Appeal from the Judgment of the Court of Common Pleas, Bedford County, Civil Division, at No. 284 of 1983.
Thomas S. Ling, District Attorney, Bedford, for appellant.
Louis C. Long, Pittsburgh, for State Auto., appellees.
Brosky, Del Sole and Cercone, JJ.
[ 365 Pa. Super. Page 86]
This is an appeal from an order granting summary judgment in a declaratory judgment action instituted by appellee insurance company. The effect of the order was to hold that appellee had no obligation to indemnify appellant for injuries arising out of an incident on appellant's farm.
[ 365 Pa. Super. Page 87]
In challenging the issuance of summary judgment in this case, appellant advances two arguments. The first asserts that the exclusion set forth in the policy with regard to farm employees is ambiguous and therefore the appellee should be precluded from denying coverage. The second argument asserts that the injured party was not an "employee" at the time of injury and therefore his injury does not fall within the exclusion in question. Upon review of the record and arguments advanced by both parties we conclude that summary judgment was improperly granted below. Consequently, we vacate the order in question.
On September 15, 1982, Edward M. Lentz suffered personal injury to his left leg when his pants became caught in an unshielded power takeoff shaft of a tractor owned by appellant. Lentz had come to appellant's farm that morning to assist in the loading of "silage," cut hay and corn for cattle feed, into a silo. Appellee instituted a declaratory judgment action after notice of the accident was given to appellee. Appellant had purchased a Farmer's Comprehensive Personal Insurance policy from appellee which was in effect at the time of the injury. The trial court, finding no disputed issues of material fact, decided that an exclusionary provision in the insurance contract was applicable and that appellee had no duty to indemnify or defend appellant. This appeal followed.
Under the insurance contract appellee was obligated to pay on behalf of the appellant/insured all sums to which the appellant became legally obligated to pay for bodily injury or property damage occurring and resulting from the operation of the farm. The appellee sought to deny coverage based upon the following language:
This coverage does not apply:
To bodily injury to (1) any farm employee, other than an insured farm employee, if the bodily injury arises out of and in the course of his employment by the insured . . .
The term "farm employee" was defined as
"an employee of any insured whose duties are principally in connection with the farming operations of the insured
[ 365 Pa. Super. Page 88]
but does not include a residence employee or an employee while engaged in any insured's business pursuits other than farming".
Deciding that the language above was "clear and unambiguous" and finding that the injury to Lentz fell within this exclusion, the trial court granted appellee's motion for summary judgment. In so deciding, the trial court placed a great deal of emphasis on our Supreme Court's decision in Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). Standard Venetian Blind, in essence, held that when an exclusion was clearly applicable to an occurrence, the exclusion could not be avoided by an insured's allegation that he either was unaware of the exclusion or failed to comprehend it. In this respect, the Supreme Court rejected this Court's holding in Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974), which stated that an insurer had a burden of showing that the insured was aware of the exclusion and that the effect was explained to him. However, contrary to the trial court's assessment, Hionis has not been overruled. The Supreme Court simply rejected its application on the record presented in Standard Venetian Blind while indicating its continuing potential applicability under a different fact pattern. In fact, the Supreme Court recently upheld a trial court's use of a jury charge based on Hionis in Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987), and further expounded upon their Standard Venetian Blind decision. The Supreme Court explained that in Standard Venetian Blind ...