MEDIA – After the parents of a 13-year-old child who drowned at Folcroft Swim Club more than two years ago filed a wrongful death lawsuit against the facility, the swim club is lodged in another litigation brought by its insurance carrier, over whether the insurer has a responsibility to provide coverage in this matter.
Lola Ruff of Sharon Hill and Lyndell Westbrook of Philadelphia (as Co-Administrators of the Estate of K.R., minor, deceased, in her own right and on behalf of said decedent’s next-of-kin and heirs-at-law) initially filed suit in the Delaware County Court of Common Pleas on Aug. 6, 2021 versus Folcroft Swim Club and Folcroft Swim Club, Inc. of Folcroft and John Does 1-2.
The suit alleged for a significant time prior to Aug. 21, 2019, defendants Swim Club and John Does 1-2 knew or should have known that its pool was likely to be accessed and was being accessed by minors unattended due to a defective perimeter, and that such access would cause a serious risk of death from drowning.
Prior to Aug. 21, 2019, defendant Swim Club and John Does 1-2’s measure to prevent minors from gaining access to the premises pool when closed and prevent drowning accidents of minors, was to install a fence around the premises’ pool and/or have proper security measures put into place.
However, the suit added that the fence was permitted to deteriorate and lose its efficiency for its intended purpose.
“According to the police report, on or about Aug. 21, 2019, minor decedent, K.R., and three additional minors, all proceeded to defendants Swim Club, John Doe 1 and John Doe 2, premises with the intention gain access to the pool. According to the police report, upon arrival at premises, the four minors were able to gain entry through a gate by maneuvering the space between the gate and fitting their bodies through. Upon information and belief there are a multitude of areas of crippled, dilapidated, broken, unkempt and/or otherwise defective fencing surrounding the perimeter of the pool, which would allow for easy access,” the suit said.
The plaintiff claimed that the defendants “knew or should have known that the property’s fence where the four minors were able to gain entry onto the premises, was in such a defective and unsecured condition that it allowed children to maneuver their bodies through to gain entry.”
“According to the Medical Examiner’s Report, all four minors began to jump into the premises’ pool and decedent K.R. jumped from the high dive board into the 12’ deep area of the pool, then one or more of the minors, jumped directly on top of decedent, K.R., which caused him to begin to sink to the bottom of the 12’ deep area of the pool. When the minors noticed that decedent K.R., was not moving and sinking to the bottom, began to run away and head to their respective homes,” the suit stated.
“According to the Medical Examiner’s Report, one or more of the minors, realizing what had happened, decided to call 911. According to the Police Report, Decedent, K.R., was recovered by authorities/EMS from the premises’ pool and pronounced dead after an unsuccessful resuscitative attempt effort. As a result of the negligent and carelessness conduct of the defendants, decedent K.R., came to his demise on August 21, 2019, at the age of 13.”
Folcroft Swim Club filed an answer to the complaint with new matter on Sept. 3, denying the plaintiffs’ allegations of negligence leading to K.R.’s tragic death and their case in its entirety.
“Plaintiffs fail to state a cause of action upon which relief can be granted and may lack standing to bring claims on behalf of plaintiffs’ decedent. The applicable statute of limitations may have expired. Answering defendants caused no injuries or damage to plaintiff or plaintiffs’ decedent, and any injury or damage allegedly sustained by the plaintiff or plaintiffs’ decedent may have been caused by a party other than answering defendants and not within the control of answering defendants. Answering defendants did not commit any act or omission proximately causing injuries and/or damages to plaintiffs’ decedent,” the answer’s new matter stated, in part.
“Answering defendants owed no duty and breached no duty to the plaintiffs’ decedent and acted reasonably, properly, and in good faith at all times relevant hereto. Answering defendants were not negligent, careless, reckless or wanton at any time material hereto. Plaintiffs’ decedent was contributorily negligent and/or comparatively negligent; accordingly, his injuries and/or damages are limited or prohibited by the Pennsylvania Comparative Negligent Act. Plaintiffs’ claims may be barred and/or limited by the application of the Pennsylvania Comparative Negligence Act.”
Among other defenses, the new matter added that the plaintiff cannot recover punitive damages because no conduct of the answering defendant rose to the level permitting a punitive award, and because an award of punitive damages would be contrary to the rights of the answering defendant under the U.S. Constitution and the Pennsylvania Constitution.
Penn Patriot Insurance Company filed new litigation in the matter against all of the parties in the underlying case on Oct. 8, 2021, levying claims that its insurance policy issued to Folcroft Swim Club had conditional exclusions for swimming pools. Specifically, ones that do not comply with any applicable federal, state or local legal or regulatory safety requirements.
It added that the club was on notice that its security measures to prevent unauthorized access to the pool were inadequate and that its insurance policy had no coverage for punitive damages.
“The Penn-Patriot Policy also contains an exclusion titled ‘Swimming Pool Conditional Exclusion’ written on Form EPA-1704. That exclusion provides that: ‘Bodily injury’, ‘property damage’, ‘personal and advertising injury’ or medical payments arising out of, caused by or attributable to, whether in whole or in part, the failure to: 1) Comply with any applicable federal, state or local legal or regulatory safety requirements; or 2) Maintain any required safety device, including but not limited to fencing, gates, doors, and drains, in proper working order,” the lawsuit says.
“There is no punitive damages coverage under the Penn-Patriot Policy because the conduct alleged in the underlying action against Folcroft and Folcroft, Inc. are excluded under the Swimming Pool Exclusion.”
The insurance company wants a declaratory judgment that it has no duty to defend or indemnify Folcroft Swim Club in this matter.
Defendants Ruff and Westbrook filed an answer in the insurance case on April 18. This answer substantively denied plaintiff Penn-Patriot’s claims in this matter.
“The defendants are without knowledge or information sufficient to form a belief as to the truth of the averments. Strict proof thereof is demanded at trial, if relevant. By way of further response, the policy is a document in writing which speaks for itself and the description of terms and provisions in the policy at issue are denied. Upon information and belief, the policy at issue provides coverage for the losses claimed in the underlying action,” per the answer.
“Upon information and belief, it is denied that plaintiff has no duty to provide coverage for all claims in the underlying action. It is also denied that any provision of the policy excludes coverage in the underlying action. The policy is a document in writing which speaks for itself. Upon information and belief, the policy at issue provides coverage for the losses claimed in the underlying action and that no provisions of the policy exclude coverage.”
UPDATE
In a May 13 answer to the complaint, the Folcroft defendants denied the plaintiff’s claims.
“The complaint in the present action fails to state a cause of action upon which relief may be predicated. The declaratory judgment complaint fails to name all necessary and interested parties; therefore, the declaratory judgment complaint should be dismissed. At all times material hereto, Penn-Patriot acted through Fanelli, Harley, Harper & Associates, Ltd. and its agents, servants, workmen and employees. At all times material hereto, FHH, its agents, servants, workmen and employees act on behalf of Penn-Patriot obtaining and securing a Comprehensive General Policy for Folcroft in order to provide all necessary protection for Folcroft’s business operations. Penn-Patriot issued a Comprehensive General Liability Policy to the defendant, Folcroft,” the answer’s new matter stated.
“The Comprehensive General Liability Policy issued by Penn-Patriot to the defendant, Folcroft, was in full force and effect at the time of the losses occurring and referenced in the underlying action. The defendant, Folcroft, is in the business of operating a swimming pool. Penn-Patriot knew, or should have known, in issuing the Comprehensive General Liability Policy to the defendant, Folcroft, that the business of the defendant, Folcroft, was owning and operating a swimming pool and attendant operations. Despite representing to the defendant, Folcroft, that the Comprehensive General Liability Policy provided Commercial General Liability Coverage for the usual and customary business operations of the defendant, Folcroft, the plaintiff, Penn-Patriot, included a swimming pool exclusion in the Comprehensive General Liability Policy, unbeknownst to the defendant, Folcroft. The defendant, Folcroft, obtained a Comprehensive General Liability Policy from Penn-Patriot in order to have liability coverage for its usual and customary business operations, namely, owning and operating a swimming pool. Penn-Patriot is required to defend and indemnify the defendant, Folcroft, in the underlying action.”
In a June 2 reply to the new matter, Penn Patriot countered the Folcroft parties’ new matter.
“Penn-Patriot denies that the present action should be stayed pending the resolution of the underlying action. It is further denied that the litigation of the duty to indemnify in the present case would ‘necessarily involve a determination as to the condition of the fencing surround the pool.’ Under Pennsylvania law, Penn-Patriot can assert its right to not defend and/or indemnify Folcroft based upon the allegations in the underlying complaint, which Penn-Patriot did here,” per the reply, in part.
In the underlying case, for counts of negligence, survival and wrongful death, the plaintiffs are seeking, jointly, severally and/or separately, damages in excess of $50,000, including punitive damages each, upon these counts.
The plaintiffs are represented by Anthony L. Miscioscia and Jake P. Etienne of White & Williams, in Philadelphia.
The defendants are represented by Michael F. Barrett, Joseph G. DeAngelo and Michael Mongeluzzi of Barrett DeAngelo in West Chester, plus Andrew J. Spaulding and Ashley S. Johnson of Fowler Hirtzel McNulty & Spaulding, in Philadelphia.
Delaware County Court of Common Pleas cases CV-2021-008547 & CV-2021-006757
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com