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NATIONWIDE INSURANCE COMPANY AND LEWIS A. JOHNSON v. DONEGAL MUTUAL INSURANCE COMPANY (05/07/82)

filed: May 7, 1982.

NATIONWIDE INSURANCE COMPANY AND LEWIS A. JOHNSON
v.
DONEGAL MUTUAL INSURANCE COMPANY, A CORPORATION; RUBY HOLLY, AN INDIVIDUAL, JOHN KOZIEL AND ALMA M. KOZIEL, HIS WIFE. APPEAL OF DONEGAL MUTUAL INSURANCE COMPANY AND RUBY HOLLY



No. 775 Pittsburgh, 1981, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA, ENTERED JULY 2, 1981, AT G.D. 79-20663, Civil Div.

COUNSEL

David Harry Patterson, Pittsburgh, for appellants.

Matthew R. Wimer, Pittsburgh, for Nationwide, et al., appellees.

William E. Stockey, Pittsburgh, for Koziel, appellees.

Brosky, Cirillo and Popovich, JJ.

Author: Cirillo

[ 299 Pa. Super. Page 206]

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, granting a Motion for summary judgment in favor of the appellees, John and Alma Koziel.

[ 299 Pa. Super. Page 207]

On August 28, 1978, a collision occurred between a truck operated by Louis A. Johnson and a car operated by John R. Koziel, in which his wife, Alma M. Koziel, was a passenger. The truck was owned by Ruby Holly. As a result of this accident, the Koziels filed an Action in Trespass against Johnson and Ruby Holly. In this litigation, Ruby Holly was insured by Donegal Mutual Insurance Company, but Donegal declined to provide a defense for Johnson. Instead, Johnson was defended by his own personal automobile carrier, the Nationwide Insurance Company. Donegal denied coverage to Johnson on the basis that he was excluded under the terms of the policy which insured Ruby Holly as the owner of the truck. During this trespass action, Nationwide and Johnson filed a Petition for Declaratory Judgment against Donegal, Ruby Holly and Koziels, alleging that at the time of the accident, Johnson operated the truck with the permission of Ruby Holly. Thus, Nationwide alleged, Donegal owed a defense to Johnson in the trespass action and the Donegal policy was primary over any and all other insurance policies. Donegal and Ruby Holly filed an Answer and New Matter, admitting that the truck had been operated by Johnson, but denying a right to coverage for Johnson. Specifically, they raised as an affirmative defense to the declaratory judgment action an exclusionary provision in the Donegal policy relating to the operation of an insured vehicle by one engaged in the repair of such vehicle. The Koziels also filed an Answer and New Matter to the Petition for declaratory judgment in which they too demanded that coverage be provided for Johnson under the Donegal policy. As the declaratory judgment action proceeded to trial, the Koziels filed a Motion for summary judgment, based on prior pleadings, including each of the relevant insurance policies, and the deposition testimony of Ruby Holly, her husband Jessie Holly, and Johnson. An Answer to the Motion was filed by all other parties. On July 2, 1981, after argument before a court en banc, the Motion for summary judgment was granted. The court determined that a defense should have been provided to Johnson pursuant to the insurance policy issued by Donegal to Ruby Holly, and that

[ 299 Pa. Super. Page 208]

    the Donegal policy was primary over all other insurance policies. This appeal now follows.

The appellants, Donegal and Ruby Holly, allege on appeal that the lower court erred in granting the Motion for summary judgment and in finding that Johnson was entitled to primary insurance coverage under the policy issued to Ruby Holly.

Summary judgment is granted only in the clearest cases, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tom Morello Construction Company, Inc. v. Bridgeport Federal, Etc., 280 Pa. Super. 329, 421 A.2d 747 (1980). On appeal, the court ...


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