Frantz v. Nationwide Insurance Company et al

Filing 45

MEMORANDUM (Order to follow as separate docket entry) re 39 MOTION for Summary Judgment filed by Nationwide Insurance Company, Nationwide Insurance, Nationwide Mutual Fire Insurance Company Signed by Magistrate Judge Joseph F. Saporito, Jr on 5/19/21. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DAVID FRANTZ, Individually
And as Guardian and Parent of
M.F., a Minor,

CIVIL ACTION NO. 3:18-cv-00509

Plaintiff,
v.

(SAPORITO, M.J.)

NATIONWIDE INSURANCE
COMPANY, et al.,
Defendant.
MEMORANDUM
This is a diversity action by an insured against his homeowner
insurer for breach of contract and negligent misrepresentation. 1 This
action was commenced by the filing of a writ of summons in the Court of
Common Pleas of Monroe County, Pennsylvania, on November 1, 2017.
Thereafter, on February 2, 2018, the plaintiff filed the complaint. The
defendant, Nationwide Mutual Fire Insurance Company (“Nationwide”),2

The court dismissed a bad faith count with prejudice. (Doc. 17).
The original complaint also named “Nationwide Insurance” and
“Nationwide Insurance Company” as separate defendants. In its answer
and other papers, the defendant has stated that the policy at issue was
issued by Nationwide Mutual Fire Insurance Company, the only proper

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2

timely removed this case to this court on March 2, 2018. (Doc. 1). This
matter was assigned to the undersigned United States magistrate judge
upon consent of the parties.

The defendant moved for summary

judgment. (Doc. 39). It filed a statement of material facts and brief in
support of the motion. (Doc. 39-2; Doc. 40). The plaintiffs filed a response
to the statement of material facts and brief in opposition to the motion.
(Doc. 41; Doc. 42). The defendant filed a reply brief and a reply to
plaintiffs’ statement of additional facts. (Doc. 43; Doc. 44). For the
reasons set forth below, we will grant the motion.
I.

Statement of Facts
This action arises out of an accident on November 1, 2013, when the

plaintiff, M.F., an 8-or 9-year old minor (Doc. 39-3, at 11), was injured
while operating an all-terrain vehicle (the “ATV”), which was struck by a
vehicle on a state road adjacent to the property owned by his father, the
plaintiff David Frantz. The accident occurred in the eastbound lane of
Molasses Valley Road, Kunkletown, Pennsylvania.

As M.F. left the

defendant and that the complaint incorrectly names “Nationwide
Insurance” and “Nationwide Insurance Company” as defendants. This
representation does not appear to be in dispute so we refer to
“Nationwide” as the sole defendant in this opinion.
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Frantz property heading in a northerly direction on Molasses Valley
Road, he was struck by a motor vehicle, throwing him from the ATV and
resulting in injuries. 3
At the time of the accident, Frantz had in effect a homeowners
insurance policy that was purchased from Nationwide for the Frantz
property located at 974 Molasses Valley Road.

At the time of the

accident, Frantz and M.F. resided at the insured property. The policy
provided coverage

for personal injury, property damage, and bodily

injury up to $300,000.

Following the accident, Frantz notified

Nationwide of M.F.’s injuries. Nationwide denied the claim four years
later, on March 6, 2018.
Frantz was deposed by Nationwide’s counsel on October 8, 2020,
and prior to his deposition, he contends that he also made a declaration
dated March 1, 2020. 4 (Doc. 39-3; Doc. 41-4). In his declaration, Frantz

At his deposition, Frantz testified that a claim on behalf of his son
was made against the operator of the other vehicle and it settled for
$12,000 or $15,000. (Doc. 39-3, at 20).

3

Nationwide maintains that the declaration “was not previously
provided to Defendants.” (Doc. 43, at 8). Further, Nationwide objects to
the declaration under Fed. R. Civ. P. 56 (c)(2) because the plaintiff refers
to it as an “affidavit” without notarization. However, Fed. R. Civ. P. 56
(c)(4) permits the use of an “affidavit or declaration” to oppose a motion
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asserts that when he went to obtain insurance for his home, he told Mr.
Nagey of the Nagey Insurance Agency and the women working in his
office that he and his family were ATV users and he wanted insurance
coverage for ATV use on his property and in the areas around his
property. (Doc. 41-4 ¶¶ 5-6). In his deposition, Frantz testified that he
“never met a guy,” rather, he met with a woman, but he could not
remember her name. (Doc. 39-3, at 21).
In his declaration, Frantz stated that he expected that he and his
family had insurance coverage for ATV use on his property and in the
areas surrounding his house. (Doc. 41-4 ¶ 6). In his deposition, Frantz
testified as follows:
Q.

Is there some coverage that you expected to
receive from Nationwide that you did not get
as a result of the November 1st, 2013
accident?

A.

I’m not sure, I never really read the policies.

“made on personal knowledge, set out facts that would be admissible in
evidence, and show that the . . . declarant is competent to testify on the
matters stated.” The comment to the 2010 Amendment states: “A formal
affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn
declaration, certificate, verification, or statement subscribed in proper
form as true under penalty of perjury to substitute for an affidavit.” Fed.
R. Civ. P. 56(c) advisory committee notes (2010). We find that the
declaration complies with Rule 56 (c)(4).
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Q.

As we sit here today, is there something you
think that they should pay for that they
didn’t pay for?

A.

I’m not sure. You know what I mean? I’m
not sure. I don’t even know why I’m here.

(Doc. 39-3, at 24).
II.

Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “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). A fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of material fact is “genuine” only if the evidence “is such
that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all
inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell
Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The

party

seeking

summary

judgment

“bears the

initial

responsibility of informing the district court of the basis for its motion,”
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and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported
by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52. Thus, in evaluating a motion for summary judgment, the Court
must first determine if the moving party has made a prima facie showing
that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex,
477 U.S. at 331. Only once that prima facie showing has been made does
the burden shift to the nonmoving party to demonstrate the existence of
a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331.
Both parties may cite to “particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory answers or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant
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or declarant is competent to testify on the matters stated.” Fed. R. Civ.
P. 56(c)(4). “Although evidence may be considered in a form which is
inadmissible at trial, the content of the evidence must be capable of
admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at trial).
III. Discussion
A. Breach of Contract
Count I of the amended complaint asserts a breach of contract cause
of action. The elements necessary to plead a breach of contract claim
under Pennsylvania law are: “(1) the existence of a contract, including
its essential terms[;] (2) a breach of the contract; and, (3) resultant
damages.” Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law
Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citing
J.F. Walker Co. v. Excalibur Oil Grp. Inc., 792 A.2d 1269, 1272 (Pa.
Super. Ct. 2002)). It is undisputed that the express language of the policy
does not afford coverage to Frantz or M.F. (Doc. 16, at 4-5.) Nevertheless,
the plaintiffs maintain that they have a viable breach of contract claim
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based upon the “reasonable expectations” doctrine.

This doctrine

provides that “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.” Downey v. First Indem. Ins., 214 F.
Supp. 3d 414, 424 (E.D. Pa. 2016) (citing 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. Ct. 2007)). The
reasonable expectations doctrine has been described by the Third Circuit
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
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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).
Here, the plaintiffs contend that Frantz sought insurance coverage
for ATV use by him and his family on his property and in the area
surrounding his rural home from Nationwide through the Nagey
Insurance Agency. In their brief in opposition to the motion for summary
judgment, the plaintiffs point to a meeting that Frantz had with
individuals working for Nationwide at the insurance agency where he
allegedly informed them that he wanted to increase coverage to include
the use of ATVs by him and his family. (Doc. 42, at 2-5.).
Frantz submitted a declaration dated March 1, 2020, in support of
his position.

The declaration is conclusory, self-serving, and

contradictory of his later deposition testimony. Frantz stated in the
declaration that when he obtained insurance for his home and his cars,
he “expected that my family and I had insurance coverage for ATV use
on my property and in the areas around my house.” (Doc. 41-4 ¶6.)
Conclusory, self-serving affidavits are insufficient to withstand a motion
for summary judgment. United States v. Commander, 734 Fed. App’x
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824, 831 (3d Cir. 2018). Further, the declaration is inconsistent with
Frantz’s deposition testimony. For example, in his declaration, Frantz
stated that he “told Mr. Nag[e]y and the women working at his office both
me and my family were ATV users and that I wanted insurance coverage
for our ATV use.” (Doc. 41-4 ¶5.) At his deposition taken on October 8,
2020, Frantz testified that, at an unspecified time before the accident, he
had a conversation with “the girls that were in [the office] all the time”
about his ownership of a four-wheeler and he “wondered” whether it was
covered under “homeowner’s” or “car insurance.” (Doc. 39-3, at 22-23.)
In response to that inquiry, he testified that “I think they said
homeowner’s should cover anything if you had an accident on the
property or anything.” (Id. at 23) (emphasis added). In addition, Frantz
testified that he never “met a guy,” rather, he met with a woman whose
name he could not remember. (Id. at 20.) Frantz also testified as follows:
Q.

Did you have any other conversation
about the use of ATVs?

A.

We didn’t discuss too much. I was just
wondering if it was covered. Back then
I had – about a year or two I had gotten
a four-wheeler. I didn’t have the
license or nothing because I kept it on
the property.
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Q.

And you don’t remember the name of
the person you spoke with?

A.

No. There were a couple different
women in there. I don’t remember
them anymore.

Q.

And I believe they told you the
homeowner’s should cover anything if
you had an accident on the property. Is
that what they told you?

A.

Pretty much.
Homeowner’s would
cover it, not your car insurance.

(Id. at 23-24 (emphasis added)). As set out above, when asked during his
deposition if there was some coverage that Frantz expected to receive
from Nationwide that he did not get as a result of the November 1, 2013,
accident, his response was “I’m not sure, I never really read the policies.”
(Id. at 24.) He further stated that “I don’t even know why I’m here [at
his deposition].”

(Id.)

Neither the deposition testimony, nor the

declaration identifies which coverage Frantz expected to receive from
Nationwide.
The policy, as written, is consistent with what Frantz claims that
the representatives of the Nagey Insurance Agency informed him-- i.e.,
that accidents involving the use of an ATV on his property were covered.
Specifically, the policy includes coverage for ATV use while on an insured
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location. On page H1 of the policy, the exclusion related to personal
liability and medical payments to others related to the use of a motor
vehicle does not apply to “a vehicle owned by an insured and designed for
recreation off public roads while on an insured location.” (Doc. 39-5, at
28) (emphasis added).
In addition, the amended complaint seeks damages in an amount
in excess of $100,000 for the defendant’s alleged failure to “provide
sufficient funds to compensate M.F. for his bodily injuries and David
Frantz for the losses” and for its failure to “properly pay the policy limits
for the plaintiff’s and M.F.’s severe and permanent bodily injuries.” (Doc.
9, at 5.) The amended complaint does not identify a contractual right
under the policy to receive any sum for M.F.’s injuries or Frantz’s losses.
At his deposition, Frantz testified as follows:
Q.

As we sit here today, is there something you
think that they [Nationwide] should pay for
that they didn’t pay for?

A.

I’m not sure. You know what I mean? I’m
not sure. I don’t even know why I’m here.

(Doc. 39-3, at 24) (emphasis added). Thus, we find that the plaintiffs
have failed to produce any facts, supported by the record, which

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demonstrate that “the evidence presents a sufficient disagreement to
require submission to the jury.” Anderson, 477 U.S. at 251–52.
B. Negligent Misrepresentation
In count II of the amended complaint, the plaintiffs assert a cause
of action for negligent misrepresentation. The elements of a negligent
misrepresentation claim are: “(1) a misrepresentation of material fact; (2)
made under circumstances in which the misrepresenter ought to have
known its falsity; (3) with an intent to induce another to act on it; and (4)
which results in injury to a party acting in justifiable reliance on the
misrepresentation.” Bilt-Rite Contractors, Inc. v. Architectural Studio,
866 A.2d 270, 277 (Pa. 2005).
Here, despite Frantz’s self-serving affidavit where he stated that he
“expected” that he had coverage for the use of an ATV on his property
and in the areas around his house, Frantz confirmed at his deposition
that he was informed by a representative of the Nagey Insurance Agency
that his homeowner’s policy would cover accidents involving the use of an
ATV if the accident occurred on the property. His deposition testimony
is contrary to his declaration in that he testified that he “wondered”
whether the use of a four-wheeler was covered under his homeowner’s
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policy or his car insurance policy. He was advised that the use of an ATV
was covered if the accident occurred on his property.

It is undisputed

that the accident related to this action did not occur on Frantz’s property.
Under these circumstances, as with the breach of contract count, we find
that the plaintiffs have failed to produce any facts, supported by the
record, which demonstrate that the matter should be submitted to a jury.
C. Statute of Limitations Defense
Considering our decision above, it is not necessary to address the
statute of limitations argument made by the defendants.
IV.

Conclusion
For the foregoing reasons, the defendant’s motion for summary

judgment will be granted.
An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge
Dated: May 19, 2021

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