### J-A26019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MARYLAND CASUALTY COMPANY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. WARREN MCGRATH, NANCY ZIHALAMCGRATH, MARTIN BURRIDGE D/B/A BURRIDGE TENT RENTALS AND MARTIN BURRIDGE, INDIVIDUALLY, Appellants No. 355 MDA 2015 Appeal from the Order Entered January 27, 2015 in the Court of Common Pleas of Luzerne County Civil Division at No.: 2013-CV-8099 BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.* 

### MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2015 Appellants, Warren McGrath and his wife, Nancy Zihala
-McGrath, appeal from the order denying their motion for summary judgment against Appellee, Maryland Casualty Company, and, in a related case, from the order granting summary judgment in favor of Appellee. We affirm on the basis of the trial court opinion. This is the second of two companion cases, which were listed consecutively. The same parties are involved and the issues are similar. To the extent possible, both of our decisions are identical.

____________________________________________
* 

### Retired Senior Judge assigned to the Superior Court.

### J-A26019-15

- 2 -

The trial court filed one opinion which applies to both cases. (See Trial Court Opinion, 1/27/15, at 1
-10). In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them at length here. For context and the convenience of the reader we note briefly that the
over-arching issue in both cases is the McGraths’ claim for coverage by Maryland Casualty for their injuries from a motor vehicle accident involving Martin Burridge, doing business as Burridge Tent Rental[s] (Burridge). As the name suggests, Burridge operated a seasonal rental business which provided tents, tables and chairs for outdoor activities, which he transported in his pick
-up truck. Burridge’s business was insured under a commercial general liability policy (CGL) issued by Appellee Maryland Casualty. 1 

### On the day of the accident, Burridge’s load of tables and chairs became unfastened from the tie
-down straps and fell onto the roadway. Warren McGrath was operating his motorcycle in the opposite direction when he collided with a chair which had fallen off Burridge’s truck. His motorcycle flipped, he was thrown, and he alleges he suffered multiple serious injuries. The McGraths filed a complaint against Burridge. They argued inter alia, that Burridge improperly secured the load, and transported it in a

____________________________________________ 1 

### The actual policy was apparently underwritten by Zurich North America Small Business, an affiliate of Zurich Insurance Group Ltd., commonly known as Zurich. Zurich is not a party to these appeals.

### J-A26019-15

- 3 -

negligent manner, failing to warn, and failing to remove the obstructions from the roadway. Appellee Maryland Casualty maintained that it had no duty to defend or indemnify Burridge against a claim for damages arising out of a motor vehicle accident because all claims fell within the auto exclusion of Burridge’s CGL policy. The auto exclusion is defined to include loading and unloading of a vehicle. Maryland Casualty Company filed an amended complaint against the McGraths and Burridge, seeking a declaratory judgment that it did not have a duty to defend or indemnify Burridge for the liability alleged in the McGraths’ complaint against Burridge. Eventually, the parties cross
-filed motions for summary judgment. The trial court entered declaratory judgment in favor of Maryland Casualty. This appeal followed. The four overlapping questions raised in both of Appellants’ briefs are identical: 1. Whether genuine issues of material fact exist such that a grant of [s]ummary [j]udgment in favor of [Appellee] Maryland Casualty is inappropriate? 2. Whether the allegations set forth in the underlying [a]mended [c]omplaint fell within the [a]uto [e]xclusion of the [Appellee] Maryland Casualty [p]olicy? 3. Whether [Appellee] Maryland Casualty does not have a duty to defend or indemnify their insured Martin Burridge d/b/a Burridge Tent Rentals or [Appellee] Martin Burridge, individually? 4. Whether the record supported the [trial c]ourt’s conclusions that [the a]uto [e]xclusion of the Maryland Casualty

### J-A26019-15

- 4 -

[p]olicy is applicable based upon the facts of record and the reasonable expectations of the insured? (Appellants’ Brief, at 5). 2 

### The McGraths argue from Burridge’s deposition that Burridge had a reasonable expectation of coverage. On appeal they now maintain that the representations of Maryland Casualty, Burridge’s expectation of coverage, and the reasonableness of his expectation are issues of fact precluding summary judgment (their own cross
-motion for summary judgment notwithstanding). (See Appellants’ Brief, at 41). We disagree.

Initially, we note our standard of review of a trial court’s decision in a declaratory judgment action is narrow. Because declaratory judgment actions arise in equity, we will set aside the judgment of the trial court only where it is not supported by adequate evidence. 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, 1340
-41 (Pa. Super. 1994), appeal denied, 659 A.2d 988 (Pa. 1995) (citations omitted).

Summary judgment may be granted only where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1)[.] In making this assessment, we view the record in the light most favorable to the non
-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. The scope of review of an order granting summary judgment is plenary. The standard of review

____________________________________________ 2 

### Burridge filed a joinder, pursuant to Pennsylvania Rule of Appellate Procedure 2137, joining in all briefs filed by or on behalf of the McGraths.

### J-A26019-15

- 5 -

provides we reverse the trial court’s order only where the court committed an error of law or clearly abused its discretion. To the extent the issues before us are questions of law, our standard of review is de novo; thus, we need not defer to the lower court’s determinations. Belden & Blake Corp. v. Commonwealth, 969 A.2d 528, 531 (Pa. 2009) (case citations and quotation marks omitted). [T]he interpretation of an insurance policy is a question of law for the Court. Having so stated, we note that “where . . . the language of [a] . . . contract [of insurance] is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). Duffy v. Nationwide Ins. Co., 542 A.2d 144, 145 (Pa. Super. 1988) (one citation omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well
-reasoned opinion of the trial court we conclude that there is no merit to the issues Appellants have raised on appeal. The trial court opinion properly disposes of the questions presented. (See Trial Court Order and Opinion, 1/27/15, at 6
-10) (concluding: (1) no genuine issues of material fact existed to preclude summary judgment; (2) the allegations of the underlying complaint fell within the auto exclusion of the policy; (3) Appellee Maryland Casualty does not have a duty to defend or indemnify their insured Martin Burridge d/b/a Burridge Tent Rentals or Martin Burridge, individually based on the plain meaning of the policy’s auto exclusion; (4) the auto exclusion of the CGL policy also applies to Appellants’ allegations of failure to warn and failure to remove obstacles from the

### J-A26019-15

- 6 -

roadway; and (5) the reasonable expectations doctrine does not apply to protect a commercial insured from the plain meaning of the exclusion in a commercial general liability policy). Accordingly, we affirm on the basis of the trial court’s opinion. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/2015Circulated 11/24/2015 06:04 PM



### MARYLAND 

### CASUALTY COMPANY, 

## :7 IN THE 

### COURT OF 

### COMMON PLEAS 

### Plaintiff :
vs. 

### WARREN MCGRATH, NANCY 

### ZIHALAMCGRATH, MARTIN 

### BURRIDGE D/B/A BURRIDGE 

### TENT RENTALS AND MARTIN 

### BURRIDGE, INDIVIDUALLY, OF LUZERNE 

### COUNTY

CIVIL ACTION - G

# , v O

-o 

## cv 

# ~c c3 

# -

.. 

### w Defendants

, No. 2013-CV-8099 

### OPINION This 

### matter comes before the Court on the 

### Motion 

### for Summary Judgment, filed by 

### Defendants Warren McGrath and 

### Nancy Zihala-McGrath to the 

### Amended 

### Complaint on March 21, 2014 and the Cross-Motion 

### for 

### Summary Judgment, filed by 

### Plaintiff Maryland Casualty 

### Company on April 21, 2014. 

### Supporting briefs, 

### responses/opposing briefs have been filed by the parties to the aforesaid motions. Oral 

### argument on the 

### aforesaid motions having been 

### conducted on 

### August 20, 2014, this opinion 

### follows. 

### Procedural History Nlaintiff 

### commenced 

### the 

### above-

### refetented action on or 

### about July 8, 2013 by filing a 

### Praecipe 

### for Writ of Summons 

### against Defendants. A 

### Complaint was filed on 

### August 20, 2013 and an 

### Amended 

### Complaint was filed on 

### February 24, 2014. On March 3, 2014 and March 17, 2014, 

### respectively, Defendants filed 

### Answers with New 

### Matterto aforesaid 

### Amended 

### Complaint. The above

### -recited procedural 

### history 

### demonstrates that the 

### relevant 

### pleadings are closed and

### /or that the time 

### for filing a 

### response to the last filed 

### pleading has expired, and wain! 

### iiii7 

## iii k LEN- 

### iiiim 

# iiii

# i ¡ i m1ÌÌ 

# I -wi ìi- 7-i i 

### ü is 

### üßí ü i 

# railii Filing ID: 2006846 2013-08099-0059 Opinion Luzerne County Civil Records 1/27/2015 11:45:13 AM

Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM



### therefore that the Cross Motions 

### for Summary 

### Judgment are 

### timely filed and pursued 

### under Pa.R.C.P. 1035.2. 

### Procedures Governing 

### Motions 

### for Summary

### Judgment Under Pa.R.C.P. 1035.2: 

### After the relevant pleadings are closed, but within such time as not to 

### unreasonably delay trial, a party may move 

### for summary 

### judgment in whole or in part as a 

### matter 

### of law (1) 

### whenever there is no 

### genuine issue 

### of any material 

### fact as to a 

### necessary element ofthe cause 

### of action or

### defense which could be established by 

### additional 

### discovery or 

### expert report, or (2) if, after the 

### completion 

### of 

### discovery relevant to the motion, including the production of 

### expert reports, an adverse party who will 

### bear the burden 

### of proof at trial has failed to produce 

### evidence of facts essential to the cause 

### of action or 

### defense which in a 

### jury trial would require the issues to be submitted to a jury. Hence, a motion 

### for summary

### judgment is based upon an 

### evidentiary record which 

### entitles the moving party to 

### judgment as a 

### matter of law, and which is one 

### of two types: (1) the record shows the 

### material 

### facts are undisputed, and hence no issue exists to be submitted to a 

### jury, or (2) 

### the record 

### contains insufficient 

### evidence of 

### facts to make out a prima 

### facie cause of action or defense, and hence 

### there is no issue to submit to a jury. In the 

### latter instance, the motion 

### for summary 

### judgment is made by a 

### party whn rine_c 

### not 

### have 

### the burden of 

### proof at trial and who does not have 

### access to 

### the evidence to make a record, which 

### affirmatively supports the motion. The burden 

### of responding to a motion 

### for summary

### judgment is set forth in Pa.R.C.P. 1035.3: (a) The adverse party may riot rest upon the mere 

### allegations or denials of the 

### pleadings but mustfile a 

### response within 

### thirty days after service 

### of the motion identifying
2 Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

(1) one or more issues 

### of fact arising from the 

### evidence in the record 

### controverting the 

### evidence cited in 

### support of the motion or from a 

### challenge to the 

### credibility 

### of one or more 

### witnesses testifying in 

### support 

### of the motion, 

### or (2) evidence in the record 

### establishing the facts 

### essential to 

### the 

### cause 

### of action ordefense, which 

### the motion cites as not having been produced.
In 

### responding to a motion 

### for summary 

### judgment, an adverse party 

### under Pa.R.C.P. 

### 1035.2(b) "may 

### supplement the record or set forth the reasons why the party 

### cannot present evidence essential to 

### justify opposition to the motion and any action 

### proposed to be taken by the 

### party to 

### present such 

### evidence." In resolving a 

### motion 

### for summaryjudgment, the 

### court under Pa.R.C.P. 1035.2(c) "may rule upon the motion 

### for

### judgment or 

### permit affidavits to be 

### obtained, depositions to be 

### taken or 

### other discovery to be had or make such 

### order as is 

### just." Finally, 

### under Pa.R.C.P. 1035.3(d), the 

### court is 

### permitted to 

### enter summary

### judgment against a party who does not: respond. 

### Resolution 

### of Motion 

### for Summary

### Judgment The issue in the instant matter is 

### whether under the relevant Maryland 

### Casualty 

### Company commercial general 

### liability insurance policy, wl wa5 issued to Martin Burridge DBA Burridge 

### Tent Rentals ("Insured"), Maryland 

### Casualty has a 

### duty to defend or 

### indemnify the Insured in the underlying 

### action filed against the Insured by 

### Warrant McGrath and Nancy Zihala McGrath
("McGrath") to 

### Luzerne County Docket 

### Number 10269 

### of 2012. 

### Specifically, the question before this Court is 

### whetherthe 

### underlying action only 

### alleges bodily injury arising out 

### of the 

### ownership, maintenance and

### /or use 

### of a motor vehicle. Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

From a review 

### ofthe policy at issue and the 

### relevant precedent, the Court 

### finds the underlying 

### action so alleges and as a result, 

### Maryland 

### Casualty does not have a duty to 

### defend or 

### indemnify in this case 

### forthe reasons 

### discussed herein. 

### Although the 

### factual and procedural 

### history is well known to the parties, a 

### brief summary 

### of the 

### facts remains necessary. C)n 

### August 17, 2011, 

### Defendant Warren McGrath was riding his motorcycle on Hillside Road in Jackson Township, 

### Pennsylvania. At the same time and place, 

### Defendant Martin Burridge, in the 

### course and scope 

### of his agency and

### /or employment with 

### Defendant Burridge 

### Tent Rentals, in the 

### opposite lane 

### oftravel 

### of Defendant Warren McGrath, was 

### transporting at least 70 

### folding chairs and 10 

### folding 

### tables in the back of his pickup 

### truck as part 

### of the 

### business of 

### Defendant Burridge 

### Tent Rentals. The 

### folding 

### tables were set upright on the left side of the truck bed. 

### Defendant Martin Burridge had stacked the chairs in two horizontal piles of 35 chairs each on the right side of the truck bed, 

### positioning one stack in 

### front of the other. 

### Defendant Burridge secured this load 

### of chairs and 

### tables by using 2 nylon ratchet-type tie-Uuwi r straps 1 rooked tu tl i p 

### truci. process of 

### transporting the load of chairs and 

### tables to a customer, the road curved to the right and the load of chairs and 

### tables became loose, shifted to 

### the left, and fell from the bed 

### of the pickup 

### truck into the 

### roadway 

### directly into the path of 

### Defendant Warren McGrath, who was 

### traveling in the 

### opposite direction. Defendant 

### Warren McGrath attempted to swerve to avoid the chairs, but the 

### rear

4 Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

tire of his 

### motorcycle hit a chair in the roadway and his 

### motorcycle flipped. He
was thrown from the motorcycle and suffered injuries. At the time 

### Defendant Warren McGrath was injured, Martin Burridge DBA Burridge Tent Rentals ("Insured") was insured by a Maryland 

### Casualty commercial general liability insurance policy ("Policy").1 In 

### relevant part, the Policy provided: 

### SECTION I

# - COVERAGES 

### COVERAGE A. 

### BODILY INJURY AND 

### PROPERTY DAMAGE 

### LIABILITY
1. 

### Insuring 

### Agreement

a. We will pay 

### those sums 

### that the insured becomes legally obligated to pay as 

### damages because 

### of 'bodily injury' or 

### 'property damage' to which this 

### insurance applies. We will have the right and duty to defend insured 

### against any 'suit' seeking 

### those damages. However, we will have no 

### duty to defend the insured against any 'suit' seeking 

### damages 

### for 'bodily injury' or 

### 'property 

### damage' to which 

### insurance does not apply.

. . See, 

### CGLCF at 1 

### of 17. 2. 

### Exclusions
g. 

### Aircraft, 

### Auto 

### orWatercraft 'Bodily injury' or 

### 'property 

### damage' arising out of the 

### ownership, maintenance, use or 

### entrustment to 

### others 

### of any aircraft, 'auto' or 

### watercraft owned or operated by or rented or loaned to any insured. Use includes 

### operation and 'loading or 

### unloading'...

.
There are several different types of coverages provided under the Policy. Although the Policy in its entirety is attached as Exhibit "A" to the Motion for Summary Judgment of Defendants Warren McGrath and Nancy Zihala-McGrath to Amended Complaint, the Commercial General Liability Coverage Form ("CGLCF"), which consists of 17 numbered pages, contain the provisions of the Policy applicable to the resolution of the instant matter. Citations to this document will be CGLCF at p. of 17. 5 Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

See, Id. at 2 

### of 17. 

### SECTION V

# - DEFINITIONS. 2. 

### 'Auto' means a land motor vehicle, 

### trailer or 

### semitrailer designed 

### for travel on public roads, including any attached 

### machinery or 

### equipment. But 'auto' does not include 'mobile 

### equipment'.

11. 

### 'Loading or 

### unloading' means the handling of property:

a. 

### After it is moved from the place where it is 

### accepted 

### for movement into or onto an aiircraft, 

### watercraft or 'auto'; b. While it is in or on an aircraft, 

### watercraft or 'auto';

c. While it is being moved from an aircraft, 

### watercraft or 'auto' to the place 

### where it is 

### finally delivered; but 

### 'loading or unloading' does not include the 

### movement of property by means of a 

### mechanical device, 

### other than a hand 

### truck that is not attached to the aircraft, 

### watercraft or 'auto'. Id. at 14-15 

### of 17. As noted above, the issue in the 

### instant matter is 

### whether the 

### August 17, 2011 

### accident falls within the aforesaid "Aircraft, 

### Auto or 

### Watercraft" 

### Exclusions and 

### correspondingly whether there is any 

### duty to defend or 

### indemnify by Maryland 

### Casualty under the Policy. The 

### interpretation of an 

### insurance 

### contract regarding the 

### existence or non

### -existence of coverage is 

### "generally performed by the Court." 

### General

### Accident Insurance Co. 

### ofAmerica v. Allen, 692 A.2d 1089, 1093 (Pa. 1997). "Where a provision 

### of a policy is 

### ambiguous, the policy provision is to be 

### construed in 

### favor of the insured and 

### against the insurer.... Where, however, the language of the 

### contract is 

### clear and 

### unambiguous, a 

### court Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

is required to give 

### effect to that language." Gene & 

### Harvey Builders, Inc. v. 

### Pennsylvania 

### Manufacturers' Association Insurance Company, 512 Pa. 420, 517 A.2d 910, 913 (1986). The 

### underlying 

### complaint fixes the 

### parameters 

### of an 

### insurer's obligation to defend its insured." Stidham v. Millvale 

### Sportsmen's Club, 618 A.2d 945 (Pa.Super. 1992) 

### quoting Hartford Mutual Insurance Company v. Moorhead, 578 A.2d 492, 494-495 (Pa. 1990). The obligation of an 

### insurer to defend an action against the insured is fixed by two 

### considerations: (1) the 

### language 

### of the policy 

### itself and (2) the 

### allegations in the underlying 

### complaint. See, Gene's 

### Restaurant, Inc. v. 

### Nationwide Ins. Co., 548 A.2d 246 (Pa. 1988); Erie Ins. 

### Exchange v. Fidler, 808 A.2d 587 (Pa.Super. 2002); 

### Britamco Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994). 

### Therefore, in 

### order to 

### determine 

### whether a claim may 

### potentially come within the 

### coverage of a policy, as required 

### for the 

### insurer to be obligated to defend, a court must 

### first ascertain the scope 

### of insurance 

### coverage and then analyze the 

### allegations in the complaint. See, 

### Britamco Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994). The 

### duties to defend and 

### indemnify are 

### deemed as 

### separate and 

### distinct: While the 

### duty to defend can "be determined 

### merely on the basis 

### of 

### whether the factual 

### allegations in a 

### complaint potentially state a claim 

### against the 

### insured" such 

### that duty to defend 

### thereby "arises 

### whenever the claims asserted by the injured party 

### potentially come within the 

### coverage 

### of the policy,

... the duty to 

### indemnify arises only when the insured is 

### determined to be liable 

### for 

### damages within the 

### coverage 

### ofthe policy." See, 

### Regis Ins. Co. v. 

### All American

7 Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

Rathskeller, Inc., 976 A.2d 1157, 1161 (Pa.Super. 

### 2009) 

### (internal citations omitted). See also, 

### General

### Accident Insurance Co. v. Allen, 692 A.2d 1089, 1095 (Pa. 1997). 

### Although an insurer's duty to defend is 

### separate from and 

### broader than the insurer's duty to indemnify, both 

### duties flow from a 

### determination that the underlying 

### complaint triggers coverage. See, 

### General 

### Accident Ins. Co. 

### ofAmerica v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). The above-cited language from the Policy 

### clearly provides 

### that Maryland 

### Casualty does not have a duty to defend or 

### indemnify 

### for bodily injuries 

### that arise out 

### of "use" 

### of an "auto". See, CGLFC at 4 of 17. "Use" includes "loading and unloading", which is defined by the Policy to include, but is not limited to, "the handling 

### of property 

# ... while it is in or on an 

# ... 'auto". See, CGLFC at 14-15 

### of 17. As a result, the question before the Court: is 

### whether the 

### allegations in the 

### Amended 

### Complaint in the underlying action fall within this definition. The 

### Amended 

### Complaint in the underlying action 

### alleges that the Insured failed to secure the chairs and tables 

### properly when the same were loaded onto the pickup truck. This alleged fariuru 

### cau,ed tl le cl ratrs 

### and 

### tables to tali 

### from 

### the pickup truck, onto the road directly into the path 

### of Defendant Warren McGrath, who was 

### traveling in the opposite direction. 

### Defendant Warren McGrath attempted to swerve to avoid the chairs, but the rear tire 

### of his 

### motorcycle hit a 

### chair in the 

### roadway and his motorcycle 

### flipped. He was 

### thrown from the 

### motorcycle and suffered injuries. This alleged 

### failure to secure the chairs and 

### tables clearly 

### falls within the definition of "loading and unloading", as defined at Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

Section V, 

### Paragraph 11 of the CGLCF, i.e., the alleged 

### negligence involves the handling of 

### property (chairs and 

### tables) while the 

### property is in or on the auto 

### (Insured's pickup truck). The 

### Amended Complaint in the underlying action also alleges 

### that the Insured is liable 

### for failing to remove an 

### obstruction (i.e., the 

### tables and chairs, which fell from the 

### Insured's pickup truck) on the 

### roadway and

### /or for failing to
warn 

### operators of 

### vehicles on the roadway 

### of the 

### dangerous condition (i.e., the fallen tables and chairs) 

### that the Insured created. The Court must also 

### consider whether these allegations arise out of the "loading or unloading" 

### of the "auto" so
as to fall within the Exclusion at issue. When the 

### words "arising out of" the use 

### of an 

### automobile in an 

### insurance exclusion clause, as is found in the Policy, "it must be concluded 

### that this 

### clause acts to 

### exclude only 

### those injuries which are 

### proximately caused by the 

### automobile" (or, with 

### respect to the 

### specific provision 

### of the Policy, the 

### handling of property while it is in or on the 

### automobile.) See, 

### Eichelberger v. Warner, 

### 434 A.2d 747, 752 

### (Pa.Super. 1981). "Proximate 

### causation is defined as a 

### wrongful

Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 

### (Pa.Super. 2005). The record is 

### clear that the substantial 

### factor in bringing about the harm to 

### Defendant Warren McGrath was the Insured's allleged 

### failure to secure the chairs and 

### tables 

### properly when the same were loaded onto the pickup truck. This alleged 

### failure clearly was the substantial 

### factor that caused the 

### obstruction which the Insured failed to remove and the 

### dangerous condition ofwhich the
9 Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM

Insured failed to warn. As a result, these 

### allegations likewise fall within the exclusion provision at issue in the policy as the bodily injury is alleged to have arisen out 

### of the handling of property while said 

### property is in or on the automobile.2 

### Accordingly, the allegations set 

### for in the 

### underlying 

### Amended Complaint fall entirely with the Auto Exclusion in the Maryland 

### Casually Policy, and we 

### enter the 

### following End 

### of Decision Order on 

### Separate Page

2 In addition, Defendants argue that the reasonable expectation of the Insured is that the Policy would provide coverage of the bodily injury. However, the reasonable expectations doctrine is applied in very limited circumstances. Madison Construction Co. v. Harleysville Mutual Ins. Co., 735 A.2d 100, 109 n.8 (Pa.1999). It has only been applied to protect non-commercial insureds from policy terms not readily apparent and/or to protect non-commercial insureds from deception. See, Collister v. Nationwide Life Ins. Co., 388 A.2d 1346 (Pa. 1978) (applying doctrine to protect non-commercial insured from policy terms not readily apparent); Tonkovic v. State Farm Mut. Auto. Ins. Co., 521 A.2d 920 (Pa. 1987) (applying doctrine to protect non-commercial insured from deception). Since the Court has not found any ambiguity in the terms of the Policy and there is no evidence of record to support any allegation of deception or even a representation by Plaintiff or its agents, the reasonable expectation doctrine does not apply in this case. 10 Circulated 11/24/2015 06:04 PMMARYLAND 

### CASUALTY COMPANY, Plaintiff



### vs. WARREN MCGRATH, NANCY 

### ZIHALAMCGRATH, MARTIN BURRIDGE D/B/A BURRIDGE 

### TENT RENTALS AND MARTIN BURRIDGE, INDIVIDUALLY,

Now, this 

# a` day of Defendants : ORDER Circulated 11/24/2015 06:04 PM

IN THE 

### COURT OF COMMON PLEAS OF 

### LUZERNE COUNTY

CIVIL ACTION - LAW 

# ó r- -0 c.s., 

# ó c ,,,,_--.,T, 

### d23-1--. ' 

# ----L) _t_ 

# `1 c3Q.Cî No. 

### 2013-CV-8099 -o 

# r ,

, 2015, it is hereby ORDERED, 

### ADJUDGED AND DECREED as follows: (1) The 

### Motion for 

### Summary Judgment, filed by 

### Defendants Warren McGrath and Nancy 

### Zihala-McGrath to 

### Amended Complaint, on March 21, 2014, is hereby DENIED 

### for the reasons set forth in the attached opinion. (2) The Cross-Motion 

### for Summary

### Judgment, filed by Maryland 

### Casualty Company, on April 21, 2014, is hereby 

### GRANTED 

### for the reasons set forth in the attached opinion. (3) 

### Declaratory Judgment is hereby enterod in 

### favor of Plaintiff Maryland 

### Casualty 

### Company declaring that the 

### allegations set forth in the underlying 

### Amended Complaint fall entirely with the Auto Exclusion in the Maryland 

### Casualty Policy, and 

### that the 

### applicability of this 

### exclusion is 

### sufficient to bar 

### coverage 

### for the claim arising out of the underlying action. 

### Plaintiff Maryland 

### Casualty Company, 

### therefore, has no duty to 

### defend or 

### indemnify Defendants Martin Burridge d/b/a Burridge 

### Tent Rentals or 

### Defendant Martin Burridge
11 7iiN¡SWE WON_ s339 MICH 

### Urin IITE.' L°; 

### WYi 

## rm! if

-. 

## < r

# L Z-- (3 Filing ID: 2006845 2013-08099-0058 Order with Rule 236 Luzerne County Civil Records 1/27/201 5 1 1:44:56 AM Circulated 11/24/2015 06:04 PMCirculated 11/24/2015 06:04 PM
individually, 

### for or 

### against the 

### allegations and 

### damages set forth in the Luzerne County action, docketed at Luzerne County Docket No, 10269-2012. (4) The 

### Prothonotary is directed to 

### enter this 

### Order 

### of record, and to mail a 

### copy 

### of this 

### Orderto all counsel 

### of record 

### pursuant to Pa.R.C.P. 236. By the Court:



### Counsel: Brigid Q. Alford, Esquire 100 Corporate 

### Center Drive, Suite 201 Camp Hill, Pa 17011 Julia Munley, Esquire 227 Penn 

### Avenue Scranton, PA 18503 Daniel E. Cummings, Esquire 700 Electric Building 507 Linden 

### Street Scranton, PA 18503

12 Circulated 11/24/2015 06:04 PM