Precision Underground v. Penn Natl. Mutual ( 2019 )

J-A22019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PRECISION UNDERGROUND PIPE : IN THE SUPERIOR COURT OF
SERVICES, INC. : PENNSYLVANIA
:
Appellant, :
:
:
v. :
:
:
PENN NATIONAL MUTUAL CASUALTY :
AND VERIZON PENNSYLVANIA, LLC :
AND PARKSIDE UTILITY :
CONSTRUCTION, LLC AND POHLIG :
BUILDERS, INC., AND CHRISTOPHER :
HAMMELL AND CHRISTINE HAMMELL :
:
Appellees : No. 3663 EDA 2018
Appeal from the Order Entered December 3, 2018
In the Court of Common Pleas of Philadelphia
County Civil Division at No(s): 170902368
BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 03, 2019
Precision Underground Pipe Services, Inc. (Precision) appeals from the
order entered December 3, 2018, which denied Precision’s motion for partial
summary judgment and granted summary judgment in favor of Penn
National Mutual Casualty (Penn National). In that order, the trial court
concluded that Penn National had no duty to defend or indemnify Verizon
Pennsylvania, LLC (Verizon) and Parkside Utility Construction, LLC (Parkside)
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A22019-19
in an underlying civil action.1 After review, we reverse the order granting
summary judgment and remand for further proceedings.
The trial court provided the relevant factual and procedural history of
this matter.
Verizon entered into a contract with Parkside (Verizon-
Parkside Agreement) to install an underground conduit for
Verizon’s fiber optic cable in connection with a real estate
development on the Ardrossan Farm Development in Radnor
Township, Villanova, [Pennsylvania]. The Verizon-Parkside
Agreement required Parkside to name Verizon as an additional
insured on its policies of insurance and to provide a defense and
indemnity to Verizon. On October 28, 2014, Parkside entered
into a subcontract and hired Precision to provide necessary labor
[(Parkside-Precision Agreement).] The subcontract required
Precision to name Parkside and Verizon as additional insureds on
the Penn National Policy [(Policy)] under certain conditions.
Pursuant to the subcontract, any insurance coverage provided to
Parkside or Verizon under the Policy was to be primary and
noncontributory with respect to any other insurance available to
Parkside and/or Verizon. The Parkside-Precision Agreement also
required Precision to “defend, indemnify, and hold harmless”
Parkside and Verizon.
Penn National issued to Precision a policy of commercial
general liability insurance with an effective date of January 4,
2016 to January 4, 2017, and a policy limit of $1 million per
occurrence and $2 million in the aggregate. Critically, the policy
contains an “Automatic Additional Insureds- Owners,
Contractors, and Subcontractors” endorsement which provides in
part:
SECTION II- WHO IS AN INSURED
____________________________________________
1 According to Precision, Pohlig Builders, Inc. (Pohlig), “Verizon, Parkside and
[the Hammells] are named as defendants in the instant action only to the
extent they may have an interest in Precision’s claim against Penn National
and may be considered indispensable parties for purposes of this declaratory
judgment action.” Complaint, 9/20/2017, at ¶ 9.
-2-
J-A22019-19
1. Any person(s) or organization(s) (referred to
below as additional insured) with whom you are
required in a written contract or agreement to name
as an additional insured, but only with respect to
liability for “bodily injury,” “property damage” or
“personal and advertising injury” caused, in whole or
in part, by:
(1) Your acts or omissions; or
(2) The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location or project
described in the contract or agreement. A person’s or
organization’s status as an additional insured under
this agreement ends when your operations for that
additional insured are completed.
On April 8, 2016, Christopher Hammell [(Hammell)], an
employee of Precision, suffered injuries when he fell into a
trench at a work site near Villanova, Pennsylvania. [The
Hammells] filed an action against Parkside and Verizon, as well
as other defendants in the Court of Common Pleas,
Philadelphia.1
______
1 The action is captioned [Hammell v. Pohlig Homes,
LLC, et. al.], CP Phila 1701-2119 [(Hammell).2] Precision
____________________________________________
2 “On August 13, 2018, a Suggestion of Death was filed for [] Hammell. On
the same date, the Estate of Christopher Hammell was substituted for []
Hammell.” Precision’s Brief at 2, n.1. “After [the trial court’s] order
granting summary judgment to Penn National was issued, [Hammel’s] wife
filed a second amended complaint[,]” which “alleged that the pain from
Hammell’s fall caused him to become addicted to opioids and that this
addiction resulted in an overdose and his death. In addition, the claims of
negligence were expanded.” Id. at 5, n.1.
-3-
J-A22019-19
is not an original party to this action; nor has Precision[3]
been joined or named in any pleading.
The [A]mended [C]omplaint[4] in the underlying action alleges as
follows:
[7.] Verizon and Parkside “owned, operated,
maintained, managed, supervised, possessed and/or
controlled the premises at or near Villanova,
[Pennsylvania].”
[8.] At all times material hereto, “there was a
dangerous and hazardous condition in the nature of
a trench at the premises.”
[9.] At all times relevant hereto, Verizon and
Parkside “had a common law duty and/or a
contractual duty to protect workers at the premises.”
[10.] Verizon and Parkside had a duty to protect
Precision’s workers “from unreasonably dangerous
conditions caused by its conduct and/or failure to
act.”
[11.] At all times relevant hereto, Verizon and
Parkside “acted and/or failed to act by and through
their respective agents, servants, workmen and/or
employees.”
____________________________________________
3 “Precision was not named as a defendant in [Hammell], as Precision was
Hammell’s employer and immune from suit pursuant [to] the Pennsylvania
Workers’ Compensation Act.” Action for Declaratory Judgment, 9/20/2017,
at ¶ 17. See 77 Pa. Stat. Ann. § 481 (“The liability of an employer under
th[e Workers’ Compensation A]ct shall be exclusive and in place of any and
all other liability[.]”).
4 According to Precision, the averments set forth in the Amended Complaint,
which are pertinent to this appeal, “are identical to the averments in the
initial complaint. The only significant differences are that additional
defendants have been added to the [A]mended [C]omplaint and the
paragraphing has been adjusted.” Precision’s Brief at 5, n.1.
-4-
J-A22019-19
[16.] On April 8, 2016, at approximately 1:30 p.m.,
Hammell was working as an employee for Precision
at or near Villanova, Pa. when a trench gave way
and/or he fell in a trench, causing him to sustain
serious injuries.
[28 a-i and 30 a-i.] The aforesaid act was caused as
a direct and proximate result of the carelessness and
negligence of defendants Verizon and Parkside, by
and through their agents, servants, workmen and/or
employees and their negligence.
On February 21, 2017, Parkside, claiming to be one of
Precision’s named additional insureds, tendered demand that
Penn National defend and indemnify Parkside. Parkside’s tender
was based on Precision’s position, reflected in this declaratory
judgment action, that both Parkside and Verizon are additional
insureds under the [P]olicy issued to Precision. On April 7, 2017
and August 21, 2017, respectively, Penn National declined to
provide additional insured coverage to Verizon and Parkside on
grounds that the [A]mended [C]omplaint in [Hammell] does not
allege that negligence by Precision caused [] Hammell’s injury.
Trial Court’s Memorandum Opinion, 2/8/2019, at 1-4 (citations omitted).
On September 20, 2017, Precision filed the instant action against, inter
alia, Penn National, asserting it was entitled to declaratory judgment5 and
“damages for breach of contract for failing to provide a defense and
indemnity to alleged additional insureds” Id. at 4. According to Penn
National, the averments set forth in the underlying action did not trigger
coverage under the Policy. Penn National’s Answer and New Matter,
11/3/2017, at 4.
____________________________________________
5 See 42 Pa.C.S. §§ 7531-41 (Declaratory Judgments Act).
-5-
J-A22019-19
Following discovery, Precision filed a motion for partial summary
judgment. See Precision’s Motion for Partial Summary Judgment,
6/1/2018.6 On August 20, 2018, Penn National filed a cross-motion for
summary judgment. On December 3, 2018, the trial court denied Precision’s
motion for partial summary judgment and granted Penn National’s motion.
Specifically, the trial court found that “[s]ince Precision is neither a named
defendant nor otherwise implicated in [Hammell,] Penn National does not
have a duty to defend Verizon and Parkside as additional insureds.”
Memorandum Opinion, 2/8/2019, at 8 (footnote omitted). Moreover, the
trial court found that, because “there is no duty to defend, the remaining
claim for breach of contract also fails. There is also no duty to indemnify.”
Id. at 8, n.8.
This timely-filed appeal followed.7 Although presented as four distinct
issues, Precision’s claims on appeal are all interrelated. Thus, we shall
address them together. In essence, Precision asserts the trial court erred in
____________________________________________
6 Precision’s motion for partial summary judgment is not included in the
certified record before us. “While this Court generally may only consider
facts that have been duly certified in the record, [] where the accuracy of a
document is undisputed and contained in the reproduced record, we may
consider it.” Commonwealth v. Barnett, 121 A.3d 534, 546 n.3 (Pa.
Super. 2015). Here, the reproduced record contains Precision’s motion and
there is no dispute as to its contents. Therefore, we considered the
document in our review.
7 Both Precision and the trial court complied with Pa.R.A.P. 1925.
-6-
J-A22019-19
determining that Penn National was entitled to summary judgment because
Penn National’s “duty to defend was not triggered by the” Amended
Complaint. Precision’s Brief at 15. Specifically, Precision argues that, in
determining that Penn National had no duty to defend, the trial court inter
alia: (1) “read the [Amended C]omplaint too narrowly, ignoring the claim
that Verizon and Parkside, for whom Precision was working as a
subcontractor, failed to protect Hammell, Precision’s employee, from
dangerous conditions created by Precision[;]” and (2) “erred in
distinguishing Ramara Inc. v. Westfield Insurance Co., 814 F.3d 660 (3d
Cir. 2017),[8] a case on all points with the instant action, including the same
additional insured endorsement.” Precision’s Brief at 15. We begin with the
relevant legal principles.
“In a declaratory judgment action, just as in civil actions generally,
summary judgment may be granted only in those cases in which the record
clearly shows that there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.” Certain
____________________________________________
8 “[T]he holdings of federal circuit courts bind neither this Court nor the trial
court, but may serve as persuasive authority in resolving analogous cases.”
Montagazzi v. Crisci, 994 A.2d 626, 635, n.7 (Pa. Super. 2010). In
Ramara, the Third Circuit Court of Appeals determined that the allegations
in an underlying negligence complaint were enough to trigger an insurer’s
duty to defend an additional insured, despite the fact that the named insured
was not a party in the underlying cause of action. Ramara, 814 F.3d at
677-80.
-7-
J-A22019-19
Underwriters at Lloyds v. Hogan, 852 A.2d 352, 354 (Pa. Super. 2004)
(citation and quotation marks omitted). When reviewing a challenge to an
order granting summary judgment, our standard of review is well settled. “A
reviewing court may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its discretion.
As with all questions of law, our review is plenary.” Krauss v. Trane U.S.
Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014) (citations omitted).
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.
***
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [its] cause 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. Thus, a record that
supports summary judgment will either (1) show the material
facts are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury.
H & R Block E. Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 248–49 (Pa.
Super. 2013) (citations omitted); see also Pa.R.Civ.P. 1035.2.
An insurer’s duty to defend an action against the insured is
measured, in the first instance, by the allegations in the
plaintiff's pleadings[.] This duty is distinct from and broader
than an insurer’s duty to provide indemnification. Provided the
underlying allegations encompass an injury that is actually or
potentially within the scope of the policy, an insurer must defend
-8-
J-A22019-19
its insured. This duty to defend persists until the claim is
confined to a recovery that the policy does not cover.
***
In the context of a declaratory judgment action, the court
resolves the question of coverage. By comparing the allegations
to the insurance policy provisions, we determine whether, if the
allegations are sustained, the insurer would be required to pay
[a] resulting judgment[.]
The question of whether a claim against an insured is
potentially covered is answered by comparing the four corners of
the insurance contract to the four corners of the complaint.[9]
Kiely on Behalf of Feinstein v. Philadelphia Contributionship Ins. Co.,
206 A.3d 1140, 1145–46 (Pa. Super. 2019) (citations, quotation marks and
emphasis in the original omitted).
In this case, the trial court concluded that,
after applying the four corners rule to the [A]mended
[C]omplaint in Hammell and after liberally construing and
accepting as true its factual allegations, we find that Verizon and
Parkside are not entitled to coverage by [] Penn National. There
is simply no suggestion in the Amended Complaint or any other
pleading, that Precision can be blamed for an act or omission
that caused [] Hammell’s injuries. As defined in [the P]olicy,
there are no additional insureds [] and therefore no duty to
defend either Verizon or Parkside.
____________________________________________
9 Looking beyond the four corners of the complaint, such as considering
extrinsic evidence, is prohibited and departs “from the well-established
precedent … requiring that an insurer’s duty to defend and indemnify be
determined solely from the language of the complaint against the insured.”
Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins.
Co., 908 A.2d 888, 896 (Pa. 2006).
-9-
J-A22019-19
To trigger additional insured coverage under the [P]olicy,
the [Amended C]omplaint needed to allege, at the very least,
that [] Hammell’s bodily injuries were caused, in whole or in
part, by Precision, or by someone acting on Precision’s behalf,
such as an agent. The Amended Complaint only claims Parkside
and Verizon had a duty to protect [] Hammell because he was an
employee of an unnamed company which may have somehow
been responsible for dangerous conditions. But in the underlying
case, [] Hammell [] never names Precision specifically or alleges
anything cognizable about Precision’s conduct that might have
been at fault. What [Precision] alleges in the underlying case is
not enough, and Penn [National’s] duty to defend or indemnify is
not activated. … Precision relies on language at Paragraph [10]
of the Amended Complaint. In pertinent part, Paragraph 10
reads as follows:
“...defendants...had a duty to protect workers of
Precision [] from unreasonably dangerous conditions
caused by its conduct and/or failure to act.”
(Italics added).
Precision relies on the pronoun “its” to expose Precision to
potential liability for [] Hammell’s injuries. While Paragraph 10
lays on “defendants[,” which include Parkside and Verizon,] a
duty to protect workers like Hammell from dangerous conditions
caused by Precision, palpably missing is any allegation that
Precision actually caused such dangerous conditions in the first
place. Moreover, Precision cannot be one of the “defendants”
described in Paragraph 10 as Precision is not a defendant party
in Hammell.
***
Since Precision is neither a named defendant nor otherwise
implicated in Hammell [], Penn National does not have a duty to
defend Verizon and Parkside as additional insureds.11
______
11 Since th[e trial] court finds that there is no duty to
defend, the remaining claim for breach of contract also
fails. There is also no duty to indemnify.
- 10 -
J-A22019-19
Trial Court Memorandum Opinion, 2/8/2019, at 6-8 (some citations and
footnotes omitted).10 Upon review, we conclude that such a narrow reading
of the Amended Complaint by the trial court constitutes reversible error.
An insurer may not justifiably refuse to defend a claim
against its insured unless it is clear from an examination of the
allegations in the complaint and the language of the policy that
the claim does not potentially come within the coverage of the
policy. See [] Springfield Tp. et al. v. Indemnity Ins. Co. of
North America, [64 A.2d 761 (Pa. 1949)] (“It is not the actual
details of the injury, but the nature of the claim which
determines whether the insurer is required to defend.”). In
making this determination, the factual allegations of the
underlying complaint against the insured are to be taken as true
and liberally construed in favor of the insured. Indeed, the duty
to defend is not limited to meritorious actions; it even extends to
____________________________________________
10 Additionally, the trial court found that the two cases cited by Precision,
Ramara and Zurich American Ins. Co. v. Indian Harbor Insurance
Company, 235 F.Supp. 699 (ED.Pa. 2017), were distinguishable from the
instant matter. See Trial Court Memorandum Opinion, 2/8/2019, at at 7
(finding that, in Ramara, the underlying complaint “specifically alleges that
the injured worker’s employer was an independent contractor who through
its agents, ‘failed to adequately inspect and monitor the work performed.’
Agency[,] coupled with specific factual allegation[s,] were enough for the
Ramara Court to find a duty to defend. In contrast, in his underlying
Amended Complaint, [] Hammell did not aver agency nor did he allege
specific conduct or omission by Precision that allegedly contributed to his
injuries.”). See also id. at 8 (finding that, unlike the instant matter, “the
underlying complaint in Zurich American contains allegations that could be
construed to implicate liability of a property owner who had contracted for
window washing services with plaintiff’s employer, LWC City, Inc.” … In
contrast, [] Hammell’s Amended Complaint does not allege any agency
whatsoever between Precision and Parkside (the developer) and makes no
cognizable factual claim that Precision acted as an agent of Verizon. The
relevant averment ambiguously states that Parkside and Verizon “at all
times acted and/or failed to act by and through their respective agents,
servants, workmen and/or employees.” Unlike the averments against
Rittenhouse in Zurich America, there are none in the Hammell Amended
Complaint that lays out negligence by Precision or its agents.”).
- 11 -
J-A22019-19
actions that are “groundless, false, or fraudulent” as long as
there exists the possibility that the allegations implicate
coverage.
Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 2 A.3d 526, 541 (Pa.
2010) (some citations and quotation marks omitted). Thus, “[a]s long as
the complaint ‘might or might not’ fall within the policy’s coverage, the
insurance company is obliged to defend. Accordingly, it is the potential,
rather than the certainty, of a claim falling within the insurance policy that
triggers the insurer’s duty to defend.” Id. (citations omitted).
Here, the central issue to be resolved is whether the Amended
Complaint alleged sufficiently that Hammell’s injuries were “caused, in
whole, or in part” by Precision’s acts or omissions or by the acts or omissions
of someone acting on Precision’s behalf. If it did, the additional insured
coverage is triggered and Penn National has a duty to defend Parkside and
Verizon. If the Amended Complaint failed to establish the foregoing, Penn
National would have no obligation to defend these additional insureds. To
make this determination, we compare the scope of coverage set forth in the
Policy to the allegations in the Amended Complaint.
As set forth supra, the Policy covers additional insureds with respect to
liability for, inter alia, bodily injury, which is caused “in whole or in part” by
Precision’s “acts or omissions” or the “acts or omissions of those acting on”
Precision’s behalf “in the performance of [Precision’s] ongoing operations for
the additional insured(s) at the location or project described in the contract
- 12 -
J-A22019-19
or agreement.” Complaint, 9/20/2017, at Exhibit C. In his Amended
Complaint, Hammell averred, in relevant part, that Verizon and Parkside
“owned, operated, maintained, managed, supervised, possessed and/or
controlled [] premises at or near Villanova, [Pennsylvania.]” Amended
Complaint, 2/7/2018 at ¶ 7. Hammell further stated that, during the
relevant period of time there was “a dangerous and hazardous condition in
the nature of a trench at the premises” and that Parkside and Verizon had a
“contractual duty to protect workers at the premises.” Id. at ¶¶ 8-9.
Hammell claimed he was injured while working for Precision “at or near
Villanova, [Pennsylvania,] when a trench gave way and/or he fell in the
trench, causing him to sustain serious injuries.” Id. at ¶ 16. Most notably,
Hammell asserted that Parkside and Verizon had a duty to protect
employees of Precision, like Hammell, “from unreasonably dangerous
conditions caused by its conduct and/or failure to act.” Id. at ¶ 10
(emphasis added).
Reviewing the Policy in conjunction with the Amended Complaint, we
find Hammell’s allegation that Verizon and Parkside had a duty to protect
Precision’s workers from unreasonably dangerous conditions caused by
Precision’s “conduct and/or failure to act” sufficient to trigger Penn National’s
duty to defend Verizon and Parkside as additional insureds. In doing so, we
find, unlike the trial court, the fact that Hammell did not make any overt
allegations of negligence or wrongdoing against Precision, Hammell’s
- 13 -
J-A22019-19
employer, does not foreclose Penn National’s duty to defend. Put simply, we
find the Amended Complaint set forth allegations of the existence of
unreasonably dangerous conditions, see Amended Complaint, 2/7/2018, at
¶ 8 (“At all times material hereto, there was a dangerous and hazardous
condition in the nature of a trench at the premises”), and that Verizon and
Parkside had duty to protect Hammell from unreasonably dangerous
conditions caused by Precision’s “conduct and/or failure to act.” Id. at ¶
10. In construing the Amended Complaint liberally, and in favor of the
insured, we find the allegations adequate to establish Penn National’s duty to
defend. See Biborosch v. Transamerica Ins. Co., 603 A.2d 1050, 1052
(Pa. Super. 1992) (“[T]he factual allegations of the complaint are taken to
be true and the complaint is to be liberally construed with all doubts as to
whether the claims may fall within the coverage of the policy to be resolved
in favor of the insured.”).
Accordingly, we conclude that the Amended Complaint set forth
sufficient averments which triggered Penn National’s duty to defend its third-
party insureds, Parkside and Verizon. Thus, we find that the trial court erred
in granting Penn National’s motion for summary judgment.
Order granting summary judgment reversed. Case remanded for
further proceedings. Jurisdiction relinquished.
- 14 -
J-A22019-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/19
- 15 -