J-A11043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD RAYMONT T/D/B/A RAYMONT : IN THE SUPERIOR COURT OF
CONSTRUCTION COMPANY : PENNSYLVANIA
:
v. :
:
NATIONWIDE MUTUAL INSURANCE :
COMPANY AND WILLIAM WILKINSON :
:
APPEAL OF: NATIONWIDE MUTUAL :
INSURANCE COMPANY : No. 725 WDA 2013
Appeal from the Judgment Entered April 5, 2013
In the Court of Common Pleas of Greene County
Civil Division at No(s): A.D. 1169-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 15, 2014
appeals from the summary judgment entered in the Greene County Court of
Common Pleas, in favor of Appellee, Richard Raymont t/d/b/a Raymont
Construction Company, in this declaratory judgment action. We reverse and
remand for entry of judgment in favor of Nationwide.
The relevant facts and procedural history of this appeal are as follows.
In 2007, Appellee entered into a contract with Southwest Regional Medical
contract ran from December 1, 2007 until March 31, 2008.
On December 7, 2009, William Wilkinson started a civil action against
J-A11043-14
Appellee by filing a writ of summons. Mr. Wilkinson subsequently filed a
parking lot on Dec
attempting to traverse [the parking lot] when he was caused to fall on the
surface of the parking lot by an accumulation of snow and/or ice and/or
upport of
Summary Judgment Motion, filed 12/14/12, at Exhibit A; R.R. at 6a). Mr.
to clear the ice and snow from the parking lot and failed to warn him about
the dangerous conditi
contract count, asserting Appellee breached the contract with Hospital, to
which Mr. Wilkinson was a third party beneficiary.
insurance provider. Nationwide had issued Appellee a commercial general
purported accident occurred. By letter dated June 16, 2010, Nationwide
denied coverage. Regarding the breach of contract claim, Nationwide
policy. (Id. at Exhibit D; R.R. at 61a). Regarding the negligence claim,
Nationwide emphasized that the policy contained a designated work
-2-
J-A11043-14
operations.
On March 9, 2011, Mr. Wilkinson filed an amended complaint. The
amended complaint was virtually identical to the original complaint, but Mr.
(Id. at Exhibit E; R.R. at 67a). Appellee sent the amended complaint to
Nationwide. By letter dated May 25, 2011, Nationwide continued to deny
coverage.
On December 2, 2011, Appellee initiated a declaratory judgment
action against Nationwide, maintaining the exclusion was ambiguous:
10. In denying coverage and a defense to [Appellee],
11. The First Amended Complaint filed by William
Wilkinson against [Appellee] does not allege a claim
against [Appellee] for failing to remove snow. To the
contrary, it alleges that [Appellee] was negligent in failing
to remove ice.
12. In its disclaimer of coverage letter of May 25, 2011,
insurance policy contains Endorsement C.G. 2134, which
excludes from coverage any snow removal procedures.
Snow removal includes the whole process of snow and ice
removal or treatment with salt, cinders, anti-skid, ice melt
13. No such definition of snow removal including ice
removal is contained anywhere in the policy.
-3-
J-A11043-14
14. The snow removal exclusion relied upon [by]
Nationwide is ambiguous and this ambiguity is reflected by
ambiguity in its disclaimer of coverage letter by stating
that snow removal includes the process of ice removal.
(Declaratory Judgment Complaint, filed 12/2/11, at 2-3; R.R. at 93a-94a).
On March 30, 2012, Nationwide filed an answer and new matter. The new
matter
indemnification. Appellee filed a reply to the new matter on April 26, 2012.
On December 14, 2012, Nationwide filed a summary judgment motion.
In it, Nationwide asked the court to declare that Nationwide had no duty to
his own summary judgment motion on January 17, 2013. On April 5, 2013,
the court entered summary judgment in favor of Appellee and against
Nationwide. The court concluded as follows:
permits it to decline coverage can be summarized as:
s letter
of May 25, 2011, denying coverage, felt the need to
expand on the terse language in the exclusion
of snow and ice removal or treatment with salt, cinders,
anti-skid, ice melt, and/or other subs
language been included in the endorsement, this litigation
might not have occurred.
* * *
We note also that the Amended Complaint indicts
[Appellee] for more than failing to keep the lot free from
ice. It also charges [Appellee] with failure to warn and to
-4-
J-A11043-14
these allegations are exclud
plows or shovels. Perhaps the hospital arranged otherwise
for ice control, such as by sending out a custodian with a
bucket of salt. Ice control might be a separate operation
altogether, undertaken by different entities.
(Trial Court Opinion, filed April 5, 2013, at 3-4) (internal citation omitted).
determin
indemnify [Appellee] against liability Id. at 5).
Nationwide timely filed a notice of appeal on April 26, 2013. The court
did not order Nationwide to file a concise statement of errors complained of
on appeal, pursuant to Pa.R.A.P. 1925(b).
Nationwide raises one issue for our review:
DID THE TRIAL COURT ERR IN FINDING THAT
INJURY LAWSUIT, DESPITE A VALID AND UNAMBIGUOUS
FORTH IN THE COMMERCIAL GENERAL
LIABILITY INSURANCE POLICY ISSUED BY NATIONWIDE
TO [APPELLEE]?
Initially, we observe:
Our scope of review of an order granting summary
judgment is plenary. [W]e apply the same standard as the
trial court, reviewing all the evidence of record to
-5-
J-A11043-14
determine whether there exists a genuine issue of material
fact. We view the record in the light most favorable to the
non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered. All doubts as to the existence of a
genuine issue of a material fact must be resolved against
the moving party.
Motions for summary judgment necessarily and directly
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
conclusions. The appellate Court will disturb the trial
buse of
discretion.
Judicial discretion requires action in conformity with
law on facts and circumstances before the trial court
after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue
for decision, it misapplies the law or exercises its
discretion in a manner lacking reason. Similarly, the
trial court abuses its discretion if it does not follow
legal procedure.
-6-
J-A11043-14
* * *
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge
bears a heavy burden.
[I]t is not sufficient to persuade the appellate court
that it might have reached a different conclusion
e duty imposed on the court
below; it is necessary to go further and show an
abuse of the discretionary power. An abuse of
discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the
record, discretion is abused.
* * *
Glaab v. Honeywell Intern., Inc., 56 A.3d 693, 696-97 (Pa.Super. 2012)
(quoting Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 60 62
(Pa.Super. 2006) (internal citations and quotation marks omitted)).
On appeal, Nationwide contends basic contract interpretation principles
support its conclusion that the exclusion precluded coverage for any claims
by shovel or plow, and the treatment of ice, whether by salting or
was clear, unambiguous, and susceptible to one reasonable interpretation.
-7-
J-A11043-14
To support its policy interpretation, Nationwide relies o
deposition testimony, where he essentially admitted that the exclusion
business of paving driveways, parking lots, and sidewalks; Appellee
expressly stated it did not perform snow plowing. Under these
for claims related to the business activities listed in the application materials
Id. at 17).
from the amended complaint amounts to artful pleading designed to avoid
the exclusion. Nationwide concludes the court improperly entered summary
1
We
agree.
resolved via Erie Ins. Exchange v.
Claypoole, 673 A.2d 348, 355 (Pa.Super. 1996) (en banc).
than, its duty to indemnify an insured. An insurer is not
obligated to defend all claims asserted against its insured;
its duty is determined by the nature of the allegations in
the underlying complaint. An insurer must defend its
insured if the underlying complaint alleges facts which, if
1
breach of contract claim.
-8-
J-A11043-14
true, would actually or potentially bring the claims within
the policy coverage.
An insurer who refuses to defend its insured from the
remains with the insurer until it is clear the claim has been
narrowed to one beyond the terms of the policy. An
insurer who disclaims its duty to defend based on a policy
exclusion bears the burden of proving the applicability of
the exclusion.
Belser v. Rockwood Cas. Ins. Co., 791 A.2d 1216, 1219-20 (Pa.Super.
2002) (internal citations omitted) (emphasis in original).
declaratory judgment action concerning insurance coverage is to determine
the court must examine the complaint in the underlying action to ascertain if
it tr American States Ins. Co. v. State Auto Ins. Co.,
721 A.2d 56, 59 (Pa.Super. 1998) (quoting General Accident Ins. Co. v.
Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997)).
aw and is
Kropa v. Gateway Ford, 974 A.2d 502,
505 (Pa.Super. 2009), appeal denied, 605 Pa. 701, 990 A.2d 730 (2010).
parties as manifested by the language of the written instrument Madison
Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 606, 735 A.2d 100,
unambiguous, but to interpret it in favor of the insured, if otherwise.
Ambiguity exists if the language at issue could reasonably be construed in
-9-
J-A11043-14
Lititz Mut. Ins. Co. v. Steely, 567 Pa. 98, 104, 785
instead be considered in reference to a specific set of
Id.
Continental Cas. Co. v. Pro
Machine, 916 A.2d 1111, 1118 (Pa.Super. 2
the [insurance] contract is clear and unambiguous, a court is required to
Mitsock v. Erie Ins. Exchange, 909 A.2d
828, 831 (Pa.Super. 2006) (quoting Madison Const. Co., supra at 606,
735 A.2d at 106). A court must not distort the meaning of the language or
resort to a strained contrivance to find an ambiguity. Mitsock, supra.
[T]he proper focus regarding issues of coverage under
insurance contracts is the reasonable expectation[s] of the
insured. In determining the reasonable expectations of
the insured, courts must examine the totality of the
insurance transaction involved. However, while reasonable
expectations of the insured are focal points in interpreting
the contract language of insurance policies, an insured
frustrated by policy limitations, which are clear and
unambiguous. Like every other contract, the goal of
interpreting an insurance contract is to ascertain the intent
of the parties as manifested by the language of the policy.
St. Paul Mercury Ins. Co. v. Corbett, 630 A.2d 28, 30 (Pa.Super. 1993)
(en banc) (internal citations omitted).
Instantly, Appellee applied for insurance coverage in 2004. The
insurance application submitted to Nationwide indicated Appellee was in the
- 10 -
J-A11043-14
See
of Summary Judgment Motion at Exhibit H; R.R. at 81a). A supplemental
cavating areas for
pouring/preparing drains for basement floors, etc. before pouring/pouring
Id.; R.R. at 85a). Appellee
Id.; R.R. at 88a). Nationwide subsequently provided Appellee
with insurance coverage.2
accident, included the following exclusion:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE
READ IT CAREFULLY.
EXCLUSION DESIGNATED WORK
This endorsement modifies insurance provided under the
following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY
COVERAGE PART
SCHEDULE
Description of your work:
SNOW REMOVAL OPERATIONS
* * *
2
In its brief, Nationwide asserts the policy renewed annually based on the
2004 application. In support of this assertion, Nationwide relies on a portion
- 11 -
J-A11043-14
completed
the Schedule.
(Id. at Exhibit C; R.R. at 34a) (emphasis in original). In response to
liability protection for snow and ice removal services. (Id. at Exhibit I; R.R.
at 169a).
In October 2007, Appellee entered into the snow removal contract with
specific terms demonstrating Appellee was responsible for treating the
parking lots for ice. plowed for
$100.00 per plow per hour. Parking lots will be salted or cindered for
Id. at Exhibit B; R.R. at 14a). The contract also stated,
cost will be a Id.) At his deposition, Mr. Raymont
elaborated on the obligations under the contract:
In regards to snow
removal, does that also include removal of ice?
[MR. RAYMONT]: Salt. I spread salt.
[NATIONW So what about cinders, is
that also used to treat ice?
[MR. RAYMONT]:
-skid. It does not remove the ice, it just puts a
non-skid finish on the ice.
- 12 -
J-A11043-14
Nevertheless, salt and
cinders are used for snow and ice, are they not?
[MR. RAYMONT]: Correct.
And a plow obviously, is
used if you have a large accumulation of snow?
[MR. RAYMONT]: Correct.
Would you agree both
e that. Would [you] agree that snow and ice
removal kind of go hand-in-hand?
[MR. RAYMONT]: I guess, yes.
(Id. at Exhibit J; R.R. at 152a-153a.) Mr. Raymont also testified that he
would treat the parking lots in wintery conditions other than snow, including
Id.; R.R. at 155a). Moreover, Mr. Raymont conceded he
was unaware that the policy contained the exclusion, and he did not inform
his insurance agents about the snow and ice removal business. (Id.; R.R. at
157a-158a).
Here, the exclusion unambiguously rendered the policy inapplicable to
the whole process of snow removal and ice treatment. See Continental
Cas. Co, supra; St. Paul Mercury, Ins. Co., supra. To the extent the
court found otherwise, it erred by distorting the meaning of the words in the
exclusion. See Mitsock, supra
- 13 -
J-A11043-14
veiled attempt to avoid the exclusion. See Erie Ins. Exchange v. Fidler,
manner in which the complainant frames the request for damages to control
the coverage question, we would permit insureds to circumvent exclusions
Based upon the foregoing, the court should have determined that the
exclusion was a valid policy provision precluding coverage for all activities
did not trigger a duty on the part of Nationwide to defend or indemnify.
Accordingly, we reverse and remand for entry of judgment in favor of
Nationwide.
Judgment reversed; case remanded. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2014
- 14 -