J-A02019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DONNA M. OLSON AND DENNIS               :   IN THE SUPERIOR COURT OF
 OLSON, HUSBAND AND WIFE                 :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 STATE AUTO PROPERTY AND                 :
 CASUALTY INSURANCE COMPANY;             :   No. 737 WDA 2019
 MICHAEL SAYRE, JR.; AND                 :
 INTERNATIONAL TITANIUM CORP.            :
                                         :
                                         :
 APPEAL OF: STATE AUTO PROPERTY          :
 AND CASUALTY INSURANCE                  :
 COMPANY AND INTERNATIONAL               :
 TITANIUM CORP.                          :

                Appeal from the Order Entered April 16, 2019
   In the Court of Common Pleas of Beaver County Civil Division at No(s):
                               10835 of 2017


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

MEMORANDUM BY OLSON, J.:                           FILED MARCH 03, 2020

      Appellants, State Auto Property and Casualty Insurance Company

(“State Auto”) and International Titanium Corp. (“International”), appeal from

the April 16, 2019 order granting summary judgment in favor of Michael Sayre

Jr., (“Sayre”), Donna M. Olson, and Dennis Olson (collectively, “the Olsons”)

and denying a summary judgment motion filed by State Auto and

International. We affirm.

      The trial court summarized the relevant factual and procedural history

of this case as follows.
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       The underlying accident occurred on August 2, 2012, in New
       Brighton, Beaver County, Pennsylvania. Donna Olson was a
       passenger in a motor vehicle driven by a third party[,] and was
       traveling on Sixth Avenue. [] Sayre was operating his own motor
       vehicle, acting in the course and scope of his employment with
       [International] for the purpose of picking up the company’s mail,
       and traveling directly in front of the vehicle in which [Donna]
       Olson was a passenger. [] Sayre proceeded to back his vehicle
       up and struck the front of the vehicle in which [Donna] Olson was
       a passenger. At the time of the accident, [] Sayre was the general
       manager of [International.]

                                           ***

       [Following the accident, the Olsons filed a tort action against
       Sayre for personal injury]. While that case was pending, [the
       Olsons] initiated [the instant] action for declaratory relief,
       asserting that there should be additional insurance coverage
       available in the underlying action[.] [Specifically, the Olsons]
       contended [] that [] Sayre should also be covered by the auto
       insurance policy issued by [State Auto to International].

       [Thereafter, State Auto, International, and Sayre] filed
       preliminary objections to the [Olsons’] [c]omplaint for
       [d]eclaratory [r]elief, challenging [the Olsons’] standing to initiate
       the action. Prior to [] argument on the preliminary objections, []
       Sayre filed an [a]nswer, [n]ew [m]atter, and [c]ross-[c]laims,
       including a cross-claim asserting his own claim for coverage under
       the State Auto policy. Judge Deborah Kunselman[1] . . . [held]
       that the preliminary objections [regarding the Olsons’] standing
       were sustained, without comment. [In the same order, Judge
       Kunselman permitted the declaratory judgment action to proceed
       as Sayre had standing to pursue a claim for coverage against
       International and its carrier, State Auto].

Trial Court Order and Opinion, 4/16/19, at 3-4 (footnote added).

       On November 26, 2018, Sayre filed a motion for summary judgment.

Sayre’s Motion for Summary Judgment, 11/26/18, at 1-6.                State Auto,
____________________________________________


1In November 2017, Judge Deborah Kunselman was sitting as a judge in the
Court of Common Pleas of Beaver County. She is currently a judge on this
Court, but is not a panel member in this case.

                                           -2-
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International, and the Olsons followed suit, filing motions for summary

judgment on January 17, 2019.            State Auto and International’s Motion for

Summary Judgment, 1/17/19, at 1-6; Olsons’ Motion for Summary Judgment,

1/17/19, at 1-5. The trial court entertained oral argument on the motions on

March 20, 2019.         N.T. Summary Judgment Hearing, 3/20/19, at 1-23.

Thereafter, on April 16, 2019, the trial court entered summary judgment in

favor of Sayre and the Olsons but denied the motion for summary judgment

filed on behalf of Appellants. Trial Court Order and Opinion, 4/16/19, at 1-15.

This timely appeal followed.2

       Appellants raise the following issue for our consideration:

       Did the trial court commit an error of law in granting summary
       judgment in favor of [the Olsons] and Sayre where Sayre’s Dodge
       Ram was a borrowed vehicle such that neither Sayre nor his
       vehicle were covered under [International’s business auto p]olicy
       at the time of the accident?

Appellants’ Brief at 4.

       Our standard of review is as follows:

       A reviewing court may disturb the order of the trial court only
       where it is established that the court committed an error of law or
       abused its discretion. As with all questions of law, our review is
       plenary.


____________________________________________


2 Appellants filed a notice of appeal on May 13, 2019. On May 22, 2019, the
trial court issued an order directing Appellants to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1).
Appellants timely complied. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 13, 2019, expressly noting that it relied on its April
16, 2019 opinion for this appeal.

                                           -3-
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      In evaluating the trial court's decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. The rule states that where there is no
      genuine issue of material fact and the moving party is entitled to
      relief as a matter of law, summary judgment may be entered.
      Where the non-moving party bears the burden of proof on an
      issue, he may not merely rely on his pleadings or answers in order
      to survive summary judgment. Failure of a nonmoving party to
      adduce sufficient evidence on an issue essential to his case and
      on which it bears the burden of proof establishes the entitlement
      of the moving party to judgment as a matter of law. Lastly, we
      will 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.

      Additionally, we note that the interpretation of an insurance policy
      is a question of law that we will review de novo.

State Farm Mut. Auto. Ins. Co. v. Dooner, 189 A.3d 479, 481–482 (Pa.

Super. 2018) (internal citations omitted).

      Herein, Appellants argue that the trial court erred in granting the

motions for summary judgment filed by Sayre and the Olsons because Sayre

“consented    to   temporarily   using   his   personal   vehicle   to   perform

[International’s] business.” Appellant’s Brief at 12. As such, International

“borrowed” Sayre’s vehicle at the time of the accident and, therefore, “neither

Sayre nor his vehicle were covered under [International’s] [p]olicy at the time

of the accident.” Id.

      We note:

      The goal in construing and applying the language of an insurance
      contract is to effectuate the intent of the parties as manifested by
      the language of the specific policy. When the language of an
      insurance policy is plain and unambiguous, a court is bound by
      that language. Alternatively, if an insurance policy contains an
      ambiguous term, “the policy is to be construed in favor of the
      insured to further the contract's prime purpose of indemnification


                                     -4-
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      and against the insurer, as the insurer drafts the policy, and
      controls coverage.” Contract language is ambiguous if it is
      reasonably susceptible to more than one construction and
      meaning. Finally, the language of the policy must be construed in
      its plain and ordinary sense, and the policy must be read in its
      entirety.

Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 14 (Pa.

2014) (internal and parallel citations omitted).

      “Mindful of the foregoing legal principles, it is clear that the focal point

of our inquiry is the language of [International’s] insurance policy.” State

Farm Mut. Auto. Ins. Co., 189 A.3d at 483. Under the terms of the policy,

State Auto will “pay all sums an ‘insured’ legally must pay as damages because

of ‘bodily injury’ or ‘property damage’ to which [the] insurance applies, caused

by an ‘accident’ and resulting from the ownership, maintenance, or use of a

covered ‘auto.’” R.R. 60a. Thus, for coverage to attach under International’s

policy, Sayre’s vehicle must qualify as a “covered auto” and Sayre must have

been an “insured” at the time of the accident.

      First, we examine the terms of International’s policy defining whether a

vehicle constitutes a “covered auto.”      Under International’s policy, liability

coverage extends to those “autos” within Category “1.” R.R. 56a. Category

“1” includes “any auto.” Id. at 59(a). “Any auto,” however, is not defined in

the policy.   Nonetheless, we conclude, as this Court did in Bamber v.

Lumbermens Mut. Cas. Co., 680 A.2d 901, 903 (Pa. Super. 1996), that the

term “any auto” “as it is used in the policy, logically refers to all autos falling

within the subsequent limited categories ‘2’ through ‘9.’” Bamber, 680 A.2d



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at 903; see also R.R. 59(a). Category “9,” entitled “non-owned ‘autos,’” is

relevant in this case. Category “9” reads as follows:

      9 = NONOWNED “AUTOS” ONLY. Only those “autos” you do not
      own, lease, hire, rent or borrow that are used in connection with
      your business. This includes “autos” owned by your employees or
      partners or members of their households but only while used in
      your business or your personal affairs.

R.R. 59(a).     Accordingly, any autos not owned, leased, or borrowed by

International but used in connection with its business are considered “covered

autos” pursuant to Category “9.” Id.

      We now turn to the terms of International’s policy detailing who qualifies

as an “insured.”    It is undisputed that, at the time of the accident, Sayre

served as International’s general manager. As such, we note the following

relevant provisions. In Section II(A)(1), the policy defines insureds as follows:

      1. WHO IS AN INSURED

      The following are “insureds”:

         a. You for any covered “auto.”

         b. Anyone else while using with your permission a covered
         “auto” you own, hire or borrow except:

                                  ******

              2) Your employee if the covered “auto” is owned by that
              employee or a member of his or her household.

R.R. 60(a).     We also note the following provision included within the

endorsement section of International’s policy.

      G. EMPLOYEES AS INSUREDS

      The following is added to SECTION II – LIABILITY COVERAGE,
      Paragraph A.1. Who Is An Insured provision: Any “employee” of

                                      -6-
J-A02019-20


      yours is an “insured” while using a covered “auto” you do [not]
      own, hire, or borrow in your business of personal affairs.

R.R. 87(a).

      Pursuant to the aforementioned provisions, whether Sayre’s vehicle

qualifies as a “covered auto,” and whether Sayre himself is an “insured,”

depends upon whether, at the time of the accident, International “borrowed”

his vehicle.

      The policy does not define the term “borrowed.” Nonetheless, because

“borrowed” is a “[w]ord[] of common usage,” it is to be “construed in [its]

natural, plain, and ordinary sense” and “we may inform our understanding of

[this] term[] by considering [its] dictionary definition.” Wagner v. Erie Ins.

Co., 801 A.2d 1226, 1231 (Pa. Super. 2002).          Merriam-Webster defines

“borrow” to mean “to receive with the implied or expressed intention of

returning the same or an equivalent.”          MERRIAM WEBSTER’S COLLEGIATE

DICTIONARY 144 (11th ed. 2003). Black’s Law Dictionary defines “borrow” as

“tak[ing] something for temporary use.” BLACK’S LAW DICTIONARY 196 (8th ed.

2004).

      Herein, it is undisputed that, on the day of the accident, Sayre served

as International’s general manager. After initially reporting to International’s

office, Sayre then drove his own vehicle to pick up the mail for the company.

Trial Court Opinion, 4/16/19, at 3. In doing so, Sayre embarked, in essence,

on a company errand. The record reflects that International often dispatched

Sayre for this purpose. Indeed, during Sayre’s deposition, he testified that he

frequently used his own vehicle to retrieve the company mail or “haul[] things”

                                     -7-
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for the company.       Id. at 4.   Notably, Sayre also testified that, when he

performed such duties, he would submit “receipts for gas and some repairs to

his vehicle” and would, in turn, be “reimbursed by [International].” Id. When

considering these facts, it is relatively clear that, at the time of the accident,

International temporarily utilized Sayre’s vehicle with the implied intention of

returning it. This conclusion is consistent with case law in other jurisdictions.

See Andresen v. Employers Mut. Cas. Co., 461 N.W.2d 181, 185 (Iowa

1990) (holding that when an employer “temporarily gain[s] the use of [an

employee’s] vehicle,” this “arrangement falls within the ordinary meaning of

the term ‘borrow’” even though the employee “drove [his own] car on the

[employer’s] business.”); Atl. Mut. Ins. Co. v. Palisades Safety & Ins.

Ass'n, 837 A.2d 1096, 1100 (N.J. Super. Ct. App. Div. 2003) (holding that an

employer “borrowed” an employee owned and operated vehicle when it gained

“substantial dominion or control” of the vehicle by requiring the employee to

run an “errand” for the company while “remain[ing] on the clock and

reciev[ing] pay.”); Travelers Indem. Co. v. Swearinger, 169 Cal. App. 3d

779, 785 (Cal. Ct. App. 1985) (holding that a “borrowing can occur [when an

entity] permits [its] employee[] [to] use [] his or her [own] vehicle on [the

entity’s] errand” because, in doing so, the entity “properly gains the use of

[the employee’s] vehicle for its purposes[,] whatever may be said of the

employee’s dominion over the vehicle (by ownership) or physical possession

of it (by driving it).”).




                                       -8-
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      Notwithstanding legal precedents applying the common definition of

“borrow,” the trial court held that “Sayre’s automobile was not a borrowed

vehicle at the time of the accident.” Trial Court Opinion, 4/16/19, at 11. In

reaching this conclusion, the court apparently rejected the notion that an

employee can “borrow” his own vehicle.          We note, however, that this

determination is at odds with the aforementioned case law applying the

definition of “borrow” to similar facts.   Indeed, the fact that International

reimbursed Sayre for gas and vehicle repairs strongly suggests that

International “borrowed” Sayre’s vehicle when he used it for company

errands. See Travelers Indem. Co., 169 Cal. App. 3d at 785. Furthermore,

the trial court opined that Sayre’s vehicle could not be “borrowed” because he

“used his vehicle on an almost daily basis to pick up the mail as part of his

employment performance” and, as such, Sayre’s use was not “temporary.”

Trial Court Opinion, 4/16/19, at 11.       Thus, in applying the definition of

“borrow” to the present circumstance, the trial court appears to have conflated

the frequency of occurrence with duration of use. This conclusion is contrary

to the common usage of the term “borrow.”

      Nonetheless, we are constrained to affirm the trial court’s ruling because

“[i]t is beyond the power of a Superior Court panel to overrule a prior decision

of the Superior Court.” Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043,

1064 n.19 (Pa. Super. 2015), quoting Commonwealth v. Hull, 705 A.2d

911, 912 (Pa. Super. 1998). Herein, we are bound by this Court’s previous

decision in Bamber.

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      In Bamber, this Court interpreted a nearly identical insurance policy

under factually similar circumstances. The facts of the case are as follows.

“In 1991, appellant[,] John Bamber[,] sustained a number of injuries following

an automobile accident that allegedly occurred during the course of his

employment” at the Chamber of Commerce of the United States of America

(“Chamber of Commerce”). Bamber, 680 A.2d at 902. After the accident,

Bamber sought underinsured motorist (“UIM”) benefits under the Chamber of

Commerce’s business auto insurance policy (“Chamber policy”).         Id.   The

insurance company, Kemper National Insurance Company (“Kemper”), denied

coverage and successfully moved for summary judgment against Bamber in

subsequent litigation. Id.

      On appeal, Bamber argued that “he [was] entitled to UIM benefits”

under Chamber’s policy with Kemper. Id. He specifically claimed that “his

vehicle was a ‘covered auto’ under [] Chamber[’s] policy when [it] was used

in the course of Bamber’s employment.” Id. This Court agreed.

      First, the Bamber Court determined that the vehicle qualified as a

“covered auto” under Chamber’s policy.       In particular, the Court held that

Bamber’s vehicle fell within the following category:

      9 = NONOWNED “AUTOS” ONLY. Only those “autos” you do not
      own, lease, hire, rent or borrow that are used in connection with
      your business. This includes “autos” owned by your employees or
      partners or members of their households but only while used in
      your business or your personal affairs.




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Id. at 903.    After citing this provision, the Court simply concluded that

“Bamber’s personal vehicle clearly [fell] into this category when it [was] used

in the course of his employment with the Chamber of Commerce” and, as

such, the vehicle was a “‘covered auto’ for purposes of liability coverage.” Id.

The Court, however, did not consider whether Bamber’s vehicle was owned,

hired, or borrowed by the Chamber of Commerce at the time of the accident.

      The Court then addressed whether Bamber himself was “specifically

excluded from coverage” by the language within the policy detailing who is an

“insured.” Id. The specific provision is as follows:

      1. WHO IS AN INSURED

      The following are “insureds”:

         a. You for any covered “auto.”

         b. Anyone else while using with your permission a covered
         “auto” you own, hire or borrow except:

                                  ******

            2) Your employee if the covered “auto” is owned by that
            employee or a member of his or her household.

Id.   Without providing any analysis, the Bamber Court concluded that

“Bamber cannot be excluded by [Section II(A)(1)(b)(2)] when he is not in the

relevant class of people included in section (b). Section (b) states that it will

insure permissive users of covered autos that are owned, hired, or

borrowed by the Chamber of Commerce. As Bamber’s personal vehicle was

not owned, hired or borrowed by the Chamber of Commerce, this entire

section, including the exclusions, does not apply.” Id. (emphasis in original).


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The Bamber Court, therefore, overlooked the possibility that the definition of

“insured” applied, but that Bamber himself was not included within its

meaning; thus, barring coverage.

       Pursuant to Bamber, an employee using his or her own vehicle during

the course and scope of employment is using a “covered auto” and is an

“insured.” We have serious misgivings about Bamber’s interpretation of the

Chamber’s policy and its application thereof. Indeed, it appears that the Court

concluded that the Chamber of Commerce did not own, hire, or borrow

Bamber’s vehicle for purposes of finding that it was a “covered auto.” 3 If,

however, Bamber’s vehicle were not owned, hired, or borrowed, Bamber could

not qualify as an “insured” because an “insured” is one who engages in the

permissive use of a “covered auto” that the “Named Insured,” i.e., the

Chamber of Commerce, owns, hires, or borrows.4 Instead of carrying out the
____________________________________________


3 The Bamber Court focused on the second sentence of Category “9” to
conclude that Bamber’s vehicle was a “covered auto.” Bamber, 680 A.2d at
903. This sentence included those “‘autos’ owned by [the Chamber of
Commerce’s] employees . . . used in [the course of employment].” Id. In
doing so, the Court ignored the preceding language which excluded those
“autos” that the Chamber of Commerce “own[ed] . . . hire[d] . . . or
borrow[ed].” Id. Thus, by summarily stating that Bamber’s vehicle “clearly
f[ell] into [C]ategory [9],” it implicitly found that the Chamber of Commerce
did not own, hire, or borrow Bamber’s vehicle. Id.

4 Pursuant to the terms of Chamber’s policy, to qualify as an “insured” an
individual/entity must have met the definitions set forth in Section II (A)(1)(a)
or Section II (A)(1)(b). Bamber, 680 A.2d at 903. Section II (A)(1)(a) covers
only the “Named Insured,” which, in Bamber, was the Chamber of Commerce.
Thus, Bamber had to meet the definition provided in Section II (A)(1)(b) to
qualify as an “insured.” Section II (A)(1)(b) explicitly states that an “insured”



                                          - 12 -
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logical consequence of its prior determination, the Bamber Court elected not

to apply the definition of “insured” to its coverage analysis.

       For the foregoing reasons, we have serious reservations regarding

Bamber’s analysis and interpretation of the Chamber’s policy. Nonetheless,

we are bound by Bamber.             See Regis Insurance Co. v. All American

Rathskeller, Inc., 976 A.2d 1157, 1161 n. 6 (Pa. Super. 2009) (explaining

that a Superior Court panel lacked power to disregard and overrule a binding

prior decision). Indeed, a panel of this Court recently followed the Bamber

Court’s analysis while interpreting a similar insurance policy in Lightner v.

Carlevale’s Custom Cars, LLC, 2017 WL 6396084, *1, *5 (Pa. Super. Dec.

15, 2017) (explaining that if an employee was driving the vehicle in question,

pursuant to Bamber, the employer “would have been covered” because the

purpose of “coverage for non[-]owned autos” is to “protect[] the policyholder
____________________________________________


is “anyone else” that is using “with [the Named Insured’s] permission, a
covered ‘auto’ that [the Named Insured] own[s], hire[s], or borrow[s].” Id.
Thus, for Bamber to qualify, he needed to be engaged in a permissive use of
a “covered auto” that the Chamber of Commerce owned, hired, or borrowed.
As explained in footnote three, the Bamber Court implicitly determined that
the Chamber of Commerce did not own, hire, or borrow Bamber’s vehicle when
it concluded that Bamber’s vehicle was a “covered auto.” Id. It is therefore
inconsistent to conclude that the Chamber of Commerce did not own, hire, or
borrow Bamber’s vehicle for purposes of finding that it was a “covered auto,”
only    to   turn    around    and   conclude     that    Bamber     was    an
“insured” because the Chamber of Commerce owned, hired, or borrowed
Bamber’s vehicle. To avoid this inconsistency, the Bamber Court determined,
without explanation, that it would not apply the definition of an “insured” to
its coverage analysis. Thus, the Court failed to “give effect” to the language
of the policy as required when interpreting an insurance contract. Erie Ins.
Exchange v. Conley, 29 A.3d 389, 392 (Pa. Super. 2001).



                                          - 13 -
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in cases of respondeat superior.”). Accordingly, until this Court grants en banc

review,5 we are bound by the decision in Bamber and, as such, we are

constrained to affirm the trial court’s April 16, 2019 order.

       Order affirmed.

       Judge Shogan joins.

       President Judge Emeritus Ford Elliott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/03/2020




____________________________________________


5 “It is well-settled that this Court, sitting en banc, may overrule the decision
of a three-judge panel of this Court.” Commonwealth v. Morris, 958 A.2d
569, 581 n.2 (Pa. Super. 2008) (en banc); see also Commonwealth v.
Jacobs, 900 A.2d 368, 377 n.9 (Pa. Super. 2006) (en banc).

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