Opinion
J.A19042/13 No. 3494 EDA 2012
03-03-2014
MODERN EQUIPMENT SALES & RENTAL CO., Appellant v. MAIN STREET AMERICA ASSURANCE COMPANY, UNITED CONSTRUCTION SERVICES, INC. AND RUICK AND HOLLY ROLLAND, H/W Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated November 29, 2012
In the Court of Common Pleas of Chester County
Civil Division No(s).: 11-11713-CT
BEFORE: BENDER, PANELLA, and FITZGERALD, JJ. DISSENTING MEMORANDUM BY BENDER, P.J.:
Former Justice specially assigned to the Superior Court.
Respectfully, I dissent. Appellant is entitled to a defense from Main Street America Assurance Company (Main Street) because the liability coverage provided by Main Street encompasses coverage for bodily injury arising out of the negligent entrustment of equipment leased by Appellant to United Construction Services, Inc. (UCS). See Wilcha v. Nationwide Mut. Fire Ins. Co., 887 A.2d 1254, 1263-64 (Pa. Super. 2005) (concluding that "use" of an automobile included the "negligent entrustment" of that automobile).
In my view, Wilcha is persuasive. I recognize that the precise issue addressed was whether an insurance policy exclusion precluded coverage. See Wilcha, 887 A.2d at 1269. However, it is well established that exclusionary clauses are strictly construed against the insurer and in favor of the insured. See Swarner v. Mut. Benefit Grp., 72 A.3d 641, 645 (Pa. Super. 2013) (citing Kropa v. Gateway Ford, 974 A.2d 502, 507 n.4 (Pa. Super. 2009)). Thus, if "use" encompasses "negligent entrustment" within the exclusionary clause found in Wilcha, it follows that "use" must include "negligent entrustment" within the provision of the coverage at issue here.
I also disagree with the learned Majority's reliance upon the policy exclusion for personal injuries arising out of the use or entrustment to others of any aircraft, "auto," or watercraft. See First Amended Complaint, Exhibit A, Business Owners Coverage Form, Section II - Liability (Main Street Policy), at 5. This exclusion does not apply to "mobile equipment" such as the track loader leased by Appellant to UCS. See Main Street Policy at 12 (defining "auto" and providing that "'auto' does not include 'mobile equipment.'") and 14 (defining "mobile equipment").
For these reasons, I dissent.