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WENKOSKY v. PROTECTIVE INS. CO.

September 13, 1988

FRANK WENKOSKY, Plaintiff
v.
PROTECTIVE INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE

 Currently before the court is a diversity action in which plaintiff Frank Wenkosky seeks a declaratory judgment on the issue of defendant Protective Insurance Company's (Protective) obligation to defend and indemnify plaintiff pursuant to an automobile insurance policy. For the reasons that follow, the court will declare that the insurance policy does not afford coverage to plaintiff for any claims arising out of the accident on August 23, 1983.

 BACKGROUND

 Plaintiff is an adult individual residing at Lake Ariel, Pennsylvania. At all times relevant to this action, he used the trade name S & W Contractors. Plaintiff was the lessor of a truck tractor semi-trailer combination rig under a lease with Daily Express, Inc., a certificated motor carrier authorized by the Interstate Commerce Commission (ICC) to transport goods in interstate commerce. See document 21 of record (Stipulation of Facts), at paras. 1, 3, and 4 and Exhibit A (lease agreement). Pursuant to the lease agreement, plaintiff used his rig for the transportation of goods in interstate commerce under the authority granted to Daily Express by the ICC.

 Defendant Protective is a corporation engaged in the business of automobile liability insurance maintaining its principal place of business in Indianapolis, Indiana. Under the terms of the lease agreement between plaintiff and Daily Express, Daily agreed to maintain insurance coverage while the equipment was being operated in accordance with the terms of the agreement, but plaintiff was required to provide "bobtail/deadhead" insurance coverage for his rig. See id., Exhibit A, at para. 13. The parties agree that "bobtail/deadhead" insurance is the term generally used in the trucking industry to describe what the insurance industry calls "non-trucking use" coverage. Daily Express as a service to its lessors made such coverage available to its leased operators under a group insurance policy written by defendant. See id. at paras. 2, 6-8 and Exhibit B. The policy was in full force and effect at all times material to this action, and plaintiff was insured under that policy. The instant action centers around the following exclusionary language contained in the insurance policy:

 
It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability and Property Damage Liability does not apply;
 
(a) To any person or organization, or any agent or employer thereof other than the insured owner-operator, engaged in the business of transporting property by automobile for others;
 
(b) While the automobile or any trailer attached thereto is used to carry property in any business;
 
(c) While the automobile is being used in any business of Daily Express, Inc., or of any person or organization engaged in the business of transporting property by automobile for others.

 See document 21 of record, Exhibit B, Endorsement No. 1.

 Prior to August 23, 1983, plaintiff was dispatched and did carry a load of goods on his rig to Enfield, Connecticut at the direction of Daily Express. After delivering the goods, plaintiff did not return to the place of business of Daily Express, to the point of origin of the trip, or to his place of residence. Instead, he drove his rig to Ashley Falls, Massachusetts where his equipment was loaded with logs to be delivered to or on behalf of Richard Myers in Moscow, Pennsylvania. See document 21 of record, at paras. 11-12.

 Delivery of the logs was to be made either on behalf of Country Log Homes, Ashley Falls, Massachusetts or Richard Myers, who was doing business as Country Village Log Homes. Country Log Homes is in the business of designing, manufacturing, selling, and distributing logs with designs for the construction of log homes, and Country Village Log Homes is in the business of selling, distributing, and constructing log homes with the use of logs and designs supplied by Country Log Homes. Hauling these logs was a departure from the business of Daily Express and was outside the scope of plaintiff's contractual relationship as plaintiff was not hauling any items for Daily Express at the time. In exchange for hauling the logs to Lake Ariel, Pennsylvania, plaintiff was to be paid approximately $ 200 by Richard Myers. Id. at paras. 13-17.

 During the course of the trip from Ashley Falls, Massachusetts to Lake Ariel, the accident giving rise to the instant dispute occurred. According to the civil complaint filed in the Supreme Court of New York, one or more of the manufactured logs being hauled on plaintiff's rig fell onto the highway. It is further alleged that one of the plaintiffs in the underlying accident, Julius E. Swarts, attempted to remove the log from the highway and sustained injury when he was struck by an automobile being operated by Mamie H. Seruby, a named defendant. Plaintiffs in the underlying action contend that Wenkosky was negligent in allowing the logs to fall from his rig. *fn1"

 Plaintiff Wenkosky filed the instant action on July 27, 1987 in the Wayne County Court of Common Pleas after defendant issued a disclaimer based on the exclusionary language quoted above. Plaintiff seeks a declaration that the policy affords coverage for the underlying accident, that the disclaimer is void, and that defendant is obligated to defend and indemnify him against any claims arising from the August 23 accident. Defendant removed the action to this court on August 19, 1987, claiming the existence of diversity jurisdiction. The case was placed on this court's May 31, 1988 trial list. See document 9 of record. At the pretrial conference, the jury trial was canceled after the parties agreed to submit a stipulation of facts. See document 15 of record. That stipulation was filed on August 1, 1988. See document 21 of record. The parties also submitted testimonial affidavits and briefs, the last of which was received on August 10, 1988. See document 24 of record. This matter is now ripe for disposition.

 DISCUSSION

 Plaintiff Wenkosky was at all times relevant to this litigation a resident of Pennsylvania. Daily Express, which made the coverage here at issue available to certain of its leased operators, including plaintiff, is located in Carlisle, Pennsylvania, where the policy was delivered. The court will therefore look to the law of Pennsylvania in determining the effect to be given to the language in the instant policy. See Aetna Casualty & Surety Co. v. Farrell, 855 F.2d 146 (3d Cir. 1988). *fn2"

 The task of interpreting a contract is generally performed by a court rather than a jury. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983). The goal in interpreting an insurance contract, like any other contract, is to ascertain the intent of the parties as manifested by the language of the written instrument. Hess v. Allstate Insurance Co., 614 F. Supp. 481, 485 (W.D. Pa. 1985), aff'd, 804 F.2d 1248 (3d Cir. 1986). If the words of the policy are clear and unambiguous, the court must give the words their plain and ordinary meaning. Id.; see also Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760-761 (3d Cir. 1985); Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. at 305, 469 A.2d at 566. When a term in the policy is ambiguous, however, and the intention of the parties cannot be discerned from the face of the policy, the court, in its attempts to arrive at a reasonable construction of the policy that is in accord with the parties' apparent intention, may look to extrinsic evidence of the purpose of the insurance, its subject matter, the situation of the parties, and the circumstances surrounding the making of the contract. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir. 1982)(citing Celley v. Mutual Benefit Health & Accident Assoc., 229 Pa. Super. 475, 482-483, 324 A.2d 430, 434 (1974)). Where ambiguous, insurance contracts are to be construed strictly against the insurer, Mohn v. American Casualty Co., 458 Pa. 576, 586, 326 A.2d 346, 351 (1974), and any ambiguities are to be resolved in favor of the insured. Pacific Indemnity Co. v. Linn, 766 F.2d at 761. The language of a policy may not be tortured, however, to create ambiguities when none exist. Id. Finally, exclusions from coverage will be effective against an insured if they are clearly worded and conspicuously displayed, irrespective of whether the insured read the limitations or understood their impact. Id. (citing Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. at 307, 469 A.2d at 567).

 The court finds nothing ambiguous about the exclusionary language contained in defendant's policy. To the contrary, the court finds the exclusions to be clearly worded and unambiguous. See Ayers v. Kidney, 333 F.2d 812, 813 (6th Cir. 1964) (exclusion "while the automobile or any trailer attached thereto is used to carry property in any business" is clear and unambiguous); Central National Insurance Company of Omaha v. Liberty Mutual Insurance Co., 685 F. Supp. 123, 125-126 (D.S.C. 1988) (exclusions for "covered auto while used in the business of anyone to whom the auto is rented" must be given its plain, ordinary, and popular meaning); St. Paul Fire & Marine Insurance Co. v. Frankart, 69 Ill. 2d 209, 370 N.E.2d 1058, 13 Ill. Dec. 31 (1977) (exclusion "while the automobile or any trailer attached thereto is used to carry property in any business" must be construed according to its recognized common usage in conjunction with the rest of the policy); Brun v. George W. Brown, Inc., 56 Misc. 2d 577, 289 N.Y.S.2d 722 ...


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