In reaching the foregoing result, all points and authorities submitted by counsel have been considered. Bethlehem points out, for instance, that the duty of the insurance company to defend is determined by the allegations of the complaint. Wilson v. Maryland Casualty Company, 1954, 377 Pa. 588, 105 A.2d 304, 50 A.L.R.2d 449. The law of Pennsylvania is applicable. Faron v. Penn Mutual Life Insurance Company, 3 Cir., 1949, 176 F.2d 290. Neither proposition was controverted by Continental. Those principles, however -- correct though they may be -- do not suffice to authorize the relief asked by movant.
The cited opinion of Judge Van Dusen has also been carefully considered. Bethlehem Steel Company v. Continental Casualty Company, C.A. No. 24786, opinion filed May 6, 1959. The ruling of the United States District Court in that case concerned a motion for judgment on the pleadings on the ground that the complaint did not show that defendant was notified in writing of the accident. In the present motion, it is conceded that such conditions precedent had been complied with.
It is true that page 4 of the unreported decision considered whether from the pleadings there it appeared that the vehicle in that case was engaged in a use covered by the policy exhibited in those pleadings. It does not seem to this Court that such incidental ruling would govern the present case concerning a different contract. The fact that the parties in that case coincide with the parties in the present motion, and that the accident is said to be similar, are likewise in no way controlling.
Particular emphasis is laid by Bethlehem on Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Company, 1961, 403 Pa. 603, 170 A.2d 571. The insuring clause therein, as set out, was indeed similar to the corresponding standard clause as in the instant policy (heretofore quoted under the title of 'I Coverage A -- Bodily Injury Liability -- Automobile. To pay on behalf of the insured all sums * * *').
In the Manufacturers Casualty case, insurer Goodville issued a policy of insurance covering an automobile and horse trailer owned by the assured, Wertz. Wertz loaned the trailer to Stoltzfus; Stoltzfus hired Wingenroth to haul the horse trailer.
On the Pennsylvania Turnpike, the truck and trailer got out of Wingenroth's control, crossed the medial strip, and collided with O'Malley's automobile. O'Malley and his passenger, Bissell, successfully sued Stoltzfus, who was insured by Manufacturers Casualty Insurance Co. The latter, plaintiffs in the case under discussion, assumed the defense of Stoltzfus, and requested Wertz' insurer, Goodville, to join in the defense.
The latter having refused, Manufacturers later brought suit against Goodville for contribution. Although the court below deemed the occurrence not one arising out of the ownership, maintenance or use of the automobile, the Supreme Court of Pennsylvania, Musmanno, J., held that the court below had incorrectly applied a proximate cause test. The horse trailer collision was causally connected and within the meaning of the policy clause 'arising out of'.
Accordingly, it was held that for the purpose of permissive use by Stoltzfus, as an individual, the Goodville policy coverage applied, and the court reasserted the principle that
'When the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured. Had the insurer desired to limit its liability to accidents with such a close causal connection * * * it could have and should have so stated in its policy. * * *' Manufacturers Casualty Insurance Company v. Goodville Mutual Casualty Company, 1961, 403 Pa. 603, 607, 170 A.2d 571, 573.
The clause last quoted distinguishes that case from the instant one, it is believed. In the contract of insurance issued by Continental, it must be assumed that -- in the terms of the Pennsylvania Supreme Court case -- 'the insurer desired to limit its liability * * * and * * * so stated in its policy.'
The same sort of distinction applies to the cited case of Panhandle Gravel Company, Inc. v. Wilson, Tex.Civ.App.1952, 248 S.W.2d 779. It is conceded that the term 'use' was given a broad reading there, and was extended to cover the trucks in the hands of an independent contractor. Such an interpretation of the word 'use', however, is a matter considerably different from that at hand. Here, we are asked to rule that a specific exclusion clause so clearly does not apply that there is no issue to be tried.
On another general proposition, authorities are scarcely needed to document movant's point that insurance policies, when ambiguous, are to be liberally interpreted in favor of the insured. It is another matter, however, to say that an apparently unambiguous exclusion clause is so clearly inapplicable that there is no issue warranting a trial, and that the drastic procedure of summary judgment is justified. See Clayton v. James R. Clow & Sons, D.C.N.D.Ill.1957, 154 F.Supp. 108, 112.
The appropriateness of partial summary judgment, regardless of whether the insurer may eventually be required to indemnify, has been taken for granted. Discussion of the cases is therefore unnecessary, e.g. Pittsburgh Plate Glass Company v. Fidelity & Casualty Company of New York, 3 Cir., 1960, 281 F.2d 538; Clauss v. American Insurance Company, 3 Cir., 1961, 287 F.2d 873, affirming the decision of the late Judge Egan reported in D.C.E.D.Pa.1959, 175 F.Supp. 641.
Remedy aside, however, it is prerequisite that plaintiff first show that his claim comes within the general coverage of the policy. Warner v. Employers' Liability Assurance Corp., 1957, 390 Pa. 62, 66, 133 A.2d 231. At the very least, third-party plaintiff here has not made the preliminary showing necessary to warrant summary judgment.
For the foregoing reasons, it is the order of this Court that the motion for partial summary judgment of Bethlehem Steel Company, third-party plaintiff against Continental Casualty Company, third-party defendant be and the same is hereby denied and it so ordered.
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