Nationwide Mutual Fire Ins. Co. v. Benjamin, L. ( 2021 )

J-S44026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATIONWIDE MUTUAL FIRE : IN THE SUPERIOR COURT OF
INSURANCE COMPANY : PENNSYLVANIA
:
:
v. :
:
:
LEE BENJAMIN, JR., BENJAMIN :
CONSTRUCTION, LEE BENJAMIN : No. 190 MDA 2020
CONSTRUCTION, BENJAMIN :
ROOFING AND MODULAR HOMES, :
JAMIE DIETTERICK, AND MARK :
DAVENPORT :
:
:
APPEAL OF: LEE BENJAMIN, JR., :
BENJAMIN CONSTRUCTION, LEE :
BENJAMIN CONSTRUCTION, :
BENJAMIN ROOFING AND MODULAR :
HOMES :
Appeal from the Order Entered January 2, 2020
In the Court of Common Pleas of Columbia County Civil Division at
No(s): 2017-CV-1182
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 22, 2021
Appellants Lee Benjamin, Jr., Benjamin Construction, Lee Benjamin
Construction, and Benjamin Roofing and Modular Homes appeal from the
order granting the motion for summary judgment in favor of Appellee
Nationwide Mutual Fire Insurance Company.1 On appeal, Appellants contend
____________________________________________
1 The remaining two captioned defendants, Jamie Dietterick and Mark
Davenport, are not parties to this appeal.
J-S44026-20
they were insured for the accident and that the Nanty-Glo2 rule precluded
any grant of summary judgment. We affirm.
We adopt the facts and procedural history as set forth in the trial court’s
opinion. See Trial Ct. Op., 1/2/20, at 1-3. As the trial court accurately
quoted, Appellants’ commercial liability insurance policy with Appellee had the
following relevant exclusions:
d. Workers’ Compensation And Similar Laws
Any obligation of the insured under a workers’ compensation
disability benefits or unemployment law or any similar law.
e. Employer’s liability
“Bodily Injury” to:
(1) An “employee” of the insured arising out and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s
business; or
(2) The spouse, child, parent, brother or sister of that “employee”
as a consequence of Paragraph (1) above.
This exclusion applies whether the insured may be liable as an
employer or in any other capacity and to any obligation to share
damages with or repay someone else who must pay damages
because of the injury.
R.R. at 30a.3
____________________________________________
2Borough of Nanty-Glo v. Am. Surety Co. of New York, 163 A. 523 (Pa.
1932). We discuss the Nanty-Glo rule in further detail below.
3 We may cite to the reproduced record for the parties’ convenience.
-2-
J-S44026-20
The insurance policy defined “employee” as follows:
5. “Employee” includes a “leased worker”. “Employee” does not
include a “temporary worker”.
* * *
10. "Leased worker" means a person leased to you by a labor
leasing firm under an agreement between you and the labor
leasing firm, to perform duties related to the conduct of your
business. “Leased worker” does not include a “temporary worker”.
* * *
19. “Temporary worker” means a person who is furnished to you
to substitute for a permanent “employee” on leave or to meet
seasonal or short-term workload conditions.
R.R. at 41a-42a, 44a.
On January 2, 2020, the trial court granted Appellee’s motion for
summary judgment. Order, 1/2/20.4 The trial court applied the factors set
forth in Hammermill Paper Co. v. Rust Eng’g Co., 243 A.2d 389, 392 (Pa.
1968) (Hammermill),5 and held that Davenport was Appellants’ employee
____________________________________________
4 The order, although dated December 26, 2019, was not docketed until
January 2, 2020.
5 Briefly, “a determination regarding the existence of an employer/employee
relationship is a question of law that is determined on the unique facts of each
case.” Shay v. Flight C Helicopter Servs., Inc., 822 A.2d 1, 13 (Pa. Super.
2003) (citation omitted and formatting altered). In resolving that question,
the factors set forth by the Hammermill Court are applied:
While no hard and fast rule exists to determine whether a
particular relationship is that of employer-employee or owner-
independent contractor, certain guidelines have been established
and certain factors are required to be taken into consideration:
-3-
J-S44026-20
under those factors. Id. at 5-8. The trial court also held that Davenport was
not an independent contractor under the Construction Workplace
Misclassification Act (CWM Act), 43 P.S. §§ 933.1 to 933.17, which we discuss
in further detail below. Id. at 8-11. The trial court held that the policy
excluded coverage and therefore granted Appellee’s motion for summary
judgment. Id. at 12. Appellants timely appealed and timely filed a court-
ordered Pa.R.A.P. 1925(b) statement.
Appellants raise the following issues, which we reordered to facilitate
disposition.
1. Whether the trial [court] erred in granting Appellee’s Motion for
Summary Judgement where the Nanty-Glo Rule prevents the
entry of Summary Judgment in this matter.
2. Whether the trial [court] erred in granting Appellee’s Motion for
Summary Judgement where the exclusion language at issue is
ambiguous, and therefore should be found to not exclude
coverage to [Appellants].
3. Whether the trial [court] erred in granting Appellee’s Motion for
Summary Judgement where Mark Davenport was not an
employee of [Appellants] at the time of the injury, was a
volunteer, or Davenport’s employment was casual in nature.
____________________________________________
Control of manner work is to be done; responsibility for
result only; terms of agreement between the parties; the
nature of the work or occupation; skill required for
performance; whether one employed is engaged in a distinct
occupation or business; which party supplies the tools;
whether payment is by the time or by the job; whether work
is part of the regular business of the employer, and also the
right to terminate the employment at any time.
Id. at 13-14 (citation omitted and formatting altered).
-4-
J-S44026-20
Appellants’ Brief at 5 (formatting altered).
In support of their first issue, after summarizing the Nanty-Glo rule,
Appellants’ entire argument follows:
In the case at bar, . . . Appellee solely relies on the deposition of
Mark Davenport, Lee Benjamin, the Complaint of Mr. Davenport
in the underlying injury accident, and the policy at issue. The trial
court should still have weighed the credibility of the testimony of
Mark Davenport and Lee Benjamin to determine whether or not,
as a matter of law, Davenport was an employee of [Appellants].
Therefore, the summary judgment motion should have been
denied.
Id. at 18-19 (some formatting altered).
The following standard and scope of review applies:
When reviewing the decision of the trial court in a declaratory
judgment action, our scope of review is narrow. Consequently,
we are limited to determining whether the trial court’s findings are
supported by substantial evidence, whether an error of law was
committed or whether the trial court abused its discretion. The
test is not whether we would have reached the same result on the
evidence presented, but whether the trial court’s conclusion can
reasonably be drawn from the evidence. Where the trial court’s
factual determinations are adequately supported by the evidence
we may not substitute our judgment for that of the trial court.
Consolidation Coal Co. v. White, 875 A.2d 318, 325 (Pa. Super. 2005)
(citation omitted).
Because summary judgment was granted in this declaratory judgment
action, we also adhere to the following standard of review:
Our scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is clear:
the trial court’s order will be reversed only where it is established
that the court committed an error of law or abused its discretion.
-5-
J-S44026-20
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the existence
of a genuine issue of material fact against the moving party. Only
when the facts are so clear that reasonable minds could not differ
can a trial court properly enter summary judgment.
Michael v. Stock, 162 A.3d 465, 472-73 (Pa. Super. 2017) (citation omitted).
“The Nanty-Glo rule means the party moving for summary judgment
may not rest solely upon its own testimonial affidavits or depositions, or those
of its witnesses, to establish the non-existence of genuine issue of material
fact.” Wells Fargo Bank, N.A. v. Premier Hotels Grp., LLC, 177 A.3d 248,
250 (Pa. Super. 2017) (citation omitted and formatting altered). The rule
does not apply “where the moving party supports the motion by using
admissions of the opposing party or the opposing party’s own witness.”
Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa. Super. 2006) (citation omitted
and formatting altered); see also Com., Dept. of Environmental
Resources v. Bryner, 613 A.2d 43, 46 n.4 (Pa. Cmwlth. 1992) (explaining
that “the Nanty-Glo rule does not apply where, as here, the deposition
testimony offered in support of a summary judgment constitutes an adverse
admission of a non-moving party.” (citation omitted)).
Here, in support of Appellee’s motion for summary judgment, Appellee
relied on the deposition testimony of Davenport and Benjamin, both of whom
are adverse parties to Appellee. Therefore, the trial court correctly held that
-6-
J-S44026-20
the Nanty-Glo rule does not apply. See Lineberger, 894 A.2d at 149;
Bryner, 613 A.2d at 46 n.4.
Next, we summarize Appellants’ argument for their second issue.
Appellants begin by quoting the definitions of “employee” and “temporary
worker,” from the policy at issue, which we previously quoted above.
Appellants’ Brief at 13. Appellants’ one paragraph argument follows:
These definitions and exclusions are the very definition of
ambiguous. None of the above referenced exclusions adequately
or clearly defines employee. Appellant argues that this alone is
enough to permit reversal of the [trial] court as “employee” is not
defined under the policy. However, assuming arguendo that a
standard definition is applied by the Court to determine if
Davenport was an employee. [sic]. The crux of this matter then
becomes whether Mark Davenport was an employee of Lee
Benjamin. It is clear from the testimony that he is not an
employee, he was volunteering his time for something to do.
Id. at 14.
By way of background, in interpreting an insurance policy, we are guided
by the following:
The interpretation of an insurance policy is a question of law that
we will review de novo. Our primary goal in interpreting a policy,
as with interpreting any contract, is to ascertain the parties’
intentions as manifested by the policy’s terms. When the
language of the policy is clear and unambiguous, we must give
effect to that language. Alternatively, when a provision in the
policy is ambiguous, the policy is to be construed in favor of the
insured to further the contract’s prime purpose of indemnification
and against the insurer, as the insurer drafts the policy, and
controls coverage.
A contract is ambiguous if it is fairly susceptible of different
constructions and capable of being understood in more than one
sense. This question is not to be resolved in a vacuum. Rather,
contractual terms are ambiguous if they are subject to more than
-7-
J-S44026-20
one reasonable interpretation when applied to a particular set of
facts.
Michael, 162 A.3d at 474 (citations omitted and formatting altered).
Instantly, Appellants summarily assert that “[t]hese definitions and
exclusions are the very definition of ambiguous. None of the above referenced
exclusions adequately or clearly defines employee.” Appellants’ Brief at 14.
Appellants, however, do not explain why or how Appellee’s definition of
“employee” and “temporary worker” are “the very definition of” ambiguous.
Appellants do not identify any other “reasonable interpretation when applied
to a particular set of facts.” See Michael, 162 A.3d at 474. This Court is not
a position to act as Appellants’ counsel and argue why these definitions are
purportedly ambiguous, let alone identify a particular set of facts. See Sutton
v. Bickell, 220 A.3d 1027, 1036 (Pa. 2019) (refusing to consider undeveloped
argument); Hess v. Hess, 212 A.3d 520, 526 (Pa. Super. 2019) (same).6
Appellants have not established entitlement to relief on this issue.
Last, Appellants argue that because Davenport was a volunteer, he was
not an employee under the CWM Act. Appellants’ Brief at 14. Appellants note
____________________________________________
6 See Collins v. Phila. Suburban Dev. Corp., 179 A.3d 69, 77 (Pa. Super.
2018) (refusing to consider the appellant’s four-sentence argument, which
was devoid of citation or analysis of relevant authority); see also
Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J.,
concurring) (“This Court is neither obliged, nor even particularly equipped, to
develop an argument for a party. To do so places the Court in the conflicting
roles of advocate and neutral arbiter.”).
-8-
J-S44026-20
that Davenport did not file a workers’ compensation claim. Id. Appellants
contend that this case is controlled by Brookhaven Baptist Church v.
Workers’ Comp. Appeal Bd., 912 A.2d 770 (Pa. 2006) (Brookhaven). Id.
at 16-17. After summarizing the facts of Brookhaven, Appellants argue as
follow:
In the case at bar, Benjamin testified that Davenport was there to
keep cars safe when they came through the alley, and to pick up
materials thrown off the roof. Davenport was not there to get on
the roof, which of course he did on his own accord. Second,
Davenport’s alleged employment was clearly occasional, irregular
or incidental, in that he was only helping out for the second time
with Benjamin. In fact, Benjamin Construction has no employees
according to Lee Benjamin. Helping out twice with no prearranged
negotiated payment arrangement is clearly casual in nature.
Id. at 17-18.7
By way of background, the CWM Act “concerns the construction industry
and affects the determination of who is an independent contractor versus an
employee” “for purposes of workers’ compensation.” Dept. of Labor &
Indus. v. Workers’ Comp. Appeal Bd., 155 A.3d 103, 111 (Pa. Cmwlth.
2017) (footnote and citation omitted).8 Simply, “[i]f a worker falls within the
____________________________________________
7 In relevant part, Appellee notes that although the trial court relied on
Hammermill, Appellants have not cited or discussed Hammermill in its
appellate brief. Appellee’s Brief at 23 n.5 (arguing “how can [Appellants]
satisfy their burden on appeal when they have not even addressed the
controlling legal framework underlying the issue they raised before this
Honorable Court?”).
8“We note that this Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
-9-
J-S44026-20
purview of the [CWM Act] and does not meet the requirements to be
considered an independent contractor under the [CWM Act], then that
individual will be deemed to be an employee for purposes of workers’
compensation.” Id. (citation omitted). The Commonwealth’s Department of
Labor & Industry (Department of Labor) enforces the CWM Act:
(d) Enforcement.—If, subsequent to issuing an order to show
cause under subsection (c), the secretary finds probable cause
that an employer has committed a criminal violation of this act,
the secretary shall refer the matter to the Office of Attorney
General for investigation or impose administrative penalties under
section 6.
43 P.S. § 933.4(d).9 See generally Dept. of Labor & Indus., 155 A.3d at
113 & nn.17-18 (discussing Department of Labor’s enforcement activities and
noting legislative history that the CWM Act was intended to give enforcement
power to the Department of Labor).
Instantly, Appellee correctly notes that Appellants’ appellate brief fails
to address the trial court’s Hammermill analysis. Appellants do not challenge
the trial court’s Hammermill reasoning and explain how the trial court erred.
____________________________________________
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Haan v. Wells, 103 A.3d 60, 68 n.2 (Pa. Super. 2014) (citation
omitted and formatting altered).
9 See also 43 P.S. § 933.6 (discussing the administrative penalties that may
be imposed by the “Secretary of Labor and Industry of the Commonwealth or
the secretary’s authorized representative” (referencing § 933.2)), § 933.7
(stating that the secretary may issue a stop-work order for any violation), §
933.8 (noting that certain actions are subject to the provisions of
administrative law), § 933.17 (stating “the department shall not be required
to enforce this act until adequate funding is appropriated”).
- 10 -
J-S44026-20
Even if we held that the trial court erred regarding its interpretation of the
CWM Act, Appellants simply did not dispute the trial court’s application of
Hammermill. Appellants therefore have not established any basis for this
Court to reverse the trial court’s order.
Regardless, Appellants cannot rely on the CWM Act, as the CWM Act
impacts only workers’ compensation law and not the interpretation of
insurance policies. See Dept. of Labor & Indus., 155 A.3d at 111. Further,
only the Commonwealth’s Department of Labor may enforce the CWM Act and
impose civil penalties. See 43 P.S. §§ 933.4(d), 933.6, 933.7, 933.8, 933.17;
Dept. of Labor & Indus., 155 A.3d at 113 & nn.17-18. The Commonwealth’s
Department of Labor is not a party to this action, and therefore the CWM Act
is inapplicable. For these reasons, Appellants are not entitled to relief. See
Michael, 162 A.3d at 472-73.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/22/2021
- 11 -