J-A15013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW LIGHTNER                                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                     v.

CARLEVALE'S CUSTOM CARS, LLC D/B/A
CARLEVALE CUSTOM CARS; GRANGE
INSURANCE AND GINO M. FRATTAROLI

APPEAL OF: GRANGE MUTUAL
CASUALTY COMPANY

                                                      No. 331 MDA 2016


              Appeal from the Order Entered January 29, 2016
              In the Court of Common Pleas of Lebanon County
                     Civil Division at No(s): 2015-00331


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED DECEMBER 15, 2017

      Grange Mutual Casualty Company (“Grange”) appeals from the January

29, 2016 order entered in the Lebanon County Court of Common Pleas

granting Matthew Lightner’s motion for summary judgment and denying

Grange’s motion for judgment on the pleadings. We reverse.

      This matter, which involves the interpretation of a Grange insurance

policy issued to Carlevale Custom Cars (“Carlevale”), arises out of the

following relevant factual history. Gino M. Frattaroli brought his 1970 Corvette

to Carlevale to be restored.    Before completing the restoration, Carlevale

invited Frattaroli to come to its place of business and conduct a test drive of
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his vehicle.      On July 24, 2013, Frattaroli conducted the test drive,

accompanied by a Carlevale employee. While turning onto U.S. Route 322,

Frattaroli’s Corvette collided with Matthew Lightner, who was operating a

motorcycle. Lightner was injured as a result of the collision. At the time of

the collision, Frattaroli had not insured the vehicle.1 Lightner sought liability

coverage under Carlevale’s insurance policy with Grange.          Grange denied

coverage.

       The trial court summarized the procedural history of this matter as

follows:

               [Lightner filed a complaint seeking] relief by asking this
           Court to declare the Corvette as a covered vehicle under the
           policy, declare Mr. Frattaroli as an insured and determine
           that Grange has a duty to defend and indemnify. Grange
           answered the complaint with new matter and cross
           claim/counterclaim on March 13, 2015, seeking declaratory
           relief. Grange seeks a declaration from this Court that Mr.
           Frattaroli is not insured under the policy and that Grange
           does not have a duty to defend or indemnify Mr. Frattaroli
           for the accident that occurred between Mr. Frattaroli and
           [Lightner].

              [After various additional pleadings,] Grange filed a
           motion for judgment on the pleadings on October 29, 2015.
           [Lightner] filed his motion for summary judgment on
           November 20, 2015. . . . Oral argument was heard on the
           motions on December 31, 2015.

Trial Ct. Op., 1/29/16, at 3. On January 29, 2016, the trial court granted



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       1Lightner also asserts that Frattaroli was without a valid driver’s license
at the time of the collision. Lightner’s Br. at 4.



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Lightner’s motion and denied Grange’s motion.2           On February 22, 2016,

Grange timely filed a notice of appeal.

       Grange raises the following issues on appeal:

           1. Did the trial court err in refusing to enter an order
              declaring that [Grange] had no duty to defend or
              indemnify Gino Frattaroli from the claims asserted
              against him by Matthew Lightner, when the insurance
              policy did not include Gino Frattaroli within the definition
              of an “insured?”

           2. Did the trial court err in finding that the insurance policy
              was ambiguous as to whether the owners of “nonowned
              autos” were included within[] the definition of an
              “insured” and in declaring that [Grange] had a duty to
              defend Gino Frattaroli, when the policy plainly limits the
              definition of “insureds” to (1) [Carlevale] for any covered
              auto, and (2) anybody else while using a covered auto
              hired or borrowed by Carlevale, unless that person is the
              owner of the automobile?

Grange’s Br. at 2 (answers below and suggested answers omitted).

       In both of its issues on appeal, Grange argues that the trial court erred

in interpreting the insurance policy central to this matter. The trial court found

that the policy language was ambiguous, and therefore construed it against

Grange as the drafter.

       Because “[i]nterpretation of an insurance contract is a matter of law[,]

. . . [o]ur standard of review . . . is plenary.” Municipality of Mt. Lebanon




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       The trial court found that Frattaroli was an “insured” under the policy
       2

and that Grange had a duty to defend. Order, 1/29/16.



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v. Reliance Ins. Co., 778 A.2d 1228, 1231 (Pa.Super. 2001).3 The goal in

interpreting the language of an insurance policy is “to ascertain the intent of


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       Our scope and standard of review in this case are well-settled. First,
       3

for summary judgment:

              [O]ur scope of review is plenary, and our standard of
           review is the same as that applied by the trial court. . . .
           [A]n appellate court may reverse the entry of a summary
           judgment only where it finds that the lower court erred in
           concluding that the matter presented no genuine issue as to
           any material fact and that it is clear that the moving party
           was entitled to a judgment as a matter of law. In making
           this assessment, we view the record in the light most
           favorable to the non-moving party, and all doubts as to the
           existence of a genuine issue of material fact must be
           resolved against the moving party. As our inquiry involves
           solely questions of law, our review is de novo.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.)
(alterations in original) (quoting Mull v. Ickes, 994 A.2d 1137, 1139–40
(Pa.Super. 2010), app. denied, 117 A.3d 298 (Pa. 2015). Second, in
reviewing the grant or denial of a motion for judgment on the pleadings:

           This Court applies the same standard as the trial court and
           confines its consideration to the pleadings and documents
           properly attached thereto. Lewis v. Erie Insurance
           Exchange, 753 A.2d 839, 842 (Pa.Super. 2000). We
           review to determine whether “the trial court’s action
           respecting the motion for judgment on the pleadings ‘was
           based on a clear error of law or whether there were facts
           disclosed by the pleadings which should properly go to the
           jury.’” Id. (citations omitted). We will affirm the grant of
           judgment on the pleadings only if “the moving party’s right
           to succeed is certain and the case is so free from doubt that
           trial would clearly be a fruitless exercise.” Id. (citations
           omitted).

Municipality of Mt. Lebanon v. Reliance Ins. Co., 778 A.2d 1228, 1231
(Pa.Super. 2001).



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the parties as manifested by the language of the written instrument.” Id. at

1231-32 (quotation omitted). Accordingly, “our Supreme Court has instructed

that the polestar of our inquiry . . . is the language of the insurance policy.”

Id. at 1232 (internal quotation omitted).

       Further:

            When construing a policy, [w]ords of common usage . . .
            are to be construed in their natural, plain and ordinary sense
            . . . and we may inform our understanding of these terms
            by considering their dictionary definitions and where the
            language of the [policy] is clear and unambiguous, a court
            is required to give effect to that language. However,
            [w]here a provision of a policy is ambiguous, the policy
            provision is to be construed in favor of the insured and
            against the insurer, the drafter of the agreement. Thus,
            while a court will not distort the meaning of the language or
            resort to a strained contrivance in order to find an
            ambiguity, it must find that contractual terms are
            ambiguous if they are subject to more than one reasonable
            interpretation when applied to a particular set of facts.

Id. (internal quotations and citations omitted).

       Two conditions must be satisfied before Grange is required to defend

and indemnify under the policy: (1) the resulting injury must arise from the

use of a “covered auto”; and (2) the party seeking coverage must be an

“insured.”4 Grange admits that the Vehicle was a “covered auto,” as either a



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       4   The policy outlines the scope of coverage, in relevant part, as follows:

            A. Coverage



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____________________________________________


          We will pay all sums an “insured” legally must pay as
          damages because of “bodily injury” or “property damage” to
          which this insurance applies, caused by an “accident” and
          resulting from the ownership, maintenance or use of a
          covered “auto”.

          We will also pay all sums an “insured” legally must pay as a
          “covered pollution cost or expense” to which this insurance
          applies, caused by an “accident” and resulting from the
          ownership, maintenance or use of covered “autos”.
          However, we will only pay for the “covered pollution cost or
          expense” if there is either “bodily injury” or “property
          damage” to which this insurance applies that is caused by
          the same “accident”.

          We have the right and duty to defend any “insured” against
          a “suit” asking for such damages or a “covered pollution cost
          or expense”. However, we have no duty to defend any
          “insured” against a “suit” seeking damages for “bodily
          injury” or “property damage” or a “covered pollution cost or
          expense” to which this insurance does not apply. We may
          investigate and settle any claim or “suit” as we consider
          appropriate. Our duty to defend or settle ends when the
          Liability Coverage Limit of Insurance has been exhausted by
          payment of judgments or settlements.

          1. Who Is An Insured

              The following are “insureds”:

              a. You for any covered “auto”.

              b. Anyone else while using with your permission a
                 covered “auto” you own, hire or borrow except:

                 (1)    The owner or anyone else from whom you hire
                        or borrow a covered “auto”. This exception does
                        not apply if the covered “auto” is a “trailer”
                        connected to a covered “auto” you own.

                 (2)    Your “employee” if the covered “auto” is owned
                        by that “employee” or a member of his or her
                        household.



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“nonowned auto” or a “hired auto” as defined by the policy. Grange’s Br. at

18.5 Lightner, while agreeing that the Corvette is a “covered auto,” contends

that it does not qualify as a “hired auto” but rather as a “nonowned auto.”

Lightner Br. at 8.6 The trial court concluded that the Frattaroli’s Corvette was

not a “hired auto” because it was not leased, hired, rented, or borrowed by

Carlevale. Trial Ct. Op. at 8. Instead, the trial court found that the Corvette


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                 (3)    Someone using a covered “auto” while he or she
                        is working in a business of selling, servicing,
                        repairing, parking or storing “autos” unless that
                        business is yours.

                 (4)    Anyone other than your “employee”, partners (if
                        you are a partnership), members (if you are a
                        limited liability company), or a lessee or
                        borrower or any of their “employees”, while
                        moving property to or from a covered “auto”.

                 (5)    A partner (if you are a partnership), or a
                        member (if you are a limited liability company)
                        for a covered “auto” owned by him or her or a
                        member of his or her household.

              c. Anyone liable for the conduct of an “insured”
                 described above but only to the extent of that liability.

Compl., Ex. A., Bus. Cov. Auto Form (“Policy”), Sec. II.A.1.
       5The policy defines “nonowned autos,” in relevant part, as “[o]nly those
‘autos’ you do not own, lease, hire, rent or borrow that are used in connection
with your business.” Policy at 1. The policy defines “hired autos,” in relevant
part, as “[o]nly those ‘autos’ you lease, hire, rent or borrow.” Id.

       Were the Corvette a “hired auto,” then section II.A.1.b(1) of the policy
       6

would preclude a determination that Frattaroli was an “insured,” as he was
the vehicle’s “owner.”




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was a “nonowned auto” that was used in connection with the business. Id.

Because it is undisputed that Frattaroli owned the Corvette, and because

Carlevale did not lease, hire, rent, or borrow it, we agree that Frattaroli’s

Corvette was a “nonowned auto,” and therefore also a “covered auto,” within

the meaning of the policy.

       We turn next to the question whether Frattaroli was an “insured” under

the policy.    Under the heading “Who Is Insured,” the policy describes two

potentially relevant classes of “insureds.” The first is “You, for any covered

‘auto’.” See Policy at Sec. II.A.1.a. The second is “Anyone else while using

with your permission a covered ‘auto’ you own, hire or borrow,” followed by a

list of five exceptions.      See id. at Sec. II.A.1.b.7   Grange contends that

Frattaroli is not an “insured” because Frattaroli was not “you” as referenced

in subsection a, and because Frattaroli’s Corvette was not a vehicle that

Carlevale “own[ed], hire[d] or borrowed,” rendering inapplicable the “Anyone

else” in subsection b.8 We agree.




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       7The policy also lists a third category, which neither party argues applies
here: “Anyone liable for the conduct of an “insured” described above but only
to the extent of that liability.” Id. at Sec. II.A.1.c.

       8Grange further contends that subsection b(1) of the “Who Is An
Insured” section also precludes Frattaroli from being an “insured” under the
policy because Frattaroli was the owner of the Vehicle. This argument is
premised on Frattaroli’s Corvette being a covered auto that Carlevale
“own[ed], hire[d] or borrow[ed].”

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      First, the policy defines the “you” in subsection a as the “Named

Insured” as listed in the Declarations page.   Id. at 1. The “Named Insured”

is Carlevale. See Compl., Ex. A., Sch. of Names and Addr. Nothing in the

language of the policy suggests any broader meaning for “you.”

      Second, with respect to subsection b, this Court has already addressed

an identical provision in another insurance policy.          See Bamber v.

Lumbermens Mut. Cas. Co., 680 A.2d 901 (Pa.Super. 1996). In Bamber,

we concluded that because the vehicle in question “was not owned, hired, or

borrowed” by the policyholder, the entirety of subsection b, “including the

exclusions, does not apply.”    Id. at 903.    Likewise, the policyholder here,

Carlevale, did not own, hire, or borrow Frattaroli’s Corvette. Subsection b,

therefore, does not apply.

      Lightner does not directly challenge the section-specific analysis set

forth above.    Instead, he argues that the policy, taken as a whole, is

ambiguous as to whether an owner, like Frattaroli, of a “nonowned auto” used

in connection with Carlevale’s business is an “insured” under the policy. The

trial court agreed that the policy was ambiguous on that score. It therefore

construed the policy against Grange as the drafter of the document and held

that Frattaroli qualified as an “insured.”

      We disagree with the trial court’s analysis and conclusion. Rather,

         We are mindful . . . that a court must not distort the
         meaning of the language or resort to a strained contrivance
         in order to find an ambiguity. Instead, we must determine
         whether an ambiguity exists based upon the particular set

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           of facts presented. And, simply because the parties do not
           agree on the proper construction to be given a particular
           policy provision does not render the contract ambiguous.
           Courts should read policy provisions to avoid an ambiguity
           if possible.

Tyler v. Motorists Mut. Ins. Co., 779 A.2d 528, 531 (Pa.Super. 2001)

(internal quotations and citations omitted). The “Who Is An Insured” provision

explicitly states that Carlevale is an “insured” for any “covered auto,” which,

as we have discussed, includes “nonowned autos.” Here, the relevant terms

of the insurance policy are unambiguous: where an injury arises out of the

use of a “nonowned auto,” the only “insured” is Carlevale.

       Lightner argues that such an interpretation is illogical because Carlevale,

as a “corporate entity[,] . . . does not drive a car.”     Lightner’s Br. at 14.

Lightner further suggests that it would be “an unacceptable interpretation of

the policy” such that had Carlevale’s employee been driving the Vehicle,

Carlevale would be covered for liability purposes and the employee would not.

Id. at 15.9 Lightner urges that “[i]t is not rational to say that [nonowned


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       9While Lightner is correct that, pursuant to the terms of the insurance
policy, Carlevale’s employee would not be an “insured,” the employee’s acts
would still be covered by the policy under a theory of respondeat superior.
“Under the doctrine of respondeat superior recovery is sought on the basis of
vicarious liability. An employer is vicariously liable for the wrongful acts of an
employee if that act was committed during the course of and within the scope
of employment.” Brezenski v. World Truck Transfer, Inc., 755 A.2d 36,
39 (Pa.Super. 2000). Thus, in a scenario where Carlevale’s employee, in the
course and scope of his employment, injured a party with the use of a
“nonowned auto,” Carlevale’s vicarious liability would trigger coverage under
the policy.


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autos] are covered in connection with Carlevale’s business, but to then assert

an argument that no individuals driving the car have coverage.” Id. Such an

interpretation would, according to Lightner, render coverage for nonowned

autos a “nullity.” Id.

      We are unpersuaded. As Grange points out, coverage for nonowned

autos protects the policyholder in cases of respondeat superior; for example,

had Carlevale’s employee been driving Frattaroli’s Corvette, Carlevale would

have been covered. See supra note 9. That the collision here involved a

driver who had not insured his vehicle is unfortunate. But where the terms of

coverage are explicit, we will not read an ambiguity into the insurance policy

where none exists. See Byoung Suk An v. Victoria Fire & Casualty Co.,

113 A.3d 1283, 1288 (Pa.Super.) (“[C]ourts should not under the guise of

judicial interpretation, expand coverage beyond that provided in the policy.”)

(internal quotation omitted), app. denied, 130 A.3d 1285 (Pa. 2015).

      Accordingly, we conclude that the policy was not ambiguous and that

Frattaroli was not an “insured” under the policy. Therefore, we reverse the

order granting Lightner’s motion for summary judgment.             Furthermore,

because Frattaroli’s status is clear, Grange’s “right to succeed is certain and

the case is so free from doubt that trial would clearly be a fruitless exercise.”

See Mt. Lebanon, 778 A.2d at 1231. Accordingly, we reverse the trial court’s

order denying Grange’s motion for judgment on the pleadings and direct the

trial court to enter judgment in Grange’s favor.


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      Order reversed.     Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2017




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