Penn Maid Hosiery Mills, Inc. v. Affiliated FM Insurance

12 Pa. D. & C.3d 463, 1979 Pa. Dist. & Cnty. Dec. LEXIS 117
CourtPennsylvania Court of Common Pleas, Berks County
DecidedNovember 30, 1979
Docketno. 254
StatusPublished

This text of 12 Pa. D. & C.3d 463 (Penn Maid Hosiery Mills, Inc. v. Affiliated FM Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penn Maid Hosiery Mills, Inc. v. Affiliated FM Insurance, 12 Pa. D. & C.3d 463, 1979 Pa. Dist. & Cnty. Dec. LEXIS 117 (Pa. Super. Ct. 1979).

Opinion

ESHELMAN, P.J.,

Affiliated FM Insurance Company (hereinafter defendant), has moved for summary judgment in this action commenced by Penn Maid Hosiery Mills, Inc. (hereinafter plaintiff). In ruling on the motion, the court has before it and, pursuant to Pa.R.C.P. 1035, has reviewed the following: plaintiffs fourth amended complaint, defendant’s answer and new matter, plaintiffs reply to new matter, plaintiffs answer to defendant’s interrogatories, plaintiffs answers to defendant’s requests for admissions of fact, defendant’s answers to plaintiffs interrogatories, a supporting affidavit attached to defendant’s motion for summary judgment and plaintiffs answer to defendant’s motion for summary judgment.

[465]*465Summary judgment is only to be granted in cases clear from doubt: Prince v. Pavoni, 225 Pa. Superior Ct. 286, 302 A. 2d 452 (1973). In considering the motion, the record is to be examined in the light most favorable to the nonmoving party: Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Superior Ct. 341, 361 A. 2d 676 (1976). Then, if the record would warrant the granting of a defendant’s point for binding instructions after trial, the motion should be granted: Bremmer v. Protected Home Mutual Life Insurance Co., 436 Pa. 494, 260 A. 2d 785 (1970).

Plaintiffs fourth amended complaint avers that fourteen knitting machines owned by plaintiff were damaged beyond repair when water flowed from a broken water pipe, dousing the said machines with water, which then froze within the machines. Plaintiff seeks recovery pursuant to a fire insurance policy with extended coverage issued to plaintiff by defendant. A copy of the policy is attached as Exhibit A to the fourth amended complaint. Defendant admits that it issued the insurance policy but avers as new matter that the policy “does not provide coverage for any damage or loss by water, flood or release of water.”

The filing of affidavits in support of a motion for summary judgment and in opposition thereto is permitted by Pa.R.C.P. 1035(a) and (b). The affidavit attached in support of defendant’s motion is that of a professional metallurgist whose report is that if water had frozen, as alleged, within the machines, the freezing would not have intensified the rusting process and, further, that upon his examination he found no evidence that component parts had been broken or distorted, which would have been the result if water had expanded to form ice. Plaintiff did not file a counter-affidavit.

[466]*466Rule 1035(d) provides, inter alia: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” In the absence of a counter-affidavit or deposition being filed, the/acts presented in the affidavit must be taken as true: Phaff v. Gerner, 451 Pa. 146, 303 A. 2d 826 (1973); Amabile v. Auto Kleen Car Wash, 249 Pa. Superior Ct. 240, 376 A. 2d 247 (1977). However, even in the absence of a counter-affidavit, “[i]t is preliminarily imperative that the moving party’s affidavit evidence clearly dispel [sic] the existence of any genuine factual issue as required by Rule 1035(b).” Marchese v. Marchese, 457 Pa. 625, 630, 326 A. 2d 321, 323 (1974).

Pursuant to paragraph 3 of the admissions of fact requested of plaintiff by defendant, plaintiff admits: “Except for damage which may have been caused by wetting of electrical parts on the fourteen machines involved in this suit, the exclusive problem of those machines is the rusting of various metal parts.” Therefore, plaintiff does not seek recovery for any broken or distorted component parts caused by the alleged expansion of water. However, plaintiff argues that the alleged freezing intensified the rusting process.

Being the theoretical opinion of one expert, defendant’s supporting affidavit does not clearly dispel thefactual issue as to whether the rusting of the knitting machines was greater than normal due to a formation of ice. Nevertheless, even allowing plaintiff the benefit of any doubt, the motion for [467]*467summary judgment cannot be denied unless coverage for this type of harm has been provided under the parties’ insurance contract. Interpretation of an insurance policy is a question of law for the court: Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa. Superior Ct. 116, 386 A. 2d 535 (1978).

Plaintiff seeks recovery under the following provision contained in the policy’s exclusion section (paragraph 3 on page ten of exhibit A):

“This Company shall not be hable for loss or damage: ... 3. Resulting from flood or the release of water from natural or man-made bodies of water, whether or not caused by or contributed to by an insured peril. However, liability is specifically assumed for loss or damage by fire, sprinkler leakage, explosion, or accident, all as defined and limited elsewhere in this Policy, resulting from flood or the release of water from natural or man-made bodies of water. For the purpose of this Policy, flood includes but is not limited to tidal wave, wave wash, high water, or overflow, surface or rising water, all whether or not driven by wind.”

Plaintiff argues that since the term “accident” has not been expressly defined elsewhere in the policy, an ambiguity exists therein. As a result, plaintiff argues, by construing the ambiguity in a light most strongly supporting the insured, the breaking of the pipe or the alleged freezing of the water within the machines would constitute an “accident. . . resulting from flood or the release of water,” for which liability under the policy has been specifically assumed. On the other hand, defendant [468]*468argues that an exclusion provision cannot expand or broaden the coverage otherwise provided by the policy.

The insurance policy states on page 3 of the exhibit: “INSURANCE IS PROVIDED AGAINST ONLY THOSE PERILS AND FOR ONLY THOSE COVERAGES INDICATED . . . AND AGAINST OTHER PERILS AND FOR OTHER COVERAGES ONLY WHEN ENDORSED HEREON OR ADDED HERETO.” Thereinafter, the policy indicates the following to be insured perils: fire and lightning; extended coverage; vandalism and malicious mischief; and sprinkler leakage. The following perils are enumerated in the extended coverage section of the policy: wind or hail; sprinkler leakage; explosion; riot, civil commotion, vandalism, and malicious mischief; acts by civil authority done to prevent the spread of fire; impact of vehicles; impact of aircraft; sonic boom; smoke; molten material; and limited radioactive contamination.

A recent decision by the Court of Special Appeals of Maryland, Simkins Industries v. Lexington Insurance Co., 42 Md. App. 396, 401 A. 2d 181 (1979), involved interpretation of language identical to that contained in the exclusion provision quoted above. The plaintiff therein argued that the language was ambiguous. The court, 401 A. 2d at 185, referred to the following commentary provided in 12 Couch on Insurance 2d §44:416: “ ‘When a policy exception itself contains an “exception” clause, the effect of the latter is to restrict the sphere of operation of the exception and thus make the exception inapplicable and allow recovery if the harm sustained is otherwise within the coverage of the policy.”’ (Emphasis supplied by the Maryland court.) The court concluded that the language was not ambiguous.

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Adelman v. State Farm Mutual Automobile Insurance
386 A.2d 535 (Superior Court of Pennsylvania, 1978)
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Phaff v. Gerner
303 A.2d 826 (Supreme Court of Pennsylvania, 1973)
Bremmer v. Protected Home Mutual Life Insurance
260 A.2d 785 (Supreme Court of Pennsylvania, 1970)
Prince v. Pavoni
302 A.2d 452 (Superior Court of Pennsylvania, 1973)
Moffat v. Metropolitan Casualty Insurance Co. of New York
238 F. Supp. 165 (E.D. Pennsylvania, 1964)
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Bluebook (online)
12 Pa. D. & C.3d 463, 1979 Pa. Dist. & Cnty. Dec. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-maid-hosiery-mills-inc-v-affiliated-fm-insurance-pactcomplberks-1979.