The opinion of the court was delivered by: McCLURE, District Judge.
Hanes had the truck modified when he purchased it in 1979.
The work, which consisted of lengthening the frame and
installing an engine, was performed by the seller, Peffer
Trucks, before Hanes took delivery. Hanes gave Peffer
specifications, such as the dimensions of the body he intended
to place on the frame and the weight of the gross load, but did
not oversee the work and was not present when it was done.
Immediately after Peffer's work was completed, the truck was
inspected and then taken to Hostetler's Body Shop, where a
dump-hoisted grain body was installed. Again, Hanes did not
oversee the work, but did discuss his requirements, such as the
capacity of the hoist, with Hostetler. Following completion of
Hostetler's modifications, Hanes did not make any further
modifications to the truck and used it on his farm*fn5 for
three or four years without incident. When he no longer had use
for it, he sold it as used equipment. It was subsequently
purchased by Jones' employer, Clark Trucking Company, at an
auction in 1983. (Record document no. 22, filed April 1, 1991,
paras. 10-24; record document no. 28, filed April 30, 1991; and
record document no. 27, filed April 30, 1991, pp. 3-4)
Based on these facts, which are undisputed, and on the
provisions of the policy, Federal Kemper has filed a motion
(record document no. 22, filed April 1, 1991) for summary
judgment. For the reasons which follow, we find that the policy
exclusion negating coverage for work performed by independent
contractors applies and that Federal Kemper is not obligated to
defend or indemnify Hanes in the state court action. Its motion
for summary judgment will therefore be granted.
A. Motion for summary judgment standard
Summary judgment is appropriate if the "pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c) (Emphasis supplied).
. . [T]he plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who
fails to make a showing sufficient to establish
the existence of an element essential to that
party's case, an on which that party will bear the
burden of proof at trial. In such a situation,
there can be `no genuine issue as to any material
fact,' since a complete failure of proof
concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial. The moving party is `entitled to
judgment as a matter of law' because the nonmoving
party has failed to make a sufficient showing on
an essential element of her case with respect to
which she has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating
the basis for its motions and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. He or she can discharge that burden by "showing
. . . that there is an absence of evidence to support the
nonmoving party's case." Celotex, supra at 323 and 325, 106
S.Ct. at 2552-53 and 2553-54.
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented, could find for the
non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d
Cir. 1988), citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).
Material facts are those which will affect the outcome of the
trial under governing law. Anderson, supra, 477 U.S. at 248,
106 S.Ct. at 2510. In determining whether an issue of material
fact exists, the court must consider all evidence in the light
most favorable to the non-moving party. White v. Westinghouse
Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).
B. Pennsylvania insurance law
Interpretation of the policy and resolution of the question
of Federal Kemper's duty to defend and indemnify are governed
by Pennsylvania insurance law.*fn6 The presumptions which
apply depend upon whether the policy language at issue is
ambiguous or unambiguous. In deciding this question, courts
should read the policy with an eye toward avoiding ambiguities
and take care not to torture policy language to create
uncertainties where none exist. Northbrook Insurance Co. v.
Kuljian Corp., 690 F.2d 368, 372 (3d Cir. 1982), (applying
Policy language is ambiguous if reasonable persons could
honestly differ as to its meaning, i.e. if it is susceptible of
more than one meaning. If found to be ambiguous, the
ambiguities are to be resolved in favor of the insured and in
a manner consistent with his reasonable expectations when he
contracted for coverage. This precludes insurers from
insulating themselves from their contractual obligations by
inserting "overly-subtle or technical interpretations" in an
unfair attempt to defeat the reasonable expectations of
the insured. Harford Mutual Insurance Co. v. Moorhead,
396 Pa. Super. 234, 578 A.2d 492, 495 (1990),*fn7 alloc. denied,
527 Pa. 617, 590 A.2d 757 (1991). This rule favoring the
insured applies even if the insured is a ...