Penn National has won summary judgment in a lead paint coverage dispute over a missing policy endorsement that could have dramatically expanded coverage limits.
The March 26, 2026, ruling out of the District of Maryland carries practical lessons for carriers, brokers, and underwriters on the risks of incomplete policy documentation, the weight courts give to renewal declarations pages, and how actual broker knowledge can determine the outcome of a notice dispute.
The case grew out of a $2,212,874 jury verdict awarded to Deshawn Fisher in 2019 after a trial in Baltimore over injuries he alleged were caused by lead-based paint exposure at a residential rental property. The property at 1723 Montpelier Street was one of many owned and operated by Jacob Dackman & Sons, LLC and Elliott Dackman. Fisher had lived at or visited the property between August 1993 and May 1995. None of the judgment has been paid.
The Dackman parties carried a commercial general liability policy through Penn National from June 1991 to August 1997 with a $1,000,000 aggregate limit. The crux of the dispute was whether a per location endorsement – a form known as CG2504 – was part of the policy during three specific policy years: 1993-94, 1994-95, and 1995-96. That endorsement, when included, applied the $1,000,000 aggregate separately to each insured location. Given the number of properties the Dackman parties owned, the practical effect was staggering – coverage under the endorsement could reach roughly $1 billion, compared to $1 million without it.
Both sides agreed the endorsement was part of the policy during the 1991-92, 1992-93, 1996-97, and 1997 policy years. The three years in between were the battleground.
The facts around how the endorsement appeared and disappeared tell much of the story. When Penn National first issued the policy in 1991-92, CG2504 was included. It carried over into the 1992-93 renewal as well, though only after the Dackman parties' side flagged that it had been left off the declarations page. Penn National responded at the time by issuing a written policy change endorsement confirming that Form CG2504 had been added.
When the 1993-94 renewal arrived, the endorsement was again absent from the declarations page. One of the Dackman parties' brokers noticed and asked Penn National to add it back. But this time, no written endorsement was ever issued. No documentation of a response from Penn National exists in the record, and no one offered testimony claiming to have seen such a writing. The 1994-95 and 1995-96 policies were issued on the same terms as the 1993-94 policy.
The policy itself contained a clause stating that it represented the complete agreement between the insurer and the insured concerning coverage, and that its terms could only be amended or waived by endorsement.
Fisher filed a declaratory judgment action in March 2024 in Baltimore's Circuit Court, seeking a ruling that the per location endorsement applied during the contested years. Penn National removed the case to federal court on diversity grounds, and Fisher later added a breach of contract claim.
The court framed the central question as one governed by Maryland law on lost or missing insurance policies. Under that framework, a party trying to establish coverage under a policy that cannot be produced must meet a heightened evidentiary standard – presenting evidence that is clear and positive enough to leave no reasonable doubt about the existence and terms of the policy. The court assessed Fisher's evidence under both the clear and convincing standard and the stricter beyond a reasonable doubt standard, and found it fell short under either.
Several pieces of evidence cut against Fisher. Penn National presented expert testimony from former Maryland Insurance Commissioner Kathleen A. Birrane, who explained that premiums had not dropped when the endorsement was removed because it had originally been added at no extra charge. According to Birrane, Penn National had initially underestimated the risk of lead paint liability in 1991 and 1992, and by 1993 had come to recognize that error. The insurer was by then actively considering adding a lead paint exclusion across its residential rental liability book.
Fisher pointed to the fact that the Dackman parties' broker kept a copy of Form CG2504 in his file for the 1993-94 policy. But the court noted that the copy appeared to be a photocopy rather than an original, and that it was three-hole-punched while most other documents in the same folder were not. Penn National's corporate representative testified that renewal packets only included documents reflecting changes, meaning the endorsement would not have been sent if it had simply carried over.
Fisher also offered an affidavit from A. Murray Slattery, the Dackman parties' broker, who said he had spoken with a Penn National employee named Sandra who indicated the company was working on adding the endorsement back. The court found this evidence problematic on multiple fronts. Penn National successfully argued that the testimony should be excluded because Fisher had failed to disclose the conversation or identify Sandra during discovery, despite being asked directly relevant questions in interrogatories. The court also noted that Slattery himself admitted he never received written confirmation following the conversation. In a footnote, the court flagged that Slattery had pled guilty to several counts of felony insurance fraud, which Penn National would likely have raised at trial to challenge his credibility.
Even taking all of Fisher's evidence at face value, the court concluded that reasonable doubt would persist because no one disputes that a written endorsement was the only mechanism for amending the policy, no such endorsement has surfaced, and no witness has claimed one ever existed.
On the separate question of whether Penn National gave adequate notice and provided sufficient consideration for the coverage change, the court again ruled in the insurer's favor.
Maryland common law holds that when an insurer renews a policy, the insured is generally entitled to assume the terms have not changed unless the insurer provides proper notice. Courts have looked for changes to be flagged conspicuously on declarations pages or communicated through a separate endorsement. But where an insured has actual knowledge of a change, that assumption of continuity no longer holds.
Here, the court found that Slattery had actual notice that the per location endorsement was missing from the 1993-94 declarations page – that was precisely why he asked Penn National to add it. That awareness, the court held, made any assumption that the prior year's terms still applied unreasonable. The Dackman parties, through their broker, knew the policy as written did not include the endorsement.
On consideration, Fisher argued that because premiums stayed roughly the same between the 1992-93 and 1993-94 policy years, there was no consideration for the reduction in coverage. The court disagreed, explaining that under Maryland law and Fourth Circuit precedent, the relevant question is not simply whether premiums changed, but whether the insured received less coverage than what they paid for. Birrane's unrebutted testimony established that Penn National had underpriced the endorsement in 1991 and 1992, offering it at no additional cost because it misjudged the lead paint risk. Correcting that mispricing by removing the endorsement in 1993 was not a failure of consideration.
United States District Judge James K. Bredar denied Fisher's motion for summary judgment and granted Penn National's cross motion. The court declined to address Penn National's additional argument that Fisher's claims were time-barred, having already resolved the case on the merits. A separate order was to follow.
