J-A19034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE CINCINNATI INSURANCE 

COMPANY, AS SUBROGEE OF LEONARD 

S. FIORE, INC.,

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

:

Appellant :

:

v. :

:

SELECTIVE INSURANCE COMPANY OF 

SOUTH CAROLINA AND DAVID 

PHILLIPS d/b/a DA-LYN CONTRACTORS

:

:

: No. 446 EDA 2017

Appeal from the Order entered December 23, 2016

in the Court of Common Pleas of Philadelphia County,

Civil Division, No(s): December Term, 2014 No. 0175

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017

The Cincinnati Insurance Company (“CIC”), as subrogee of Leonard S. 

Fiore, Inc. (“Fiore”), appeals from the Order granting the Motion for 

Summary Judgment filed by Selective Insurance Company of South Carolina 

(“SIC”) and David Phillips d/b/a Da-Lyn Contractors (collectively 

“Defendants”), and denying CIC’s Cross-Motion for Summary Judgment. We 

affirm.

In its Opinion, the trial court set forth the relevant factual and 

procedural background, which we adopt for the purpose of this appeal. See

Trial Court Opinion, 12/23/16, at 1-4. 
J-A19034-17

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On December 23, 2016, the trial court granted Defendants’ Motion for 

Summary Judgment, and denied CIC’s Cross-Motion for Summary Judgment. 

This timely appeal followed.1

On appeal, CIC raises the following issues for our review:

1. Whether the [t]rial [c]ourt erred in granting [D]efendants’ 

[M]otion for [S]ummary [J]udgment in ruling[,] as a matter 

of law[,] that the [SIC] primary insurance policy [(“the SIC 

policy”)] was excess over the [CIC] primary insurance policy 

[(“the CIC policy”)] and the [CIC] umbrella policy [(“the CIC 

umbrella policy”)?]

2. Whether the [t]rial [c]ourt erred in denying [CIC’s] [C]ross-

[M]otion for [S]ummary [J]udgment in ruling[,] as a matter 

of law[,] that the [SIC] policy was not triggered[,] and 

required to exhaust[,] prior to the [CIC] umbrella policy[?]

3. Whether the [t]rial [c]ourt erred in determining that the [SIC] 

policy was not obligated to reimburse the defense costs 

incurred by [CIC] in the defense of Fiore and Wal-Mart in the 

Peterman lawsuit[?]

Brief for Appellant at 4. 

As CIC’s issues are related, we will address them together. In its first 

issue, CIC contends that SIC advanced only two arguments in support of its 

Motion for Summary Judgment, namely, that (1) Fiore and Wal-Mart are 

additional insureds under the SIC policy with respect to bodily injury caused 

in whole or in part by the ongoing operations of Da-Lyn Contractors (“DaLyn”); and (2) the Amended Complaint filed in the underlying Peterman

litigation lacks any allegations of Da-Lyn’s negligence. Id. at 10. CIC 

 

1 The trial court did not order CIC to file a concise statement of matters 

complained of on appeal, pursuant to Pa.R.A.P. 1925(a).
J-A19034-17

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asserts that both of SIC’s arguments were impliedly rejected pursuant to the 

trial court’s finding that the allegations of the Amended Complaint filed in 

the underlying Peterman litigation sufficiently articulated proximate 

causation attributable to Da-Lyn. Id. at 10-11. CIC claims that, pursuant to 

the indemnification provision in the contract between Fiore and Da-Lyn, DaLyn was contractually obligated to indemnify Fiore and Wal-Mart for any 

bodily injury caused by Da-Lyn’s negligence. Id. at 12-14. According to 

CIC, SIC does not dispute that the SIC policy, although excess over the CIC 

policy, applies before the CIC umbrella policy is triggered. Id. at 16-17. 

In its second issue, CIC asserts that, pursuant to the contract between 

Fiore and Da-Lyn, Da-Lyn was required to obtain commercial general liability 

coverage with a personal and advertising injury limit of $1 million, and that 

the SIC policy was, therefore, the primary coverage under the contract 

between Fiore and Da-Lyn. Id. at 18.2 CIC claims that the contract 

between Fiore and Da-Lyn also required that “[a]ll insurance must contain 

an endorsement that the insurance coverage is primary to that of WalMart’s[,] and that Wal-Mart’s policies are excess.” Id. (quoting Exhibit C to 

the Da-Lyn/Fiore Contract). CIC argues that, after the CIC policy was 

exhausted during settlement of the Peterman lawsuit, the SIC policy should 

 

2 CIC further asserts that, pursuant to the contract between Fiore and DaLyn, Da-Lyn was also required to obtain umbrella liability coverage with a 

limit of $3 million, but failed to do so. See Brief for Appellant at 18.
J-A19034-17

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have been exhausted before the CIC umbrella policy was triggered. Id. at 

19. CIC contends that, in ruling that the SIC policy was excess over the CIC 

umbrella insurance policy, the trial court failed to compare the language of 

the SIC policy to the language of the CIC umbrella policy regarding the order 

in which the policies were required to exhaust. Id. at 17. Specifically, CIC 

points to the “Other Insurance” clause in the CIC umbrella policy, which 

states as follows:

The insurance provided by this Coverage part is excess over any 

other valid and collectible insurance, other than insurance 

written specifically to be excess over this insurance, and shall 

not be contributory.

Id. at 19 (quoting the CIC Umbrella Policy, Form US 101 UM 10 02, at p. 

14). CIC asserts that, in ruling that the SIC policy was excess to the CIC 

umbrella policy, the trial court relied exclusively on the “Blanket Additional 

Insured” form included in the SIC policy, which reads as follows:

This coverage shall be excess with respect to the person or 

organization included as an additional insured by its provisions: 

any other insurance that person or organization has shall be 

primary with respect to this insurance, unless this coverage is 

required to be primary and not contributory in the contract, 

agreement or permit referred to above. 

Id. (quoting the SIC Policy, Blanket Additional Insured Form). CIC claims 

that after the $1 million limit under the CIC policy was exhausted, the SIC 

policy should have applied, pro rata, with the CIC umbrella policy until the 

Peterman settlement was fully paid. Id. at 22. CIC argues that, because 

Fiore and Wal-Mart are additional insureds under the SIC policy, the costs of 
J-A19034-17

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defending them, as incurred by CIC, qualify as recoverable “damages” under 

the SIC policy. Id. Finally, CIC contends that the contract between Fiore 

and Da-Lyn is an “insured contract” under the SIC policy, and is not subject 

to the contractual liability exclusion contained therein. Id. 

In its third issue, CIC contends, in the alternative, that if the trial 

court’s Order granting summary judgment in favor of SIC is affirmed, “there 

must also be a finding that Da-Lyn’s insurance coverage with [SIC] is 

primary and contributory over the coverage afforded to Wal-Mart.” Id. at 

25.

We review orders granting summary judgment under the following 

standard:

Summary judgment is proper only when the pleadings, 

depositions, answers to interrogatories, admissions and 

affidavits and other materials demonstrate that there is no

genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law. The reviewing court 

must view the record in the light most favorable to the non[-] 

moving party and resolve all doubts as to the existence of a 

genuine issue of material fact against the moving party. Only 

when the facts are so clear that reasonable minds could not 

differ can a trial court properly enter summary judgment.

Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007) 

(citations omitted). When considering an order granting summary judgment 

in the context of a declaratory judgment action, our scope of review is 

plenary. Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial 

Union Ins. Co., 908 A.2d 888, 895 (Pa. 2006). We will reverse the order of 

the trial court only if we find that an error of law or an abuse of discretion 
J-A19034-17

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has occurred. Id. “The test is not whether we would have reached the 

same result on the evidence presented, but whether the trial court’s 

conclusion can reasonably be drawn from the evidence.” Nationwide Mut. 

Ins. Co. v. Cummings, 652 A.2d 1338, 1341 (Pa. Super. 1994).

In its Opinion, the trial court addressed CIC’s issues, set forth the 

relevant law, and determined that the issues lack merit. See Trial Court 

Opinion, 12/23/16, at 4-10. As we discern no abuse of discretion or error of 

law in the trial court’s analysis, we affirm its Order on this basis. See id. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/17 
111111111111111111111 111111111 

14120 17500050 

COPIES SENT PURSUANT TO Pa.R.C.P. 236 b) R. POSTELL 12/23/2016 

The Cincinnat lnsuranc-WSJDM 

DOCKETED 

OEC 2 3 LOH~ 

R POSTEL.1• 

COMMERCE rE·~,c:;·.;;:.:'-.Ji 

Company, is DENIED 

II. The motion for sum ary judgment of plaintiff, The Cincinnati Insurance 

I. The motion for sum ary judgment of defendants is GRANTED. 

answers in opposition, and he memoranda of law, it is ORDERED as follows: 

summary judgment of plain iff, The Cincinnati Insurance Company, the respective 

South Carolina and David P illips d/b/a/ Da-Lyn Contractors, the cross-motion for 

of the motion for summary udgment of defendants Selective Insurance Company of 

AND Now, this ------1,_.~---·~_.-_,_,(_ day of December, 2016, upon consideration 

ORDER 

De endants 16062587, 16072073. 

Control Nos. 

SELECTIVE INSURANCE OMPANY OF SOUTH CAROLINA 

and 

DAVID PHILLIPS d/b a/ DA-LYN CONTRACTORS 

v. Commerce Program 

lain tiff Case No. 00175 

THE CINCINNATI INSURANCE COMPANY December Term, 2014 

IN THE COURT F COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST UDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION-CIVIL 

RECEIVED 

OEC '2 2 101i 

ROOM 521 

Circulated 09/22/2017 03:24 PM
1 

1 Admission of plaintiff Cincinnat , complaint, ,i 4. 

2 Admission of defendant Selecti e, answer to complaint, ,1 5. 

David Phillips, d/b/a/ Da- Contractors C'Da-Lyn"), is a company engaged in the 

("Selective") is also licensed to issue insurance policies in Pennsylvania.s Defendant 

insurance policies in Penns lvania.1 Defendant Selective Insurance Company, 

Plaintiff, Cincinnati nsurance Company ("Cincinnati"), is licensed to issue 

BACKGROUND 

policy of insurance obtaine by the subcontractor was an excess policy. 

obtained by the general con ractor. For the reasons below, the Court finds that the 

subcontractor was a prima policy or an excess policy with respect to any insurance 

require the Court to determ ne whether a policy of insurance obtained by a 

occurred at a construction s te. The instant cross-motions of summary judgment 

This is a declaratory udgment action arising out of a catastrophic accident which 

MEMORANDUM OPINION 

De endants 16062587, 16072073. 

Control Nos. 

SELECTIVE INSURANCE OMP ANY OF socrn CAROLINA 

and 

DAVID PHILLIPS d/b a/ DA-LYN CONTRACTORS 

v. Commerce Program 

laintiff Case No. 00175 

THE CINCINNATI INSURANCE COMPANY December Term, 2014 

IN THE COURT F COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST UDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION-CIVIL 
2 

3 Prime Contract (Construction greement Between Owner and Contractor), Exhibit E to the motion for 

summary judgment of Cincinnati motion control No. 16072073, Article 13.1. 

4 Subcontract between Fiore and a-Lyn, Exhibit G to the motion for summary judgment of Cincinnati, 

motion control No. 16072073. 

s Id., 1! 13. 

6 Cincinnati Primary Policy, Exhi it A to the motion for summary judgment of Cincinnati, motion control 

No. 16072073; Cincinnati Umbre la Policy, Exhibit B to the motion for summary judgment of Cincinnati, 

motion for summary judgment, otion control No. 16072073. 

7 Selective Policy, Exhibit C to th motion for summary judgment of Cincinnati, motion control No. 

16072073. 

been issued by defendant S lective, No. S-139960104 (the "Selective Policy").7 

defendant Da-Lyn was insu ed under a commercial general liability policy which had 

Policy" and the "Cincinnati mbrella Policy").6 At all times relevant to this action, 

the same policy number, C P-089-36-36/CPA (respectively, the "Cincinnati Primary 

commercial umbrella liabili y policy, both of which had been issued by Cincinnati under 

was under two layers of ins ranee protection: a commercial general liability policy and a 

While acting as man ger or general contractor under the Prime Contract, Fiore 

indemnification provision f r the benefit of Fiore. s 

July 22, 2008.4 The Subco tract between Fiore and Da-Lyn also contained an 

operated as a subcontracto of Fiore, pursuant to the terms of a "Subcontract" dated 

duties as manager or gener 1 contractor.e At all times relevant to this action, Da-Lyn 

Mart from damages arising out of the actions or omissions of Fiore in the pursuit of its 

between Fiore and Wal-Ma t contained a provision requiring Fiore to indemnify Walgeneral contractor during c nstruction work at a "Wal-Mart" store. The Prime Contract 

Pursuant to the term of a "Prime Contract," Fiore operated as a manager or 

construction trade. 

non-party to this action, Le nard S. Fiore, Inc. ("Fiore"), is a corporation engaged in the 

employee of Da-Lyn in the ourse of a project at a Wal-Mart construction site. Another 

construction trade. A non- arty to this action, Mr. Jody Peterman ("Peterman"), was an 
3 

8 Inspection Narrative, the U.S. epartment of Labor, Occupational Safety and Health Administration 

· ("OSHA"), p. 2, Exhibit I to them tion for summary judgment of Cincinnati, motion control No. 

16072073. 

9 Underlying Litigation: complai t, ,Jody Peterman v. Wal-Mart Stores. Inc .. Leonard S. Fiore et al. 

Exhibit B to the motion for sum ary judgment of Selective, motion control No. 16062587. 

JO Id., ii 34. 

11 Id,, at caption. 

To [sjummari e ... Fiore ... is an additional insured under the 

Selective [P]o · cy, but only on an excess basis, and only with 

respect to bod ly injury or property damage caused in whole 

*** 

We have had n opportunity to review the contract [between 

Fiore and Da- yn] and our policy. The contract does state 

that Leonard . Fiore Inc. shall be named as an additional 

[Selective] policy; however, the contract does 

ur insured's [Da-Lyn's] policy shall be 

primary. We cknowledge Leonard S. Fiore, Inc. as an 

Additional In ured on our insured policy; however, it would 

only be an ad itional insured on an excess basis. 

Fiore in the Underlying Liti ation. This letter specifically stated: 

policy. However, Selective lso asserted that it had no obligation to provide a defense to 

indemnification and admitt d that Fiore was an additional insured underthe Da-Lyn 

Selective, insurer of Da-L . On September 24, 2010, Selective replied to the claim for 

Underlying Litigation.» 

On June 15, 2010, Ci cinnati, on behalf of Fiore, claimed indemnification from 

Defendant Da-Lyn, as thee ployer of Peterman, was not a named party in the 

defendants ... [Peterman] .. suffered the functional loss of the lower part of his body.v= 

"as a direct and proximate esult of the carelessness, negligence and wrongdoing of 

(the "Underlying Action").> In the amended complaint, Peterman inter alia alleged that 

Mart, Fiore, and other defe dants, in the Court of Common Pleas, Philadelphia County 

the Wal-Mart construction ite.s In April 2010, Peterman filed a lawsuit against WalOn October 8, 2008 eterman fell from a ladder while working under Da-Lyn at 
4 

12 Letter dated September 24, 201 , from Selective to Cincinnati, Exhibit J to the motion for summary 

judgment of Cincinnati, control o. 16072073, pp. 2-3. 

13 Motion for summary judgment f Cincinnati, at~~ 31-33; admission of Selective at~~ 31-33 in its 

response in opposition, motion c ntrol No. 16072073. The trial worksheet for the Underlying Action, 

dated October 22, 2012 at Docket No. 1004-03751, shows that the case was settled "prior to assignment 

for trial." 

14 QBE Ins. Corp. v. Walters, 201 Pa. Super. 205 (Sept. 9, 2016). 

A court s first step in a declaratory judgment action 

[t]he proper c nstruction of an insurance policy is resolved 

as a matter of aw in a declaratory judgment action .... The 

Declaratory J dgments Act may be invoked to interpret the 

obligations of he parties under an insurance contract, 

including the uestion of whether an insurer has a duty to 

defend and/ o a duty to indemnify a party making a claim 

under the poli y.14 

judgment, the Court notes t 

Before addressing th issues presented by the cross-motion for summary 

DISCUSSION 

have been fully briefed and re ripe for a decision. 

Cincinnati filed its cross- otion for summary judgment. The motion and cross-motion 

and Da-Lyn filed a motion r summary judgment, and, on July 18, 2016, plaintiff 

extensions to the case-man gement deadlines. On June 20, 2016, defendants Selective 

defendants Selective and D -Lyn, In the course oflitigation, this Court granted three 

commenced the instant dee aratory judgment action and filed a complaint against 

liability under the Cincinna i Umbrella Policy.» On November 26, 2014, Cincinnati 

of liability" under the Cinci nati Primary Policy, as well as a portion of the limit of 

Underlying Action and pai on behalf of Fiore and Wal-Mart the "per occurrence limit 

Subsequent to Selec ive's refusal to defend Fiore, Cincinnati settled the 

or in part by ur insured's ongoing operations. Accordingly, 

since Selectiv is an excess carrier we have no obligation to 

provide a def nse to ... Fiore ... in connection with [the 

Underlying L'tigation].12 
5 

complaint did allege neglig nee attributable to Da-Lyn; consequently, the Underlying 

Selective Policy.19 Opposin this argument, Cincinnati asserts that Peterman's amended 

attributable to Da-Lyn, no overage could be triggered in favor of Fiore under the 

Lyn; therefore, Selective co eludes that without any allegations of proximate causation 

Peterman's amended comp aint lacked any allegation of negligence attributable to Daproximate causation as req ired to trigger coverage.i" Specifically, Selective argues that 

Selective Policy because th amended complaint in the Underlying Action failed to allege 

that Fiore and Wal-Mart, t ough additional insureds, have no coverage under the 

In their motion for s mmary judgment, defendants Selective and Da-Lyn assert 

I. 

If the omplaint against the insured avers facts that 

would suppo t a recovery covered by the policy, then 

coverage is tr ggered and the insurer has a duty to defend 

until such ti e that the claim is confined to a recovery that 

the policy do snot cover. The duty to defend also carries 

with it a cond tional obligation to indemnify in the event the 

insured is hel liable for a claim covered by the policy .... 

Although the uty to defend is separate from and broader 

than the duty to indemnify, both duties flow from a 

determinatio that the complaint triggers coverage.w 

The q estion of whether a claim against an insured is 

potentially co ered is answered by comparing the four 

corners of th insurance contract to the four corners of the 

complaint.w 

concerning i surance coverage is to determine the scope of 

the policy's c verage ... .15 
6 

20 Response of Cincinnati in opp sition to the motion for summary judgment of Selective, ,i,i 52-57, 

motion control No. 16062587. 

~1 Underlying Litigation: amende complaint at ,128, ,Jody Peterman v. Wal-Mart Stores. Inc .. Leonard S. 

Fiore et al. Exhibit B to the moti n for summary judgment of Selective, motion control No. 16062587 

(emphasis supplied). 

included Da-Lyn, had faile to adopt safety procedures related to the use of scaffolds 

the Underlying Action, Pet rman sufficiently alleged that Fiore's subcontractors, which 

The language contai ed in Peterman's amended complaint leaves no doubt: in 

,i,i 33-34. a direct and proximate result of the 

carelessness, egligence and wrongdoing of defendants ... 

Jody Peterma suffered fractured ribs ... sternum ... scapula, 

punctured lu gs and a Tm -11 burst fracture resulting in 

paraplegia.... 1 

,i 29. On Oc ober 7, 2008, Plaintiff Jody Peterman was 

attempting to descend from a ... scaffold using a portable 

aluminum ex ension ladder, when the extended portion of 

the ladder sliijped downward ... causing the ladder and 

Plaintiff, Jody Peterman, to fall approximately 24 feet to the 

ground result ng in serious and permanent bodily injuries. 

,i 28. At all t mes material hereto, Defendants [such as 

defendant Fi re] failed to insure that safety procedures were 

being followe by all contractors and subcontractors to 

minimize the azards related to the use of scaffolding and/or 

ladders in cle r violation of safety regulations. 

,i 27. At all t mes material hereto, plaintiff Jody Peterman 

was an emplo ee in the course and scope of his relationship 

with Da-Lyn onstruction which was under contract with 

owners [Wal- art] and defendants [including Fiore,] for the 

general const uction and/or repair of the aforesaid [WalMart] buildin . 

Peterman in the Underlyin Action. The amended complaint stated as follows: 

this issue, the Court turns t the pertinent language in the amended complaint filed by 

Action sufficiently averred roximate causation under the Selective Policy.sv To decide 
7 

This coverage hall be excess with respect to the person or 

*** 

1. Your [Da- yn's] ongoing operations performed for that 

person or rganization .... 

WHO rs AN r SURED is amended to include as an additional 

insured any p rson or organization with whom you [Da-Lyn] 

have agree in writing in a contract, agreement or 

permit that uch a person or organization be added as an 

additional ins red on your policy. Such person or 

organization i an additional insured only with respect to 

liability for "b <lily injury" or property damage caused, in 

whole or in p rt, by: 

its policy: 

support of this argument. irst, Selective calls attention upon the following provision in 

limits under the two Cincinl ati policies. Selective relies on the language of its policy in 

Cincinnati because the sett ement with Peterman did not exhaust the primary insurance 

Underlying Action. Selecti e also concludes that it has no obligation to indemnify 

concludes that as an excess carrier, it was not required to pay for the defense in the 

to both the Cincinnati Pri ary Policy and the Cincinnati Umbrella Policy. Selective 

In the motion for su mary judgment, Selective asserts that its policy was excess 

II. The Selective Pol c is excess to the Cincinnati Primar and Umbrella 

Policies. 

attributable to Da-Lyn. 

complaint in the Underlyi g Action sufficiently articulated proximate causation 

subcontractors, including a-Lyn. For this reason, the court finds that the amended 

by the alleged negligent ac rs or by the negligent omissions of Fiore and its 

damage, including fractur d bones and paraplegia, all of which were proximately caused 

and ladders during work a the Wal-Mart construction site. The amended complaint in 

the Underlying Action also sufficiently alleged that Peterman had suffered bodily 
8 

22 Selective Policy (Commercial eneral Liability), CG 72-02-07-04, p.p. 5-6 of 8, Exhibit D2 to the 

motion for summary judgment o defendant Selective, motion control No. 16062587 (some emphasis 

supplied). 

23 !d,, CG oo 01 12 04 p. 12 of 16, xhibit D2 to the motion for summary judgment of defendant Selective, 

motion control No. 16062587. 

24 kl at Exhibit D2, CG 72 02 07 4, p. 6 of 8 (emphasis supplied). 

"[t]he task of nterpreting an insurance contract is generally 

performed by a court rather than by a jury. The goal of that 

task is ... to a certain the intent of the parties as manifested 

by the langua e of the written instrument .... Where a 

provision of a policy is ambiguous, the policy provision is to 

be construed n favor of the insured and against the insurer, 

the drafter of he agreement. Where, however, the language 

of the contrac is clear and unambiguous, a court is required 

Before undertaking n analysis of the text quoted above, the Court is mindful 

that- 

[t]his covera e shall be excess with respect to the person or 

organization ncluded as an additional insured by its 

provisions; a y other insurance that person or 

organizatio has shall be primary with respect to 

this insura ce, unless this coverage is required to be 

primary an not contributory in the contract, 

agreement r permit referred above.24 

Lastly, Selective calls atten ion upon a third provision in its policy. That provision 

states that- 

[ w ]hen this i surance is excess, we will have no duty under 

Coverages A relating to bodily damage and property 

damage liability] or B [relating to personal and advertising 

injury liabilit J to defend the insured against any suit if any 

other insurer has a duty to defend the insured against that 

suit .... 

23 

Second, Selective calls atte tion upon another provision in its policy. That provision 

states thatorganization included as an additional insured ... unless 

this covera e is required to be primary and not 

contributo in the contract, agreement or permit 

referred to above.v 
9 

2s Madi n Const v Harle s 'Ile Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999). 

26 Subcontract between Fiore an Da-Lyn, Exhibit G to the motion for summary judgment of Cincinnati, 

motion control No. 16072073. 

27 Cincinnati Primary Policy (GA 501-10-01), Exhibit A to the motion for summary judgment of 

Cincinnati, motion control No. 1 072073; Cincinnati Umbrella Policy (USC-504-09-02), Exhibit B to the 

motion for summary judgment o Cincinnati, motion control No. 16072073. 

to the policies issued by Ci cinnati- has no duty to indemnify Cincinnati for the 

that Cincinnati's policy limits were not exhausted; therefore, Selective -an excess carrier 

under the Cincinnati Umbr Ila Policy was $12 million for each occurrence.w Since 

Cincinnati admits that it se tled the Underlying Action for $8.5 million, the Court finds 

foregoing, the Court may oily conclude that the Selective Policy is merely excess to any 

other insurance which F ore may have had as an additional insured. This means that 

the Selective Policy is excesI not only to the Cincinnati Primary Policy, but also to the 

Cincinnati Umbrella Policy Furthermore, the record shows that the policy limit under 

the Cincinnati Primary Pol' cy was $1 million for each occurrence, while the policy limit 

specifically requiring the D -Lyn/Selective policy to be primary.26 Based on the 

INDEMNITY, convinces this ourt that the Subcontract does not contain any language 

document, including the p ragraphs captioned INSURANCE AND RISK OF LOSS and 

Policy- to be primary rath r than excess. An examination of the entire body of that 

whether that document sp cifically required Da-Lyn's policy-namely, the Selective 

turns to the language in th Subcontract executed by Da-Lyn and Fiore to determine 

requires the Selective Poli to be primary. Guided by this clear requirement, the Court 

respect to the Selective Pol cy, unless the Subcontract between Fiore and Da-Lyn 

the Selective Policy requir s any insurance policy obtained by Fiore to be primary with 

With this standard in min , the Court finds that the clear and unambiguous language in 

to give effect to that language. "2s 
10 

28 Cincinnati's admission that it ettled the Underlying Action for $8.5 million can be found in its 

memorandum of law in oppositi n to the motion for summary judgment of Selective, at p.i, motion 

control No. 16062587. 

2• Selective Policy, (CG oo 01 12 4) p. 12 of 16, Exhibit D2 to the motion for summary judgment of 

defendant Selective, motion con rol No. 16062587. 

RAMf:p.b1r SI,J. 

BYTHECOURT, 

the cross-motion for sum ary judgment of Cincinnati is denied. 

For these reasons, t emotion for summary judgment of Selective is granted and 

[w]hen this i surance is excess, we will have no duty under 

Coverages A [relating to bodily damage and property 

damage liabi ity] or B [relating to personal and advertising 

injury liabilit ] to defend the insured against any suit if any 

other insure has a duty to defend the insured against that 

suit.i.w 

That policy specifically sta ed thatthe Underlying Action, pu suant to the clear language contained in the Selective Policy. 

Finally, the Court n tes that Da-Lyn had no duty to defend Fiore and Wal-Mart in 

settlement in the Underlyi