DOWNEY v. FIRST INDEMNITY INSURANCE et al

Filing 90

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 10/14/16. 10/14/16 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP A. DOWNEY,
Plaintiff,
v.
FIRST INDEMNITY INSURANCE, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL ACTION

No. 13-4545

Goldberg, J.

October 14, 2016
MEMORANDUM OPINION

The issue presented in this breach of contract action 1 is whether Defendants are obligated
to provide legal malpractice coverage to Plaintiff, Philip A. Downey, Esq. Plaintiff alleges that
Defendants, First Indemnity Insurance, 2 Andrew Biggio (collectively “First Indemnity
Defendants”), First Mercury Insurance Company (“First Mercury”), and State National Insurance
Company (“State National”), collectively failed to provide him with the professional malpractice
insurance policy that he requested—one that would leave him with “no gaps in coverage” from
his previous policy with a separate carrier. As a result of Defendants’ alleged failure to furnish
the requested policy, Plaintiff faced uninsured exposure for a legal malpractice claim filed
against him by a former client.
Before me are the First Indemnity Defendants’ motion for summary judgment, and First
Mercury and State National’s motion for summary judgment. Both sets of Defendants argue that
1

While Plaintiff only included one count in his Amended Complaint, he advances multiple theories of liability:
“Breach of Contract (Simple and Professional) / Unjust Enrichment / Quasi-Contract / Promissory Estoppel.” (Am.
Compl. ¶¶ 47–49.)
2

Reference to “First Indemnity Insurance” also includes First Indemnity Insurance Agency, Inc. Additionally,
Plaintiff named as Defendants John M. Biggio, First Indemnity Insurance Services, Inc., and First Indemnity
Insurance Group. However, in his response in opposition to the First Indemnity Defendants’ motion for summary
judgment, Plaintiff requested “withdrawal of his claims” against these three Defendants. (Pl.’s Resp. in Opp. to
First. Indem. Mot. Summ. J. 12.) Therefore, they will be dismissed in my accompanying Order.

the plain and unambiguous language of the policy excludes the claim for which Plaintiff seeks
coverage. Defendants further assert that the “reasonable expectations” doctrine relied upon by
Plaintiff is inapplicable.
For the reasons set forth below, I conclude that the unambiguous language of the policy
excludes Plaintiff’s claim for coverage. I further conclude that the “reasonable expectations”
doctrine is inapplicable to this case. Consequently, I will grant both motions.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed, unless otherwise noted:
During the pertinent time period, Plaintiff was an attorney, licensed to practice law in

Pennsylvania. In July 2007, responding to a solicitation he had received from insurance brokers,
First Indemnity Defendants, Plaintiff sought to purchase a new Lawyers Professional Liability
(“LPL”) insurance policy. On July 27, 2007, Plaintiff submitted an initial insurance application
to First Indemnity, but did not receive a response. (Pl.’s Statement of Facts “SOF” ¶¶ 1, 12.)
On August 18, 2007, Plaintiff’s malpractice insurance policy with his prior carrier,
Philadelphia Insurance Companies, ended. (First Merc. & State Nat’l Mot. Summ. J., Ex. H, p.
13; First Indem. Mot. Summ. J., Ex. E.) At that point in time, Plaintiff maintained his own
independent practice, but was also “Of Counsel” with the law firm of Kenney, Egan, McCafferty
& Young. (Pl.’s Resp., Ex. D; Pl.’s Dep. 18:6–10; 19:17–20.)
In September 2007, as Plaintiff was preparing to leave the Kenney firm to focus
exclusively on his own practice, the Downey Law Firm, LLC, he claims to have spoken on the
telephone with First Indemnity Insurance agent, Defendant Andrew Biggio, about acquiring a
new LPL policy. Plaintiff claims that he made it clear to Biggio that he wanted malpractice
coverage that did not leave any “gaps” between his prior policy with Philadelphia Insurance

2

Companies and the start date of his new policy through First Indemnity Insurance. (Pl.’s SOF ¶¶
13-14.) Plaintiff testified that Biggio assured him there would not be any gaps in coverage
between his old and new policies. (Pl.’s Dep. 52:3–7.) Biggio denies that he ever made such a
statement, nor did he recall actually speaking with Plaintiff. (Biggio Dep. 9:12–17; 20:19–24;
21:1–18.) These facts are thus disputed.
It is undisputed, however, that Plaintiff faxed a second insurance application to Biggio on
September 22, 2007. (Pl.’s Resp., Ex. C; First Merc. & State Nat’l Mot. Summ. J., Ex. H.) On
page ten (10) of his completed application, in response to the question, “Coverage requested to
be effective on ____ / ____ / ____ (month/day/year)”, Plaintiff filled in the corresponding blank
spaces with “10/1/2007” [October 1, 2007]. (First Merc. & State Nat’l Mot. Summ. J., Ex. H, p.
10.) On page two (2) of his completed application, Plaintiff indicated that the establishment date
of his new firm, of which he was the sole proprietor, was going to be “10/1/2007.” (Id. at p. 2 ¶¶
5, 7.) On page thirteen (13) of his completed application, Plaintiff indicated that his firm was not
currently insured against malpractice claims. (Id. at p. 13.)
On October 6, 2007, Plaintiff received a quote from First Indemnity Insurance, which had
been signed by both Defendant Andrew Biggio and another First Indemnity officer, John Biggio.
(First Merc. & State Nat’l Mot. Summ. J., Ex. J.) At the top of the page, in capital letters, the
quote states that the “Proposed Effective Date” will be “10/1/2007.” (Id.) Toward the bottom of
the same page, in capital letters, the quote lists “Conditions: ‘Claims Made Policy Covering 1
Attorney, Retro-Active Date 10/1/2007.’” Also attached to the quote was the following
disclosure:
PRIOR ACTS COVERAGE INFORMATION
The claims-made lawyers professional liability insurance policy
only covers claims resulting from acts, errors or omissions by an
insured in the performance of professional services as a lawyer,
3

provided that the claim is first made against you and reported
during the policy term. The act, error or omission alleged in the
claim must have taken place during the policy period or subsequent
to the “Prior Acts Date” stated as an endorsement to the policy.
This means that claims from acts, errors or omissions committed
before the “Prior Acts Date” are not covered by this policy. If no
prior acts exclusion is attached to the policy, “Full Prior Acts”
coverage not limited by a date, is provided for acts, errors or
omissions committed by the insured before the policy period. (Id.)
Once Plaintiff submitted his premium, Andrew Biggio sent the policy to Plaintiff on
October 24, 2007. (First Merc. & State Nat’l Mot. Summ. J., Ex. J.) The “Declarations” page of
the policy lists the “policy period” as “10/01/2007 [to] 10/01/2008.” Toward the top of the
“Declarations” page, in capital letters, the policy states that it is a claims made policy, and
“covers only those claims first made against the insured during the policy period and reported in
writing to [Defendants] pursuant to the terms herein.” (Id.) A schedule of endorsements appeared
on the second page of the policy. A “Retroactive Date Endorsement” was listed within that
schedule. The Retroactive Date Endorsement itself reads:
This policy does not apply to any CLAIMS or CLAIMS arising
from, attributable to, or based upon any WRONGFUL ACT(S)
committed or alleged to have been committed by [Plaintiff] prior to
the corresponding retroactive date.
“NAME OF ATTORNEY AND RETROACTIVE DATE” appeared immediately below the
above-quoted language. “Philip A. Downey, 10/01/2007” appears directly thereafter. (Id.)
Plaintiff renewed the policy for another year on September 24, 2008, which meant that
his coverage extended through October 1, 2009. 3 (First Merc. & State Nat’l Mot. Summ. J., Ex.
B.) On July 6, 2009, one of Plaintiff’s former clients filed a complaint against him, alleging that
he committed legal malpractice on July 5, 2007 by failing to file a claim within the applicable

3

Although the claim made against Plaintiff was made under the 2008-2009 policy, Plaintiff renewed the policy at
least three more times, which meant he continued his insurance with Defendants up through October 1, 2012. (First
Merc. & State Nat’l Mot. Summ. J., Ex. G.)
4

statute of limitations. Plaintiff contacted the First Indemnity Defendants to notify them that he
had been sued. At this point in time, the First Indemnity Defendants acted as the “underwriting
manager[s] for First Mercury/State National, meaning [they] wrote, quoted, [and] issued …
policies on behalf of First Mercury and State National … in [all] 50 states.” (Biggio Dep. 13:6–
18.) 4 Thus, First Indemnity advised Plaintiff to contact First Mercury regarding his claim, which
he did on August 3, 2009.
On August 7, 2009, First Mercury sent a letter to Plaintiff denying coverage. The letter
explained that “[t]he wrongful acts/errors which give rise to this claim ... are before your
retroactive date of 10/1/07. As the provisions [of the policy] make clear, claims are not covered
which arise from errors/wrongful acts occurring before the applicable retroactive date[.]” (First
Indem. Mot. Summ. J., Ex. D at p. 3.)
On September 25, 2009, Plaintiff contacted his former malpractice insurance carrier,
Philadelphia Insurance Companies, which also denied coverage in a letter dated December 31,
2009. (First Indem. Mot. Summ. J., Ex. F.) 5

4

The parties did not brief the issue of whether Biggio was an insurance “agent” of First Mercury and State National,
or whether he was an independent “broker.” This distinction could be important when determining whether Biggio’s
alleged representations to Plaintiff may be imputed to First Mercury and State National. See Joyner v. Harleysville
Ins. Co., 574 A.2d 664, 668 (Pa. Super. 1990); Benevento v. Life USA Holding, Inc., 61 F. Supp. 2d 407, 416 (E.D.
Pa. 1999). I note, however, that First Mercury and State National have not expressly disputed that Biggio was not
their “authorized representative” when issuing the policy to Plaintiff. Additionally, First Mercury and State National
repeatedly cite to the insurance application and quote in support of their motion for summary judgment, and these
documents were at the heart of the interactions between Plaintiff and Biggio. Finally, Plaintiff alleges in his
Amended Complaint that the First Indemnity Defendants (i.e., the company where Biggio worked) “were not
independent,” but rather had “an arrangement” with First Mercury and State National to channel business to them.
(Am. Compl. ¶ 26.) Thus, for purposes of this Opinion, viewed in the light most favorable to Plaintiff, I will assume
that Biggio’s representation may be imputed to First Mercury and State National through agency principles under
Pennsylvania law. See Joyner, 574 A.2d at 668. Additionally, no party has specifically addressed the issue of
whether or not Biggio and First Indemnity were actually parties to the insurance policy. Again, viewed in the light
most favorable to Plaintiff, I will assume for purposes of this Opinion that all of the Defendants were parties to the
insurance policy such that Plaintiff may maintain his breach of contract claim against all of them.
5

Plaintiff testified that Philadelphia Insurance Companies denied coverage because he did not file his claim during
the policy period with Philadelphia Insurance Companies. (Pl.’s Dep. 22:1–9.)
5

On August 7, 2013, exactly four years after First Mercury denied coverage, Plaintiff filed
his initial complaint in this Court. He filed a one-count amended complaint on February 7, 2014,
asserting “breach of contract (simple and professional) / unjust enrichment / quasi-contract /
promissory estoppel” against all Defendants. Plaintiff generally avers that as a result of
Defendants’ collective failure to furnish the policy that he requested, and that which Andrew
Biggio represented would be provided, he was left with a gap in coverage. As a result, Plaintiff
claims to have incurred over $250,000 in attorneys’ fees and costs, and potentially faces
exposure for substantial uninsured damages. (Am. Compl. ¶ 46.)
On March 12, 2014, shortly after filing their answer, and before the discovery process
started, the First Indemnity Defendants filed a motion for summary judgment arguing that
Plaintiff’s claims were barred by the four-year statute of limitations for breach of contract claims
in Pennsylvania. First Mercury and State National joined that motion on March 18, 2014.
Plaintiff responded by arguing that the “reasonable expectations” doctrine applied, and thus the
alleged breach (i.e., the date on which coverage was denied, August 7, 2009) occurred within the
applicable four-year statute of limitations. Based on the limited record before me at the time, I
concluded that a reasonable fact finder could conclude that the “reasonable expectations”
doctrine applied, and thus the alleged breach would have occurred within the applicable statute
of limitations (i.e., the date First Mercury denied coverage). Therefore, summary judgment was
denied at that time. (Doc. No. 64, pp. 8–9.)
On July 31, 2015, after the parties completed discovery, First Mercury and State National
filed a motion for summary judgment, which is presently before me. With the record now
developed, these Defendants address the merits of the “reasonable expectations” doctrine as
applied to the facts of this case, and argue that no reasonable fact finder could conclude that

6

Plaintiff reasonably expected that his malpractice insurance policy with Defendants provided
coverage for acts occurring on July 5, 2007, roughly three months prior to his effective coverage
date of October 1, 2007.
On October 15, 2015, the First Indemnity Defendants also filed another motion for
summary judgment, which is currently before me. In addition to joining First Mercury and State
National’s argument regarding the inapplicability of the “reasonable expectations” doctrine, First
Indemnity Defendants, in construing one of Plaintiff’s claims as a professional malpractice
allegation, argue that Plaintiff has failed to submit any expert evidence, as required by
Pennsylvania law, to suggest that Defendant Andrew Biggio’s conduct fell below an objectively
reasonable standard of care for insurance professionals.
II.

LEGAL STANDARD
A party moving for summary judgment bears the initial burden of demonstrating that

there are no genuine issues of material fact in dispute, and that judgment is appropriate as a
matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a
properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material
fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An issue is “genuine”
if a reasonable jury could rule in favor of the non-moving party based on the evidence presented.
Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). A factual dispute is “material” if it
might affect the outcome of the suit under the appropriate governing law. Id. at 423. The nonmoving party cannot avert summary judgment with speculation or conclusory allegations, but
rather must cite to the record. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d

7

Cir. 1999); Fed. R. Civ. P. 56(c). On a motion for summary judgment, the court considers the
evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 256.
III.

ANALYSIS 6
First Mercury denied coverage because the alleged wrongful act raised in the legal

malpractice suit occurred prior to the effective coverage date of October 1, 2007. Plaintiff asserts
that the malpractice claim against him should be covered because “Defendants misrepresented to
Plaintiff that there would be ‘no gaps’ in coverage,” and that he “relied on [Andrew] Biggio’s
expert guidance” when he was assured that his transition to the new policy would not leave him
with any gaps. (Pl.’s Resp. 7.) Plaintiff emphasizes that according to First Mercury’s
“guidelines,” he should have received coverage for acts occurring prior to the “start date” of his
policy because his lapse in coverage was a “major exposure” which Biggio never mentioned.
(Id.) Plaintiff maintains that it was “certainly reasonable for Plaintiff to assume he had coverage
based on Defendants’ … assurances combined with Defendants’ continuing failure to advise
Plaintiff of [this] major exposure.” (Id.)
A. The LPL Insurance Policy
The interpretation of an insurance contract is a question of law to be decided by the court.
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997); Betz v. Erie Ins. Exch., 957
A.2d 1244, 1252-53 (Pa. Super. 2008). Generally, where the terms of a policy are “clear and
unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v.
American Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983). “Contractual language is ambiguous if
it is reasonably susceptible to different constructions and capable of being understood in more
6

I will apply Pennsylvania law to this case. See Premier Payments Online, Inc. v. Payment Sys. Worldwide, 848 F.
Supp. 2d 513, 525 (E.D. Pa. 2012) (“In federal diversity actions, district courts generally must apply the choice-oflaw rules of the forum state.”). Defendants First Mercury and State National further acknowledge that “[t]he policy
was issued in Pennsylvania to a Pennsylvania insured. [Therefore], Pennsylvania law should apply.” (First Merc. &
State Nat’l Mot. Summ. J. at 9.)
8

than one sense…. In determining whether a contract term is ambiguous, a court must consider
the actual words of the agreements themselves, as well as any alternative meanings offered by
counsel.” Alleman v. State Farm Life Ins. Co., 334 F. App'x 470, 472 (3d Cir. 2009). “Under
Pennsylvania law, the entire insurance contract consists of the policy along with the application,
riders, and endorsements.” Id. at 473.
The disclosure attached to the quote that Plaintiff received on October 6, 2007 clearly
states that the “act, error or omission alleged in [a] claim must have taken place during the policy
period or subsequent to the ‘Prior Acts Date’ stated as an endorsement to the policy. This means
that claims from acts, errors or omissions committed before the ‘Prior Acts Date’ are not covered
by this policy.” Additionally, the Retroactive Date Endorsement attached to the policy that
Plaintiff received on October 24, 2007 clearly states that coverage “does not apply to any
CLAIMS or CLAIMS arising from, attributable to, or based upon any WRONGFUL ACT(S)
committed or alleged to have been committed by [Philip A. Downey] prior to the corresponding
retroactive date” of October 1, 2007. Thus, the Retroactive Date Endorsement attached to the
policy set forth Plaintiff’s “Prior Acts Date”—October 1, 2007.
In my December 30, 2014 Order denying the Defendants’ previous motions for summary
judgment, I observed that “the plain language of the insurance policy provides an exclusion for
[any] wrongful acts occurring prior to October 1, 2007.” (Doc. No. 64, p. 5 ¶ 11.) I stand by that
conclusion and reiterate here that the plain language of the policy at issue is clear and
unambiguous. Plaintiff has not argued otherwise. 7

7

Indeed, Plaintiff’s response in opposition to First Mercury and State National’s motion for summary judgment
states that Plaintiff “should have been given retroactive coverage”—not that he actually received retroactive
coverage. (Pl.’s Resp. in Opp. to First Merc. & State Nat’l Mot. Summ. J. at 9.)
9

B. The “Reasonable Expectations” Doctrine
In an effort to avoid the plain language of the policy, Plaintiff relies upon his alleged
conversation with Biggio and the “reasonable expectations” doctrine. Under this doctrine,
Pennsylvania courts have acknowledged the inherent disparity of bargaining power that exists
between an insurer and insured, as well as the complexity of policy terms and conditions in
insurance contracts. This dynamic sometimes “forces the insurance consumer to rely upon the
oral representations of the insurance agent[,]” . . . [which] may or may not accurately reflect the
contents of the written document.” Collister v. Nationwide Life Ins. Co., 388 A.2d 1346, 1353
(Pa. 1978). Appreciation of these issues has prompted judicial formulation of the “reasonable
expectations” doctrine, which the United States Court of Appeals for the Third Circuit has
summarized as follows:
Pennsylvania case law . . . dictates that the proper focus for determining
issues of insurance coverage is the reasonable expectations of the
insured. In most cases, the language of the insurance policy will
provide the best indication of the content of the parties’ reasonable
expectations. Courts, however, must examine the totality of the
insurance transaction involved to ascertain the reasonable expectations
of the insured. As a result, even the most clearly written exclusion will
not bind the insured where the insurer or its agent has created in the
insured a reasonable expectation of coverage. However, this aspect of
the doctrine is only applied “in very limited circumstances” to protect
non-commercial insureds from policy terms not readily apparent and
from insurer deception. Absent sufficient justification, . . . an insured
may not complain that his or her reasonable expectations were
frustrated by policy limitations that are clear and unambiguous.
Liberty Mut. Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 344 (3d Cir. 2005). 8

8

The parties have not specifically addressed whether Plaintiff is a “non-commercial insured.” I note that precedent
regarding the availability of this doctrine to commercial insureds is somewhat mixed. See e.g., Reliance Ins. Co. v.
Moessner, 121 F.3d 895, 904–05 (3d Cir. 1997) (“[W]e predict that Pennsylvania, which has not expressly opined
on the point, will apply the doctrine to cases … regardless of the insured's commercial status.”); but see Liberty Mut.
Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 345 (3d Cir. 2005) (“For purposes of our discussion, we ignore the fact that
[Defendant] is hardly a ‘non-commercial’ insured and that the doctrine of reasonable expectations has extremely
limited relevance to our discussion if it applies at all.”); see also Millers Capital Ins. Co. v. Gambone Bros. Dev.
Co., 941 A.2d 706, 717 (Pa. Super. 2007) (“The parties disagree as to whether the ‘reasonable expectations’ doctrine
10

Thus, where an insurer or its agent creates a reasonable expectation of coverage in the
insured, but subsequently makes a unilateral change to the terms of the policy applied for and
paid for, the insured’s reasonable expectations of coverage may prevail over the unambiguous
language of the policy. UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502-03 (3d Cir.
2004); Millers Capital Ins. Co. v. Gambone Bros. Dev. Co., 941 A.2d 706, 717 (Pa. Super.
2007). The Pennsylvania Superior Court has emphasized, however, that the doctrine must be
applied in limited circumstances:
If we were to allow an insured to override the plain language of a
policy limitation anytime he or she was dissatisfied with the
limitation by simply invoking the reasonable expectations doctrine,
the language of insurance policies would cease to have meaning
and, as a consequence, insurers would be unable to project risk.
The inability to project risk would dissuade insurers from doing
business in the Commonwealth and the net result would be an
increase in premiums for consumers. We refuse to set such a
deleterious sequence of events into motion.
Millers Capital Ins. Co., 941 A.2d at 717-18.
Therefore, courts must examine “the totality of the insurance transaction involved to
ascertain the reasonable expectations of the insured … with an emphasis on the express terms of
the written insurance policy.” Regis Ins. Co. v. All Am. Rathskeller, Inc., 976 A.2d 1157, 1166
(Pa. Super. 2009). And “[w]here an insurer relies on a policy exclusion as the basis for its denial
of coverage and refusal to defend, such reliance is an affirmative defense upon which the insurer

can be invoked by a ‘sophisticated’ commercial enterprise…. The parties further disagree as to how to define what
constitutes a “sophisticated” commercial enterprise…. [W]e leave these questions for another day.”) (citations
omitted.) Given the conflicting precedent on this issue, and viewing the pertinent facts in the light most favorable to
Plaintiff, I conclude that summary judgment is not appropriate strictly on the basis that Plaintiff purchased the LPL
policy at issue in his professional capacity.
11

bears the burden of proof.” Century Sur. Co. v. QSC Painting, Inc., 2010 WL 891245, at *4
(W.D. Pa. Mar. 8, 2010); W. v. Lincoln Ben. Life Co., 509 F.3d 160, 171 (3d Cir. 2007). 9
The Third Circuit has also observed that status as a “sophisticated purchaser” of
insurance is a “factor to be considered when resolving whether the insured acted reasonably in
expecting a given claim to be covered,” but such a status does not automatically foreclose
reliance on the doctrine. UPMC Health Sys., 391 F.3d at 503-04. “A ‘sophisticated’ insured is
typically characterized as a large commercial enterprise that has substantial economic strength,
desirability as a customer, and an understanding of insurance matters, or readily available
assistance in understanding and procuring insurance.” Reliance Ins. Co. v. Moessner, 121 F.3d
895, 905 n.8 (3d Cir. 1997). “As such, courts should carefully consider whether an insured of the
specified level of sophistication had reason to know of the existence of the exclusion prior to
purchasing or renewing the policy, and hence had effective control over the insurance
transaction.” Id. at 905–06.
C. Application of the “Reasonable Expectations” Doctrine to Plaintiff’s Claim
In urging that the “reasonable expectations” doctrine should not defeat summary
judgment, defendants rely heavily on A.P. Pino & Associates, Inc. v. Utica Mut. Ins. Co., 2012
WL 2567093 (E.D. Pa. July 3, 2012). In A.P. Pino, co-plaintiff A.P. Pino & Associates (“APA”)
was the named insured on two insurance policies issued by Defendant, Utica Mutual Insurance
Co. (“Utica”). Co-plaintiff Gerald A. Pino (“Pino”), a partial owner of APA, had overseen the
purchase of these policies. When filling out the “desired effective date” for the policies, Pino
selected October 15, 2009. Because this was the first policy that APA had purchased through

9

This burden is measured by a preponderance of the evidence. See Bensalem Twp. v. Int'l Surplus Lines Ins. Co., 38
F.3d 1303, 1311 (3d Cir. 1994) (“[T]here is a burden upon the insurance company … to prove … by a
preponderance of the evidence, that [the insured] was aware and understood the exclusion that existed here.”)
(quoting Tonkovic v. State Farm Mut. Auto. Ins. Co., 521 A.2d 920, 922 (1987)).
12

Utica, Utica’s underwriter inserted a retroactive date of October 15, 2009 for both policies, and
both policies stated that they did not provide coverage for acts occurring prior to this retroactive
date. The coverage proposal/quote also included a retroactive date of October 15, 2009. In
November 2010, APA and Pino were sued for, inter alia, breach of contract, negligence, and
professional negligence. The alleged wrongful conduct at issue occurred in May 2009, roughly
five (5) months prior to the retroactive date specified in the Utica policies. Therefore, Utica
denied coverage. Pino admitted that he did not thoroughly read through the policies. Id. at *1–3.
In granting Utica’s motion for summary judgment, the district court first concluded that
the “policy language setting out the retroactive date [was] clear and unambiguous.” Id. at *4. The
court then analyzed the plaintiffs’ claims under the “reasonable expectations” doctrine, and
concluded that “any expectation that APA would be provided with prior acts coverage” would be
“patently unreasonable.” Id. at *5. Importantly, it had been “disputed whether [Utica’s
underwriter] explained the import of the retroactive date to Pino[.]” Id. at *2. Nevertheless, the
court recognized that “the two insurance policies, the two coverage proposals, and the two sets of
terms and conditions, all of which Pino signed, clearly and repeatedly state the retroactive date
and its effect.” Id. The court concluded by observing that the plaintiffs, one of whom was an
insurance agent, were not the type of “unsophisticated non-commercial insureds” typically
protected by the reasonable expectations doctrine. Id. at *6.
A.P. Pino is factually similar to the case before me. Like A.P. Pino, the policy language
excluding retroactive coverage is clear and unambiguous. And as Defendants emphasize,
Plaintiff is not the type of “unsophisticated” consumer that the reasonable expectations doctrine
is primarily meant to protect. The undisputed record reflects that Plaintiff was the sole proprietor
of the Downey Law Firm at the time he purchased the LPL policy at issue. According to the

13

firm’s website, Plaintiff held himself out as knowledgeable in the practice area of “Insurance
Law.” (First Merc. & State Nat’l Mot. Summ. J., Ex. K.) The website states within the
“Insurance Law” subsection that the firm has “successfully represented individuals for years in
obtaining monies from rogue insurance companies[.] More often than not, Insurance Companies
fail to pay out all monies owed on a claim[.]” (Id.)
Plaintiff contests Defendants’ characterization of him as “sophisticated” in insurance law.
(Pl.’s Resp. at 9.) He maintains that he is “not an insurance expert,” but merely has “experience
in insurance law … as a defense attorney representing insureds.” (Id.) Plaintiff testified that he
has some “limited experience in bad faith” insurance law, but would partner with another
attorney to handle it. (Pl.’s Dep. 68:3–19.) According to Plaintiff, his experience “varies greatly
from the facts” of this case. (Pl.’s Resp. 9.)
While Plaintiff’s characterization of his level of sophistication may be true, it is
undisputed that Plaintiff was an attorney when he purchased the policy. And as noted above, he
advertised to the public that he was experienced in insurance law, and this is certainly a factor to
be considered in evaluating the totality of the insurance transaction at issue, and his expectation
of coverage for acts occurring before October 1, 2007. Even when viewed in the light most
favorable to Plaintiff, the undisputed evidence of record reflects that, while Plaintiff is not a
“large commercial enterprise,” he certainly had an understanding of insurance matters, and thus
he was not an “unsophisticated” purchaser of insurance at the time he obtained the policy.
In an effort to avoid summary judgment, Plaintiff also highlights his deposition testimony
where he recounts the alleged oral representation by Biggio regarding “no gaps in coverage.”
Plaintiff argues that this representation creates a genuine dispute as to whether Plaintiff
justifiably relied on that conversation, regardless of what language was actually contained within

14

the policy. (Pl.’s Resp. 10.) Plaintiff urges that this is simply a “he said-she said” case, and
“Biggio’s motivation and credibility require [a] jury determination.” (Id.) I conclude that while
Andrew Biggio’s alleged representation regarding “no gaps in coverage” may be a disputed fact,
it is not a material disputed fact.
The law within Pennsylvania and this circuit reflects that the “reasonable expectations”
doctrine is typically invoked where an insurer unilaterally alters the terms of the policy such that
it runs contrary to the policy applied for and paid for. As the Third Circuit has emphasized:
There is “a crucial distinction between cases where one applies for
a specific type of coverage and the insurer unilaterally limits that
coverage, resulting in a policy quite different from what the
insured requested,” as the facts of Tonkovic demonstrated, and
“cases where the insured received precisely the coverage that he
requested but failed to read the policy to discover clauses that are
the usual incident of the coverage applied for,” as occurred in
Standard Venetian Blind.
Lincoln Ben. Life Co., 509 F.3d at 168 (quoting Standard Venetian Blind Co., 469 A.2d at 567
and Tonkovic v. State Farm Mut. Auto. Ins. Co., 521 A.2d 920, 925 (Pa. 1987)); see also Regis
Ins. Co., 976 A.2d at 1167.
For several reasons, I conclude that Plaintiff received “precisely the coverage that he
requested,” and therefore, as a matter of law, the totality of the insurance transaction reflects that
no reasonable fact finder could conclude that Plaintiff possessed a reasonable expectation of
coverage for acts occurring prior to October 1, 2007. Lincoln Ben. Life Co., 509 F.3d at 168.
First, Plaintiff specifically requested the effective coverage date of October 1, 2007 in his
application. Thus, there is an absence of any record evidence from which a fact finder could
reasonably infer that Defendants “unilaterally limited” the scope of Plaintiff’s coverage from the
time that he submitted his application until the time that they issued the policy. Importantly,
Plaintiff submitted his insurance application after his alleged telephone conversation with

15

Andrew Biggio, and Plaintiff has not cited to any portion of his insurance application, or other
evidence of record, to suggest that he applied for “gap” and/or prior acts coverage. In other
words, Plaintiff offers no explanation as to why he requested coverage in his application that
differed from what he claims to have discussed with Biggio.
Second, on October 6, 2007, Plaintiff received a quote from First Indemnity, which again
indicated—in capital letters—that the proposed effective date for the policy would be October 1,
2007. This quote said nothing about “gap” coverage, and clearly displayed Plaintiff’s retroactive
date as “10/1/2007.” (First Merc. & State Nat’l Mot. Summ. J., Ex. J.) Plaintiff submitted his
first premium without objection to any of the proposed policy conditions or coverage dates.
Third, once Plaintiff submitted his premium, the policy in question was issued and sent to
him setting forth the effective date of coverage as October 1, 2007. An endorsement to the policy
reiterated that coverage did not include “claims committed by [Plaintiff] prior to the
corresponding retroactive date,” which again, was October 1, 2007. See Regis Ins. Co., 976 A.2d
at 1167 (“[T]here was no unilateral change in the scope of coverage from the time of application
to the time of policy delivery[,]” and thus the “reasonable expectations” doctrine does not apply);
see also Canal Ins. Co. v. Underwriters at Lloyd's London, 435 F.3d 431, 440 (3d Cir. 2006)
(“Absent sufficient justification, … an insured may not complain that his … reasonable
expectations were frustrated by policy limitations that are clear and unambiguous.”) (citing
Liberty Mut. Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 344 (3d Cir. 2005)); Century Sur. Co. v.
QSC Painting, Inc., 2010 WL 891245, at *7 (W.D. Pa. Mar. 8, 2010) (“Mere assertions that a
party expected coverage will not ordinarily defeat unambiguous policy language excluding
coverage.”).

16

Finally, and perhaps most practically, even if “gap” coverage had been provided, such
coverage would not apply to the alleged wrongful act at issue. Plaintiff repeatedly argues that
Biggio and First Indemnity had the authority to issue a policy that “picks up when [an insured’s]
old policy ends,” which would be August 18, 2007—the last date of coverage under the
Philadelphia Insurance Companies policy. (Biggio Dep. 35:15–16.) Taking Plaintiff’s argument
as true, Biggio and First Indemnity could have issued a policy to Plaintiff with an effective
coverage date of August 18, 2007—the date on which Plaintiff’s policy with Philadelphia
Insurance Companies ended. Moreover, even if Biggio should have inserted an “effective
coverage” date and corresponding “retroactive date” of July 27, 2007—the date on which
Plaintiff submitted his first application—Plaintiff still would not have been covered for the
alleged wrongful act at issue, which was alleged to have occurred on July 5, 2007. In reality,
Plaintiff does not complain about a “gap” in coverage because closing the “gap” would still not
have provided coverage for his alleged malpractice, which occurred on July 5, 2007. Rather,
what Plaintiff now seeks is a determination that he was entitled to full, unrestricted prior acts
coverage through his policy with Defendants. There is simply an absence of any record evidence
from which a reasonable fact finder could conclude that Plaintiff reasonably expected to be
covered by Defendants for acts occurring during Plaintiff’s previous policy period with
Philadelphia Insurance Companies.
In sum, even when viewed in the light most favorable to Plaintiff, consideration of the
“reasonable expectations” doctrine does not warrant deviation from the plain language of the
policy. All of the notices Plaintiff received regarding the commencement of his coverage were
consistent, conspicuous, and conformed to the requests he affirmatively made in his
application—the submission of which post-dated his alleged telephone conversation with Biggio.

17

The Third Circuit has cautioned that the reasonable expectations doctrine should only be applied
in “very limited circumstances.” Liberty Mut. Ins. Co., 418 F.3d at 344. As a matter of law, I
find that this case does not present such circumstances. 10
D. Plaintiff’s Professional Negligence Claim
As noted infra, Plaintiff only included one count in his Amended Complaint, but
advances multiple theories of liability: “Breach of Contract (Simple and Professional) / Unjust
Enrichment / Quasi-Contract / Promissory Estoppel.” (Am. Compl. ¶¶ 47–49.) In their motion
for summary judgment, the First Indemnity Defendants appear to have construed Plaintiff’s
“professional” breach of contract claim as one sounding in professional negligence, and Plaintiff
responded accordingly. (First Indem. Mot. Summ. J. 11; Pl.’s Resp. 9.) Thus, in addition to the
“reasonable expectations” doctrine, the First Indemnity Defendants have argued that Plaintiff’s
“case” fails as a matter of law because he failed to produce an expert report regarding Andrew
Biggio’s conduct falling below the appropriate standard of care for an insurance broker/agent,
which is ordinarily required under Pennsylvania law.
Plaintiff alleges in his Amended Complaint, and repeatedly argues in his briefs, that
Biggio was an insurance expert who deviated from First Mercury’s insurance guidelines and the
initial marketing solicitation that Plaintiff received, and that Plaintiff relied on Biggio’s expert
advice in purchasing the LPL policy. (Am. Compl. ¶¶ 33, 40.) Accordingly, I too will construe
Plaintiff’s allegations regarding Biggio and his status as an expert as a claim sounding in
professional negligence, rather than a breach of contract. See Zokaites Contracting Inc. v. Trant
10

“In a breach of contract action against a professional, the professional's liability must be based upon the terms of
the contract.” Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1287 (Pa. Super. 2009). Because the plain
language of the insurance policy excluded coverage for Plaintiff’s alleged wrongful act, and because Plaintiff did not
have a reasonable expectation of coverage, to the extent Plaintiff advances a “professional breach of contract” claim
against Biggio, it too fails as a matter of law based on my analysis above. In any event, as will be discussed below,
Plaintiff’s allegations regarding Andrew Biggio’s status as an expert are more appropriately characterized as a claim
sounding in professional negligence.
18

Corp., 968 A.2d 1282, 1287 (Pa. Super. 2009) (“[T]o determine whether an action is a
professional negligence claim as opposed to another theory of liability, [courts] must examine
the averments made in the complaint…. The substance of the complaint rather than its form is
the controlling factor to determine whether the claim against a defendant sounds in professional
negligence or contract.”); see also New York Cent. Mut. Ins. Co. v. Edelstein, 2015 WL 412519,
at *6 (M.D. Pa. Jan. 30, 2015), aff'd sub nom. New York Cent. Mut. Ins. Co. v. Edelstein, 637 F.
App'x 70 (3d Cir. 2016) (“The court agrees … that the allegations in plaintiffs’ second amended
complaint do not establish a … malpractice breach of contract claim since plaintiffs fail to
adequately allege a breach of a specific instruction or provision of the agreement of the parties.
Rather, … plaintiffs’ … malpractice claims are based on failure of defendants to abide by the
relevant professional standard of care.”). 11
No party addressed the issue of whether or not Plaintiff’s professional negligence claim
was filed within the applicable statute of limitations. As such, pursuant to Federal Rule of Civil
Procedure 56(f), I ordered the parties to submit supplemental briefing on this issue. Both sets of
Defendants submitted detailed briefs arguing that this claim is barred by Pennsylvania’s two-year
statute of limitations for professional negligence claims. (See Doc. Nos. 87, 88.) Plaintiff’s
cursory brief did not address his professional negligence claim or the applicable statute of
limitations, nor did he file a response to either of the Defendants’ briefs. (Doc. No. 86.)

11

Additionally, I note that Plaintiff filed a “Certificate of Merit as to Andrew Biggio” shortly after commencing this
lawsuit. (Doc. No. 4.) See Smith v. Friends Hosp., 928 A.2d 1072, 1074–75 (Pa. Super. 2007) (“A certificate of
merit must be filed … within sixty days after the filing of the complaint in any action asserting a professional
liability claim based upon an allegation that a licensed professional deviated from an acceptable professional
standard.”) (citing Pa. R. Civ. P. 1042.3(a)) (internal quotations and emphasis omitted). In the Certificate of Merit,
Plaintiff certified that an appropriate licensed professional supplied a written statement that there “exists a
reasonable probability that the care, skill or knowledge exercised by … Andrew Biggio … fell outside acceptable
professional standards[.]” (Doc. No. 4.) This further supports my conclusion that Plaintiff’s allegations concerning
Biggio sound in tort rather than contract. See Knopick v. Downey, 963 F. Supp. 2d 378, 390 (M.D. Pa. 2013)
(recognizing that a plaintiff may not “repackage” a negligence-based malpractice claim into one for breach of
contract to avoid the statute of limitations).
19

Federal courts sitting in diversity treat statutes of limitations as substantive, and therefore
are bound by the applicable state law. Here, Pennsylvania supplies the substantive law. As such,
Plaintiff's claim for professional negligence is governed by a two-year statute of limitations. See
Cooper v. Sirota, 37 F. App'x 46, 48 (3d Cir. 2002); M & M High, Inc. v. Essex Ins. Co., 2002
WL 31681995, at *4 (Pa. Ct. Com. Pl. Nov. 18, 2002); Estate of Goldberg ex rel. Goldberg v.
Nimoityn, 2014 WL 6908013, at *6 (E.D. Pa. Dec. 9, 2014) (citing 42 Pa. Cons. Stat. § 5524). 12
“Pennsylvania favors strict application of the statutes of limitation.” Wachovia Bank,
N.A. v. Ferretti, 935 A.2d at 572. And as a general rule in Pennsylvania, “the statute of
limitations begins to run as soon as the right to institute and maintain a suit arises,” (i.e., upon the
occurrence of the alleged breach of duty). Estate of Goldberg, 2014 WL 6908013, at *6.
However, the “discovery rule” may serve to toll the limitations period if the injury alleged was
not readily ascertainable at the time of the breach. Knopick v. Connelly, 639 F.3d 600, 607 (3d
Cir. 2011). “Where the discovery rule does apply, [a limitations period] begins to run where the
plaintiff knew or in the exercise of reasonable diligence should have known of the injury and its
cause.” Id. at 607. “[T]he point of time at which the injured party should reasonably be aware
that he … has suffered an injury is generally an issue of fact to be determined by the jury. . . .
Only where the facts are so clear that reasonable minds cannot differ may the commencement of
the limitation period be determined as a matter of law.” Id. at 611.
Here, Biggio and First Indemnity issued the initial policy to Plaintiff on October 24,
2007. Thus, any breach by Biggio would have occurred on this date. Nevertheless, Plaintiff
claims that he first became aware of the “gap” in coverage when First Mercury denied coverage

12

To the extent Plaintiff advanced a “simple” negligence claim, this too would be barred by Pennsylvania’s twoyear statute of limitations. Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000) (“In Pennsylvania, a cause
of action for negligence is controlled by the two-year statute of limitations set forth in 42 Pa. C. S. A. § 5524(2).”)
(quoting Hubert v. Greenwald, 743 A.2d 977, 981 (Pa. Super. 1999)).
20

on August 7, 2009, nearly two years later. In fact, Plaintiff expressly states in his response in
opposition to First Mercury and State National’s statement of material facts that he “only
discovered the lapse in coverage when Defendants … denied coverage.” (Pl.’s Resp. in Opp. to
First Merc. & State Nat’l SOF at 6 ¶ 20.) By Plaintiff’s own admission, he discovered his alleged
injury on August 7, 2009. Viewed in the light most favorable to Plaintiff, and giving him every
benefit of the doubt under application of Pennsylvania’s “discovery rule,” his claim for
professional negligence expired, at the absolute latest, on August 7, 2011—two years before he
filed his initial complaint in the case before me. 13 Therefore, Plaintiff’s claim for professional
negligence fails as a matter of law because it is barred by Pennsylvania’s two-year statute of
limitations. As such, judgment will be entered in favor of Defendants on this claim.
E. Plaintiff’s Alternate Theories of Liability
As noted, Plaintiff included only one count in his Amended Complaint. However, he
advanced multiple theories of liability, including: unjust enrichment, quasi-contract, and
promissory estoppel. Like Plaintiff’s professional negligence claim, Defendants did not move for
summary judgment on any of these alternate theories of liability. As such, in my Order directing
the parties to submit supplemental briefing pursuant to Federal Rule of Civil Procedure 56(f), I
further instructed the parties to address these three claims, and brief whether judgment was
appropriate on any or all of them. Again, both sets of Defendants responded by arguing that each
of Plaintiff’s alternate theories of liability fails as a matter of law, and cited ample authority in

13

In his Amended Complaint, Plaintiff avers that, prior to receiving the August 7, 2009 letter from First Mercury
denying coverage, he did “not know nor did he have reason to suspect that Defendants left him with a gap in
coverage[.]” (Am. Compl. ¶¶ 19–20.) Yet, Plaintiff also alleges that it was “only after being denied coverage by
Philadelphia Insurance Company” on December 31, 2009 that he “realized and could have only then realized that
Defendants had failed to procure adequate legal malpractice coverage for him[.]” (Id. at ¶ 22.) Despite this
contradiction regarding when Plaintiff learned of his “gap” in coverage, even if I were to use the later date of
December 31, 2009 for purposes of measuring the limitations period, Plaintiff’s claim for professional negligence
would still be barred by Pennsylvania’s two-year statute of limitations.
21

support of their arguments. Plaintiff did not specifically address any of these three claims, nor
did he submit a response to either set of Defendants’ briefs.
i.

Unjust Enrichment / Quasi-Contract

“An action based on unjust enrichment is an equitable action which sounds in quasicontract, a contract implied in law.” Sevast v. Kakouras, 915 A.2d 1147, 1153 n. 7 (Pa. 2007).
To recover under the equitable doctrine of unjust enrichment (otherwise known as “quasicontract”) a plaintiff must establish the following: (1) a benefit conferred upon the defendant by
the plaintiff; (2) appreciation of such benefit(s) by the defendant; and (3) acceptance and
retention of such benefits under such circumstances that it would be inequitable for defendant to
retain the benefit without payment of value. Kia v. Imaging Scis. Int'l, Inc., 735 F. Supp. 2d 256,
269 (E.D. Pa. 2010).
“The mere fact that one party benefits from the act of another is on its own insufficient to
justify restitution. There must also be an injustice in permitting the benefit to be retained without
compensation.” Pender v. Susquehanna Twp., 933 A.2d 1085, 1094 (Pa. Commw. Ct. 2007); see
also Torchia on Behalf of Torchia v. Torchia, 499 A.2d 581, 582 (Pa. Super. 1985) (recognizing
that a plaintiff “must show that the party against whom recovery is sought either wrongfully
secured or passively received a benefit that it would be unconscionable for her to retain”)
(internal quotations omitted). “The application of the doctrine depends on the particular factual
circumstances of the case at issue. In determining if the doctrine applies, [a court’s] focus is not
on the intention of the parties, but rather on whether the defendant has been unjustly enriched.”
Limbach Co., LLC v. City of Philadelphia, 905 A.2d 567, 575 (Pa. Commw. Ct. 2006).
Plaintiff submitted an insurance application—after his conversation with Biggio—
requesting that his coverage be effective on October 1, 2007. Plaintiff received a quote outlining

22

the premium/cost associated with a policy possessing an effective coverage date of October 1,
2007. Plaintiff paid his premium without objection, and received a policy with an effective
coverage date of October 1, 2007. Even after Defendants denied coverage, Plaintiff renewed his
policy with Defendants multiple times.
The undisputed facts reflect that the only benefit Plaintiff conferred upon First Mercury
and State National was the premium he paid. Payment of his premium secured one year of
malpractice coverage via the insurance policy at issue. Additionally, the First Indemnity
Defendants argue that the only benefit they received was a commission for facilitating Plaintiff’s
purchase of the insurance policy through First Mercury and State National. In other words,
Biggio and First Indemnity retained a percentage of the premium as payment for their services.
Again, in exchange for their retention of this benefit, the First Indemnity Defendants facilitated
the securing of malpractice coverage for Plaintiff. Plaintiff has not disputed the characterization
of either of these benefits, nor has he argued that either of the benefits retained by the respective
Defendants was excessive, unreasonable, or unconscionable.
I conclude that the undisputed facts of this case do not present a situation in which any
reasonable fact finder would conclude that any Defendant accepted and retained a benefit under
circumstances that would be inequitable or unconscionable to retain that benefit without payment
of value to Plaintiff. Kia, 735 F. Supp. 2d at 269. In other words, as a matter of law, none of the
Defendants were unjustly enriched, and Plaintiff’s claims for quasi-contract and unjust
enrichment fail as a matter of law. 14
14

Additionally, while a party may generally advance alternative theories of liability (but may not recover on both), it
is well-settled that a plaintiff may not maintain a claim for unjust enrichment under a quasi-contract theory of
recovery where “the relationship between the parties is founded upon [a] written agreement[.]” Brown & Brown,
Inc. v. Cola, 745 F. Supp. 2d 588, 625 (E.D. Pa. 2010); see also Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896
(Pa. Super. 2011) (“It is long-settled that the quasi-contractual doctrine of unjust enrichment is inapplicable when
the relationship between parties is founded on a written agreement or express contract.”) (quotations omitted). First
Mercury and State National argue that Plaintiff’s claims fail against them because their relationship was strictly
23

ii.

Promissory Estoppel

“The doctrine of promissory estoppel allows a party, under certain circumstances, to
enforce a promise even though that promise is not supported by consideration.” Cornell
Companies, Inc. v. Borough of New Morgan, 512 F. Supp. 2d 238, 266 (E.D. Pa. 2007). To
establish a claim for promissory estoppel in Pennsylvania, a plaintiff must prove the following:
(1) the promisor made a promise that he should have reasonably expected to induce action or
forbearance on the part of the promisee; (2) the promisee actually took action or refrained from
taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the
promise. Id.; Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 718 (Pa. Super. 2005).
Courts have observed that “[p]romissory estoppel requires that plaintiffs reasonably rely
on a … promise to their detriment.” Josephs v. Pizza Hut of Am., Inc., 733 F. Supp. 222, 226
(W.D. Pa. 1989), aff'd, 899 F.2d 1217 (3d Cir. 1990) (emphasis added); see also Shoemaker v.
Commonwealth Bank, 700 A.2d 1003, 1008 (Pa. Super. Ct. 1997) (recognizing that a factor in
determining whether injustice can be avoided only by enforcing the promise is the
“reasonableness of the promisee’s reliance”).
Assuming that Biggio did in fact promise Plaintiff that he would be left with “no gaps” in
coverage, Plaintiff has offered no explanation, nor has he pointed to any record evidence,
regarding why he changed course and requested an effective coverage date of October 1, 2007
after Biggio allegedly made this promise. For the same reasons outlined above with respect to
Plaintiff’s lack of a reasonable expectation of coverage, it would be “patently unreasonable” for
Plaintiff to rely on a promise only to thereafter request coverage in direct contravention to that
promise. For this reason, Plaintiff’s promissory estoppel claim fails as a matter of law. See
founded upon the insurance policy—a written agreement. Plaintiff does not dispute that the LPL insurance policy at
issue constituted a legally enforceable contract. Hence, Plaintiff’s claims fail against First Mercury and State
National for the additional reason that their relationship was founded upon an express written agreement.
24

Luther v. Kia Motors Am., Inc., 676 F. Supp. 2d 408, 422–23 (W.D. Pa. 2009) (recognizing that,
as a matter of law, “[i]t is not reasonable for experienced business people to make business
decisions based on oral representations in contravention of written statements.”).
IV.

CONCLUSION
The plain language of the insurance policy at issue excludes coverage for the alleged

wrongful act giving rise to the malpractice complaint filed against Plaintiff, and the “reasonable
expectations” doctrine is inapplicable. Therefore, Defendants’ respective motions for summary
judgment will be granted as to Plaintiff’s breach of contract claim. Additionally, Plaintiff’s claim
for professional negligence is barred by Pennsylvania’s two-year statute of limitations. As such,
pursuant to Federal Rule of Civil Procedure 56(f), I will enter judgment in favor of Defendants
on this claim. Finally, Plaintiff’s alternate theories of liability—unjust enrichment, quasicontract, and promissory estoppel—all fail as a matter of law, and pursuant to Federal Rule of
Civil Procedure 56(f), I will enter judgment in favor of Defendants on these three claims.
An appropriate Order follows.

25