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L.F. DRISCOLL CO. v. AMERICAN PROTECTION INS. CO.

April 24, 1996

L.F. DRISCOLL COMPANY V. AMERICAN PROTECTION INS. CO.


The opinion of the court was delivered by: NEWCOMER

 Presently before the Court is defendant American Protection Insurance Company's ("AMPICO's") Motion for Summary Judgment, plaintiff L.F. Driscoll Company's ("Driscoll's") response thereto, and AMPICO's reply brief thereto. For the reasons stated below, this Court will grant AMPICO's motion for summary judgment.

 I. Background

 Driscoll brought this breach of contract action against its insurance company, defendant AMPICO. The undisputed facts are as follows. Driscoll is a construction company that contracted to build the Stokes Research Center at the Children's Hospital of Philadelphia ("CHOP"). Driscoll subcontracted out work involving the installation of roofs on the third, sixth and thirteenth floors of the Research Center. All three roofs were completed by December 9, 1994.

 During the remaining construction of the Research Center, the roofs incurred damage, causing them to leak. The parties agree that the cause of the damage was the negligence of the subcontractors. AMPICO's Memorandum of Law in Support of Defendant's Motion for Summary Judgment at 8; Driscoll's Memorandum of Law in Response to AMPICO's Motion for Summary Judgment at 2, 4. More specifically, after the roofs had been constructed, the subcontractors, supervised by Driscoll, continued "extensive trade activity," on the rest of the Research Center until March 8, 1995. This "trade activity" included storing materials directly on the roofs and carrying or dragging heavy materials or equipment across the roofs. Driscoll's Response at 4. The parties dispute the extent to which Driscoll protected the roofs or warned its subcontractors to protect the roofs during this time.

 CHOP maintained an "all-risk" standard property insurance policy ("the Policy") with defendant AMPICO. On July 1, 1994, CHOP added Driscoll and its subcontractors as additional insureds under the Policy. After discovering that the roofs leaked, CHOP submitted a claim to AMPICO for approximately $ 350,000 for the damage suffered. AMPICO denied the claim, maintaining that the loss suffered by CHOP was caused by faulty workmanship, which the Policy excluded. Driscoll then filed the present action against AMPICO for breach of insurance contract. AMPICO answered and counterclaimed for a declaratory judgment that AMPICO is not obligated to pay. *fn1" AMPICO now moves for summary judgment on its counterclaim. For the reasons that follow, this Court will grant AMPICO's motion.

 II. Legal Standard

 A trial court may enter summary judgment if, after review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983); Bank of America Nat'l Trust and Savings Ass'n v. Hotel Rittenhouse Assoc., 595 F. Supp. 800, 802 (E.D. Pa. 1984). Where no reasonable resolution of the conflicting evidence and inferences therefrom, when viewed in a light most favorable to the nonmoving party, could result in a judgment for the nonmoving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981)); Vines v. Howard, 676 F. Supp. 608, 610 (E.D. Pa. 1987).

 The party moving for summary judgment has the burden of proving that there are no genuine issues as to any material fact, and that he is entitled to judgment as a matter of law. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3rd Cir. 1981); Cousins v. Yaeger, 394 F. Supp. 595, 598 (E.D. Pa. 1975). The burden then shifts to the non-moving party to present opposing evidentiary material beyond the allegations in the Complaint showing a disputed issue of material fact. Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3rd Cir. 1982); Goodway Marketing, Inc. v. Faulkner Advertising, Inc., 545 F. Supp. 263, 265, 267-68 (E.D. Pa. 1982). The non-moving party must present sufficient evidence for a jury to return a verdict favoring that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 III. Discussion

 A. Issue Presented

 AMPICO contends that the loss falls within one of four exclusions to coverage in the Policy. AMPICO's Motion for Summary Judgment thus presents the following issue of interpretation for this Court: whether the loss was "caused by" or "results from" any one of the following exclusions listed in Section C of the Policy:

 
(1) Exclusion # 4 : faulty workmanship, material, construction or design; or errors in the development, processing, or manufacture of products; or work being performed upon property and directly attributable thereto; except ensuing loss from a peril not otherwise excluded by this Policy;
 
(2) Exclusion # 23 : neglect of the insured to use all reasonable means to save and preserve the ...

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