Erie Insurance Exchange has lost in its bid to shift some of the burden of paying out a $1.1 million settlement to resolve claims stemming from a fatal truck accident.

A three-judge Pennsylvania Superior Court panel consisting of Judges Paula Francisco Ott, Victor Stabile and Maria McLaughlin upheld a Philadelphia Court of Common Pleas judge's granting of summary judgment in favor of defendant Greenwich Insurance Co.

The underlying case centered on the death of Jeremy Andre, who was killed when a trash truck rolled over on him, according to Ott's opinion. His estate sued Andre's employer, Ches-Mont Disposal, and Stephen Koons, doing business as Miller Concrete, who leased the truck to Ches-Mont. Koons is also the co-owner of Ches-Mont.

The estate won workers' compensation benefits and Koons tendered his insurance claims to his insurer, Erie, and Ches-Mont's, Greenwich. Greenwich denied indemnification and Erie agreed to pick up the million-dollar tab.

Afterward, Erie claimed that Greenwich was responsible for paying at least some of the settlement, Ott said. However, the Philadelphia judge disagreed, granting Greenwich's motion for summary judgment and denying Erie's.

Ott began the court's analysis by examining who was the named insured under the Greenwich umbrella policy, which Erie argued made Greenwich responsible for some of the settlement.

“There is no question that this language is clear and unambiguous in defining Koons as an insured only when he acts within the scope of his duties as an officer of Ches-Mont,” Ott said,

The question then became whether Koons was sued in his individual capacity or doing business as Miller Concrete.

“In the context of the complaint, it was the owner/lessor—Koons d/b/a Miller—who retained the duty to ensure the truck was in working condition, not the lessee, Ches-Mont,” Ott said. “The relevant language throughout the complaint indicates Koons was being sued not as a person acting on behalf of Ches-Mont, but as an individual acting under the fictitious name of Miller Concrete. Accordingly, the trial court correctly determined for purposes of the underlying action, the Greenwich policy did not apply to Koons d/b/a Miller Concrete.”

Erie argued that the matter was not properly before the Philadelphia judge because of collateral estoppel involving federal litigation involving Koons' capacity as a defendant, Ott said.

“Erie notes the Third Circuit vacated the district court's determination that Koons had been sued individually, rather than as acting on behalf of Ches-Mont, thereby settling the issue. We disagree,” Ott said. “First, the Third Circuit never resolved the issue of Koons' capacity as a defendant. The Third Circuit merely noted that there remained an open question as to that issue and remanded the matter for further action. All federal involvement was terminated prior to the resolution of that issue. Collateral estoppel requires there be a prior resolution of a particular issue. Without this resolution, the issue remained open for the Court of Common Pleas to decide.”

Lastly, Ott said that workers' compensation wiped away any claims that Koons was negligent in the scope of his duties at Ches-Mont.

“Erie's claims in this matter are caught between Scylla and Charybdis. If Koons was sued individually d/b/a Miller Concrete, he is not an insured under the Greenwich policy which affords coverage to Koons only for actions taken in the course of his duties with Ches-Mont,” Ott said. “In the alternative, if Koons was sued for alleged negligent actions taken during the scope of his duties with Ches-Mont, then workers' compensation was Andre's exclusive remedy and the Greenwich umbrella policy is equally inapplicable because no tort claim against Koons survives.”

Christopher Tellner of Kaufman, Dolowich Voluck in Blue Bell represents Greenwich and declined to comment.

Allan Molotsky of Fowler Hirtzel McNulty & Spaulding in Philadelphia represents Erie and did not respond to a request for comment.

(Copies of the 11-page opinion in Erie Insurance Exchange v. Greenwich Insurance, PICS No. 19-0063, are available at http://at.law.com/PICS.)