J. A12040/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


GRANGE MUTUAL CASUALTY           :       IN THE SUPERIOR COURT OF
COMPANY,                         :             PENNSYLVANIA
                                 :
                     Appellant   :
                                 :
                 v.              :
                                 :
MILANO ENTERPRISES, INC.         :
F/K/A PIZZA MILANO ENTERPRISES,  :
INC., PIZZA MILANO, INC.         :
T/D/B/A PIZZA MILANO,            :
SEA ENTERPRISES, LLC             :
T/D/B/A MILANO PIZZA MARKET,     :
AND ASHLEY TAIT, INDIVIDUALLY    :
AND AS ADMINISTRATOR OF THE      :
ESTATE OF CAROL TAIT A/K/A       :
CAROL LOWREY-TAIT, DECEASED,     :
LEE KRENKE AND CHARLENE KRENKE :
AS CO-ADMINISTRATORS OF THE      :
ESTATE OF STEVEN VINCENT KRENKE, :
DECEASED, LEE KRENKE,            :           No. 1644 WDA 2018
CHARLENE KRENKE, AND             :
MICHAEL KRENKE, INDIVIDUALLY     :


            Appeal from the Order Entered October 23, 2018,
           in the Court of Common Pleas of Allegheny County
                 Civil Division at No. No. GD-18-002962


BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:        FILED FEBRUARY 10, 2020
J. A12040/19

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

October 23, 2018 order1 docketed by the Court of Common Pleas of Allegheny

County granting in part and denying in part appellant’s motion for judgment

on   the   pleadings   in   its   action   for   declaratory   judgment    against

Milano Enterprises, Inc. f/k/a Pizza Milano Enterprises, Inc.; Pizza Milano, Inc.

t/d/b/a Pizza Milano; Sea Enterprises, LLC t/d/b/a Milano Pizza Market

(collectively, “Milano”); Ashley Tait (“Tait”), individually and as administrator

of the estate of Carol Tait a/k/a Carol Lowrey-Tait, deceased; Lee Krenke and

Charlene Krenke as co-administrators of the estate of Steven Vincent Krenke,2

deceased; Lee Krenke; Charlene Krenke; and Michael Krenke, individually.3

After careful review, we affirm and remand for further proceedings.

      The trial court set forth the following:

            [] Tait filed a lawsuit against [Milano] at GD 17-12743.
            That suit stems from the death of Carol Tait, a
            pedestrian, who was apparently struck and killed by
            an automobile driven by a pizza-delivery man [sic]
            allegedly working for Milano. Tait’s complaint asserts
            liability on Milano’s part as a result of negligent hiring
            and retention in connection with the delivery man’s

1 We note that while the trial court’s order is dated October 15, 2018, the
order was not docketed until October 23, 2018. We have amended the caption
accordingly.

2 Steven Vincent Krenke, the driver of the vehicle in the accident giving rise
to the underlying lawsuit, died prior to the initiation of the underlying lawsuit.

3 Ashley Tait, individually and as administratrix of the estate of Carol Tait a/k/a
Carol Lowrey-Tait and Lee Krenke and Charlene Krenke, individually and as
co-administrators of the estate of Steven Vincent Krenke, and Michael Krenke
have elected to not file briefs with this court and have instead joined the brief
filed by Milano.


                                       -2-
J. A12040/19

            employment. [Appellant] contends it has no duty to
            defend or indemnify Milano in that lawsuit because,
            according to [appellant], the commercial general
            liability policy [] and the umbrella policy [] issued by
            [appellant] to Milano contain exclusions related to
            automobile accidents.        [The trial] court granted
            [appellant] judgment on the pleadings with respect to
            the [commercial general liability policy] but denied
            judgment as to the [umbrella policy]. In this appeal,
            [appellant] asserts that the exclusion under the
            [umbrella policy] was clear and unambiguous such
            that [appellant] has no duty to defend or indemnify
            Milano in the Tait suit.

Trial court opinion, 12/21/18 at 2-3.

      Appellant filed a complaint on March 2, 2018, seeking a declaratory

judgment that it has no duty to defend or indemnify Milano in the underlying

lawsuit filed by Tait. On May 30, 2018, appellant filed a motion for judgment

on the pleadings, which the trial court granted in part and denied in part on

October 15, 2018.     Appellant filed a timely notice of appeal to this court.

Subsequently, the trial court ordered appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant

timely   complied.        The   trial   court   filed   an   opinion   pursuant   to

Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Did the [t]rial [c]ourt err in declaring that
            [appellant’s] Umbrella Policy provides coverage to
            Milano [] for Ashley Tait’s motor vehicle accident civil
            action despite the existence of a clear and
            unambiguous exclusion for liability arising out of the
            maintenance, operation, or use of a motor vehicle?

Appellant’s brief at 4.


                                        -3-
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          Our standard of review for the grant or denial of
          judgment on the pleadings is . . . well settled.

                The standard to be applied upon review of
                a motion for judgment on the pleadings
                accepts all well-pleaded allegations of the
                complaint as true.          The question
                presented by the demurrer is whether, on
                the facts averred, the law says with
                certainty that no recovery is possible.
                Where a doubt exists as to whether a
                demurrer should be sustained, this doubt
                should be resolved in favor of overruling
                it.

          Tucker v. Philadelphia Daily News, [] 848 A.2d
          113, 131 ([Pa.] 2004) (citation and internal quotation
          marks omitted).

                Entry of judgment on the pleadings is
                permitted under Pa.R.[Civ.]P. 1034 which
                provides for such judgment after the
                pleadings are closed, but within such time
                as not to delay trial.       A motion for
                judgment on the pleadings is similar to a
                demurrer. It may be entered when there
                are no disputed issues of fact and the
                moving party is entitled to judgment as a
                matter of law. In determining if there is a
                dispute as to facts, the court must confine
                its consideration to the pleadings and
                relevant documents. The scope of review
                on an appeal from the grant of judgment
                on the pleadings is plenary. We must
                determine if the action of the court below
                was based on clear error of law or whether
                there were facts disclosed by the
                pleadings which should properly go to the
                jury.

          Citicorp North America, Inc. v. Thornton, 707
          A.2d 536, 538 (Pa.Super. 1998) (citations omitted).
          Likewise,



                                   -4-
J. A12040/19

                  Our scope and standard of review in
                  appeals of a grant or denial of a motion
                  for judgment on the pleadings is
                  well-settled. This Court applies the same
                  standard as the trial court and confines its
                  consideration to the pleadings and
                  documents properly attached thereto. 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. 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.

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

Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100-101 (Pa.Super.

2016), appeal denied, 169 A.3d 11 (Pa. 2017).

      Here, appellant relies upon a policy exclusion as the basis of its denial

of coverage and its refusal to defend. (See appellant’s brief at 13.)

            The question of whether a claim against an insured is
            potentially covered is answered by comparing the four
            corners of the insurance contract to the four corners
            of the complaint. See Donegal Mut. Ins. Co. v.
            Baumhammers, [] 938 A.2d 286, 290 ([Pa.] 2007)
            (“The language of the policy and the allegations of the
            complaint must be construed together to determine
            the insurers’ obligation.”).     An insurer may not
            justifiably refuse to defend a claim against its insured
            unless it is clear from an examination of the
            allegations in the complaint and the language of the
            policy that the claim does not potentially come within
            the coverage of the policy. See [Gen. Acc. Ins. Co.


                                     -5-
J. A12040/19

           of Am. v.] Allen, 692 A.2d [1089,] 1094 [(Pa. 1997)]
           (“The obligation to defend an action brought against
           the insured is to be determined solely by the
           allegations of the complaint in the action . . . .”);
           Gene’s Restaurant, Inc. v. Nationwide Ins. Co.,
           [] 548 A.2d 246, 246-247 ([Pa.] 1988) (“[I]n
           determining the duty to defend, the complaint
           claiming damages must be compared to the policy . . .
           the language of the policy and the allegations of the
           complaint must be construed together to determine
           the insurer’s obligation.”); Springfield Tp. et al. v.
           Indemnity Ins. Co. of North America, [] 64 A.2d
           761 ([Pa.] 1949) (“It is not the actual details of the
           injury, but the nature of the claim which determines
           whether the insurer is required to defend.”). In
           making this determination, the “factual allegations of
           the underlying complaint are to be taken as true and
           liberally construed in favor of the insured.” Frog,
           Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193
           F.3d 742 (3d Cir. 1999) (citing Biborosch v.
           Transamerica Ins. Co., [] 603 A.2d 1050, 1052
           ([Pa.Super.] 1992)). Indeed, the duty to defend is
           not limited to meritorious actions; it even extends to
           actions that are “groundless, false, or fraudulent” as
           long as there exists the possibility that the allegations
           implicate coverage.          [Erie Ins. Exch. v.
           Transamerica Ins. Co., 533 A.2d 1363, 1368 (Pa.
           1987); Gedeon v. State Farm Mut. Auto. Ins. Co.,
           188 A.2d 320, 321 (Pa. 1963)].

Am. and Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 541 (Pa.

2010).

     This court has further instructed that:

           When an insurer relies on a policy exclusion as the
           basis for its denial of coverage and refusal to defend,
           the insurer has asserted an affirmative defense and,
           accordingly, bears the burden of proving such a
           defense.      Wilcha v. Nationwide Mutual Fire
           Insurance Company, 887 A.2d 1254, 1258
           (Pa.Super. 2005). To determine whether the insurer
           has met its burden of proof, we rely on well-settled


                                     -6-
J. A12040/19

             principles of contract interpretation. Id. When a
             provision of a policy of insurance is ambiguous, the
             policy provision is to be construed in favor of the
             insured and against the insurer.          Prudential
             Property and Casualty Insurance Company v.
             Sartno, [] 903 A.2d 1170, 1174 ([Pa.] 2006). The
             insurance company, being the one who selects the
             language in the contract, must be specific in its use.
             Id. at 1177. An exclusion from liability must be clear
             and exact and unambiguous in order to be given
             effect. Id. Describing the “hallmarks of ambiguity,”
             the Supreme Court explained that:

                   Contractual language is ambiguous if it is
                   reasonably    susceptible     of    different
                   constructions and capable of being
                   understood in more than one sense. This
                   is not a question to be resolved in a
                   vacuum. Rather, contractual terms are
                   ambiguous if they are subject to more
                   than one reasonable interpretation when
                   applied to a particular set of facts.

             Id. (citations and quotations omitted). Thus, if      we
             find an exclusionary clause to be ambiguous,          we
             construe it in favor of the insured. Id. But if       the
             language is not ambiguous, we must enforce            the
             exclusion. Id.

Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962-963 (Pa.Super.

2007), appeal denied, 946 A.2d 688 (Pa. 2008).

        We begin our discussion with the underlying lawsuit Tait filed against

Milano. Therein, Tait filed a cause of action sounding in negligent hiring and

retention and respondeat superior pursuant to the Wrongful Death Act and

the Survival Act.4 (See generally Brief in support of appellant’s motion for




4   42 Pa.C.S.A. §§ 8301 and 8302, respectively.


                                       -7-
J. A12040/19

judgment on the pleadings, 5/30/18, Exhibit A; R.R. at 42a-53a.) Specifically,

Tait’s complaint alleges that while he was in the scope and course of his

employment with Milano as a pizza delivery driver, Steven Vincent Krenke

(“Krenke”) was operating “a vehicle” on February 14, 2016, when he struck

Carol Tait as she was attempting to cross Ohio River Boulevard in Bellevue,

Pennsylvania, causing her to sustain fatal injuries. (Id.; R.R. at 46a.) Tait’s

complaint alleges that at the time of the accident, Krenke was driving with a

suspended license and was driving under the influence of a controlled

substance. (Id.) The complaint further alleges the following:

            [I]t is clear that [Milano] either did not conduct a
            simple review of Krenke’s criminal docket to discover
            the driving offenses or [Milano] did conduct a review,
            but allowed Krenke to drive for their business anyway
            despite his long history of criminal and driving
            offenses.

            Furthermore, it is clear that [Milano] failed to have
            any policy or procedure in place to ensure that their
            delivery drivers had current and valid drivers’ licenses
            while working as delivery drivers for their business.
            At the time of this accident, Krenke did not possess a
            valid drivers’ license and should not have been
            operating a vehicle at any time and especially in the
            scope and course of his employment with [Milano].

Id.; R.R. at 47a (numbered paragraphs omitted).5




5We note that Tait’s complaint does not specify who owned the vehicle Krenke
was driving at the time of the accident. In appellant’s declaratory judgment
complaint, appellant avers that “[] Tait alleges that [] Krenke caused an
accident with his motor vehicle while he was acting within the course and
scope of his employment as a deliver driver for [] Milano. (Appellant’s
amended complaint, 4/30/18 at 2 (emphasis added).)


                                     -8-
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      We now turn to the umbrella policy (“UP”), which is the subject of the

instant appeal.   As argued by Milano, umbrella policies are designed to

“provide for a higher limit for those losses typically covered by [underlying]

liability insurance” and “to provide for some coverage of those less common

losses not typically covered by liability insurance[.]” Treesdale, Inc. v. TIG

Ins. Co., 681 F. Supp. 2d 611, 619 (W.D. Pa. 2010) (citation omitted), cited

by Milano’s brief at 15.     Put another way, “[u]mbrella liability adds a

broadening measure of coverage against many of the gaps in and between

the underlying coverages of the primary policy.”     Treesdale, Inc., 681 F.

Supp. 2d at 619, quoting Houbigant, Inc. v. Federal Ins. Co., 374 F.3d

192, 204 (3d Cir. 2004); Milano’s brief at 15 n.4.

      In Section I – Coverages, the UP at issue in the instant case states as

much:

            SECTION I – COVERAGES

            COVERAGE A – BODILY INJURY AND PROPERTY
            DAMAGE LIABILITY

            1.    Insuring Agreement

                  a.    We will pay on behalf of the
                        insured[6] the “ultimate net loss” in
                        excess of the retained limit”
                        because of “bodily injury” or

6 The UP names the following entities as “insured”: Pizza Milano Enterprises,
Istanbul, Inc., Buse, Inc., Mineo’s Pizza, Pizza Milano of Robinson,
Sea Enterprises, LLC, Café Milano, Inc., Milano Pizza Market, and Pizza Milano,
Inc. d/b/a Pizza Milano. (See brief in support of appellant’s motion for
judgment on the pleadings, 5/30/18, Exhibit D, Schedule of Names and
Addresses at 4; R.R. at 165a.)


                                     -9-
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                        “property damage” to which this
                        insurance applies. We will have the
                        right and duty to defend the insured
                        against any “suit” seeking damages
                        for such “bodily injury” or “property
                        damage” when the “underlying
                        insurance”    does     not    provide
                        coverage or the limits of “underlying
                        insurance” have been exhausted.
                        . . . However, we will have no duty
                        to defend the insured against any
                        “suit” seeking damages for “bodily
                        injury” or “property damage” to
                        which this insurance does not apply.

            ....

            2.     Exclusions

                   This insurance does not apply to:

            ....

                   f.   Auto Coverages

                        (1)     “Bodily injury” or “property
                                damage” arising out of the
                                ownership, maintenance or
                                use of any “auto” which is not
                                a “covered auto[.]”

Brief in support of appellant’s motion for judgment on the pleadings, 5/30/18,

Exhibit D, Commercial Liability Umbrella Coverage Form (Policy No. CU 00 01

04 13) at 1, 3; R.R. at 172a, 174a (quotation marks in original).

      The UP sets forth the following relevant definitions:

            SECTION V – DEFINITIONS

            ....

            2.     “Auto” means:


                                      - 10 -
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                   a.    A land motor vehicle, trailer, or
                         semitrailer designed for travel on
                         public roads, including any attached
                         machinery or equipment; or

                   b.    Any other land vehicles that is
                         subject to a compulsory or financial
                         responsibility law or other motor
                         vehicle insurance law where it is
                         licensed or principally garaged.

                         However, “auto” does not include
                         “mobile equipment.”

            ....

            5.     “Covered auto” means only those “autos” to
                   which “underlying insurance” applies.

            ....

            24.    “Underlying insurance” means any policies of
                   insurance listed in the Declarations under the
                   Schedule of “underlying insurance.”[7]

Brief in support of appellant’s motion for judgment on the pleadings, 5/30/18,

Exhibit D, Commercial Liability Umbrella Coverage Form (Policy No. CU 00 01

04 13) at 15, 18; R.R. at 186a, 189a (quotation marks in original).

      As noted by both Milano and the trial court, the auto coverage exclusion

in the UP differs from the auto coverage exclusion contained within the

commercial general liability policy (“CGL policy”). (See Milano’s brief at 11;




7 The commercial general liability policy is the only policy identified on the UP’s
schedule of underlying insurance. (See brief in support of appellant’s motion
for judgment on the pleadings, 5/30/18, Exhibit D, Commercial Liability
Umbrella Declarations Schedule of Underlying Insurance at 2; R.R. at 163a.)


                                      - 11 -
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trial court opinion, 12/21/18 at 3-4.) The CGL policy’s auto coverage exclusion

is as follows:

            SECTION II – LIABILITY

            ....

            B.     Exclusions

            1.     Applicable To Business Liability Coverage

                   This insurance does not apply to:

                   ....

                   g.     Aircraft, Auto or Watercraft

                          “Bodily injury” or “property damage”
                          arising out of the ownership,
                          maintenance, use or entrustment to
                          others of any aircraft, “auto” or
                          watercraft owned or operated by or
                          rented or loaned to any insured. Use
                          includes operation and “loading or
                          unloading.”

                          This exclusion applies even if the
                          claims allege negligence or other
                          wrongdoing in the supervision,
                          hiring, employment, training or
                          monitoring of others by an
                          insured, if the “occurrence”
                          which caused the “bodily injury”
                          or “property damage” involved
                          the ownership, maintenance,
                          use or entrustment to others of
                          any aircraft, “auto” or watercraft
                          that is owned or operated by or
                          rented or loaned to any insured.

Brief in support of appellant’s motion for judgment on the pleadings, 5/30/18,

Exhibit C, Businessowners Coverage Form (Policy No. BP 00 03 01 10) at 31,


                                     - 12 -
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33, 35-36; R.R. at 99a, 101a, 103a-104a (emphasis added).           The claims

asserted in the underlying lawsuit are clearly excluded under the CGL policy.

      Based on our comparison of the four corners of the UP with the four

corners of Tait’s underlying complaint, we find that an ambiguity exists as it

relates to the UP’s auto exclusion. Indeed, the UP does not specifically contain

an exclusion of coverage for claims alleging negligence or other wrongdoing

in the supervision, hiring, employment, training, or monitoring of others by

an insured resulting in bodily injury or property damage involving the

ownership, maintenance, or use of any auto which is not a “covered auto,”

unlike the CGL policy, which contains an explicit exclusion of such coverage.

(See brief in support of appellant’s motion for judgment on the pleadings,

5/30/18, Exhibit D, Commercial Liability Umbrella Coverage Form (Policy

No. CU 00 01 04 13 at 1, 3; R.R. at 172a, 174a; brief in support of appellant’s

motion for judgment on the pleadings, 5/30/18, Exhibit C, Businessowners

Coverage Form (Policy No. BP 00 03 01 10) at 31, 33, 35-36; R.R. at 99a,

101a, 103-104a).

      To further establish this ambiguity, the UP also contains an exclusion for

personal injury or property damage pertaining to aircraft or watercraft that

reads as follows:

                    j.   Aircraft or Watercraft

                         “Bodily injury” or “property damage”
                         arising out of the ownership,
                         maintenance, use or entrustment to
                         others of any aircraft or watercraft


                                     - 13 -
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                        owned or operated by or rented or
                        loaned to any insured. Use includes
                        operation    and     “loading    or
                        unloading.”

                        This exclusion applies even if the
                        claims against any insured
                        allege   negligence    or   other
                        wrongdoing in the supervision,
                        hiring, employment, training or
                        monitoring of others by that
                        insured, if the “occurrence”
                        which caused the “bodily injury”
                        or “property damage” involved
                        the ownership, maintenance,
                        use or entrustment to others of
                        any aircraft or watercraft that is
                        owned or operated by or rented
                        or loaned to any insured.

Brief in support of appellant’s motion for judgment on the pleadings, 5/30/18,

Exhibit D, UP Revised Coverage Provisions, Endorsement CU02 (Policy

No. CUP 2008174), unnumbered page 1 of 2; R.R. at 190a (emphasis added).

This clause is conspicuously absent from the UP’s auto exclusion.

      The record reflects that appellant is the author of both the CGL policy

and the UP. As noted by Milano, if appellant intended for the auto exclusion

in the UP to apply to claims alleging negligent supervision, hiring,

employment, training, or monitoring of others by the insured, it could have

expressly included such a clause in the UP, just as it did for the aircraft and

watercraft exclusion in the UP and the exclusion relating to aircraft, auto, and

watercraft in the CGL policy. (See Milano’s brief at 12.)




                                     - 14 -
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     Appellant directs us to our en banc decision in Wolfe v. Ross, 115 A.3d

880 (Pa.Super. 2015) (en banc).          In Wolfe, the 19-year-old decedent

attended a high school graduation party hosted by the defendant where

alcohol was furnished. Id. at 882-883. The underlying complaint alleged that

the decedent, “as a direct and proximate result of the impairment caused by

the alcohol,” left the party on a dirt bike owned by the defendant’s son, lost

control of the bike, struck a stationary object, and died as a result of his

injuries. Id. at 883. The cause of action against the defendant sounded in

negligence and arose from the furnishing of alcohol to a minor.         Id.   The

defendant’s homeowner’s insurance policy contained a coverage exclusion for

“bodily injury or property damage arising out of the ownership, maintenance,

use, loading or unloading of a motor vehicle owned or operated by or rented

or loaned to any insured.”       Id. at 885 (formatting altered and citations

omitted). We held as follows:

              The fact that the serving of alcohol to a minor
              subjected [the defendant] to liability even without the
              involvement of a motor vehicle does not change the
              fact that the policy language excludes coverage for
              injuries arising out of use of a motor vehicle. It is
              undisputed that the decedent’s use of the ATV was
              both the proximate cause and the cause in fact of his
              injury. We find no ambiguity in the exclusionary
              language on the facts herein.

Id. at 889.

     In its brief, appellant contends that it would be “logically consistent” to

“extend the Wolfe reasoning to umbrella policies.” (Appellant’s brief at 22.)



                                      - 15 -
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In support of its contention, appellant invites this court to adopt the holding

of the Wisconsin Court of Appeals in Flejter v. West Bend Mut. Ins. Co.,

793 N.W.2d 913 (Wis. Ct. App. 2010). (See appellant’s brief at 22-24.) In

Flejter, the court considered whether a general commercial liability policy and

an umbrella policy containing virtually identical language to the policies at

issue in the instant case8 provided coverage for damages sought by the

plaintiffs in an underlying tort case.9 Id. at 915. The Flejter court found in




8 The Flejter court reproduced the following relevant language from the
general commercial liability policy:

            This insurance does not apply to bodily injury or
            property damage arising out of the ownership,
            maintenance, use or entrustment to others of any
            auto owned by any insured.

            This exclusion applies even if the claims against any
            insured allege negligence or other wrongdoing in the
            supervision,   hiring,   employment,       training  or
            monitoring of others that by insured, if the occurrence
            which caused bodily injury or property damage
            involved the ownership, maintenance, use or
            entrustment to others of any auto that is owned by
            the insured.

Flejter, 793 N.W.2d at 915 (formatting modified, ellipses and quotation
marks omitted). The court reproduced the following relevant language from
the umbrella policy: “This insurance does not apply to bodily injury or
property damage arising out of the ownership, maintenance or use of any auto
which is not a covered auto.” Id. (formatting modified, ellipses and quotation
marks omitted).

9 In the underlying case, the plaintiffs filed a cause of action sounding in
negligent hiring, supervising, training, and retaining of an employee who was
driving a company vehicle for personal use when he was involved in a fatal
car accident. Id. at 914.


                                    - 16 -
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favor of the defendant insurance carrier, rejecting the plaintiffs’ contention

that the independent concurrent cause doctrine should apply.       Id. at 920.

Unlike our Wisconsin counterparts, we are unable to review the entire policy

considered by the court of appeals when reaching its decision. Because the

instant case rests upon whether the UP’s exclusionary language was

ambiguous, we find Flejter to be of limited persuasive value here.

      Therefore, we find that the exclusionary language at issue in the UP is

ambiguous and must be construed in favor of Milano. Manross, 939 A.2d at

963, citing Sartno, 903 A.2d at 1174. Accordingly, we hold that the trial court

did not err when it denied appellant’s motion for judgment on the pleadings

pertaining to coverage under the UP.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/10/2020




                                    - 17 -
