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Modern Equipment Sales & Rental Co. v. Main Street America Assurance Co.

Superior Court of Pennsylvania

December 15, 2014

MODERN EQUIPMENT SALES & RENTAL CO., Appellant
v.
MAIN STREET AMERICA ASSURANCE COMPANY, UNITED CONSTRUCTION SERVICES, INC., AND RUICK AND HOLLY ROLLAND, H/W, Appellees

Appeal from the Order Dated November 29, 2012, In the Court of Common Pleas of Chester County. Civil Division at No(s): 11-11713-CT. Before MAHON, J.

Michael T. McDonnell III, Philadelphia, for appellant.

Andrew J. Gallogly, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J., SHOGAN, J., ALLEN, J., LAZARUS, J., WECHT, J., and STABILE, J.

OPINION

BENDER, P.J.E.

Modern Equipment Sales & Rental Co. (Modern) appeals from the order dated November 29, 2012, denying partial summary

Page 785

judgment to Modern and granting summary judgment to Main Street America Assurance Company (Main Street) in this declaratory judgment action. Following our review of the record, it is apparent that the order issued by the trial court does not dispose of all relevant claims in this matter. Therefore, relying upon precedent set forth in U.S. Orgs. for Bankr. Alts., Inc. v. Dep't of Banking, 611 Pa. 370, 26 A.3d 474 (Pa. 2011) (Bankruptcy Alternatives), and Pa. Bankers Ass'n v. Pa. Dep't of Banking, 597 Pa. 1, 948 A.2d 790 (Pa. 2008) (Pa. Bankers), we quash.

In August 2009, United Construction Services, Inc. (UCS) leased a track loader from Modern. Through its agent, Bruce Irrgang, UCS permitted and/or directed Senn Landscaping, Inc. (Senn Landscaping) to use the track loader to remove silt from a pond located on the Irrgang property. Stephen Senn, Jr., a ten-year-old child, operated the track loader. During the course of his operation, the child lost control of the track loader, which struck and injured Ruick Rolland. As a result, Mr. Rolland's left leg was amputated.

A complaint filed on behalf of Mr. Rolland and his wife, Holly Rolland, alleged numerous acts and omissions of negligence, recklessness, and strict liability. The complaint named, inter alia, Modern and UCS as defendants.

The lease for the track loader was governed by an agreement, which required UCS " to defend, indemnify and hold harmless Modern" for claims of personal injury for which Modern may be held liable " even if caused in whole or in part by any act, omission or negligence of Modern or any third parties." See Modern First Amended Complaint, Exhibit B (Lease), at 2 (unnumbered). Further, the agreement required UCS " to add [Modern] as [an] additional insured on its commercial general liability insurance policy." Id.

UCS maintained an insurance policy issued by Main Street. See Modern First Amended Complaint, Exhibit A (Main Street Policy). The policy afforded coverage to additional insureds, defined as follows:

Any person(s) or organization(s) who is the lessor of leased equipment leased to you, and required by the lease to be included as an additional insured but only with respect to liability for " bodily injury", " property damage" or " personal use or advertising injury" caused in whole or in part, by your maintenance, operation or use by you of equipment leased to you by such person(s) or organization(s).

Main Street Policy, " Contractors Extension Endorsement," at 1. The terms, " you" and " your," as set forth above, are defined in the policy to mean UCS and Spackle Drywall, LLC (not a party to this or the underlying case). See Main Street Policy, " Business Owners Coverage Form, Section II -- Liability," at 1; Main Street Policy, " Schedule of Named Insured(s)," at 1 (modifying the named insured identified in ...


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