The Pennsylvania Supreme Court has agreed to hear a case in which it is being asked to decide if third parties need to get a certificate of merit in order to sue defendants for professional negligence, even if they weren’t a client or patient.

The court has agreed also to consider whether plaintiffs can sue their insurance companies for negligence if the claim is “not based on the underlying insurance contract.”

The Superior Court, in an unpublished memorandum opinion, had ruled that third parties must file a certificate of merit in order to bring negligence claims against a professional, regardless of whether they were clients or patients of the professional.

The lower court also ruled the plaintiffs were barred under the “gist of the action” doctrine from suing their insurance company for negligence, because the underlying claim — that the insurance company and its contractor told the plaintiffs the mold in their home wasn’t dangerous and it later proved to be toxic — was still related to the insurance policy. Because of that, the Superior Court ruled, the claim was a breach of contract claim, not a tort action.

The justices granted allocatur September 11 in Bruno v. Erie Insurance.

Writing for the Superior Court in Bruno, Judge Judith Ference Olson said the purpose of requiring a certificate of merit in professional negligence cases was to help eliminate frivolous malpractice claims from the court system.

“If this court were to hold that such third parties were excused from the certificate of merit requirement, we would thwart the Supreme Court’s purpose of creating an orderly procedure to weed out frivolous cases,” she said. “Such a holding would create the absurd result of allowing these third parties to skirt the rules underlying professional liability claims while, at the same time, demanding those in contractual privity support their professional liability claim with a certificate of merit.”

When looking at all the factors and concerns at play, Olson said, “it becomes clear that third parties such as appellants must support their professional liability claims with a certificate of merit.”

In Bruno, David and Angela Bruno sued Erie Insurance Co., Rudick Forensic Engineering Inc. and others after allegedly suffering injuries from toxic mold they found in the house they had bought in September 2007. The Brunos ultimately had to demolish the house because of the mold, according to Olson’s opinion.

In their suit, the Brunos alleged they discovered the mold in the basement in October 2007, she said. They notified Erie of the damage immediately and said they wanted to file a claim under their homeowner’s policy, according to Olson.

Scott Steffey, an adjuster for Erie, and Jerome D. Paulick, an engineer with Rudick, went to the house to inspect the damage, Olson said. The Brunos wanted to have the mold tested, she said.

The Brunos alleged, according to Olson, that Steffey and Paulick told them “the mold was harmless” and that “health problems associated with mold were a media frenzy and overblown.”

Olson said the Brunos claimed that based on those statements, they tried to eradicate the mold on their own. They later found more mold, and notified Erie, she said. Paulick went out again, but according to the Brunos, he never warned them of the dangers the mold presented or the need for a professional to remove it.

The Brunos later began to suffer health problems, the opinion said, and Angela Bruno got very sick. Erie eventually paid $5,000 for the claim, but by then, the Brunos alleged, the mold problems had gotten “much more serious,” Olson said.

Angela Bruno was diagnosed with esophageal cancer and cancer of the voice box, which her doctors believed was caused by the mold, Olson said. She said the Brunos later had to leave their home, and because the mold could not be “eradicated,” had to demolish the house.

The Brunos sued Erie, Rudick and the previous owners in common pleas court, bringing numerous counts, including a negligence claim against Erie for “misleading” the Brunos about the seriousness of the mold problem and failing to warn them about it, and a professional liability claim against Rudick. Erie and Rudick filed preliminary objections and the trial judge found in their favor, the opinion said.

On appeal, the Brunos argued they didn’t need a certificate of merit for the professional negligence claim against Rudick, because they weren’t clients or patients of the company, Olson said.

But Olson said the Brunos’ argument regarding third parties went against the purpose of the certificate of merit requirement. She said the requirement is “the centerpiece” of the Supreme Court’s attempts to reform malpractice suits. Allowing third parties to bring suit without requiring a certificate of merit would circumvent the intent of the requirement, she said.

The trial court dismissed the Brunos’ negligence claim against Erie based on the “gist of the action” doctrine. On appeal to the Superior Court, the Brunos had argued that the negligence claim — based on the adjustor and engineer’s assurances regarding the mold — was not based on the underlying insurance contract.

But Olson said the Brunos’ case against Erie sounded in “contract — not tort.”

“[The Brunos'] entire relationship with Erie Insurance arose out of — and is defined by — the homeowner’s insurance policy,” she said.

Even if Erie performed the investigation into the mold problem improperly, Olson said, it would have been a breach of “its contractual duties.”

Counsel for the plaintiffs, Pittsburgh solo attorney Gary H. Davis, could not be reached for comment at press time.

Counsel for Erie, Craig R. F. Murphey of MacDonald, Illig, Jones & Britton in Erie, Pa., and counsel for Rudick, Mark Reilly of the Law Offices of John DeMarco in Pittsburgh, also could not be reached.

Hank Grezlak can be contacted at 215-557-2486 or hgrezlak@alm.com. Follow him on Twitter @HGrezlakTLI.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the two-page opinion in Bruno v. Erie Insurance, PICS No. 13-2682, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •