J-A24040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CONSTRUCTURAL DYNAMICS, INC., IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

LIBERTY MUTUAL INSURANCE COMPANY 

AND ISRAEL SANTIAGO

APPEAL OF: LIBERTY MUTUAL 

INSURANCE COMPANY

No. 423 EDA 2014

Appeal from the Order December 10, 2013

in the Court of Common Pleas of Philadelphia County

Civil Division at No.: November Term, 2012, No. 01715

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 19, 2014

Appellant, Liberty Mutual Insurance Company, appeals from the trial 

court’s order granting the summary judgment motion of Appellee, 

Constructural Dynamics, Inc. (CDI) and denying Appellant’s cross-motion in 

this action for declaratory judgment. CDI has filed a motion to quash the 

appeal. After careful review, we affirm the trial court’s order and deny CDI’s 

motion to quash.

The trial court summarized the factual and procedural history as 

follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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[CDI] commenced the current declaratory judgment action 

seeking [a] declaration that [Appellant] is required to defend and 

indemnify CDI in an underlying litigation . . . [arising] out of an 

accident involving . . . Israel Santiago (hereinafter 

“Santiago”).[1]

CDI leased a space to Clarence J. Venne, LLC (hereinafter 

“Venne”) in the Riverside Industrial Complex. The lease required 

Venne to obtain commercial general liability insurance, “with a 

[t]wo [m]illion ($2,000,000) [d]ollar combined single limit” and 

required Venne to name CDI as an additional named insured. 

Moreover, “[a]ll insurance carried by [t]enant pursuant to [the] 

[l]ease shall be primary, not contributory with, and not in excess 

of, any coverage which [l]andlord may carry in [l]andlord’s sole 

discretion.”

The lease further provides:

17. INDEMNITY BY TENANT; EXONERATION

(a) Tenant hereby agrees to indemnify, defend and 

hold [l]andlord harmless from and against any and 

all claims, actions, damages, losses, liability, 

penalties, fines, costs and expenses, including 

reasonable attorneys’ fees and other professional 

fees and court costs, to the extent arising directly or 

indirectly from (i) any loss of life, personal injury or 

property damage occurring (a) in the [b]uilding or at 

the [c]omplex other than in, on, or upon the 

[p]remises, to the extent caused, directly or 

indirectly, by any act or omission of [t]enant, its 

officers, employees, agents, invitees, licensees or 

contractors; or (b) in, on, or [upon] the [p]remises 

[to the] extent caused, directly or indirectly, by any 

act or omission of [t]enant, its officers, employees, 

agents, invitees, licensees or contractors . . .

Moreover, [p]aragraph 17(d) of the lease provides:

(d) It is the intention of the parties that the provision 

of this [s]ection 17 shall require [t]enant to 

____________________________________________

1 Santiago was a defendant in this action, but is not a party in this appeal.
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indemnify and hold [l]andlord harmless with regard 

to acts, including negligence of [t]enant (and 

negligence of [l]andlord, solely in connection with 

any work-related injury or illness suffered by an 

employee of [t]enant due to [l]andlord’s negligence 

where such injury or illness is typically treated as a 

workman’s compensation claim), which result in 

harm to any employee of [t]enant. This [p]rovision 

shall be deemed to fulfill the requirements requiring 

or permitting contribution or indemnity as set forth 

in, and constitutes an express waiver of defenses 

and/or immunity afforded [t]enant by, the 

Pennsylvania Workers’ Compensation Act, 77 P.S. 

Section 481(b), or any similar provision of any 

similar act.

Subsequently, Venne obtained commercial general liability 

insurance policy no. YY7-Z31-509641-029 (hereinafter “the 

policy”)[,] which provides that, “SECTION II – WHO IS AN 

INSURED is amended to include as an insured any manager or 

lessor of premises leased by you in which the written lease 

agreement obligates you to procure additional insured 

coverage.” Although Venne did not name CDI as an additional 

named insured, as required by the lease, the policy named CDI 

as an additional insured. The policy had a coverage period from 

April 1, 2009 through April 1, 2010. The policy further provides 

that, “[i]f the written agreement to indemnify an additional 

insured requires that you indemnify the additional insured for its 

sole negligence, then coverage for the additional insured shall 

conform to that agreement.” Moreover, the policy provided that 

the policy will not be excess and will be primary if a “written 

agreement . . . requires that the insurance provided for the 

additional insured be primary concurrent or primary non 

contributory.”

In the underlying complaint, Santiago alleges that on 

August 31, 2009, during the course of his employment with 

Venne, he was injured while moving “skids loaded with heavy 

boxes from the first floor to the second floor using freight 

elevators at the [s]ubject [p]remises.” Santiago brought suit 

against defendants, Elevator Construction and Repair Company, 

Riverside Industrial Complex Inc., PKB Contractors Inc. and CDI, 

for various counts of negligence. Venne was not a party to the 

underlying litigation. Moreover, the underlying litigation settled 
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and thus[,] determinations of the duty to indemnify and the duty 

[to] defend are both ripe.

(Trial Court Opinion, 12/10/13, at 1-3) (record citations omitted).

On January 8, 2014, Appellant timely appealed.2

Appellant raises the following question for our review:

Is additional insured coverage triggered where there is no 

allegation that the named insured caused or contributed to the 

liability of the purported additional insured, and the applicable 

policy includes additional insured coverage only for situations 

where the named insured caused or contributed to the liability of 

the purported additional insured?

(Appellant’s Brief, at 4).

Preliminarily we note that in its motion to quash the appeal, CDI 

asserts that the trial court’s December 10, 2013 order is not a final order 

because a hearing on damages and the amount recoverable by CDI has not 

been held. (See CDI’s Motion to Quash, 3/10/14, at 1-2). We disagree.

The Declaratory Judgments Act provides:

§ 7532. General scope of declaratory remedy

Courts of record, within their respective jurisdictions, shall 

have the power to declare rights, status, and other legal 

relations whether or not further relief is or could be claimed. 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.

____________________________________________

2 The trial court did not order Appellant to file a Rule 1925(b) statement of 

errors, but it filed a Rule 1925(a) opinion in which it relied on its opinion 

dated December 6, 2013 and filed on December 10, 2013. See Pa.R.A.P. 

1925.
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42 Pa.C.S.A. § 7532 (emphasis added).

. . . Consequently, a trial court order is final and immediately 

appealable pursuant to Pa.R.A.P. 341(b)(2), when the court 

enters a declaratory judgment order either affirmatively or 

negatively declaring the rights and duties of the parties, 

effectively disposing of the claims presented, even if the order 

does not expressly dispose of all claims or specify that the claims 

were declaratory in nature.

Nat’l Casualty Co. v. Kinney, 90 A.3d 747, 754 (Pa. Super. 2014) (case 

citations omitted).

Here, the trial court, by granting CDI’s motion and denying Appellant’s 

cross-motion for summary judgment, in effect ruled Appellant has a legal 

obligation to defend and indemnify CDI in the underlying Santiago matter. 

Thus, the decision concerning CDI’s legal obligation constituted a final order 

under the Declaratory Judgments Act. See 42 Pa.C.S.A. § 7532; Nat’l 

Casualty Co., supra at 754. Therefore, the court’s order was immediately 

appealable and we deny CDI’s motion to quash.

Accordingly, we will review Appellant’s issue regarding the denial of 

additional insured’s coverage where there is no allegation of the named 

insured causing or contributing to the additional insured’s liability.

In reviewing the merits of the appeal, we note that our standard of

review for an order granting or denying summary judgment of an additional 

insured’s coverage is well-settled:

We view the record in the light most favorable to the 

nonmoving party, and all doubts as to the existence 

of a genuine issue of material fact must be resolved 

against the moving party. Only where there is no 
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genuine issue as to any material fact and it is clear 

that the moving party is entitled to a judgment as a 

matter of law will summary judgment be entered. 

Our scope of review of a trial court’s order granting 

or denying summary judgment is plenary, and our 

standard of review is clear: the trial court’s order will 

be reversed only where it is established that the 

court committed an error of law or abused its 

discretion.

When interpreting an insurance policy, we first look to the 

terms of the policy. When the language of the policy is clear and 

unambiguous, we must give effect to that language. However, 

when a provision in the policy is ambiguous, the policy is to be 

construed in favor of the insured. Also, we do not treat the 

words in the policy as mere surplusage and, if at all possible, we 

construe the policy in a manner that gives effect to all of the 

policy’s language.

We then compare the terms of the policy to the allegations 

in the underlying complaint. It is well established that an 

insurer’s duties under an insurance policy are triggered by the 

language of the complaint against the insured. In determining 

whether an insurer’s duties are triggered, the factual allegations 

in the underlying complaint are taken as true and liberally 

construed in favor of the insured. It does not matter if in reality 

the facts are completely groundless, false or fraudulent. It is the 

face of the complaint and not the truth of the facts alleged 

therein.

Indalex Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 83 A.3d 

418, 420-21 (Pa. Super. 2013), appeal denied, 99 A.3d 926 (Pa. 2014)

(citations and quotation marks omitted).

Here, Appellant argues that the trial court committed an error of law in 

misapplying Pennsylvania law and misreading the policy language. (See

Appellant’s Brief, at 11-26). Specifically, it contends that the policy 

language only extends coverage to an additional insured when either (1) 

Venne negligently caused CDI’s liability, or (2) Venne agreed in writing to 
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indemnify CDI for the additional insured’s own negligence and the 

agreement comports with applicable state law. (See id. at 11-12). This 

issue does not merit relief.

We first address Appellant’s argument that the underlying complaint 

filed by Santiago is devoid of any allegation of Venne’s negligence. (See id.

at 12-13). In support of this assertion, Appellant cites to Santiago’s 

amended complaint. (See id. at 13-14). Our independent review of the 

“factual allegations in the underlying complaint” uncovered no allegation of 

Venne’s negligence. Indalex Inc., supra at 421; (see also Appellant’s 

Motion for Summary Judgment, 10/21/13, at Exhibit A). Therefore, the 

record does support Appellant’s claim that it is not required to indemnify CDI 

under paragraph 17(a) of the lease. (See Lease Agreement, 2/11/09, at 

16-17 ¶ 17(a)); see also Indalex Inc., supra at 420-21. Hence, 

Appellant’s first argument is legally persuasive. However, that does not end 

our inquiry.

With respect to Appellant’s second argument, that the lease does not 

provide indemnification to CDI for its negligence absent Venne’s negligence, 

a review of the lease reflects that the language is clear and unambiguous. 

(See Lease Agreement, 2/11/09, at 16-17 ¶ 17). Therefore, “we must give 

effect to that language.” Indalex Inc., supra at 420. Specifically, 

paragraph 17(d) states that Venne will indemnify CDI for CDI’s negligence 

“solely in connection with any work-related injury or illness suffered by an 

employee of [Venne] . . . where such injury . . . is typically treated as a 
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workman’s compensation claim[.]” (Lease Agreement, 2/11/09, at 17 ¶ 

17(d)). Here, Santiago’s claim would typically be treated as a workman’s 

compensation claim. (See Appellant’s Motion for Summary Judgment, 

10/21/13, at Exhibit A). Therefore, the plain terms of this provision create 

Appellant’s obligation to indemnify CDI even in the absence of Venne’s 

negligence.

Based on the foregoing, we conclude that the trial court properly 

determined that Appellant is obligated to indemnify CDI pursuant to 

paragraph 17(d) of the lease. (See Trial Ct. Op., at 5); see also Indalex 

Inc., supra at 420-21. Accordingly, we discern no error of law or abuse of 

discretion in the trial court’s decision granting CDI’s summary judgment 

motion and denying Appellant’s cross-motion in this declaratory judgment 

action. See Indalex Inc., supra at 420-21. Therefore, we affirm the order 

of the trial court.

Order affirmed. Motion to quash appeal denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2014