Prudential Property & Casualty Insurance v. Sartno

JOHNSON, J.,

Dissenting.:

¶ 1 The Majority concludes that the language “carry people or property for a fee” unambiguously operates to exclude coverage whenever an insured driver uses his or her vehicle to transport people or property in the scope of his or her employment. In so doing, the Majority’s analysis fails to address the critical issue: the policy language. Instead, the Majority focuses on whether a delivery fee is truly a relevant factor, Op. at 89, and the ability of insurance companies to draft exclusions that insulate them from liability, Op. at 90. After examining the plain and ordinary meaning of the policy language, I find that it is ambiguous. Specifically, I conclude that, in addition to the interpretation supported by the Majority, the term “fee” can also be reasonably interpreted to mean simply a delivery charge, which would not encompass the hourly wages Driver received for delivering pizzas, cooking, and cleaning at Frankie’s Pizza. Accordingly, I dissent.

¶ 2 As the Majority noted, “[t]he goal of [interpreting an insurance contract] is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument .... The polestar of our inquiry, therefore, is the language of the insurance policy.” Neuhard v. Travelers Ins. Co., 831 A.2d 602, 604-05 (Pa.Super.2003) (emphasis added) (quoting Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (Pa.1999)). Fee is not defined in the insurance policy. Thus, I begin by reviewing common definitions of fee. See Madison Constr. Co., 735 A.2d at 108 (holding that *91we must interpret words in an insurance contract according to their “natural, plain, and ordinary sense” and we may rely on dictionary definitions to do so). Simply put, a fee is a “fixed charge,” Webster’s II New Riverside Dictionary 253 (1996), or “[a] charge for labor or services, especially] professional services.” Black’s Law Dictionary 629 (7th ed.1999). An earlier edition of Black’s Law Dictionary has a longer, albeit similar definition:

A recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done.

Black’s Law Dictionary 558 (5th ed.1979). Inherent in each of these definitions is the notion that a fee is given in exchange for services; a fee is not gratuitous in nature. Thus, tips cannot constitute a “fee.” These definitions do not illuminate, however, whether “fee” as it is used in the policy refers to the wages Driver receives from Frankie’s pizzeria.

¶ 3 Our jurisdiction has not addressed this precise issue. The caselaw in this area is largely inapposite. See, e.g., Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071 (Pa.Super.2004); Ratush v. Nationwide Mut. Ins. Co., 422 Pa.Super. 389, 619 A.2d 733 (1992); Rykill v. Franklin Fire Ins. Co., 80 Pa.Super. 492 (1923) (all involving either a document delivery or taxicab service for which customers paid a specific transportation charge). Also inap-posite is Aetna Cas. & Sur. Co. v. Davis, in which our Court held that a driver who, as a one time event, hauled a friend’s refrigerator did not carry property for a fee, even though he gratuitously received $15 for gas. See 418 Pa.Super. 284, 614 A.2d 273 (Pa.Super.1992). Thus, this is a matter of first impression in our Commonwealth.

¶4 Looking outside our own jurisdiction, see Drake v. Drake, 555 Pa. 481, 725 A.2d 717, 724 (1999) (holding that we may do so for guidance in the absence of controlling Pennsylvania caselaw), I find substantial support for my analysis. For instance, the Supreme Court of Ohio concluded that a policy exclusion precluding coverage when a vehicle was used “to carry persons or property for a fee” was ambiguous as applied to a pizza delivery driver who was paid only an hourly wage but was reimbursed for mileage. See U.S. Fid. & Guar. Co. v. Lightning Rod Mut Ins. Co., 80 Ohio St.3d 584, 687 N.E.2d 717 (1997). The Court found two reasonable interpretations, one excluding coverage whenever the driver transports people or goods in the scope of employment, and one excluding coverage only when the driver transports people or goods specifically in exchange for “the particular act of transporting property.” Id. at 719. The majority of jurisdictions agree that such language is ambiguous. See, e.g., Progressive Cas. Ins. Co. v. Metcalf, 501 N.W.2d 690 (Minn.Ct.App.1993) (finding “for a fee” exclusion ambiguous, thus providing coverage for pizza delivery driver); Pizza Hut of Am., Inc. v. W. Gen. Ins. Co., 36 Ark.App. 16, 816 S.W.2d 638 (1991) (finding “fee” ambiguous as applied to a pizza delivery driver whose pizza shop does not charge for deliveries); Cincinnati Ins. Co. v. W. Am. Ins. Co., 112 F.Supp.2d 718 (D.Ill.2000) (holding that a United States Postal Service employee did not carry property “for a fee” when he delivered USPS mail in his private vehicle in the scope of his employment); see also Randy J. Sutton, Annotation, What Constitutes Use of Automobile “To Carry Persons or Property for Fee Within Exclusion of Automobile Insurance Policy, 57 A.L.R. 5th 591 (1998). In addition, some jurisdictions conclude that there is no ambiguity, hold*92ing that “fee” cannot reasonably be interpreted to mean compensation or wages and means only a specific delivery charge. See, e.g., RPM Pizza, Inc. v. Auto. Cas. Ins. Co., 601 So.2d 1366 (La.1992).

¶ 5 Even conceding that the policy language can be reasonably interpreted to bar coverage when a person carries property in the scope of his or her employment, I conclude that the policy exclusion can also be interpreted more narrowly to bar coverage only if the driver carries goods or people in exchange for a specific transportation/delivery charge. Under this narrower interpretation, a driver would still be covered under the insurance policy even if he or she carried property in the scope of his or her employment, as long as neither the driver nor the driver’s employer would impose or receive a delivery charge. The reasonableness of this interpretation is heightened by the actual exclusion’s heading, “Cars for Hire”. This language suggests that the fee is being given in exchange for use of the vehicle. The heading does not suggest that coverage would be barred any time an insured used the car to transport goods or people in the scope of employment. Thus, even the heading itself suggests that the parties intended for the exclusion to apply only to paid transportation services.

¶ 6 In Brosovic, a case on which the Majority substantially relies, our Court held that the identically-worded exclusion barred coverage on an Airborne Express document delivery service van because “[a] delivery van is certainly a vehicle used to carry property for a fee.” 841 A.2d at 1074. Our Court determined that property was being carried for a fee, not because the driver worked as a delivery servieeper-son, but because the company imposed a delivery charge. Id. at 1074. Nowhere did our Court say that we must focus on the benefit to the delivery driver, Slip. Op. at 6; in fact, we actually said that it does not matter who receives the financial benefit, or the delivery fee, so long as one is charged. See Brosovic, 841 A.2d at 1074. (“It is of no consequence that the [delivery] fee was paid to Appellant’s employer rather than Appellant himself.”). Thus, when we examine whether property was transported for a fee, we must look at whether any delivery/transportation charge was paid or received. In the instant case, then, to determine whether Driver carried property for a fee, we must focus purely on whether there was a delivery fee charged by Frankie’s Pizza or paid by Frankie’s Pizza’s customers.

¶ 7 In the instant case, Frankie’s Pizza did not impose a delivery charge. Any tips Driver received were gratuitous; thus, they do not constitute “fees” under any of the dictionary- definitions listed. In addition, Frankie’s Pizza did not pay Driver based on the number of deliveries made. Driver’s wages were independent of the tasks he performed. He received the same wage whether he continuously delivered pizzas or whether he worked inside the pizzeria during his shift. See Aetna, 614 A.2d at 278-79 (“money passing ... to the operator of a car, though associated with the carrying of [property], may or may not be a consideration for such carrying”).

¶ 8 Thus, whether Driver carried property “for a fee” depends on the interpretation of “fee.” Under the broader interpretation, Driver carried property for a fee because it occurred in the regular scope of his employment. Under another reasonable, albeit narrower, interpretation of the policy language, Driver did not carry property for a fee because there was no delivery charge. Accordingly, I conclude that there are two different, reasonable interpretations with differing outcomes. Thus, the language is ambiguous. See Madison Constr. Co., 735 A.2d at 106. This narrow*93er interpretation does not force insurance companies to draft exclusions covering “every possible factual scenario,” Slip. Op. at 8, rather, the company need only define in the policy what constitutes a “fee.” In the absence of such a definition in the policy, and based on the plain, ordinary meaning of the policy language, see Egger v. Gulf Ins. Co., 864 A.2d 1234, 1242 (Pa.Super.2004), I conclude that an ambiguity exists. Since we construe ambiguous policy provisions in favor of the insured, see Madison Constr. Co., 735 A.2d at 106, I would conclude that the “Cars for Hire” exclusion does not apply to vitiate Prudential’s coverage obligation under the policy. Accordingly, I would affirm the trial court order granting Frankie’s motion for summary judgment. For these reasons, I respectfully dissent.