No. 1767 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 665 Civil, 1982.
Mark S. Love, Stroudsburg, for appellant.
Thomas J. Nolan, Scranton, for appellee.
Wieand, Del Sole and Popovich, JJ. Popovich, J., dissents.
[ 343 Pa. Super. Page 115]
Jeffrey Melmed commenced an action to recover damages caused by a collision between the motorcycle on which he was riding and a vehicle owned and operated by Faye L. Reiner Motts. See: Melmed v. Motts, 341 Pa. Super. 427, 491 A.2d 892 (1985). Alice Drake, who was named as a defendant in that action, had been a passenger in the Motts vehicle. Drake was a 71 year old widow; and Motts, according to the averments of the complaint, had been "employed" as Drake's "private duty nurse." At the time of the accident, Drake owned no motor vehicles and had no motor vehicle insurance. She was the named insured, however, in a homeowner's policy issued by Aetna Casualty and Surety Company (Aetna). She made a demand upon Aetna
[ 343 Pa. Super. Page 116]
to provide her with a defense in the Melmed action. Aetna denied coverage. Instead, it filed a petition for declaratory judgment seeking a determination that it had no duty to defend the claim made against its insured. The case was submitted to the court on depositions, and the court entered a declaratory judgment in favor of Aetna, holding that, pursuant to the terms of the homeowner's policy, Aetna had no duty to defend any action against its insured arising out of a motor vehicle accident. Alice Drake appealed.*fn1 We reverse.
It is axiomatic that if it be determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible of more than one construction, the language must be construed most strongly against the insurer, and the construction most favorable to the insured must be adopted. Cohen v. Erie Indemnity Co., 288 Pa. Super. 445, 448, 432 A.2d 596, 597 (1981). The Aetna policy in this case, however, is not ambiguous. With respect to the appellant, Alice Drake, the duty to defend is clear.
The policy which Aetna issued to Drake contains the following coverage:
Coverage E If a claim is made or a suit is brought against any
Personal insured for damages because of bodily ...