fair and reasonable inference, there is insufficient evidence
from which a jury reasonably could find liability.” Avaya Inc. v. Telecom Labs,
Inc., 838 F.3d 354, 373 (3d Cir. 2016) (quoting Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). Such a motion should be granted only
sparingly. Goodman v. Pa. Turnpike Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).
As already discussed, we are satisfied that the jury’s verdict rested upon
sufficient evidence of liability. Accordingly, the District Court properly denied
Allstate’s motion.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
6
We exercise plenary review over the District Court’s denial of judgment as a
matter of law. See Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009).
7