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[U] Lowe's Home Centers, Inc. v. Echo Baptist Road Associates, L.P.

Superior Court of Pennsylvania

February 7, 2014

LOWE'S HOME CENTERS, INC., Appellant
v.
ECHO BAPTIST ROAD ASSOCIATES, L.P., ECHO REAL ESTATE SERVICES COMPANY, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, MCWHORTER & COMPANY, INC., AMERISURE MUTUAL INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, MYRON HALL AND DONNA HALL, APPEAL OF: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered December 20, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-11-00394

BEFORE: BENDER, P.J.E., LAZARUS, J. AND MUNDY, J.

MEMORANDUM

BENDER, P.J.E.

National Union Fire Insurance Company of Pittsburgh, PA (National Union) appeals from the order entered December 20, 2012, overruling its preliminary objections in this insurance coverage dispute. We quash the appeal.

According to the underlying complaint, Echo Baptist Road Associates, L.P. and Echo Real Estate Services Company (collectively, Echo) contracted with Lowe's Home Centers, Inc. (Lowe's), to construct a Lowe's store located at 5775 Baptist Road, Bethel Park, PA 15102. In turn, Echo and/ or Lowe's contracted with McWhorter and Company, Inc. (McWhorter) to provide construction services.

Echo purchased primary, commercial general liability (CGL) coverage from Travelers Property Casualty Company of America (Travelers). Echo also purchased an excess policy from Travelers. McWhorter purchased a CGL policy from Amerisure Mutual Insurance Company (Amerisure) and an excess policy from National Union. On each policy identified, Lowe's was named an additional insured.

In January 2007, Myron Hall, an employee of McWhorter, was injured while working at the Lowe's construction site. In January 2009, Mr. Hall and Donna Hall, his wife, commenced a negligence action, seeking damages from Lowe's and Echo. Lowe's requested that Amerisure and National Union provide a defense and indemnification on Lowe's behalf. Amerisure and National Union refused, denying any obligation to defend or indemnify Lowe's in the Hall litigation.

In January 2011, Lowe's commenced this action, seeking a declaration of its rights and specifically requesting an order declaring that, upon exhaustion of the Amerisure policy, National Union has a duty to defend and indemnify Lowe's in the Hall litigation. National Union filed preliminary objections in the nature of a demurrer, contending that Lowe's was not an additional insured and that an em ployer liability exclusion barred coverage. The trial court overruled National Union's preliminary objections, stayed Lowe's claim against it, and issued an opinion in support of its decision. National Union appealed.[1]

National Union raises several arguments asserting that the trial court erred, substantively and procedurally, in disposing of its preliminary objections. See Appellant's Brief at 2- 3.[2] Initially however, we must determine whether the trial court order is appealable.

Lowe's contends that National Union has appealed from an interlocutory order. According to Lowe's, it sought a declaration that National Union's obligations under the insurance policy issued to McWhorter are triggered upon the exhaustion of the Amerisure policy. To date, according to Lowe's, the trial court has failed to enter a decision disposing of Lowe's claim. Rather, the court merely overruled National Union's preliminary objections and stayed Lowe's claim. Therefore, Lowe's concludes, National Union's appeal is premature and must be dismissed. We agree.

As noted by National Union, a trial court's order is final and appealable where it is expressly defined as such by statute. See Pa.R.A.P. 341(b)(2). The pertinent statute provides:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claim ed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

42 Pa.C.S.A. § 7532. Thus, for example, an order sustaining a demurrer in a declaratory judgment action is final and appealable. See Safe Harbor Water Power Corp. v. Fajt, 876 A.2d 954, 967-68 (Pa. 2005) (citing Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813 (Pa. 2000)). However, where the court has merely overruled preliminary objections, its order has "no greater effect" than to perm it a com plaint "to go forward." Fajt, 876 A.2d at 968 (distinguishing Wickett, 763 A.2d at 817-18)).

I n this case, the trial court overruled National Union's preliminary objections and stayed Lowe's claim against it. The court made no affirmative or negative declaration of Lowe's rights as they relate to National Union. Accordingly, its order entered December 20, 2012, is neither final nor appealable.[3]

Appeal quashed.

Judgment Entered.


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