Overdorf v. Travelers Insurance

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-7-2005
Overdorf v. Travelers Ins Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2142
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Overdorf v. Travelers Ins Co" (2005). 2005 Decisions. Paper 1469.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1469
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2142
____________
DAVID H. OVERDORF, Administrator of the
Estate of KRISTEN R. OVERDORF, Deceased,
Appellant
v.
THE TRAVELERS INSURANCE COMPANIES;
JOHN D. NEWBORG
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 01-cv-02076)
District Judge: Honorable Gary L. Lancaster
____________
Submitted Under Third Circuit LAR 34.1(a)
January 27, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.
(Filed March 7, 2005)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
David H. Overdorf (“Overdorf”) appeals the District Court’s grant of summary
judgment in favor of The Travelers Insurance Companies (“Travelers”) on his claims of
breach of contract and bad faith, 42 Pa. Cons. Stat. § 8371, asserted on behalf of the
estate of his deceased daughter Kristen Overdorf, who was fatally injured while riding her
bicycle, by an automobile operated by Sharon Fonner. Overdorf obtained a judgment
against Fonner in excess of the $50,000 Travelers’ policy limit in a wrongful death action
tried in the Court of Common Pleas of Washington County, Pennsylvania. Overdorf
subsequently filed this action as an assignee of Fonner in which he is pursuing recovery
of the excess judgment from Travelers. The procedural and factual background of this
action was thoroughly discussed by the District Court, and is known to the parties.
This appeal specifically challenges the District Court’s grant of summary judgment
regarding the breach of contract claim based upon the District Court’s determination from
Overdorf’s pretrial statement that Overdorf was no longer pursuing that claim. Overdorf
contends that the District Court erred in not permitting Overdorf an opportunity to be
heard on the merits of the contract claim. After conducting plenary review of the factual
and legal contentions of the parties, we affirm the grant of summary judgment in favor of
Travelers.
It is undisputed that the Amended Complaint alleged that Travelers had an express
contractual duty to pay the delay damages assessed against Fonner in the Washington
County, Pennsylvania action and post-judgment interest pursuant to the “Supplementary
Payments” clause. Travelers moved for summary judgment on both the bad faith and
breach of contract claims raised by Overdorf. While Travelers’ briefing primarily
2
focused on the bad faith claim, it nonetheless sought dismissal of the entire action,
specifically naming both the bad faith and the breach of contract claims. Overdorf’s
opposition to summary judgment pertained only to the bad faith claim and raised no
argument regarding the breach of contract claim or the “Supplementary Payments” clause
despite the fact that Travelers’ moving brief indicated that “most” of the breach of
contract claims had been abandoned. Nor did Overdorf’s pretrial statement advance the
breach of contract theory as one that was being pursued for purposes of trial.
Overdorf’s omission of any reference to the breach of contract action in its
opposition to summary judgment, coupled with his failure to request reconsideration of
the District Court’s determination based on the pretrial statement that the breach of
contract claim was no longer being pursued by Overdorf, leads us to conclude that the
District Court’s assessment regarding that claim was correct – at the time summary
judgment was entered, the breach of contract theory was not advanced by Overdorf. See,
e.g., Shafer v. Reo Motors, Inc., 205 F.2d 685, 688 (3d Cir. 1953) (where no questions of
fact were raised in the District Court in opposing summary judgment they may not be
presented for appellate review given that summary judgment is to be determined based
upon the record the parties have actually presented); Price v. Inland Oil Co., 646 F.2d 90,
95-96 (3d Cir. 1981) (recognized that the scope of a case will be limited by a pre-trial
order or in its absence by the pre-trial representations of the parties).
3
We have considered all of the arguments of the parties and conclude that no
further discussion is necessary. We will affirm the judgment of the District Court.
________________________
4