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February 26, 1980

Randolph M. RENSI, Plaintiff,
David L. LANGSTON, Defendant, v. INSURANCE COMPANY OF NORTH AMERICA, Garnishee and Third-Party Plaintiff, v. GROVE CITY COLLEGE, Third-Party Defendant

The opinion of the court was delivered by: MARSH


The Plaintiff, Randolph M. Rensi (Rensi), and the Defendant, David L. Langston (Langston), were 18-year old students at Grove City College, Grove City, Pennsylvania on December 7, 1974. While engaged as participants in preparation for a theatrical production sponsored by the College, Rensi was severely burned when an explosion was activated by Langston.

 On December 3, 1976 Rensi entered into an agreement of settlement with Grove City College and received $ 3,750. He executed a "Release (Joint Tort-Release of One Joint Tortfeasor)." *fn1"

 On the same day, Rensi, a citizen of Pennsylvania, brought a diversity civil action against Langston, a citizen of New York, alleging that on December 7, 1974 Langston negligently activated the explosive device which caused the injuries to Rensi.

 A summons and complaint were served upon Langston on December 10, 1976 at Civil Action No. 76-1514.

 A default judgment was entered against Langston when he failed to appear and answer. A jury trial was held on the issue of damages, and a verdict was entered in favor of Rensi in the sum of $ 22,000. On May 24, 1977 a judgment was entered in favor of Rensi and against Langston for $ 22,000 and costs.

 Langston was an insured person under a homeowner's insurance policy No. HCA746272 issued by the Insurance Company of North America (INA) to Langston's mother and stepfather, Mr. and Mrs. Alexander Burgess, who resided in their home in Boston, New York.

 Notice of the accident at Grove City College was not given to INA until July 19, 1977, a period of about 19 months after the occurrence. The policy provided that notice of an occurrence be given "as soon as practicable." Because of the late notice, INA refused to defend Langston.

 On August 2, 1977, Plaintiff Rensi issued a Writ of Execution which was served upon INA as Garnishee of the Defendant Langston. Interrogatories served on the Garnishee were answered and new matter was set forth. A jury trial was demanded by Garnishee.

 On August 24, 1979 the Garnishee's Motion to bring in as a third-party defendant Grove City College was granted, and it was ordered that the third-party summons and complaint be served upon the Third-Party Defendant, Grove City College, together with a copy of the court order. Grove City College filed an answer on October 12, 1979.

 Rensi contended that the law of Pennsylvania should govern the trial. INA contended that the law of New York should govern. After an evidentiary hearing and argument on December 5, 1979, the court found facts and concluded that the law of New York should govern the issue of liability of INA to Rensi for payment of the judgment of $ 22,000 entered in Rensi's favor and against Langston, the insured. Cf. Nelson v. Insurance Company of North America, 264 F. Supp. 501 (D.C.N.J.1967).

 A jury trial was scheduled for December 13, 1979.

 On December 11, 1979 INA, the Garnishee, filed a Motion for Summary Judgment, relying on Safeguard Insurance Company v. Baldauf, 20 Misc.2d 667, 188 N.Y.S.2d 762 (1959). On December 12, 1979 Grove City College, the Third-Party Defendant, filed a similar motion.

 At a conference on December 13, 1979, the jury trial scheduled for that date was continued and an evidentiary hearing on the aforesaid Motions for Summary Judgment was scheduled for January 17, 1980, said hearing to be conducted pursuant to the provisions of Rule 56, Fed.R.Civ.P.

 On January 2, 1980 the Plaintiff Rensi filed a Cross Motion for Summary Judgment.

 At the hearing on January 17, 1980, the Plaintiff Rensi submitted two affidavits and the deposition of Defendant Langston. The Garnishee INA submitted references to Langston's deposition; the deposition of Mary Margaret Suhay, an underwriter for INA; certain pages in the deposition of Peter J. Welsh, a claims representative of INA; a letter from INA to Mr. and Mrs. Alexander Burgess dated November 10, 1976; and the "Release (Joint Tort-Release of One Tortfeasor)" executed by Rensi whereby in consideration of the payment of $ 3,750 by Grove City College he released Grove City College from all claims "resulting from ... an occurrence which happened on the 7th day of December, 1974, at ... Grove City College ...." The Release was dated December 3, 1976.

 At the hearing a "Stipulation of Facts" agreed to by counsel for each of the parties was filed. *fn2" The affidavits, depositions, and exhibits above mentioned were admitted into evidence.

 It is our opinion that summary judgment should be entered in favor of Grove City College, but the Motion for Summary Judgment in favor of INA and the Cross Motion for Summary Judgment in favor of Rensi should be denied.

 It is also our opinion that pursuant to the Release given by Rensi to Grove City College, the judgment in Rensi's favor of $ 22,000 should be reduced to $ 11,000 plus costs and interest from May 24, 1977.

 In a motion for summary judgment, all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. First Pa. B. & T. Co. v. United States Life Ins. Co., 421 F.2d 959, 962 (3d Cir. 1969). The burden is upon the party moving for summary judgment to demonstrate that no genuine issue as to any material fact exists and that said party is entitled to judgment as a matter of law. As stated in 6 Moore's Federal Practice, ยง 56.15(3), at 56-463 to 467:

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