Pennsylvania Record

Wednesday, September 18, 2019

Superior Court reverses trial court's grant of summary judgment against Nationwide Insurance

By Nicholas Malfitano | Sep 29, 2016

HARRISBURG – Judges from the Superior Court of Pennsylvania earlier this year reversed an order granting summary judgment against Nationwide Mutual Fire Insurance Company on breach of contract and negligence claims.

Judge Sallie Updyke Mundy (now serving with the Supreme Court of Pennsylvania) authored the Superior Court’s opinion on July 8 reversing the decision of the Monroe County Court of Common Pleas in Nationwide’s case against Modern Gas. Nationwide acted as the subrogee of Ronald Strunk in this matter.

“Nationwide provided a fire and commercial general liability insurance policy to Strunk. The policy insured Strunk’s commercial real estate building. Strunk leased the first floor of the building to Mike Coppola, who operated his restaurant, Coppola’s Pizzeria, in the space. The pizzeria contained two pizza ovens, which ran on liquid propane,” Mundy said.

On Aug. 31, 2009, Modern Gas serviced the pizza ovens, because the oven did not turn on when the pilot was lit. Modern Gas cleaned the pilot and adjusted the thermocouple. Records indicate they returned the following day to service the oven again because a “fireball came out of it.”

On Sept. 28, 2009, a fire started in the pizzeria, caused by a malfunction of the gas pizza ovens. The fire caused damages in the amount of $158,811.03. According to Nationwide’s insurance policy, they covered the loss and paid those damages to Strunk.

But on July 29, 2011, Nationwide brought the instant subrogation action against Modern Gas, seeking to recover the $158,811.03 it paid to Strunk.

“Nationwide’s complaint contained two counts, one for breach of contract, and one for negligence. Relevant to this appeal, the complaint averred that Modern Gas was negligent in various ways, including failing to inspect the oven, improperly repairing the oven, and failing to perform a leak test [on the pilot valve] after it completed the repairs,” Mundy said.

Nationwide retained an expert an engineering consultant named Michael Zazula to examine the oven on four occasions, in October and December 2009 and March and April 2015.

Zazula found “the pilot valve for the top oven was open, allowing gas to flow through the pilot, regardless of whether or not there was a flame present on the thermocouple” – and concluded “Modern Gas’s failure to properly conduct a leak test consistent with the National Fire Protection Association [NFPA] 54 standard, is the primary cause of the incident.”

“Further, Zazula opined that ‘had Modern Gas complied and followed the NFPA 54 standard, they would have detected the leak from the pilot valve and would have averted this incident,” Mundy said.

After Modern Gas filed a motion for summary judgment in July 2015 on the breach of contract and negligence claims, the Monroe County Court of Common Pleas granted the motion the following month. Nationwide appealed four weeks later.

“Here, the trial court granted summary judgment in favor of Modern Gas because it reasoned that Nationwide did not establish that Modern Gas’s failure to conduct a leak test was the proximate cause of the explosion and fire. In reaching its conclusion, the trial court refused to defer to the expert report of Zazula, presented by the non-moving party,” Mundy stated.

The Superior Court disagreed with that rationale in its own assessment, ruling the trial court “improperly usurped the role of the jury by evaluating the evidence to decide the motion for summary judgment.”

“Here, the trial court erred in assessing the credibility of the expert report and concluding it carried no weight,” Mundy said. “The trial court found that a reasonable jury could not conclude the screw was present in the pilot valve at the time of Modern Gas’s service call on Sept. 1, 2009 because of the time that elapsed between that date and the Sept. 28, 2009 explosion.”

“Zazula’s report concludes that the screw was in the pilot valve on Sept. 1 and the open pilot valve caused the Sept. 28 explosion. Accordingly, there is evidence in the record that would allow a jury to render a verdict in favor of Nationwide, and the trial court erred in concluding that the jury could not find proximate causation as a matter of law,” Mundy added.

Mundy’s opinion reversed the trial court’s order and remanded the case.

“For these reasons, we conclude that the trial court erred in granting summary judgment. Consequently, we reverse the Aug. 19, 2015 order granting summary judgment and remand for further proceedings consistent with this opinion,” Mundy stated.

Superior Court of Pennsylvania case 2953 EDA 2015

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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