Pennsylvania National Mutual Casualty Insurance v. Kaminski Lumber Co.

580 A.2d 401, 397 Pa. Super. 484, 1990 Pa. Super. LEXIS 2767
CourtSuperior Court of Pennsylvania
DecidedSeptember 17, 1990
DocketNo. 109
StatusPublished
Cited by5 cases

This text of 580 A.2d 401 (Pennsylvania National Mutual Casualty Insurance v. Kaminski Lumber 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
Pennsylvania National Mutual Casualty Insurance v. Kaminski Lumber Co., 580 A.2d 401, 397 Pa. Super. 484, 1990 Pa. Super. LEXIS 2767 (Pa. Ct. App. 1990).

Opinion

DEL SOLE, Judge:

This is an appeal from a grant of summary judgment in a declaratory judgment action. The action was filed by Appellant, Pennsylvania National Mutual Casualty Insurance Company, seeking a ruling that it owed no coverage or duty to provide a defense to its insured, Appellee, Kaminski Lumber Co. As stated by the trial court the genesis of the case concerns an injury sustained by Danny Toney when he was struck by a board rejected from a saw he was using while performing duties for his employer, Mountain Valley Lumber. Mr. Toney and his wife brought suit against Schurman Machine Company, who manufactured the saw, and Kaminski Lumber Co., who purchased the saw from [486]*486Schurman. Also named as a defendant was Van Auken Mill Supplies and Equipment Company, Inc. who purchased the used saw equipment from Kaminski and resold it to Mr. Toney’s employer.

Kaminski was issued a Comprehensive General Liability Insurance Policy from Pennsylvania National. After Pennsylvania National was notified of the suit it filed the instant declaratory judgment action asking the court to rule that because of an exclusion in the policy, it had no duty to defend or provide coverage to Kaminski. Cross-motions for summary judgment were filed with the court, which ruled against Pennsylvania National and in favor of Kaminski. This appeal followed.

The policy issued to Kaminski included an exclusion which stated that coverage would not apply to bodily injury or property damage included within the “Products Hazard”. The term “products hazard” was defined in the policy as:

‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.

The policy also provided a definition for the term “named insured’s products” as follows:

goods or products manufactured, sold handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but ‘named insured’s products’ shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold.

It is Pennsylvania National’s position that it is entitled to deny coverage and defense of Kaminski in the action brought by the Toney’s because the policy at issue clearly excludes from coverage bodily injury caused by a product such as the saw at issue, after the insured has relinquished [487]*487physical possession of the product to others. The trial court rejected this argument and instead concluded that the policy language was ambiguous since the term “product” was not clearly defined. The trial court concluded that the exclusion did not apply in this instance because the claim made against Kaminski was not grounded in products liability.

The trial court correctly characterized the claim brought by the Toney’s against Kaminski. Although the complaint sets forth strict liability claims against Schurman Machine and Van Auken Mill Supplies, the allegations against Kaminski are not based in products liability. The complaint alleges that the Toney’s injuries were a direct result of Kaminski “negligence and/or gross negligence”. The negligent acts were said to include modification of an anti-kickback safety device and modification of controls on the equipment. Also alleged was negligent conduct in failing to convey to Mr. Toney’s employer adequate warnings, instructions or advice, and failure to properly and fully inspect the machinery.

Despite the clear language indicating that the claim brought against Kaminski is based in negligence, Pennsylvania National nevertheless maintains that the allegations are in essence ones of product liability. Pennsylvania National submits that since Kaminski was alleged to have modified a product and failed to have warned of its condition or inspect the product which it eventually sold, it was acting as a seller liable under Section 402A of the Restatement (Second) of Torts. Pennsylvania National maintains that such a seller is not entitled to be provided with a defense or coverage under the terms of the policy.

Most recently in Harford Mutual Ins. Co. v. Moorhead, 396 Pa.Super. 234, 578 A.2d 492 (1990) this court was confronted with the question of whether an identical “Products Hazard” exclusion precluded coverage where allegations of negligent failure to warn were made against a wine manufacturer. It was alleged in the complaint that the manufacturer of certain sulfur strips used in wine making [488]*488failed to give proper instructions on their use. The insurer argued that although the plaintiff had alleged “negligence” in his complaint, the allegations of failure to instruct or to warn involve establishing proof of a defective product. It was ;the insurer’s position that the complaint was “merely a ‘defective product’ claim repackaged semantically to evade the ‘product hazard’ exclusion.” Id. at-, 578 A.2d at 497.

The Harford court concluded that “where, as here, a claim is brought under the auspices of a ‘negligent failure to warn,’ it is appropriate to view the complaint as one charging improper conduct, and not one of making a défective product, despite arguable similarities between such claims.” At;-, 578 A.2d at 501. The Harford decision cited to Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 393 A.2d 1212 (1978) which also was construing an exclusion, as found in this case and in Harford, which excludes coverage for damages arising out of an insured’s product or reliance upon a representation or warranty made with respect to the product. Relying on the language in Friestad, which found that the products hazard was to be applied “only when a product, rather ' than a service, is the cause in fact of damages or injury to a third person” 393 A.2d at 1217, the Harford court ruled that the insurer was responsible for defending against the claim of improper conduct and would have to cover the underlying claim if it proved to be successful.

The ruling in Harford is relevant to the instant case which centers on a complaint which also alleges a failure to inspect and warn. According to the decision in Harford, such claims relate only to conduct or service and not a defective product, thus, injuries which result from such “conduct” are not “damages arising out of an insured’s product” or representations or warranties made with respect to the product. The exclusion for products hazard does not apply to the claims made by the Toney’s regarding Kaminski failure to warn.

[489]*489However, unlike Harford, the complaint in this case involves not only claims regarding conduct of failure to warn and inspect but also allegations that the product was altered creating an unsafe condition. In Harford there was no complaint that the product was defective or that it malfunctioned, Id.

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Cite This Page — Counsel Stack

Bluebook (online)
580 A.2d 401, 397 Pa. Super. 484, 1990 Pa. Super. LEXIS 2767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-national-mutual-casualty-insurance-v-kaminski-lumber-co-pasuperct-1990.