Case Information

*1 J-A19034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 THE CINCINNATI INSURANCE : IN THE SUPERIOR COURT OF COMPANY, AS SUBROGEE OF LEONARD : PENNSYLVANIA S. FIORE, INC., :

Appellant :

v. :

SELECTIVE INSURANCE COMPANY OF :

SOUTH CAROLINA AND DAVID :

PHILLIPS d/b/a DA-LYN CONTRACTORS : No. 446 EDA 2017

Appeal from the Order entered December 23, 2016 in the Court of Common Pleas of Philadelphia County, Civil Division, No(s): December Term, 2014 No. 0175 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017

The Cincinnati Insurance Company (“CIC”), as subrogee of Leonard S. Fiore, Inc. (“Fiore”), appeals from the Order granting the Motion for Summary Judgment filed by Selective Insurance Company of South Carolina (“SIC”) and David Phillips d/b/a Da-Lyn Contractors (collectively “Defendants”), and denying CIC’s Cross-Motion for Summary Judgment. We affirm.

In its Opinion, the trial court set forth the relevant factual and procedural background, which we adopt for the purpose of this appeal. See Trial Court Opinion, 12/23/16, at 1-4.

J-A19034-17

On December 23, 2016, the trial court granted Defendants’ Motion for Summary Judgment, and denied CIC’s Cross-Motion for Summary Judgment. This timely appeal followed. ^[1]

On appeal, CIC raises the following issues for our review: 1. Whether the [t]rial [c]ourt erred in granting [D]efendants’ [M]otion for [S]ummary [J]udgment in ruling[,] as a matter of law[,] that the [SIC] primary insurance policy [(“the SIC policy”)] was excess over the [CIC] primary insurance policy [(“the CIC policy”)] and the [CIC] umbrella policy [(“the CIC umbrella policy”)?]

2. Whether the [t]rial [c]ourt erred in denying [CIC’s] [C]ross- [M]otion for [S]ummary [J]udgment in ruling[,] as a matter of law[,] that the [SIC] policy was not triggered[,] and required to exhaust[,] prior to the [CIC] umbrella policy[?] 3. Whether the [t]rial [c]ourt erred in determining that the [SIC] policy was not obligated to reimburse the defense costs incurred by [CIC] in the defense of Fiore and Wal-Mart in the Peterman lawsuit[?]

Brief for Appellant at 4.

As CIC’s issues are related, we will address them together. In its first issue, CIC contends that SIC advanced only two arguments in support of its Motion for Summary Judgment, namely, that (1) Fiore and Wal-Mart are additional insureds under the SIC policy with respect to bodily injury caused in whole or in part by the ongoing operations of Da-Lyn Contractors (“Da- Lyn”); and (2) the Amended Complaint filed in the underlying Peterman litigation lacks any allegations of Da-Lyn’s negligence. Id . at 10. CIC *3 J-A19034-17

asserts that both of SIC’s arguments were impliedly rejected pursuant to the trial court’s finding that the allegations of the Amended Complaint filed in the underlying Peterman litigation sufficiently articulated proximate causation attributable to Da-Lyn. Id . at 10-11. CIC claims that, pursuant to the indemnification provision in the contract between Fiore and Da-Lyn, Da- Lyn was contractually obligated to indemnify Fiore and Wal-Mart for any bodily injury caused by Da-Lyn’s negligence. Id . at 12-14. According to CIC, SIC does not dispute that the SIC policy, although excess over the CIC policy, applies before the CIC umbrella policy is triggered. Id . at 16-17.

In its second issue, CIC asserts that, pursuant to the contract between Fiore and Da-Lyn, Da-Lyn was required to obtain commercial general liability coverage with a personal and advertising injury limit of $1 million, and that the SIC policy was, therefore, the primary coverage under the contract between Fiore and Da-Lyn. Id . at 18. ^[2] CIC claims that the contract between Fiore and Da-Lyn also required that “[a]ll insurance must contain an endorsement that the insurance coverage is primary to that of Wal- Mart’s[,] and that Wal-Mart’s policies are excess.” Id . (quoting Exhibit C to the Da-Lyn/Fiore Contract). CIC argues that, after the CIC policy was exhausted during settlement of the Peterman lawsuit, the SIC policy should *4 J-A19034-17

have been exhausted before the CIC umbrella policy was triggered. Id . at 19. CIC contends that, in ruling that the SIC policy was excess over the CIC umbrella insurance policy, the trial court failed to compare the language of the SIC policy to the language of the CIC umbrella policy regarding the order in which the policies were required to exhaust. Id . at 17. Specifically, CIC points to the “Other Insurance” clause in the CIC umbrella policy, which states as follows:

The insurance provided by this Coverage part is excess over any other valid and collectible insurance, other than insurance written specifically to be excess over this insurance, and shall not be contributory.

Id . at 19 (quoting the CIC Umbrella Policy, Form US 101 UM 10 02, at p. 14). CIC asserts that, in ruling that the SIC policy was excess to the CIC umbrella policy, the trial court relied exclusively on the “Blanket Additional Insured” form included in the SIC policy, which reads as follows:

This coverage shall be excess with respect to the person or organization included as an additional insured by its provisions: any other insurance that person or organization has shall be primary with respect to this insurance, unless this coverage is required to be primary and not contributory in the contract, agreement or permit referred to above.

Id . (quoting the SIC Policy, Blanket Additional Insured Form). CIC claims that after the $1 million limit under the CIC policy was exhausted, the SIC policy should have applied, pro rata , with the CIC umbrella policy until the Peterman settlement was fully paid. Id . at 22. CIC argues that, because Fiore and Wal-Mart are additional insureds under the SIC policy, the costs of

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J-A19034-17

defending them, as incurred by CIC, qualify as recoverable “damages” under the SIC policy. Id . Finally, CIC contends that the contract between Fiore and Da-Lyn is an “insured contract” under the SIC policy, and is not subject to the contractual liability exclusion contained therein. Id .

In its third issue, CIC contends, in the alternative, that if the trial court’s Order granting summary judgment in favor of SIC is affirmed, “there must also be a finding that Da-Lyn’s insurance coverage with [SIC] is primary and contributory over the coverage afforded to Wal-Mart.” Id . at 25.

We review orders granting summary judgment under the following standard:

Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions and affidavits and other materials demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the non[-] moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.

Wall Rose Mut. Ins. Co. v. Manross , 939 A.2d 958, 962 (Pa. Super. 2007) (citations omitted). When considering an order granting summary judgment in the context of a declaratory judgment action, our scope of review is plenary. Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co. , 908 A.2d 888, 895 (Pa. 2006). We will reverse the order of the trial court only if we find that an error of law or an abuse of discretion

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J-A19034-17

has occurred. Id . “The test is not whether we would have reached the same result on the evidence presented, but whether the trial court’s conclusion can reasonably be drawn from the evidence.” Nationwide Mut. Ins. Co. v. Cummings , 652 A.2d 1338, 1341 (Pa. Super. 1994).

In its Opinion, the trial court addressed CIC’s issues, set forth the relevant law, and determined that the issues lack merit. See Trial Court Opinion, 12/23/16, at 4-10. As we discern no abuse of discretion or error of law in the trial court’s analysis, we affirm its Order on this basis. See id .

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/17

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C i r c u l a t ed / 22 / 2017 03 : 24 P M RECEIVED

OEC '2 2 101i IN THE COURT F COMMON PLEAS OF PHILADELPHIA COUNTY

ROOM 521 FIRST UDICIAL DISTRICT OF PENNSYLVANIA

TRIAL DIVISION-CIVIL December Term, 2014 THE CINCINNATI INSURANCE COMPANY lain tiff Case No. v. Commerce Program SELECTIVE INSURANCE OMPANY OF SOUTH CAROLINA

and DAVID PHILLIPS d/b a/ DA-LYN CONTRACTORS Control Nos. De endants 16062587, 16072073. ORDER

AND Now, this ------1,_.~---·~_.-_,_,( __ day of December, 2016, upon consideration of the motion for summary udgment of defendants Selective Insurance Company of South Carolina and David P illips d/b/a/ Da-Lyn Contractors, the cross-motion for summary judgment of plain iff, The Cincinnati Insurance Company, the respective answers in opposition, and he memoranda of law, it is ORDERED as follows: The motion for sum ary judgment of defendants is GRANTED. I.

II. The motion for sum ary judgment of plaintiff, The Cincinnati Insurance

Company, is DENIED

DOCKETED

OEC 2 3 LOH~ R POSTEL. 1•

COMMERCE rE·~,c:;·.;;:.:'-.Ji

The Cincinnat lnsuranc-WSJDM

111111111111111111111 111111111

14120 17500050

COPIES SENT PURSUANT TO Pa.R.C.P. 236 b) R. POSTELL 12/23/2016

IN THE COURT F COMMON PLEAS OF PHILADELPHIA COUNTY FIRST UDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION-CIVIL December Term, 2014

THE CINCINNATI INSURANCE COMPANY laintiff Case No. 00175 Commerce Program v. SELECTIVE INSURANCE OMP ANY OF socrn CAROLINA

and DAVID PHILLIPS d/b a/ DA-LYN CONTRACTORS Control Nos. De endants 16062587, 16072073. MEMORANDUM OPINION This is a declaratory udgment action arising out of a catastrophic accident which occurred at a construction s te. The instant cross-motions of summary judgment require the Court to determ ne whether a policy of insurance obtained by a subcontractor was a prima policy or an excess policy with respect to any insurance obtained by the general con ractor. For the reasons below, the Court finds that the policy of insurance obtaine by the subcontractor was an excess policy.

BACKGROUND Plaintiff, Cincinnati nsurance Company ("Cincinnati"), is licensed to issue insurance policies in Penns lvania. Defendant Selective Insurance Company, ("Selective") is also licensed to issue insurance policies in Pennsylvania.s Defendant David Phillips, d/b/a/ Da- Contractors C'Da-Lyn"), is a company engaged in the Admission of plaintiff Cincinnat , complaint, ,i 4. ^[2] Admission of defendant Selecti e, answer to complaint, ,1 5. *9 construction trade. A non- arty to this action, Mr. Jody Peterman ("Peterman"), was an employee of Da-Lyn in the ourse of a project at a Wal-Mart construction site. Another non-party to this action, Le nard S. Fiore, Inc. ("Fiore"), is a corporation engaged in the construction trade.

Pursuant to the term of a "Prime Contract," Fiore operated as a manager or general contractor during c nstruction work at a "Wal-Mart" store. The Prime Contract between Fiore and Wal-Ma t contained a provision requiring Fiore to indemnify Wal- Mart from damages arising out of the actions or omissions of Fiore in the pursuit of its duties as manager or gener 1 contractor.e At all times relevant to this action, Da-Lyn operated as a subcontracto of Fiore, pursuant to the terms of a "Subcontract" dated July 22, 2008.4 The Subco tract between Fiore and Da-Lyn also contained an indemnification provision f r the benefit of Fiore. s

While acting as man ger or general contractor under the Prime Contract, Fiore was under two layers of ins ranee protection: a commercial general liability policy and a commercial umbrella liabili y policy, both of which had been issued by Cincinnati under the same policy number, C P-089-36-36/CPA (respectively, the "Cincinnati Primary Policy" and the "Cincinnati mbrella Policy"). ^[6] At all times relevant to this action, defendant Da-Lyn was insu ed under a commercial general liability policy which had been issued by defendant S lective, No. S-139960104 (the "Selective Policy").7 ^[3] Prime Contract (Construction greement Between Owner and Contractor), Exhibit E to the motion for ^[4] Subcontract between Fiore and a-Lyn, Exhibit G to the motion for summary judgment of Cincinnati, summary judgment of Cincinnati motion control No. 16072073, Article 13.1.

motion control No. 16072073. s Id., 1! 13. Cincinnati Primary Policy, Exhi it A to the motion for summary judgment of Cincinnati, motion control

No. 16072073; Cincinnati Umbre la Policy, Exhibit B to the motion for summary judgment of Cincinnati, Selective Policy, Exhibit C to th motion for summary judgment of Cincinnati, motion control No. motion for summary judgment, otion control No. 16072073. 16072073. *10 eterman fell from a ladder while working under Da-Lyn at

On October 8, 2008 the Wal-Mart construction ite.s In April 2010, Peterman filed a lawsuit against Wal- Mart, Fiore, and other defe dants, in the Court of Common Pleas, Philadelphia County (the "Underlying Action").> In the amended complaint, Peterman inter alia alleged that "as a direct and proximate esult of the carelessness, negligence and wrongdoing of defendants ... [Peterman] .. suffered the functional loss of the lower part of his body.v= Defendant Da-Lyn, as thee ployer of Peterman, was not a named party in the Underlying Litigation.»

On June 15, 2010, Ci cinnati, on behalf of Fiore, claimed indemnification from Selective, insurer of Da-L . On September 24, 2010, Selective replied to the claim for indemnification and admitt d that Fiore was an additional insured underthe Da-Lyn policy. However, Selective lso asserted that it had no obligation to provide a defense to Fiore in the Underlying Liti ation. This letter specifically stated:

We have had n opportunity to review the contract [between Fiore and Da- yn] and our policy. The contract does state that Leonard . Fiore Inc. shall be named as an additional [Selective] policy; however, the contract does ur insured's [Da-Lyn's] policy shall be primary. We cknowledge Leonard S. Fiore, Inc. as an Additional In ured on our insured policy; however, it would only be an ad itional insured on an excess basis.

***

To [sjummari e ... Fiore ... is an additional insured under the Selective [P]o · cy, but only on an excess basis, and only with respect to bod ly injury or property damage caused in whole Inspection Narrative, the U.S. epartment of Labor, Occupational Safety and Health Administration · ("OSHA"), p. 2, Exhibit I to them tion for summary judgment of Cincinnati, motion control No.

[9] Underlying Litigation: complai t, ,Jody Peterman v. Wal-Mart Stores. Inc .. Leonard S. Fiore et al. 16072073.

Exhibit B to the motion for sum ary judgment of Selective, motion control No. 16062587. JO Id., ii 34. Id,, at caption.

or in part by ur insured's ongoing operations. Accordingly, since Selectiv is an excess carrier we have no obligation to provide a def nse to ... Fiore ... in connection with [the Underlying L'tigation].12

Subsequent to Selec ive's refusal to defend Fiore, Cincinnati settled the Underlying Action and pai on behalf of Fiore and Wal-Mart the "per occurrence limit of liability" under the Cinci nati Primary Policy, as well as a portion of the limit of i Umbrella Policy.» On November 26, 2014, Cincinnati liability under the Cincinna commenced the instant dee aratory judgment action and filed a complaint against defendants Selective and D -Lyn, In the course oflitigation, this Court granted three extensions to the case-man gement deadlines. On June 20, 2016, defendants Selective and Da-Lyn filed a motion r summary judgment, and, on July 18, 2016, plaintiff Cincinnati filed its cross- otion for summary judgment. The motion and cross-motion have been fully briefed and re ripe for a decision.

DISCUSSION Before addressing th issues presented by the cross-motion for summary judgment, the Court notes t

[t]he proper c nstruction of an insurance policy is resolved as a matter of aw in a declaratory judgment action .... The Declaratory J dgments Act may be invoked to interpret the obligations of he parties under an insurance contract, including the uestion of whether an insurer has a duty to defend and/ o a duty to indemnify a party making a claim under the poli y.14

A court s first step in a declaratory judgment action ^[12] Letter dated September 24, 201 , from Selective to Cincinnati, Exhibit J to the motion for summary judgment of Cincinnati, control o. 16072073, pp. 2-3. ^[1] ^[3] Motion for summary judgment f Cincinnati, at~~ 31-33; admission of Selective at~~ 31-33 in its response in opposition, motion c ntrol No. 16072073. The trial worksheet for the Underlying Action, dated October 22, 2012 at Docket No. 1004-03751, shows that the case was settled "prior to assignment for trial." QBE Ins. Corp. v. Walters, Pa. Super. 205 (Sept. 9, 2016).

concerning i surance coverage is to determine the scope of the policy's c verage ... .15

The q estion of whether a claim against an insured is potentially co ered is answered by comparing the four corners of th insurance contract to the four corners of the complaint.w

If the omplaint against the insured avers facts that would suppo t a recovery covered by the policy, then coverage is tr ggered and the insurer has a duty to defend until such ti e that the claim is confined to a recovery that the policy do snot cover. The duty to defend also carries with it a cond tional obligation to indemnify in the event the insured is hel liable for a claim covered by the policy .... Although the uty to defend is separate from and broader than the duty to indemnify, both duties flow from a determinatio that the complaint triggers coverage.w I.

In their motion for s mmary judgment, defendants Selective and Da-Lyn assert that Fiore and Wal-Mart, t ough additional insureds, have no coverage under the Selective Policy because th amended complaint in the Underlying Action failed to allege proximate causation as req ired to trigger coverage.i" Specifically, Selective argues that Peterman's amended comp aint lacked any allegation of negligence attributable to Da- Lyn; therefore, Selective co eludes that without any allegations of proximate causation attributable to Da-Lyn, no overage could be triggered in favor of Fiore under the Selective Policy. Opposin this argument, Cincinnati asserts that Peterman's amended complaint did allege neglig nee attributable to Da-Lyn; consequently, the Underlying *13 Action sufficiently averred roximate causation under the Selective Policy.sv To decide this issue, the Court turns t the pertinent language in the amended complaint filed by Peterman in the Underlyin Action. The amended complaint stated as follows:

,i 27. At all t mes material hereto, plaintiff Jody Peterman was an emplo ee in the course and scope of his relationship with Da-Lyn onstruction which was under contract with owners [Wal- art] and defendants [including Fiore,] for the general const uction and/or repair of the aforesaid [Wal Mart] buildin .

,i 28. At all t mes material hereto, Defendants [such as defendant Fi re] failed to insure that safety procedures were being followe by all contractors and subcontractors to minimize the azards related to the use of scaffolding and/or ladders in cle r violation of safety regulations.

,i 29. On Oc ober 7, 2008, Plaintiff Jody Peterman was attempting to descend from a ... scaffold using a portable aluminum ex ension ladder, when the extended portion of the ladder sliijped downward ... causing the ladder and Plaintiff, Jody Peterman, to fall approximately 24 feet to the ground result ng in serious and permanent bodily injuries. ,i,i 33-34. a direct and proximate result of the carelessness, egligence and wrongdoing of defendants ... Jody Peterma suffered fractured ribs ... sternum ... scapula, punctured lu gs and a Tm -11 burst fracture resulting in paraplegia.... ^[1]

The language contai ed in Peterman's amended complaint leaves no doubt: in the Underlying Action, Pet rman sufficiently alleged that Fiore's subcontractors, which included Da-Lyn, had faile to adopt safety procedures related to the use of scaffolds Response of Cincinnati in opp sition to the motion for summary judgment of Selective, ,i,i 52-57, motion control No. 16062587. ~1 Underlying Litigation: amende complaint at ,128, ,Jody Peterman v. Wal-Mart Stores. Inc .. Leonard S.

Fiore et al. Exhibit B to the moti n for summary judgment of Selective, motion control No. 16062587 (emphasis supplied). *14 and ladders during work a the Wal-Mart construction site. The amended complaint in the Underlying Action also sufficiently alleged that Peterman had suffered bodily damage, including fractur d bones and paraplegia, all of which were proximately caused by the alleged negligent ac rs or by the negligent omissions of Fiore and its subcontractors, including a-Lyn. For this reason, the court finds that the amended complaint in the Underlyi g Action sufficiently articulated proximate causation attributable to Da-Lyn.

II. The Selective Pol c is excess to the Cincinnati Primar and Umbrella

Policies.

In the motion for su mary judgment, Selective asserts that its policy was excess to both the Cincinnati Pri ary Policy and the Cincinnati Umbrella Policy. Selective concludes that as an excess carrier, it was not required to pay for the defense in the Underlying Action. Selecti e also concludes that it has no obligation to indemnify Cincinnati because the sett ement with Peterman did not exhaust the primary insurance limits under the two Cincinl ati policies. Selective relies on the language of its policy in support of this argument. irst, Selective calls attention upon the following provision in its policy:

WHO rs AN r SURED is amended to include as an additional insured any p rson or organization with whom you [Da-Lyn] have agree in writing in a contract, agreement or permit that uch a person or organization be added as an additional ins red on your policy. Such person or organization i an additional insured only with respect to liability for "b <lily injury" or property damage caused, in whole or in p rt, by:

1. Your [Da- yn's] ongoing operations performed for that person or rganization ....

*** This coverage hall be excess with respect to the person or *15 organization included as an additional insured ... unless this covera e is required to be primary and not contributo in the contract, agreement or permit referred to above.v

Second, Selective calls atte tion upon another provision in its policy. That provision states that-

[ w ]hen this i surance is excess, we will have no duty under Coverages A relating to bodily damage and property damage liability] or B [relating to personal and advertising injury liabilit J to defend the insured against any suit if any other insurer has a duty to defend the insured against that suit .... ^[2] ^[3]

Lastly, Selective calls atten ion upon a third provision in its policy. That provision states that-

[t]his covera e shall be excess with respect to the person or organization ncluded as an additional insured by its provisions; a y other insurance that person or organizatio has shall be primary with respect to this insura ce, unless this coverage is required to be primary an not contributory in the contract, agreement r permit referred above. ^[2] ^[4]

Before undertaking n analysis of the text quoted above, the Court is mindful that-

"[t]he task of nterpreting an insurance contract is generally performed by a court rather than by a jury. The goal of that task is ... to a certain the intent of the parties as manifested by the langua e of the written instrument .... Where a provision of a policy is ambiguous, the policy provision is to be construed n favor of the insured and against the insurer, the drafter of he agreement. Where, however, the language of the contrac is clear and unambiguous, a court is required ^[22] Selective Policy (Commercial eneral Liability), CG 72-02-07-04, p.p. 5-6 of 8, Exhibit D2 to the supplied). motion for summary judgment o defendant Selective, motion control No. 16062587 (some emphasis !d,, CG oo 01 12 04 p. 12 of 16, xhibit D2 to the motion for summary judgment of defendant Selective, motion control No. 16062587. kl at Exhibit D2, CG 72 02 07 4, p. 6 of 8 (emphasis supplied).

to give effect to that language. " ^[2] s With this standard in min , the Court finds that the clear and unambiguous language in the Selective Policy requir s any insurance policy obtained by Fiore to be primary with respect to the Selective Pol cy, unless the Subcontract between Fiore and Da-Lyn requires the Selective Poli to be primary. Guided by this clear requirement, the Court turns to the language in th Subcontract executed by Da-Lyn and Fiore to determine whether that document sp cifically required Da-Lyn's policy-namely, the Selective Policy- to be primary rath r than excess. An examination of the entire body of that document, including the p ragraphs captioned INSURANCE AND RISK OF LOSS and INDEMNITY, convinces this ourt that the Subcontract does not contain any language specifically requiring the D -Lyn/Selective policy to be primary. ^[26] Based on the foregoing, the Court may oily conclude that the Selective Policy is merely excess to any other insurance which F ore may have had as an additional insured. This means that the Selective Policy is excesI not only to the Cincinnati Primary Policy, but also to the Cincinnati Umbrella Policy Furthermore, the record shows that the policy limit under the Cincinnati Primary Pol' cy was $1 million for each occurrence, while the policy limit under the Cincinnati Umbr Ila Policy was $12 million for each occurrence.w Since Cincinnati admits that it se tled the Underlying Action for $8.5 million, the Court finds that Cincinnati's policy limits were not exhausted; therefore, Selective -an excess carrier to the policies issued by Ci cinnati- has no duty to indemnify Cincinnati for the s Madi n Const v Harle s 'Ile Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999). Subcontract between Fiore an Da-Lyn, Exhibit G to the motion for summary judgment of Cincinnati, motion control No. 16072073. Cincinnati Primary Policy (GA 501-10-01), Exhibit A to the motion for summary judgment of

Cincinnati, motion control No. 1 072073; Cincinnati Umbrella Policy (USC-504-09-02), Exhibit B to the motion for summary judgment o Cincinnati, motion control No. 16072073.

settlement in the Underlyi

Finally, the Court n tes that Da-Lyn had no duty to defend Fiore and Wal-Mart in the Underlying Action, pu suant to the clear language contained in the Selective Policy. That policy specifically sta ed that-

[w]hen this i surance is excess, we will have no duty under Coverages A [relating to bodily damage and property damage liabi ity] or B [relating to personal and advertising injury liabilit ] to defend the insured against any suit if any other insure has a duty to defend the insured against that suit.i.w

For these reasons, t emotion for summary judgment of Selective is granted and the cross-motion for sum ary judgment of Cincinnati is denied.

BYTHECOURT, RAMf:p.b1r

SI,J. Cincinnati's admission that it ettled the Underlying Action for $8.5 million can be found in its memorandum of law in oppositi n to the motion for summary judgment of Selective, at p.i, motion control No. 16062587. 2• Selective Policy, (CG oo 01 12 4) p. of 16, Exhibit D2 to the motion for summary judgment of defendant Selective, motion con rol No. 16062587.

[1] The trial court did not order CIC to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(a). - 2 -

[2] CIC further asserts that, pursuant to the contract between Fiore and Da- Lyn, Da-Lyn was also required to obtain umbrella liability coverage with a limit of $3 million, but failed to do so. See Brief for Appellant at 18. - 3 -