*1 BOMBAR, Intervenor, Suzanne Handling,
Upright Materials
Inc., Appellees
v. AMERICAN INSURANCE WEST Insurance
COMPANY and First Inc.,
Center,
Appeal of the West Company,
Insurance
Appellants. Pennsylvania.
Superior Court
Argued March 2007. July
Filed 1, 2007.
Reargument Denied Oct. *3 Jr., McMonigle, Philadelphia,
Richard L. appellant. for Ins., Barrett, Scranton, Paul A. for First appellee. Scranton, Munley, Up-
Robert W. right, appellee. STEVENS, KLEIN, and
BEFORE: McCAFFERY, JJ. STEVENS, BY
OPINION J.: appeal 1 This is an from the order entered in the Court of Common Pleas of County summary granting Lackawanna Bombar, judgment in favor of Suzanne Inc. Handling, (Up- Materials Center, Insurance Inc. right), First (First Center) against Ap- Insurance Compa- pellant West American Insurance American)1 (West ny in an amount total- $12,008,854.54. appeal, ing On (1) trial court erred American contends the commercial insurance interpreting injury covering bodily contract as sus- (2) Bombar; the trial court tained Ms. denying American’s motion erred of bad summary judgment on the issue (3) faith; in granting the trial court erred summary judg- motion for Ms. Bombar’s (4) faith; the trial of bad ment on issue First Insurance granting court erred in Company, caption was amend- Initially, present action was filed Insurance Company. Casualty proper the Ohio Insurance American as the ed to reflect West determined that West once it was party. Casualty subsidiary of Ohio American was summary judgment Center’s motion for request. annoyance Due to the sound, dismissing alarm’s the evidence indicated American’s cross- intentionally that the alarm was discon- indemnity; claim for contribution and/or (5) nected Lord Label on employees sev- the trial court damages awarded including eral occasions the date on excessive, unfounded, were and miscalcu- which the accident occurred. There was lated; and appeal West American’s wiring got caught also evidence that the timely and from a final order.2 affirm. We on causing structures Lord Label ¶2 The procedural relevant facts and disconnect as well. The alarm and history are as follows: light battery strobe were both powered. 15, 1995, Bombar, On March Suzanne The manner in which the alarm was employee Label, Inc., of Lord [here- *4 exposed installed allowed the wires to be Dunmore, inafter Lord Label] located on the outside of the forklift nine frame Pennsylvania, severely was struck and Upright’s near the roll-bar. agent sim- injured by a forklift while at work. ply by mounted the alarm wrapping the inju- Bombar sustained [Ms.] extensive wires around the outside of the roll bar right leg eventually ries to her which led passing through rather than the wire amputation. to At the time of the acci- by the center of the roll bar as intended dent, forklift, the which struck [Ms. the Upright manufacturer. had been Bombar], operated by was another em- called several times to reinstall the ployee of Lord Label who drove it in alarm before the accident occurred. through reverse plastic curtained dispute There was a factual as to wheth- opening that obstructed operator’s the intentionally er the alarm wires were view. they or caught disconnected whether The forklift by was manufactured pulled during oper- and were off normal Linde, Inc., a Company, German ations due to the wires’ exterior mount- Baker, shipped Inc., to a subsidiary of ing. Linde, Baker, turn, Inc. who in sold the Upright purchased March Upright ..., Avoca, forklift to Penn- policy an insurance frоm First Insur- sylvania. Upright inis the business of Center, agency ance an who used Ohio selling such equipment industrial Casualty Insurance Company [hereinaf- servicing the same. pur- Lord Label Casualty], ter Ohio as an underwriter. chased the day forklift used the insuring Agreements The states will accident Upright from without a backup pay damages may that the insured alarm or strobe light engages legally obligated pay because of “bod- when the forklift is driven reverse. ily injury” damage or in which property The forklift shipped was from manu- the (See the applies. Commercial facturer to without a manufac- 1). Form, Liability Coverage p. General backup turer’s alarm installed. Furthermore, insurer will hold The forklift was later equipped right against to defend the insured an backup after-market alarm an em- seeking damages “suit” such under the (See ployee of Upright upon application policy. Lord Label’s of the insurance foregoing summary regard While the is an accurate the ma- numerous sub-issues with presented of the issues in West American’s jority general of its issues. The result is that Questions one-page "Statement of the In- required this Court was to review over- volved,” argument por- we note in the whelming number of issues. brief, presented tion of its West American Completed Liability Coverage age General due to “Products Commercial 1). Form, Yet, p. insurer will a letter Operations Exclusion” sent to that pay sums the insured be obli- Upright. or gated pay defend suits that encom- copy In June Bombar sent a matter to pass which the insurance Casualty Complaint who la- to Ohio (See apply. does not Commercial Bombar], by notified letter dat- [Ms. ter 1). Form, Liability p. Coverage General 30, 1999, June there no ed Additionally, under the business owner’s due to This the exclusion. let- En- policy lays specific section of the never insured. ter was sent to the No. dorsement CG 21041185 labeled Deposition testimony indicates that “Exclusion-Products-Completed Opera- Casualty fully ... aware Ohio whereby exception, tions Hazard” accusations the insured made insurer will not the insured for cover upon receipt Complaint Bombar’s but “bodily injury” “property damage” or throughout proceedings entire premises away
which occurs from agents’ attempts investigate the insured owns rents and arises out or only cursory, the claim were best. (See “your product” “your work.” local conceded manager claims Liability Coverage Commercial General *5 the inform [Ms. he made decision to 5). Form, p. that there would Bombar’s] counsel involving After the accident the fork- provided coverage Upright no to due to truck, Upright, lift the of Pat- principals (See exclusion. Plaintiffs Exhibit Watkins, rick and Arthur met Conflitti Culotta). Klatt, D., D.T. Mr. local Alferio, with Matt the owner of First adjuster, given was instructions Center, him Insurance and notified manager local to obtain statements from meeting, During the accident. that Mr. by contacting owners of Upright its Alferio told Mr. and Mr. Wat- Conflitti counsel, Ralph Carey, Esquire. Appar- no coverage kins that insurance was a ently, only meeting Klatt scheduled time, At that availablе. First Insurance and retained statements from one underwriter, notify did not its Center adjuster Klatt insured. remained Casualty Up- accident Ohio ... of the months, reassigned. then for four and right reported involving had the forklift to The matter next referred Don was pur- Subsequently, Upright truck. made Osbourne several Osbourne. Mr. “products competed chased hazard cov- attempts meeting to a with the schedule erage.” mail; three of Upright by owners 24, 1996, May Suzanne Bombar On these letters were misaddressed. Os- Baker, complaint against filed a both Law Offices of bourne contacted the Upright including and claims in Inc. Carey monthly a basis Ralph on liability Upon negligence. strict and During phone of these con- phone. one process, Upright took the service versations, Mr. was informed Osbourne its P. Car- complaint attorney, Ralph to and progress that mediation was in ey, Esquire, who entered a defense. going to likely the matter most was trial. discovery proceed- April during Yet, issued a [Casualty] Ohio never Res- request upon Upright a made ings, was Rights Upright letter to dur- ervation produce copy a of its insurance time, notify turn, Upright nor ing the re- did Upright and in referred [Center], writing, that its denied to First quest Insurance cover- enter a It has been noted First Insurance denied defense. [Center] duty and created a to defend nor its counsel ever would have Upright that neither expen- was too indemnify, because such on made 'written demands for defense argued sive. First Insurance Center [Casualty] in the suit. Ohio instant appropriate cov- since it recommended 19, 2001, jury returned January On case, products erage being in this negligence against Upright a verdict operations coverage, and and $1,800,000.00. appealed the Upright for by Upright’s specifically refused such Superior Pennsyl- action to the Court of (Mr. treasurer Conflitti president and vania, upon which was later abandoned Watkins), had First Insurance Center Mr. motion to mold the ver- Bombar’s] [Ms. indemnify. duty no to defend or delay damages. The ver- dict include ultimately 8, 2004, dict was molded Ms. Bombar filed a April 4 On $2,393,458.65. summary judgment against motion for (1) Casualty alleging products Ohio [12], 2001, filed the
On March exclusion completed operations hazard Action present Declaratory Judgment (2) accident, the instant inapplicable claiming Casualty that Ohio should have duty the insurer breached its to defend it during defended the course of the (3) cooperated the insureds Upright, [Casualty] initial action and that Ohio handling the insurer in the claim and verdict, indemnify it for the should prejudice no from late insurer suffered pay damages alleged bad faith in claim, notice of the the insurer handling poli- the claim. [The April faith. On acted with bad cy Upright by at issue was sold to First summary Ms. Bombar filed motion for Insurance agents Center Ohio judgment against First Insurance Center Casualty]. Original plaintiff, Suzanne alia, Alferio, alleging, inter that Mr. who Bombar, filed a Petition to Intervene as *6 agent, was First Insurance Center’s interest, Party the real peti- her [and fiduciary duty, breached a which was owed granted by tion] was Order on [entered] failed to Upright, when he 29, April 2002. The Intervenor Com- scope describe the and nature insur- 24, 2002, plaint May was filed [on] [in coverage purchased by Upright. Ms. ance argued Upright which Ms. Bombar alleged rejection that of Upright’s Bombar by liability poli- covered the commercial products completed operations and 18, 2002, cy at On issue.]. October Su- faulty coverage was due to Mr. Alferio’s assigned rights zanne Bombar was all incomplete explanation the available of Upright may policy that have under its coverages and Mr. Alferio breached his liability by Casualty. insurance Ohio duty failing timely notify fiduciary Opinion Trial Court filed at 1-5. 1/19/05 Casualty Upright’s Ohio insurance Opinion See Trial Court filed at 3- 12/30/05 claims. (additional discussion of the facts and ¶ 12, 2004, Casualty April 5 On Ohio procedural history). summary judgment al- filed a motion for ¶ 21, 2002, February 3 On First Insur- did not leging that the insurance summary ance Center filed a motion for issue, untimely it cover the accident at judgment Upright’s complaint as to for accident, it did not act notified of the Therein, In- declaratory judgment. First faith. bad alia, alleged, surance inter that Center ¶ 2004, recommendation, 14, Up- May pro- the matter despite agent’s its 6 On during Ms. argument, to oral which right purchase products did not and ceeded claims, and all in- coverage, Bombar withdrew completed operations ¶ to' a eluding summary judgment, proceeded hearing her motion for 9 The matter 2005, 15, following which the trial as it related First Insurance Center. on June opinion an on N.T. at 3-8. court filed and order Decem- 5/14/04 (1) 30, 2005, indicating First Insurance ber 2005, January 19, trial 7 On court summary judgment mоtion for Center’s mo- granting filed an order Ms. Bombar’s (2) motion granted, West American’s for summary as to judgment tion for Ohio summary judgment is denied4 and West court Casualty. Specifically, the trial con- for American is to Ms. Bombar liable (1) the cluded issue jury delay damages entire verdict and to- underlying involving covers the accident $2,393,458.65, taling plus interest (2) Bombar, Casualty is hable for Ms. Ohio (3) $1,513,260.00, American is liable West jury’s the entire amount of the verdict in amount of punitive damages for four action, underlying including interest at compensatory damages times the awarded prime rate of the rate 3% above the verdict, jury’s equaling made, from the claim was interest date the (4) $7,200,000.00, American is liable (3) damages court punitive awarded damages for compensatory attorney’s against Casualty Ohio fees (5) $700,000.00, the amount of West Ameri- (4) costs, the court awarded com- attorney’s to Upright can is liable for fees insured, pensatory damages Up- to the totaling $91,212.50, and costs and West provided damages, The order right. for American is to Ms. Bombar at- liable fees, at a and costs would be decided fu- torney’s prosecution fees and costs hearing. ture trial court also denied faith claim in the amount of bad Casualty’s summary judg- Ohio motion for $110,923.39. The total verdict rendered ment. the trial court in its December 7, 2005, February Insur- 8 On First $12,008,854.54against order totaled motion ance Center filed a second American. alia, judgment summary alleging, inter January 10 On that, in answer matter to its with new motion, post-trial filed a and Ms. Bombar declaratory Ohio Casu- original complaint, response indicating post-trial filed alty included a First cross-claim appropriate motions were related Insurance Center. First Insurance Cen- summary judgment proceedings. *7 that it ter averred was liable neither 30, 2006, January American On West filed compensatory punitive damages nor Court, appeal a notice of this which was Casualty, and against assessed Ohio there- 224 docketed at MDA 2006. fore, sought First Insurance Center sum- ¶ subsequently mary judgment as it related to Ohio Casu- 11 The trial court filed 16, 2005, denying alty’s cross-claim.3 March an order and amended order West On specifical- stipulation indicating post-trial filed a American’s motion parties judgment against being incorrectly ly indicating was entered that West American was cap- and the American set forth the trial Casualty, referred to as Ohio West 30, December 2005 order. accordingly. tion was amended court’s West point, Casualty ally Casualty, Ohio who was listed as filed an inter- filed 3. At this Ohio however, locutory appeal; being notice of it subse- party prior caption amended to a quently appeal. discontinued the proper party West American. reflect subsidiary American is of Ohio Casual- portion of court’s December 4. This the trial ty. Opinion filed at 5. Trial 12/30/05 12, 30, April 2005 order relates to the 2004 motion, judgment summary which was actu-
85 Co., 172, Casualty a notice to this Insurance 820 A.2d appeal American filed tual (citation omitted).6 2 (Pa.Super.2003) Court from the order and amended order. 176 n. appeals However, were docketed 431 MDA that “[a]l- this Court hаs held 2006 and 519 MDA2006.5 Act though [Declaratory Judgment] provides that the declaration shall have ¶ Thereafter, Ms. Bombar filed mo- or judgment ‘force and effect of a final quash tions to all three of West American’s decree,’ adjudication partial does not [a] Court, appeals to this appealable merely is become because appeals. filed a motion to consolidate the declaratory judg- cast the form of 22, 2006, By May order entered on this Motors, Beaudry, ment.” Moore Inc. v. Court denied Ms. Bombar’s motion 869, (Pa.Super.2001) (quota- 775 A.2d quash appeal at 224 docketed MDA omitted). Moreover, tion prejudice 2006 without for her to raise the panel, issue granted before Ms. Bom- rule, general dismissing As a an order quash bar’s motions to docket- appeals some not all counts of a multi-count but 2006, ed at 431 and 519 MDA and denied complaint interlocutory ap- and not West American’s motion to consolidate as pealable. adhering policy, In to this moot. sought piecemeal courts have to avoid litigation. This Court has held that an brief, appellate her Ms. appeal grant- will not lie from an order argument Bombar has renewed her ing partial summary judgment. appeal, West American’s at 224 docketed 2004, MDA quashed. Specifical should be Bolmgren v. Farm Fire State and Casual- ly, argues (Pa.Su- Ms. Bombar West American 689, ty 758 A.2d 690-691 timely should have filed a appeal (citations omitted). from the per.2000) 19, order, January trial court’s judice, 15 In the case sub Ms. Bombar granted summary judgment in favor of sought declaratory in the form of a relief Ms. Bombar and declared the rights of the judgment. she also raised a bad parties as it related to the insurance con sought damages faith claim and with re- tract. We conclude the trial court’s Janu gard thereto. the trial court’s "While Janu- 19, ary 2005 order interlocutory ary 2005 order declared the insurance West American properly appealed from policy covered the accident and indicated the trial court’s December 2005 order. punitive damages would be assessed faith, “Generally, orders that affir American for bad matively negatively rights declare the trial court’s order did not determine the party immediately are final and appeal- damages amount of related to Ms. Bom- declaratory able in judgment actions.” bar’s bad faith claim until it filed its De- Therefore, Pennsylvania Cresswell v. National Mu cember 2005 order.7 we *8 28,May 5. The trial court never ordered a Pa.R.A.P. claims until it filed an order on 2002. 20, 1925(b) statement. This Court determined that the December partial grant summary 2001 order was a of Cresswell, Cresswell, judgment party. quashed appeal 6. In this Court an as to one grant summary judgment from the of to as A.2d at 176 n. one of defendants. this Court quash regard entry appeal did not with to a 7. We note as of the time of the order, because, although January different defendant the trial court's against Insur- lower court’s December 2001 order de- American’s cross-claim First rights parties, pending. clared the of the the trial court ance Center was still The cross- dispose plaintiff’s the trial court did not of the bad faith claim was not decided until Cresswell, The scope plenary. of review is conclude this case is akin to court’s Motors, Inc., supra, supra, grant Moore and will reverse a Superior Court all to Bolmgren, supra since claims related if trial summary judgment only not complaint Ms. Bombar’s were decided or has committed an error of law court such, 2005. As we until December discre- abused its discretion. Judicial deny quash Ms. Bombar’s motion conformity tion action in requires appeal, proceed American’s and we shall on the and circum- law based facts by presented the issues to this Court West hear- stances the trial court after before American.8 ing and consideration. ¶ 16 have enunciated our standard of We Cresswell, (quotation A.2d at 177 omit appeals grant from the of sum- review ted) (emphasis original). in mary judgment as follows: argues 17 West American first Pennsylvania that sum- provides law failing in to find the the trial court erred mary judgment may granted only commercial insurance at issue ex clearly those cases in which the record type for the of claim made cludes genuine that no issues of material shows specifi Ms. Bombar. moving party fact that the exist and bodily inju cally argues that Ms. Bombar’s judgment a matter of law. entitled to work, ry Upright’s product arose from or moving party has the burden of therefore, injury Bombar’s and Ms. genuine that no issues of mate- proving and products completed included in the determining rial fact exist. In whether oрerations hazard exclusion. Since Ms. grant summary judgment, the trial injury was excluded from insur Bombar’s light court must view the record argues it coverage, ance West American non-moving party favorable to the most indemnify Up duty had no to defend or and must all as to the resolve doubts therefore, summary judgment right, and genuine of material existence of a issue granted should have been its favor Thus, moving party. fact Upright. In re against Ms. Bombar plead- in the allegations uncontroverted that Ms. sponse, Ms. Bombar contends ings, depositions, interroga- answers to Upright’s an injuries arose from Bombar’s tories, record, and sub- admissions employee’s negligent disconnection that no mitted affidavits demonstrate alarm, injury backup and an aris forklift’s exists, genuine issue of material fact (negligent of accident ing type from this moving party is entitled to and that the instructions) is provide failure to warn sum, judgment as a matter of law. covered the insurance are clear that only when facts so products in the included differ, may a reasonable minds cannot Essentially, operations hazard exclusion. summary enter trial court is whether the trial court abused issue
judgment. or committed an error of law its discretion noted, already appeal on from As interpreting the commercial grant summary judgment, we must policy at issue. light in a most favor- examine the record that an insurer It is well established non-moving party. re- able to the With if law, an insured a claim appellate only need defend gard questions *9 seeking to Bombar has filed a motiоn summary judgment in favor of First 8. Ms. entered deny 30, Appellant’s reply We the quash brief. December Insurance Center on motion. ous, the insurance provides coverage required give contract a court is to effect to language. for a suit of that To decide nature. exists, duty
whether a to defend the Co., Dorohovich v. West American Ins. court compare allegations must the 252, Pa.Super. 589 A.2d complaint provisions with the of the omitted). (quotation and citation See insurance contract determine Cresswell, supra. whether, if complaint allegations are judice, 18 In the case sub the commer- proven, duty the insurer would have a provided, cial insurance contract in rele- indemnify the insured. part: vant Keystone Spray Equipment, Regis Inc. v. pay We will those sums that the insured Ins. 767 A.2d 574 (Pa.Super.2001) legally obligated pay becomes as dam- (citation omitted). ages “bodily injury”... because of which this insurance applies. We will complaint alleges the event that the have the right duty to defend the
cause of action fall within the against any insured “suit” seeking those policy, of the the insurer is damages. we will have no defend_The obligated to duty to de- duty against any to defend the insured fend exists until such time when it is seeking damages “bodily inju- “suit” determined that the claim is confined to ry” ... to which this insurance does not a recovery that the policy does not cov- apply. er. Johnson,
Unionamerica Ins. Co. v. J.B. (ci- 806 A.2d 433-484 (Pa.Super.2002) [p]ay on [We will] behalf insured omitted). tations all sums which the insured becomes le- interpreting When provisions gally obligated damages because of policy, insurance guided by we are bodily injury, disease, sickness or includ- following: interpretation The of an death, ing resulting time there- policy question is a of law that by any from sustained person and is by reviewable the court ... caused accident. In construing policy we are mindful exclusions, Regarding the commer ‘[pjolicy providing coverage clauses stated, cial insurance policy specifically interpreted are in a manner which af- areas, several that the insurance does not greatest fords the possible protection to apply bodily injury included within the the insured... .The insured’s reasonable “produets-completed operations hazard.” expectations point are the focal in read- policy “products-complet defined the ing language.” the contract .... Our operations ed hazard” as follows: object, as is in interpreting any true “Products-completed operations haz contract, course, is of to ascertain the ard”: parties intent of the as manifested “bodily injury” a. all includes language of the written instrument occurring away from “property damage” ... a provision Where of a premises you arising own or rent and ambiguous, is to be construed “your product” “your out of or work” favor of the insured except insurer, agree- the drafter of Where, however, your language
ment. ... 1. Products that are still unambigu- physical possession; of the contract is clear and *10 рro- or failure to providing com- b. The yet that has not been 2. Work warnings or instructions. “your vide peted or abandoned. completed at the work” will be deemed vending not include product” “Your does following times: earliest of the rented to or property machines or other (a) all of the work called for When use of others but not located for the your completed. contract has been sold.
(b) all of the work to be done at When means: “Your work” job your has if site been operations performed a. orWork at more than one contract calls for work behalf; you your or on and job site. Materials, fur- parts equipment or b. (c) done part work When such work or nished in connection with put to its intended job at a site has been operations. or other by any person organization use “Your work” includes: or subcontrac- than another contractor representations a. Warranties or working project. tor on the same respect to the any made at time with service, mainte- need Work fitness, durability, perform- quality, nance, correction, repair replacement or work;” “your use of and ance or but, complete, otherwise will be which is pro- providing of or failure b. completed. treated as warnings or instructions. vide added). (emphasis added). (emphasis specifically The contract defines ¶ 21 the well- We have reviewed “your product” “your and work” as follows: Honorable Carmen opinion reasoned Product” means: “Your disposes Minora and conclude it Any or other than goods products, a. Trial American’s first issue. of West sold, manufactured, han- property, real at Opinion filed 8-19. 1/19/05 dled, disposed by: or distributed essence, un the trial court concluded (1) You; law, products and existing der (2) name; your trading Others under presented hazard as completed operations or Bom- apply does not to Ms. this case whose person organization A or negli insured’s regarding claims bar’s you acquired; have business or assets warn, inspect, and install gent failure to back-up regard to the forklift’s (other vehicles), than b. Containers concluded that: The trial court alarm.9 materials, furnished parts equipment or identi exclusion is American’s] [West goods prod- or in connection with such in the above to those referenced cal ucts. ex [West American’s] mentioned cases. product” “Your includes: clusion, was a policy, defined in the Haz Operations “Products-Completed made representations a. or Warranties products fitness, which included ard” exclusion respect time with service, maintenance, repair use durability, performance quality, the in- occurring away from products “your product;” warranties, express war liability, implied jury supra, the found 9. As indicated negligence regard Bombar’s liable with to Ms. ranties claims. strict Ms. Bombar had also raised claims.
89 Yet, 218 premises. Casualty Pa.Super. this same sured’s under land (1966). coverage A.2d 91 exclusion the insurer denied negligently completed by for installation ¶ Having found no аbuse of discretion insured, negli- a count for including the law, we find no merit to West or error of gent failure to warn. The thrust of argument. first American’s Bombar’s and verdicts complaint [Ms.] ¶24 West American’s second upon negligence including negli- rests in failing trial court erred argument is the gent failure to warn of defects in the summary judgment in favor of to enter installation, service, negligent alarm and to the claim of bad West American as alarm, among maintenance of the argues Specifically, faith. West American counts, products liability. other and not for denying it had a reasonable basis cov therefore,
erage, Ms. Bombar did not by convincing clear and prove bad faith reading policy both the and the Com- evidence. American’s claim of rea at plaint, glance, may appear first predicated upon argu its sonable basis is Yet, coverage may not exist. as noted that the supra ment set forth commercial discussion, in above the installation excluded in this backup by of the alarm Upright was a underlying and Ms. Bombar’s civil service, but it completed was not at the complaint trigger duty did not to defend time the accident occurred because the Upright policy. under the terms of the installation faulty negli- was both Moreover, that, West American claims gent, jury gave concluded and mistakenly if it concluded the even rise the complained injury. provided coverage, for no it acted reason Opinion Trial Court filed 16- 1/19/05 ably in fact in light of the the case law this 17. addition, area was “in flux.” In points to the fact
¶22 while Regarding West American’s First Insurance Center learned of the acci specific averment that the cases cited occurred, shortly dent after it Ameri distinguishable the trial court are because can until Bom- did not learn of such Ms. wording exclusion this case underlying bar’s forwarded the counsel phrase contained the providing of or “[t]he Gary complaint to West American’s Culot- provide failure to warnings or instruc 25, 1999, May ta on and West American tions,” disagree. we While the insurance reasonably thereafter acted its investi warn,” policy at issue refers to “failure to processing of the claim. West gation warnings must still complete American avers never tendered order to fall within the ambit of the exclu in an complaint to West American sion. policy, operation Under the a defense. effort secure completed until put the work has been there is no common recognize that We someone, to its intended use at the site remedy Pennsylvania for bad law than other another contractor on the same part faith on the of insurers. Here, project. the installation of the back creat- Pennsylvania Legislature has up wiring alarm’s was not at the statutory remedy Pa.C.S.A. ed wiring time of the installation of the be July § which became effective on warn, and, negligent cause of the failure to provides The statute that: therefore, operation complete. was not Inc., arising under an insur- Keystone Spray See su In an action Equipmеnt, if that the policy, v. ance the court finds pra; Equipment Mary- Eastcoast Co. opinion in rely on the trial court has acted in. bad faith toward and we insurer Opinion Trial filed insured, regard. See the court take all of re- (discussing Upright’s at 19-23 following actions: *12 1/19/05 of the accident to First Insurance porting (1) amount of Award interest on the American, and the fact and West Center claim the claim from the date the was were employees Center First Insurance in an amount made the insured (discuss- American); 23-26 agents of West of interest equal prime to the rate faith and West ing concerning the law bad plus 8%. thereto);10 regard actions with American’s (2) punitive damages against Award Opinion filed at 10-15 Trial Court 12/30/05 the insurer. legal trial court’s conclu- (discussing the (8) attorney Assess court costs and faith). regarding bad sions against fees the insurer. is argument American’s next 26 West § 42 the insurance Pa.C.S.A. its motion for sum- assuming even context, acquired the term bad faith has faith on the issue of bad mary judgment particular meaning: Insurance. “Bad granted, the trial court frivolous part faith” on of insurer Bombar’s granted should not have Ms. pay proceeds or unfounded refusal to Un- summary judgment. cross-motion for necessary it is not that such policy; claim, general the umbrella of this der purposes For refusal be fraudulent. (1) court argues the trial American West for failure an action insurer Ms. Bombar’s obligated to consider claim, imports a pay such conduct under summary judgment cross-motion and means a breach purpose dishonest the court con- the same strict standard as (i.e., duty good faith and fair of a known for sum- American’s motion sidered West dealing), through some motive of self- (2) in the trial court erred mary judgment; will; negligence ill mere interest or remedy for no common law stating there is Further, faith. judgment bad is not bad (3) faith; in fail- trial court erred bad by clear and proven bad faith must be issues of ing genuine to find there are merely and not in- convincing evidence Bombar material fact as to whether Ms. under a Finally, sinuated. to recover 42 Pa.C.S.A. faith under proved bad faith, plaintiff must claim of bad (4) 8371; permit- § the trial court erred did not have a show that the defendant damages under ting pursue Bombar to Ms. denying basis for benefits reasonable § not suffi- since she did 42 Pa.C.S.A. 8371 and that defendant under faith in her ciently plead statutory bad recklessly disregarded its lack knew or (5) American complaint; intervenor West claim. denying basis in of reasonable denying cover- basis for had a reasonable Terletsky Property v. Prudential and Ca- (6) concluding court erred in age; the trial Pa.Super. sualty Ins. duty investigate had a (citations (1994) quota- A.2d (7) claim; erred in the trial court Upright’s omitted). tions conduct First Insurance Center’s imputing (8) ¶25 American; trial court court has to West conclude the trial We hearsay evi- relying improper on thoroughly discussed the erred correctly (9) relying American, dence; court erred the trial particular claims raised West filed party the trial court er name until after court refers to "Ohio 10. We note that the trial Casualty” January opinion. American” since instead of "West its prop- not identified as the West American was purpose” or whether “import a dishonest testimony presented on evidence and trial; by “self- the trial American was motivated underlying facts ill conclude West relying upon disputed court erred interest or will.” We a, b, concerning prac- “genuine American’s claims and c claims of American’s actually com- tices. material fact” are issues of application of plaints about the trial court’s ¶27 claim Regarding West American’s of “fact” only arguable issue law. The standard, regarding applicable there is expert, its suggestion American’s is West trial did not no evidence that court Windt, ex- disagreed Upright’s Alan *13 to Ms. Bombar’s apply the same standard Chett, American’s on West pert, James and American’s motions for sum- West Ameri- handling of the claim. See West therefore, sum- mary judgment, we at 41. conclude this issue can’s brief We marily this claim. dismiss citing page to a of Ms. waived. Aside from ¶28 summary judgment claim motion for Regarding West American’s Bombar’s stating response trial court in there is American’s page that the erred and a of West faith, the remedy summary judgment, no common law for bad the motion for West directly trial court’s statement was taken developed argument has not this American in opinion Terletsky, from this Court’s filed passing review. ref- appellate for Such supra. Opinion See Trial Court filed brief is seventy page appellate erence in a any event, Ameri- West meaningful appellate re- 1/19/05 insufficient for can has not indicated how the result would view. See Pa.R.A.P. 2119.
have been different in this case had the recognized
trial court a common law reme- Regarding American’s 30 West dy for bad faith. sufficiently not claim that Ms. Bombar did statutory a claim for bad faith under plead
¶29 Regarding American’s West alleges § 42 Bombar Pa.C.S.A. Ms. genuine claim there are issues of material preserved West American has not proved fact as to bad whether Ms. Bombar Specifically, this in the court below. issue § 42 faith under Pa.C.S.A. West suggests American did Ms. Bombar West points American to the fact it denied its insufficiency of object alleged to the not to Ms. Bombar’s motion for sum answer Ameri complaint until West Ms. Bombar’s (a) any mary judgment coverage de motions, and improper post-trial can filed required investigation termination factual untimely. made challenge such a was American’s actions were not West and/or hand, American, on the other asserts West (b) standards, compliance industry raising the issue properly preserved it Upright’s notice of Ms. Bombar’s accident memorandum, pre-trial damages it in its given to First Insurance Center was the first time it response to the which was American, equivalent upon of notice West notice that Ms. Bombar was given (c) agent Insurance Center was an First statutory damages for seeking punitive (d) American, prof Upright’s Brief at faith. See West American’s bad Chett, faith expert,” fered “bad James at 21. 43; Reply Brief American’s as to claims han opinions correct his American’s have reviewed West 31 We dling issues. West find no conten- memorandum and pre-trial is genuine contends its denials created did complaint Bombar’s tion that Ms. regarding fact whether sue of material statutory bad sufficiently plead a claim for was such as to American’s conduct § investi- prompt raised an 146.6. Standards for faith.11 While the memorandum Every of claims. insurer shall Upright properly plead gation issue as to whether complete investigation of a claim within complaint compensatory a claim for its claim, days after notification of unless damages, argument no such con- there is reasonably cannot be cerning statutory investigation Bombar’s bad faith Ms. If the inves- completed has not oth- within the time. claim. Since West American cannot be within 30 place tigation cited to a in the record erwise where thereafter, below, every days days, it this issue in the preserved court provide shall the claimant with find the issue to be waived. See Pa. insurer we 302(a). explanation written reasonable R.A.P. on the delay and state when a decision claim it Regarding West American’s expected. claim coverage, had a reasonable basis for this Moreover, in Hollock v. Erie Insurance exhaustively discussed su- issue has been (Pa.Su- Exchange, 842 A.2d pra, and decline to address further. we (en banc), opined per.2004) *14 ¶ American’s Regarding 33 West language “the broad of Section 8371 concluding claim trial court erred in remedy all of bad designed to instances investigate duty insurer, American had a to by West an whether occur- faith conduct claim, underlying conclude the trial before, during litigation. we ring or after Thеrefore, not err. American takes acknowledge court did West we ... that [a]n issue with the trial court’s conclusions action for faith also extend to the bad duty to (quot- American “has breached its investigative practices[.]” West insurer’s investigate provided the claim as it 734 A.2d ing v. Allstate Ins. O’Donnell the terms of the insurance (Pa.Super.1999)). Implicit would do under in Hol- 906 investigation, not policy,” and “made no that the holdings requirement lock’s is the the insured investigate prior even to determine whether claims to properly insurer the facts asserted would be covered should refusing pay proceeds to true.” Trial Court Complaint v. Erie Insur- to its insured. See Condio (Pa.Su- Opinion filed West A.2d 1136 Exchange, ance 899 1/19/05 duty to “in argues only American that its faith includes per.2006) (holding that bad “the four corners” vestigate” investigating was to review the facts good lack of faith Therefore, underlying complaint civil complaint). Ms. Bombar’s we conclude alleged facts and determine whether the the trial court did err. required coverage policy. under the West ¶ American’s re- Regarding 35 West duty argues there was no other trial court erred maining claims that the “investigate.” motion for sum- granting Ms. Bombar’s faith,
¶ on the claim of bad mary judgment Practices The Unfair Insurance Code, American’s issues to be Pa. we find West Pennsylvania in the provision 146.6, waived. provides following: § Code case, guilty findings should be of bad faith should proposed its
11. We note
15, 2005,
fact,
satisfy
the entire
be liable "to the insured
filed on June
West
against
Ameri-
judgment
the insured.” West
complaint of Su-
“[t]he
Ameriсan submitted
Findings
Proposed
of Facts filed
sought
addi-
can's
Bombar as intervenor
an
zanne
6/15/05
appears
admission that Ms.
at 2. This
to be an
that West American
fail-
tional declaration
failing
properly
a bad faith claim in
Bombar
raised
ing
settle the Bombar case and
complaint.
her
Upright in the Bombar
defend the Plaintiff
1983a). Ultimately,
part
as
of its De-
West American
While
order,
proffered
arguments
several
and conclu
the lower court
cember
errors,
regarding alleged
sions
trial court
mo-
granted
[Center’s]
First Insurance
West American failed to cite
relevant
summary judgment,
tion for
and dis-
authority supporting
positions.12
its
See
missed
American’s cross-claim for
2119; Burgoyne
Pa.R.A.P.
v.
R.1951a-1952a;
Pinecrest
indemnity.
(Appendix;
Association,
Community
1960a).
issue on
This Court will not act
vicariously
American was
lia-
develop arguments
counsel and will not
faith for the acts of First
ble
bad
appellant.
on behalf of an
See id.
Insurance
Pursuant
to Pa.
[Center].
2252(d),
37 West American’s next issue is
a defendant has the
R.C.P.
the trial
granting summary
court erred in
right to assert a new matter cross-claim
judgment in
favor
First Insurance Cen
against
party
another
to the
dismissing
ter and
West American’s cross-
indemnity.
contribution or
Amer-
claim
indemnity.
for contribution
ican
asserted such a cross-
and/or
find no
We
relief is due.
[Cen-
claim
First
Insurance
ter],
independеnt
as the
argument
brief,
38 In the
portion of its
agent
Upright. Despite being
ad-
we note with disapproval that West Ameri-
vised in 1995 of an accident claim
can makes
general
numerous
conclusions
*15
Upright,
[Center]
First
Insurance
did
and invites this Court to review over one
notify
American
the acci-
West
of
pages
pleadings
hundred
and tran-
(R. 710a; 713a-714a);
dent
advised
scripts
determining
in
whether the trial
Upright
that no
was avail-
court erred in granting summary judg-
able,
notify
and did not
West Ameri-
ment in favor of First Insurance Center.
can that
it had such a conversation.
instance,
For
West American states the
(R.
588a).
580a-581a;
Further West
following in brief:
American considered First
Insurance
argued
First Insurance
that
[Center]
independent
[Center]
an
in an “agent-principal”
relation-
agent,
not authorized to make
and
ship with West American and could not
coverage determinations on behalf of
be held hable
in
negligent
unless it was
(R.
insurer,
clearly did.
which it
insurance,
procurement
and that
581a).
“proximate
its acts were not the
cause”
(R. 1889-1890a).
court, however,
Upright’s
disregard-
harm.
The lower
facts,
very
West American
in
in
at the
least
response,
asserted
ed those
law,
for trial as
proposed
genuine
its
conclusions of
created
fact issues
not First
against
[Cen-
West American had a valid claim
to whether or
Insurance
“agent”
American’s
for vi-
First
Insurance
for contribu-
was West
[Center]
ter]
(R. 1895a-1912a,
Instead,
liability
indemnity.
purposes.
tion
carious
and/or
recognize
12. We
this case does not aid this Court in
that West American cited
citation to
Borough Nanty-Glo
Surety
determining
specific evidence at
v. American
whether the
of
236,
(1932),
impermissible hearsay
sub-
issue constituted
or
309 Pa.
with thereto.14 Trial See qualified. decline to We become counsel Opinion filed at 24-26. 12/30/05 appeal American on West will not ¶45 two, Finally, regarding sub-issue develop argument this it. See Pa. suggests West American the trial court 2119; Burgoyne, R.A.P. supra. relying erred in expert testimony on the Jonathan Cunitz in determining five, Regarding sub-issue punitive amount of damages. Ameri- West American trial argues court argument can’s entire regard is as $700,000.00 awarding erred in follows: compensatory damages. Specifically, (1)
Upright’s
Cunitz,
expert, Jonathan
American
asserts
the trial court
testified
the amount of punitive
permitting
Murphy,
erred in
Paul
CPA to
damages that
testify
$700,000.00
would not interfere
regarding
alleged
ability
of the insurer to conduct nor-
compensatory damages that were never
mal operations, a
questioning
line of
disclosed to
until
two
object-
which West
prior
by way
counsel
weeks
to trial
of Mr. Mur
American[’s]
(2)
on grounds
subject
ed
that such
phy’s report,
matter
the trial court erred in
was not in Cunitz’ report,
permitting
Cognetti, Esquire,
nor was
to testify
Cun-
Sal
itz qualified
opine
subject.
expert
as to that
since he was not identified as an
trial,
objection
lower court overruled this
until
two weeks before
(R.
testimony.
and allowed the
in permitting
deposi
1465a-
trial court erred
1468a).
gave
Cunitz then
opinion
his
tions of Mr. Conflitti and
to be
Watkins
*17
parties
rely
14. We note we find State Farm Mutual. Auto.
in Utah and other States must
408,
427,
Campbell,
upon
payment
Ins. v.
538 U.S.
123 S.Ct.
of claims.” Id. at
123
1513,
(2003),
Brown,
admitted into evidence. We find these hazard” exclusion that this companies they told insurance issues to be waived. should to avoid covering use failure to ¶ baldly stating 48 Aside from trial warn. See Mutual Insurance Harford court erred regard to each evidentia- Moorhead, Pa.Super. Co.16v. 396 578 ry ruling, West American has failed to (1990). A.2d If coverage, 492 there is no adequately develop argument its ap- on refusing there is no “bad faith” in to make Moreover, peal. has failed Therefore, payment. I must dissent. identify any authority supporting its ¶ 2 case, In policy this the insurance specific arguments.15 See Pa.R.A.P. 2119. question specifically excludes failure to Therefore, we sub-issue five to be find coverage. warn claims from The defini waived. product” tions of ‘Tour and ‘Tour work” ¶ 49 argument West American’s final is providing includes: “The of or failure to appeal timely that its filed and from a provide warnings or See instructions.” Therefore, final order. West American majority definitions. The states: urges deny this Court Ms. Bombar’s Regarding specific West American’s quash. light motion to of our discussion by averment that the cases cited supra, we find it unnecessary to address trial distinguishable court are because claim further. wording of the exclusion this case phrase providing contained the “[t]he Affirmed; 50 Quash Appeal Motion to provide warnings or failure to or instruc- Denied; Docketed at MDA 2006 is tion,” disagree. we While the insurance Quash Reply Motion to Brief is Denied.
policy at
issue
to “failure to
refers
warn,”
warnings
must still
com-
Judge
Dissenting
KLEIN files a
plete in order to fall within the ambit of
Opinion.
policy,
the exclusion. Under the
KLEIN,
DISSENTING OPINION BY
operation
completed
is not
until
J.:
has been
put
work
its intended use at
by
the site
someone other than another
¶ 1 I believe that the loss in this
contractor on the same project. Here
not covered
the Commercial General
backup
the installation of the
alarm’s
(CGL)
Liability
Upright
Mate-
wiring
was not
at the time of
Instead,
Handling,
purchased.
rials
Inc.
negligent
installation because of the
would be covered under a
Haz-
Products
warn, and, therefore,
failure to
oper-
Completed Operations policy,
ard and
complete.
ation was not
purchase
did not
until after
Majority at 89.
this accident.
I
also believe
The West
Company
American Insurance
used exact-
If
logic
majority
the circular
of the
true,
ly
language
“products-completed
and trial court is
then a failure to
American,
party.
complaining
15. The three cases cited West
harmful to the
Leasing
Hutchinson v. Penske Truck
explain
West American has failed to
how
(Pa.Super.2005),
granted,
appeal
A.2d 978
apply
particular
of these cases
to the
eviden-
(2006),
Pa.
97 liability in theory products can never That as are involved warn be excluded. such (a) negligence that if involved warning: is there is no there is situations negligence “products” product.17 so the exclusion of the installation (b) apply; product does not is not ¶ are 6 The exclusions referred to above completed “completed operations” so the “products known as hazards” and “com apply. majority exclusion does not If the products A hazard ex pleted operations.” correct, and the trial court are then even liability to exclude strict operates clusion unambiguous language the clear and coverage. leading claims from A case policy, following instant a specific instruc- sup Harford, products litigation hazard is Court, tion from our is still unenforceable. case, In the trial court drew a ra.18 Here, That not make does sense. addi- liability distinction a strict claim between “products” tion to the exclusion and the general negli for failure to warn and a exclusion, “completed operations” there is gence claim of failure to warn. Because specific exclusion for failure to warn. products language recog hazard reason, public policy There is no or other- only liability excluding nized as strict wise, company that an insurance should found, claims, the trial court and our Court general liability not be able to offer a affirmed, that a claim of failure to warn policy insurance lower rates without negligence based on was not excluded. In having charge possible more to cover Harford, specifically our Court instructed lawsuits for failure to warn. they if insurers wanted to exclude Types of exclusions negligent such failure warn claims from coverage, they explicitly. had to do so
¶ 4 types There are two of exclusion hazard, relevant to products this lawsuit: A completed operations op exclusion claims, addressing strict liability and com- negligence erates to exclude the installa pleted operations, addressing negligence in product. leading tion of the A process. the installation completed operations litigation is Friestad Co., Indemnity Pa.Super. v. Travelers policy just 5 A CGL an insur- (1978). Friestad, A.2d 1212 In policy ance that provides coverage gen- installation of a led negligеnt furnace words, liability. eral In other the CGL is destroyed proper to a fire that Freistad’s designed provide coverage if the insured ty. Our Court stated that a drops person’s a hammer on another foot ex operations exclusion would during process the installation or if a per- coverage. claim clude such a from injured son is on the insured’s premises, designed but it is not v. provide coverage Keystone Spray Equipment, Inc. (Pa.Su- product if the itself or if A.2d 572 Regis is defective one of Ins. employees prod- presents the insured’s installs the a twist in the case law. per.2001), incorrectly. Commonly, uct held that under a Keystone, such a our Court exclusion, the instal- completed operations contains certain exclusions for occurrences requirement types 17. There is no that these underinsured or uninsured motorist specific budget, to fit needs and the business claims be included from CGL nor is purchase separate can choose to cover- requirement owner there a that the claims be exclud- Also, product liability age claims com- question policy language. and/or ed. It is a pleted operations claims. appears allowing to be a method of insureds policies their to fit to customize particular analysis of the case law cited their needs. Just as an automobile 18. A detailed purchase coverage, provided in the next section. owner can limited tort here is *19 proper not if of “completed” types lation could be case law between the excluded Thus, had not claims are not relevant here because both warnings given. been the exclusion, gen- types present. of exclusion completed operations are erally guards against negligence the ¶ the ruling 12 I believe that the of trial process, apply not be- installation could majority and the contra- court affirmed operation cause the had never been com- explicit the made our dicts directive Key- stated pleted. The rational used dealt with the Court Harford. Harford that the from a failure danger stone was to products of a hazard application exclusion. inju- be until an warn could not discovered making supplier A wine was sued over Thus, ry had occurred. it would be unfair (or were) sulphur strips, to which are used to allow insurer disclaim. in fermenting kill bacteria vessels. When con- lit policy question particular strips 9 The insurance a user of the one of the barrel, hybrid “products hazard/completed strips placed strip tains it in a the exclusion, encompassing both operations” the alcohol that were in ignited fumes the addition, it of exclusion. In contains types and the exploded, injuring barrel barrel language lawsuit, Harford directed insurers to underlying people. several In the negligent they use if wanted to exclude supplier negligently it was claimed that the coverage. failure to warn claims from dangers failed to inform user of the of fact, language uses the Harford insurer, Harford, strips. using the The apрlies products that it hazard and so sought escape coverage by virtue of the completed operations. products hazard exclusion. Our Court Harford, that explaining held majority 10 If the and the trial court products hazard dealt with strict exclusion in the interpretation are correct claims, liability negligence claims and law, application.of case prior if Harford to exclude such negli- wanted noted the result would that a failure to be claims, it do gence expressly must so. claim can never excluded from warn be Specifically, our Court stated: policy. in a CGL Neither the is that problem for Harford completed oper- exclusion nor products essentially failure to warn claims are not exclusion to avoid cov- ations would work essentially excluding negligence product cov- specific language claims or erage, Rather, they are ignored. liability failure to claims. essen- erage for warn would tially region analyt- in a both fall Application law commonly overlap ical two dis- between problems in understand- One of liability. As the tinct theories drafter ing application of these exclusions is contract, it was incumbent upon exclu- prior case law addressed each expressly region include that Harford may be separately. sion That because overlap in that was the exclusion if represented type of cover- each exclusion its intent. or be- separately that was available age [Emphasis sup- Harford, A.2d at 503. interpreted specific cause the lawsuits plied.] only the trial presented the exclusions ¶ Thus, specific our instructed insurers an issue related to one
court with negligence in specifically in to include such problematic This becomes exclusion. if insurers wanted to the exclusions the exclusion those present our because failure to hybrid forego covering negligent warn together, making grouped are exactly operations” claims. That what Ameri- “products hazard/completed prior in this American took drawn can did case. West exclusion. Distinctions
99 118, Melso, Lane, 628 Pa.Super. v. 427 specifically in- Ltd. our at its word and (1993). of a 854, part One language excluding warnings or A.2d 857-58 cluded as to Despite following interpreted to warn. our be so failures contract cannot instructions, majori- the trial court and the must be part, another and a contract annul that if ty telling construed, are now insurers even all give to to possible, effect if added). expressly such claims are excluded from (emphasis Id. When its terms. coverage, language nothing. that means it is interpreting a contract of insurance Therefore, I of the trial believe view the intent of necessary to consider majority with squarely court and conflicts language manifested parties as Harford. lan- the instrument. Where clear, applied the contract will be guage is
¶ Keystone, supra,
change
14
does not
Farm
Pempkowski v. State
as written.
failure
Keystone
the result.
found that the
Pa.Super.
Mutual Auto. Ins.
451
process
to warn meant that the installation
added).
(emphasis
A.2d
completed,
had not been
therefore
contract,
a
a court must
interpreting
When
(which
“completed operations” exclusion
written, giving
to the
construe
provides
otherwise
exclusion from cover-
effect
meaning
language
plain
clear
age
negligently
a
providing
service
Sys-
v.
Healthcare
words. Solomon U.S.
conjunction
product)
ap-
with a
could
(Pa.Su-
Pa.,
tems
797 A.2d
ply.
problems
There are a number of
with
added).
per.2002) (emphasis
argument,
however. First and fore-
most is
fact
that the insurance
claim and no
16 There has been no
Keystone
limiting
did not contain the
lan-
ques-
finding
limiting language
that the
guage
By
found in the instant case.19
tion, referring
warnings
to
or failure to
case,
applying Keystone to the facts
give warnings,
against public policy.
No
essentially
we are
completely ignoring the
credibly
giv-
made
argument
such
could
contract,
language of the insurance
be-
insurers to use
en that our Court directed
cause there is no situation where a failure
such,
language,
they
if
so desired. As
give
to
warning exclusion would be valid.
law.
language
prior
violates no
If
supplier
give
a
or manufacturer fails to
statutory provi-
no
language
The
violates
proper warning,
product
then the
can
policy language
is clear and
sions.
completed,
never be
thus a failure to warn
Therefore,
is no rea-
unambiguous.
there
can
part
completed opera-
never be
оf a
in-
apply Keystone,
which did not
son
interpretation
tions exclusion. This
makes
language in
interpretation
volve an
of the
little,
any,
if
specifi-
sense after our Court
ignore
question in such a manner as
cally told insurers to include
failure
effectively writing the
language. By
in the exclusions.
warn
contract,
of the
we violate the
language out
Further,
inter-
the rules of contract
interpretation.
of contract
standard rules
pretation
parties
are well settled. The
Keystone to this
contract,
application
17 The
right
have a
to make their own
legal
es-
situation creates
Catch-22.
it is not the function of the court to
they can limit
telling
we are
insurers
it a
in con-
sence
give
rewrite it
construction
by specifically
exclud-
accepted
meaning
exposure
with
on CGL
plain
flict
opera-
ing products
hazards and
language
Meeting
used.
House
problems
applying Keystone
19. Other
this dissent.
will
later in
this factual situation
be discussed
*21
(and
manufacture or sale
in the insured’s
failure to warn
ard
specifically
tions
claims)
they
Id. at 1213.
telling
product.”
then
insurers that
of a
doing
enforce the exclusion because
cannot
Meeting
supra;
House
Kvaerner,
add
(emphasis
A.2d at 899
Solomon,
ski,
supra.
supra;
ed).
¶27
problem
Another
with the trial
reasoning, our Court
Relying on that
majority
is that
it is
court and
solution
then stated:
transforming
a CGL
into another
meant'to insure the
The CGL is not
insurance,
products
hazard and
form
thing provided;
quality
actual
*23
policy. There is in-
completed operations
there are oth-
the construction business
of
types
surаnce available to cover the
ways
notably performance
er
for
liability claims ex-
negligence and strict
Here,
not meant to
the CGL is
bond.
policy.
this
Evidence
cluded from
CGL
professional negli-
into
be converted
that
presented in this matter
indicates
not
policy
The CGL
gence insurance.
products
completed oper-
such
hazard and
designed
quality
to insure the
coverage
originally
ations
offered
provided.
service
management
case
rejected.
Upright purchased
that there is
The record demonstrates
coverage after
accident that is the
cover the
specific
that
insurance that does
negligent provision
for this lawsuit.
possibility
basis
Novaeon has such cover-
management.
type
The transformation of one
and Marine. Un-
age from St. Paul Fire
byof
coverage
disapproved
into another is
pur-
fortunately,
coverage
In
of motor vehicle
our courts.
the realm
applicable
the time frame
chased for
insurance,
un-
an insured
not convert
fact that Novaeon did
this claim. The
liability
into
derinsured motorist
proper coverage
place
not have the
coverage.
v. Nationwide Mut.
Rudloff
for this claim does not mean
(Pa.Super.2002). A
Ins.
tension rights Upright, from cannot be heard to v. badly complain that West American acted CURRAN, Appellant. Diane C. failing Up- to cover a claim for which Further, right bought coverage. Up- no Pennsylvania. Superior Court of right/Bombar are not allowed to convert 28, 2007. Argued June liability general specific into cover- July Filed age products hazards and operations.
¶30 (a) I believe that: our Court
Harford, supra, specifically instructed in- they that if
surers wanted to exclude fail-
ure to warn and like claims from CGL exclusionary
coverage, language to use (b) policy;
used the instant we are give language
bound to effect to in an contract lan- long as that
guage public policy, does not violate statu- (c) law;
tory requirements prior exclusionary language does not violate
public policy, statutory requirements or law; (d)
prior case Keystone did specific language
address the of this require
and does not a different result.
Therefore, rule as the trial court and would, effect, majority judicially ne-
gate proper language. otherwise contract
I exclusionary language would find the
question to be valid and Be- enforceable.
cause I believe the exclusion to be enforce-
able, I would find American did not refusing
act in faith in to defend and bad
indemnify underlying claim.
¶ Therefore, I dissent.