J-S70034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    NARO ENTERPRISES, INC.                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    GREAT AMERICAN INSURANCE                   :   No. 875 MDA 2017
    GROUP & CHRISTOPHER SLEZAK                 :

                  Appeal from the Order Entered June 30, 2015
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 2009-10981


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 20, 2018

       Naro Enterprises, Inc. (Naro) appeals from the order entered on June

30, 2015 in the Court of Common Pleas of Luzerne County denying summary

judgment in favor of Naro and granting summary judgment in favor of Great

American Insurance Group (Great American).1 In this appeal, Naro claims the

trial court erred in determining that because Naro’s stolen trailer was not in

“transit” at the time of the theft, it was not covered under Great American’s

insurance policy. After a thorough review of the submission by the parties,

relevant law, and the certified record, we affirm.


____________________________________________


1 This matter was appealed prematurely in 2015, as the grant of summary
judgment did not address any of the claims against Slezak. That appeal was
discontinued. On May 19, 2017, Naro discontinued all claims, with prejudice,
against Slezak. This action made the June 30, 2015 order appealable. The
instant appeal was timely commenced on June 2, 2017.
J-S70034-17



      The underlying facts of this matter are not in dispute. Naro is a trucking

company that was insured by a policy issued by Great American. At issue is

the interpretation of the definitions of “transit” and “transit ends” as found in

the insurance policy.   We will discuss these definitions after we relate the

factual history of the occurrence at issue.

      On May 8, 2008, beginning at approximately 8:00 a.m., a driver for

Naro picked up a trailer loaded with steel rods from Sandvick Materials. These

steel rods were to be delivered to a location in Houston, Texas. Prior to setting

out for Texas, the driver returned to the Naro location at approximately noon

on May 8, 2008, to allow for a pre-trip inspection. Some damage to the trailer

was discovered and an independent welder was brought to the Naro site to

make the needed repair. This repair was done on May 10, 2008. The laden

trailer remained at the Naro site in anticipation of continuing the delivery trip

on Monday, May 12, 2008. The trailer was last seen at Naro on Sunday, May

11, 2008, sometime after noon. There is no dispute that at least 75 hours

passed from the time the trailer arrived at Naro until it was last seen at Naro.

At approximately 1:00 a.m., Monday, May 12, 2008, at least 85 hours after

arrival at Naro, the trailer and the steel rods were discovered to have been

stolen.

      On May 13, 2008, Naro submitted a claim to Great American seeking in

excess of $210,000.00 for the goods. Ultimately, Great American denied the

claim, asserting coverage was only provided for such goods while in transit.

Great American further asserted that transit ended after 72 hours passed with

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J-S70034-17



the trailer at the Naro site. The denial of the claim led to this litigation and

the appeal currently before us.

        As noted above, there is no dispute that the trailer in question, laden

with the steel rods destined for Houston, remained at the Naro location for

more than 72 hours. There is no dispute that transit of the steel rods had

begun when the trailer left Sandvick. What is at dispute is, if and when that

transit ended.

        We quote the relevant definitions found in the Great American insurance

policy.

        Covered Property means property of others that you have
        accepted for transportation as a motor carrier under your tariff
        and bill of lading or other written contract.

        We cover property only while it is:

           a. contained in or on a land vehicle while in “transit” and/or
              during “loading” and “unloading”[2]

See Plaintiff’s Motion for Summary Judgment, Exhibit B, Policy, Motor Truck

Cargo Coverage Form, at 1.

        “Transit” begins with the actual movement of the goods from point
        of shipment bound for a specific destination. It remains in transit
        during the ordinary, reasonable and necessary stops,
        interruptions, delays or transfers incidental to the route and
        method of shipment.

        “Transit” ends when any of the following occurs:




____________________________________________


2   Words in quotation marks are separately defined in the policy.

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      1. Covered Property is accepted by, or on behalf of, the consignee
         at the intended destination or at any intermediate point short
         of the original intended destination; or

      2. seventy-two hours after arrival at destination; or

      3. any other stop that exceeds seventy-two hours.

Id. at 5-6.

      We note that when viewing the policy, the two “Transit” definitions are

separate entries; they are not part of the same entry.

      Our analysis is guided by the following principles of law.

         Th[e] scope of review of an order granting summary
         judgment is plenary. Our standard of review is clear: the
         trial court’s order will be reversed only where it is
         established that the court committed an error of law or
         clearly abused its discretion. Summary judgment is
         appropriate only in those cases where the record clearly
         demonstrates 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 nonmoving party, resolving
         all doubts as to the existence of a genuine issue of material
         fact against the moving party. When the facts are so clear
         that reasonable minds cannot differ, a trial court may
         properly enter summary judgment.

      Valentino v. Phila. Triathlon, LLC, 150 A.3d 483, 490 (Pa.
      Super. 2016) (citing Atcovitz v. Gulph Mills Tennis Club, Inc.,
      571 Pa. 580, 812 A.2d 1218, 1221-22 (2002)).
      Moreover,

         the non-moving party must adduce sufficient evidence on
         an issue essential to his case and on which he bears the
         burden of proof such that a jury could return a verdict in
         his favor. Failure to adduce this evidence establishes that
         there is no genuine issue of material fact and the moving
         party is entitled to judgment as a matter of law.




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J-S70034-17


      Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038,
      1042 (1996).

      When reviewing an insurance contract on appeal, we note that our
      Court's scope of review is plenary. Cresswell v. Pennsylvania
      National Mutual Casualty Ins. Co., 820 A.2d 172 (Pa. Super.
      2003).

      Moreover,

          [i]n interpreting the terms of an insurance contract, the
          appellate court examines the contract in its entirety, giving
          all of the provisions their proper effect. The court's goal is
          to determine the intent of the parties as exhibited by the
          contract provisions. In furtherance of its goal, the court
          must accord the contract provisions their accepted
          meanings, and it cannot distort the plain meaning of the
          language to find an ambiguity. Moreover, it will not find a
          particular provision ambiguous simply because the parties
          disagree on the proper construction; if possible, it will read
          the provision to avoid an ambiguity.

      Burton v. Republic Ins. Co., 845 A.2d 889, 893 (Pa. Super.
      2004).

Brown v. Everett Cash Mutual Insurance Company, 157 A.3d 958, 962

(Pa. Super. 2017).

      The underlying issue is straightforward, was the trailer and the cargo in

transit at the time of loss, or had the transit ended. Naro argues that the

trailer and cargo were in transit pursuant to the definition of “Transit” found

in the policy. Specifically, Naro claims the repair of the trailer was a necessary

interruption or delay, and therefore, the trailer and cargo were still in transit

when the cargo was stolen, and thus Great American is required to indemnify

the loss. Further, Naro claims that the 72-hour limit imposed in the definition

of “Transit ends” does not apply. Naro posits that condition number 3, which


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J-S70034-17



states that transit ends when “any other stop exceeds 72 hours”, applies to

stops “other” than those stops that are “ordinary, reasonable and necessary”

pursuant to the definition of “Transit” found in the preceding policy definition.

       Countering Naro’s argument, both Great American and the trial court

assert the 72-hour limit set in the definition of “Transit ends” is clear and

unambiguous. Because the trailer and cargo had been at rest for more than

72 hours, it was no longer in transit and, therefore, no longer covered by the

insurance policy.     Both Great American and the trial court cite Inter City

Express v. Canal Indemnity Company, 709 So.2d 1021 (La. App. 4th Cir.

1998) to support that interpretation. The Canal Indemnity policy, as related

in that decision, has similar, but not identical, language regarding a 72-hour

delay.3

       However, the 72-hour provision was not directly at issue in Inter City

Express. There, the trial court found no coverage because the trailer at issue

was not attached to a tractor at the time of loss. Accordingly, the lost cargo

in Inter City was not, by definition, “covered cargo.”        Nonetheless, the



____________________________________________


3As related in Inter City Express, the 72-hour clause in the Canal Indemnity
policy stated:

       “[c]argo on a vehicle at a terminal, garage or depot for more than
       seventy-two hours (excluding Sundays and holidays) from the
       time the vehicle arrives at the terminal, garage or depot” is not
       covered.

Id. at 1023.

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J-S70034-17



Louisiana Appellate Court found nothing ambiguous about the 72-hour

exclusion. Rather, it stated,

      A reading of the various provisions simply means that cargo is
      insured if it is on a scheduled vehicle or a trailer attached to a
      scheduled vehicle or at a location scheduled on the declarations
      page. And, coverage, if it existed, will cease if the cargo is left at
      the terminal, garage or depot for more than seventy-two hours.
      It would make no sense for us to reform the policy to say that
      cargo left at the terminal or garage less than seventy-two hours
      is covered, regardless of the policy definition of “covered cargo.”

Id. at 1023.

      We agree with this reasoning, as far as it is applicable to the instant

policy. However, neither the argument of Great American nor the rationale of

the trial court, nor the discussion in the Inter City Express decision,

expressly addresses Naro’s argument and the instant policy’s use of the word

“other” in regards to “any other stop that exceeds seventy-two hours.”

      Our reading of the policy convinces us that the definition of “Transit

ends” includes three types of stop. First, when the cargo is accepted by the

consignee. Second, when 72 hours expires after the arrival of the cargo at

the destination. See Definition of “Transit ends”, 1 and 2. The third definition

of transit ending is when any “other” stop takes places that exceeds 72 hours.

Accordingly, “other” as used in the definition of “Transit ends” refers to the

immediately preceding conditions 1 and 2, and not, as Naro contends, to the

ordinary, reasonably and necessary stop referred to in the definition of

“Transit begins.”




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       This interpretation leads to an unambiguous reading of the policy,

similar to the result found in Inter City Express. Relevant to this matter,

cargo is covered as long as it is in transit.    Transit includes any ordinary,

reasonable and necessary stop, as long as that stop is less than 72 hours long.

Once a stop lasts more than 72 hours, transit has ended, and coverage for the

cargo ceases.4

       In light of the foregoing, we find no error of law or abuse of discretion

in the trial court’s grant of summary judgment in favor of Great American.

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




____________________________________________


4 The trailer did not pass inspection and was required to be repaired before
the journey could continue. Allowable stops under the definition of “Transit”
must be ordinary, reasonable and necessary. All three conditions must be
met for the cargo to remain in transit. While the stop to perform the repair
on the trailer would have been necessary, it is unclear if this repair, requiring
the hiring of an outside welder to make the trailer travel-worthy, could be
considered “ordinary” under the policy definition.



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