United States District Court for the Western District of Pennsylvania

June 22, 2022, Decided; June 22, 2022, Filed

2:21-CV-00493-CCW

Reporter

2022 U.S. Dist. LEXIS 110116 *

DOUGLAS J. ANDERSON, as Administrator of the Estate of Theresa R. Anderson, and DOUGLAS J. ANDERSON, in his own right, Plaintiff, v. MOTORIST MUTUAL INSURANCE COMPANY, Defendant.

Core Terms

Motorists, Exhaustion, insured, tortfeasors, non-moving, summary judgment, summary judgment motion, settlements, coverage, underinsured, benefits, material fact, insurance policy, cases, limitation of liability, Policies, carrier, parties, declaratory judgment, policy limit, principles, Trucking, insurance company, joint tort feasor, third party, Fair Share Act, Dictionary, quotations, Partial, damages

Counsel:  [*1] For DOUGLAS J. ANDERSON, Administrator of the ESTATE OF THERESA R. ANDERSON and, DOUGLAS J. ANDERSON, in his own right, Plaintiffs: Richard J. Joyce, LEAD ATTORNEY, Joyce & Bittner, Pittsburgh, PA.

For MOTORIST MUTUAL INSURANCE COMPANY, Defendant: Joseph A. Hudock, Jr., LEAD ATTORNEY, Summers, McDonnell, Hudock, Guthrie & Skeel, Pittsburgh, PA.

For MOTORIST MUTUAL INSURANCE COMPANY, Counter Claimant: Joseph A. Hudock, Jr., LEAD ATTORNEY, Summers, McDonnell, Hudock, Guthrie & Skeel, Pittsburgh, PA.

For DOUGLAS J. ANDERSON, Administrator of the ESTATE OF THERESA R. ANDERSON, Counter Defendant: Richard J. Joyce, LEAD ATTORNEY, Joyce & Bittner, Pittsburgh, PA.

Judges: CHRISTY CRISWELL WIEGAND, United States District Judge.

Opinion by: CHRISTY CRISWELL WIEGAND

Opinion

MEMORANDUM OPINION

Before the Court is a Partial Motion for Summary Judgment by Plaintiff Douglas J. Anderson, as the administrator of the Estate of Theresa R. Anderson, and in his own right (“Mr. Anderson”), ECF No. 20, and a Motion for Summary Judgment by Defendant Motorists¹ Mutual Insurance Company (“Motorists Mutual”), ECF No. 17.

Mr. Anderson settled with third party tortfeasors following a motor vehicle accident in which Theresa Anderson was killed. ECF [*2]  No. 19 ¶¶ 1-12, 17-18. He then filed a claim for underinsured motorist (“UIM”) benefits with Motorists Mutual. ECF No. 19 ¶¶ 13-15, 18. The parties’ cross-motions for summary judgment focus on the amount of credit to which Motorists Mutual is entitled on Mr. Anderson’s UIM claim. Id. ¶ 19.

For the reasons that follow, Mr. Anderson’s Partial Motion for Summary Judgment will be GRANTED in part with respect to the fact that Motorists Mutual is not entitled to a $500,000 credit pursuant to the Pennsylvania Political Subdivision Tort Claims Act, and DENIED in all other respects.

Further, Motorists Mutual’s Motion will be GRANTED such that Court will enter a declaratory judgment that Motorists Mutual is entitled to a credit of $5,100,000 on Mr. Anderson’s UIM claim.

I. Background

This case relates to an October 30, 2012 motor vehicle accident in which Theresa Anderson was killed. ECF No. 19 ¶ 1. After the accident, Mr. Anderson sued the third-party tortfeasors who were involved in the accident. After settling with the third parties, he filed a claim for underinsured motorist (“UIM”) benefits with Motorists Mutual. ECF No. 19 ¶¶ 2-18. Motorists Mutual reviewed Mr. Anderson’s UIM claim and denied [*3]  it on the basis that the value of the claim did not exceed the combined $5,100,000 liability limits of the third-party tortfeasors. Id. ¶ 19.

Mr. Anderson filed a Complaint in the Court of Common Pleas of Allegheny County against Motorists Mutual seeking that the Court find that Mr. Anderson is legally entitled to recover the total amount of underinsured benefits available under the Motorist Mutual Policies. ECF No. 1-2 at 11.

Motorists Mutual, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332, timely removed the action to this Court. Id. ¶¶ 20-21; see ECF No. 1. Motorists Mutual then filed its answer, defenses, and counterclaim. ECF No. 19 ¶ 22; see generally ECF No. 3. Motorists Mutual’s counterclaim requests a declaratory judgment that it is entitled to a credit of $5,600,000² against any award in the UIM case. ECF No. 3 ¶ 38.

Although not discussed in the parties’ summary judgment briefing, this Court finds that the constitutional standing requirements of a “case” or “controversy” are met in this case such that the Court has the ability to issue declaratory judgment. See 28 U.S.C. § 2201(a) (“In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the [*4]  filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”); Ke v. Dipasquale, 828 F. App’x 98, 101 (3d Cir. 2020) (quoting St. Thomas-St. John Hotel & Tourism Ass’n, Inc. v. Gov’t of U.S. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000)) (noting that as a threshold matter, “[a] declaratory judgment or injunction can issue only when the constitutional standing requirements of a ‘case’ or ‘controversy’ are met and … [such standing] exists when there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (internal quotations omitted)).

Following discovery, the parties filed their motions for summary judgment, which are now ripe for disposition.

II. Undisputed Material Facts

Motorists Mutual filed a concise statement of material facts in support of its Motion, ECF No. 19. Mr. Anderson did not oppose any of Motorists Mutual’s facts, and, in his own concise statement of material facts, incorporated all of Motorists Mutual’s material facts by reference. ECF No. 24 ¶ 2. The only addition to Mr. Anderson’s [*5]  concise statement of material fact was that he attached a “complete copy of the Declarations sheet and the Underinsured Motorist Coverage – Part C, PP 74 18, provisions of the Motorist[s] Mutual policy issued” in this case. ECF No. 24 ¶ 2. Thus, it appears to the Court that the parties agree on the undisputed material facts in this case recited below, as they pertain to the cross-motions presently before the Court.

A. The Accident

Theresa Anderson died in a motor vehicle accident that occurred on October 30, 2012 on Second Avenue in the City of Pittsburgh. ECF No. 19 ¶ 1. Wendy Meyers was operating the vehicle in which Theresa Anderson was a passenger at the time of the accident. Id. ¶ 2. The other vehicle involved in the accident was a truck driven by Austin Rummel and owned by M&C Trucking Company. Id. ¶ 3.

B. Applicable Insurance Policies at the Time of the Accident

Wendy Meyers was insured by State Farm Mutual Automobile Insurance Company on a policy of insurance providing $100,000 in liability coverage (the “State Farm Policy”). Id. ¶ 8.

Austin Rummel, M&C Trucking Company and John Muchesko had primary liability limits of $1,000,000 on a policy written by Liberty Mutual Insurance Company [*6]  (“Liberty Mutual”). Id. ¶ 10. They were also insured under an umbrella policy written by Liberty Mutual with liability limits of $4,000,000 (together, with the primarily liability policy, the “Liberty Mutual Policies”). Id. ¶ 11.

Theresa Anderson was insured by Motorists Mutual on a policy providing $100,000 of underinsured motorist coverage (“UIM”) per accident (the “Motorists Mutual Policy”). Id. ¶ 13. She elected stacking of UIM coverage for the two vehicles covered under the policy. Id. ¶ 14. As a result of her election of the stacking option, Ms. Anderson has $200,000 of UIM coverage available for the October 30, 2012 accident. Id. ¶ 15.

C. The Underlying Litigation and Related Settlement

Following the accident, Mr. Anderson filed three actions³ related to the accident, which were all consolidated at GD 14-015587 in the Court of Common Pleas of Allegheny County, Pennsylvania. Id. ¶ 7.

With respect to Wendy Meyers, State Farm paid its policy limit of $100,000 in settlement of Mr. Anderson’s claim. Id. ¶ 9. Mr. Anderson also settled his claim against Austin Rummel, M&C Trucking Company and John Muchesko (the “Rummel Tortfeasors”) for $550,000. Id. ¶ 12. Upon being informed of the [*7]  settlement with the defendants in the third-party action in Allegheny County, Pennsylvania, Motorists Mutual consented to the settlement in accordance with the terms of the Motorists Mutual Policy. Id. ¶ 16 (citing ECF No. 1-2, Mr. Anderson’s complaint stating that “[p]rior to the claims against the third party insurers above, the Plaintiff requested and received from Motorist Mutual[] approvals necessary to meet the policy requirements to settle with the third party carriers and proceed with a UIM claim under the Motorist Mutual Policy”). On June 4, 2020, Mr. Anderson settled and discontinued the consolidated cases. Id. ¶ 17.

D. The Applicable Provision of the Motorists Mutual Policy

As relevant to this case, Motorists Mutual’s UIM endorsement provides that it will pay UIM benefits if “[t]he limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements…” (the “UIM Exhaustion Clause”). Id. ¶ 22; see also ECF No. 24-1 at 3.

III. Legal Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter [*8]  of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017) (internal citations and quotations omitted). “A factual dispute is ‘genuine’ if the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202, (1986)). “A factual dispute is ‘material’ if it ‘might affect the outcome of the suit under the governing law.'” Id. (quoting Anderson, 477 U.S. at 248).

The burden to establish that there is no genuine dispute as to any material fact “remains with ‘the moving party regardless of which party would have the burden of persuasion at trial.'” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (quoting Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987)). That said, “[i]f the non-moving party bears the burden of persuasion at trial, ‘the moving party may meet its burden on summary judgment by showing that the nonmoving party’s evidence is insufficient to carry that burden.'” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998)).

Once the moving party has carried its initial burden, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt [*9]  as to the material facts…. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Thus, while “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor,” Anderson, 477 U.S. at 255, summary judgment “requires the nonmoving party to go beyond the pleadings” and point to “‘specific facts showing that there is a genuine issue for trial.'” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citation omitted). But, while the court must “view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor…to prevail on a motion for summary judgment, the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the [non-movant].” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (internal citations and quotations omitted). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant’s] case, and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 requires the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” [*10]  Celotex, 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

“Where, as here, cross-motions for summary judgment are filed, ‘the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.'” Reynolds v. Chesapeake & Del. Brewing Holdings, LLC, No. 19-2184, 2020 U.S. Dist. LEXIS 83633, at *6 (E.D. Pa. May 12, 2020) (quoting Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016)).

IV. Analysis

A. Motorists Mutual is Entitled to a Credit of the Sum of the Amounts Available Under the State Farm and Liberty Mutual Policies

1. The Parties’ Summary Judgment Arguments

Motorists Mutual seeks summary judgment regarding the amount of credit it should receive on Mr. Anderson’s UIM claim. ECF No. 18. Motorists Mutual contends that it should receive $5,100,000—that is, the sum of the policy limits of (1) Wendy Meyers’ State Farm Policy ($100,000) plus (2) Austin Rummel, M&C Trucking Company and John Muchesko’s Liberty Mutual Policies (a primary liability policy of $1,000,000 and an umbrella policy of $4,000,000). See generally, id.

Mr. Anderson seeks partial summary judgment that unless Motorists Mutual can prove that the Rummel Tortfeasors’ percent of fault equal or exceeded credit 60%, Motorists Mutual is entitled to a credit equal only to the amount Plaintiff was legally entitled to recover from the joint tortfeasors, [*11]  i.e. $650,000—that is, the sum of the amounts actually paid in settlement of the claims (1) Wendy Meyers’ State Farm Policy for $100,000 plus (2) Austin Rummel’s, M&C Trucking Company’s and John Muchesko’s Liberty Mutual Policies for $550,000. See generally, ECF No. 21.

2. The Court Will Apply Pennsylvania Law

As a federal court sitting in diversity jurisdiction, this Court must apply substantive state law. Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Collins v. Mary Kay, Inc., 874 F.3d 176 (3d Cir. 2017). The parties do not dispute that Pennsylvania law applies.

In applying Pennsylvania substantive law, this Court applies “the state law as pronounced by the highest court of the state . . . . However, when the highest court of the state has not addressed an issue, a federal court must predict how the highest state court would resolve the issue,” such as by looking “‘to the opinion of an intermediate appellate court.'” Giehl v. Terex Utilities, No. 3:12-0083, 2012 U.S. Dist. LEXIS 49354, at *25-26 (M.D. Pa. Apr. 9, 2012) (quoting Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148-49 (3d Cir. 1988)).

“In predicting how the highest state court would decide an issue,” the Court looks to “analogous state court cases and ‘[i]n the absence of an authoritative pronouncement by a state’s highest court, … may give serious consideration to the opinion of an intermediate appellate court.” Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010) (citing Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir. 1988)). “If no state supreme or appellate court has resolved the issue, [*12]  the court must ‘look to analogous state court cases . . . [and] scholarly treatises . . . “with an eye toward the broad policies that informed those adjudications, and to the doctrinal trends which they evince.”‘” Bachtell v. Gen. Mills, Inc., 422 F. Supp. 3d 900, 910 n. 4 (M.D. Pa. 2019) (quoting Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010) (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662-63 (3d Cir. 1980)). However, it is not the Court’s “proper role … to lead the state courts in the interpretation of state law.” Hudson v. Eaglemark Sav. Bank, 475 F. App’x 423, 426 (3d Cir. 2012) (citing Manning v. Princeton Consumer Discount Co., 380 F. Supp. 116, 120 (E.D. Pa. 1974)).

3. Pennsylvania Underinsured Motorists Credit for Exhaustion Provisions under Boyle v. Erie

Based on the parties’ briefing and the Court’s own research, it appears that “[t]here is no controlling Pennsylvania Supreme Court decision on the issue of enforcement of exhaustion clauses concerning UIM benefits,” however, the “Pennsylvania Superior Court has decided a number of cases concerning exhaustion clauses in the context of UIM benefits.” Allstate Prop. & Cas. Ins. Co. v. Banks, No. 10-241, 2010 U.S. Dist. LEXIS 80048, at *20-21 (W.D. Pa. Aug. 9, 2010) (Mitchell, M.J.). The parties’ summary judgment motions are centered around one such Pennsylvania Superior Court case—Boyle v. Erie—and its applicability to the present case.

In Boyle, the Boyles were involved in an accident with two third parties, Speelman and Hitchcock, and brought a civil action for injuries against both Speelman and Hitchcock. 441 Pa. Super. 103, 656 A.2d 941, 942 (Pa. Super. 1995). The parties settled by agreement with Speelman for [*13]  $15,000 (the limits of Speelman’s liability coverage), and with Hitchcock for $150,000 (50% of Hitchcock’s liability coverage). Id. The Boyles then made a claim under the UIM provisions of their own policy with their insurer, who denied coverage because the Boyles had not exhausted the limits of Hitchcock’s liability policy and because the Boyles had settled with the third-party tortfeasors without defendant insurer’s consent. Id.

The applicable UIM policy by the Boyle’s insurer contained the following exhaustion clause, which stated that:

With respect to underinsured motor vehicles, we will not be obligated to make any payment until the limits under all bodily injury insurance policies and liability bonds applicable at the time of the accident, including other than motor vehicle insurance, have been exhausted by payment of settlements or judgments.

Id.

The Pennsylvania Superior Court in Boyle found that to strictly enforce a policy’s exhaustion language that required the insurance policies be exhausted by payment of settlements or judgments prior to allowing an insured seek UIM benefits may prevent an “injured insured from accepting a reasonable, third party settlement and require that [*14]  the third party litigation be pursued to final judgment.” Id. at 943. With respect to the insured, a strict enforcement of the clause would both (1) delay and lessen the insured’s recovery, thereby undercutting the legislative intent behind underinsured benefits and (2) unnecessarily burden the judicial system. Id.

With respect to the UIM insurer, the Superior Court interpreted such an exhaustion clause as a protection by an insurance company “against a demand by its insured to fill the ‘gap’ after a weak claim has been settled for an unreasonably small amount.” Id. Such an interpretation prevents the insured from having the “absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier.” Id.

Thus, the Superior Court reconciled the conflicting interests of insured and insurer by construing the exhaustion requirement as a “threshold requirement and not a barrier to underinsured motorist insurance coverage.” Id. Under Boyle, “when the insureds settled their claim against the tortfeasor’s liability carrier for less than policy limits, the [UIM] carrier was entitled to compute its payment to its injured [*15]  insureds as though the tortfeasor’s policy limits had been paid.” Id. at 943-44. According to the Pennsylvania Superior Court, this approach balanced the relevant policy interests by providing that “the insureds will not be allowed [UIM] benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of other drivers involved in the accident; and their insurer will, in any event, be allowed to credit the full amounts of the tortfeasors’ liability coverages against the insureds’ damages.” Id.

Boyle‘s holding has been applied in subsequent Pennsylvania Superior Court cases and in federal court cases. Allstate Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 80048, at *23 (collecting cases and noting that federal courts have “decided that Boyle is an accurate indicator of Pennsylvania law holding that insureds may only recover underinsured motorist benefits to the extent that their awarded damages exceed the aggregate of coverage afforded by the liability carriers of other involved motorists.” (internal quotation omitted)).

Motorists Mutual argues that Boyle v. is dispositive in this case, and that it is entitled to a credit equal to aggregate amount the tortfeasors policy limits—$5,100,000. ECF No. 19.

Mr. Anderson contends that  [*16] Boyle is inapplicable for two reasons: (1) the underlying competing policy concerns in Boyle are no longer applicable because of the Pennsylvania Fair Share Act, which was enacted in 2011 (42 Pa. C.S. § 7102), and established comparative negligence principles replacing the joint and several liability principles that existed when Boyle was decided; and (2) the plain language of the Motorists Mutual Policy here—requiring exhaustion of “any” of the third party limits of liability—differs from that of Boyle which required the exhaustion of “all” of the third party limits. ECF No. 21.

a. The Court Need Not Decide Whether the Pennsylvania Fair Share Alters Boyle‘s Holding

The Court turns to Mr. Anderson’s first argument, that this case is distinguishable from Boyle because of the enactment of the Pennsylvania Fair Share Act in 2011 (42 Pa. C.S. § 7102). Mr. Anderson contends that under the Fair Share Act, a joint tortfeasor is only liable to pay for damages caused by the negligence of another joint tortfeasor if the former tortfeasor’s liability equals or exceeds 60%. ECF No. 21 at 8. Following such logic, Mr. Anderson contends that Motorists Mutual must prove that the Rummel Tortfeasors’ liability equals or exceeds 60% to claim [*17]  the full credit of $5,000,000 under the Liberty Mutual Policies. ECF No. 21 at 11-12. If unable to do so, Motorists Mutual should only be entitled to a credit of the amount paid pursuant to the settlements ($650,000 in total), because Mr. Anderson would have been unable to recover the full amount of damages from the Rummel Tortfeasors under the Pennsylvania Fair Share Act in 2011.

Even assuming the enactment of the Pennsylvania Fair Share Act altered Boyle‘s holding, Mr. Anderson’s argument still fails because it is not clear that the Pennsylvania Fair Share Act applies where the plaintiff’s negligence is not in question, as is the case here.

This Court “give[s] serious consideration to the opinion of an intermediate appellate court.” Holmes, 598 F.3d at 118. Specifically, the Court takes note of the Pennsylvania Superior Court’s historical and textual analysis of the Fair Share Act in Spencer v. Johnson. 2021 PA Super 48, 249 A.3d 529 (Pa. Super. 2021). In that case, the Superior Court found, as an alternative holding, that for the “Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.” Id. at 559. Because the plaintiff’s negligence was not at issue in the case, the Superior Court, in the alternative, would have found that the defendants were still “jointly [*18]  and severally liable for [plaintiff’s] injuries. Id. at 559-60 (citing Baker v. AC&S, Inc., 562 Pa. 290, 755 A.2d 664, 669 (Pa. 2000) (under the theory of joint and several liability, a plaintiff “may recover the entire damages award from only one of the joint tortfeasors.”)).

Mr. Anderson contends that because Superior Court’s primary conclusion was that the “trial court erred in failing to grant [plaintiff’s] motion to mold the verdict pursuant to the Fair Share Act…,” 249 A.3d at 557 (emphasis added), and remanded the case on the issue, the Court’s alternative holding that the Fair Share Act did not apply when plaintiff’s negligence is not at issue is not dispositive. ECF No. 30 at 3-5.

The Court’s own research has revealed another Superior Court case issued while the pending summary judgment briefing was still open in this case, which is also instructive. Although non-precedential, the Superior Court in Snyder v. Hunt ordered the trial court to direct the jury to determine and award damages against co-defendants jointly and severally, because defendants “did not appear to allege, much less to prove, that [plaintiff] was contributorily negligent,” and thus, “the Fair Share Act, 42 Pa.C.S.A. § 7102, does not shield them from the common law of joint and several liability under Spencer.” [*19]  No. 851 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 2993, at *14-15 (Pa. Super. Nov. 10, 2021).

Thus, the Court predicts that because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the plaintiff’s negligence is not in issue, and, as a result, that the traditional principles of joint and several liability would control.

4. Whether the Language of the Exhaustion Clause Renders Boyle v. Erie‘s Holding Inapplicable

Having found that the Fair Share Act is not implicated by this case, the Court turns to Mr. Anderson’s remaining argument regarding the text of the UIM Exhaustion Clause. Specifically, Mr. Anderson highlights the difference between the exhaustion clause in the Boyle policy, which stated that the insured was required to exhaust “all” liability policies, and the UIM Exhaustion Clause in this case, which requires the exhaustion of “any” policy. ECF No. 21 at 9; ECF No. 24-1 at 3. The parties dispute the meaning of the word “any” without any citations to case law or principles of interpretation.

a. Pennsylvania Principles of Contractual Interpretation for Insurance Contracts

As recently summarized in Kurach v. Truck Insurance Exchange, Pennsylvania’s principles [*20]  of contractual interpretation for insurance contacts are as follows:

In interpreting the relevant provisions of the insurance policies …, we are guided by the polestar principle that insurance policies are contracts between an insurer and a policyholder…. Thus, we apply traditional principles of contract interpretation in ascertaining the meaning of the terms used therein…. This requires our Court to effectuate the intent of the contracting parties as reflected by the written language of the insurance policies…. In this regard, the language of the policy must be considered in its entirety.

If policy terms are clear and unambiguous, then we will give those terms their plain and ordinary meaning, unless they violate a clearly established public policy…. Conversely, when a provision of a policy is ambiguous, the policy provision is to be construed in favor of the policyholder and against the insurer, as the insurer drafted the policy and selected the language which was used therein…. Policy terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.

235 A.3d 1106, 1116 (Pa. 2020) (internal citations and quotations omitted).

The Court looks first [*21]  to the plain language of the UIM Exhaustion Clause, and specifically the word “any.” “[I]n Pennsylvania, when words of common usage are used in an insurance policy, they should be construed in their natural, plain and ordinary sense…. The Court may also look to the dictionary definition.” Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 165 (3d Cir. 2011) (internal citation omitted). The Pennsylvania Supreme Court’s interpretation of the word “any” in the context of the court’s statutory interpretation is also instructive. See id.

b. The Definition of the Word “Any” Is Determined by the Context

In analyzing a statute, the Pennsylvania Supreme Court recently described the definitional issues surrounding the word “any”:

The word “any” … has two commonly accepted alternative meanings in the English language which are diametrically opposed. Black’s Law Dictionary recognizes this “diversity of meaning,” which is dependent on the context in which “any” is used in a statute, as well as the statute’s overarching subject; thus, “any” could mean “‘all’ or ‘every,’ as well as ‘one.'” Black’s Law Dictionary 94 (6th ed. 1991). This definitional dichotomy is also recognized by dictionaries of the English Language. See Webster’s New Universal Unabridged Dictionary [*22]  (2001) (defining “any” as “one,” and, alternatively, as “every,” or “all”); The American Heritage Dictionary 117 (2nd. coll. ed. 1982) (enumerating varying definitions of “any” to include “one or another without restriction or exception,” or “[t]he whole amount of; all”).

Snyder Bros. v. Pa. PUC, 650 Pa. 49, 198 A.3d 1056, 1072 (2018) (internal quotations and cited omitted); see also id. (citing Benat v. Mut. Ben. Health & Acci. Asso., 191 Pa. Super. 547, 159 A.2d 23 (1960), aff’d, 402 Pa. 208, 166 A.2d 880 (Pa. 1961), which noted that when construing the word “any” in an insurance policy, “the word ‘any’ is defined by Webster as ‘one indifferently out of a number.’ It is an indefinite pronominal adjective used to designate things in a general way without pointing out any one in particular…. The word implies singularity in number, or selectivity among a number…. It is therefore apparent that the word ‘any’ is not susceptible of a categorical definition meaning ‘all’ or ‘every’….. The significance of the word “any” is discoverable in its context….”). Following this approach, the Court will determine whether the meaning of “any” is ambiguous when read in the overall context of the UIM Exhaustion Clause.

c. “Any” as Used in the UIM Exhaustion Clause Unambiguously Means “All”

The Court now turns to the context of “any” as used in the UIM Exhaustion Clause [*23]  in this case, and finds, for the reasons that follow, that the meaning of “any” in the UIM Exhaustion Clause, when read in the overall context of the UIM Exhaustion Clause, unambiguously means “all.”

In Standard Fire Ins. Co. v. Wagner, the United States District Court for the Middle District of Pennsylvania was confronted with an exhaustion clause containing “any” instead of “all.” 3:05-0580, 2006 U.S. Dist. LEXIS 42853, at *7 (M.D. Pa. June 26, 2006) (“In Boyle, the exhaustion clause spoke of exhausting the liability insured of ‘all’ responsible motor vehicles,” whereas in Standard Fire “the language of the policy speaks of ‘any’ liability policy.”). Having acknowledged the textual difference between the policy at issue and the policy in Boyle, the Middle District nonetheless considered “the context of this clause and the related application for underinsured motorist benefits…,” and found that the purpose of such clause is the same as the clause in Boyle. Id. Thus, the UIM insurer was “entitled to a credit for the liability limits of the tortfeasors against whom [the insureds] pursued claims and received settlements.” Id.

The Court’s own research has uncovered other cases that have not directly addressed the difference between “any” versus “all,” but [*24]  have nonetheless applied, without comment on the issue, Boyle‘s principles to an exhaustion clause that contained the words “any” instead of “all.” See Chambers v. Aetna Cas. & Sur. Co., 442 Pa. Super. 155, 658 A.2d 1346, 1347 (1995) (applying Boyle to a single tortfeasor scenario to a policy requiring exhaustion of “the limits of liability under any applicable bodily injury…” (emphasis added)); Chudyk-Heishman v. Liberty Mut. Ins. Co., No. 1:05-CV-1559, 2006 U.S. Dist. LEXIS 16610, *8-9, *14-16 (M.D. Pa. Apr. 3, 2006) (rejecting public policy challenge to arbitration award providing for credit for the full policy limits of joint tortfeasor with whom the insured had settled for less that policy limits when UIM policy required exhaustion of “the limits of liability under any applicable bodily injury…” (emphasis added)).

The Court now turns to the context of the UIM Exhaustion Clause at issue here to discern whether “any” means “one of many” or “all.” The UIM Exhaustion Clause requires the exhaustion of something before Motorists Mutual is obligated to pay UIM benefits. By providing a precondition, notably the receipt of a certain sum from third parties, the UIM Exhaustion Clause protects an insurance company “against a demand by its insured to fill the ‘gap’ after a weak claim has been settled for an unreasonably small amount.” Boyle, 656 A.2d at 943. If the Court interprets “any” to mean “one of many” [*25]  rather than “all” in the context of the UIM Exhaustion Clause, we would fail to address the Superior Court’s concern in Boyle. See id. (seeking to prevent the insured from having “absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier.”). Under Mr. Anderson’s proposed reading of the clause, a plaintiff could settle a single (of many) third party tortfeasor liability policies for 100% of the limit of liability, and then turn to the UIM carrier to recover the amounts under the UIM policy instead of seeking to recover from (or settling for a de minimus amount with) the other responsible joint tortfeasors.

Having reviewed the plain language of the Motorists Mutual Policy and the UIM Exhaustion Clause, and the meaning of the term “any” in context, as instructed by the Pennsylvania Courts, as well as the Middle District of Pennsylvania’s interpretation of a substantially similar clause in Standard Fire,⁴ the Court predicts that the Pennsylvania Supreme Court would interpret “any” to mean “all” in the UIM Exhaustion Clause, and finds that Motorists Mutual is “entitled to a credit for the liability limits [*26]  of the tortfeasors against whom [the insureds] pursued claims and received settlements.” Standard Fire Ins. Co., 2006 U.S. Dist. LEXIS 42853, at *10-11.

V. Conclusion

For the foregoing reasons, and having viewed the facts in the light most favorable to Motorists Mutual as the non-moving party, Mr. Anderson’s Partial Motion for Summary Judgment, ECF No. 20, will be GRANTED in part, such that Motorists Mutual is not entitled to a credit of $500,000 based upon the limit of the City of Pittsburgh’s liability under the Pennsylvania Political Subdivision Tort Claims Act, and DENIED in all other respects.

Additionally, for the same reasons, and having viewed the facts in the light most favorable to Mr. Anderson as the non-moving party, Defendant Motorists Mutual’s Motion for Summary Judgment, ECF No. 17 will be GRANTED, such that Court will enter declaratory judgment that Motorists Mutual is entitled to a credit of $5,100,000 on Mr. Anderson’s UIM claim.

DATED this 22nd day of June, 2022.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

ORDER

AND NOW this 22nd day of June, 2022, upon consideration of Defendant Motorists Mutual Insurance Company’s Motion for Summary Judgment, ECF No. 17, and Plaintiff [*27]  Douglas J. Anderson’s (as the administrator of the Estate of Theresa R. Anderson, and in his own right) Partial Motion for Summary Judgment, ECF No. 20, and the briefing and evidence presented in support of and opposition thereto, and as set forth in the Court’s Opinion regarding the same, ECF No. 32, it is hereby ORDERED that:

1. Defendant Motorists Mutual Insurance Company’s Motion for Summary Judgment is HEREBY GRANTED such that Court will enter a declaratory judgment that Motorists Mutual is entitled to a credit of $5,100,000 on Mr. Anderson’s UIM claim; and

2. Mr. Anderson’s Partial Motion for Summary Judgment, ECF No. 20, is HEREBY GRANTED in part, such that Motorists Mutual is not entitled to a credit of $500,000 based upon the limit of the City of Pittsburgh’s liability under the Pennsylvania Political Subdivision Tort Claims Act, and HEREBY DENIED in all other respects.

DATED this 22nd day of June, 2022.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

End of Document

---

¹ Motorists Mutual contends that it is incorrectly identified as “Motorist Mutual Insurance Company.” ECF No. 17 at 1.

² Motorists Mutual initially sought a declaratory judgment that it is entitled to a credit of $5,600,000 against Mr. Anderson’s claim. ECF No. 3 ¶ 38. However, Mr. Anderson’s Partial Motion for Summary Judgment contends that Motorists Mutual is not entitled to a credit of $500,000 based upon the limit of the City of Pittsburgh’s liability under the Pennsylvania Political Subdivision Tort Claims Act, ECF No. 21 at 13, and Motorists Mutual concedes that it is not entitled such credit. ECF No. 29 at 5-6; see also ECF No. 19 ¶ 22 (Motorists Mutual’s concise statement characterizing its counterclaim as seeking declaratory judgment that it is entitled to a credit of $5,100,00 against any award in the UIM case). Thus, the Court will GRANT Mr. Anderson’s Motion in part on the issue of the City of Pittsburgh credit, and finds that Motorists Mutual is not entitled to a $500,000 credit pursuant to the Pennsylvania Political Subdivision Tort Claims Act.

³ The first action was against M&C Trucking Company, John Muchesko, Austin Rummel, the City of Pittsburgh, Pennsylvania Department of Transportation, and Wendy Meyers at GD 14-015587 in the Court of Common Pleas of Case Allegheny County, Pennsylvania. ECF No. 19 ¶ 4.

The second action was against Pennsylvania Department of Transportation (PennDOT) at GD 14-017380 in the Court of Common Pleas of Allegheny County, and PennDOT subsequently joined Wendy Meyers, City of Pittsburgh, M&C Trucking Company, John Muchesko, and Austin Rummel as additional defendants. Id. ¶ 5.

The third action was against M&C Trucking Company, John Muchesko, and Austin Rummel at GD 14-019520, and those defendants subsequently joined the City of Pittsburgh, Commonwealth of Pennsylvania Department of Transportation, and Wendy Meyers as additional defendants. Id. ¶ 6.

⁴ Compare Standard Fire Ins. Co., 2006 U.S. Dist. LEXIS 42853, at *5 (“[W]e will pay Underinsured Motorists Coverage only if . . . the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by the payment of judgments or settlements…”) with ECF No. 24-1 at 3 (“We will pay the [underinsured motor vehicle] coverage only if … [t]he limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements…”).

United States District Court for the Middle District of Pennsylvania

June 10, 2022, Decided; June 10, 2022, Filed

No. 4:21-CV-00177

Reporter

2022 U.S. Dist. LEXIS 104532 *

UNITED FINANCIAL CASUALTY COMPANY, Plaintiff, v. MID STATE LOGISTICS and CHARLES E. RANKIN, Defendants.

Core Terms

independent contractor, insured, commercial motor vehicle, coverage, summary judgment, includes, driving, second sentence, damages, driver

Counsel:  [*1] For United Financial Casualty Company, Plaintiff: Matthew A. Meyers, Taylor M Davis, LEAD ATTORNEYS, Burns White LLC, Pittsburgh, PA.

For Charles E. Rankin, Defendant: James C. Haggerty, Hgsk, Philadelphia, PA.

Judges: Matthew W. Brann, United States District Judge.

Opinion by: Matthew W. Brann

Opinion

MEMORANDUM OPINION

This insurance coverage dispute emerges from a May 2018 semi-trailer accident. At the time, Charles Rankin and Clay Rosebrooks were team-driving on Interstate 4 in Longwood, Florida—Rankin at the wheel, Rosebrooks in the sleeper—when they careened into the guardrail and overturned. To recover damages for his resulting injuries, Rosebrooks and his wife sued Rankin and the trucking company, the McClure, Pennsylvania-based Mid State Logistics, in the Court of Common Pleas of Snyder County, Pennsylvania. Just over a year later, Mid State Logistics’ commercial auto insurer, United Financial Casualty Company, sought a declaration from this Court on its duty to defend Mid State Logistics and Rankin in the state court suit.

Under its insurance agreement with Mid State Logistics, United Financial Casualty does not have to defend and indemnify Mid State Logistics against claims brought by an “employee.” The parties [*2]  agree that, though undefined in the agreement, this term is governed by 49 C.F.R. § 390.5, which provides that an employee is anyone “who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle,” before then clarifying that “[s]uch term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) . . . .”

So when Rosebrooks, an independent contractor, swapped spots with Rankin did he cease to be an employee? This Court finds that he did not.

I. LEGAL STANDARD

This question comes before the Court through United Financial Casualty’s motion for summary judgment on its complaint seeking declaratory judgment regarding the scope of it and Mid State Logistics’ insurance agreement.¹ Each legal standard is addressed in turn.

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”² Material facts are those “that could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence exists from which a rational [*3]  person could conclude that the position of the person with the burden of proof on the disputed issue is correct.”³ A defendant “meets this standard when there is an absence of evidence that rationally supports the plaintiff’s case.”⁴ Conversely, to survive summary judgment, a plaintiff must “point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law.”⁵

The party requesting summary judgment bears the initial burden of supporting its motion with evidence from the record.⁶ When the movant properly supports its motion, the nonmoving party must then show the need for a trial by setting forth “genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”⁷ The nonmoving party will not withstand summary judgment if all it has are “assertions, conclusory allegations, or mere suspicions.”⁸ Instead, it must “identify those facts of record which would contradict the facts identified by the movant.”⁹

In assessing “whether there is evidence upon which a jury can properly proceed to find a verdict for the [nonmoving] party,”¹⁰ the Court “must view the facts [*4]  and evidence presented on the motion in the light most favorable to the nonmoving party.”¹¹ Moreover, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),” the Court may “consider the fact undisputed for purposes of the motion.”¹² Finally, although this Court “need consider only the cited materials, . . . it may consider other materials in the record.”¹³

B. Declaratory Judgment and the Court’s Role in Interpreting Insurance Agreements

The Declaratory Judgment Act provides that “[i]n case of actual controversy within its jurisdiction . . . any court in the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”¹⁴ Included in this power is the right of a court to determine whether an insurer has a duty to defend an underlying action—and if there is no duty to defend, there can be no duty to indemnify.¹⁵

Under Pennsylvania law, “[a] court’s first step in a declaratory judgment action concerning insurance coverage is to determine the scope of the policy’s coverage.”¹⁶ In doing [*5]  so, this Court faces a question of law—the interpretation of an insurance contract—and must endeavor “to ascertain the intent of the parties as manifested by the language of the written instrument.”¹⁷ I must read the policy as a whole and construe the contract “in accordance with the plain meaning of the terms.”¹⁸ If the language of a policy is clear and unambiguous, I must enforce that language; ambiguous language, however, must be construed against the insurer and in favor of the insured.¹⁹

“After determining the scope of coverage, the court must examine the complaint in the underlying action to ascertain if it triggers coverage.”²⁰ “It is well established that an insurer’s duties under an insurance policy are triggered by the language of the complaint against the insured.”²¹ Under this approach, the “question of whether a claim against an insured is potentially covered is answered by comparing the four corners of the insurance contract to the four corners of the complaint.”²² This principle, known as the four-corners rule, holds that “[a]n insurer is obligated to defend its insured if the factual allegations of the complaint on its face encompass an injury that is actually or potentially [*6]  within the scope of the policy.”²³ Pennsylvania provides for no exception to this rule.²⁴

II. FACTS

The on-the-ground facts are simple: Rankin and Rosebrooks were driving donuts from Shippensburg, Pennsylvania to Lakeland, Florida, when at 3:58 a.m. on May 3, 2018, with Rosebrooks in the sleeper, they crashed into a guard rail and overturned, allegedly because of Rankin’s negligent driving.²⁵

The business and employment structures that underlie the movement of goods across our roadways, however, trend wonky. And this case is no exception. When Rankin, working for either Mid State Logistics or Rosebrooks—the fact remains in dispute—careened into the guardrail, he was driving a vehicle owned by Rosebrooks, which Rosebrooks in turn leased to Mid State Logistics.²⁶ Under their agreement, Rosebrooks was “responsible for providing his own workers compensation insurance, employment and income taxes, etc.,” and he also assumed “complete responsibility” for any of his own drivers or employees.²⁷ While for its part, Mid State Logistics acknowledged that it had “a legal obligation and responsibility to maintain liability and cargo insurance coverage for the protection of the public as required by Federal [*7]  Highway Administration regulations.”²⁸

At the time of the accident, Mid State Logistics met this obligation through a United Financial Casualty-issued Progressive Commercial Auto Policy.²⁹ The policy broadly provides that “if [Mid State Logistics] pay[s] the premium for liability coverage for the insured auto involved, [United Financial Casualty] will pay damages, other than punitive or exemplary damages, for bodily injury, property damage, and covered pollution cost or expense . . . . [and] will settle or defend, at [United Financial Casualty’s] option, any claim or lawsuit for damages covered by this Part I.”³⁰

But United Financial Casualty’s coverage obligations are cabined by exclusions, a few of which are relevant here. First, the agreement’s Auto Form provides that coverage—and therefore the duty to defend—does not extend to “Bodily injury to . . . [a]n employee of any insured arising out of or within the course of . . [t]hat employee’s employment by any insured; or . . . [p]erforming duties related to the conduct of any insured’s business . . . .”³¹ Second, this same Form provides that United Financial Casualty need not cover “Bodily injury to . . . a fellow employee of [*8]  an insured injured while within the course of their employment or while performing duties related to the conduct [Mid State Logistics’] business.”³² And finally, the agreement includes the federally mandated MCS-90 Endorsement, which provides that the “insurance as is afforded for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment . . . .”³³

III. ANALYSIS

Despite the expansive coverage carve-outs for harm caused to employees—as opposed to members of the broader driving public—the policy does not, as I noted at the outset, define the term.³⁴ Still, this undefined term creates no controversy in one respect: the parties agree that a Federal Motor Carrier Safety Administration regulation controls the agreement.³⁵ The disagreement is instead about whether Rosebrooks meets the section’s strictures.

Tile 49 C.F.R. § 390.5‘s defines “employee” across three sentences. It begins broadly: “Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.” The second and third sentence then provide context. One notes inclusions: [*9]  “Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.” The other provides exclusions: “Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.”

In arguing that Rosebrooks was not an employee under the regulation, Rankin emphasizes the second sentence. He contends that the Complaint alleges that Rosebrooks was an independent contractor and that he was not “in the course of operating” the semi-trailer, as he was asleep in the cabin when the accident occurred.³⁶ So based his construction of the regulation—where an independent contractor is only considered an employee when they are operating a commercial motor—the policy’s employee exclusion does not apply.³⁷

United Financial Casualty, however, contends that this approach is myopic, overemphasizing—or outright misinterpreting—the negative implications of the examples provided in the second [*10]  sentence, while giving no weight to the words provided in the first. In its view, Rosebrooks is either an employee because he was employed by Mid State Logistics and directly affected commercial motor vehicle safety (thus satisfying the requirements set out in the first sentence). Or he is an employee because he was operating the semi-trailer as a sleeping member of a team-driving duo (thus satisfying the requirements of the second sentence under a more cabined approach).³⁸

The parties’ arguments are nothing new. While this interpretative issue has not yet been addressed in this District, or in this Circuit, a host of other courts have tackled it. Some have sided with Rankin.³⁹ But still more have favored United Financial Casualty’s approach.⁴⁰ And so does this Court.

The decisions that Rankin marshals in support of his position can be traced to Pouliot v. Paul Arpin Van Lines.⁴¹ There, the court considered a claim involving an independent contractor who was rendered a paraplegic when a device fell on him while he was unloading a truck.⁴² Whether he could recover damages through his suit or would instead be limited to recover under Rhode Island’s worker compensation scheme [*11]  hinged on his status under § 390.5.⁴³ In finding that he did not qualify as an employee, the court reasoned that independent contractors are employees only when operating a commercial motor vehicle.⁴⁴ The court appears to reach this result by applying negative-implication canon to the regulation’s second sentence, which provides that the term “includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) . . . .”⁴⁵ In short, the parenthetical inclusion implies the exclusion of all other things independent contractor.⁴⁶ I respectfully disagree.

Like many other courts, I find it difficult to square Pouliot‘s bifurcating reading with one of the statute’s primary purposes: eliminating the distinction between independent contractors and employees to ensure that injured members of the public are not left without a recovery because of chicanerous corporate structuring.⁴⁷ But that alone is not a sin.

As I see it, the Pouliot approach fails because it misinterprets the word “include”—as in, “Such term includes a driver of a commercial motor [*12]  vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) . . . .”⁴⁸ The Pouliot court treated the term as exhaustive, not exemplary.⁴⁹ And this is an error; “the word include does not ordinarily introduce an exhaustive list,” that task is instead left to words like “‘consists of’ or ‘comprises.'”⁵⁰ So the negative-implication canon—which is appropriate “only when . . . the thing specified . . . can reasonably be thought to be an expression of all that shares in the grant”—is inapplicable because “includes” is, presumptively, not an expression of all.⁵¹ Thus, under the plain meaning of the second sentence, we can say, affirmatively, that an independent contractor operating a commercial motor vehicle is an employee, but nothing more.

Now, some courts have found that a person need not be driving to be operating the semi-trailer.⁵² But under my reading of the regulation, this is not a question that must be answered. Rosebrooks’ employee status is settled by the qualifications posited in § 390.5‘s first sentence: Do his pleadings show that he was employed by an employer? And do they further show that he directly affected commercial motor vehicle [*13]  safety in the course of his employment?⁵³

The answer to both questions here is yes. Rosebrooks’ pleadings show that he was employed by Mid State Logistics and was injured while serving as one-half of the driving team—a role that inarguably impacts commercial motor vehicle safety.⁵⁴ As a result, Rosebrooks is an employee under 49 C.F.R. § 390.5. United Financial Casualty Company therefore has no duty to defend or indemnify Rankin or Mid State Logistics under the commercial auto policy. An appropriate [*14]  Order follows.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY ORDERD that:

1. Plaintiff United Financial Casualty Company’s Motion for Summary Judgment (Doc. 6) is GRANTED.

2. United Financial Casualty Company has no duty to defend or indemnify Defendants Mid State Logistics LLC or Charles E. Rankin in the lawsuit pending at Docket No. CV-159-2021 in the Court of Common Pleas of Snyder County, Pennsylvania.

3. The Clerk of Court is directed to close this case.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

End of Document

---

¹ See Doc. 1 (Complaint for Declaratory Judgment); Doc. 6 (Motion for Summary Judgment).

² Fed. R. Civ. P. 56(a).

³ EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

⁴ Clark, 9 F.3d at 326.

⁵ Id.

⁶ Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

⁷ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

⁸ Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

⁹ Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (quoting Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

¹⁰ Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 448, 20 L. Ed. 867 (1871)).

¹¹ Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

¹² Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur, Inc., 909 F.3d 604, 613-14 (3d Cir. 2018).

¹³ Fed. R. Civ. P. 56(c)(3).

¹⁴ 28 U.S.C. § 2201(a).

¹⁵ ACandS, Inc. v. Aetna Cas. & Sur. Co., 666 F.2d 819, 823 (3d Cir. 1981); Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 250 (3d Cir. 2019).

¹⁶ General Accident Ins. Co. of Am. v. Allen, 547 Pa. 693, 692 A.2d 1089 (1997).

¹⁷ Am. Auto. Ins. Co. v. Murray, 658 F.3d 311, 320 (3d Cir. 2011).

¹⁸ Id.

¹⁹ Id. at 321.

²⁰ Allen, 547 Pa. at 706.

²¹ Kvaerner Metals Div. of Kvaerner U.S., Inc., 589 Pa. 317, 908 A.2d 888, 896 (Pa. 2006).

²² Lupu v. Loan City, LLC, 903 F.3d 382, 389 (3d Cir. 2018) (internal quotation marks omitted) (quoting Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 606 Pa. 584, 2 A.3d 526, 541 (Pa. 2010)).

²³ Jerry’s Sport Ctr., 2 A.3d at 541 (citations omitted).

²⁴ Lupu, 903 F.3d at 391 (quoting Burchick Constr. Co. v. Harleysville Preferred Ins. Co., 2014 Pa. Super. Unpub. LEXIS 909, 2014 WL 10965436, at *8 (Pa. Super. 2014)) (“Pennsylvania courts have identified no exception to the time-honored rule”); Kiely on Behalf of Feinstein v. Phila. Contributionship Ins. Co., 2019 PA Super 90, 206 A.3d 1140, 1146 (Pa. Super. 2019) (“We do not consider extrinsic evidence.” (citations omitted)).

²⁵ Doc. 12-6 at 6-7 (Third Amended Complaint).

²⁶ Doc. 6-1 ¶¶ 6, 12; Doc. 12-4 ¶¶ 6, 12.

²⁷ Doc. 6-1 ¶ 8; Doc. 12-4 ¶ 8; see also Doc. 1-1 at 17.

²⁸ Doc. 6-1 ¶ 7; Doc. 12-4 ¶ 7; see also Doc. 1-1 at 17.

²⁹ Doc. 6-1 ¶ 16; Doc. 12-4 ¶ 16. The parties note that Clay Rosebrooks is not listed as one of the ten rated drivers under the policy. United Financial Casualty contends that the name “Clay Borne” was intended to identify Rosebrook, whose full name is Clayborne George Rosebrooks, Jr., and emphasizes that the semi-trailer involved in the accident, a 2004 Kenworth that Rosebrooks leased to Mid State Logistics, is listed on the policy declarations. Doc. 6-1 ¶¶ 18-19. While he admits that the policy identifies Rosebrooks semi-trailer, Rankin denies that “Clay Borne” refers to Rosebrooks and contends that this driver information should have been updated. Doc. 12-4 ¶¶ 18-19. This poor record keeping does not, in my mind, impact the outcome one way or the other.

³⁰ Doc. 6-1 ¶ 22; Doc. 12-4 ¶ 22.

³¹ Doc. 6-1 ¶ 23; Doc. 12-4 ¶ 23.

³² Id.

³³ Doc. 6-1 ¶¶ 28-29; Doc. 12-4 ¶¶ 28-29.

³⁴ Doc. 6-1 ¶ 25; Doc. 12-4 ¶ 25,

³⁵ See Doc. 7 at 7-8; Doc. 12-5 at 9-10; Doc. 14 at 2.

³⁶ Doc. 12-5 at 9-15; see Doc. 12-6 at 7.

³⁷ Id. at 9.

³⁸ Doc. 7 at 16-17.

³⁹ Pouliot v. Paul Arpin Van Lines, Inc., 292 F. Supp. 2d 374, 376-79, 385 (D. Conn. 2003) (finding that an independent contractor, who was injured while unloading truck, was not operating a motor vehicle and therefore was not an employee under § 390.5); Walker v. Transportation Int’l Movers, Inc., 2007 U.S. Dist. LEXIS 86867, 2007 WL 4180698, at *1-2, *4 (D. Or. Nov. 21, 2007), adopting report and recommendation, (citing Pouliot, 292 F. Supp. 2d at 377-83) (finding that an independent contractor, who was alleged to have punched another driver during an argument outsider a customer’s house, was not operating a vehicle and therefore was not an employee under § 390.5); Great W. Cas. Co. v. Nat’l Cas. Co., 53 F. Supp. 3d 1154, 1181-82 (D. N.D. 2014) (Miller, M.J) (finding that, while the case was determined on state law grounds, an independent contractor, who was standing by while his trailer was being repaired, was not operating a vehicle and therefore was not as an employee under § 390.5), aff’d on other grounds, 807 F.3d 952 (8th Cir. 2015).

⁴⁰ Ooida Risk Retention Group, Inc. v. Williams, 579 F.3d 469, 471, 474-76 (2009) (finding that both members of a driving team, despite one also qualifying as an employer, were employees under § 390.5); Consumers Cnty. Mut. Ins. Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362, 363-64, 367, 367 n.8 (5th Cir. 2002) (finding that an independent contractor member of a driving team, who was injured while off-duty in the sleeper, was an employee under § 390.5); White v. Excalibur Ins. Co., 599 F.2d 50, 53 (5th Cir. 1979) (finding that both members of a driving team, whether resting or at the wheel, are statutory employees during the drive); Canal Ins. Co. v. Moore Freight Servs., 2015 U.S. Dist. LEXIS 77426, 2015 WL 3756840, at *4 (E.D. Tenn. June 16, 2015) (finding that an independent contractor, who died of heart failure while inspecting smoking brakes on the side of the highway, was operating a commercial vehicle under § 390.5); Progressive Mountain Ins. Co. v. Madd Transp., LLC, 2015 U.S. Dist. LEXIS 39558, 2015 WL 1419486, at *1, *6 (S.D. Ga. Mar. 27, 2015) (finding that an independent contractor, who was injured at a loading station when metal pipes fell from the trailer and struck him, was an employee under § 390.5 because he “was working as a truck driver . . . at the time of the incident”); Lancer Ins. Co. v. Newman Specialized Carriers, Inc., 903 F. Supp. 2d 1272, 1274-81(N.D. Ala. 2012) (declining to follow Pouliot, 292 F. Supp. 2d 374, and finding that an independent contractor, who was injured while unloading cargo from his tractor trailer, was an employee under § 390.5 because he was “hired as a driver of a commercial vehicle”); United Fin. Cas. Co. v. Abe Hershberger & Sons Trucking Ltd., 2012-Ohio-561, 2012 WL 457715, at *1, *5-6 (Ohio Ct. App.) (declining to follow Pouliot, 292 F. Supp. 2d 374, because § 390.5‘s plain language does not limit “an independent contractor’s status as a statutory employee to times when the individual is actually operating a commercial motor vehicle” and finding that an independent contractor, who was injured as a passenger in an accident while training a new driver, was an employee under the regulation); Basha v. Ghalib, 2008-Ohio-3999, 2008 WL 3199464, at *1 (Ohio Ct. App.) (finding that an independent contractor team driving member, who was injured in an accident while he was in the passenger seat, was an employee under § 390.5).

⁴¹ 292 F. Supp. 2d 374.

⁴² Id. at 376.

⁴³ Id. at 378-79.

⁴⁴ Id.

⁴⁵ Id. (citing 49 C.F.R. § 390.5); see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107-11 (2012) (Scalia & Garner) (describing the negative-implication canon). I say appears to apply because the Court does not state that it is using of the canon outright. Still, the language of the decision and the outcome of its interpretation leave little doubt. See Scalia & Garner 107 (“The critical portion of § 390.5 reads as follows: ‘Employee . . . includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle)’. . . . This sentence reveals critical information about how this regulation should be interpreted. . . . The language of the regulation is clear—the ‘independent contractor’ is treated as an ’employee’ under this section when certain conditions are satisfied. Specifically, independent contractors are deemed ’employees’ while in the course of operating a commercial motor vehicle.”).

⁴⁶ See Scalia & Garner 107 (“Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context. Indeed, one commentator suggests that it is not a proper canon at all but merely a description of the resulted gleaned from context. That goes too far. Context establishes the conditions for applying the canon, but where those conditions exist, the principle that specification of the one implies the exclusion of the other validly describes how people express themselves and understand verbal expression.”).

⁴⁷ Abe Hershberger & Sons, 2012-Ohio-561, 2012 WL 457715, at *4 (quoting P.W. & Sons, 307 F.3d at 366) (citing Perry v. Harco Nat’l Ins. Co., 129 F.3d 1072, 1075 (9th Cir. 1997)) (“Several federal courts have held that [§] 390.5 eliminated the common law distinction between employees and independent contractors ‘to discourage motor carriers from using the independent contractor relationship to avoid liability exposure at the expense of the public.'”).

⁴⁸ 49 C.F.R. § 390.5 (emphasis added). I’ll also note that I find it an odd fit to read a negative implication into a sentence of inclusions when the next sentence acts to exclude. See id. (“Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.”).

⁴⁹ Pouliot, 292 F. Supp. 2d at 378-79.

⁵⁰ Scalia & Garner 107.

⁵¹ Id. at 132; see, e.g., Fed. Land Bank of St. Paul. v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S. Ct. 1, 86 L. Ed. 65 (1941) (“the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”).

⁵² While in Pouliot the court reasoned that operating was synonymous with driving, neither that case nor its progeny considered team-driver accidents. See Pouliot, 292 F. Supp. 2d at 374; Walker, 2007 U.S. Dist. LEXIS 86867, 2007 WL 4180698, at *1-2; Great West Cas. Co., 53 F. Supp. 3d at 1181-82. And based on the parties’ submissions, it appears that courts that have considered this fact pattern have unanimously found that independent contractors riding along in the passenger seat or in the sleeper are operating the motor vehicle. Ooida Risk Retention Group, Inc. 579 F.3d at 471, 474-76; P.W. & Sons Trucking, Inc., 307 F.3d at 363-64, 367, 367 n.8; White, 599 F.2d at 53; Abe Hershberger & Sons Trucking Ltd., 2012-Ohio-561, 2012 WL 457715, at *1, *5-6; Basha, 2008-Ohio-3999, 2008 WL 3199464, at *1. So even if this Court adopted a more restrained reading, it would still find that Rosebrooks qualified as an “employee” under § 390.5. See White, 599 F.2d at 53 (“The distinction sought to be drawn between a driver on duty and operating the vehicle and a driver on duty and sitting on the right hand seat or asleep in the rest compartment is specious. Wright was not in a position comparable to being ‘at home asleep in his own bed.’ He was part of the two-man team actually engaged in operating the vehicle on Superior’s business. The team is indispensable to continual vehicle operation for federal law generally permits each driver to work only ten hours at a time and then to obtain at least eight hours of rest. . . . The activities of each of the pair during a single driving stint, including his rest period, are clearly within the course of his employment.”).

⁵³ See 49 C.F.R. § 390.5 (“Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.”); Jerry’s Sport Ctr., 2 A.3d at 541 (“An insurer is obligated to defend its insured if the factual allegations of the complaint on its face encompass an injury that is actually or potentially within the scope of the policy.”).

⁵⁴ Doc. 12-6 at 6 (“10. At the above stated time and place, Plaintiff, Clay Rosebrooks, was a passenger in the 2004 Kenworth tractor-trailer truck in his capacity as an off-duty, independent contractor of the Defendant, Mid-States [sic] Logistics, LLC.”).