Bombar v. West American Insurance Co.

932 A.2d 78, 2007 Pa. Super. 222, 2007 Pa. Super. LEXIS 2171
CourtSuperior Court of Pennsylvania
DecidedJuly 26, 2007
StatusPublished
Cited by151 cases

This text of 932 A.2d 78 (Bombar v. West American Insurance Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bombar v. West American Insurance Co., 932 A.2d 78, 2007 Pa. Super. 222, 2007 Pa. Super. LEXIS 2171 (Pa. Ct. App. 2007).

Opinions

OPINION BY

STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Lackawanna County granting summary judgment in favor of Suzanne Bombar, Upright Materials Handling, Inc. (Upright), and First Insurance Center, Inc. (First Insurance Center) and against Appellant West American Insurance Company (West American)1 in an amount totaling $12,008,854.54. On appeal, West American contends (1) the trial court erred in interpreting the commercial insurance contract as covering the bodily injury sustained by Ms. Bombar; (2) the trial court erred in denying West American’s motion for summary judgment on the issue of bad faith; (3) the trial court erred in granting Ms. Bombar’s motion for summary judgment on the issue of bad faith; (4) the trial court erred in granting First Insurance [81]*81Center’s motion for summary judgment and dismissing West American’s cross-claim for contribution and/or indemnity; (5) the trial court awarded damages which were excessive, unfounded, and miscalculated; and (6) West American’s appeal was timely and from a final order.2 We affirm.

¶2 The relevant facts and procedural history are as follows:

On March 15, 1995, Suzanne Bombar, an employee of Lord Label, Inc., [hereinafter Lord Label] located in Dunmore, Pennsylvania, was struck and severely injured by a forklift while at work. [Ms.] Bombar sustained extensive injuries to her right leg which eventually led to amputation. At the time of the accident, the forklift, which struck [Ms. Bombar], was operated by another employee of Lord Label who drove it in reverse through a plastic curtained opening that obstructed the operator’s view.
The forklift was manufactured by Linde, Inc., a German Company, and shipped to Baker, Inc., a subsidiary of Linde, Inc. Baker, who in turn, sold the forklift to Upright ..., in Avoca, Pennsylvania. Upright is in the business of selling such industrial equipment and servicing the same. Lord Label purchased the forklift used the day of the accident from Upright without a backup alarm or strobe light which engages when the forklift is driven in reverse. The forklift was shipped from the manufacturer to Upright without a manufacturer’s backup alarm installed.
The forklift was later equipped with an after-market backup alarm by an employee of Upright upon Lord Label’s request. Due to the annoyance of the alarm’s sound, the evidence indicated that the alarm was intentionally disconnected by Lord Label employees on several occasions including the date on which the accident occurred. There was also evidence that the wiring got caught on structures at Lord Label causing it to disconnect as well. The alarm and strobe light were both battery powered. The manner in which the alarm was installed allowed the wires to be exposed on the outside of the forklift nine frame near the roll-bar. Upright’s agent simply mounted the alarm by wrapping the wires around the outside of the roll bar rather than passing the wire through the center of the roll bar as intended by the manufacturer. Upright had been called several times to reinstall the alarm before the accident occurred. There was a factual dispute as to whether the alarm wires were intentionally disconnected or whether they caught and were pulled off during normal operations due to the wires’ exterior mounting.
In March of 1994, Upright purchased an insurance policy from First Insurance Center, an agency who used Ohio Casualty Insurance Company [hereinafter Ohio Casualty], as an underwriter. The insuring Agreements states it will pay damages that the insured may be legally obligated to pay because of “bodily injury” or property damage in which the policy applies. (See Commercial General Liability Coverage Form, p. 1). Furthermore, the insurer will hold the right to defend the insured against any “suit” seeking such damages under the application of the insurance policy. (See [82]*82Commercial General Liability Coverage Form, p. 1). Yet, the insurer will not pay sums that the insured may be obligated to pay or defend suits that encompass a matter to which the insurance policy does not apply. (See Commercial General Liability Coverage Form, p. 1). Additionally, under the business owner’s section of the policy lays a specific Endorsement No. CG 21041185 labeled “Exclusion-Products-Completed Operations Hazard” exception, whereby the insurer will not cover the insured for “bodily injury” or “property damage” which occurs away from the premises the insured owns or rents and arises out of “your product” or “your work.” (See Commercial General Liability Coverage Form, p. 5).
After the accident involving the forklift truck, the principals of Upright, Patrick Conflitti and Arthur Watkins, met with Matt Alferio, the owner of First Insurance Center, and notified him of the accident. During that meeting, Mr. Alferio told Mr. Conflitti and Mr. Watkins that no insurance coverage was available. At that time, First Insurance Center did not notify its underwriter, Ohio Casualty ... of the accident Upright had reported involving the forklift truck. Subsequently, Upright purchased “products competed hazard coverage.”
On May 24, 1996, Suzanne Bombar filed a complaint against both Baker, Inc. and Upright including claims in strict liability and negligence. Upon service of process, Upright took the complaint to its attorney, Ralph P. Carey, Esquire, who entered a defense. In April 1999, during discovery proceedings, a request was made upon Upright to produce a copy of its insurance policy and in turn, Upright referred the request to First Insurance [Center], First Insurance [Center] denied coverage due to the “Products and Completed Operations Exclusion” by a letter sent to Upright.
In June 1999, Bombar sent a copy of the Complaint to Ohio Casualty who later notified [Ms. Bombar], by letter dated June 30, 1999, that there was no coverage due to the exclusion. This letter was never sent to the insured.
Deposition testimony indicates that Ohio Casualty ... was fully aware of the accusations made against the insured upon receipt of Bombar’s Complaint but throughout the entire proceedings the insurance agents’ attempts to investigate the claim were only cursory, at best. The local claims manager conceded that he made the decision to inform [Ms. Bombar’s] counsel that there would be no coverage provided to Upright due to the exclusion. (See Plaintiffs Exhibit D., D.T. Culotta). Mr. Klatt, the local adjuster, was given instructions by the local manager to obtain statements from the owners of Upright by contacting its counsel, Ralph Carey, Esquire. Apparently, Klatt only scheduled a meeting and retained statements from one of the insured. Klatt remained the adjuster for four months, and then reassigned. The matter was next referred to Don Osbourne. Mr. Osbourne made several attempts to schedule a meeting with the owners of Upright by mail; three of these letters were misaddressed. Os-bourne contacted the Law Offices of Ralph Carey on a monthly basis by phone. During one of these phone conversations, Mr. Osbourne was informed that mediation was in progress and that the matter most likely was going to trial. Yet, Ohio [Casualty] never issued a Reservation of Rights letter to Upright during this time, nor did it notify Upright that its coverage was denied in writing, or enter a defense. It has been noted [83]

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Bluebook (online)
932 A.2d 78, 2007 Pa. Super. 222, 2007 Pa. Super. LEXIS 2171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bombar-v-west-american-insurance-co-pasuperct-2007.