J-A11043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD RAYMONT T/D/B/A RAYMONT          :     IN THE SUPERIOR COURT OF
CONSTRUCTION COMPANY                     :          PENNSYLVANIA
                                         :
                 v.                      :
                                         :
NATIONWIDE MUTUAL INSURANCE              :
COMPANY AND WILLIAM WILKINSON            :
                                         :
APPEAL OF: NATIONWIDE MUTUAL             :
INSURANCE COMPANY                        :    No. 725 WDA 2013

              Appeal from the Judgment Entered April 5, 2013
              In the Court of Common Pleas of Greene County
                   Civil Division at No(s): A.D. 1169-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                 FILED SEPTEMBER 15, 2014



appeals from the summary judgment entered in the Greene County Court of

Common Pleas, in favor of Appellee, Richard Raymont t/d/b/a Raymont

Construction Company, in this declaratory judgment action. We reverse and

remand for entry of judgment in favor of Nationwide.

     The relevant facts and procedural history of this appeal are as follows.

In 2007, Appellee entered into a contract with Southwest Regional Medical




contract ran from December 1, 2007 until March 31, 2008.

     On December 7, 2009, William Wilkinson started a civil action against
J-A11043-14

Appellee by filing a writ of summons.      Mr. Wilkinson subsequently filed a



parking lot on Dec

attempting to traverse [the parking lot] when he was caused to fall on the

surface of the parking lot by an accumulation of snow and/or ice and/or

                                                                   upport of

Summary Judgment Motion, filed 12/14/12, at Exhibit A; R.R. at 6a). Mr.



to clear the ice and snow from the parking lot and failed to warn him about

the dangerous conditi

contract count, asserting Appellee breached the contract with Hospital, to

which Mr. Wilkinson was a third party beneficiary.



insurance provider.     Nationwide had issued Appellee a commercial general



purported accident occurred.     By letter dated June 16, 2010, Nationwide

denied coverage.      Regarding the breach of contract claim, Nationwide




policy.   (Id. at Exhibit D; R.R. at 61a).   Regarding the negligence claim,

Nationwide emphasized that the policy contained a designated work




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operations.

     On March 9, 2011, Mr. Wilkinson filed an amended complaint.        The

amended complaint was virtually identical to the original complaint, but Mr.




(Id. at Exhibit E; R.R. at 67a).   Appellee sent the amended complaint to

Nationwide.   By letter dated May 25, 2011, Nationwide continued to deny

coverage.

     On December 2, 2011, Appellee initiated a declaratory judgment

action against Nationwide, maintaining the exclusion was ambiguous:

        10.   In denying coverage and a defense to [Appellee],



        11. The First Amended Complaint filed by William
        Wilkinson against [Appellee] does not allege a claim
        against [Appellee] for failing to remove snow. To the
        contrary, it alleges that [Appellee] was negligent in failing
        to remove ice.

        12.   In its disclaimer of coverage letter of May 25, 2011,

        insurance policy contains Endorsement C.G. 2134, which
        excludes from coverage any snow removal procedures.
        Snow removal includes the whole process of snow and ice
        removal or treatment with salt, cinders, anti-skid, ice melt


        13. No such definition of snow removal including ice
        removal is contained anywhere in the policy.




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         14. The snow removal exclusion relied upon [by]
         Nationwide is ambiguous and this ambiguity is reflected by

         ambiguity in its disclaimer of coverage letter by stating
         that snow removal includes the process of ice removal.

(Declaratory Judgment Complaint, filed 12/2/11, at 2-3; R.R. at 93a-94a).

On March 30, 2012, Nationwide filed an answer and new matter. The new

matter

indemnification. Appellee filed a reply to the new matter on April 26, 2012.

     On December 14, 2012, Nationwide filed a summary judgment motion.

In it, Nationwide asked the court to declare that Nationwide had no duty to



his own summary judgment motion on January 17, 2013. On April 5, 2013,

the court entered summary judgment in favor of Appellee and against

Nationwide. The court concluded as follows:


         permits it to decline coverage can be summarized as:

                                                      s letter
         of May 25, 2011, denying coverage, felt the need to
         expand on the terse language in the exclusion

         of snow and ice removal or treatment with salt, cinders,
         anti-skid, ice melt, and/or other subs
         language been included in the endorsement, this litigation
         might not have occurred.

                                 *    *    *

         We note also that the Amended Complaint indicts
         [Appellee] for more than failing to keep the lot free from
         ice. It also charges [Appellee] with failure to warn and to



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J-A11043-14

         these allegations are exclud


         plows or shovels. Perhaps the hospital arranged otherwise
         for ice control, such as by sending out a custodian with a
         bucket of salt. Ice control might be a separate operation
         altogether, undertaken by different entities.

(Trial Court Opinion, filed April 5, 2013, at 3-4) (internal citation omitted).



determin




indemnify [Appellee] against liability                 Id. at 5).

      Nationwide timely filed a notice of appeal on April 26, 2013. The court

did not order Nationwide to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b).

      Nationwide raises one issue for our review:

         DID    THE   TRIAL    COURT     ERR   IN   FINDING     THAT


         INJURY LAWSUIT, DESPITE A VALID AND UNAMBIGUOUS

                          FORTH IN THE COMMERCIAL GENERAL
         LIABILITY INSURANCE POLICY ISSUED BY NATIONWIDE
         TO [APPELLEE]?



      Initially, we observe:

         Our scope of review of an order granting summary
         judgment is plenary. [W]e apply the same standard as the
         trial court, reviewing all the evidence of record to


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       determine whether there exists a genuine issue of material
       fact. 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. Only where there is no genuine issue as to
       any material fact and it is clear that the moving party is
       entitled to a judgment as a matter of law will summary
       judgment be entered. All doubts as to the existence of a
       genuine issue of a material fact must be resolved against
       the moving party.

       Motions for summary judgment necessarily and directly

       of action.   Summary judgment is proper if, after the
       completion of discovery relevant to the motion, including
       the production of expert reports, an adverse party who will
       bear the burden of proof at trial has failed to produce
       evidence of facts essential to the cause of action or
       defense which in a jury trial would require the issues to be
       submitted to a jury. In other words, whenever there is no
       genuine issue of any material fact as to a necessary
       element of the cause of action or defense, which could be
       established by additional discovery or expert report and
       the moving party is entitled to judgment as a matter of
       law, summary judgment is appropriate. Thus, a record
       that supports summary judgment either (1) shows the
       material facts are undisputed or (2) contains insufficient
       evidence of facts to make out a prima facie cause of action
       or defense.

       Upon appellate review, we are not bound by the trial

       conclusions.   The appellate Court will disturb the trial
                                                        buse of
       discretion.

          Judicial discretion requires action in conformity with
          law on facts and circumstances before the trial court
          after hearing and consideration. Consequently, the
          court abuses its discretion if, in resolving the issue
          for decision, it misapplies the law or exercises its
          discretion in a manner lacking reason. Similarly, the
          trial court abuses its discretion if it does not follow
          legal procedure.


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                                *    *    *

        Where the discretion exercised by the trial court is
        challenged on appeal, the party bringing the challenge
        bears a heavy burden.

           [I]t is not sufficient to persuade the appellate court
           that it might have reached a different conclusion
                                 e duty imposed on the court
           below; it is necessary to go further and show an
           abuse of the discretionary power.       An abuse of
           discretion is not merely an error of judgment, but if
           in reaching a conclusion the law is overridden or
           misapplied, or the judgment exercised is manifestly
           unreasonable, or the result of partiality, prejudice,
           bias or ill-will, as shown by the evidence or the
           record, discretion is abused.

                                *    *    *

Glaab v. Honeywell Intern., Inc., 56 A.3d 693, 696-97 (Pa.Super. 2012)

(quoting Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 60 62

(Pa.Super. 2006) (internal citations and quotation marks omitted)).

     On appeal, Nationwide contends basic contract interpretation principles

support its conclusion that the exclusion precluded coverage for any claims




by shovel or plow, and the treatment of ice, whether by salting or



was clear, unambiguous, and susceptible to one reasonable interpretation.




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      To support its policy interpretation, Nationwide relies o

deposition testimony, where he essentially admitted that the exclusion




business of paving driveways, parking lots, and sidewalks; Appellee

expressly   stated   it   did   not   perform   snow   plowing.   Under       these



for claims related to the business activities listed in the application materials

                                                                     Id. at 17).



from the amended complaint amounts to artful pleading designed to avoid

the exclusion. Nationwide concludes the court improperly entered summary
                                                                          1
                                                                                We

agree.



resolved via                                           Erie Ins. Exchange v.

Claypoole, 673 A.2d 348, 355 (Pa.Super. 1996) (en banc).


         than, its duty to indemnify an insured. An insurer is not
         obligated to defend all claims asserted against its insured;
         its duty is determined by the nature of the allegations in
         the underlying complaint. An insurer must defend its
         insured if the underlying complaint alleges facts which, if


1

breach of contract claim.


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         true, would actually or potentially bring the claims within
         the policy coverage.

         An insurer who refuses to defend its insured from the

         remains with the insurer until it is clear the claim has been
         narrowed to one beyond the terms of the policy. An
         insurer who disclaims its duty to defend based on a policy
         exclusion bears the burden of proving the applicability of
         the exclusion.

Belser v. Rockwood Cas. Ins. Co., 791 A.2d 1216, 1219-20 (Pa.Super.

2002) (internal citations omitted) (emphasis in original).

declaratory judgment action concerning insurance coverage is to determine



the court must examine the complaint in the underlying action to ascertain if

it tr                   American States Ins. Co. v. State Auto Ins. Co.,

721 A.2d 56, 59 (Pa.Super. 1998) (quoting General Accident Ins. Co. v.

Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997)).

                                                                    aw and is

                                   Kropa v. Gateway Ford, 974 A.2d 502,

505 (Pa.Super. 2009), appeal denied, 605 Pa. 701, 990 A.2d 730 (2010).



parties as manifested by the language of the written instrument      Madison

Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 606, 735 A.2d 100,



unambiguous, but to interpret it in favor of the insured, if otherwise.

Ambiguity exists if the language at issue could reasonably be construed in


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                       Lititz Mut. Ins. Co. v. Steely, 567 Pa. 98, 104, 785



                      instead be considered in reference to a specific set of

       Id.



                                               Continental Cas. Co. v. Pro

Machine, 916 A.2d 1111, 1118 (Pa.Super. 2

the [insurance] contract is clear and unambiguous, a court is required to

                                 Mitsock v. Erie Ins. Exchange, 909 A.2d

828, 831 (Pa.Super. 2006) (quoting Madison Const. Co., supra at 606,

735 A.2d at 106). A court must not distort the meaning of the language or

resort to a strained contrivance to find an ambiguity. Mitsock, supra.

         [T]he proper focus regarding issues of coverage under
         insurance contracts is the reasonable expectation[s] of the
         insured. In determining the reasonable expectations of
         the insured, courts must examine the totality of the
         insurance transaction involved. However, while reasonable
         expectations of the insured are focal points in interpreting
         the contract language of insurance policies, an insured

         frustrated by policy limitations, which are clear and
         unambiguous.      Like every other contract, the goal of
         interpreting an insurance contract is to ascertain the intent
         of the parties as manifested by the language of the policy.

St. Paul Mercury Ins. Co. v. Corbett, 630 A.2d 28, 30 (Pa.Super. 1993)

(en banc) (internal citations omitted).

      Instantly, Appellee applied for insurance coverage in 2004.        The

insurance application submitted to Nationwide indicated Appellee was in the


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J-A11043-14

                                              See

of Summary Judgment Motion at Exhibit H; R.R. at 81a). A supplemental

                                                           cavating areas for

pouring/preparing drains for basement floors, etc. before pouring/pouring

                                                    Id.; R.R. at 85a). Appellee



              Id.; R.R. at 88a). Nationwide subsequently provided Appellee

with insurance coverage.2



accident, included the following exclusion:

         THIS ENDORSEMENT CHANGES THE POLICY. PLEASE
         READ IT CAREFULLY.

                   EXCLUSION         DESIGNATED WORK

         This endorsement modifies insurance provided under the
         following:

         COMMERCIAL GENERAL LIABILITY COVERAGE PART
         PRODUCTS/COMPLETED      OPERATIONS      LIABILITY
         COVERAGE PART

                                 SCHEDULE

         Description of your work:

            SNOW REMOVAL OPERATIONS

                                 *     *      *


2
 In its brief, Nationwide asserts the policy renewed annually based on the
2004 application. In support of this assertion, Nationwide relies on a portion



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J-A11043-14



                                                                  completed

         the Schedule.

(Id. at Exhibit C; R.R. at 34a) (emphasis in original).                 In response to



liability protection for snow and ice removal services. (Id. at Exhibit I; R.R.

at 169a).

      In October 2007, Appellee entered into the snow removal contract with



specific terms demonstrating Appellee was responsible for treating the

parking lots for ice.                                                       plowed for

$100.00 per plow per hour.       Parking lots will be salted or cindered for

                     Id. at Exhibit B; R.R. at 14a). The contract also stated,



cost will be a                               Id.) At his deposition, Mr. Raymont

elaborated on the obligations under the contract:

                                          In  regards    to              snow
         removal, does that also include removal of ice?

         [MR. RAYMONT]:                          Salt. I spread salt.

         [NATIONW                                So what about cinders, is
         that also used to treat ice?

         [MR. RAYMONT]:
                   -skid. It does not remove the ice, it just puts a
         non-skid finish on the ice.




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J-A11043-14

                                        Nevertheless, salt        and
        cinders are used for snow and ice, are they not?

        [MR. RAYMONT]:                      Correct.

                                        And a plow obviously, is
        used if you have a large accumulation of snow?

        [MR. RAYMONT]:                      Correct.

                                       Would you agree both
                 e that. Would [you] agree that snow and ice
        removal kind of go hand-in-hand?

        [MR. RAYMONT]:                      I guess, yes.

(Id. at Exhibit J; R.R. at 152a-153a.)      Mr. Raymont also testified that he

would treat the parking lots in wintery conditions other than snow, including

                 Id.; R.R. at 155a). Moreover, Mr. Raymont conceded he

was unaware that the policy contained the exclusion, and he did not inform

his insurance agents about the snow and ice removal business. (Id.; R.R. at

157a-158a).

     Here, the exclusion unambiguously rendered the policy inapplicable to




the whole process of snow removal and ice treatment.        See Continental

Cas. Co, supra; St. Paul Mercury, Ins. Co., supra.          To the extent the

court found otherwise, it erred by distorting the meaning of the words in the

exclusion.   See Mitsock, supra



                                   - 13 -
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veiled attempt to avoid the exclusion. See Erie Ins. Exchange v. Fidler,



manner in which the complainant frames the request for damages to control

the coverage question, we would permit insureds to circumvent exclusions



     Based upon the foregoing, the court should have determined that the

exclusion was a valid policy provision precluding coverage for all activities



did not trigger a duty on the part of Nationwide to defend or indemnify.

Accordingly, we reverse and remand for entry of judgment in favor of

Nationwide.

     Judgment reversed; case remanded. Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2014




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