McEwing v. Lititz Mutual Insurance
77 A.3d 639
| Pa. Super. Ct. | 2013Background
- McEwing's single-family home suffered structural failure (floor dropped ~3–4 inches; joists rotten) discovered Dec 2009; temporary joist repairs were made pending insurance resolution.
- Lititz insured the home under a named-perils homeowner policy with an express exclusion for water damage including "water below the surface of the ground" (groundwater exclusion) and endorsements for limited rot/fungi and collapse coverage.
- Lititz’s engineer (Lamina) attributed the joist failure to groundwater infiltration (either standing water rising to joists or seepage through CMU walls). He observed moisture and measured elevated moisture content.
- McEwing’s engineer (Hughes) testified joists failed from long-term humidity/poor ventilation (no evidence of standing water or CMU wicking; heating equipment and vents showed no water damage); a public adjuster (Korger) offered a repair cost estimate.
- Trial court credited McEwing’s experts, discredited Lamina, entered judgment for McEwing, and later molded the verdict to include prejudgment interest; this appeal challenges coverage (groundwater exclusion) and admission of experts. Court remanded only to correct clerical error on interest amount and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument (McEwing) | Defendant's Argument (Lititz) | Held |
|---|---|---|---|
| Whether groundwater exclusion bars coverage | Damage caused by hidden rot/humidity collapse is covered (limited rot endorsement / collapse coverage; no evidence of groundwater) | Groundwater exclusion applies because groundwater caused joist deterioration | Held for McEwing: Lititz failed to prove exclusion applied; trial court credibility findings upheld |
| Whether insurer met burden to prove exclusion | N/A — insured asserts coverage and relies on experts | Asserting affirmative defense, Lititz must prove exclusion and it did so via Lamina | Held Lititz did not meet its burden; exclusion not shown to apply |
| Admissibility/qualification of McEwing’s engineer (Hughes) | Hughes qualified as P.E. and certified residential inspector; opinion based on inspection and customary bases | Lititz challenged qualifications and factual foundation (post-trial challenge) | Held Hughes admissible; objection waived for qualifications and opinion had adequate factual basis |
| Admissibility of public adjuster (Korger) testimony and prejudice | Korger provided repair cost estimate based on observations and info | Lititz argued testimony speculative/lacked foundation; sought strike | Held admission at most harmless error because court awarded far less than Korger’s estimate and defendant not prejudiced |
Key Cases Cited
- J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402 (Pa. Super. 2012) (standard of review for non-jury trials: factual findings afforded same weight as jury verdict)
- Weston v. Northampton Pers. Care, Inc., 62 A.3d 947 (Pa. Super. 2013) (appellate review and credibility deference to trial court)
- Betz v. Erie Ins. Exch., 957 A.2d 1244 (Pa. Super. 2008) (insured must first show coverage under policy)
- Spece v. Erie Ins. Grp., 850 A.2d 679 (Pa. Super. 2004) (insurer bears burden to prove affirmative defense of policy exclusion)
- Kozlowski v. Penn Mut. Ins. Co., 441 A.2d 388 (Pa. Super. 1982) (discussing water-exclusion reasoning; distinguished by court here)