The opinion of the court was delivered by: WEBER
On June 26, 1971, Theodore Koenig was involved in an accident in his neighbor's above-ground pool and suffered severe and permanent injuries. A suit was filed by Koenig in the Court of Common Pleas of Erie County against the manufacturer of the pool, Muskin Manufacturing Corp., and the retailer, W.T. Grant Co. Trial of that action was recently completed in Common Pleas resulting in a verdict for the plaintiff.
Defendant Pacific Indemnity Company (Pacific) has filed a motion for Summary Judgment seeking determination of its liability for the cost of defense of W. T. Grant and for any portion of the verdict against W. T. Grant. We herein address only those issues raised by Pacific's motion. Any remaining questions of the other parties' liability for the cost of the defense or the verdict may be raised by appropriate motions for summary judgment.
Although Pacific's motion argues that California law is applicable it has not brought to our attention any difference between the substantive law of California and that of the law of the forum state, or between California law and the ruling law of general application in the United States. Therefore, to the extent available, we will look to Pennsylvania law.
We have examined the evidentiary material of record and find no genuine material issue of fact which would preclude summary judgment. Accordingly a review of the facts of record is in order.
Each of the parties to this suit had issued an insurance policy to W. T. Grant which was in effect on the date of Koenig's injury, June 26, 1971. The relevant policies are:
1) Policy No. R61-621-004235-061 issued by Liberty Mutual to W. T. Grant. This is a Blanket Public Liability Policy covering the period of June 1, 1971 to June 1, 1972.
2) Policy No. LE2-621-004236-120 issued by Liberty Mutual to W. T. Grant. This is an Umbrella Excess Liability Policy covering the period of June 1, 1970 to June 1, 1972, with policy limits of $10,000,000.
3) Policy No. LAC 202492 issued by Pacific to American Cement Corp. This is a Comprehensive General Liability Policy covering the period of May 1, 1969 to July 1, 1972. Muskin Corp. is included in the policy's coverage as a subsidiary of American Cement. W. T. Grant was made an additional insured under this policy as to products manufactured by Muskin by an endorsement dated June 19, 1969. The endorsement specifically excludes coverage for liability of W. T. Grant on any express warranty or sale for a purpose not authorized by Muskin. The policy has a liability limitation of $100,000.
4) Policy No. CE 35-07-98 issued by American Home to American Cement Corp. This is an Excess Third Party Liability Policy covering the period of May 1, 1969 to July 1, 1972, with policy limits of $5,000,000. Muskin as a subsidiary of American Cement, is insured under the policy against claims arising from the manufacture, sale or distribution of Muskin products.
By communications of October 12, 1972, October 31, 1972, and February 22, 1974, Grant requested that Muskin's insurers assume the defense of Koenig's claims against Grant. These requests were refused. Liberty Mutual has borne the costs of W. T. Grant's defense, while Pacific and American Home have defended Muskin.
Pacific seeks summary judgment on plaintiff's claim for contribution or indemnity on Grant's liability on the grounds that payments under the policy have reached ...