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F.B. WASHBURN CANDY CORPORATION AND ZURICH INSURANCE COMPANY v. FIREMAN'S FUND (05/02/88)

filed: May 2, 1988.

F.B. WASHBURN CANDY CORPORATION AND ZURICH INSURANCE COMPANY, APPELLANTS,
v.
FIREMAN'S FUND, PHILIP PACKARD AND JOHN CEPURNEEK, GEORGE CELIA, JR., HAROLD D. LYNN AND EVELYN LYNN, HIS WIFE, DALE LYNN, JR. AND VALLEY HOME IMPROVEMENT COMPANY, APPELLEES



Appeal from the Judgment entered May 6, 1987 in the Court of Common Pleas of Westmoreland County, Civil Division, at No. 7647 of 1982.

COUNSEL

James F. Manley, Pittsburgh, for appellants.

Bernard J. McAuley, Pittsburgh, for appellees.

Rowley, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 373 Pa. Super. Page 481]

This is an appeal from the trial court order dismissing Appellants' exceptions in a declaratory judgment action.*fn1 The facts of this case are as follows.

Appellant-F.B. Washburn Candy Company, whose general omnibus liability insurance carrier was Appellant-Zurich Insurance Company, contracted with Appellee-Philip Packard for the shipment of Washburn's goods.*fn2 Appellee-Fireman's Fund*fn3 provided insurance coverage for Packard. Subsequently, Appellee-John Cepurneek,*fn4 one of Packard's employees, was delivering Washburn's goods when the truck he was driving collided with a vehicle occupied by Harold D. Lynn and Evelyn Lynn, his wife.

Thereafter, Washburn, Packard, and Cepurneek were named as defendants in a tort action arising from the accident. Upon receiving notice of the suit, Washburn

[ 373 Pa. Super. Page 482]

    tendered the defense of the action to Fireman's Fund, claiming that Washburn was an omnibus insured under the insurance policy which Fireman's Fund had issued to Packard. Fireman's Fund disagreed, however, and refused to defend Washburn. For this reason, Washburn tendered the defense of the action to its general liability carrier, Zurich. Zurich, in turn, retained legal counsel so that a defense might be entered on Washburn's behalf. Following a jury trial, a plaintiff's verdict was returned against the defendants.

Thereafter, Washburn and Zurich commenced an action for declaratory judgment against Fireman's Fund for the purposes of having the trial court determine the rights of the parties under the policy Fireman's Fund had issued to Packard, and to recoup the costs associated with Zurich's defense of Washburn. In its Findings of Facts and Conclusions of Law, the trial court found that Fireman's Fund, the insurer of Packard's vehicle, was the primary insurance carrier. Zurich, Washburn's carrier, was held responsible only for excess coverage. Thus, it was concluded that Fireman's Fund should have defended Washburn in the underlying action. The trial court also ruled that Fireman's Fund was not liable to Zurich for the legal fees the excess carrier incurred in the defense of the underlying action or the declaratory judgment action. Exceptions were filed and later denied by the trial court. This appeal follows.

Appellants raise three issues on appeal:

1. Did not the court err in failing to award costs of defense incurred by Zurich Insurance Company in defending an action where the primary insurer of the vehicle involved in the accident, ...


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