Smerdon v. GEICO Cas. Co.

342 F.Supp.3d 582

Brenda G. SMERDON and Rene L. Spaulding, Her Wife, Plaintiffs,

v.GEICO CASUALTY COMPANY, Defendant.

No. 4:16-CV-02122

United States District Court, M.D. Pennsylvania.

Signed September 21, 2018

Robert B. Elion, Elion Law, Williamsport, PA, for Plaintiffs.

Joseph A. Hudock, Jr., Summers McDonnell Hudock Guthrie & Skeel, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

Matthew W. Brann, United States District JudgeThere are two motions pending before the Court. The first, a Motion for Summary Judgment filed by defendant GEICO Casualty Company ("GEICO"), will be granted in part and denied in part. The second, a Motion for Partial Summary Judgment by plaintiffs Brenda G. Smerdon and Rene L. Spaulding, will be granted.

I. BACKGROUND

On April 30, 2016, Ms. Smerdon was shopping at Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash from a customer service employee.¹ Ms. Smerdon and several others chased the robber out to the parking lot.² The robber ran toward his car which he had left running.³

Surveillance footage shows between five and six individuals chasing the robber as he approached his vehicle.⁴ Two individuals among the several in pursuit caught up with the robber as he attempted to enter his vehicle.⁵ According to their deposition testimony, one individual lunged toward the robber's legs while the other grabbed the robber's head and torso.⁶ While these individuals scuffled with the robber, Ms. Smerdon arrived at the passenger side of the vehicle, opened the door, and attempted to remove the keys from the ignition.⁷

One witness states Ms. Smerdon entered the vehicle while it was still in park.⁸ As the robber put the vehicle in drive and stepped on the gas, Ms. Smerdon was badly injured by his car.⁹ She was life-flighted to a nearby hospital and suffered serious injuries, including a skull fracture, a traumatic brain injury, and injuries to her right knee, right thigh, right ankle and left shoulder.¹⁰

Ms. Smerdon has no recollection of the incident.¹¹ In an affidavit she states that she did not know the identity of the robber, did not know that he had a stolen car, and did not know she would be run over by him in attempting to thwart his getaway.¹²

At the time of the incident, Ms. Smerdon was insured by an auto insurance policy with GEICO that contained an uninsured motorist amendment.¹³ Under that amendment, GEICO must pay certain damages that Ms. Smerdon would be "legally entitled to recover" from the operator of uninsured motor vehicle.¹⁴ The robber was naturally uninsured at the time of the incident.¹⁵

Ms. Smerdon filed a claim with GEICO seeking to recover uninsured motorist benefits.¹⁶ As discussions between GEICO and Ms. Smerdon ensued, GEICO maintained it need not indemnify Ms. Smerdon under the uninsured motorist policy, arguing she is not legally entitled to recover damages from the robber because she voluntarily assumed the risk of her injuries.¹⁷

Ms. Smerdon filed a two-count complaint against GEICO in the Tioga County Court of Common Pleas alleging breach of contract and bad faith.¹⁸ Under the breach of contract claim, she seeks a declaratory judgment requiring GEICO to cover her uninsured motorist claim.¹⁹ Under the bad faith claim, she seeks attorney's fees, costs, and punitive damages arguing GEICO's handling of her claim amounted to bad faith under 2 Pa.C.S.A. § 8371.²⁰

GEICO removed the case to the Middle District of Pennsylvania.²¹ In its answer, GEICO raised assumption of the risk as an affirmative defense.²² Currently pending before the Court are GEICO and Ms. Smerdon's cross-motions for partial summary judgment. GEICO seeks summary judgment on both the breach of contract claim and bad faith claim.²³ Ms. Smerdon seeks partial summary judgment as to GEICO's use of assumption of the risk as an affirmative defense.²⁴

II. DISCUSSION

A. Standard of Review

Summary judgment is granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."²⁵ A dispute is "genuine if a reasonable trier-of-fact could find in favor of the non-movant," and "material if it could affect the outcome of the case."²⁶ To defeat a motion for summary judgment, then, the nonmoving party must point to evidence in the record that would allow a jury to rule in that party's favor.²⁷ When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the non-moving party.²⁸ The same principles apply to cross-motions for summary judgment.²⁹ The court considers each motion independently and is not obligated to grant summary judgment for either party.³⁰

B. Assumption of the Risk

GEICO and Ms. Smerdon dispute whether the assumption of the risk doctrine as a matter of law bars Ms. Smerdon's recovery. GEICO argues that, because Ms. Smerdon voluntarily assumed the risk of her injury, she is not "legally entitled to recover" from the robber, and therefore, GEICO has no obligation to indemnify her under the uninsured motorist amendment.³¹ Ms. Smerdon contends that GEICO has not satisfied each element of assumption of the risk as an affirmative defense, and thus has breached the insurance contract by refusing to cover her uninsured motorist claim.³²

When adjudicating a state law claim pursuant to its diversity jurisdiction, a federal court applies the substantive law of the forum state³³ —here, Pennsylvania. Although disfavored and narrowly applied, assumption of the risk remains a viable affirmative defense under Pennsylvania law.³⁴ Its touchtone is whether the plaintiff, by voluntarily assuming a known risk, should be deemed to have abandoned her "right to complain" and forgive the defendant for any injuries he caused.³⁵

Given that its application is a "drastic measure" barring a plaintiff's recovery,³⁶ to grant summary judgment on assumption of the risk as a matter of law the court must—conclusively and beyond question—find that the plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk.³⁷ The defendant's burden to establish assumption of the risk is a tall order because assumption of the risk requires knowledge of a specific risk.³⁸ "It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law."³⁹

Upon this backdrop the Court first considers Ms. Smerdon's motion for summary judgment as to whether GEICO has established assumption of the risk as an affirmative defense. Drawing inferences in GEICO's favor, a reasonable jury could not find that GEICO met its burden to do so.⁴⁰

First, there are no facts demonstrating that Ms. Smerdon was aware of the particular danger from which she was subsequently injured.⁴¹ The Superior Court of Pennsylvania illustrated the specific risk requirement in Stapas v. Giant Eagle . There, a customer entered a convenience store and began speaking with a female employee he knew.⁴² A man who had previously been banned from the convenience store entered and began yelling at the female employee, complaining about his banishment.⁴³ The customer stepped toward the man and attempted to mediate the disagreement.⁴⁴ As the man and female employee exited the store and continued yelling at each other, the customer followed in an effort to calm things down.⁴⁵ A physical fight ensued between the man and the customer, which escalated when the man pulled out a gun and shot the customer four times.⁴⁶ The Superior Court found that the customer had not assumed the risk of getting shot, rejecting the defendant's argument that the customer assumed a general risk of being injured when he pursued and fought the belligerent man.⁴⁷ According to the Superior Court, there was no evidence that the customer was aware that the man had a gun and no evidence that the man and the customer previously held bad feelings toward each other before the shooting.⁴⁸

Here, there are no facts that establish—let alone establish beyond question—that that Ms. Smerdon was specifically aware of the risk that the robber would run her over or otherwise cause her to fall down and strike her head on the pavement.⁴⁹ Ms. Smerdon has no recollection of the incident, did not know the identity of the robber, did not know that he had a stolen car, and did not know she would be run over by attempting to thwart his getaway.⁵⁰ Even if there were facts suggesting that she knew pursuing a robber was dangerous, awareness of a general risk does not amount to awareness of a specific risk.⁵¹

Second, to the extent GEICO's assumption of the risk defense turns on inferences about what Ms. Smerdon should have known concerning the risks she faced, the inquiry as to her awareness is one of actual, not inferred knowledge; that is, the Court looks to what Ms. Smerdon actually knew, appreciated, and assumed rather than what she should have known.⁵² Again, there are no facts demonstrating that she was subjectively aware of the danger that would befall her.

Third, these are not circumstances where the risk of harm was so obvious that Ms. Smerdon impliedly relieved the robber from exercising regard for her safety. On this point Handschuh v. Albert Development is instructive. There, a plumber was working in a trench to install residential sewer pipe when the trench collapsed and killed him.⁵³ The plumber knew that there was a general risk that trenches can collapse at any given time, and that working on that specific trench was a particularly "delicate" operation.⁵⁴ The Superior Court rejected the defendant's argument that the "risk of cave-in in this particular case was so exigent and obvious" that the plumber impliedly relieved the defendant from exercising regard for the plumber's safety.⁵⁵ A worker...