SUPERIOR COURT FINDS INSURERS CAN BE LIABLE IN NEGLIGENCE FOR ACTS OF AGENTS AND CONTRACTORS UNDER RESTATEMENT 323 AND 324A FOR ASSUMING DUTIES NOT OTHERWISE FOUND IN CONTRACT (Superior Court of Pennsylvania – not precedential)

Last year, in Bruno v. Erie Insurance Company, Pennsylvania’s Supreme Court upheld the potential for negligence claims against an insurer, separate from the insurance contract, for the acts of its adjustor and engineering expert which occurred during the claims handling process. The insurer had a contractual duty to investigate and pay for certain mold claims, but the insureds alleged that these individuals went beyond the contract in giving the homeowner insureds gratuitous safety advice on whether or not any dangerous mold was actually present. The insureds stayed in the home based on this advice, allegedly leading to the death of one of the insureds. Thus, the gist of the action doctrine was inapplicable since the claim was not rooted in the contract.

On remand, the Superior Court had to decide whether this negligence claim, separate from the breach of contract claim, stated a cause of action under Pennsylvania law.  The intermediate appellate court found that it did.  The court found claims stated under both Restatement (Second) of Torts § 323, “negligent performance of undertaking to render services” and section 324A, “liability to third person for negligent performance of undertaking”.

The insureds had “pleaded that (through its agent) [the insurer]: voluntarily ‘undertook to render services to’ [the husband insured] (since [it] voluntarily and affirmatively took on the duty to advise [him] ‘regarding the toxicity of the mold and affirmatively recommending to [the insureds] that they continue their renovation efforts’); [the insurer] should have ‘recognize[d] [that the services were] necessary for the protection of’ [the insured]and his family (since the advice was voluntarily rendered by individuals who were hired to analyze the homeowners’ mold, given to the layperson homeowners, and concerned an alleged toxic substance in their home); [the insurer] allegedly failed to exercise reasonable care when it provided the advice; and, [the insureds] suffered physical harm as a result of [the insurer’s] breach (in that [the insurer’s] alleged ‘failure to exercise [reasonable] care increase[d] the risk of [the insureds’] harm’ and ‘the harm [the insureds] suffered [was because of their] reliance upon [the insurer’s] undertaking.’”

Date of Decision: July 22, 2015

Bruno v. Erie Insurance Company, No. 1154 WDA 2011, 2015 Pa. Super. Unpub. LEXIS 2308 (Pa. Super. Ct. July 22, 2015) (Bowes, Olson, Platt, JJ.) (non precedential)