J-A15043-17
                            2017 PA Super 302

FLORENCE A. GOOD, INDIVIDUALLY     :            IN THE SUPERIOR COURT OF
AND AS EXECUTRIX OF THE ESTATE OF  :                  PENNSYLVANIA
BARRY D. GOOD, DECEASED,           :
                                   :
               Appellant           :
                                   :
          v.                       :
                                   :
FRANKIE & EDDIE'S HANOVER INN, LLP :
                                   :
RCA INSURANCE GROUP ON BEHALF      :
OF STATE NATIONAL INSURANCE        :
COMPANY                            :               No. 2006 MDA 2016

              Appeal from the Order entered November 15, 2016
                in the Court of Common Pleas of Berks County,
                        Civil Division, No(s): 13-15184

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                    FILED SEPTEMBER 21, 2017

     Florence A. Good (“Good”), individually and as executrix of the Estate

of Barry D. Good, deceased (“the Estate”), appeals from the Order denying

Good’s Motion for Summary Judgment in a declaratory judgment action

against Frankie & Eddie’s Hanover Inn, LLP (“Hanover Inn”), and RCA

Insurance Group (“RCA”), on behalf of State National Insurance Company,
J-A15043-17


and denying as moot RCA’s Cross-Motion for Summary Judgment.1             We

affirm.

      On April 4, 2012, at approximately 10:56 p.m., Barry D. Good (“the

Deceased”) was fatally injured when a Ford F250, driven by Francis Lynch

(“Lynch”), collided with the Deceased’s Kawasaki Vulcan Motorcycle. At the

time of the accident, Lynch was driving under the influence of alcohol, which

had been served to him at Hanover Inn.2

      On the date of the accident, Hanover Inn was covered by a commercial

insurance policy (“the Policy”) issued by RCA. The Policy includes a Liquor

Liability Coverage Form,3 which provides for liquor liability coverage with an




1
  “[A]n order denying summary judgment is ordinarily a non-appealable
interlocutory order.” McDonald v. Whitewater Challengers, Inc., 116
A.3d 99, 104 (Pa. Super. 2015). However, an order in a declaratory
judgment action that either affirmatively or negatively declares rights,
status, and other legal relations is a final order. See 42 Pa.C.S.A. § 7532;
see also Pa.R.A.P. 341(b)(1) (providing that “[a] final order is “any order
that disposes of all claims and of all parties[.]”); Nat’l Cas. Co. v. Kinney,
90 A.3d 747, 754 (Pa. Super. 2014). Here, in its Order denying summary
judgment, the trial court effectively resolved all of the claims presented in
the declaratory judgment action.         Therefore, the Order is final and
appealable. See Kinney, 90 A.3d at 755 (concluding that trial court, by
denying motion for summary judgment in declaratory judgment action,
effectively resolved all issues, and therefore, the order was immediately
appealable).
2
  Good filed a wrongful death and survival action against Lynch and Hanover
Inn.
3
  The Liquor Liability Coverage Form appears to be a standard insurance
policy form provided by Insurance Services Office, Inc. (“ISO”).



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“Aggregate Limit,” as well as an “Each Common Cause Limit.” 4             The

Declarations page of the Policy specifies that the liquor liability coverage

limit for “Each Occurrence” is $500,000, and the “Aggregate” limit is

$1,000,000.

     During the pendency of the wrongful death and survival action, a

dispute arose regarding the applicable amount of coverage under the Policy.

The parties entered into a settlement agreement for the underlying action,

whereby RCA agreed to pay the undisputed amount of $500,000 on behalf of

Hanover Inn. The parties also agreed that a court of competent jurisdiction

would resolve the dispute pertaining to the remaining $500,000.           An



4
 The relevant portion of the Policy’s Liquor Liability Coverage Form provides
as follows:

     Section III – Limits of Insurance

     1. The Limits of Insurance shown in the Declarations and the
     rules below fix the most we will pay regardless of the number of:

        a. Insureds;
        b. Claims made or “suits” brought; or
        c. Persons or organizations making claims or bringing “suits.”

     2. The Aggregate Limit is the most we will pay for all “injury” as
     the result of the selling, serving or furnishing of alcoholic
     beverages.

     3. Subject to the Aggregate Limit, the Each Common Cause Limit
     is the most we will pay for all “injury” sustained by one or more
     persons or organizations as the result of the selling, serving
     or furnishing of any alcoholic beverage to any one person.

Liquor Liability Coverage Form at 3 (emphasis added).


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J-A15043-17


additional $15,000 was paid by Safe Auto Insurance Company, on behalf of

Lynch, for bodily injury.

       On June 17, 2013, Good filed a Complaint, seeking relief in the nature

of a declaratory judgment that the applicable liability limit is the $1,000,000

“Aggregate Limit,” resulting in an additional payment of $500,000.

       On July 23, 2013, RCA filed an Answer and Counterclaim for

Declaratory Relief, asserting that the applicable liability limit is the $500,000

“Each Occurrence Limit.”

       Good filed a Motion for Summary Judgment on August 22, 2016,

alleging that there were no genuine issues of material fact in dispute. RCA

filed a Cross-Motion for Summary Judgment on September 19, 2016,

asserting that the Policy unambiguously provides for a lower “Each Common

Cause Limit,” and a higher “Aggregate Limit.” By Order dated November 15,

2016,5 the trial court denied Good’s Motion for Summary Judgment, denied

as moot RCA’s Cross-Motion for Summary Judgment, and determined that

the lower “Each Occurrence/Each Common Cause Limit” is applicable, rather

than the higher “Aggregate Limit.”

       Good filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

       On appeal, Good raises the following issues for our review:

       A. Whether the trial court erred in determining that the liquor
       liability coverage available to [Good] is in the amount of

5
    The Order was docketed on November 21, 2016.


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J-A15043-17


      $500,000 [,] where the [L]iquor [L]iability [C]overage [F]orm
      does not contain the term “occurrence[,]” and where[,] as
      delineated in the [L]iquor [L]iability [C]overage [F]orm[,]
      $1,000,000[] in liquor liability coverage was available to [Good,]
      given the clear and unambiguous language contained in the
      [L]iquor [L]iability [C]overage [F]orm[?]

      B. In the alternative, whether the trial court erred in determining
      the term “occurrence” was unambiguous in the absence of a
      definition for that term in the [P]olicy[?]

      C. Also, in the alternative, whether the trial court erred in
      applying the “[E]ach [O]ccurrence” limit as the “[E]ach
      [C]ommon [C]ause [L]imit” where those terms are not
      interchangeable within the insurance industry[?]

Brief for Appellant at 5.

      Our standard of review in evaluating a trial court’s grant or denial of

summary judgment is well-settled:

      We view the record in the light most favorable to the nonmoving
      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. Our scope of review
      of a trial court’s order granting or denying summary judgment is
      plenary, and 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 abused its discretion.

Hall v. CNX Gas Co., LLC, 137 A.3d 597, 601 (Pa. Super. 2016) (citation

omitted).

      We will address Good’s claims together.        In her first claim, Good

asserts that the trial court erred in determining that liquor liability coverage

was available in the amount of $500,000, rather than $1,000,000. Brief for

Appellant at 13.    Good claims that the language of the Policy, read in its


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entirety, provides liquor liability coverage in the amount of $1,000,000. Id.

at 15-16.   Good points out that the Policy provides for payment of the

“Aggregate Limit,” unless the “Each Common Cause Limit” applies, but

argues that there is no definition of the “Each Common Cause Limit” in the

Declarations page of the Policy. Id. at 17. Good asserts that the language

of the Policy is unambiguous, and therefore, the trial court was only

permitted to look at the terms of the Policy itself.   Id. at 20.   Good also

contends that the trial court’s determination that the parties intended for

there to be two separate and distinct limits of liquor liability coverage was

mere speculation. Id. at 21.

      In her second claim, Good argues, in the alternative, that the trial

court erred in determining that the term “occurrence” is unambiguous,

absent a definition in the Policy. Id. at 22. Good avers that the ambiguity

should be interpreted in favor of the insured, resulting in an available

$500,000 for each “category” of damage (i.e., wrongful death action and

survival action). Id.

      In her third claim, Good contends that the trial court erred in applying

the “Each Occurrence” limit as the “Each Common Cause” limit, because

those terms are not interchangeable within the insurance industry.     Id. at

23.   Good cites to the report of Craig F. Stanovich, wherein Stanovich

provided the following opinions: 1) it is not insurance industry custom to use

the phrases “Each Occurrence” and “Each Common Cause” interchangeably



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J-A15043-17


in general liability insurance policies; 2) the definition of “occurrence” applies

only to the Commercial General Liability Coverage Form and cannot be

incorporated into and used with the Liquor Liability Coverage Form; and 3)

the Policy’s Declarations page is not an ISO form, and therefore is not

applicable to the Liquor Liability Coverage Form. Id. at 24-27.

            The interpretation of an insurance contract is a matter of
      law and is generally performed by a court. The goal of insurance
      contract interpretation is to ascertain the intent of the parties as
      manifested by the language of the written instrument. When
      analyzing an insurance policy, a court must construe words of
      common usage in their natural, plain, and ordinary sense. If the
      language of the insurance contract is clear and unambiguous, a
      court is required to give effect to that language. A court must
      not distort the meaning of the language or resort to a strained
      contrivance in order to find an ambiguity.

D’Adamo v. Erie Ins. Exch., 4 A.3d 1090, 1096 (Pa. Super. 2010)

(internal citations, quotation marks, and brackets omitted); see also

Mitsock v. Erie Ins. Exch., 909 A.2d 828, 831 (Pa. Super. 2006) (stating

that “courts should try to read policy provisions to avoid ambiguities, if

possible….” (citation and quotation marks omitted)).        However, “where 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.”

Windows v. Erie Ins. Exch., 161 A.3d 953, 957 (Pa. Super. 2017)

(citation, quotation marks and brackets omitted). Additionally, “[w]hen an

ambiguity in contractual language exists, parol evidence is admissible to

explain or clarify or resolve the ambiguity, irrespective of whether the

ambiguity is patent, created by the language of the instrument, or latent,


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J-A15043-17


created by extrinsic or collateral circumstances.” Id. (citation and quotation

marks omitted).

      Here, the trial court considered Good’s claim, and determined that the

applicable coverage limit was the $500,000 “Each Occurrence/Each Common

Cause Limit,” rather than the $1,000,000 “Aggregate Limit,” stating the

following:

              [The trial court] has examined the insurance policy in light
      of the above [contract interpretation] standards and the mutual
      intent of the parties to contract for insurance. It is clear … [that]
      the intentions of the parties are clear and unambiguous. The
      facts of this case make clear that a quote was obtained from
      RCA for a policy of insurance that included liquor liability
      coverage with two separate and distinct liquor liability limits.
      Those limits being $500,000 per occurrence and $1,000,000
      aggregate. … It is abundantly clear that at all times the parties
      intended for there to be two separate and distinct limits of liquor
      liability, an occurrence limit of $500,000 and an aggregate limit
      of $1,000,000. There is no way that [the trial court] can
      construe the facts to believe that the parties had only intended a
      policy of liquor liability that contained only a single $1,000,000
      limit.

             ….

            [The trial court] has found the contract language to be
      unambiguous. The [L]iquor [L]iability [C]overage [F]orm clearly
      states that there are two limits of liquor liability coverage. The
      [“Aggregate Limit”] is clearly $1,000,000.         The lower limit,
      although referenced as “[E]ach [O]ccurrence” in the [P]olicy, is
      not reasonably susceptible of a different construction or capable
      of being understood in more than one sense to mean anything
      other than the “[E]ach [C]ommon [C]ause [L]imit[”] set out in
      the [L]iquor [L]iability [Coverage F]orm. To hold otherwise
      would defeat the clear and unambiguous intentions of the parties
      to contract for two separate and distinct limits for liquor liability.
      When viewed in the light of the intent of the parties and the
      reasonable expectations of the insureds, it is clear that [Good’s]



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J-A15043-17


      interpretation of the [P]olicy would lead to a result not
      contemplated by the parties.

             [RCA] contends, and [the trial court] agrees[,] that the
      fact that the [D]eclaration[s] page of the [P]olicy does not
      contain an express “[E]ach [C]ommon [C]ause [L]imit[”] does
      not mean that it should be converted into something that it is
      not—a policy with [neither an] “Each Occurrence [Limit,]” nor an
      “[E]ach [C]ommon [C]ause [L]imit[”] for liquor liability
      coverage. It is clear that RCA contemplates two separate limits.
      The [D]eclaration[s] page includes two separate limits, one for
      “[E]ach [O]ccurrence” and one for “[A]ggregate.” The only
      reasonable conclusion, consistent with the intention of the
      parties and the reasonable expectations of the insureds, is to
      apply the “[E]ach [O]ccurrence [L]imit[”] as the “[E]ach
      [C]ommon [C]ause [L]imit[”].          This is the only possible
      interpretation that provides for two[] separate and distinct
      limits, one higher and one lower[,] that is required by the
      language of the [L]iquor [L]iability [C]overage [F]orm.

Trial Court Opinion, 1/25/17, at 6, 7-8. Upon review, we conclude that the

trial court’s interpretation is sound and free of legal error, and we affirm on

this basis as to Good’s claims. See id.6 Accordingly, the trial court properly

denied Good’s Motion for Summary Judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017


6
  We additionally observe that the trial court’s interpretation is consistent
with the definition of the “Each Common Cause Limit” set forth in the Liquor
Liability Coverage Form. See Liquor Liability Coverage Form at 3.


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J-A15043-17




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