Prudential Property & Casualty Insurance v. Sartno

874 A.2d 85, 2005 Pa. Super. 133, 2005 Pa. Super. LEXIS 858

• Court: Superior Court of Pennsylvania
• Decided: April 12, 2005
• Status: Published

Opinions

OPINION BY

BENDER, J.:

¶ 1 Prudential Property and Casualty Insurance Company (“Prudential”) appeals from the trial court order denying its motion for summary judgment and granting the opposing parties’ cross-motion for summary judgment, thereby requiring Prudential to provide automobile insurance coverage to its insured, Robert R. Sartno (Driver), for injuries he allegedly caused while working as a pizza delivery driver for Frankie’s Pizzeria and Restaurant (Frankie’s Pizza) (collectively with its owner and manager, Frank and Debbie Vito, Frankie’s). Throughout the proceedings, Prudential has maintained that it was not required to provide coverage because the policy’s “Cars for Hire” exclusion, which bars coverage for anyone using a car to carry property for a fee, applies to Driver’s use of his car as a delivery driver for Frankie’s Pizza. The trial court disagreed with Prudential, holding that the exclusion did not apply. Upon review, we reverse and hold that the exclusion is unambiguous under the facts of this case and operates to exclude coverage for Driver’s use of his car as an employee who was paid wages and tips to deliver pizzas.

¶ 2 The parties agree that there are no genuine issues of material fact. The accident occurred on February 18, 1998. Driver testified at his deposition that the accident occurred as he left the pizza shop to deliver pizzas. After putting the pizzas in the car, Driver put the car in reverse. Driver’s car was apparently parked in on-street parallel parking. He testified that he looked in the rearview mirror but did not see Michele Hebal, who was carrying her infant daughter Noelle, crossing behind his car. The car rolled backward, hitting Michele on her hip. Driver was operating his personal vehicle at the time of the accident. Driver had Prudential insurance coverage on the car.

¶ 3 At the time of the accident, Driver was working at Frankie’s Pizza on weekdays from 10 a.m. to 2 p.m. In addition to delivering pizzas, Driver prepared food and cleaned. He was paid $6.00 per hour, regardless of which duties he performed. Driver kept any tips he received for delivering pizzas. Frankie’s Pizza did not charge a delivery fee.

¶ 4 On December 17, 2002, Michele He-bal and her husband Ronald Hebal, individually and as parents of Noelle, filed a complaint against Driver and Frankie’s, alleging negligence. On June 12, 2003, Prudential filed a Declaratory Judgment Action seeking to exclude coverage under Driver’s policy, arguing that the “Cars for Hire” policy exclusion applied. Prudential listed Frankie’s, Driver, and the Hebals as defendants. This declaratory judgment action is the action now before us; the Hebals’ negligence action is not a part of this appeal. After discovery, Prudential and Frankie’s filed cross-motions for summary judgment. After the submission of briefs and oral argument, the trial court entered an Order denying Prudential’s motion and granting Frankie’s motion. Prudential then filed the instant appeal and a Rule 1925(b) statement. On July 30, 2004, the trial court filed an Opinion pursuant to Pa.R.A.P.1925(a) explaining its decision. Prudential now raises the following question for our review:

Is the policy exclusion contained in the Prudential policy for bodily injury caused while using a motor vehicle to carry people or property for a fee (“use for hire” exclusion) enforceable so as to relieve [Prudential] from its obligation to provide liability coverage and a defense for [Driver] where [Driver], at the time of the accident, was operating his vehicle as a paid pizza delivery driver?

Brief for Appellant at 4.

¶ 5 When reviewing a court’s grant or denial of a motion for summary judgment, our scope of review is plenary. See Washington v. Baxter, 553 Pa. 434, 719 (1998). “In reviewing a grant of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear or manifest abuse of discretion.” Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1167 (1997).

¶ 6 Prudential contends that under the facts of this case, the “Cars for Hire” exclusion bars coverage for Driver’s use of his car as a paid pizza delivery driver. The exclusion states:

CARS FOR HIRE

We will not pay for bodily injury or property damage caused by anyone using a car covered under this part to carry people or property for afee. This does not include a car pool. But you and a resident relative are covered if either of you cause an accident while a passenger in a non-owned car for hire.

Prudential Property and Casualty Ins. Co. Automobile Ins. Policy, Part 2. (Reproduced Record at 35a (emphasis added)). Thus, the appeal before us turns on how we interpret the foregoing exclusion.

The task of interpreting an insurance contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. The polestar of our inquiry, therefore, is the language of the insurance policy.

Neuhard v. Travelers Ins. Co., 831 A.2d 602, 604-05 (Pa.Super.2003) (emphasis added) (quoting Madison Construction Co. v. The Harleysville Mutual Insurance Co., 557 Pa. 595, 735 A.2d 100, 106 (1999)).

¶ 7 Prudential argues that it has no obligation to provide Driver with insurance coverage because the alleged accident occurred while he was delivering property (the pizzas) for a fee (wages and tips). Conversely, Driver and Frankie’s argue that the exclusion is ambiguous because it is susceptible to more than one reasonable interpretation, and therefore, it must be construed in Driver’s favor and against Prudential. The parties’ competing arguments revolve around the meaning of the word “fee.” BLACK’S LAW DICTIONARY defines the word simply: “A charge for labor or services, esp. professional services.” BLACK’S LAW DICTIONARY 647 (8th ed.2004). Frankie’s contends that since it did not charge customers a “fee” for delivery, Driver was not carrying property for a fee.

¶ 8 In one of the cases cited by Frankie’s, United States Fidelity & Guaranty Co. v. Lightning Rod Mutual Ins. Co., 80 Ohio St.3d 584, 687 N.E.2d 717 (1997), the Supreme Court of Ohio addressed the issue of whether an insurance policy that excluded “coverage for operation of a vehicle carrying property ‘for a fee’ covers an insured who is paid an hourly wage and is reimbursed for mileage for making deliveries but is not paid per delivery.!’ Id. at . In Lightning Rod, the insured was also a pizza delivery driver who worked for an hourly wage and did not receive a fee for each delivery. The court concluded that the exclusion was ambiguous and susceptible to two interpretations.

Thus, Lightning Rod’s policy can be read two ways: first, as excluding from coverage use of a vehicle to transport property when there is any kind of payment to the insured, and second, as excluding coverage only when a fee is paid specifically for the particular act of transporting property. Under the first reading, [the driver’s] use of her car to deliver pizza would be excluded from coverage because Domino’s was paying her an hourly wage. Under the second reading, however, this use would not be excluded by the Lightning Rod policy, since neither Domino’s nor its customers paid [the driver] a fee specifically for delivering the pizza.

Id. at 719. We disagree with this reasoning.

¶ 9 The focus of our inquiry should not be on what a customer paid for the pizza or what Frankie’s charged or did not charge for the delivery. Rather, our focus should be on the benefit that accrued to Driver, who is the insured, for delivering the pizzas. Cf. Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071 (Pa.Super.2004). Thus, the interpretation of the exclusion espoused by Frankie’s does not focus on the relevant factors. Under Frankie’s interpretation, the exclusion would only apply when a customer pays a charge specifically designated for the transportation or delivery of the property. Thus, the enforceability of the exclusion would depend on whether a pizza shop charged a delivery fee. If it did charge for delivery, then the exclusion would be enforceable. And if it did not charge for delivery, then the exclusion would be unenforceable. But such an interpretation is certainly arbitrary and far-removed from our task of ascertaining the intent of the parties.

¶ 10 In Brosovic, this Court addressed whether a similar exclusion was ambiguous when the insured did not receive a distinct remuneration for each delivery.

Although Appellant’s interpretation of the exclusion turns on whether he directly received a fee, there are no words in the exclusion that would support such an interpretation. The exclusion plainly addresses situations in which an insured is using a vehicle to cany [] property for a fee. In this case, Appellant was working as a delivery driver when he was injured in the back of his delivery van. A delivery van is certainly a vehicle used to carry property for a fee. It is of no consequence that the fee was paid to Appellant’s employer rather than Appellant himself.

Id. at 1072 (emphasis added). Brosovic is certainly distinguishable on the basis that the insured was working for a delivery service that charged its customers specific sums for each delivery. However, the insured was paid a wage regardless of the charges paid by the delivery service’s customers.

¶ 11 At the time of the alleged accident in this case, Driver was in fact carrying property, i.e., delivering pizzas. The customers that received the pizzas paid Driver a sum, which he then tendered to Frankie’s Pizza. In exchange, Frankie’s Pizza paid Driver a wage for this work, and furthermore, Driver kept the tips that he received for delivering pizzas. Driver was not delivering pizzas gratuitously, nor was it an incidental or isolated task. It was his job. He delivered pizzas and was paid to do so. If he did not deliver the pizzas, then he undoubtedly would not have been paid.

¶ 12 Frankie’s argues that had “Prudential sought to exclude coverage for free deliveries of pizza, it should have provided such a definition in its policy.” Brief for Appellees at 6-7. This is an unreasonable claim. It is of no consequence whether Frankie’s Pizza charged for delivery. As stated above, in determining whether the exclusion bars coverage in this case, we must focus on Driver’s use of the insured vehicle, and the monetary benefit that he received in return for such use. Insurers cannot contemplate every scenario in which an insured regularly uses the vehicle for delivering property or carrying persons and in exchange receives a monetary benefit. See Rudloff v. Nationwide, 806 A.2d 1270, 1274 (Pa.Super.2002) (en banc) (stating, “Clearly, an insurer will not have every relevant fact known to it when it decides to underwrite any particular risk and, therefore, insurers invariably underwrite risks that are dependent on some unknown factors.”). And therefore, insurers should not be required to write exclusions that include a list of every possible factual scenario in which the insured is using the vehicle to essentially haul goods for money.

¶ 13 In conclusion, we hold that the exclusion is unambiguous and is written broadly to encompass situations, such as the one in this case, in which an insured, as one of his primary job duties, regularly uses his automobile to deliver property, and in exchange, receives a monetary benefit. It is common sense that the purpose of this exclusion is to limit the insurance company’s liability so as to exclude those situations in which an insured is using his or her automobile in a commercial environment to carry persons or property and receives money for doing so. This Court should not resort to a strained contrivance to find an ambiguity when we are faced with the precise factual scenario to which the allegedly ambiguous exclusion applies. Accordingly, the exclusion is enforceable, and Prudential is not required to provide coverage to Driver for the alleged accident.

¶ 14 Order REVERSED.

¶ 15 Judge JOHNSON files a dissenting opinion.