Collier, R. v. Balzer, J. ( 2016 )

J-A10009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD AND TINA-MARIE COLLIER, IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS HUSBAND AND PENNSYLVANIA
WIFE
v.
JEFFREY BALZER PUBLIC ADJUSTERS
D/B/A NORTHERN PUBLIC ADJUSTERS
AND JEFFREY BALZER
Appellant No. 329 WDA 2015
Appeal from the Judgment Entered January 27, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 14-011740
RICHARD AND TINA-MARIE COLLIER, IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS HUSBAND AND PENNSYLVANIA
WIFE
Appellants
v.
JEFFREY BALZER PUBLIC ADJUSTERS
D/B/A NORTHERN PUBLIC ADJUSTERS
AND JEFFREY BALZER
No. 330 WDA 2015
Appeal from the Judgment Entered January 27, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 14-011740
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
JUDGMENT ORDER BY PANELLA, J. FILED JULY 15, 2016
J-A10009-16
In these consolidated cross appeals, Richard and Tina-Marie Collier and
Jeffrey Balzer Public Adjusters d/b/a Northern Public Adjusters and Jeffrey
Balzer appeal from the declaratory judgment order entered by the Honorable
Alan Hertzberg, Court of Common Pleas of Allegheny County. We affirm.
We assume the parties’ familiarity with the facts and procedural
history of the case. For a recitation of the facts and procedural history of this
matter, we direct the reader to the opinion of the trial court. See Trial Court
Opinion, 4/27/15, at 1-3.
“In reviewing a declaratory judgment, we are limited to determining
whether the trial court committed a clear abuse of discretion or error of
law.” Vanderhoff v. Harleysville Ins. Co., 78 A.3d 1060, 1065 (Pa. 2013)
(citation omitted). “The grant or denial of a declaratory judgment is a matter
lying within the sound discretion of the court of original jurisdiction.”
Lowther v. Roxborough Memorial Hosp., 738 A.2d 480, 489 (Pa. Super.
1999) (citation omitted). “An appellate court may not substitute its
judgment for that of the trial court if the determination of the trial court is
supported by competent evidence.” Vanderhoff, 78 A.3d at 1065 (citation
omitted).
We have reviewed the briefs of the parties, the certified record, and
the trial court opinion. The trial court, the Honorable Alan Hertzberg, has
authored an opinion that ably disposes of the issues presented on appeal.
We affirm based on that opinion. See Trial Court Opinion, 4/27/15, at 4-11.
Order affirmed.
-2-
J-A10009-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
-3-
Circulated 07/08/2016 09:58 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CIVIL DIVISION
RICHARD AND TINA-MARIE COLLIER,
individually and as husband and wife,
Plaintiffs,
CASE NO. GD 13-21486
vs. Superior Court Nos. 329 WDA 2015
and 330 WDA 2015
JEFFREY BALZER PUBLIC ADJUSTERS
d/b/a NORTHERN PUBLIC ADJUSTERS
and JEFFREY BALZER,
Defendants.
OPINION
Alan Hertzberg, Judge Date Filed: April 27, 2015
This is a dispute over the amount owed to a "public adjuster?' for obtaining funds from a
homeowners insurer.
In March of 2011 Plaintiffs Richard and Tina-Marie Collier owned a home in
Westmoreland County that was in the path of a tornado. Mr. and Mrs. Collier immediately
notified their homeowners insurer, Homesite Insurance Company, that the tornado severely
damaged their home. Homesite paid Mr. and Mrs. Collier $94,548 for the damage to the home
and its contents. Homesite refused Mr. and Mrs. Collier's requests for additional compensation,
and about a month after the tornado shuck, they decided to hire public adjuster Jeffrey Balzer.
1
63 P.S. ~1601 defines "public adjuster" as: Any person advertising, soliciting business or holding himselfout to
the public as an adjuster of claims for losses or damages arising out of policies of insurance, surety or indemnity
upon property, persons or insurable business interests within this Commonwealth, and receiving any compensation
or reward for the giving of advice or assistance to the insured in the adjustment of claims for such losses, or who for
compensation or reward, whether by way of salary or commission or otherwise, directly or indirectly, solicits
business, investigates or adjusts losses or advises the insured with reference to claims for losses on behalf of any
other person engaged in the business of adjusting losses. The term does not include an agent or employee of an
insurance company, association or an exchange, through whom a policy of insurance was written, in adjusting loss
or damage under such policy, nor does it include an insurance producer acting as an adjuster if the services of the
insurance producer in the adjustment are without compensation.
Defendant Jeffrey Balzer did obtain $165,611 in additional compensation from Homesite, but
there still were covered losses Homesite refused to pay. Therefore, Mr. and Mrs. Collier hired
attorney Bruce Gelman to sue Homesite for acting in bad faith toward them. See 42
Pa.C.S.§8371.
Late in 2011 Mr. Gelman filed suit on behalf of Mr. and Mrs. Collier against Homesite in
the Court of Common Pleas of Westmoreland County. This Westmoreland County lawsuit
contained counts against Homesite for acting in bad faith, unfair trade practices (73 P.S.§201-1
et seq.), intentional infliction of emotional distress and negligent underinsurance; that lawsuit is
referred to hereinafter as the "bad faith claim." In September of 2013 the bad faith claim was
resolved by a settlement that required Homesite to pay an additional $1,050,0002• Considering
the relevant limits on the Homesite policy total $462,600 ($257,000 dwelling, $25, 700 other
structures and $179,900 personal property) and Hornesite had previously paid $260, 159, it is
clear the settlement by payment of an additional $1,050,000 required Homesite to make a
payment much greater than the policy's limits. The settlement, however, did not delineate the
portion of the $1,050,000 owed pursuant to the insurance coverage from the amount attributable
to Homesite's bad faith. Mr. Balzer's public adjuster compensation is 20% of all settlement
proceeds paid by the insurer, and, believing he is entitled to 20% of the amount attributable to
bad faith, he sent Mr. and Mrs. Collier an invoice for 20% of the entire $1,050,000 settlement.
Mr. and Mrs. Collier informed Mr. Balzer they would only pay him 20% of the portion of
the $1,050,000 settlement attributed to the homeowners insurance policy. Mr. Balzer then filed a
2
The terms of the settlement are confidential pursuant to the "Confidential Full Release and Settlement Agreement"
Mr. and Mrs. Collier signed on 10/29/2013. See GD 13-21486, Plaintiffs First Amended Complaint filed 4/1/2014
at Exhibit 4. Based on this confidential settlement that they signed, the file (electronic and paper) at docket no. GD
13-21486 is sealed with redacted copies of all documents from it maintained in an unsealed file at docket no. GD 14-
11740. This opinion might be too confusing if I maintained the terms of the confidential settlement and filed it at
no. GD 14-11740. Therefore, it is being filed under seal at no. GD 13-21486.
2
charging lien in the Westmoreland County proceedings. Mr. and Mrs. Collier then commenced
this proceeding in Allegheny County (their agreement with Mr. Balzer requires dispute
resolution in Allegheny County) by a complaint for a declaratory judgment of the amount owed
Mr. Balzer. Late in November of 2013, Mr. and Mrs. Collier persuaded the Honorable Gary
Caruso in Westmoreland County to order Mr. Balzer to sign the insurer's $1,050,000 settlement
check, to pay $19,000 from it to Mr. Balzer, to make a partial payment from it of $273,000 to
Mr. and Mrs. Collier and to deposit the $758,000 balance into an interest bearing escrow
account. In January of 2014, in this proceeding the Honorable Judith Friedman ordered an
additional payment of $448,000 be made to Mr. and Mrs. Collier from the escrow account,
leaving a balance in it of $310,000 plus interest.
In February of 2014 Mr. and Mrs. Collier filed a Motion for Partial Summary Judgment
in this declaratory judgment proceeding. I granted the Motion by limiting Mr. Balzer's
compensation to 20% of the property damage from the tornado. In July of 2014 the docket
number in this proceeding was changed from GD 13-21486 to GD 14-11740. See footnote 2.
After presiding over the non-jury trial of the remaining issues in the declaratory judgment
proceeding, in January of 2015 I determined the balance owed Mr. Balzer is $38,642.97 while
Mr. Balzer owed Mr. and Mrs. Collier $48,860.75 primarily for prevailing party attorney fees
under the Public Adjuster Contract.
Mr. and Mrs. Collier as well as Mr. Balzer filed Motions for Post Trial Relief, which I
denied. Both sides also then appealed to the Superior Court of Pennsylvania. This opinion will
next address the errors the parties allege I made in their respective concise statements of errors
complained of on appeal. See Pa. R.A.P. No. l 925(a). I first will address the errors Mr. and
Mrs. Collier allege that I made.
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Mr. and Mrs. Collier first contend I made an error by not limiting Mr. Balzer's claim to
$2,500 (See Collier Concise Statement, ,i no. 2) under this provision in the Contract:
In the event the Insured/Claimant elects to either withdraw its claim and/or
otherwise breaches the terms of this contract by actions which include, but are
not limited to, fraud, unilateral termination of this contract outside the
revocability period as set forth by Pennsylvania Statutes, or impeding the claims
resolution process by failing to cooperate fully with Northern Public Adjusters,
etc., then Northern Public Adjusters, shall be entitled to collect from the
Insured/Claimant a fee which shall be $250.00 per hour for any and all time
incurred assisting the Insured/Claimant or a minimum recovery of $2500.00
whichever is greater.
Non-jury trial Exhibit 1 ("Public Adjuster Contract signed April 26, 2011). Mr. and Mrs. Collier
sent Mr. Balzer a letter on October 21,2013 notifying him of"contract termination" (Non-jury
Trial Exhibit 3) and argue this unilateral termination therefore limits Mr. Balzer's claim to
$2,500. However, the contractual language is that upon unilateral termination Mr. Balzer "shall
be entitled to collect. .. $250.00 per hour ... or $2,500.00 .... " I interpret the language to give Mr.
Balzer the option to collect his fee under the formula, but not requiring him to do so. Mr. Balzer
also interprets the provision this way. See transcript of non-jury trial, December 4-5, 2014 ("T."
hereafter), pp. 361 and 363. This interpretation also is consistent with Pennsylvania law that
only permits application of such a "liquidated damages" provision to cases where the measure of
damages is difficult to ascertain. See, e.g., Laughlin v. Baltaden, Inc., 191 Pa. Super. 611, 159
A.2d 26 (1960) and Com., Dept. ofTransp. v. Mitchell, 517 Pa. 203, 535 A.2d 581 (1987).
Since damages were easily calculated by using the 20% of settlement proceeds formula set forth
elsewhere in the contract, the liquidated damages provision cannot apply. Id. Therefore, I
correctly declined to limit Mr. Balzer's claim to $2,500.
Mr. and Mrs. Collier next contend I made an error by determining they owed Mr. Balzer
$38,642.97. See Collier Concise Statement.jl no. 3. The starting point for my analysis of the
4
amount owed Mr. Balzer is the limit for Coverage A, $257,000, and the limit for coverage C,
$179,900, which totals $436,900. Mr. Balzer's 20% fee results in him earing $87,380 on those
two coverages. I then utilize the same document Mr. and Mrs. Collier reference, "Collier v.
Balzer, Property Damage Coverage"? (Id.). I subtract each amount in the column entitled
"BALZER ACTUALLY EARNED,"2,710.72, 7,453.16, 22,958.39, 8,957.21, 8,256.60 and
1,543.28 from the $87,380 which reduces the amount to $35,500.64. From that amount, I add
20% of the portions of the amounts just subtracted that are attributed to Coverage B, 1,316.01
(20% of6,580.04), 283.04 (20% of 1,415.18) and 1,543.28 (20% OF 7,716.42). The sum is
$38,642.97.
Mr. and Mrs. Collier's argument that I made an error is premised on miscalculations and
an incorrect assumption. They begin by utilizing the $52,122.28 total in the "BALZER
ACTUALLY EARNED" column when addition of each number in that column does not yield a
total of $52,122.28. Based on my April 11, 2014 Order granting partial summary judgment, Mr.
and Mrs. Collier agree Mr. Balzer's fees are determined using the limits of Coverage A and
Coverage C. However, they fail to then give Mr. Balzer credit for the fees he earned under
Coverage B. Finally, Mr. and Mrs. Collier assume Mr. Balzer is not "entitled to any fee for
amounts paid by the insurance carrier prior to his involvement." Collier Concise Statement, ir no.
3. While there is evidence Mr. Balzer initially made a verbal offer to waive his fee on amounts
paid before his involvement, around the time of the $1,050,000 settlement both parties
abandoned the concept with Mr. and Mrs. Collier offering Mr. Balzer $30,000 (See T., pp. 146
and 210) and Mr. Balzer requesting an additional $210,000. Therefore, my determination that
Mr. and Mrs. Collier owed Mr. Balzer $38,642.97 was correct.
3
In the Collier Concise Statement, the document entitled "Collier v. Balzer, Property Damage Coverage," is
attached as Exhibit 2.
5
Mr. and Mrs. Collier's final contention is that I made an error in the amount of their
counsel fee award. See Collier Concise Statement, ,i no. 4. They complain that, even though
Mr. Balzer submitted no response to the Affidavit of Bruce Gelman in Support of A ward of
Counsel Fees, my verdict was for a lesser amount than requested. The trial court, however, has
authority to consider "whether the fees claimed to have been incurred are reasonable, and to
reduce the fees claimed if appropriate." McMullen v. Katz, 603 Pa. 602, 615, 985 A.2d 769, 777
(2009). This authority does not vary because the opposing party neglects to respond to an
attorney's fee affidavit. The attorney's skill, the amount of work performed and the character of
the services rendered are among the factors a trial court examines to determine whether a counsel
fee claim is reasonable. Id., citing In re Estate of LaRocca, 431 Pa. 542, 246 A.2d 337 at 339
(1968). Counsel for the Colliers claimed fees and costs of$55,270.75. After a reasonableness
examination, I awarded $48,860.75. I did so because attorney Gelman and his law clerk's time
spent on enforcing the Confidential Settlement Agreement, sealing docket no. GD 13-21486 and
opposing Defendant's Motion to Unseal was unnecessary. Mr. Gelman instead should have
redacted the confidential information from the start. I also reduced the law clerk's rate from
$85.00 to $50 per hour on the balance of his time because no information ever was provided
concerning the law clerk's education, experience and other qualifications", Therefore, the
amount of the counsel fee award was correct.
The errors that Mr. Balzer alleges I made are addressed next.
Mr. Balzer first contends that my decision to grant Mr. and Mrs. Collier's Motion for
Partial Summary Judgment "violated the doctrine of coordinate jurisdiction" because another
judge in this court "was deliberating the same issues .... " Balzer Statement of Matters on Appeal,
,i no. 1. However, I was aware that a colleague had taken Mr. Balzer's Motion for Distribution
4
I reduced Mr. Gelman's fee from $35,805 to $34,540 and the Jaw clerk's from $9,690 to $4,475.
6
of Funds to Defendant under advisement and received approval from that colleague to rule first
on the Motion for Partial Summary Judgment. But even had I not received approval, I would not
have violated the coordinate jurisdiction rule. That is because the rule is judges in a district
should follow decisions on the same facts made previously by another judge in the district. See
Yudacufski v. Commonwealth of Pennsylvania, 499 Pa. 605, 454 A.2d 923 ( 1982). Since the
other judge had not yet made a decision, the coordinate jurisdiction rule could not have been
violated. Therefore, my decision to grant partial summary judgment did not violate the
coordinate jurisdiction rule.
Mr. Balzer next contends that Judge Friedman made an error by ordering the $448,000
payment from the interest bearing escrow account to Mr. and Mrs. Collier because the Public
Adjuster Contract "required that all parties ... be paid, or no parties be paid." Balzer Statement of
Matters on Appeal, ,r no. 2. There is no evidence of such a provision in the agreement between
the parties. Instead, the contract simply requires that settlement payments be made payable to
Mr. and Mrs. Collier and Mr. Balzer. The purpose of the provision is to prevent Mr. and Mrs.
Collier from not paying Mr. Balzer for his services. Since the $310,000 remaining in escrow
was greater than the amount Mr. Balzer claimed he was owed, the purpose of having Mr. Balzer
be a payee on settlement checks was fulfilled. Therefore, Judge Friedman's order was not
5
erroneous.
Mr. Balzer next contends I made an error by interpreting the Public Adjuster Contract to
preclude him from recovering 20% of the portion of the $1,050,000 attributable to the bad faith
5
Mr. Balzer also argues Judge Friedman's order is contrary lo the law of"mutually concurrent conditions." Balzer
Statement of Matters on Appeal, ii no. 2. Where performance of contractual duties is to be concurrent by both sides,
neither party may recover without having tendered performance. See Weichardt v. Hook, 3 W.N.C. 488, 1877 WPL
13201 (Pa. 1877). 1t is not apparent to me what contractual duty Mr. Balzer believes to be a mutually concurrent
condition, but if it is seeking to reach an agreement on the amount of the settlement owed Mr. Balzer, Mr. and Mrs.
Collier did so. ·
7
claim. See Balzer Statement of Matters on Appeal, ,i no. 3. In taking this position, he focuses on
this language in the Public Adjuster Contract," ... Adjuster will receive a fee equal to 20% of all
settlement proceeds ... ," and argues other language in the Contract unsupportive of this position
is inapplicable. Id. However, a description in the Contract of what Mr. Balzer was hired to do, to
assist in negotiation of claims with the insurance carrier "for sustained damages/losses," is
clearly applicable ( emphasis added). This description of damages in the past tense at the very
least creates an ambiguity as to whether Mr. Balzer was hired for assistance with a future claim
arising from the insurance carrier's bad faith. The first sentence in the Contract, authorizing Mr.
Balzer to negotiate claims resulting from "damages sustained to the Insured/Claimant's
property," also is relevant ( emphasis added). The portion of the $1,050,000 that is compensation
for the insurer's bad faith certainly is not the damage to Mr. and Mrs. Collier's property for
which Mr. Balzer's involvement is authorized. Going outside the Contract, Mr. Balzer testified
he did not tell Mr. and Mrs. Collier he would "take 20 percent of their bad faith money." T., pp.
39-40. This additional evidence strongly supports my interpretation of the Contract, which was
not erroneous.
Mr. Balzer also contends that neither public adjuster legislation nor the rule prohibiting
unauthorized practice of law prevents him from receiving 20% of the bad faith claim. Balzer
Statement of Matters on Appeal, ,i nos. 4, 6 and 7. Mr. Balzer argues that 63 P.S. 1605(c)'s
specific prohibition of public adjuster actions in relation to claims for personal injury or
automobile property damage means they are not prohibited from acting in bad faith or other
unspecified claims. Id. While the legislation does not explicitly bar payment to Mr. Balzer from
the bad faith claim, the prohibition of the unauthorized practice of law set forth in 42 P.S. §2524
does bar such payment. In Dauphin County Bar Association v. Mazzacaro, 465, Pa. 545, 351
8
A.2d 229 (Pa. 1976), in affirming an injunction against a public adjuster engaged in the
unauthorized practice of law, the Pennsylvania Supreme Court explained when a public adjuster
crosses the boundary into the unauthorized practice oflaw as follows:
While the objective valuation of damages may in uncomplicated cases be
accomplished by a skilled lay judgment, an assessment of the extent to which that
valuation should be compromised in settlement negotiations cannot. Even when
liability is not technically 'contested', an assessment of the likelihood that liability
can be established in a court of law is a crucial factor in weighing the strength of
one's bargaining position. A negotiator cannot possibly know how large a
settlement he can exact unless he can probe the degree of unwillingness of the
other side to go to court. Such an assessment, however, involves an
understanding of the applicable tort principles (including the elements of
negligence and contributory negligence), a grasp of the rules of evidence, and an
ability to evaluate the strengths and weaknesses of the client's case vis a vis that
of the adversary. The acquisition of such knowledge is not within the ability of
lay persons, but rather involves the application of abstract legal principles to the
concrete facts of the given claim. As a consequence, it is inescapable that lay
adjusters who undertake to negotiate settlements of the claims of third-party
claimants must exercise legal judgments in so doing.
Id., 465, Pa. 545, 554, 351 A.2d 229, 233-234 (footnote omitted). Since legal judgments also
would be required for Mr. and Mrs. Collier's bad faith claim, Mr. Balzer's involvement similarly
would be the unauthorized practice oflaw.6
Mr. Balzer also contends I made insufficient factual findings and did not answer the
question presented for the declaratory judgment. See Balzer Statement of Matters on Appeal, 1
no. 4. Since Pennsylvania Rule of Civil Procedure No. 1038(h) gives the trial judge discretion
not to file findings of fact ("trial judge may include as part of the decision specific findings of
fact .... "), the argument that those I filed are insufficient is meritless. In any event, my factual
findings were sufficient as they were what I believed necessary to support the verdict.
Concerning the question presented for declaratory judgment, each of the six counts in the
6
To the extent Mr. Balzer may argue he should be paid from the bad faith claim for his expert assistance in those
proceedings, the contingency of his fee invalidates his argument. See Belfonte v. Miller, 212 Pa. Super. 508, 243
A.2d 150 ( 1968).
9
amended complaint were addressed in the January 8, 2015 Declaratory Judgment, Findings and
Verdict.
Mr. Balzer next contends the Public Adjuster Contract is "fully integrated" and that
parole evidence therefore should have been prohibited. See Balzer Statement of Matters on
Appeal, ,r no. 8. However, the Public Adjuster Contract lacks an integration clause and contains
only a few general terms. As explained above, the provision giving Mr. Balzer "20% of all
settlement proceeds" is ambiguous. Therefore, parole evidence was correctly admitted.
Mr. Balzer next contends "Plaintiffs and counsel for Plaintiffs defrauded" him. Balzer
Statement of Matters on Appeal, ,r no. 9. However, since Mr. Balzer made no counterclaim for
fraud (or anything else) and Mr. Gelman is not a party, whether they defrauded Mr. Balzer is of
limited importance. Without Mr. Balzer specifying how they allegedly defrauded him, it is
difficult for me to formulate any further response except to say that I generally found Mrs.
Collier and Mr. Gelman to be credible witnesses who did not defraud Mr. Balzer.
Mr. Balzer's final contention is that my decision to award Mr. and Mrs. Collier counsel
fees was erroneous because Mr. Balzer won the majority of the legal issues and decisions and
Mr. and Mrs. Collier lost the battle to limit Mr. Balzer's claim to $2,500. See Balzer Statement
of Matters on Appeal, ,r no. I 0. The Public Adjuster Contract states:
In the event of any action or proceeding relating to the interpretation or
enforcement of this agreement or any breach hereof, the prevailing party in such
action or proceeding shall be entitled to recover from the other party all court
costs, expenses and reasonable attorneys' fees (including all pre-trial, trial and
appellate proceedings) incurred by the prevailing party in that action or
proceeding, in addition to any other relief to which the prevailing party may be
entitled.
Since the Contract does not define "prevailing party," it means the party the fact finder declared
the winner, including "situations where a party receives less relief than sought or even nominal
10
I '
relief .... " Profit Wize Marketing v. Wiest, 2002 PA Super 380, 812 A.2d 1270, 1275. While I
disagree with Mr. Balzer's conclusion that he won the majority of the legal issues and decisions,
that is not the appropriate way to determine whether Mr. and Mrs. Collier were the prevailing
party. Instead, the analysis simply is to determine the party I declared the winner. Since I
declared Mr. and Mrs. Collier the winner of the primary matter in dispute, whether Mr. Balzer
was entitled to 20% of the bad faith claim recovery, they were the prevailing party. Therefore,
my decision to award Mr. and Mrs. Collier counsel fees was correct.
BY THE COURT:
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11