- Clair Kimmel filed a complaint on January 6, 1989, seeking consequential damages arising from Nationwide’s failure to pay on his loan obligation to Commonwealth National Bank while he was disabled. Nationwide filed preliminary objections in the nature of a demurrer, asserting that Pennsylvania law does not permit an insurance policy beneficiary to recover consequential damages when an insurer wrongfully withholds coverage. There is no Pennsylvania appellate authority on point.
The complaint contains the following averments. Nationwide issued a creditor’s group disability insurance policy to Commonwealth National Bank, that obligated Nationwide to remit Kimmel’s scheduled loan payments to Commonwealth in the event that Kimmel became unable to make the payments because of a disability. The policy covered Kimmel as a result of various loans he received from Commonwealth. On April 7, 1982, Kimmel obtained a loan from Commonwealth that
A preliminary objection in the nature of a demurrer admits as true all well-pleaded facts and all inferences reasonably deducible therefrom. Rauser v. Pennsylvania Board of Probation and Parole, 107 Pa. Commw. 216, 528 A.2d 290 (1987). A demurrer can only be sustained if it is certain that the law will not permit recovery. Larsen vPhiladelphia Newspapers Inc., 375 Pa. Super. 66, 543 A.2d 1181 (1988). Any doubt must be resolved in favor of overruling the demurrer. Horton v. Jefferson County-Dubois Area Vocational-Technical School, 118 Pa. Commw. 598, 545 A.2d 998 (1988).
The recoverability of consequential damages arising out of an insurer’s wrongful refusal to pay benefits has been addressed in numerous jurisdictions, but it has not been considered by Pennsylvania appellate courts. See Insurer’s Liability for Consequential or Punitive Damages for Wrongful Delay or Refusal to Make Payments Due Under
Though Pennsylvania courts have not indicated what rule they would apply, we do have the benefit of a federal District Court decision, Giovannitti v. Nationwide Insurance Company, supra, that predicts how the Pennsylvania courts would approach the issue. Generally, the court held that consequential damages are not recoverable when an insurer wrongfully denies coverage unless the obligation is to pay money for a special purpose. Id. at 1446. There, the plaintiff owned a building that was damaged by fire, and the insurer wrongfully denied coverage. Because the insured was not obligated to repair his property with the insurance proceeds, and, in fact, could have used the proceeds however he wished, the court found that the proceeds were not for a special purpose. Accordingly, the court found that consequential damages in that case were not recoverable.
The court in Giovannitti reasoned that denying consequential damages when the obligation to pay money is not for a special purpose prevents insureds from reaping a windfall from the insurance com
It is indisputable that the obligation in the case at hand was to pay money for a specific purpose. Nationwide contracted to pay $283.33 to Commonwealth, on behalf of Kimmel, if he became disabled Kimmel was clearly an intended beneficiary of the policy. By the terms of the policy, Kimmel would never see the insurance proceeds because their payment was for a single purpose — payment of his mortgage debt. In no circumstance could Kimmel or Commonwealth divert the proceeds to anything other than payment of the mortgage debt. Thus, the policy issued by Nationwide was for a special purpose. We find, therefore, that plaintiff maintains a legally cognizable cause of action for consequential damages arising as a result of defendant’s wrongful denial to pay his mortgage debt during his period of disability.
ORDER
And now, May 24, 1989, the preliminary objections of defendant, in the nature of a demurrer, are overruled.
