WALSH et al v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY

Filing 12

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE BERLE M. SCHILLER ON 11/21/22. 11/21/22 ENTERED AND COPIES E-MAILED.(bw)

Case 2:21-cv-04464-BMS Document 12 Filed 11/21/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES WALSH, et al.,
Plaintiffs,
v.
NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY,
Defendant.

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CIVIL ACTION
No. 21-4464

MEMORANDUM
Schiller, J.

November 21, 2022

Plaintiffs James and Carolyn Walsh sued Defendant Nationwide Mutual Fire Insurance
Company claiming it breached its obligation to provide coverage for damage to their roof and
personal property after a storm. Nationwide moves for partial summary judgment, arguing the
Walshes’ insurance policy does not provide coverage for their personal property damage claim.
For the reasons that follow, the Court denies Nationwide’s motion.
I.

BACKGROUND
A.

Nationwide Denies Full Coverage and the Walshes File Suit

Nationwide issued the Walshes a homeowner’s insurance policy for 8 Christopher Drive,
Philadelphia, Pennsylvania (policy number 5837HO655407 (the “Policy”)). (Def.’s Ex. B., ECF
10-6.) A significant severe thunderstorm and flash flooding event on July 6, 2020 damaged heir
dwelling, personal property, and roof. (See Def.’s Ex. D., ECF 10-8, at 13.) As a result, they
submitted claim number 730714-GK to Nationwide.
On May 13, 2021, Nationwide informed the Walshes it had determined only “a portion” of
their claim was covered under the Policy. (Def.’s Ex. G, ECF 10-11, at ECF p. 2.) According to
Nationwide, the Policy covered “the direct damages sustained to the dwelling as a result of the

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loss” but not “the personal property loss” because Nationwide’s “investigation determined that a
covered peril ha[d] not occurred as required in the policy.” (Id.) More specifically, Nationwide
wrote that its “review showed that water entered the interior of the dwelling as a result of water
which backed up on the flat roof surfaces due to roof drains clogged with debris and entered
through areas which were in poor condition due to wear and tear, deterioration, and lack of
maintenance.” (Id. at ECF p. 6.) It found “no indications of any direct damage to the roof or
exterior of the dwelling as a result of wind.” (Id. (emphasis added))
After Nationwide’s coverage determination, the Walshes filed this breach of contract
action against it for its failure to cover an alleged $147,600 in damage and loss to their personal
property and “over $34,000” for the cost to replace the roof. 1 (Compl., ECF 1, ¶ 6.) Nationwide
0F

now moves for partial summary judgment on the Walshes’ personal property damage claim,
arguing they have not met their burden to prove that the damage “was caused by a covered
enumerated peril under the insurance Policy.” (Def.’s Br., ECF 10-2, at 2.)
B.

The Policy
Coverage C of the Policy provides that Nationwide “cover[s] personal property owned or

used by an insured at the residence premises.” (Def.’s Ex. B at ECF p. 11.) Relevant here, it covers
“accidental direct physical loss to property described in Coverage C caused by the following perils
except for losses excluded under Section I – Property exclusions.” (Id. at ECF p. 17 (emphasis

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The parties submitted the Walshes’ claim pertaining to the dwelling (excluding the roof
and personal property) to appraisal and the amount of loss for the dwelling was determined to be
$363,950.32, less $102,961.74 in depreciation – a total of $260,988.58. (Pls.’ Ex. A, ECF 11-1,
ECF p. 3.) According to the Walshes, Nationwide paid it the amount awarded by the appraisers
and paid $16,800 for the services of two remediation companies. (Pls.’ Resp. to Def.’s Stmt. Of
Undisputed Facts, ECF 11, at ECF p. 3-4, ¶ 2.) Nationwide represents that it has paid the
Walshes $276,846.31 for the dwelling portion of their claim. (Def.’s Br., ECF 10-2, at 1, n.1.)

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added).) The “following perils” include “[w]indstorm or hail” and “[f]alling objects.” Specifically,
under the windstorm or hail peril, the Policy covers “[d]irect loss caused by rain . . . driven through
roof or wall openings made by direct action of wind, hail or other insured peril . . . .” (Id., ¶ 2
(emphasis added).) With respect to “falling objects,” the Policy does not cover loss to “property in
a building, unless the roof or an exterior wall of the building is first damaged by a falling object.”
(Id. ¶ 10(a) (emphasis added).) The Policy does not define “falling,” “objects,” or “falling objects.”
C.

Claimed Storm Damage
On the day of the storm, Christian Trotter, a roofer and general contractor, visited the

Walshes to inspect the flat roof over the rear of their home. (Pls.’ Ex. B, ECF 11-1 at ECF p. 5.)
He observed that “the wind had blown a great deal of tree debris onto [their] roof[,] including
branches and leaves which blocked the roof drains[,] allowing the rain water to pool on the roof at
the drain areas to a height of approximately 12” inches [sic] . . . .” (Id. at ECF p. 10.) In his opinion,
damage to the home was “the direct result of wind during the torrential storm” and windblown
debris “directly caus[ed] damage and openings in the drain seals, roof openings in the
counterflashing along roof walls and at seams[,] allowing rain water to flow through these
openings to the inside of [the] home.” (Id.) Trotter removed drain-blocking debris, allowing
remaining standing water “to be discharged from the roof.” (Id.)
On August 3, 2020, Nationwide’s inspector Johnathon Parsons of Ladder Now inspected
the Property and found “[n]o wind or hail damage” to the roof. (Def.’s Ex. E, ECF 10-9 at 3.) He
also found no tree damage, storm related or otherwise, “on any slope.” (Id.) His report does note
damage “to the roof accessories,” including three of eight “Turbine 12” Aluminum” ventilation
accessories. (Id. at 3-4.)

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The Walshes retained a forensic engineering consultant, William H. Green III, P.E., to
“inspect the premises” at 8 Christopher Drive “and determine the cause of the water damage to the
interior of the home.” (Def.’s Ex. D, ECF 10-8, at 4.) Based on the Walshes’ and contractor’s
observations that “[six inches] of rain fell on” the day of the storm, Green opined that “there was
a huge deadload on the flat roof for an hour” which, “alone would have contributed to stresses on
the roof membrane seams[,] some of which were found open on the side walls and . . . on the flat
roof[,] allowing water to enter where the water level was high.” (Id. at 7.) In his June 30, 2022
report, Green wrote that Jim Walsh “could not prevent debris from collecting on the roof on July
6, 2020 because he was not home when the wind deposited limbs, branches and leaves on the roof”
and the “tree debris restricted drains could not handle the volume” of water that “accumulated in
a flash flood thunderstorm . . . .” (Id.). In Green’s opinion, “[t]he loss did occur as a result of
windblown debris onto the roof which burdened the drains damaging them and the membranes in
which they lay. (Id. at 8.) He concluded that “[t]he cause of loss is wind that blew tree debris onto
this roof well above grade and protected by parapet walls. Flash flood rain could not drain properly
because of wind blown debris and the water infiltrated into the home.” (Id. at 9.) Green explained
that:
[h]igh wind rip[ped] leaves and limbs from high trees and deposited tree debris on
the flat roof. The 4 drains were inundated with debris rendering them ineffective to
carry away the large volume of water from the flash flood rain. High water on the
roof went under the membrane. Water path was over the side wall wrap, and flat
portion of the roof through weakened seams from heavy stretch of the membrane
and once under the membrane flows through roof openings below the membrane.
The clogging from wind driven debris collecting over the drain pots restricted flow.
The depth of water found before clearing the debris covering the drains was 12”
above drains consistent with 6” precipitation in an hour.
The water level on the roof caused openings on the roof, at seams, drains seals [sic]
and counterflashing which allowed water to get under the membrane at seams along
the perimeter of the roof and once water entered under the membrane, it flowed to

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the low point at the drain pots where there are also openings in the roof subfloor for
water to easily flow to the ceilings below where it dispersed to seams and joints and
even to the side walls causing severe damage.
(Id. at 8-9.)
Nationwide also retained an engineer to inspect the Property. (Def.’s Ex. F, ECF 10-10.)
In an April 21, 2021 report and August 5, 2022 supplemental report, Kevin Fischer, P.E. of
National Forensic Consultants opined that rain did not enter the property because wind or hail had
caused any openings in the roof. (Id.) In his initial report, Fischer explained that “four 2-inchdiameter roof drains all showed perimeter patching with dissimilar materials” and described the
“rear roof covering, the finishes and repairs on the parapet walls, the capping on the parapet walls”
as “all older and . . . in general poor condition.” (Id. at ECF p. 5-6.) He wrote that “[t]he scenario
of all drains being clogged and a build-up of storm water occurring on this rear roof and then
leaking into the house is very plausible.” (Id. at ECF p. 6.) He also wrote that it was “more than
likely that the roof leaked as a result of the generally poor condition of the roof, and the back up
of water at the roof drains . . . .” (Id.) Fischer opined that there was “no visible wind and/or hail
damage to the roof or surrounding areas to cause the leaks that occurred” and any leak “into the
house [was] more than likely caused by aged/deteriorated roofing conditions and/or back up of
storm water on the roof due to filled/clogged drains and the absence of proper drain covers.” (Id.
at ECF p. 7.) In his opinion, the “back-up of water would have then tested various potential leak
areas within the roofing system.” (Id.) In Fischer’s supplemental report, prepared after review of
additional documents, he wrote that his “opinions remain unchanged that the water damages [sic]
that occurred within the house were caused by the back-up of storm water on the roof, caused by
clogged roof drains.” (Id. at ECF p. 9.) He saw “no visible wind or storm damages to any parts of
the house or roofing system that caused any openings to allow storm water to enter” and in his

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opinion, “the only cause that allowed leaks to occur were the leaves and debris that clogged the
roof drains.” (Id. at ECF p. 10.)
II.

STANDARD OF REVIEW
Summary judgment is proper if the movant proves that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see also Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). A fact is “material” if
it may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A “genuine dispute” exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. A mere scintilla of evidence supporting
the nonmoving party, however, will not suffice. Id. at 252. Rather, the nonmovant must “set forth
specific facts showing that there is a genuine issue for trial.” Id. at 256.
At summary judgment, a court may consider any material in the record that may be
admissible at trial. See Fed. R. Civ. P. 56(c); Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378,
387-88 & n.13 (3d Cir. 1999). In doing so, a court “must view the facts in the light most favorable
to the nonmoving party and draw all inferences in that party's favor.” Prowel v. Wise Bus. Forms,
579 F.3d 285, 286 (3d Cir. 2009). But it need not credit “[u]nsupported assertions, conclusory
allegations, or mere suspicions.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir.
2010). Nor may a court make credibility determinations or weigh the evidence. See Parkell v.
Danberg, 833 F.3d 313, 323 (3d Cir. 2016).
III.

DISCUSSION
A determination of coverage under an insurance policy is a question of law to be decided

by the court. PECO Energy v. Boden, 64 F.3d 852, 855 (3d Cir.1995). “Ordinarily in insurance
coverage disputes an insured bears the initial burden to make a prima facie showing that a claim

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falls within the policy’s grant of coverage, but if the insured meets that burden, the insurer then
bears the burden of demonstrating that a policy exclusion excuses the insurer from providing
coverage if the insurer contends that it does.” State Farm Fire & Cas. Co. v. Mehlman, 589 F.3d
105 (3d Cir. 2009) (citing Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1446 (3d Cir.1996)
(applying Pennsylvania law)). Courts must construe coverage clauses broadly and exclusions
strictly. Westport Ins. Corp. v. Bayer, 284 F.3d 489, 498 n.7 (3d Cir. 2002) (citing Eichelberger v.
Warner, 434 A.2d 747, 750 (Pa. Super. Ct. 1981)). The Court’s primary aim is “to ascertain the
intent of the parties as manifested by the language of the written instrument.” Standard Venetian
Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983) (citation omitted).
To determine the meaning of an insurance policy provision, the Court must read the policy
as a whole and construe its meaning according to its plain language. Meyer v. CUNA Mut. Ins.
Soc., 648 F.3d 154, 163 (3d Cir. 2011) (citations omitted). If the insurance contract’s language is
unambiguous, the Court will simply apply it; if, however, a provision of the contract is ambiguous,
it is construed against the insurer, the drafter of the agreement. Regents of Mercersburg Coll. v.
Republic Franklin Ins. Co., 458 F.3d 159, 172 (3d Cir.2006) (quoting Hutchison v. Sunbeam Coal
Corp., 519 A.2d 385, 390 (Pa. 1986)).
A.

Windstorm or Hail Peril

Personal property coverage under the Policy is provided on a “named peril” basis. It
provides coverage for sudden direct physical loss to personal property only if the loss is covered
by a specific enumerated peril. Nationwide contends the only named peril which is possibly
applicable to the Walshes’ claim is the “windstorm or hail” peril. (Def.’s Br., ECF 10-2, at 8.)
Under that provision, the Walshes have the initial burden of proving they suffered a “[d]irect loss
caused by rain . . . driven through roof or wall openings made by direct action of wind, hail or

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other insured peril . . . .” (Def.’s Ex. B at ECF p. 17, ¶ 2.) Nationwide argues the Walshes’ loss
was caused by tree debris clogging roof drains, which “is not a direct action of wind causing the
openings in the roof.” (Def.’s Br., ECF 10-2, at 8.)
The court in Weinberg v. Nationwidecasualty & Insurance Co. was not convinced an
identical windstorm or hail provision provided coverage where the plaintiff testified that he “did
not see any path of penetration for the water to come in” to his home. 949 F. Supp. 2d 588, 593
(E.D. Pa. 2013). Instead, the plaintiff’s evidence “suggest[ed] that the water infiltration was not
driven through roof or wall openings made by direct action of wind, hail, or other insured peril,”
as the policy required for coverage. Id. (internal quotation omitted). Similarly, in Smith v. Westfield
Insurance Co., the court held that any interior loss caused by mold or wet rot was excluded under
a policy’s “windstorm or hail peril,” because it was not the “direct result” of a windstorm or hail.
No. 06-3077, 2007 WL 1740816, at *3 (E.D. Pa. June 15, 2007). The policy there stated that the
“windstorm or hail” peril did “not include loss to the property contained in a building caused by
rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing
an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.”
Id.
Upon review of the summary judgment record, the Policy’s windstorm and hail peril does
not require Nationwide to cover damage to the Walshes’ personal property because they have not
shown rain entered their dwelling through openings that were “made by direct action of wind . . . .”
(See Def.’s Ex. B at ECF p. 17, ¶ 2.) There is no evidence that the storm caused any debris to
puncture the roof or roof membranes. Instead, water entered the property after tree debris
accumulated and clogged their roof drains. As Trotter explained, tree debris “blocked the roof
drains” and the blockage allowed “rain water to pool on the roof . . . .” (Pls.’ Ex. B, ECF 11-1 at

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ECF p. 5.) Only then did the seams in the roof open, allowing rain to enter inside the house. Wind
did not immediately—i.e., directly—cause the loss to the Walshes’ personal property. Likewise,
Green opined that the six inches of rain that fell on the day of the storm created “a huge deadload
on the flat roof for an hour” which, “alone would have contributed to stresses on the roof membrane
seams[,] . . . allowing water to enter where the water level was high.” (Def.’s Ex. D, ECF 10-8, at
7.) He explained that “[t]he water level on the roof caused openings on the roof, at seams, drains
seals [sic] and counterflashing which allowed water to get under the membrane at seams along the
perimeter of the roof . . . .” (Id. at 9.)
The Walshes have not set forth enough evidence to permit a reasonable factfinder to
conclude that the openings in the roof were created by the direct action of wind. However, the
Court’s analysis does not end with this peril.
B.

Falling Objects Peril

The Walshes also contend Nationwide breached its obligation to provide coverage for
personal property damage pursuant to the Policy’s “falling objects” peril, which provides coverage
when “the roof or an exterior wall of the building is first damaged by a falling object.” (Pl.’s Mem.,
ECF 11 at ECF p. 26-30; Def.’s Ex. B at ECF p. 17, ¶ 10(a).) Nationwide’s Motion does not
address the implications of the falling objects peril and it filed no reply to the Walshes’ response
to its Motion. As the Walshes point out, Nationwide’s coverage denial letter appears to have
“overlooked the peril of falling objects,” because, although the letter lists the peril, it does not
address it when explaining the coverage denial. (Id. at ECF p. 29-30.) Nationwide only explained
it was denying coverage because “[t]here were no indications of any direct damage to the roof or
exterior of the dwelling as a result of wind.” (Id. at 30.)

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The Walshes argue that the “common sense meanings” of “the everyday terms of falling
and objects and falling objects” lead to the reasonable conclusion that tree limbs, tree debris, and
rain fell on their roof and constitute “falling objects which damaged” their roof. (Pl.’s Mem., ECF
11, at ECF p. 28.) They contend this peril does not “require that the falling object(s) cause an
opening or any other particular type of damage” and maintain that a factfinder could reasonably
find that [their] personal property is covered because of damage to their roof caused by falling
objects whether those objects are tree limbs, tree debris, or rain drops . . . .” (Id. at ECF p. 29.)
Nationwide offers no argument in response.
The Walshes have set forth enough evidence to make a prima facie showing that their claim
falls within the Policy’s grant of coverage under the falling objects peril. Trotter explained that
windblown debris “directly caus[ed] damage and openings in the drain seals, roof openings in the
counterflashing along roof walls and at seams[,] allowing rain water to flow through these
openings to the inside of [the] home.” (Pls.’ Ex. B, at ECF p. 10.) Green explained that “[h]igh
wind rip[ped] leaves and limbs from high trees and deposited tree debris on the flat roof” and
attributed the Walshes’ loss to “windblown debris” on the roof “which burdened the drains
damaging them and the membranes in which they lay.” (Def.’s Ex. D at 8.) Indeed, Nationwide’s
own expert Fischer believed “[t]he scenario of all drains being clogged and a build-up of storm
water occurring on this rear roof and then leaking into the house is very plausible.” (Def.’s Ex. F
at ECF p. 6.) In his opinion, “the leaves and debris that clogged the roof drains” were “the only
cause that allowed leaks to occur . . . .” (Id. at ECF p. 10.) Nationwide offers nothing to counter
the evidence that falling tree debris damaged the seams on the Walshes’ flat roof. It is not entitled
to partial summary judgment with respect to the Walshes’ claim for breach of contract as to their

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personal property damage claim because it has not met its burden to demonstrate that it is excused
from providing coverage under the falling objects peril.
An Order consistent with this Memorandum will be docketed separately.

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