Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1964, No. 4351, in case of Bernard McCabe, trading as McCabe Brothers v. Old Republic Insurance Company.
Harry R. Nixon, for appellant.
David F. Binder, with him Albert L. Bricklin, and Bennett & Bricklin, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
In this action of assumpsit, Bernard McCabe, trading as McCabe Brothers (McCabe), the insured in a manufacturers' and contractors' liability insurance policy issued by the Old Republic Insurance Company (Old Republic) seeks to recover from the insurer part of a judgment of indemnity entered against McCabe in the United States District Court for the Eastern District of Pennsylvania,*fn1 plus interest, legal fees and costs. The court below entered judgment on the pleadings in favor of the defendant. McCabe appeals.
The relevant facts are these: McCabe was engaged in constructing a sewer pursuant to a written contract in the Township of Upper Moreland (Township). In the course of the work, one of its employees, Sixto Quinones, while laying a concrete bed for a section of the sewer pipe in a deep unshored trench, was fatally injured when the trench collapsed and buried him.
The administratrix of Quinones' estate sued the Township for damages, under the Pennsylvania wrongful death and survival statutes, in the United States District Court for the Eastern District of Pennsylvania. The Township impleaded McCabe as a third-party defendant seeking indemnification at law or contribution and contractual indemnification.*fn2
McCabe requested Old Republic to defend the suit on its behalf. Old Republic refused on the ground that
the policy involved did not provide coverage in the circumstances. Eventually, the action resulted in the entry of an adverse final judgment in the sum of $35,000 in favor of Quinones' administratrix against the Township, and a judgment of indemnity in favor of the Township against McCabe for the same amount.
Subsequently, McCabe paid the judgment (as reduced by a workmen's compensation benefit of approximately $7000) and instituted this action. Since Old Republic's liability was limited under the policy involved to $5,000, McCabe demanded reimbursement ...