HARVEY v. LIBERTY MUTUAL GROUP, INC. et al

Filing 17

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 3/25/2014. 3/26/2014 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWARD HARVEY

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Plaintiff,
v.
LIBERTY MUTUAL GROUP, INC., OHIO
CASUALTY CORPORATION, AND
THE NETHERLANDS INSURANCE
COMPANY
Defendants.

CIVIL ACTION
NO. 13-cv-04693

MEMORANDUM & ORDER
JOYNER, J.

MARCH 25, 2014

Before the Court are Defendants’ Motion for Summary Judgment
(Doc. No. 13), Plaintiffs’ Response thereto (Doc. No. 15), and
Defendants’ Reply in further support thereof (Doc. No. 16). For
the following reasons, the Court hereby GRANTS Defendants’ Motion
for Summary Judgment.
II.

BACKGROUND
The stipulated facts, as agreed to by the parties, are as

follows. On September 30, 2008, Plaintiff Edward Harvey was
involved in an automobile accident in East Goshen Township in
Pennsylvania. He was rear-ended by a vehicle being driven by Kyle
Smedley, who is not a party to the present action, while waiting
for a traffic light at the intersection of Paoli Pike and East
Boot Road. At the time of the accident, Mr. Harvey was driving a
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vehicle owned by his employer, Spanpro Services Group, and was in
the course of employment.
Mr. Smedley was insured by Erie Insurance and had a
liability insurance policy with a limit of $250,000.00. Mr.
Smedley was also insured by an Erie Insurance umbrella insurance
policy with a $2 million limit of liability. Thus, Mr. Smedley
had $2,250,000.00 in total liability coverage for the accident.
Mr. Harvey asserted a liability claim in the Court of Common
Pleas of Chester County against Mr. Smedley for personal injuries
and lost wages sustained as a result of the accident. Mr. Harvey,
Mr. Smedley, and Erie Insurance decided to proceed to binding
arbitration in lieu of resolving the dispute in the Court of
Common Pleas. On May 21, 2012, they entered into a binding
arbitration agreement, which contained the following provisions:
3.

The parties agree to discontinue the
lawsuit, and the provisions contained
herein are the manner in which the
dispute which underlies the lawsuit will
be resolved.
. . .

8.

The payment resulting from an award in
this matter of the arbitrator shall be a
low of $0.00 and no more than
$1,350,000.00. The award will be amended
to reflect the above described
perimeters to the extent it falls
outside of them.

9.

The binding high figure of $1,350,000.00
restricts the amount of the award for
purposes of this arbitration only; it is
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not intended to have any preclusive
effect on any subsequent proceeding
including any underinsured motorist
claim or arbitration relating to the
accident of September 30, 2008. (Def.
Mot. for Summ. Judgement at Ex. B).
After an arbitration hearing, the arbitrator entered an
award of $680,000.00 in favor of Mr. Harvey. (Def. Ex. C).
At the time of the accident, Spanpro Services Group was
insured under an automobile insurance policy issued by the
Netherlands Insurance Company (“Netherlands”). The Netherlands
policy contained the following provision in part:
A.

Coverage
1.

We will pay all sums the “insured”
is legally entitled to recover as
compensatory damages from the owner
or driver of an “underinsured motor
vehicle”. The damages must result
from “bodily injury” sustained by
the “insured” caused by an
“accident”. The owner’s or driver’s
liability for these damages must
result from the ownership,
maintenance or use of an
“underinsured motor vehicle”.

2.

We will pay under this coverage
only if Paragraph a. or b. applies:
a.

The limits of any
applicable liability
bonds or policies have
been exhausted by payment
of judgments or
settlements; or ....
(Def. Ex. D).

Prior to the binding arbitration, Mr. Harvey’s attorney
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notified Netherlands that the underlying suit would be
arbitrated. In response, Senior Claims Specialist Robert J. Wood
wrote as follows:
I am writing regarding your client Edward
Harvey . . . I understand that you have
entered into a binding arbitration agreement
with the carrier for the tort feasor. I
further understand that this agreement has a
high parameter of $1,350,000 even though the
tort feasor has $2,250.00 [sic] in available
coverage.
Please be advised that The Netherlands
Insurance Company nor Ohio Casualty Insurance
Company will be bound by any arbitration
award. [sic]. We also believe we are entitled
to an offset of the entire $2,250,000 in
available coverage.
If you intend on pursuing an UIM claim under
this policy, please forward all medical bills
and reports, all depositions transcripts and
discovery, etc, so that I can review this
claim. (Pl. Response Ex. C).
Following the arbitration award, Mr. Harvey asserted an
uninsured motorist (“UIM”) claim against Netherlands. Netherlands
contended that the underlying arbitration precluded a UIM claim.
On July 11, 2013, Mr. Harvey filed the present lawsuit in the
Court of Common Pleas of Philadelphia County. On August 13, 2013,
Defendants removed the suit to this Court.
III. JURISDICTION
The Court will first address its jurisdiction to hear the
above-captioned matter. Federal district courts have original

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jurisdiction over actions between citizens of different states in
which the matter in controversy exceeds $75,000.00, exclusive of
interests and costs. See 28 U.S.C. § 1332(a). Plaintiff is a
citizen of the Commonwealth of Pennsylvania. (Complaint, Court of
Common Pleas of Philadelphia, Doc. No. 1 ¶ 1). Defendant Liberty
Mutual Insurance Corp. is incorporated in Massachusetts with its
principal place of business in Massachusetts. (Notice of Removal,
Doc. No. 1, ¶ 4). Defendant Ohio Casualty Corporation is
incorporated in New Hampshire with its principal place of
business in Massachusetts. Id. Defendant The Netherlands
Insurance Company is incorporated in New Hampshire with its
principal place of business in Massachusetts. Id. Because none of
the Defendants is a citizen of the same state as the Plaintiff,
the Court finds that this is a suit between citizens of different
states. See 28 U.S.C. § 1332(a)(1),(c)(1).1
“The general federal rule is to decide the amount in
controversy from the complaint itself.” Angus v. Shiley Inc., 989
F.2d 142, 145 (3d Cir. 1993)(citing Horton v. Liberty Mutual Ins.
Co., 367 U.S. 348, 353 (1961)). However, the plaintiff’s
pleadings are not wholly dispositive under the legal certainty
test - the Court must examine not just the amount claimed by the
plaintiff, but also his actual legal claims. Morgan v. Gay, 471
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The carrier issuing the subject policy is The Netherlands Insurance
Company. Defendant Netherlands notes that its arguments are equally applicable
to the other two defendants, had either of them been the Plaintiff’s insurer.
(Def. Mot. for Summary Judgment at 1 N.1).

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F.3d 469, 475 (3d Cir. 2006). The amount in controversy is
measured by a reasonable reading of the value of the rights being
litigated. Angus, 989 F.2d at 145. When a case is filed in
federal court, it “must be dismissed or remanded if it appears to
a legal certainty that the plaintiff cannot recover more than the
jurisdictional amount of $75,000.” Frederico v. Home Depot, 507
F.3d 188, 195 (3d Cir. 2007)(citing Valley v. State Farm Fire and
Cas. Co., 504 F.Supp.2d 1, 3-4 (E.D. Pa. 2006)(emphasis in
original)).
When a case has been removed from state court to federal
court, the party asserting federal jurisdiction bears the burden
of showing, at all stages of the litigation, that the case is
properly before the federal court. See Frederico, 507 F.3d at
193-95. The defendant in such cases must prove by a legal
certainty that the amount in controversy exceeds the statutory
threshold. Id. at 197. “To determine whether the minimum
jurisdictional amount has been met in a diversity case removed to
a district court, a defendant’s notice of removal serves the same
function as the complaint would if filed in the district court.”
Id. (citing Morgan, 471 F.3d at 474).
In the present case, Plaintiff brought an uninsured motorist
(“UIM”) claim against Defendant Netherlands in the Court of
Common Pleas, which Netherlands removed to federal court. The
Pennsylvania Motor Vehicle Financial Responsibility Law

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(“MVFRL”), 75 Pa. C.S. § 1701 et seq., requires that all
automobile insurance companies offer underinsured and uninsured
motorist coverages to their policy holders, unless the named
insured rejects such coverage by signing a written waiver. See 75
Pa. C.S. § 1731(a)-(b). Under the MVFRL, an “underinsured motor
vehicle” is defined as “[a] motor vehicle for which the limits of
available liability insurance and self-insurance are insufficient
to pay losses and damages.” 75 Pa. C. S. § 1702. The parties
agree that Mr. Smedley is covered by an insurance policy worth
$2,250,000.00. Thus, Plaintiff’s claim against Defendant
Netherlands is any amount in excess of $2,250,000.00 that he has
sustained in losses and damages as a result of his car accident.
In his complaint in state court, Plaintiff demands from
Netherlands “an amount in excess of Fifty Thousand Dollars
($50,000.00) plus lawful interest and costs.” (Complaint, Court
of Common Pleas of Philadelphia, Doc. No. 1). The factual basis
of Plaintiff’s damages are his loss of earnings and earning
capacity, as well as present and future medical expenses as a
result of lumbar-sacral strain and sprain, lumbospondylosis, L4L5 central disc protrusion with annular tear, right L5
radiculopathy with motor weakness, right foot drop, anxiety,
emotional upset and functional disturbances. Id. ¶ 14, 17, 18.
For their part, Defendants provide the following support for
federal diversity jurisdiction in their notice of removal:

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“Plaintiff’s complaint demands an amount in excess of $50,00.00
[sic]. The amount in controversy, upon information and belief, is
in excess of Seventy Five Thousand Dollars ($75,000) exclusive of
interest and costs in that plaintiff alleges that he is entitled
to more than $50,000.00 in benefits and further alleges injuries
including L4-L5 annular tear, right L-5 radiculopathy with motor
weakness and right foot drop and permanent loss of income alleged
to exceed $1,000.000.[sic].” (Notice of Removal, Doc. No. 1, ¶ 78).
The Court finds that Defendant Netherlands has sustained its
burden in proving that the amount in controversy meets the
requirements of § 1332. It would be reasonable for a jury to
award Plaintiff an amount greater than $75,000, even after the
initial coverage of $2.5 million, based on Plaintiff’s
allegations of loss of present and future income as well as
future medical expenses resulting from the multiple, serious
physical injuries Plaintiff sustained in the car accident. The
Court thus has diversity jurisdiction over the present case under
28 U.S.C. § 1332.
IV.

STANDARD OF REVIEW
In deciding a motion for summary judgment under Rule 56(c),

a court must determine “whether there is a genuine issue of
material fact and, if not, whether the moving party is entitled
to judgment as a matter of law.”

Medical Protective Co. v.
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Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal citation
omitted). Under the rule, a Court must look beyond the bare
allegations of the pleadings to determine if they have sufficient
factual support to warrant their consideration at trial. In re
Phillips Petroleum Securities Litigation, 881 F.2d 1236, 1243 (3d
Cir. 1989). All facts must be viewed and all reasonable
inferences must be drawn in favor of the non-moving party. Travis
G. V. New Hope-Solebury School District, 544 F. Supp. 2d 435, 439
(E.D. Pa. 2008)(citing Troy Chemical Corp. v. Teamsters Union
Local No. 408, 37 F.3d 123, 125-26 (3d Cir. 1994)); Oritani
Savings & Loan Assn. v. Fidelity & Deposit Co. of Md., 989 F.2d
635, 638 (3d Cir. 1993).

An issue of material fact is said to be

genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Belmont v. MBInv.
Partners, Inc., 708 F.3d 470, 483 n. 17 (3d Cir. 2013)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
V.

ANALYSIS
The goal of the Pennsylvania Motor Vehicle Financial

Responsibility Law (“MVFRL”), 75 Pa. C.S. § 1701 et seq., is to
protect those persons who purchase automobile insurance and are
then involved in accidents with motorists who did not purchase
similar coverage. Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d
197, 209 (3d Cir. 2001); Wolgemuth v. Harleysville Mut. Ins. Co.,
535 A.2d 1145, 1149 (Pa. Super. Ct. 1988), appeal denied 535 A.2d

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1145 (Pa. 1988). In order to address the problems caused by an
increasingly high number of uninsured motorists, the statute sets
out the minimum amount of coverage that must be offered to those
who are insured. Lambert v. McClure, 595 A.2d 629, 631 (Pa.
Super. 1991). It requires that all automobile insurance must
offer underinsured and uninsured motorist coverages, unless the
named insured rejects such coverage by signing a written waiver.
See 75 Pa. C.S. § 1731(a)-(b). With regard to underinsured
motorist (“UIM”) coverage, the law provides:
Underinsured motorist coverage shall provide
protection for persons who suffer injury
arising out of the maintenance or use of a
motor vehicle and are legally entitled to
recover damages therefor from owners or
operators of underinsured motor vehicles. Id.
§ 1731(c).
Under the MVFRL, an “underinsured motor vehicle” is defined
as “[a] motor vehicle for which the limits of available liability
insurance and self-insurance are insufficient to pay losses and
damages.” 75 Pa. C. S. § 1702.
The parties disagree as to whether Mr. Harvey’s claim
qualifies as a proper UIM claim. Defendants argue that the extent
of Mr. Harvey’s losses and damages was determined in the binding
arbitration with Mr. Smedley, and collateral estoppel bars Mr.
Harvey from asserting otherwise. Moreover, Defendants aver,
because there was sufficient coverage provided by the Erie

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policies - $2,250,000 - to pay Mr. Harvey’s $680,000 in damages,
Mr. Harvey does not have a viable UIM claim. Mr. Harvey responds
that his total losses and damages have not yet been adjudicated
as required under the Netherlands policy – instead, the parties
agreed in the arbitration agreement and by way of the letter from
Netherlands Insurance Company to Mr. Harvey that the arbitration
award would not be binding. Thus, Mr. Harvey argues, the only way
to determine Mr. Harvey’s losses and damages for the purposes of
his UIM claim would be a trial in federal court. Only after those
losses are ascertained can it be determined whether Mr. Smedley’s
insurance is sufficient to cover them.
Thus, the main issue before the Court is whether Mr. Harvey
is estopped by the arbitration award from re-litigating the
amount of his damages and losses. If collateral estoppel does
apply, then Defendants will prevail on their present motion
because Mr. Harvey’s arbitration award of $680,000.00 is fully
covered by Mr. Smedley’s $2,250,000.00 insurance policy and he is
not entitled to pursue a UIM claim. If Mr. Harvey is not
estopped, then Defendant’s motion fails because Mr. Harvey’s
losses and damages must be determined by a jury.
Collateral estoppel prevents re-litigation of an issue that
has also been decided in a previous action. Witkowski v. Welch,
173 F.3d 192, 198 (3d Cir. 1999)(citing Schroeder v. Acceleration
Life Ins. Co., 972 F.2d 41, 45 (3d Cir. 1992)). The doctrine

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applies when (1) the issue decided in the prior case is identical
to the one presented in the later case, (2) there was a final
judgment on the merits, (3) the party against whom the plea is
asserted was a party or in privity with a party to the prior
case; and (4) the party against whom the doctrine is asserted or
his privy had a full and fair opportunity to litigate the issue
in the prior proceeding. Id. at 199.
The Court finds factors one and four to be satisfied. The
issue decided in the prior case, the monetary amount of Mr.
Harvey’s losses and damages as a result of his car accident, is
identical to the issue before this Court. The determination of
this issue was also essential to the arbitrator’s judgment and
ultimate award of $680,000.00. Moreover, Mr. Harvey had a full
and fair opportunity to present all evidence, represented by
counsel, regarding his losses and damages in that arbitral
hearing.
Factors two and three, however, present thornier questions.
Typically the factual and legal findings resulting from an
arbitration are given preclusive effect in subsequent civil
litigation. See, e.g., Incollingo v. Maurer, 394 Pa. Super. 352,
356-60 (Pa. Super. Ct. 1990)(“The issue which we must resolve is
whether a plaintiff, after having the question of damages
determined by a panel of arbitrators . . . may then proceed in a
separate civil action for the same damages . . . The appellant is

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not entitled to a second bite of the apple. . . .”); Cassidy v.
Prudential Property & Cas. Ins. Co., 40 Pa. D. & C.3d 551, 556
(Pa. Com. Pl. 1986)(granting summary judgment to Defendant based
on arbitrator’s previous determination of main issue in case).
Yet because arbitration is a creature of contract law, “[w]here
the terms of an arbitration agreement limit the binding effect of
the award in another proceeding, [the court will] honor those
terms as part of the agreement between the parties.” Muse v.
Cermak, 630 A.2d 891, 893 (Pa. Super. Ct. 1993). A more
complicated issue is presented if the parties to the original
arbitration who agree that the arbitration will have no
preclusive effect are not in privy with all the parties to the
subsequent litigation; in that case, the terms of the arbitration
agreement will bind only the parties to the agreement. Whirlpool
Corp. v. Penske Logistics, Inc., 2011 WL 7758325 (Pa. Com. Pl.
2011).
In the present case, the parties to the arbitration - Mr.
Harvey, Mr. Smedley, and Erie Insurance - agreed to a provision
regarding preclusive effect.2 “[I]n construing the language of an
arbitration provision, courts must resort to the rules of
contractual construction.” Muse, 630 A.2d at 893. “When the words
of a contract are unequivocal, they speak for themselves, and a

2

The parties also agreed that “[t]he interpretation and construction of
[the arbitration agreement] shall be governed by the laws of the Commonwealth
of Pennsylvania.” (Def. Ex. B. ¶ 14).

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meaning other than that expressed cannot be given them. This
court will not rewrite the contract or give it a construction
that conflicts with the plain, ordinary, and accepted meaning of
the words.” Id. (internal quotation omitted). The provision at
issue states that
The binding high figure of $1,350,000.00
restricts the amount of the award for
purposes of this arbitration only; it is not
intended to have any preclusive effect on any
subsequent proceeding including any
underinsured motorist claim or arbitration
relating to the accident of September 30,
2008. (Def. Ex. B ¶ 9).
This provision is plain: it provides that the binding high
figure of $1,350,000 will not restrict the amount that may be
awarded in damages in any proceeding subsequent to the
arbitration. The word “it” immediately following the semicolon
refers to the subject of the sentence, “the binding high figure.”
The portion of the sentence following the semicolon could be
rephrased as “the binding high figure is not intended to have any
preclusive effect.” The provision does not, as Mr. Harvey argues,
provide that the award as a whole has no preclusive effect.
Because the arbitrator’s award of $680,000 did not exceed the
binding high figure, the provision limiting the preclusive effect
of this figure has no bearing on the present litigation. The
award of $680,000 for Mr. Harvey’s damages thus carries with it
the full force of collateral estoppel in this suit. See
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Incollingo, 394 Pa. Super. at 360.
Even if the Court were to accept Mr. Harvey’s interpretation
of the agreement, the provision would still not be enforceable as
against Defendant Netherlands. The Court is guided by the
reasoning of two cases, Muse v. Cermak, 630 A.2d 891 (Pa. Super.
Ct. 1993) and Whirlpool Corp. v. Penske Logistics, Inc., 2011 WL
7758325 (Pa. Com. Pl. 2011). In Muse, the insurance carriers of
two motorists conducted an arbitration and agreed that a decision
of the arbitration panel would have no preclusive effect. 630
A.2d at 893. In a subsequent suit between the motorists, the
Superior Court concluded that the court had to honor the “terms
as part of any agreement between the parties.” Id. (emphasis
added). Thus, the Superior Court found sufficient identity of
interest between each insurance carrier and its insuree motorist
to hold the motorists to the terms of the agreement entered into
by the carriers. The arbitral decision did not have collateral
estoppel effect in the litigation. Id.
In Whirlpool, an arbitration between Penske Logistics, Inc.
and Whirlpool Corporation resulted in a determination of
liability on the part of Penske. Whirlpool, 2011 WL 7758325 (Pa.
Com. Pl. 2011). Penske and Whirlpool had agreed that any decision
rendered would not be res judicata or have collateral estoppel
effect. Id. In a subsequent litigation Penske asserted
crossclaims against defendants who had not been party to the

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arbitration. Id. The Court of Common Pleas found that Penske was
estopped from denying its liability in pleadings against the
crossclaim-defendants, because the crossclaim-defendants had
neither been parties to the previous arbitration nor were in
privity with the parties. Id. Thus, the crossclaim-defendants
were not bound by the term of the arbitration agreement stating
that the arbitral decision would have no res judicata effect. Id.
The Court finds Whirlpool most analogous to the present
context. Netherlands was not a party to the arbitration.
Netherlands was also not in privity with Mr. Harvey regarding the
arbitration proceedings. While it is generally true that “an
insurance company is in privity with its insured,” Catroppa v.
Carlton, 998 A.2d 643, 646 (Pa. Super. Ct. 2010)(citing Daily v.
Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 97 A.2d
795, 796 (Pa. 1953)), this principle has important limits. Id.
Privity requires “such an identification of interest of one
person with another as to represent the same legal right.” Id.
(citing Ammon v. McCloskey, 655 A.2d 549, 554 (Pa. 1995)). The
interests of Netherlands and Mr. Harvey were not so aligned
during the arbitration as to represent the same legal right. For
example, while it may have been in Mr. Harvey’s interest to agree
to a binding high figure lower than the full extent of Mr.
Smedley’s available insurance, Netherlands did not share this
interest. Because the terms of the arbitration agreement bound

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only the parties to it and those in privity with parties,
Netherlands is not bound by the provision regarding preclusive
effect. Thus, the damages award of $680,000 estops Mr. Harvey
from relitigating his damages. See Whirlpool, 2011 WL 7758325
(Pa. Com. Pl. 2011).
The Court also finds that Netherlands’ July 3, 2012 letter
to Mr. Harvey is insufficient to constitute a waiver of the
affirmative defense of collateral estoppel. Under Pennsylvania
law, “waiver is the voluntary and intentional abandonment or
relinquishment of a known right . . . To constitute a waiver of a
legal right, there must be a clear, unequivocal and decisive act
of the party with knowledge of such right and an evident purpose
to surrender it.” Kamco Indus. Sales, Inc., v. Lovejoy, Inc., 779
F.Supp.2d 416, 423 (E.D. Pa. 2011)(internal quotations omitted).
Thus, though it is possible for a party to contractually waive
certain affirmative defenses, the intent of the party to do so
would have to be evident from the document at issue, and the
breadth of the waiver would have to be enforceable. See generally
U.S. Bank, Nat. Ass’n v. Rosenberg, Civ. A. 12-723, 2013 WL
272061 at *3 (E.D. Pa. Jan. 24, 2013); HFC Commerical Realy, Inc.
v. Axelrod, Civ. A. 89-8739, 1991 WL 24895 at *2 (E.D. Pa. Feb.
22, 1991). The letter in this case does not contain the type of
“clear, equivocal and decisive” language necessary for the Court
to find that Netherlands has waived its collateral estoppel

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defense. Not only does the letter not use the terms “collateral
estoppel,” “waiver,” or “defense,” but it asserts that
Netherlands is entitled to an off-set of the $2.25 million
available in insurance coverage, thus evidencing Netherlands’
intent to pursue what it believes that it is owed, not waive its
right to do so. See (Pl. Ex. C).
Because Mr. Harvey’s losses and damages were determined in a
binding prior proceeding not to exceed Mr. Smedley’s available
insurance, his UIM claim fails under both the Pennsylvania
statute and the terms of his insurance contract with Netherlands.
His claim is not a UIM claim under the MVFRL because Mr.
Smedley’s insurance was not insufficient to pay Mr. Harvey’s
losses and damages. See 75 Pa. C. S. § 1702. As to the insurance
contract with Netherlands, “the limits of [Mr. Smedley’s]
liability bonds or policies” were not exhausted by payment of
judgments or settlements. See (Def. Ex. D). Instead, the $680,000
that Mr. Harvey was awarded in damages and losses was satisfied
in full by Mr. Smedley’s coverage provided by Erie Insurance.
The Court thus finds that no genuine issues of material fact
exist for trial, and GRANTS Defendant Netherlands’ Motion for
Summary Judgment.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s
Motion for Summary Judgment. Plaintiff’s claims are DISMISSED in
their entirety.