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Barnes v. Keller

November 27, 2012

GEORGE BARNES, APPELLANT
v.
WARREN G. KELLER
v.
WESTFIELD GROUP, A/K/A, D/B/A, T/A WESTFIELD INSURANCE COMPANY, APPELLEE



Appeal from the Order Entered August 1, 2011, In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 03918 May Term, 2010.

The opinion of the court was delivered by: Shogan, J.

BEFORE: SHOGAN, LAZARUS and PLATT*fn1 , JJ.

Appellant, George Barnes, appeals from the August 1, 2011 order entering summary judgment in favor of Appellee, Westfield Group, a/k/a, d/b/a, t/a Westfield Insurance Company. We reverse and remand for further proceedings consistent with this Opinion.

The relevant facts of this case were aptly set forth by the trial court as follows:

At the time of the occurrence giving rise to this litigation, George Barnes (hereinafter "Plaintiff") was employed by McGovern, Inc. as a field service technician. (Plaintiff's Amended Complaint, ¶ 4). McGovern, Inc. maintained a policy of insurance with Westfield, and Plaintiff was an insured under the policy. (Plaintiff's Amended Complaint, 5-6). Plaintiff was assigned to a Wawa convenience store located at 9201 Frankford Avenue, Philadelphia, PA when an unidentified driver backed out of a parking space, striking the Plaintiff. (Plaintiff's Amended Complaint, ¶¶ 7-8).

Dennis McCliver [sic] of McGovern had assigned Plaintiff to the Wawa on the date of the accident to unblock a clogged pipe. (Plaintiff's deposition attached as Exhibit "B" to Defendant's Motion for Summary Judgment, pg. 105 ln. 24 and p. 106 ln. 1). Plaintiff was provided with a McGovern-owned cargo van, attached by tow hitch n1 to an FMC, high-powered jetter. Id. at pg. 58, ln. 9-16, pg. 61, ln. 12-16).

n1 The jetter trailer could also be attached to the van with an electrical connection, which controlled the brake lights and turn signals. Id. at pg. 63, ln. 13 and pg. 63, lns. 19-24.

In his deposition, the Division Manager for McGovern, Alan Tulish[,] describes the jetter as "a portable unit that has to be transported from one point to another with another vehicle." (Alan Tulish's deposition attached as Exhibit "C" to Defendant's Motion for Summary Judgment, pg. 25, ln. 3-5). Mr. Tulish further explains that the jetter has a diesel engine fueled separately from the transporting vehicle and that it is "a self- sufficient unit that basically what it's designed to do is go to locations, be set there and get run by itself and you can just leave it there and use the jetter as needed." Id. at pg. 27, ln. 19-23) [sic]. The van can be positioned anywhere on the site because the jetter is operated separately and independently of the van. Id. at pg. 51, ln. 31-24, pg. 52, ln. 19-23, pg. 53, ln. 5-8, 20-21. Mr. Tulish also testified that all of the equipment necessary to clear a drain should be kept with the jetter.

Upon arriving at the job site, Plaintiff testified that he parked the van, turned on the flashers and beacon,n2 and retrieved his gloves, hooks and cones from the van. (Plaintiffs deposition attached as Exhibit "B" to Defendant's Motion for Summary Judgment, pg. 134 ln. 20-21 and p. 135-36). He then cordoned off his work area with the cones according to McGovern safety procedure and notified Wawa's manager of his arrival. Id. at pg. 197, ln. 11-19.

n2 Mr. Tulish and Mr. Cliver testified that McGovern safety procedures do not require technicians to engage the flashers or strobe lights on the van while the jetter is in use. (Alan Tulish's deposition attached as Exhibit "C" to Defendant's Motion for Summary Judgment, pg. 44, ln. 11-13; Dennis Cliver's deposition attached as Exhibit "D" to Defendant's Motion for Summary Judgment, pg. 71, ln. 5-11).

After Plaintiff spoke with Wawa's manager, Plaintiff then lifted the grate covering the blocked drain, realized he needed a pump truck in addition to the jetter to complete the job, and notified Dennis Cliver of McGovern. (Plaintiff's deposition attached as Exhibit "B" to Defendant's Motion for Summary Judgment, pg. 146, ln. 18-23, pg. 147, ln. 8-10, pg. 144, ln. 20- 24). Plaintiff testified that Mr. Cliver instructed Plaintiff to "see what [he] could do" while waiting for the pump truck to arrive. Id. at pg. 146, ln. 4-5, pg. 151, ln. 7-10. Plaintiff explained that after he had located the blocked pipe with his hook, he was attempting to feed the hose from the jetter into the pipe when he was struck by an unidentified vehicle. Id. at pg. 154, ln. 2-6. Plaintiff could not recall whether or not the pressure on the jetter had been set at the time he was hit. Id. at pg. 155, ln, 5-7, pg. 169, ln. 15-18.

When Plaintiff was struck by the unidentified driver, the force of the impact caused Plaintiff to fall to the left of the storm drain, and he proceeded to yell at the driver of the vehicle and then went to retrieve his cell phone from the van. Id. at pg. 170, ln. 7-14, pg. 171, ln. 16-24. Following the accident, Ron Yergey, another McGovern employee, arrived at the scene with the pump truck. He notified Mr. Tulish that nothing had been done to clear the drain, and Plaintiff was waiting for him to arrive with the pump truck. (Alan Tulish's deposition attached as Exhibit "C" to Defendant's Motion for Summary Judgment, pg. 56, ln. 12-20).

Plaintiff commenced this action by filing his Complaint on May 28, 2010. (See Docket). After Westfield filed Preliminary Objections to Plaintiff's Complaint on July 6, 2010, Plaintiff filed an Amended Complaint on July 23, 2010. Id. Westfield filed Preliminary Objections to Plaintiff's Amended Complaint on August 19, 2010, which were overruled on September 23, 2010. Id. Thereafter, Westfield filed an Answer with New Matter and Counterclaim to Plaintiff's Amended Complaint on October 13, 2010. Id. Plaintiff filed Preliminary Objections to Westfield's Answer with New Matter and Counterclaim on November 2, 2010, Westfield filed an Answer on November 22, 2010, and Plaintiff filed a Reply on December 2, 2010. Id. On December 9, 2010, this Court overruled Plaintiff's Preliminary Objections. Id.

Westfield filed a Motion to Dismiss on January 19, 2011, Plaintiff filed an Answer on February 9, 2011, and Defendant filed a Brief in Support of the ...


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