2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-16-2010

Nationwide Mutl Ins Co v. Rose Brophy

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2141

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Recommended Citation

"Nationwide Mutl Ins Co v. Rose Brophy" (2010). 2010 Decisions. Paper 1711.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1711
Hon. A. Wallace Tashima, Senior Judge, United States *

Court of Appeals for the Ninth Circuit, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2141

 

NATIONWIDE MUTUAL INSURANCE COMPANY

 

v.

ROSE BROPHY,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cv-02108)

District Judge: Hon. Stewart Dalzell

 

Submitted Under Third Circuit LAR 34.1(a)

February 11, 2010

Before: SLOVITER, ROTH and TASHIMA , Circuit Judges *

(Filed: March 16, 2010)

OPINION OF THE COURT

 
 The District Court had subject matter jurisdiction under 28 1

U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. 

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TASHIMA, Circuit Judge.

Appellant Rose Brophy appeals the District Court’s order denying Brophy’s

motion for summary judgment and granting summary judgment to Appellee Nationwide

Mutual Insurance Co. (“Nationwide”). We will affirm.1

I.

The following facts, as recited by the District Court, are undisputed. Brophy is a

mail carrier for the United States Postal Service. On October 15, 2001, she was returning

to the post office in her standard mail delivery truck when she was in a collision with a

vehicle driven by Mylene Sweeney. Brophy suffered serious injuries in the collision.

Brophy eventually settled with Sweeney for the limits of Sweeney’s liability

insurance policy. She then filed a claim with her insurer, Nationwide, seeking additional

compensation through her underinsured motorist coverage. Nationwide denied Brophy’s

claim, citing her policy’s exclusion of injuries incurred when “us[ing] . . . any motor

vehicle . . . to carry persons or property for a fee.” App. at 64.

In this action, Nationwide seeks a declaratory judgment that Brophy’s injuries

were not covered by her policy. Brophy first moved to remand the action to arbitration,

which was denied. The parties then eventually filed cross-motions for summary

judgment. The District Court denied Brophy’s motion, granted Nationwide’s, and entered
 We review the District Court’s order resolving cross- 2

motions for summary judgment de novo. Startzell v. City of Phila.,

533 F.3d 183, 192 (3d. Cir. 2008). Under Pennsylvania law, which

the parties agree is applicable here, “the interpretation of an

insurance contract regarding the existence or non-existence of

coverage is generally performed by the court.” Nationwide Mut.

Ins. Co. v. CPB Int’l, Inc., 562 F.3d 591, 595 (3d Cir. 2009).

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judgment in Nationwide’s favor. (App. 3-15, 16.) Brophy timely appeals. (App. 1-2.) 2

II.

We must decide the meaning and effect of Endorsement 2538 to the insurance

policy between Brophy and Nationwide. That endorsement sets out Brophy’s

underinsured motorist coverage. Brophy contends that the District Court committed three

errors in its interpretation of her policy. We address each of these contentions seriatim.

A.

Endorsement 2538 excludes from Nationwide’s underinsured motorist coverage

the “[u]se of any motor vehicle by an insured to carry persons or property for a fee.” 

App. at 64. Brophy argues that this language is ambiguous and should therefore have

been interpreted in her favor. See Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735

A.2d 100, 106 (Pa. 1999). The District Court concluded, however, that the language

unambiguously excluded Brophy’s injuries from coverage. We agree with the District

Court.

The language at issue here, or substantially similar language, has been the subject

of numerous lawsuits throughout the United States. See, e.g., Cincinnati Ins. Co. v. W.
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Am. Ins. Co., 112 F. Supp. 2d 718, 721-22 (C.D. Ill. 2000) (collecting cases). In the most

factually analogous Pennsylvania case, the Superior Court held that this language

excluded from coverage the injuries that a delivery truck driver incurred when he was in

his delivery truck. See Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071, 1073-74

(Pa. Super. Ct. 2004). Given that the Supreme Court of Pennsylvania did not express any

disagreement with Brosovic when presented with the opportunity, we find the analysis in

Brosovic convincing. See Prudential Prop. & Cas. Ins. Co. v. Sartno, 903 A.2d 1170,

1176 (Pa. 2006) (“A delivery van is certainly a vehicle used to carry property for a fee.”

(quoting Brosovic, 841 A.2d at 1074) (alteration omitted)); see also Ratush v. Nationwide

Mut. Ins. Co., 619 A.2d 733, 733 (Pa. Super. Ct. 1992) (concluding that policy language

excluded from coverage the injuries a taxi driver sustained while he was “driving to his

home and had no intention of carrying persons for a fee”).

Brophy’s reliance on Sartno is misplaced. In that case, the Pennsylvania Supreme

Court found a similarly worded provision ambiguous as applied to the employee of a

pizzeria who, among other duties, occasionally used his personal vehicle to deliver pizzas. 

Sartno, 903 A.2d at 1171-73. The court concluded that a reasonable reading of the policy

was that “Sartno did not carry property for a fee because there was no delivery charge.” 

Id. at 1177; see also id. at 1175 (citing with approval an Ohio Supreme Court decision

that a similar accident “would not be excluded by the policy, since neither [the pizzeria]

nor its customers paid [the insured driver] a fee specifically for delivering the pizza”
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(emphasis in original)).

In this case, however, not only was Brophy operating a vehicle owned by her

employer, but the primary purpose of that vehicle – indeed, the primary business of her

employer – was the delivery of mail for a fee. Unlike in Sartno, there is no question that

the post office’s customers paid to have their mail collected, transported, and delivered. 

Under these circumstances, we see no ambiguity in the endorsement and conclude that

Brophy used the mail truck to “carry property for a fee.” See id. at 1174 (“[The

determination whether contractual language is ambiguous] is not a question to be resolved

in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than

one reasonable interpretation when applied to a particular set of facts.” (quoting Madison

Constr. Co., 735 A.2d at 106)). 

B.

We also reject Brophy’s contention that this case falls within the ambit of the

policy’s arbitration clause. That clause provides for the arbitration of disputes “about the

right to recover damages from the owner or driver of an underinsured motor vehicle or

the amount of such damages.” App. at 65. Brophy’s policy also provided, however, that

“[q]uestions between the injured party and [Nationwide] regarding whether the injured

party is an insured under this coverage, or the limits of such coverage, are not subject to

arbitration and shall be decided by a court of law.” App. at 64.

In this case there is no dispute over Brophy’s “right to recover damages” from
Sweeney; indeed, she has already done so. Nor are the amount of such damages yet in

dispute. Rather, the parties here disagree about whether Brophy may seek additional

compensation from Nationwide. We have held that such preliminary coverage questions

fall outside of similar arbitration clauses. See Nationwide Mut. Ins. Co. v. Cosenza, 258

F.3d 197, 204 (3d Cir. 2001); State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710,

717-20 (3d Cir. 2000). In light of the clear policy language, we see no reason to depart

from these holdings.

C.

Finally, Brophy argues that the District Court erred when it refused to consider

evidence that Nationwide had clarified the language of the exclusionary clause at issue

here after the accident in this case. Only where a contract’s language is ambiguous,

however, may a court consider extrinsic or parol evidence to determine the intent of the

parties. Ferrer v. Trs. of the Univ. of Pa., 825 A.2d 591, 608 (Pa. 2002). Because the

District Court correctly found that the contract’s language was unambiguous as applied to

the facts of this case, it did not err in refusing to consider the extrinsic evidence Brophy

presented. 

III.

For the above-stated reasons, we will affirm the judgment of the District Court

granting summary judgment to Nationwide.

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