                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-2008

Lumbermens Mut Cslty v. Erie Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4028




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"Lumbermens Mut Cslty v. Erie Ins Co" (2008). 2008 Decisions. Paper 376.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/376


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                                                           NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                   No. 07-4028
                                   __________

               LUMBERMENS MUTUAL CASUALTY COMPANY,
                                       Appellant,

                                       vs.

                         ERIE INSURANCE COMPANY,
                                            Appellee.
                                 __________

                 On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                                 (Civ. No. 05-3490)
                District Court Judge: Honorable Edmund V. Ludwig
                                    ___________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                              September 23, 2008
                                 ___________

              Before: BARRY, AMBRO and GARTH, Circuit Judges,
                        Opinion Filed: October 10, 2008


                                  ___________

                                   OPINION
                                  ___________

GARTH, Circuit Judge:

      Lumbermens Mutual Casualty Company brought this declaratory judgment action
against Erie Insurance Exchange1 to obtain a determination of whether it has an obligation

to defend or indemnify Czop/Specter, Inc. in a personal injury action that Donald

Cuthbertson, Jr., brought against Czop and others.2 On October 4, 2007, the District

Court granted summary judgment in favor of Erie and against Lumbermens. Our review

is plenary. Our jurisdiction stems from a final order. 28 U.S.C. § 1291.

       Czop was the contractor responsible for performing roadside inspection services

on behalf of the Department of Transportation of the Commonwealth of Pennsylvania

(“PennDOT”). It held two insurance policies: one payable by Erie under policy number

Q48 0150571 A, and one payable by Lumbermens under policy number QL016315-00.

The Erie policy was a general liability policy that excluded coverage of claims arising

from “service[s] of a professional nature,” including “supervisory, inspection, or

engineering services.” The Lumbermens policy, conversely, provided coverage only for

claims regarding “professional services,” which was defined to include “those services

that the [i]nsured is legally qualified to perform for others in the [i]nsured’s capacity as an

architect, engineer, land surveyor, landscape architect, construction manager or as defined

by endorsement to the policy.”



       1
           Erie is incorrectly identified as “Erie Insurance Company” in the caption.
       2
          Cuthbertson was a passenger in a vehicle driven by Michael Donovan, who
collided with another vehicle when he did not see “an obstructed and otherwise difficult
to observe stop sign . . . due to a combination of factors, including tree branches,
vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west
of the stop sign.” Appellant’s Br. 2-3.

                                              -2-
       Lumbermens now claims it should not have to pay for Czop’s liability because the

task of inspecting and maintaining roadside safety does not qualify as a “professional

service.” This argument has no merit.

       David Riley, the employee hired by Czop to conduct the roadside inspections,

performed specialized tasks. See Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 984 (3d

Cir. 1988). He conducted inspections and made arrangements for other contractors to

perform any necessary labor; he did not clear the roads himself. Lumbermens’s efforts to

minimize Riley’s education, training, and job function do not diminish the fact that the

services he performed were professional services.

       Accordingly, we will affirm the District Court’s order.




                                            -3-
