Anderson, B. v. Brown & Brown ( 2021 )

J-A04019-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIDGET ANDERSON, AS ASSIGNEE : IN THE SUPERIOR COURT OF
OF BIKE & BUILD, INC. : PENNSYLVANIA
:
Appellant :
:
v. :
:
BROWN & BROWN OF LEHIGH :
VALLEY, LP; HULL & COMPANY, INC. :
:
Appellee : No. 1468 EDA 2020
Appeal from the Order Entered June 9, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 170702999
BEFORE: KUNSELMAN, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 02, 2021
Appellant, Bridget Anderson, as assignee of Bike & Build, Inc., appeals
from the order entered in the Philadelphia County Court of Common Pleas,
which granted summary judgment in favor of Appellee, Brown & Brown of
Lehigh Valley, LP.1 We affirm.
The relevant facts and procedural history of this case are as follows.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The caption for this case includes an additional party, Hull & Company, Inc.
(“Hull”). In her complaint, Appellant explained that Hull “served as a
‘Wholesale Broker/Managing General Agent’ for Bike & Build.” (Complaint,
filed 11/9/18, at 5; R.R. at 35a). On January 9, 2020, the parties entered
into a stipulation whereby they agreed to the dismissal of Appellant’s claims
against Hull without prejudice. The parties also requested that the
prothonotary amend the caption to omit Hull, however, the caption went
unchanged.
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Bike & Build is a non-profit entity that organizes service-oriented cycling trips
throughout the United States to benefit affordable housing. In 2014, Bike &
Build’s insurance carrier ceased offering coverage for bike touring companies.
Bike & Build obtained an interim policy and looked for new coverage. In the
first months of 2015, Bike & Build discussed their insurance needs with
Appellee, a broker who secures insurance coverage for businesses in
Southeastern Pennsylvania. During these discussions, Bike & Build’s Director
of Operations and Outreach, Justin Villere, informed Appellee’s representative,
John Ahern, about Bike & Build’s primary insurance needs:
[Appellee’s Counsel]: And what did you tell him about
Bike & Build’s risk exposures?
[Mr. Villere]: The history that the organization
has, the 2010 fatality, the 2011 fatality,[2] and then the
various instance[s] that our riders are at risk for on the
road, whether it is during cycling, falling themselves, an
accident with other riders or an accident with the vehicle, or
being on the build site where building with Habitat for
Humanity or other affordable housing organizations that are
building homes, so there is risk there, obviously, and so
those are our two primary exposures, and so I … did go over
those with him.
(Memorandum of Law in Support of Appellant’s Response to Summary
Judgment Motion, filed 2/6/20, at Exhibit A; R.R. at 486a).
____________________________________________
2 Earlier in the deposition, Mr. Villere discussed the fact that many cyclists
who participated in Bike & Build’s trips suffered injuries, including two “trip
leaders” who were killed. (Memorandum of Law in Support of Appellant’s
Response to Summary Judgment Motion, filed 2/6/20, at Exhibit A; R.R. at
482a).
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On May 6, 2015, Bike & Build and Appellee entered into a broker services
agreement. As part of the agreement, Appellee promised to assist Bike &
Build “in preparing applications for coverages that Customer has indicated it
wishes to procure through Broker.” (Complaint at 4; R.R. at 34a). Thereafter,
Appellee procured two insurance policies for Bike & Build, effective May 7,
2015 to May 7, 2016. Specifically, Appellee procured a commercial general
liability policy with Nautilus Insurance Company (“Nautilus”), as well as a
commercial excess liability policy with United Specialty Insurance Company
(“United”). Both policies, however, contained a “participants exclusion,”
which did not cover personal injuries to Bike & Build’s participating cyclists.
Although Appellee’s employees were aware of the participants exclusion,
Appellee did not recommend that Bike and Build obtain different insurance
coverage. (See Complaint at 7-8; R.R. at 37a-38a). During a May 7, 2015
telephone call, Mr. Villere asked Mr. Ahern about the impact the participants
exclusion would have on Bike & Build’s coverage. Mr. Ahern assured Mr.
Villere that the exclusion was standard, and “this wasn’t something that we
had to worry about….” (Memorandum of Law in Support of Appellant’s
Response to Summary Judgment Motion at Exhibit A; R.R. at 495a).
Ultimately, Bike & Build purchased the Nautilus and United policies.
On July 30, 2015, Appellant participated as a cyclist in one of Bike &
Build’s cross-country trips. While traveling through Oklahoma, a motorist
struck Appellant, and she sustained serious injuries. Bike & Build immediately
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notified Appellee about the potential claims arising from the accident.
Nevertheless, on August 17, 2015, Bike & Build’s insurers issued a reservation
of rights letter, informing Bike & Build that there may be no coverage for
Appellant’s potential claims. On June 6, 2016, the insurers formally denied
coverage to Bike & Build. Appellant filed a negligence lawsuit against Bike &
Build on June 15, 2016.
On September 7, 2016, Nautilus filed an action in federal court, seeking
a declaration that its policy excluded coverage of claims arising from
Appellant’s lawsuit. United filed a crossclaim in the declaratory judgment
action on October 24, 2016, also seeking a declaration that it need not defend
or indemnify Bike & Build. The federal court subsequently granted summary
judgment in favor of Nautilus and United.
In February 2017, Bike & Build resolved Appellant’s claims by entering
into a settlement and release. The agreement required the entry of a consent
judgment for ten million dollars in Appellant’s favor:
4. Entry of Consent Judgment. Within five (5)
days after her execution of this Settlement Agreement and
Release, [Appellant] and Bike & Build shall enter into a
consent judgment … for $10,000,000.00 and that will
provide that the proceeds from any action or lawsuit against
any of the entities named in ¶ 2, above, will be the sole
recourse available to [Appellant] for the claims raised in the
Action, and that [Appellant] will cause her counsel to mark
the judgment satisfied upon [Appellant’s] receipt of said
proceeds.
* * *
(Complaint at Exhibit 2; R.R. at 56a-57a). Bike & Build also assigned all of its
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rights and claims against the insurance companies and Appellee to Appellant.3
(See id.; R.R. at 55a). In exchange, Appellant agreed not seek any recovery
from Bike & Build:
3. Release. [Appellant], her heirs, executors,
administrators, and successors and assigns, by entering into
this Settlement Agreement and Release, do hereby
completely release, acquit, and forever discharge Bike &
Build of and from any and all known or unknown past,
present, or future claims, actions, causes of action,
demands, lawsuits, obligations, liens, rights, damages,
costs, claims for expense and/or compensation, claims for
attorneys’ fees and/or claims of any nature whatsoever, in
law or equity, including but not limited to all the claims
raised in or which could have been raised in the Action,
which concern, relate, or refer in any way to Bike & Build
based on alleged injuries or other harm experienced by
[Appellant].
(Id.; R.R. at 56a).
On July 27, 2017, Appellant, as assignee of Bike & Build, commenced
____________________________________________
3 Our Supreme Court has summarized the relevant principles governing
assignments as follows:
An assignment is a transfer of property or a right from one
person to another; unless qualified, it extinguishes the
assignor’s right to performance by the obligor and transfers
that right to the assignee. Under the law of assignment, the
assignee succeeds to no greater rights than those possessed
by the assignor. An assignee’s rights, however, are not
inferior to those of the assignor. Ultimately, an assignee
stands in the shoes of the assignor. Privity is not an issue
in cases involving assignment claims; an assignee does not
pursue a cause of action in its own right.
Crawford Cent. School Dist. v. Commonwealth, 585 Pa. 131, 136-37, 888
A.2d 616, 619-20 (2005) (internal citations and quotation marks omitted).
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an action against Appellee by filing a writ of summons. 4 Following a stay,
Appellant filed her complaint on November 9, 2018. Appellant alleged that
Appellee breached its broker services agreement and carelessly obtained
insurance policies that excluded the most significant risk faced by Bike & Build.
On January 6, 2020, Appellee moved for summary judgment on multiple
grounds, including that Appellant had failed to provide sufficient evidence of
damages. Appellant filed an answer to the summary judgment motion on
February 6, 2020. Regarding damages, Appellant claimed that she demanded
consequential damages from Appellee, which include “loss of good will
damages (or prospective damages, as they are sometimes termed).”
(Memorandum of Law in Support of Appellant’s Response to Summary
Judgment Motion at 22; R.R. at 452a). Appellant explained that loss of good
will claims “should not be barred ab initio, and that ‘plaintiffs should be given
an opportunity to set forth and attempt to prove their damages.’” (Id.)
Appellant also contended that the ten-million-dollar judgment against Bike &
Build “will obviously impair [its] ability to borrow money, purchase and sell
property or otherwise obtain credit unless and until the judgment is marked
satisfied.” (Id. at 22-23; R.R. at 452a-53a).
On June 9, 2020, the trial court granted Appellee’s summary judgment
____________________________________________
4 At that time, the federal court had yet to resolve the insurance companies’
declaratory judgment action. Consequently, the Court of Common Pleas
stayed Appellant’s case, pending resolution of the federal litigation.
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motion and dismissed Appellant’s complaint with prejudice. The court also
entered judgment in favor of Appellee and against Appellant. Significantly,
the court determined that Appellant “failed to present any evidence to
establish that Bike & Build sustained an ‘actual loss or damage’ or ‘resultant
damage’ from the negligence or breach of contract.” (Order and Opinion, filed
6/9/20, at 2) (emphasis in original). Appellant timely filed a motion for
reconsideration on June 19, 2020, which the court denied on July 7, 2020. On
July 8, 2020, Appellant timely filed a notice of appeal. The court did not order
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
Appellant raises one issue for our review:
Does the summary judgment record, viewed in the light
most favorable to [Appellant], contain sufficient evidence
concerning the bare existence of damages such that
summary judgment was wrongly granted on that issue?
(Appellant’s Brief at 2).
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
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Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations and quotation marks omitted). Our scope of review is plenary.
Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert.
denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing
a trial court’s grant of summary judgment:
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
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Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
“[A]rguments not raised initially before the trial court in opposition to
summary judgment cannot be raised for the first time on appeal.” Rohrer v.
Pope, 918 A.2d 122, 128 (Pa.Super. 2007) (quoting Devine v. Hutt, 863
A.2d 1160, 1169 (Pa.Super. 2004)).
[A] non-moving party’s failure to raise grounds for relief in
the trial court as a basis upon which to deny summary
judgment waives those grounds on appeal…. A decision to
pursue one argument over another carries the certain
consequence of waiver for those arguments that could have
been raised but were not. This proposition is consistent with
our Supreme Court’s efforts to promote finality, and
effectuates the clear mandate of our appellate rules
requiring presentation of all grounds for relief to the trial
court as a predicate for appellate review.
Id. (quoting Walsh v. Borczon, 881 A.2d 1, 5 (Pa.Super. 2005) (emphasis
omitted)).
On appeal, Appellant contends the summary judgment record “sufficed
to permit a jury to award an amount of damages that was higher than zero.”
(Appellant’s Brief at 15). Appellant claims her complaint alleged that Bike &
Build suffered both financial and reputational injuries, and she sought actual
and punitive damages. Regarding economic damages, “the record showed
that Bike & Build had incurred specific out-of-pocket costs from [Appellee’s]
misconduct,” including the payment of broker, policy, administrative, and
insurance fees. (Id. at 15-16). Appellant complains that Bike & Build incurred
other out-of-pocket losses by paying the premiums for “insurance policies that
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did not respond to [Bike & Build’s] requirements.” (Id. at 16).
Further, Appellant argues that Bike & Build suffered losses in
conjunction with the settlement of Appellant’s original suit. Appellant posits
that Appellee’s failure to obtain an insurance policy that would cover personal
injury actions by injured cyclists “left Bike & Build to fend for itself after
Nautilus disclaimed coverage and refused to provide a defense” for Appellant’s
initial lawsuit. (Id. at 17). Appellant asserts Bike & Build was limited in its
ability to defend against the suit, and it “was not well positioned to negotiate
favorable settlement terms.” (Id.) As a result, Bike & Build’s settlement with
Appellant did not include “a confidentiality agreement to protect its reputation,
public standing, and goodwill.” (Id.) Appellant emphasizes the fact that the
ten-million-dollar consent judgment remains unsatisfied, which “destabilized
Bike & Build’s finances, including its ability to borrow money and obtain credit
for its ongoing business operations.”5 (Id. at 18). Appellant also avers that
Bike & Build suffered non-economic losses due to negative publicity for its
touring business, as well as loss of “standing in the community as a
____________________________________________
5 In support of this proposition, Appellant cites to an excerpt from the
deposition of Ronald Stepanek, a former Bike & Build employee. (Motion for
Reconsideration, filed 6/19/20, at Exhibit D; R.R. at 798a-99a). Although Mr.
Stepanek referenced certain “financial troubles” for Bike & Build, he did not
mention the consent judgment or link Bike & Build’s “troubles” to any aspect
of Appellant’s prior lawsuit.
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trustworthy non-profit partner that could be responsible for its bike riders.”6
(Id. at 19).
In analyzing the record for evidence of damages, Appellant insists that
the trial court improperly focused “on the fact that Bike & Build had no
affirmative obligation to pay the $10 million judgment.” (Id. at 21). Viewing
all of the evidence in the light most favorable to Appellant as the non-moving
party, Appellant maintains that the record contains evidence that would permit
a jury to find some amount of compensable harm, “irrespective of whether
the [consent] judgment itself must be paid” by Bike & Build. (Id. at 22).
Appellant also suggests “the record would permit the conclusion that
[Appellee’s] failure to procure appropriate insurance coverage caused Bike &
Build to settle [Appellant’s original lawsuit] during the early stages of litigation
on unfavorable terms.” (Id.) Appellant concludes the court should not have
granted summary judgment in favor of Appellee based upon a finding that
Appellant did not present evidence to establish that Bike & Build suffered an
actual loss or damages.
Appellee counters that Appellant failed to preserve many of her
arguments regarding the damages Bike & Build suffered. Specifically,
Appellee contends that Appellant’s response to the summary judgment motion
____________________________________________
6 Moreover, Appellant contends a jury would be entitled to find negligence or
breach of contract and award only nominal damages, and the record supports
the request in her complaint for punitive damages. (See Appellant’s Brief at
19-21).
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raised two arguments regarding damages: 1) Bike & Build suffered adverse
reputational effects due to Appellee’s conduct; and 2) entry into the consent
judgment resulted in damages to Bike & Build. Based upon this response,
Appellee insists Appellant has waived the ability to argue that Bike & Build
suffered any other type of damages.
Regarding the arguments Appellant preserved in her response, Appellee
maintains Appellant did not produce evidence that Bike & Build suffered any
damages. Appellee acknowledges that Appellant relies on a portion of Mr.
Villere’s deposition testimony to support the claim that Bike & Build suffered
damages to its reputation. Appellee maintains this testimony, however,
merely established that Bike & Build had “concerns” about bad publicity due
to Appellant’s accident. (Appellee’s Brief at 22). To the extent Appellant also
suggests that entry into the consent judgment resulted in damages to Bike &
Build, Appellee emphasizes that Appellant entered into a settlement
agreement that gave Bike & Build a full and unconditional release from all
claims related to Appellant’s accident. Under these circumstances, Appellee
maintains the settlement and consent judgment had no financial impact on
Bike & Build. Appellee concludes the court correctly granted summary
judgment in light of Appellant’s failure to produce evidence of damages. We
agree with Appellee that no relief is due.
“Generally, to state a cause of action for negligence, a plaintiff must
allege facts which establish the breach of a legally recognized duty or
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obligation of the defendant that is causally connected to actual damages
suffered by the plaintiff.” Scampone v. Highland Park Care Center, LLC,
618 Pa. 363, 387, 57 A.3d 582, 596 (2012). “The burden of proving the
existence of negligence rests upon the party who has asserted it.” Schmoyer
by Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 707 (Pa.Super. 1994).
“Damages awarded in a negligence action compensate a plaintiff for his
or her losses.” Phillips v. Cricket Lighters, 584 Pa. 179, 189, 883 A.2d
439, 446 (2005). “The amount and items of pecuniary damage cannot be
presumed but must be proved by the establishment of facts.” Cohen v.
Albert Einstein Medical Center, Northern Div., 592 A.2d 720, 729
(Pa.Super. 1991), appeal denied, 529 Pa. 644, 602 A.2d 855 (1992) (quoting
Gordon v. Trovato, 338 A.2d 653, 654 (Pa.Super. 1975)). See also Rizzo
v. Haines, 520 Pa. 484, 504-05, 555 A.2d 58, 68 (1989) (explaining mere
breach of professional duty, causing only nominal damages, speculative harm,
or threat of future harm—not yet realized—does not suffice to create cause of
action for negligence); Miller Oral Surgery, Inc. v. Dinello, 611 A.2d 232,
236 (Pa.Super. 1992), appeal denied, 533 Pa. 651, 624 A.2d 111 (1993)
(providing general rule that damages are not recoverable if they are too
speculative, vague or contingent and are not recoverable for loss beyond
amount that evidence permits to be established with reasonable certainty).
“To support a claim for breach of contract, a plaintiff must allege: 1) the
existence of a contract, including its essential terms; 2) a breach of a duty
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imposed by the contract; and 3) resultant damage.” Pittsburgh Const. Co.
v. Griffith, 834 A.2d 572, 580 (Pa.Super. 2003), appeal denied, 578 Pa. 701,
852 A.2d 313 (2004). “The purpose of damages in a breach of contract case
is to return the parties to the position they would have been in but for the
breach.” Id. “To that end, the aggrieved party may recover all damages,
provided ‘(1) they were such as would naturally and ordinarily result from the
breach, or (2) they were reasonably foreseeable and within the contemplation
of the parties at the time they made the contract, and (3) they can be proved
with reasonable certainty.’” Ely v. Susquehanna Aquacultures, Inc., 130
A.3d 6, 10 (Pa.Super. 2015), appeal denied, 635 Pa. 764, 136 A.3d 982(2016) (quoting Helpin v. Trustees of Univ. of Pennsylvania, 608 Pa. 45,
50, 10 A.3d 267, 270 (2010)).
“In order to recover for damages pursuant to a breach of contract, the
plaintiff must show a causal connection between the breach and the loss.”
Logan v. Mirror Printing Co. of Altoona, Pa., 600 A.2d 225, 226 (Pa.Super.
1991).
The Superior Court has observed that “the test of whether
damages are remote or speculative has nothing to do with
the difficulty in calculating the amount, but deals with the
more basic question of whether there are identifiable
damages…. Thus, damages are speculative only if the
uncertainty concerns the fact of damages rather than the
amount.”
Id. at 227 (quoting Pashak v. Barish, 450 A.2d 67, 69 (Pa.Super. 1982)
(emphasis in original)).
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Instantly, Appellee requested summary judgment due to, among other
things, Appellant’s failure to establish that Bike & Build suffered a
compensable loss:
The record in this matter is devoid of any evidence that Bike
& Build: (1) incurred any financial loss as a result of
[Appellee’s] purported negligence, or (2) had any exposure
to rider claims that necessitated insurance coverage or
otherwise could have caused a loss, because [Appellant]
waived all of her claims against Bike & Build.
* * *
Stated simply, Bike & Build does not have any damages
caused by [Appellee]. Because [Appellant] cannot satisfy
this required element to support her negligence claim as
Bike & Build’s assignee, [Appellee] is entitled to summary
judgment.
(Memorandum of Law in Support of Summary Judgment Motion, filed 1/6/20,
at 17-18; R.R. at 118a-19a).
In response, Appellant claimed that Appellee ignored her demand for
consequential damages, which include damages for loss of good will. (See
Memorandum of Law in Support of Appellant’s Response to Summary
Judgment Motion at 22; R.R. at 452a). Appellant also alleged that the ten-
million-dollar consent judgment impaired Bike & Build’s ability to conduct
business. (Id. at 22-23; R.R. at 452a-453a). Appellant, however, did not
advance arguments regarding the propriety of specific out-of-pocket costs
related to Appellee’s misconduct, such as the payment of broker, policy,
administrative, and insurance fees. Consequently, we limit our review to
those arguments Appellant included in her response to the summary judgment
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motion.7 See Rohrer, supra.Following the submission of Appellee’s summary judgment motion and
Appellant’s response, the trial court determined that Appellant failed to
present evidence to establish that Bike & Build sustained an actual loss or
damages. The court analyzed the deposition testimony from Mr. Villere, which
Appellant relies on to support the assertion that Bike & Build suffered a loss
of good will. The relevant portion of Mr. Villere’s deposition provides as
follows:
[Appellee’s Counsel]: And Bike & Build—was Bike &
Build concerned about how much it would cost to defend
[Appellant’s] lawsuit?
[Appellant’s Counsel]: Objection to form. You can
answer.
[Mr. Villere]: Among all of the concerns
related to the lawsuit, that would have been one of them.
[Appellee’s Counsel]: And what other concerns did Bike
& Build have about the lawsuit?
[Mr. Villere]: How it would impact upcoming
trips, of course, publicity, outcome.
____________________________________________
7 We acknowledge that Appellant’s response to the summary judgment motion
included argument on the propriety of punitive damages. (See Memorandum
of Law in Support of Appellant’s Response to Summary Judgment Motion at
31-34; R.R. at 461a-64a). Nevertheless, “punitive damages, unlike
compensatory damages and injunction, are generally not available for breach
of contract[.]” Barnes v. Gorman, 536 U.S. 181, 187, 122 S.Ct. 2097, 2102,
153 L.Ed.2d 230, ___ (2002). Moreover, “If no cause of action exists, then
no independent action exists for a claim of punitive damages since punitive
damages is only an element of damages.” DiGregorio v. Keystone Health
Plan East, 840 A.2d 361, 370 (Pa.Super. 2003) (quoting Kirkbride v. Lisbon
Contractors, Inc., 521 Pa. 97, 101, 555 A.2d 800, 802 (1989)).
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[Appellee’s Counsel]: Any other concerns?
[Mr. Villere]: I don’t recall any others at the
particular time.
(Memorandum of Law in Support of Appellant’s Response to Summary
Judgment Motion at Exhibit A; R.R. at 512a).
Likewise, Mr. Villere also discussed the practical consequences of Bike
& Build’s entry into the settlement agreement:
[Appellee’s Counsel]: Under the terms of this
settlement agreement, Bike & Build was not going to have
responsibility to pay the $10 million to [Appellant]; correct?
[Mr. Villere]: From what I understand of this
wording, correct.
[Appellee’s Counsel]: Any recovery of that $10 million
number would come either from the insurance carriers or
from [Appellee]; correct?
[Mr. Villere]: From what I understand, yes.
[Appellee’s Counsel]: And there was no finding made
by any court after the presentation of evidence that Bike &
Build was responsible to pay $10 million in damages;
correct?
[Appellant’s Counsel]: Objection to the form. You can
answer.
[Mr. Villere]: That’s correct.
(Id.; R.R. at 510a).
In analyzing the summary judgment record, the trial court carefully
scrutinized Mr. Villere’s testimony:
Mr. Villere never testified how [Appellant’s] litigation
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actually affected or would affect Bike & Build. He only said
that the officers of Bike & Build were concerned about
publicity about the litigation; but failed to identify the
publicity at issue and how it actually affected Bike & Build.
Mr. Villere’s testimony was too speculative because it did
not identify specific damages flowing from [Appellant’s]
litigation.
* * *
[Appellant] next asserted that [Appellee’s] conduct caused
Bike & Build to incur a $10 million consent judgment against
itself in favor of [Appellant]. [Appellant] baldly alleges that
such a substantial judgment will impair Bike & Build’s ability
to borrow money, purchase and sell property, or otherwise
obtain credit unless and until the judgment is marked
“satisfied.” However, [Appellant] failed to cite to any actual
evidence in the record that supports any of these
speculative claims. [Appellant] did not provide any
affidavits explaining Bike & Build’s actual attempts to borrow
money, obtain credit, or purchase or sell property that were
hampered by the judgment. [Appellant] did not present
expert testimony explaining the effect of the judgment on
Bike & Build’s ability to borrow money, obtain credit, or
purchase or sell property.
These “facts” are not facts; they are merely argument by
[Appellant’s] attorney without any evidentiary support in
the summary judgment record.
* * *
Mr. Villere testified that under the terms of the settlement
agreement between [Appellant] and Bike & Build, Bike &
Build would not have to pay any part of the $10 million
consent judgment. The sole sources for the $10 million
were [Appellee] and the two insurance carriers who had
produced policies for Bike & Build. There has been no
finding by any court that Bike & Build was responsible to pay
the $10 million judgment.
(Order and Opinion at 3-5) (internal citations and footnote omitted) (emphasis
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in original).
The court concluded that Appellant failed to present evidence
demonstrating that Bike & Build sustained actual loss or damages. The record
supports the court’s determination. Here, Mr. Villere testified that Bike & Build
had “concerns” about Appellant’s lawsuit. Such concerns do not equate to
quantifiable damages. See Logan, supra; Cohen, supra. Further, the
record is devoid of evidence of negative consequences of Bike & Build’s entry
into the settlement agreement. While Appellant attempts to characterize the
settlement as having “unfavorable” terms that were effectively forced upon
Bike & Build, the settlement provided Bike & Build with a mechanism to end
its involvement with Appellant’s claims without having to pay for a judgment.
On this record, we agree that any suggestion of damages to Bike & Build is
too speculative to support a cause of action. See Logan, supra; Cohen,
supra. Absent more, the court did not abuse its discretion or commit an error
of law by entering summary judgment in favor of Appellee. See Mee, supra.Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2021
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