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NORTHBROOK INSURANCE COMPANY v. SANDERS & THOMAS (02/21/80)

decided: February 21, 1980.

NORTHBROOK INSURANCE COMPANY, PETITIONER
v.
SANDERS & THOMAS, INC. ET AL., RESPONDENTS. TIDEWATER INSURANCE ASSOCIATES, INC. ET AL., ADDITIONAL RESPONDENTS



Original jurisdiction in case of Northbrook Insurance Company v. Sanders & Thomas, Inc. and Continental Casualty Company and Department of Transportation, Commonwealth of Pennsylvania.

COUNSEL

Michael D. Gallagher, with him, Michael D. Green, Eileen S. McAneny, Carl A. Solano, and Charles C. Hileman, of Schnader, Harrison, Segal & Lewis, for petitioner.

Richard L. Kremnick, with him, Leo E. Gribbin, Jr., Roger F. Cox, Stuart J. Moskovitz, and Robert W. Cunliffe, for respondents.

Richard L. Kearns, with him, Michael Saltzburg, Daniel K. Deardorff, William F. Martson, P.C., Christian S. Erb, Jr., and Albert L. Bricklin, for additional respondents.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the death of President Judge Bowman. Judge DiSalle did not participate in the decision in this case.

Author: Macphail

[ 49 Pa. Commw. Page 390]

On or about March 1, 1967, the Pennsylvania Department of Transportation (PennDOT) and the City of Bethlehem entered into a contract with Bethlehem Steel Corporation to design and plan the reconstruction and improvement of the "New Street Bridge" and its approaches. Upon the fulfillment of that contract, PennDOT solicited bids and awarded contracts based upon the design plans submitted to it. Shortly after part of the bridge was opened to traffic, a buckling was discovered in the web of one of the slant-leg supports of the bridge. PennDOT called upon another firm to redesign the structure and then on January 30, 1975 sued Bethlehem Steel Corporation and Sanders & Thomas, Inc. (Sanders) in assumpsit and in trespass. The action was filed pursuant to this Court's original jurisdiction and is docketed at number 132 C.D. 1975.

Sanders, an engineering consulting firm, was employed by Bethlehem Steel Corporation to prepare the design, plans, drawings and specifications for New Street Bridge. Sanders maintains that it carried

[ 49 Pa. Commw. Page 391]

    professional liability insurance at all material times. Prior to 1969, Sanders avers that it was insured by Travelers Insurance Company (Travelers). Between October 1, 1969 and September 30, 1974, Sanders claims it was insured with Continental Casualty Company (Continental) and from October 1, 1974 on, until the suit was filed by PennDOT, Sanders maintains that its insurance was carried by Northbrook Insurance Company (Northbrook). When Sanders was served with the suit papers by PennDOT, it immediately gave notice of potential liability to Northbrook and Continental.

On September 1, 1978, Northbrook instituted the present proceedings in the nature of a Petition for Declaratory Judgment, again in our original jurisdiction. Sanders, Continental and PennDOT were named as respondents. The petition asks us to construe the policies of Northbrook and Continental and to hold that Northbrook's policy does not cover the claim against Sanders, but that Continental's policy does cover that claim.

PennDOT has "answered" the petition by saying that it "has no interest in which insurance company represents Sanders & Thomas, Inc." and that no answer would be filed to the petition.

Sanders has filed an answer with new matter to Northbrook's petition and has also filed a third party complaint pursuant to the provisions of Pa. R.C.P. No. 2252 naming five defendants including Travelers, J.R. Sotter Agency, Inc. (Sotter), Victor O. Schinnerer & Co., Inc. (Schinnerer), Shand, Morahan & Company, Inc. (Shand) and Tidewater Insurance Associates, Inc. (Tidewater). The complaint alleges that Travelers was Sanders' insurance carrier prior to October 1, 1969 and that the ...


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