NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 20-2544

________________

CARL HEMPHILL; MJC LABOR SOLUTIONS, LLC,

Appellants

v.

LANDMARK AMERICAN INSURANCE COMPANY

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-19- cv -05260)

District Judge: Honorable Gerald A. McHugh

________________

Argued on June 24, 2021

Before: CHAGARES, Chief Judge, PORTER and ROTH, Circuit Judges

(Opinion filed: April 5, 2023)

David M. Barry ARGUED

#578

104 South Wayne Avenue

Wayne, PA 19087

Counsel for Appellants

Brian C. Bassett ARGUED

Traub Lieberman Straus & Shrewsberry

71 South Wacker Drive2 Suite 2110

Chicago, IL 60606

Gerald J. Valentini

Deasey, Mahoney & Valentini

1601 Market Street

Suite 3400

Philadelphia, PA 19103

Counsel for Appellee

________________

OPINION *

________________

ROTH, Circuit Judge

I.

In this insurance coverage dispute, appellant Carl Hemphill asks us to find that his

liability insurer, appellee Landmark American Insurance Co., is obligated to defend him

in a lawsuit by a former employee. Th at employee brought a panoply of claims against

Hemphill in his original complaint. None is covered by Hemphill’s policy with

Landmark. And, for reasons discussed below, Hemphill may not demand coverage based

on Landmark’s earlier defense of him in a similar but unrelated lawsuit. So we will

affirm the District Court’s order finding Landmark had no duty to defend Hemphill.

II.

A.

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not

constitute binding precedent.3 Carl Hemphill and MJC Labor (together, Hemphil l ) provide temporary employee

placement and visa application processing services to workers from Mexico and Central

America. Hemphill is insured by a miscellaneous professional liability (MPL) policy

with Landmark, covering claims “aris ing out of [] negligent act [s]

, error [s] or

omission [s] ” “in the rendering or failure to render

. . . permanent and/or temporary

placement services [

. ] ” 1

In May 2018, former MJC client Jose Castillo filed an action against Hemphill (the

Castillo Lawsuit)

, alleging violations of federal human trafficking

, wage

- and

- hour

, and

unfair trade practices laws, as well as claims for breach of contract and unjust enrichment.

Castillo alleged that he signed an employment contract with one of Hemphill’s companies

provi ding a specific start date, hours of employment, wages, and job duties

. He was issued

an H

- 2B work visa in March 2015 and expected to leave for the United States immediately

,

but Hemphill delayed his employment for more than a month. When Castillo eventual ly

arriv ed in the U .S.

, Hemphill and his wife confiscated his passport ; housed him in

conditions he described as “filthy,” overcrowded, and vermin

- infested ; 2 assigned him tasks

outside the scope of his employment contract ; and considerably underpa id him

. In July,

after Hemphill sent Castillo a series of hostile and threatening text messages when he did

not report to work, Castillo contracted the National Human Trafficking Hotline and was

connected with his current counsel. Hemphill then reported Castillo to the police

, who

charged him with trespassing and making terroristic threats. Castillo’s l awsuit followed.

1 Appx. 35

– 36 (Compl. ¶ 13); Appx. 77, 79.

2 Appx. 111 (Castillo Compl. ¶¶ 135

– 39).4 The parties have since settled the Castillo Lawsuit, but the reimbursement of legal defense

costs

, incurred in the underlying suit

, remain in dispute.

B.

Hemphill sought coverage in the Castillo Lawsuit under his MPL policy with

Landmark. Landmark declined to defend Hemphill on the grounds that Castillo’s

allegations arose from Hemphill’s intentional actions

, occurring after Castillo had been

placed as an employ ee

, rather than from negligent actions in providing placement

services. Hemphill then filed this action seeking a declaration that Landmark was

required to defend him in the Castillo Lawsuit. The District Court agreed with

Landmark’s interpretation of the policy and dismissed the action under Federal Rule of

Civil Procedure 12(b)(6). Hemphill appealed.

Th e Castillo Lawsuit proceeded to a bench trial in June 2021, after which the

District Court ordered the parties to mediate. Castillo moved to conform his complaint

with the evidence introduced at trial under Federal Rule of Civil Procedure 15(b)(2)

,

arguin g that the parties had tried a claim for negligent misrepresentation by implied

consen t

. The District Court granted Castillo’s motion

, 3 and

, on July 7, 2021, Castillo

filed an amended complaint

, including a negligent misrepresentation claim

. 4

3 Case No. 18

- 1837, ECF No. 89

– 90

. 4 Case No. 18

– 1837, ECF No. 9 2

.5 III. 5

We review a district court’s dismissal under Rule 12(b)(6) de novo

. 6 We also

exercise plenary review over a district court’s determination of the scope of coverage of

an insurance contract. 7 If the underlying complaint “avers facts that might support

r ecovery under the policy, coverage is triggered and the insurer has a duty to defend.” 8

We view the complaint’s allegations as true and liberally construe them in favor of the

insured. 9

IV.

We first clarify the scope of our inquiry in light of Castillo’s amended complaint.

Under Pennsylvania law

, 10 “ [ t ] he question of whether a claim against an insured is

potentially covered is answered by comparing the four corners of the insurance contract

to the f ou r corners of the complaint.” 11 While the majority of states have made an

exception to the “four corners” rule whe n evidence puts an insurer on notice of an

5 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under

28 U.S.C. § 1291.

6 Phillips v. C n ty

. of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008) (citation omitted).

7 Sikirica v. Nationwide Ins. Co ., 416 F.3d 214, 220 (3d Cir. 2005) (citation omitted)

. 8 Id. at 226 (citing Gen. Accident Ins. Co. of Am. v . Allen , 692 A.2d 1089, 1095 (Pa.

1997) )

. 9 Ramara, Inc. v. Westfield Ins. Co ., 814 F.3d 660, 673 (3d Cir. 2016) (citation omitted)

. 10 The District Court properly found that Pennsylvania law applies to this action, because

Hemphill and MJC resided in Pennsylvania at the time the Landmark policy was signed

. S

ee Crawford v. Manhattan Life Ins. Co. of New York , 221 A.2d 877, 880 (Pa. Super. Ct.

1966).

11 Am. & Foreign Ins. Co. v. Jerry’s Sport Center , Inc. , 2 A.3d 52 6 , 541 (Pa. 2010).6 unpleaded claim, Pennsylvania has not. 12 To the contrary, courts applying Pennsylvania

law must not stray from the operative complaint in determining duty

- to

- defend issues,

even whe n later proceedings reveal the existence of a covered claim. 13 Thus, Castillo’s

original complaint controls Landmark’s obligations up to the time he filed his amended

complaint

.

We limit our inquiry to Landmark’s duty to defend Castillo’s original complaint,

which is the parties’ sole focus on appeal

. 14 The District Court found that 1) Hemphill

could not expect Landmark to cover him for any claim not listed in the Landmark policy

,

and 2) Castillo’s first complaint does not allege a covered claim. Hemphill appeals both

findings, but his arguments fail.

B.

Hemphill first argues that he had a reasonable expectation of coverage in the Castillo

Lawsuit aft er Landmark defended him in a n earlier

, similar class action (the Urrutia

Lawsuit ). We disagree and affirm the District Court’s finding that Hemphill may not claim

benefit of the reasonable expectations doctrine here.

12 See Lupu v. Loan City , LLC , 903 F.3d 382, 390

– 92 (3d Cir. 2018) (discussing

Kvae r ner Metals Div. of Kvaerner U.S., Inc. v. Comm. Union Ins. Co ., 908 A.2d 888 , 896

(Pa. 2006) ); cf. Walter Well Sols. Serv. Grp., Inc. v. Consol. Ins. Co ., 881 N.W.2d 285,

304 (Wis. 2016) (Bradley, J., dissenting) (collecting cases from 31 states recognizing

exception to “four corners” rule ).

13 See Lupu , 903 F.3d at 392.

14 See, e.g.

, Trs. Of Nat. Elevator Indus. Pension, Health Benefit and Educ. Funds v.

Lutyk , 332 F.3d 188, 193 (3d Cir. 2003) (declining to address issues not raised before

district court or on appeal). This Court ordered the parties to provide a status update on

Augu st 11, 2021. The parties’ joint update does not state whether Landmark disputes its

duty to defend the Castillo Lawsuit following the amended complaint.7 “[T]he proper focus for determining issues of insurance coverage is the reasonable

expectations of the insured.” 15 “ [I]n most cases the language of an insurance policy will

provide the best indication of the parties’ reasonable expectations.” 16 An insured’s

reasonable expectati ons may occasionally prevail over the express terms of a contract, 17

but only “‘in very limited circumstances’ to protect non

- commercial insureds from policy

terms not readily apparent and from insurer deception

. ” 18 For example, courts have

found insureds reasonably anticipated coverage whe re insurers hid crucial coverage

terms, 19 unilaterally changed policy language, 20 or otherwise deceived them

. 21 Absent

these few exceptions, “ an insured may not complain that his or her reasonable

expectations were frustrated by policy limitations that are clear and unambiguous.” 22

Hemphill does not argue that the Landmark policy language is facially unclear or

that Landmark engaged in deceptive tactics. Instead, he claims that the mere fact that

15 Reliance Ins. Co. v. Moessner , 121 F.3d 895, 903 (3d Cir. 1997) (citations omitted).

16 Bensalem Twp. v. Int ’l Surplus Lines Ins. Co ., 38 F.3d 1303, 1309 (3d Cir. 1994).

17 See id. ; see also Newchops Rest. Comcast LLC v. Admiral Indem. Co ., 507 F. Supp. 3d

616, 621 (E.D. Pa. 2020) ( finding “a court’s decision to look beyond the policy langua ge is not erroneous under all circumstances”) (quoting Safe Auto Ins. Co

. v. Berlin , 991 A.2d

327, 3 3 2 (Pa. Super. Ct. 2010)).

18 Liberty Mutual Ins

. Co. v. Treesdale , Inc. , 418 F.3d 330, 344 (3d Cir. 2005) ( quoting

Madison Constr. Co. v. Harleysville Mut. Ins. Co. , 735 A.2d 100, 109 n.8 (Pa. 1999) )

. 19 See Colli ste r v. Nationwide Life Ins. Co ., 388 A.2d 1346, 1353 ( Pa. 1978)

. 20 See UPMC Health Sys. v . Metro. Life Ins. Co ., 391 F.3d 497, 503

– 04 (3d Cir. 2004) ; Bensalem Twp ., 38 F.3d at 1309

. 21 See, e.g., Downey v. First Indem. Ins ., 214 F. Supp. 3d 414, 424 (E.D. Pa. 2016)

(applying reasonable expectations doctrine where insured claimed insurer misrepresented

scope of coverage); West Am. Ins. Co. v. Park , 933 F.2d 1236, 1238

– 39 (3d Cir. 1991)

(applying reasonable expectations doctrine where policy language unambiguously

con ferred coverage but insurer invoked public policy exception and denied coverage)

. 22 Treesdale , 418 F.3d at 344 (internal quotation marks and citation omitted) ; s ee Millers

Cap. Ins. Co v. Gambone Bros. Dev. Co

. , Inc.

, 941 A.2d 706, 717 (Pa. Super. Ct. 2007)

.8 L andmark defended the Urrutia L awsuit created a reasonable expectation that it would

defend the Castillo L awsuit. No authority supports finding a duty to defend whe n the

insured’s expectation of coverage arises solely from the insurer’s conduct in another,

unrelated transaction. Indeed, P ennsylvania law instructs us to “examine the totality of

the insurance transaction involved” 23

— not the total ity of all other trans actions between

the parties

. This rule applies even whe n no aspects of the transaction at issue create an

expectation of coverage

. Here, t he scope of coverage in the Landmark policy is clear.

Thus, Hemphill’s expectations do not carry the day.

Even if Hemphill could take advantage of the reasonable expectations doctrine,

Landmark’s earlier conduct could not have given him a reasonable expectation of

coverage in the Castillo Lawsuit. Landmark subje cted its defense of the Urrutia Lawsuit

to a complete reservation of rights

. I n its letter agreeing to defend the lawsuit, Landmark

stated that nothing in the letter, “nor any further actions taken by Landmark, should be

construed as a waiver of any right s or defenses

. . . that may be available now or at any

point in time.” 24 Hemphill could not reasonably expect that such a limited a cceptance of

coverage would extend to a separate, unrelated lawsuit

.

B.

Putting aside Landmark’s prior defense, the scope of its duty to defend is governed

by the policy’s plain language, which extends coverage only to claims alleging “negligent

act[s], error[s], or omission[s]

. . . in the performance of providing

. . . employee

23 Treesdale , 418 F.3d at 344 (quoting Moessner , 121 F.3d at 903).

24 Appx. 208.9 placement services.” 25 The question is whether Castillo’s first complaint alleges

negligence by Hemphill or MJC in providing Castillo placement services. It does not.

“[A]n insurer’s duty to defend . . . [is] determined solely from the language of the

complaint against the insured.” 26 Courts determine whether a complaint states a covered

claim by looking at the factual allegations of the underlying complaint, not the causes of

action asserted. 27 “[I]t is the potential, rather than the certainty, of a claim falling within

the insurance policy that triggers the insurer’s duty to defend.” 28

The first Castillo complaint does not expressly allege a cause of action for

negligent misrepresentation. Hemphill argues it does so impliedly by alleging facts

showing he misled Castillo about his start date and housing. We are unpersuaded. A

plaintiff alleging negligent misrepresentation under Pennsylvania law must show: “(1) a

misrepresentation of a material fact; (2) made under circumstances in which the

misrepresenter ought to have known its falsity; (3) with an intent to induce another to act

on it; and (4) which results in injury to a party acting in justifiable reliance on the

misrepresentation.” 29 Castillo’s unfair trade practices claim alleged that Hemphill

“deceiv [ ed ]” Castillo “about rental housing in which he would be living.” 30 But Castillo

does not allege that Hemphill or MJC ever represented to him that his housing conditions

25 Appx. 77, 79.

26 Kvaerner Metals Div ., 908 A.2d at 896

. 27 Mutual Ben. Ins. Co. v. Haver , 725 A.2d 743, 745 (Pa. 1999) (citation omitted).

28 Lexington Ins. Co. v. Charter Oak Fire Ins. Co ., 81 A.3d 903, 911 (Pa. Super. Ct.

2013).

29 Milliken v. Jacono , 60 A.3d 133, 141 (Pa. 2012) (quoting Heritage Surveyors &

Eng’rs, Inc. v. Nat. Penn Bank , 801 A.2d 1248, 1252 (Pa. Super. Ct. 2002)).

30 Appx. 134 (Castillo Compl. ¶ 380).10 would be sanitary or not crowded

, or that he would not have accepted Hemphill’s

employment offer had he known that the housing conditions were subpar. As for

Castillo’s start date, his allegations amount to nothing more than a breach

- of

- contract

claim: he alleges that his contracted

- for start date was delayed and that he lost money

and employment opportunities as a result. Landmark expressly carved out breach

- of

contract claims in its policy with Hemphill. 31 It has no duty to defend this one, or any

other claim in Castillo’s first complaint. 32

V.

For the reasons st ated above, we will affirm t he judgment of the District Court

.

31 Even if Castillo’s breach

- of

- contract claim could somehow be interpreted to state a

misrepresentation claim (it cannot), it would fail in light of the gist

- of

- the ac tion doctrine.

See Knight v. Springfield Hyundai , 81 A.3d 940, 95 0 (Pa. Super. Ct. 2013).

32 For the same reasons, we reject Hemphill’s argument that Landmark created a “latent

ambiguity” in the policy by finding Urrutia had potentially stated a covered claim but

Castillo had not.