Jeter v. Owens-Corning Fiberglas Corp.

interpretation supports of interpret- that are the insured’s It is axiomatic contracts drafter, case, and against this clause. Strand was decided ed State case, Farm, of party aware the State in the was Farm. the insurer desired to limit Had However, Farm had cho- propelled of the outcome. State service motor vehicles insured change provision policy of the only engaged to sen not to this purposes for theft those Obviously, since maintenance, ruling. rather all other use on an since the Strand than- time, location, policy language its mean- unequivocally and insured it could have , satisfactory to ing been so. should it for them. under Strand have done We not do Therefore, to now Farm. its choice State maintenance, equal not Service does and pay not ignore the Strand determination and Consequently, equal location does not land. policy supports a claim of bad faith under the insured is not “service location” limited I amendment. allow the would I would to maintenance land. find term includes activities “service” recreational and, result, property as a

on insured policy applied in favor should be

of the insured.

Finally, majority disagree I with the con- properly trial clusion that the court denied JETER, Appellant, Jesse complaint. motion to insured’s amend v. that, Pennsylvania It is well under settled OWENS-CORNING FIBERGLAS Pennsylvania Rule Civil Procedure CORP., al., Appellees. et pleadings liberally to will be amendments allowed secure the determination cases Lucy Theodore LOMAX Capobianchi Corp., on their v. BIC merits. Lomax, h/w, Appellants, However, not al- an amendment should be OWENS-CORNING FIBERGLAS lowed where there is an error of law or CORP., al., Appellees. et resulting party. prejudice an adverse Zazyczny, Werner OPDENAKER, Appellant, Frederick J. present Neither is case. this Instead, presented the insured in the OWENS-CORNING FIBERGLAS complaint allegation a proper amended CORP., al., Appellees. et Consequently, bad faith. disallowing abused its discretion Edmund J. and Jean GIORDANO amplified amendment. This is the fact Giordano, Appellants, of limitations under statute Pennsylvania Unfair Trade Practices and FIBERGLAS OWENS-CORNING years. Consumer Protection Law is six Ga- CORP., al., Appellees. et O’Hara, 383, 534 briel v. The record shows the theft and Marion Brooks CROPPER January original occurred in 1991. The com- Cropper, h/w, Appellants, 1992; plaint April the motion to filed amend in December less than was filed FIBERGLAS loss, OWENS-CORNING years original four from the and two CORP., al., Appellees. et original years one from the com- half Thus, plaint. was within the amendment Pennsylvania. Superior Court of statute of limitations. 25, 1998. March Submitted Moreover, support facts a bad faith 27, 1998. July Filed pay Farm’s is not claim. State refusal majority supported any As the caselaw. in the

explains, ease nation there is one that case

which this issue and addresses Hackman, Philadelphia, P. ap-

Richard for pellants. Media, Haase, I. for Pars Mfg.

Norman Co., etc., appellees. Haines, Bradley T. Bruce Phila-

Leslie Inc., etc., delphia, UniRoyal, appellees. Christopher Tracy M. H. Jones McDevitt, Philadelphia, for Harrison Walker Refractories, etc., appellees. SCHILLER, J., Before and CERCONE DISCUSSION: CIRILLO, Judges President Emeritus. one for our Appellants now raise issue erred the trial court consideration: whether SCHILLER, Judge. charging contributing factor?” “substantial Jeter, Lu- and Appellants, Jesse Theodore Lomax, Opdenaker, cie Frederick Edmund tri reviewing claims that the When Giordano, and and Marian and Jean Brooks instructing jury: al court erred the Cropper, appeal the from order entered wheth scope of review is to determine our Philadelphia of Pleas of the Court Common abuse committed a clear er court County denying post-trial their motions for controlling of law the of discretion or error trial, judgment a new and enter- n.o.v. and/or Phila outcome of the case. Williams v. appel- ing judgment in this case favor of Pa. delphia Transportation Company, 415 lees, Fiberglass Corp., Corning Owens and 665, (1964). 667 Error 203 A.2d We and for a new others. reverse remand ground charge in a for a new is sufficient trial. trial, inadequate charge if the as a is whole tendency clear has a to mislead or not or FACTS: rather than a material or confuse Dept. issue. Gilder Com. [Glider] damages Appellants brought an action for of 151-52, Hwys., A.2d 255 appellees injuries against by for ex- caused (1969). charge ade 547 A will be found (i.e., posure lung to asbestos asbestos-related are clear quate unless “the issues not made disease). with The cases were consolidated jury jury palpably misled to the or the jury; several others and tried before a the judge the what trial said.” Voitasefski jury jury trial was bifurcated so that the Co., 220, 226, Pittsburgh Rys. Pa. first heard concerning evidence causation (1949). A reviewing court A.2d damages being presented before with grant ground will not a new trial on the of liability. question During the instruc- its inadequacy charge there is a unless jury, to the trial tions the court stated prejudicial something basic or omission causation, plaintiff in order to must show a Sweeney [Sweeny] fundamental. v. Bonaf prove by preponderance a of the evidence 217, 221, iglia, 403 Pa. exposure that his a constituted asbestos (1961); DiSanzo, Pa. Giorgianni v. contributing “substantial factor” to the de- (1958). 350, 356, In velopment malady. of an asbestos-related reviewing jury, charge trial court’s to the After the some had deliberated for challenged or we must not take the words time, requested it clarification of the term out whole of the passage of context the contributing “substantial In its factor.” in its charge, charge but look to must request, jury highlighted written entirety. McCay Electric Philadelphia quotation term “substantial” use of 490, 499, Company, response request, marks. In this give court decided to the Webster’s 596, 606, Motts, Stewart “substantial,” Dictionary which definition judge trial has wide lati- A quantity; signifi- stated: “considerable language choice when tude his/her objected, claiming cantly large.” Appellants provided charging jury, beyond pro- that the definition went what conveys applicable fully adequately by Pennsylvania law. court de- vided The Anzon, Wagner law. appellants’ objection, nied and instructed alloc, de- jury using definition. nied, jury ultimately returned verdicts favor post- appellees Appellants’ ease, in all cases. in five In trial first this denied, appeal this contrib trial motions were structed the about “substantial uting factor” as follows: followed. plaintiff

In if help you. says order for this know this will It recover substan- case, product must have defendant’s in quantity, significantly tial: Considerable bringing been a substantial factor in about large. help you? Does that recog- the accident. This is what the law THE FOREPERSON: Yes. legal nizes as cause. A substantial factor 14, 1996, pp. N.T. 2-3.1 June As noted actual, factor, is an although real result above, jury ultimately returned verdict may unexpected, be unusual or it is not but appellees for the in all five cases at issue. an imaginary fanciful factor a factor or or having insignifi- no connection or appeal, appellants this do not challenge On cant connection with the accident. jury, the court’s initial to this instruction regarding merely The trial initial the reinstruction. order to court’s instruction obtain explained properly causation on trial new based court’s treat- appellants required the jury’s, were to show that question, moving party ment of a the they injured by exposure had been asbestos way in must demonstrate what the trial error exposure and that such was a substantial Mauk, an incorrect Nebel v. caused result. contributing to injuries. factor their See 315, (1969). Appellants 434 Pa. Industries, Inc., Raymark 429 argue that the trial jury error resulted Rafter 897, 632 902 A.2d applying higher, stringent a more standard (1993). We note that this tracked instruction cases, consequently to their and denied them language Jury Suggested of the Standard right their to have the consider their Instructions, emphasize we wish to but legal cases under the correct standard. We the fact that this instruction from was taken compelled agree. are to suggested those standard instructions not “substantial test The factor” for determin- for, dispositive correct; it was whether proximate incorporated ing cause was into Court, recently by Supreme reiterated (Second) Torts, § the Restatement 431 adopted Pennsylva “this court has never (1965), adopted which in turn has been Instructions, Suggested Jury nia Standard Pennsylvania.2 Jeffries, See Ford 474 Pa. which exist as a material reference. (1977). 588, Ford, A.2d 111 In the Penn- 379 available to assist the trial and sylvania Supreme approval with Court cited preparing proper charge.” counsel a § comments 431 of Restatement Smith, 65, Commonwealth v. 548 Pa. 80 n. factor” which defined “substantial as “con- 11, 1086, 1094 n. 11 duct has such an in producing [that] effect deliberations, jurors During the harm as to lead reasonable men to re- impasse they sought reached an and further cause, gard using it as a that word in the following exchange instruction. The then oc Restatement, popular supra, sense ...” at curred between the trial court Ford, 595, supra, § comment a. See at foreperson: 379 A.2d at 114. Nowhere that definition Now, THE we COURT: need a clarifica- quantification a is there of causation such as substantial, you tion on the term have that implied was the trial when it in- quotes, meaning factor. Is it the of the defendants action structed you word that Who is are confused about? “signifi- been or must have “considerable” foreperson? large.” cantly so, I I guess THE FOREPERSON: am. yes, meaning. it of how Pennsylvania, Under the law pertains to this case. long cause can be found to be substantial so Well, significant recognizable; THE it I looked in the dictio- as it is or need COURT: nary, Dictionary, quantified large. I or in'Webster’s don’t not be as considerable transcript originally containing pro- 1. We note that the this ex- 2. The "substantial factor" test was posed a law Jeremiah Smith in review article change was not included in the record official Smith, published "Legal However, in 1911. Cause in Ac- parties submitted to do this Court. Tort,” 103 42, See tions of 25 Harv. L.Rev. dispute jury. not what court told Torts, (5th p. & Keaton on Prosser ed.1984). [1285]; Hotel, Majors percentage imply latter Brodhead These A plaintiff that a surmount be threshold must permitted rule in his fore a will be every possible plaintiff need not exclude however, favor; our have never re courts other explanation and “the fact that some fact, approach. such an In defen quired negligence with cause concurs negli to have been dants have been found injury not producing does defendant negligence gent, and their to be substantial liability he from unless relieve defendant harm, plaintiffs though factor in the even have such cause would can show that other relatively vis-a- negligence their minor his injury independently of produced the defendants, plaintiff. vis other or the See Hotel, Majors v. Brodhead negligence.” Arms, A.2d Haines v. Raven Pa. at at 878. A.2d (1994) (defendant responsible was 5% addition, In Id. at at 923. harm); Giuntoli, Butterfield “substan- 432 of the Restatement clarifies denied, alloc. negligent follows: tial factor” as “the actor’s (1996) (2% 3% liabili bringing is not a substantial factor conduct LaMarca, ty); Boring if harm would about harm another denied, alloc. if the actor had not have been sustained even (1994) (4% liability).3 A.2d 1319 and 10% Restatement, supra, at negligent.” been essence, cases, recognized as in the “substan 432(1). Bashline, 481 § also Hamil v. See tial” in the means “substantial factor” test (1978). Furthermore, 256, 392 A-2d 1280 Pa. “significant.” Wagner, supra Accord at 632- § several 433 of the Restatement sets forth (trial 34, properly 684 A.2d at 577 court determining in whether factors to consider instructed that be hable defendant could factor in the actor’s conduct a substantial if action was not its the sole cause bringing about harm another: plaintiffs’ injuries, neg but not if defendant’s ligent insignificant (a) act anwas factor of those of which con- the number other factors Ford, injuries). Supreme supra, producing in harm and the tribute stated, ap Court “[u]nder the Restatement they of the effect which have extent proach the issue is whether the defendant’s it; producing was, hand, on the a ‘substantial conduct one (b) has creat- whether actor’s conduct or, factor’ or a ‘substantial cause’ on the a force or series forces which are ed hand, other whether conduct the defendant’s operation up continuous active ‘insignificant ‘negligible was cause’ or a harm, or created a situa- time of the has Ford, supra, 594, at cause.’” at 379 A.2d by upon tion harmless unless acted other Hospital, 114. In Jones v. 494 Montefiore responsi- which the not forces for actor is 410, (1981), Supreme Pa. A.2d 920 431 ble; Court added: (c) lapse of time. Pennsylvania recognized law that long has Restatement, supra, §at 433. Accord Vatti be, this substantial not as the need factor 241, Hospital, v. Lower Bucks 502 mo incorrectly charged, trial court all of from 465 A.2d 1231 Absent factor, produces “that ... i.e. cause which is a requirement these definitions Inouye,

the result.” 491 Pa. Gradel (1980); quantity” order Hamil v. cause be “considerable 421 A.2d 678 4 Bashline, at 285 as a “substantial factor.” at 392 A.2d to count Thus, previous- quantitative Appellees use to define 4. counter this Court has 3. terms dictionary ly upheld of a a means to of wheth the use as "substantial factor" confuses the issue upon clarify has become legally negligent with the which a er a defendant Hood, comparative neg separate under confused. In Commonwealth issue the law of (1990), Pa.Super. Court plaintiff's negligence is 572 A.2d this ligence whether the concerning defendant(s)’ negligence upheld outweighed the trial court’s instruction multiple "employ” liability among word is used Penn- apportionment of the word Law, 129(e), 7102; when sylvania’s Dental 63 P.S. See 42 Christiansen defendants. Pa.C.S. Silfies, recited to the the definition the court denied, Dictionary. (1995), See "employ” in Webster’s contained alloc. Funke, also Commonwealth

Therefore, compelled we are duty to conclude court give has the such additional case, that in this the use of the may instructions on the law as the' court definition of “substantial” to define necessary jury’s “substan- think doubt clearly placed tial factor” upon plaintiffs a or confusion. greater required.5 burden than the law Ac- Id. at at 621. Accord: Scar cordingly, instructing erred Lewis, borough by Scarborough v. 359 Pa.Su jury, appellants are entitled to a new 57, 69-71, per. rev’d trial. grounds, on other (1989); City Philadelphia, Smick v. CONCLUSION: Pa. Commw. The trial court in instructing erred disclosed, jury’s aWhen confusion is

jury, and such error had placing the effect of judge must have discretion deter higher proof upon plaintiffs burden of mining how best to resolve the confusion. than required. the law 69-73, Scarborough, at Consequently, the order entered Smick, A.2d at 570-71. See 161 Pa. Commw. Court of Philadelphia Common Pleas of (“[t]his at at rule com reversed, County is and these cases are re- mits to the sound discretion of the trial manded to that court for a new trial. Juris- scope of such additional instructions as relinquished. diction give he or she decides to ato that has confusion.”). expressed CIRILLO, Emeritus, Judge President files dissenting opinion. In order to obtain a new trial based on the trial court’s jury’s ques- treatment of the CIRILLO, Judge Emeritus, President tion, moving party must demonstrate dissenting: way in what the trial error caused an I agree cannot judge’s that the trial use Mauk, incorrect result. Nebel v. dictionary the definition of “substantial” to carry 253 A.2d 249 To its placed define “substantial upon appel- factor” showing burden of a causal connection be- greater lants a required by burden than that result, tween moving the error and the I, Pennsylvania therefore, respectfully law. party must show at least a “substantial dissent. possibility of an incorrect result after con- general jurors’ The questions ap- rule on given particular sideration is to the facts of pears Oberhuber, in Worthington v. question, ease with attention also to (1966): 561, 215 A.2d 621 response required. nature of the may There be situations in particular which a trial question put answer the to the judge may questions put Poach, decline to judge.” Reilly answer Pa.Super. jury, but where a returns on 525 at Note A.2d at Note confusion, (1974) its own motions indicating (emphasis supplied). (1982) (this upheld legal meaning given Court and well-settled must be dictionary court's use of a (citation omitted). to define the term meaning.”) explained As 780-102). "processing,” § as it is used in text, 35 P.S. "substantial,” term when used in the However, holding, explicit- in so the Hood Court test, developed partic- "substantial factor” has ly "employ” noted that the term was not a tech- meaning noticeably ular in the law that is differ- term, Statutory nical and therefore under the common, dictionaiy ent understanding. from its Act, seq., Construction 1 Pa.C.S. 1901 et. ordi- summary, may In while a trial court use a dictio- nary according words must be construed to its nary clarify meaning ordinary words approved usage. corollary common and The instructions, imper- used in its such use is rule, recognized Statutory under the Con- phrase question, missible where the word or Act, phras- struction is that "technical words factor,” particular such as “substantial has a acquired peculiar es and such others as have legal meaning technical or as established stat- appropriate meaning ... shall be construed ute or case law. according peculiar appropriate to such 1903(a). or definition.” 1 Pa.C.S. important thing any 5. "The Unemployment Compensa-

Accord about word is how McGinness Rev., 104, 107-09, Pa.Super. you Syrus: tion Bd. understand it.” Publilius Maxims. (1955) ("Words having precise actions; a test for asbestos legal causation Scarborough, 359 at they had in- been claimant must show Reilly, Pa.Super. at at 570. See exposure (“[w]hile jured by exposure and asbestos the fact that the 323 A.2d at 51-52 in their contributing factor was a substantial that some question was asked would indicate of the injuries). there is no mention While existed, a new trial should not be confusion large” or “considerable” “significantly it can be shown that ordered unless comment, such in the Restatement found confusion worked detriment standard, terms, a “reasonable man” under losing party[;][i]n order to obtain a new trial departure from “sub- significant are not a party in what moving must demonstrate “cause,” especially or when stantial factor” way an incorrect re- the trial error caused dictionary (e.g., a “popular in the sense” used sult.”). definition). Ford, supra. As referenced Appellants defining claim that in the term instructions, suggested the standard quantity, “substantial” as “considerable in the “substantial factor” test “substantial” strayed significantly large,” the trial court Anzon, “significant.” Wagner See means significantly from the instruc- standard higher appellants tion to a and held (1996). Here, utilized the proof, thereby causing burden of an incorrect instruc- “significant” in his clarification term disagree. I result. Thus, agree I cannot with the conclu- tion. appellants’ argument falls far short of large” “significantly or sion that the terms showing possibility the requisite “substantial higher imposed a burden “considerable” Scarborough, of an incorrect result.” appellants to the extent that proof on Pa.Super. at at 570. It is undis- dictionary an incorrect re- definition caused puted supreme that our never has sult to be rendered this case. Scarbor- adopted Pennsylvania Suggested Stan- supra. ough, Instructions, Jury dard Commonwealth fact, have, in appellate In courts analo- our Smith, 80 n. (albeit in the criminal con- gous situations (1997); however, 1094 n. 11 the trial court’s text), acknowledged the use of def- directly instruction has not been standard purposes for of clarification. initions Rather, question. into I am not con- called Hood, Commonwealth judge improperly vinced that the trial deviat- imposed a fine was citing original ed from its instruction in Pennsylvania’s upon appellant violating dictionary definition when asked to 129(e). Appel- Law. 63 Pa.C.S.A. Dental contrary, the term “substantial.” To the charge con- argued lant that the court’s judge was well within to ex- his discretion “employ,” meaning of the word cerning the plain using term its common 129(e), be- was erroneous found section jury expressed after with the confusion upon the Dictio- cause it was based Webster’s supra; original charge. Scarborough, Noting that non-teehnical nary definition. Smick, supra. ap- common and given terms must be their out, majority correctly points As the that the proved usage, this court determined Pennsylvania Supreme Court Ford v. “employ” was an ade- dictionary definition Jef (1977), fries, cited summary and was fair of the term quate and 431 of approval with the comments to section jury in its properly guide the to sufficient (a) Specifically, Funke, Restatement. comment See Commonwealth deliberations. (1982) (the part: “The word states ‘substantial’ 452 A.2d 857 ... conduct used to the fact that the to denote not err in its instructions trial court did [ejffeet “process- harm producing has as term such when it defined the regard it as a read- to lead reasonable men to in 35 ing,” as found P.S. word; cause, it is using popular dictionary meaning word in the sense ing Ford, duty at 114 issues judge’s 474 Pa. at ...” added). plain lan- Raymark, principles make understandable (emphasis See Rafter therefore, and, error it was not guage dictionary (1993) (the in the common analysis is the define the term substantial factor sense). Metropolitan See also Takes v. Edison o.,

C 655 A.2d 138 part grounds, rev’d in on other (1997) (“pattern instruc incomprehensible lay ju

tions can be

ror, judges make an should effort

explain in plain English.”). the law The trial

judge in clearly permit the instant case was supplement

ted to wording of the stan

dard with a definition instruction

where, here, the standard instruction cre jury.

ated confusion supplemen for the provided by

tal definition court was permissible judicial exercise of discretion original

and was not far so removed from the

instruction so as to cause an incorrect result.

Scarborough, supra.

PAVEX, Liberty INC. and

Excavators Inc. FEDERAL

YORK AND LOAN SAVINGS and York Financial

ASSOCIATION

Corporation

Dorothy J. Kauffman HECK Dorothy J. Heck.

a/k/a

Appeal of FEDERAL YORK SAVINGS

AND LOAN ASSOCIATION and York Corporation, Appellants.

Financial

PAVEX, Liberty INC. Excavators

Inc., Appellants,

YORK FEDERAL & LOAN SAVINGS

ASSOCIATION and York Financial

Corporation

Dorothy J. Kauffman HECK Dorothy J. Heck.

a/k/a

Superior Pennsylvania. Court of

Argued March 1998. July

Filed 1998.

Case Details

Case Name: Jeter v. Owens-Corning Fiberglas Corp.

Court Name: Superior Court of Pennsylvania

Date Published: Jul 27, 1998

Citation: 716 A.2d 633

Court Abbreviation: Pa. Super. Ct.