Hannibal, A. v. Solid Waste Services ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
AHMED HANNIBAL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SOLID WASTE SERVICES, INC. :
D/B/A J.P. MASCARO & SONS, INC. :
: No. 2799 EDA 2022
:
APPEAL OF: ADMIRAL INSURANCE :
COMPANY :
Appeal from the Order Entered October 5, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 200201172
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 19, 2023
Admiral Insurance Company (“Admiral”) appeals from the order denying
its petition for limited intervention in this action brought by Ahmed Hannibal
(“Hannibal”) against Admiral’s insured, Solid Waste Services, Inc. d/b/a J.P.
Mascaro & Sons, Inc. (“Mascaro”). We reverse the order and remand for
further proceedings.
Admiral issued a commercial general liability insurance policy, No.
CA000014543-10 (“the policy”), to Mascaro which provided defense and
indemnity coverage for claims covered by the policy. The policy contains an
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* Retired Senior Judge assigned to the Superior Court.
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auto exclusion (hereinafter “the auto exclusion”) which provides, in pertinent
part:
This insurance does not apply to “bodily injury,” . . . allegedly or
actually arising out of, related to, caused by, contributed to by, or
in any way connected to or with the ownership, maintenance, use,
or entrustment to others, by or on behalf of any insured of an
“auto,” . . .. “Use” includes, but is not limited to, operation and
“loading or unloading.”
See Policy, 11/1/18, at Endorsement AD 67 38 06 07.
In 2019, while the policy was in effect, Hannibal was injured when a
trash dumpster platform on which he was standing, moved and caused him to
fall and sustain injuries. At the time of the accident, the trash dumpster
platform was connected to a dumpster being serviced by Mascaro. In 2020,
Hannibal commenced the instant litigation against Mascaro alleging that
Mascaro was responsible for the maintenance, care, and upkeep of the
dumpster, Mascaro was negligent and careless, and that such negligence and
carelessness caused his injuries. The complaint asserted a claim for premises
liability and a claim for negligence. Notably, the complaint did not assert any
liability based on the ownership, maintenance, or use of an auto. Mascaro
tendered the complaint to Admiral, seeking defense and indemnity coverage
under the policy. Admiral agreed to provide a defense to Mascaro subject to
a full reservation of rights to deny coverage and withdraw its defense should
evidence reveal that the policy did not cover Hannibal’s claims. See
Reservation of Rights Letter, 6/1/20, at 2, 11-12. Discovery undertaken in
the litigation revealed that the platform on which Hannibal was standing
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moved because it was resting on a dumpster which was attached to a Mascaro
truck that was pulling away, thereby causing the accident.1
Admiral filed a declaratory judgment action in federal court seeking a
declaration of its coverage obligations under the policy. Therein, Admiral took
the position that the claims asserted by Hannibal were excluded from coverage
under the policy due to the auto exclusion. However, before any ruling was
made in the federal declaratory judgment action, Mascaro filed a motion to
dismiss the action as premature, and the federal court dismissed the action
without prejudice to refile it.
In March 2022, Admiral sought to intervene in the instant action for the
limited purpose of submitting a special interrogatory to the jury as to whether
Hannibal’s injuries and damages were caused by the ownership, maintenance,
or use of any auto. Admiral later clarified that it would only request
submission of the special interrogatory if the jury found that Mascaro had been
negligent and that such negligence was the proximate cause of Hannibal’s
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1 Admiral asserts that “Mascaro employee, Anibal Valentin Figueroa, testified
that he used a Mascaro truck to pull the dumpster away from the platform,
while unaware that Mr. Hannibal was still on the hinged metal panel which
bridges the gap between the dumpster loading platform and the outside edge
of the loading dock.” Admiral’s Brief at 39. Admiral further asserts that
Hannibal’s “expert, Randy Patarcity, has submitted a written report in which
he gives the opinion that this movement by the truck caused the hinged metal
panel to drop like a trap-door, causing Mr. Hannibal to fall, as well as the
opinion that Mr. Hannibal’s fall and injury was caused by Mr. Figueroa’s failure
to ensure that no one was on the dumpster platform before he moved the
dumpster with the Mascaro truck.” Id.
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injuries and damages. Both Hannibal and Mascaro opposed Admiral’s
intervention. On October 5, 2022, the trial court entered an order denying
intervention without conducting a hearing. Admiral filed a timely notice of
appeal. Admiral also requested, and the trial court granted, a stay of the
action pending resolution of this appeal. Both Admiral and the trial court
complied with Pa.R.A.P. 1925.
Admiral raises the following issues for our review:
1. Whether the [trial court] improperly refused [Admiral’s]
petition for limited intervention, thus denying [Admiral] the
right to present special interrogatories to the jury.
2. Whether the [trial court] erred by ruling on, and refusing,
[Admiral’s] petition for limited intervention without conducting
a hearing as required by Pa.R.C[iv].P. 2329.
Admiral’s Brief at 7 (unnecessary capitalization omitted).
Preliminarily, we must determine whether this appeal is properly before
us. For this Court to have jurisdiction, an appeal must be from an appealable
order. See Bogdan v. Am. Legion Post 153 Home Ass’n., 257 A.3d 751,
755 (Pa. Super. 2021). The Pennsylvania Rules of Appellate Procedure
delineate appealable orders as: final orders (see Pa.R.A.P. 341); interlocutory
orders as of right (see Pa.R.A.P. 311); interlocutory orders by permission (see
Pa.R.A.P. 312); and collateral orders (see Pa.R.A.P. 313). An order denying
the right to intervene is not appealable as a final order. See In re Barnes
Found., 871 A.2d 792, 794 (Pa. 2005) (citing Pa.R.A.P. 341, Note). However,
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an order denying intervention may be appealable as a collateral order or as
an interlocutory order by permission. See id.Here, Admiral appeals from the order denying its petition to intervene
on the basis that it is appealable as a collateral order pursuant to Rule 313(b).
Otherwise known as the collateral order doctrine, Rule 313(b) provides that
an interlocutory order is collateral and, therefore, immediately appealable, if
it is: (1) separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the question
presented is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost. See Pa.R.A.P. 313(b).
Case law has clarified how appellate courts should apply the three-part
analysis under the collateral order doctrine:
For the first prong of the analysis under Rule 313(b), a court
must determine whether the issue(s) raised in the order are
separable from the central issue of the ongoing litigation. Under
the second prong, in order to be considered too important to be
denied review, the issue presented must involve rights deeply
rooted in public policy going beyond the particular litigation at
hand. An issue is important if the interests that would potentially
go unprotected without immediate appellate review of that issue
are significant relative to the efficiency interests sought to be
advanced by the final judgment rule. Furthermore, with regard to
the third prong of the analysis, our Supreme Court explained that
whether a right is adequately vindicable or effectively reviewable,
simply cannot be answered without a judgment about the value
interests that would be lost through rigorous application of a final
judgment requirement.
Mortg. Elec. Registration Sys., Inc. v. Malehorn, 16 A.3d 1138, 1142 (Pa.
Super. 2011) (citations, quotation marks, and brackets in original omitted).
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We observe that the order denying Admiral’s petition to intervene
satisfies the separability prong under Rule 313(b) because Admiral’s right to
intervene is peripheral to the ultimate resolution of the instant action. See
Bogdan, 257 A.3d at 756 (concluding that the order denying the insurer’s
right to intervene in the litigation against its insured for the limited purpose
of submitting special interrogatories and a special verdict form to the jury
satisfied the separability prong under Rule 313(b)). The ultimate resolution
of the instant action is the jury’s determination as to whether Mascaro is liable
to Hannibal. Admiral’s right to intervene is separable from and collateral to
the main cause of action because Admiral merely seeks to ensure that, in
reaching its determination as to whether Mascaro is liable to Hannibal, the
jury makes certain factual findings which will resolve the coverage issues.
Furthermore, the order denying Admiral’s petition to intervene satisfies
the second prong under Rule 313(b) because the right involved is too
important to be denied review. Admiral seeks limited intervention in the
instant action to obtain a clear determination of the basis for any potential
jury verdict to assist with subsequent coverage determinations regarding its
indemnity obligations in a declaratory judgment action. Whether an insurance
policy affords coverage for a particular claim for loss, or whether the claim is
excluded from coverage by a specific policy exclusion, are questions often
resolved by and dependent upon factual determinations. These factual
determinations may sometimes be reached by purely objective means. See
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e.g., Erie Ins. Grp. v. Catania, 95 A.3d 320, 324 (Pa. Super. 2014)
(explaining that it was undisputed that the insured was injured while driving
a delivery truck which he did not own). However, in other instances, disputed
factual determinations must be made by a fact-finder. See Bogdan, 257 A.3d
at 758 (remanding to permit intervention by the insurer to submit special
interrogatories to the jury to distinguish damages recoverable for pre-shooting
injuries from those resulting from the fatal shooting for purposes of
determining which damages were excluded by a policy exclusion). A
declaratory judgment action will not address the same issues as Admiral’s
petition to intervene because, whereas the petition to intervene will seek to
address the factual basis for any verdict against Mascaro, a declaratory
judgment action will address the interpretation of the policy and provide a
declaration as to whether the policy affords indemnity coverage for any
judgment entered against Mascaro. See id.; see also Erie Ins. Exchange
v. Muff, 851 A.2d 919, 925 (Pa. Super. 2004) (explaining that the
interpretation of an insurance policy is a matter of law properly resolved in a
declaratory judgment action). Accordingly, the petition to intervene in the
instant action is the only way for Admiral to secure the specific factual reasons
for any potential verdict against Mascaro, and, if appropriate, to sustain its
burden of establishing—in a subsequent declaratory judgment action—
whether any policy exclusions apply to preclude indemnity coverage for any
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verdict that Hannibal may secure against Mascaro. See Bogdan, 257 A.3d at
756.
Finally, the order denying Admiral’s petition to intervene satisfies the
third prong under Rule 313(b) because the question presented is such that if
review is postponed until final judgment in the instant action, the claim will
be irreparably lost. If the jury in the instant matter returns a general verdict
against Mascaro, without making any factual determinations that are
necessary to resolve the coverage issues, Admiral would be permanently
deprived of the ability to establish whether a policy exclusion applies and
precludes indemnity coverage for the judgment against Mascaro. See
Butterfield v. Giuntoli, 670 A.2d 646, 658 (Pa. Super. 1995) (affirming
summary judgment in favor of the insured in a declaratory judgment action
brought by the insurer because it was the insurer’s burden to prove that the
claim was excluded from coverage, the insurer failed to seek intervention or
request special interrogatories, and it was therefore impossible to determine
the basis of the jury’s findings in order to determine whether a policy exclusion
applied).
Based on the foregoing, we conclude that Admiral has satisfied the three
prongs of the collateral order doctrine because the questions surrounding its
obligation to indemnify Mascaro will not be resolved by the instant litigation,
and Admiral’s right to submit a special interrogatory to the jury will be lost
following the close of trial. Accordingly, the appeal is properly before us, and
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we will proceed to address the merits of Admiral’s issues. See Bogdan, 257
A.3d at 756; see also Mortg. Elec. Registration Sys., Inc., 16 A.3d at
1142.
Each of Admiral’s issues challenge the trial court’s denial of its petition
to intervene. “It is well[-]established that a question of intervention is a
matter within the sound discretion of the court below and unless there is a
manifest abuse of such discretion, its exercise will not be interfered with on
review.” Wilson v. State Farm Mut. Auto. Ins. Co., 517 A.2d 944, 947
(Pa. 1986) (citations and quotation marks omitted). In ruling on a petition to
intervene, the trial court is required to determine whether the allegations of
the petition have been established and, assuming that they have, whether
they demonstrate an interest sufficient to justify intervention. See
Nemirovsky v. Nemirovsky, 776 A.2d 988, 992 (Pa. Super. 2001). The
determination of who may intervene in an action and when that intervention
may be prohibited is determined by Pa.R.Civ.P. 2327 and 2329. Rule 2327
provides, in pertinent part, as follows:
At any time during the pendency of an action, a person not a party
thereto shall be permitted to intervene therein, subject to these
rules if
(1) the entry of a judgment in such action or the satisfaction of
such judgment will impose any liability upon such person to
indemnify in whole or in part the party against whom
judgment may be entered; or
Pa.R.Civ.P. 2327(1).
Rule 2329 provides in pertinent part:
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Upon the filing of the petition and after hearing, of which due
notice shall be given to all parties, the court, if the allegations of
the petition have been established and are found to be sufficient,
shall enter an order allowing intervention; but an application for
intervention may be refused, if
(1) the claim or defense of the petitioner is not in subordination
to and in recognition of the propriety of the action; or
(2) the interest of the petitioner is already adequately
represented; or
(3) the petitioner has unduly delayed in making application for
intervention or the intervention will unduly delay, embarrass or
prejudice the trial or the adjudication of the rights of the parties.
Pa.R.Civ.P. 2329.
Admiral contends that the trial court abused its discretion by denying
the petition for limited intervention because Admiral satisfied Rule 2327(1).
Admiral points out that it bears the burden of proving the application of any
policy exclusion and that, if it is unable to determine whether the auto
exclusion applies to preclude coverage, it will be unable to meet its burden of
proof and, hence, obligated to indemnify Mascaro for any judgment awarded
against it in this action. See Admiral’s Brief at 17-18. Admiral explains that
the complaint does not mention any vehicle and does not premise Mascaro’s
liability on the ownership, maintenance, or use of any vehicle. Id. at 18.
Admiral contends that, if it is not permitted to intervene, the jury will simply
be asked if Mascaro was negligent and if such negligence was the proximate
cause of Hannibal’s injuries and damages, without specifying the precise
manner of such negligence or whether such negligence involved the
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ownership, maintenance, or use of a vehicle. Id. Admiral maintains that,
unless it is permitted to intervene for the limited purpose of submitting a
special interrogatory to the jury, the entry of a judgment in this action will
impose liability upon Admiral to indemnify Mascaro.
The trial court determined that Admiral was not a proper party to
intervene under Rule 2327(1). The court reasoned:
In reviewing the language of [Rule] 2327(1), the use of
“will,” rather than “may” in the operative phrase, “if the entry of
judgment will impose any liability . . .” is notable (emphasis
added). It suggests that liability upon the petitioner must be
affirmatively certain, rather than simply plausible, for the
petitioner to qualify as a permissible intervenor under this
subsection. Admiral cites two Pennsylvania Superior Court cases,
Bogdan and [A.H. v. Roosevelt Inn LLC, 266 A.3d 616 (Pa.
Super. 2021) (unpublished memorandum)], to support its position
that Admiral does not have to establish a certainty that they will
have a duty to indemnify in order to be permitted to intervene in
this action. However, a close reading of both cases suggests the
opposite conclusion. Essentially, the petitioning intervenors in
both cases had a . . . duty to indemnify irrespective of whether
they intervened; the only issues the intervention sought to clarify
was the extent of their indemnification. See Bogdan . . . ; [see
also]. Roosevelt Inn LLC, . . ..
For instance, in Bogdan, the petitioning intervenor was a
liquor liability insurance carrier for an establishment that served
alcohol. The establishment was subject to a dram shop action for
serving alcohol to an allegedly intoxicated individual, who then
went on to fight, and then fatally shoot, the plaintiff. The purpose
of the special interrogatories was to clarify which counts of the
complaint the insurance policy would cover, as the insurance
policy had an exclusion for injuries involving a firearm. Critically,
there were at least some counts of the complaint that would fall
within the scope of the insurance policy.
Similarly, in Roosevelt Inn, the petitioning intervenor was
the insurance provider of several hotel defendants subject to a sex
trafficking lawsuit. The complaint was grounded in negligence but
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also sought punitive damages against the hotel defendants. The
purpose of the proposed interrogatories was to determine whether
an award of punitive damages was based on direct or vicarious
liability, as indemnification may have been barred for punitive
damages based on direct liability. Regardless, the insurance
policy would cover the negligence counts of the complaint.
Unlike in Bogdan or Roosevelt Inn, Admiral clearly
concedes in its pleadings that [its] liability in this case is uncertain.
In fact, whether Admiral has a duty to indemnify Mascaro is the
purpose of Admiral’s petition for limited intervention. This
determination hinges on whether the incident falls within the
scope of the “auto exclusion” policy. This is distinguishable from
the insurance companies that were allowed [to] intervene in
Bogdan and Roosevelt Inn, whose insurance policies were
certain to cover at least some of the counts in the underlying
complaints.
Trial Court Opinion, 12/29/22, at 5-7 (footnote, some citations, and
unnecessary capitalization omitted).
Based on our review, we cannot agree with the trial court’s
determination that Admiral failed to satisfy Rule 2327(1). In the present
matter, unless Admiral is permitted to intervene for the limited purpose of
submitting a special interrogatory to the jury, the entry of a judgment in this
action will impose liability upon Admiral to indemnify Mascaro. The trial
court’s attempt to distinguish this matter from Bogdan and Roosevelt Inn2
is premised on a fundamental legal misunderstanding of basic insurance
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2 While Roosevelt Inn is not controlling because it is a non-published
memorandum decision, it nevertheless provides persuasive authority to this
Court as it was filed after May 1, 2019. See Pa.R.A.P. 126(b) (providing that
unpublished non-precedential memorandum decisions of the Superior Court
filed after May 1, 2019, may be cited for their persuasive value).
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coverage concepts. When a complaint is filed against an insured, the insured
bears the burden of proving that a claim falls within the coverage provided by
the applicable liability policy. See Betz v. Erie Ins. Exch., 957 A.2d 1244,
1256 (Pa. Super. 2008). The insurer will review the claims asserted in the
complaint to determine whether any of the claims fall within the general scope
of coverage afforded by the terms of the applicable liability insurance policy.
See Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 542
(Pa. 2010) (holding that whether a complaint raises a claim against an insured
that is potentially covered is a question to be answered by the insurer in the
first instance, upon receiving notice of the complaint by the insured). Some
claims may patently fall outside the scope of coverage, such as an intentional
tort claim. However, if any one claim in the complaint is potentially covered
by the policy, the insurer is obligated to provide a defense to the insured in
the action, as “it is the potential, rather than the certainty, of a claim falling
within the insurance policy that triggers the insurer’s duty to defend.” See
id. at 541 (holding that an insurer is obligated to defend its insured if the
factual allegations of the complaint on its face encompass an injury that is
actually or potentially within the scope of the policy).
Necessarily, this initial determination by the liability insurer is based on
the bare averments set forth in the complaint. Accordingly, whether a policy
exclusion is potentially applicable may not be apparent from those general
averments. However, as the action progresses and investigation and
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discovery are conducted by the parties, certain evidence may be revealed
which could implicate a policy exclusion. Importantly, when the insurer relies
upon exclusionary language in the policy as a defense to coverage, the burden
shifts to the insurer to prove that the exclusion applies to the facts of the case.
See McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 646 (Pa. Super. 2013)
(stating that, while the insured has the initial burden of showing a claim falls
within a policy’s coverage, the burden then shifts to the insurer to prove the
applicability of any exclusions); see also Wagner v. Erie Ins. Co., 801 A.2d
1226, 1231 (Pa. Super. 2002) (providing that the insurer has the burden to
show that an asserted exclusion clearly and unambiguously prevents the
coverage of a claim). Mindful of the possible latent application of a policy
exclusion, insurers routinely provide a conditional defense to the insured, and
expressly reserve the right to deny defense and indemnity coverage if facts
discovered during the lawsuit indicate that a policy exclusion applies to
preclude coverage.
In the instant matter, as in Bogdan and Roosevelt Inn, Admiral
determined that the negligence claims asserted against Mascaro in the
complaint fell within the general scope of coverage afforded by the terms of
the policy, and agreed to provide a conditional defense to Mascaro subject to
a full reservation of rights to deny coverage and withdraw its defense should
evidence reveal the application of a policy exclusion, such as the auto
exclusion. See Reservation of Rights Letter, 6/1/20, at 2, 11-12. Discovery
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revealed that the platform on which Hannibal was standing moved because it
was resting on a dumpster which was attached to a Mascaro truck that was
pulling away, thereby potentially causing the accident. Based on these facts,
Admiral determined that the auto exclusion potentially applied to preclude
coverage for all of the claims asserted against Mascaro in the complaint.
However, as explained above, Admiral bears the burden to prove the
applicability of the auto exclusion in a subsequent declaratory judgment
action. See McEwing, 77 A.3d at 646; see also Wagner, 801 A.2d at 1231.
To sustain that burden, Admiral must prove that Hannibal’s injuries and
damages were caused, in whole or in part, by the ownership, maintenance, or
use of an auto. Admiral therefore sought limited intervention in this action for
the sole purpose of submitting a special interrogatory to the jury to make this
narrow factual determination.
Contrary to the trial court’s assertion otherwise, the fact that the auto
exclusion presented a potential coverage defense to all claims asserted by
Hannibal, as opposed to only a few claims, is of no moment. What is
important, is that, similar to the insurers in Bogdan and Roosevelt Inn,
Admiral would be unable to determine the applicability of a potential coverage
defense to any claim asserted against its insured if not permitted to intervene.
See Butterfield, 670 A.2d at 658.
If Admiral is not permitted to intervene, and the question of whether
Hannibal’s’ injuries and damages were caused, in whole or in part, by the
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ownership, maintenance, or use of an auto is left unresolved, then Admiral
will be obligated to indemnify Mascaro for any judgment imposed against it
in this action. We therefore conclude that the trial court manifestly abused its
discretion in determining that Admiral failed to satisfy the requirements of
Rule 2327(1).3 Accordingly, we remand for the trial court to conduct a hearing
pursuant to Rule 2329.4
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Date: 12/19/2023
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3 Admiral additionally argues that it satisfied the requirements of Rule
2327(4); however, given our determination that Admiral satisfied the
requirements of Rule 2327(1), we need not address subsection (4), as Admiral
was only required to satisfy one subsection of the rule.
4 Given our disposition, we need not address Admiral’s second issue, as we
remand with the directive that the trial court conduct a hearing pursuant to
Rule 2329.
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