The opinion of the court was delivered by: EDMUND V. LUDWIG
Defendant Hartford Accident and Indemnity Co. moves for reconsideration of the denial of summary judgment.
On April 11, 1985 a crane operator's assistant, Bradley Miller, was electrocuted at a construction site on the Schuylkill Expressway. The crane operator, John Zelanko, was seriously injured. The accident took place when the crane came into proximity with an overhead high voltage wire.
Plaintiff L. Robert Kimball Associates was under contract with PennDoT to make certain inspections during the job. In the lawsuits that followed, both of Kimball's insurers, Continental Casualty and Hartford, joined in providing a defense, but Hartford refused to participate in the settlements. In the present action, Kimball also sues to recover its co-payment of $ 250,000.
Hartford's insurance policy contained an exclusion for claims based on the rendering of "professional services." Hartford policy, endorsement form L-3054-1. Hartford's position is that any fault on Kimball's part necessarily involved professional services - the utilization of expertise - and that Hartford is, therefore, entitled to summary judgment as a matter of law.
Judge Giles' opinion, focusing on Kimball's contractual duties, held that the type of safety inspections called for by the contract were not in the nature of professional services. Hartford contends that this decision stopped short of the dispositive issue: If Kimball's conduct was actionable, professional services had to have been involved. Or, more concretely, if Kimball's employees should have prevented the accident from happening, a level of expertise - and, in turn, professional services - must have been required, triggering the insurance policy exclusion.
At the summary judgment stage, it can not be said that any legal responsibility for the accident must have originated in a duty to provide "professional services." The maintenance of a safe workplace may not entail any expertise. Judge Giles Memorandum at 10. In the performance of a particular contract, both professional and non-professional services may be involved. A contract that contemplates non-professional services may, in some instances, necessitate expert knowledge in order to appreciate and avoid a latent or an esoteric danger. Merely because expertise may have been essential to the understanding of a given peril - here, the danger of the high voltage wire - does not by itself categorize Kimball's contractual services as professional.
Moreover, the deposition of Kimball's general counsel does not demonstrate that underlying plaintiffs' claims were unequivocally related to "professional services." Hartford's motion for reconsideration at 10; Myers deposition at 51-67. On this subject, the deposition testimony is inconsistent and suggests that the claim could have been founded on Kimball's breach of a non-professional duty. See Myers deposition at 26-27, 96-98. Also, the affidavits dated December 8, 1993, submitted by Hartford on December 9, 1993, do not justify summary judgment. Instead, the triable issue remains whether the basis for the underlying settlement entailed professional or non-professional services.
Hartford's summary judgment motion also contests the "reasonableness" of the settlements. It argues that Kimball should have expected to prevail on appeal even if it had lost at the trial level. Given the settlement recommendations of the trial judge and the obvious potential for liability, it can not be said that the prospects of an appeal should have excluded or even disfavored settlement as a "reasonable" litigation decision open to Kimball. Myers deposition at 26-27, 136-139; exhibit C of defendant Hartford's reply memorandum of April 19, 1993 (letter of counsel regarding settlement of underlying case). See Trustees of Univ. of Pa. v. Lexington Ins. Co., 815 F.2d 890, 902-903 (3d Cir. 1987).