United States District Court, E.D. Pennsylvania
Mar 3 2004
UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff
LEHIGH VALLEY ICE ARENA, INC., Defendant vs. PHILIP WAGONER, PAUL GETZ, NATHAN BEIL, MICHAEL TOTH, MICHAEL MACAULAY, MAXIMILLIAN SORENSEN, MATTHEW C. SMITH, JOHN YORKS, JEFFREY DAHLGREN, EDWARD KEEGAN, DOMENICO GALATI, DANIEL REINERT, DALE HOWE, JENNIFER LYNN WINCER, BRIAN WINCER, BRANDON MURPHY, WILLIAM CLEARY, BENJAMIN WESTERMANN AND ANDREW KOCH, and JOHN M. FOX, Intervenors
The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge Page 2
This matter is before the court on Plaintiff, United States Fidelity
and Guaranty Company's Motion for Summary Judgment filed December 23,
2003 and the Cross-Motion for Summary Judgment of Defendant Lehigh
Valley Ice Arena, Inc. filed January 16, 2004.*fn1 Because we
conclude that the
unambiguous language of the insurance contract governing the
relationship between plaintiff and defendant excludes coverage for the
averments made by the intervenors in the underlying state court action,
we grant plaintiff's motion for summary judgment and deny defendant's
cross-motion for summary judgment.
The within civil action was initiated by a Complaint filed October
14, 2003 on behalf of United States Fidelity and Guaranty Company
("USF & G"). Plaintiff seeks a declaratory judgment pursuant to
28 U.S.C. § 2201. The action is before the court on diversity of
citizenship jurisdiction.*fn2 See
28 U.S.C. § 1332. Venue is appropriate because the defendant may be found in Lehigh
County, Pennsylvania, and the facts and circumstances giving rise to the
cause of action appear to have occurred in Lehigh County.
See 28 U.S.C. § 118, 1391.
Based upon the pleadings and record papers, the following are the
On July 10, 2003, Andrew Koch, Benjamin Westermann, William
Cleary, Brandon Murphy, Brian Wincer, Jennifer Lynn Wincer, Dale Howe,
Daniel Reinert, Domenico Galati, Edward
Keegan, Jeffrey Dahlgren, John Yorks, Matthew C. Smith,
Maximillian Sorensen, Michael MacAulay, Michael Toth, Nathan Beil, Paul
Getz and Philip Wagoner (collectively referred to as the "Koch
intervenors"*fn3) filed a Complaint against Lehigh Valley Ice Arena,
Inc. ("Lehigh Valley") and Resurfix, Inc.*fn4 in the Court of Common
Pleas of Philadelphia County, Pennsylvania. Subsequently, the Koch
intervenors filed a First Amended Complaint in the Court of Common Pleas.
This First Amended Complaint asserts causes of action sounding in
negligence against Lehigh Valley and Resurfix, Inc.
In their First Amended Complaint, the Koch intervenors make a
number of factual averments. They claim that they were all members and
associates of the Millersville
University ice hockey team. They claim that on or about
September 29, 2002, the team traveled to Lehigh Valley's ice arena to
play an intercollegiate game with the Lafayette College ice hockey
When the Koch intervenors arrived at the rink they prepared for
the game in the visiting team's locker room. They claim that this locker
room was located near the storage area in which Lehigh Valley stored its
Zamboni machine. While the team was at the arena, the Koch intervenors
aver that they were exposed to harmful levels of carbon monoxide and
The Koch intervenors specifically aver that the carbon monoxide
and nitrogen dioxide emanated from the Zamboni machine. They further
contend that the gases flowed through, but were not caused by, the
arena's heating and ventilation system. As a result of the exposure to
these gases, the Koch intervenors aver that they were harmed.
On November 10, 2003, John M. Fox, another member of the
Millersville University ice hockey team, filed a Complaint against Lehigh
Valley and Resurfix, Inc. in the Court of Common Pleas of Philadelphia
County, Pennsylvania. Mr. Fox's averments are equivalent to those made by
the Koch intervenors.
Although USF&G expressly reserved its rights under
the insurance contract, USF & G retained counsel on behalf of Lehigh
Valley, and that counsel entered an appearance in the underlying state
court action. On October 14, 2003, USF & G determined that the
conduct averred in the underlying Koch complaint did not fall within the
coverage of its insurance contract with Lehigh Valley. Accordingly, in a
letter sent from USF & G to Lehigh Valley, USF & G disclaimed
coverage and notified Lehigh Valley that it would discontinue its defense
of the state court action. Subsequently, during the course of this
litigation, the Fox complaint was filed. During the Rule 16 conference
held by the undersigned on December 9, 2003, the parties agreed to
incorporate the Fox matter into this action.
Standard for Summary Judgment
Summary judgment is proper when no genuine issue of material fact is in
dispute and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Federal Home Loan Mortgage Corp.
v. Scottsdate Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003).
"Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986);
see Federal Home Loan Mortgage Corp., 316 F.3d at
Thus, a "material" fact is one that is necessary to establish an
element under the substantive law governing a claim. A fact is "genuine"
if it is such that a reasonable factfinder could return a verdict for the
non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510,
91 L.Ed.2d 211.
An insurer's duty to defend and to indemnify its insured under
Pennsylvania law is summarized as follows:*fn5
The duty to defend is a distinct obligation
separate and apart from the duty to
indemnify. Erie Ins. Exchange v.
Transamerica Ins. Co., 516 Pa. 574, 582,
533 A.2d 1363, 1368 (1987). The duty to defend
arises whenever claims asserted by the injured
party potentially come within the coverage of the
policy, Gedeon v. State Farm Mutual
Automobile Ins. Co., 410 Pa. 55, 56,
188 A.2d 320, 321 (1963), while the
duty to indemnify arises only when the
insured is determined to be liable for damages
within the coverage of the policy. See,
e.g., Employers Reinsurance Corp. v.
Sarris, 746 F. Supp. 560, 566-68 (E.D.
Pa. 1990). It follows then, that when the claims
in the underlying action have not been
adjudicated, the court entertaining the
declaratory judgment action must focus on whether
the underlying claims could potentially come
within the coverage of the policy. Air
Products and Chemicals, Inc. v. Hartford Accident
and Indemnity Co., 25 F.3d 177, 179 (3d
Cir. 1994). If there is a possibility that any of
the underlying claims could be covered by the
policy at issue, the insurer is obliged to provide
a defense at least until such time as those facts
are determined, and the claim is narrowed to one
patently outside of coverage. C.
Raymond Davis & Sons, Inc. v. Liberty Mut.
Ins. Co., 467 F. Supp. 17, 19 (E.D.
Pa. 1979). On the other hand, if there is no
possibility that any of the underlying claims
could be covered by the policy at issue, judgment
in the insurer's favor with regard to the duty to
defend and indemnification is appropriate.
See, e.g., Germantown Ins. Co. v.
Martin, 407 Pa. Super. 326,
595 A.2d 1172 (1992), alloc.
denied, 531 Pa. 646, 612 A.2d 985
Britamco Underwriters, Inc. v. Stokes, 881 F. Supp.
196, 198 (E.D. Pa. 1995).
An insurer's duty to defend is determined solely from the
allegations in the underlying complaints giving rise to the claim against
the insured. See General Accident Insurance Company
of America v. Allen, 708 A.2d 828, 830 (Pa. Super. 1998);
Lebanon Coach Company v. Carolina Casualty Insurance Company,
450 Pa. Super. 1, 15, 675 A.2d 279,
286 (1996); Stidham v. Millvale Sportsman's
Club, 421 Pa. Super. 548, 564, 618 A.2d 945, 953-54 (1992).
"[T]he particular cause of action that a complainant pleads is not
determinative of whether coverage has been triggered. Instead it is
necessary to look at the factual allegations contained in the
complaint[s]." Mutual Benefit Insurance Company v. Haver,
555 Pa. 534, 538-539, 725 A.2d 743, 745 (Pa. 1999);
see Agora Syndicate, Inc. v. Levin, 977
F. Supp. 713, 715 (E.D. Pa. 1997).
Our determination of the duty to defend under an insurance policy
is a question of law requiring only an examination of the language of the
policy and the allegations in the underlying complaints.
Gene's Restaurant, Incorporated v. Nationwide Insurance
Company, 519 Pa. 306, 308, 548 A.2d 246, 246-247 (
If the parties to the insurance contract choose not to be their
own lexicographer, then an insurance policy must be read as a whole and
be construed according to the plain meaning of its terms. C.H.
Heist Caribe Corp. v. American Home Assurance Company,
640 F.2d 479, 481 (3d Cir. 1981); Atlantic Mutual Insurance Company v.
Brotech Corporation, 857 F. Supp. 423, 427 (E.D.
Pa. 1994), aff'd, 60 F.3d 813 (3d Cir. 1995). "Where the
language of the contract is clear, a court
is required to give the words their ordinary meaning."
Brotech, 857 F. Supp. at 427; see
also Gene & Harvey Builders, Incorporated v.
Pennsylvania Manufacturers' Association Insurance Company,
512 Pa. 420, 426, 517 A.2d 910, 913 (Pa. 1986).
The burden is on the insured to establish coverage under an
insurance policy. Erie Insurance Exchange v. Transamerica
Insurance Company, 516 Pa. 574, 580, 533 A.2d 1363, 1366-1367
(Pa. 1987); Benjamin v. Allstate Ins. Company,
354 Pa. Super. 269, 272, 511 A.2d 866, 868 (1986). The burden of establishing
the applicability of an exclusion is on the insurer.*fn6
Allstate Insurance Company v. Brown, 834 F. Supp. 854,
857 (E.D. Pa. 1993); Erie Insurance Exchange,
516 Pa. at 580, 533 A.2d at 1366.
The insurance policy at issue provides in pertinent part:
SECTION I COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the
insured becomes legally obligated to
pay as damages because of "bodily
injury" or "property damage" to which
this insurance applies . . .
* * *
This insurance does not apply to:
* * *
(1) "Bodily injury" or "property damage"
arising out of the actual, alleged
or threatened discharge, dispersal,
seepage, migration, release or
escape of "pollutants":
(a) At or from any premises, site or
location which is or was at any
time owned or occupied by, or
rented or loaned to, any insured.
However, this subparagraph does
not apply to:
(i) "Bodily injury" if sustained
within a building and caused by
smoke, fumes, vapor or soot
from equipment used to heat
* * *
(d) At or from any premises, site or
location on which any insured or
any contractors or subcontractors
working directly or indirectly on
any insured's behalf are
performing operations if the
"pollutants" are brought on or to
the premises, site or location in
connection with such operations by
such insured, contractor or
subcontractor. However, this
subparagraph does not apply to:
(i) "Bodily injury" or "property
damage" arising out of the
escape of fuels, lubricants or
other operating fluids which
are needed to perform the
normal electrical, hydraulic or
mechanical functions necessary
for the operation of "mobile
equipment" or its parts, if
such fuels, lubricants or other
operating fluids escape from a
part designed to hold,
store or receive them. This
exception does not apply if the
"bodily injury" or "property
damage" arises out of the
dispersal or release of the
fuels, lubricants or other
operating fluids, or if such
fuels, lubricants or other
operating fluids are brought on
or to the premises, site or
location with the intent that
they be discharged, dispersed
or released as part of the
operations being performed by
such insured, contractor or
(ii) "Bodily injury" or "property
damage" sustained within a
building caused by the release
of gases, fumes or vapors from
materials brought into that
building in connection with
operations being performed by
you or on your behalf by a
contractor or subcontractor;
* * *
SECTION V DEFINITIONS
* * *
3. "Bodily injury" means bodily
injury, sickness or disease
sustained by a person, including
death resulting from any of these
at any time.
* * *
12. "Mobile equipment" means any of the
following types of land vehicles,
including any attached machinery or
* * *
b. Vehicles maintained for use
solely on or next to premises you
own or rent;
* * *
13. "Occurrence" means an accident,
including continuous or repeated
exposure to substantially the same
general harmful conditions.
* * *
15. "Pollutants" mean any solid,
liquid gaseous or thermal irritant
or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis,
chemicals and waste. Waste includes
materials to be recycled,
reconditioned or reclaimed.
Complaint, Exhibit B.
With coverage conceded in Section I(1), we must determine whether
the injuries alleged in the underlying complaints were caused by conduct
governed by the exclusions delineated in Section I(2). If we conclude
that the injuries alleged are excluded, we must then determine if an
exception to an exclusion is applicable. In proceeding through our
analysis we also must determine if there is any ambiguity in the terms of
the coverage, the exclusion, or the exception.
Plaintiff contends that it is not required to provide a defense to
the underlying action because the conduct which the intervenors contend
Lehigh Valley engaged in is excluded by Section I(2)(f)(1)(a).
avers that the nitrogen dioxide and the carbon monoxide which
the Zamboni machine emitted were pollutants within the meaning of Section
V(15). Plaintiff further asserts that the gases were discharged at Lehigh
Valley's premises. Accordingly, USF & G contends that the facts
averred in the underlying complaints fall squarely within the exclusion
found in Section I(2)(f)(1)(a).
Should we conclude that Section I(2)(f)(1)(a) is applicable, then
the intervenors counter that the exception found in subsection (i) is
applicable. The intervenors argue that because the offending gases were
transmitted through the heating and ventilation system the exception
found in Section I(2)(f)(1)(a)(i) is triggered. Thus, the intervenors
contend that the pollution exclusion does not prevent coverage.
However, defendant and the intervenors contend that the facts
asserted in the underlying action are not governed by Section
I(2)(f)(1)(a), but rather by Section I(2)(f)(1)(d). Upon such a finding,
they then advocate that we find the exception found in either subsection
(i) or (ii) therein applicable. Specifically, defendant and the
intervenors contend that the gases were the product of the combustion of
a "fuel, lubricant or other operating fluids" utilized by mobile
equipment within exception (i). Furthermore, they assert that
the release of the gases was "in connection with operations
being performed" by Lehigh Valley, thus, establishing exception
Finally, the intervenors contend that there is discord between
Section I(2)(f)(1)(a) and Section I(2)(f)(1)(d)(ii). Specifically, the
intervenors contend that the sections are mutually inconsistent and
create an ambiguity in the insurance contract. They continue that this
ambiguity must be read in favor of Lehigh Valley and requires that USF
& G defend the underlying action.
The insurance contract provides the elements which USF & G
must establish in order to prove that an exclusion is applicable. In the
case of the exclusion found within Section I(2)(f)(1)(a), plaintiff must
prove: (1) that there was "bodily injury" arising out of the actual,
alleged or threatened discharge, dispersal, seepage, migration, release
or escape of "pollutants"; and (2) that (1) occurred at or from any
premises, site or location which is or was at any time owned or occupied
by, or rented or loaned to, any insured. In establishing these
elements, plaintiff need not prove that these events actually occurred,
but merely that those facts are the sum of those facts averred in the
For the following reasons, we conclude that the conduct alleged
against Lehigh Valley in the underlying complaints falls within the
exclusion established in Section I(2)(f)(1)(a). In the underlying
complaints, the intervenors aver that they sustained bodily injury as a
result of inhaling the pollutants discharged from the Zamboni machine at
Lehigh Valley's arena. There is no dispute that the nitrogen dioxide and
the carbon monoxide are pollutants within the meaning defined in Section
V(15). There is also no dispute that the intervenors suffered bodily
injury as that term is defined in Section V(3). Accordingly, we conclude
the exclusion in Section I(2)(f)(1)(a) liberates USF & G from its
obligation to defend or indemnify Lehigh Valley unless an exception is
applicable or Section I(2)(f)(1)(d) requires a different result.
The exception found in Section I(2)(f)(1)(a)(i) does not compel a
different result. Because there is no averment in the underlying
complaints that the heating or ventilation system in Lehigh Valley's
arena played any more than a passive role in causing the injuries
alleged, the intervenors ask that we construe the language "smoke, fumes,
vapor or soot from the equipment used to heat the building" to mean that
any smoke, fume, vapor or soot that passes through the equipment,
than smoke, fume, vapor or soot generated by the
We do not accept the intervenors' interpretation of the word
"from". "Words of common usage in an insurance policy are to be construed
in their natural, plain, and ordinary sense." Madison
Construction Company v. The Harleysville Mutual Insurance Company,
557 Pa. 595, 608, 735 A.2d 100, 108 (1999).
"From" means: (1) "used as a function word to indicate a starting
point of a physical movement or a starting point in measuring or
reckoning or in a statement of limits"; (2) "used as a function word to
indicate physical separation or an act or condition of removal,
abstention, exclusion, release, subtraction, or differentiation"; and (3)
"used as a function word to indicate the source, cause, agent, or
basis".*fn7 This definition does not permit us to define "from" as
meaning "through" as the intervenors suggest. There is no allegation that
the nitrogen dioxide or the carbon monoxide originated from the heating
or ventilation equipment. The underlying complaint is clear that the
heating or ventilation equipment was merely a conduit and not a source of
the pollutants that caused the alleged injury.
Accordingly, we conclude that the exception found in Section
I(2)(f)(1)(a)(i) does not render the exclusion in Section I(2)(f)(1)(a)
Defendant and the intervenors contend, however, that the facts
averred in the underlying complaint should be analyzed under Section
I(2)(f)(1)(d) rather than Section I(2)(f)(1)(a). They then argue that
either exception (i) or (ii) to Section I(2)(f)(1)(d) are
In order to access the exceptions in Sections I(2)(f)(1)(d)(i) or
(ii), Section I(2)(f)(1)(d) must first be applicable. Thus, there must be
an allegation in the underlying complaint that the insured caused
"`bodily injury' . . . arising out of the . . . discharge . . .
of `pollutants' at or from any premises . . . on which any insured
or any contractors . . . are performing operations if the `pollutants'
are brought on or to the premises . . . in connection with such
operation by such insured". Thus, there must be an allegation that Lehigh
Valley brought the pollutants to the premises.
Neither Lehigh Valley nor the intervenors contend that Lehigh
Valley brought nitrogen dioxide or carbon monoxide to the arena. Rather,
the underlying complaint avers that, because the Zamboni machine was in a
state of disrepair, the engine did not properly combust the propane fuel.
result of the misfunction was that the Zamboni machine
discharged excess levels of nitrogen dioxide and carbon monoxide. Because
the nitrogen dioxide and carbon monoxide resulted from the incomplete
combustion of the propane, defendant and the intervenors argue that
bringing the propane to the premises fulfills the requirement that Lehigh
Valley brought the "pollutant" to the premises for an operation it was
In support of their contention that the propane may be considered
the "pollutant", defendant and the intervenors rely on
Madison. In Madison, the
appellant-insured, Madison, applied a substance called Euco Floor Coat to
cement. Madison then enclosed the area in which they used the floor
coating. A person who went into the enclosed area was overcome by the
fumes from the floor coat, fell, and was injured. That person then sued
Harleysville, the appellee-insurer, denied coverage to Madison
based on exclusion language similar to that presented in Section
I(2)(f)(1)(d). Madison argued that the exclusion language was
inapplicable because the Euco Floor Coat that Madison used on the cement
was a non-pollutant. In so arguing, Madison attempted to distinguish the
floor coating from the vapor, which they asserted was the pollutant.
However, the Supreme Court of Pennsylvania ruled that because
the chemical composition of the substances (the floor coating and the
vapor) was identical, "Madison [averred] a distinction without a
difference." Madison, 557 Pa. at 608, 735 A.2d at
Defendant and the intervenors do not provide any argument to
harmonize the factual distinction presented herein with that in
Madison. In Madison, the chemical
composition of the floor coat and the floor coat vapor was identical.
Here, however, the propane was broken down into several different
constituent substances, including nitrogen dioxide and carbon monoxide.
The chemical composition of propane is not similar to that of either
nitrogen dioxide or carbon monoxide.
As a result, we conclude that the act of bringing propane onto
Lehigh Valley's premises does not constitute bringing the "pollutants"
onto the premises. Because there is no allegation that the propane caused
any injury in the underlying complaint, we conclude that Section
I(2)(f)(1)(d) is inapplicable.
Because we conclude that Section I(2)(f)(1)(d) is inapplicable, we
need not address whether an exception to the exclusion is
applicable. Moreover, because Section I(2)(f)(1)(d) is inapplicable, we
need not address whether
there is a conflict between Sections I(2)(f)(1)(a) and
I(2)(f)(1)(d)(ii) or whether any ambiguity results therefrom. By
definition, because Section I(2)(f)(1)(a) is applicable and Section
I(2)(f)(1)(d) is inapplicable, there can be no overlap between the two
to cause conflict or ambiguity.
Even if Section I(2)(f)(1)(a) excludes coverage, defendant and the
intervenors argue that coverage is established by the doctrine of
reasonable expectations. Specifically, they contend that Lehigh Valley
reasonably expected that any injury caused by a Zamboni machine to be
covered by the insurance contract. Defendant and the intervenors contend
that Lehigh Valley's expectations were reasonable because it relied on
plaintiff's*fn8 expertise when defendant contracted for the
They further assert that because Zamboni machines are so closely
associated with ice arenas, that any insurance policy should be
reasonably expected to cover any conceivable harm that may arise from the
use of a Zamboni. Implicit in their argument is that Lehigh Valley was
justified in abdicating any responsibility it had to read or be bound by
the express terms of the contract. For the following reasons,
we find the doctrine of reasonable expectations inapplicable
to the facts and circumstances presented as a matter of law.
The reasonable expectations doctrine under "Pennsylvania case
law . . . dictates that the proper focus for determining issues of
insurance coverage is the reasonable expectations of the insured."
Reliance Insurance Company v. Moessner, 121 F.3d 895, 903
(3d Cir. 1997)( citing Tonkovic v. State Farms
Mutual Automobile Insurance Company, 513 Pa. 445, 521 A.2d 920
However, the doctrine has been applied only in narrow
circumstances to "protect non-commercial insured[s] from policy terms not
readily apparent", Madison, 557 Pa. at 611 n.8, 735
A.2d at 109 ( citing Collister v. Nationwide Life
Insurance Company, 479 Pa. 579, 388 A.2d 1346 (1978)), and to
"protect non-commercial insured[s] from deception",
Madison, 557 Pa. at 611 n.8, 735 A.2d at 109
(citing Tonkovic v. State Farm Mutual Automobile
Insurance Company, 513 Pa. 445, 521 A.2d 920 (1987)).*fn9
It is also applicable "where . . . an individual applies and
prepays for specific insurance coverage" and to prohibit an insurer from
unilaterally changing coverage without an
affirmative showing that the insured was notified and
understood the change regardless of whether the insured read the
policy. Reliance, 121 F.3d at 904.
Even if we were to accept an expansion of the doctrine so as to
render it applicable herein, the doctrine of reasonable expectations does
not permit the construction that defendant and the intervenors propose.
"Where . . . the language of the contract is clear and unambiguous, a
court is required to give effect to the language." Standard
Venetian Blind Company v. American Empire Insurance Company,
503 Pa. 300, 305, 469 A.2d 563, 566 (1983). "While reasonable
expectations of the insured are the focal points in interpreting the
contract language of insurance policies . . . an insured may not
complain that his or her reasonable expectations were frustrated by
policy limitations which are clear and unambiguous." Frain v.
Keystone Insurance Company, 433 Pa. Super. 462, 640 A.2d 1352,
Defendant and the intervenors do not aver that Lehigh Valley
specifically requested coverage for the conduct alleged in the underlying
complaint. Rather, Lehigh Valley asked for coverage specifically tailored
for an ice arena, and it received such a policy. Moreover, there is no
allegation that plaintiff deceived defendant or that there are
terms in the contract. Lehigh Valley received an insurance
policy designed for an ice arena that is both clear and unambiguous in
its terms. Accordingly, we conclude that Lehigh Valley could not have
reasonably expected that the insurance policy would cover the conduct
averred in the underlying complaint.
Defendant and the intervenors also contend that the doctrine of
efficient proximate cause mandates denial of plaintiff's motion for
summary judgment. They contend that the injury averred in the underlying
complaint was caused because the Zamboni machine was in a state of
disrepair and because the Zamboni machine was used while in a state of
disrepair. They claim that even if the use of the Zamboni machine is not
covered by the insurance policy, the negligent maintenance of the Zamboni
machine is covered by the policy. For the following reason, we find no
merit to this contention.
The doctrine of efficient and proximate cause holds that "[o]ne,
who negligently creates a dangerous situation, cannot escape liability
for the natural and probable consequences thereof, even though the
innocent act of a third party may have contributed to the result".
Polinelli v. Union Supply Company, 403 Pa. 547, 552,
170 A.2d 351, 354 (1961). Applying the doctrine to coverage under an
the doctrine permits coverage "when the loss is caused by a
covered peril, even though other excluded perils contributed to the
loss." Tatalovich v. Pennsylvania Natural Mutual Casualty
Insurance Company, 2003 WL 22844173 (C.P. Beaver County October
10, 2003)(Kunselman, J.).
In attempting to apply this doctrine, defendant and the
intervenors misread the doctrine and ignore the language of the insurance
policy. According to the plain language of the insurance policy, USF
& G need not defend or indemnify Lehigh Valley unless "bodily injury"
is caused by an "occurrence".*fn10 No bodily injury resulted from Lehigh
Valley permitting the Zamboni machine to fall into a state of disrepair.
Rather, it was Lehigh Valley's use of the malfunctioning Zamboni machine
that caused the harm alleged. Because there is no covered peril, we
conclude that the doctrine of efficient proximate cause is inapplicable
For all the foregoing reasons, we grant plaintiff's motion for
summary judgment, deny defendant's cross-motion for summary judgment and
issue declaratory judgment in favor of
plaintiff. We conclude that, because the complaint in the
underlying state action avers conduct excluded by Section I(2)(f)(1)(a)
of the insurance contract, plaintiff need not defend or indemnify Lehigh
Valley in the underlying state court actions brought by either the Koch
intervenors, including Jennifer Lynn Wincer, or John M. Fox.