NATIONWIDE AGRIBUSINESS INSURANCE COMPANY v. BILLIG et al

Filing 71

MEMORANDUM AND ORDER THAT UPON CONSIDERATION OF BRETHREN MUTUAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT (DOCUMENT #27 OF CIVIL ACTION NO. 06-5421), AND THE RESPONSES OF THE DEFENDANTS THRETO, IT IS HEREBY ORDERED THAT THE MOTION IS DENIED. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/31/09. 4/1/09 ENTERED AND COPIES MAILED AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

N A T I O N W I D E AGRIBUSINESS I N S U R A N C E COMPANY, P laintiff

: CIVIL ACTION : : : v. : N O . 06-1604 : B A R E T T N. BYLER, et al., : D efe n d a n ts : ...................................................................................................................................... T H E BRETHREN MUTUAL I N S U R A N C E COMPANY, P laintiff v. B A R E T T N. BYLER, et al., D efe n d a n ts : : : : : : : : CIVIL ACTION

N O . 06-5421

MEMORANDUM

S T E N G E L , J.

March 31, 2009

T h e se consolidated cases seek declarations of the rights, duties, and liabilities of th e parties under various insurance policies issued to Defendants Barett N. Byler and T im o th y Billig. The Brethren Mutual Insurance Company has filed a motion for s u m m a ry judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The d e f e n d a n ts have responded. For the following reasons, I will deny the motion in its e n tir e ty.

I . BACKGROUND A . FACTS T h e se cases arise out of a motor vehicle accident that occurred on September 7, 2 0 0 5 , at the intersection of two public roads in Lynn Township, Lehigh County. See Pl. E x . A. There were two vehicles involved in the collision: (1) a Dodge Caravan owned a n d operated by Defendant Martin Bennicoff; and (2) a GMC Sierra dump truck operated b y Defendant Larry Cohick, Jr. The dump truck was not owned by Byler or Cohick or a n yo n e in their households. See Cohick Dep. at 58-59; see also Byler Dep. at 16. Defendant George Billig is the registered owner of the dump truck. See Pl. Ex. D; see a ls o T. Billig Dep. at 66. Neither Byler nor Cohick were in the business of selling, s e rv ic in g , repairing, parking or storing automobiles. See Cohick Dep. at 59. The dump tru c k was not a bulldozer, forklift, a tractor or a cherry picker. Id. at 62. It was registered w ith farm license plates. See T. Billig Dep. at 82, 87. On the date of the accident, the tr u c k was not operated on crawler treads, and there were no power cranes, shovels, lo a d e rs , diggers, road construction equipment, resurfacing equipment, raisers, scrapers or ro lle rs permanently mounted on it. See Cohick Dep. at 63. The truck, bought from a p riv a te individual, had minor modifications. The sandblaster was removed and replaced w ith a dump body box. See B. Billig Dep. at 81. The name, address, and telephone n u m b e r of Billig Farms were printed on both doors of the dump truck for advertising p u rp o s e s . See Pl. Ex. G.

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A t the time of the collision, Defendant Cohick was driving the dump truck in the c o u rs e and scope of his employment with Defendant Byler. See Cohick Dep. at 9, 43. Cohick understood that corn silage was to be delivered to the Byler Farm and that he w o u ld be involved in its delivery. Id. at 25. Byler had purchased the silage from D e f en d a n t Dietrich who borrowed the dump truck from Timothy Billig to help with the d e liv e ry. See Dietrich Dep. at 17; see also Byler Dep. at 12, 74. On the day before the a c cid e n t, some of Defendant Dietrich's other employees moved most of the loads of s ila g e . Defendant Dietrich asked Defendant Byler if one of his employees would be a v a ila b le to drive the truck the next morning to finish the job. Id. at 43. Byler offered the a s s is ta n c e of Defendant Cohick who was instructed to pick up the silage with the dump tru c k . Id. at 45. At his deposition, Cohick affirmed that the dump truck would drive a lo n g the cutting mechanism and the silage went into the truck while he drove it. See C o h ic k Dep. at 65. He indicated that the dump truck was used to transport or haul the s ila g e and was not involved in the cutting process. Id. at 64, 87. The truck was also not u s e d to store the silage or to prepare it to be used as feed. Id. at 87. Its purpose on that d a y was to haul the silage. Id. at 78, 91. Many of the defendants testified that the dump truck was regularly used in farm f ie ld s in the cultivation and harvesting of farm crops. See Dietrich Dep. at 24-25; Byler D e p . at 23-24; Cohick Dep. at 63; T. Billig Dep. at 45-47, 86. They described the process in which the truck was used in the harvesting of the silage: Dietrich cut the corn silage

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w ith his chopper, which brought the silage into the chopper and which was then blown a ltern a tiv e ly into the dump truck at issue here and another truck while in the field. This w a s performed while the trucks traveled alongside the chopper. Once each truck was full, it was driven from Dietrich's field to the Byler farm, where the truck would be unloaded o n to a walking table operated by a hydraulic motor driven from a tractor, which also p o w e re d a blower that blew the silage into a silo owned by Byler. See Dietrich Dep. at 2 4 -2 5 ; Byler Dep. at 21; Cohick Dep. at 89. The truck had been used several times for th is purpose. See T. Billig Dep. at 91. The chopper travels at a speed of approximately th re e miles per hour in the field while the truck follows alongside at the same rate of s p e e d . See Dietrich Dep. at 67. According to the defendants, the dump truck was not u s e d solely to haul the silage, but was used for loading of the silage in the fields and for th e unloading of the silage at Byler's farm. Id. at 24-25; Byler Dep. at 21; Cohick Dep. at 89. The defendants all agreed that the dump truck was used to haul silage, and other s o rts of farm product. See Dietrich Dep. at 17, 74; Byler Dep. at 79; T. Billig Dep. at 20, 5 1 , 85. Dietrich testified, however, that he had borrowed the truck on ten prior occasions to haul farm product, but generally the truck was used in the silage harvesting operation. . See Dietrich Dep. at 74. The dump truck was part of the harvesting operation and the s ila g e could not be harvested without either a truck or the use of a forage wagon. Id. at 8 7 -8 8 . Use of the forage wagon was less efficient because the silage deteriorated rapidly

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e a c h day in the field. In four to five days it becomes too late to harvest. Id. at 89, 100. Defendant Cohick testified that the dump truck served a number of farming purposes and th a t those purposes could include tasks both on a farm and on a public road. See Cohick D e p . at 78. Cohick's testimony, and that of other witnesses, establishes that the dump tru c k was used in the harvesting of silage several times. See Dietrich Dep. at 24-25; B yle r Dep. at 21; Cohick Dep. at 31, 65-66, 88, 89, 90. C o n tra ry to the plaintiff's contention, Dietrich did not admit that the dump truck w a s going to be used solely for hauling silage on the date of the loss. He asked Billig to b o rro w the dump truck because he was going to be hauling silage. See Dietrich Dep. at 1 7 . His testimony, however, establishes that the dump truck was used in harvesting o p e ra tio n s wherein (1) the truck was driven simultaneously alongside of the chopper in th e farm field for the purpose of loading the silage, (2) after which the truck was driven o u t of the field and driven to the Byler farm, (3) where it was unloaded and the silage was b lo w n into Byler's silo. Id. at 25. The harvesting of silage involved more than one p e rs o n and more than one vehicle, two trucks were needed to perform efficiently, and tru c k s were needed that would come in and out of the farm field. Id. at 65-67. Dietrich also testified that his own stake body truck was occasionally borrowed by T im o th y Billig who used it to haul wheat, corn and soy beans. Id. at 56. However, in c o n tra st with Dietrich, Billig does not raise corn for the purpose of making silage and the h o g s raised on Billig's farm do not eat silage. See T. Billig Dep. at 42.

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B yle r answered in the negative when asked if there was any reason to believe from h is perspective that the Billig dump truck could not be used on the day of the accident for p u rp o s e s of transporting the corn silage. See Byler Dep. at 79. His testimony established th a t the dump truck was repeatedly used in all facets of the harvesting operations, in c lu d in g onsite loading in Dietrich's farm field, travel to the Byler farm, and unloading o f the harvested product onto the walking table for delivery to Byler's silo. Id. at 21-25. T im o th y Billig testified that he observed Dietrich harvesting silage in the past and o b s e rv e d a truck moving alongside the chopper in the farm field where the silage was b eing loaded and that when one truck was full, another truck would take the full truck's p la c e so that the operation of the silage harvesting could continue. See T. Billig Dep. at 4 6 . When Billig borrowed Dietrich's International stake body truck, he used it to haul c o m m o d itie s off the farm. Id. at 51. He also testified that although he used the dump tru c k to haul commodities from the farm, he did not use it to haul produce to markets. His tractor trailer is usually used for that purpose. Id. at 80, 85-86, 94-95. B. INSURANCE POLICIES (1 ) Brethren's Business Auto Policy B re th re n issued a Business Auto policy to Defendant Byler with a policy period f ro m April 27, 2005 to April 27, 2006. See Pl. Ex. N. The policy states that coverage a p p lie s to "only those `autos' described in item Three of the Declarations for which a p re m iu m charge is shown (and for Liability Coverage any "trailers" you don't own while

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a ttac h e d to any power unit described in item Three). Id. at 1. The only vehicle listed in ite m Three of the Declarations is a 2001 Ford F350 Truck. Id. The policy also offers the following coverage: "We will pay all sums an `insured' leg a lly must pay as damages because of `bodily injury' or `property damage' to which this in s u ra n c e applies, caused by an `accident' and resulting from the ownership, maintenance o r use of a covered `auto.' We will also pay all sums an `insured' legally must pay as a `c o v e re d pollution cost or expense' to which this insurance applies, caused by an `ac cide n t' and resulting from the ownership, maintenance or use of covered `autos.' However, we will only pay for the `covered pollution cost or expense' if there is either `b o d ily injury' or `property damage' to which this insurance applies that is caused by the sa m e `accident.' We have the right and duty to defend any `insured' against a `suit' a sk in g for such damages or a `covered pollution cost or expense.' However, we have no d u ty to defend any `insured' against a `suit' seeking damages for `bodily injury' or `p ro p e rty damage' or a `covered pollution cost or expense' to which this insurance does n o t apply. We may investigate and settle any claim or `suit' as we consider appropriate. O u r duty to defend or settle ends when the Liability Coverage Limit of Insurance has b e e n exhausted by payment of judgments or settlements." Id. at 2. The policy defines the term "insured" as follows: "(a) You for any covered `auto.' (b) Anyone else while using with your permission a covered `auto' you own, hire or b o rro w except: (1) The owner or anyone else from whom you hire or borrow a covered

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`a u to .' This exception does not apply if the covered auto is a trailer connected to a c o v e re d auto you own. (2) Your `employee' if the covered `auto' is owned by that `e m p lo ye e ' or a member of his or her household. (3) Someone using a covered `auto' w h ile he or she is working in a business of selling, servicing, repairing, parking or storing `a u to s' unless that business is yours. (4) Anyone other than your `employees,' partners (if yo u are a partnership), members (if you are a limited liability company), or a lessee or b o rrow er or any of their `employees, while moving property to or from a covered `auto.' (5) A partner (if you are a partnership), or a member (if you are a limited liability c o m p a n y) for a covered `auto' owned by him or her or a member of his or her household. (c) Anyone liable for the conduct of an `insured' described above but only to the extent of th a t liability." Id. The term "auto" is defined as follows under the Business Auto policy: " `A u to ' means a land motor vehicle, `trailer' or semitrailer designed for travel on public ro a d s but does not include `motor equipment.'" Id. The Business Auto policy contains the following conditions in addition to the C o m m o n Policy Conditions: "We have no duty to provide coverage under this policy u n le ss there has been full compliance with the following duties: ...(b) Additionally, you a n d any other involved `insured' must: . . (2) Immediately send us copies of any request, d em an d , order, notice, summons or legal paper received concerning the claim or `suit'" Id . at 7.

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(2 ) Brethren's Farm Liability Policy B re th re n issued a Farm Liability policy to Defendant Byler with a policy period f ro m May 1, 2005 to May 1, 2006. See Pl. Ex. O. The Farm Liability policy provides the f o llo w in g coverage: "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 a p p lie s. We will have the right and duty to defend the `insured' against any `suit' seeking th o se damages. However, we will have no duty to defend the `insured' against any `suit' s e e k in g damages for `bodily injury' or `property damage' to which this insurance does not a p p ly. We may at our discretion investigate any `occurrence' and settle any claim or `suit' th a t may result." Id. at 1. The policy defines the term "motor vehicle" as: "A motorized la n d vehicle, trailer or semitrailer: (a) designed for travel on public roads; or (b) used on p u b lic roads; unless it qualifies as "mobile equipment." Id. at 13. "Mobile equipment" is d e f in e d in the policy as meaning "the following, including any attached machinery or e q u ip m e n t: (a) bulldozers, forklifts and tractors designed for use principally off public ro a d s: Other farm machinery designed for use: (1) principally off public roads; and (2) as im p le m e n ts for cultivating and harvesting; (b) vehicles while on premises you own or re n t; (c) vehicles that travel on crawler treads, except that snowmobiles are `mobile e q u ip m e n t' only while on an `insured location' or any premises you own or rent; (d) v e h ic le s, whether self-propelled or not, on which are permanently mounted: (1) power c ra n e s, shovels, loaders, diggers or drills; or (2) road construction or resurfacing

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e q u ip m e n t such as graders, scrapers or rollers; (e) vehicles not described in (a), (b), (c), or (d ) above that are not self-propelled and are maintained primarily to provide mobility to p e rm a n e n tly attached equipment of the following types: (1) air compressors, pumps and g e n e ra to rs , including spraying, welding, building cleaning, geophysical exploration, light a n d well servicing equipment; or (2) cherry pickers and similar devices used to raise or lo w e r workers; (f) vehicles not described in (a), (b), (c), or (d) above that are maintained p rim a rily for purposes other than the transportation of persons or cargo." Id. at 13. The policy continues: "However, self-propelled vehicles with the following types o f permanently attached equipment are not `mobile equipment' but will be considered `m o to r vehicles:' (1) equipment designed primarily for: (a) road maintenance, but not c o n stru c tio n or resurfacing; or (b) street cleaning; (2) cherry pickers and similar devices m o u n ted on automobile or truck chassis and used to raise or lower workers; and (3) air c o m p r e s s o rs , pumps and generators, including spraying, welding, building cleaning, g e o p h ys ic a l exploration, lighting and well servicing equipment. Id. Brethren's Farm Liability policy contains the following relevant exclusions: The in s u ra n c e does not apply to "bodily injury" or "property damage" arising out of: . . . (2) th e "maintenance, use, operation or `loading or unloading' of any aircraft, `motor v e h icle .' motorized bicycle or tricycle by any `insured' or any other person. This e x c lu sio n does not apply to: (a) an aircraft that causes `bodily injury' or `property d a m a g e ' to a `residence employee' who is not operating or maintaining it; (b) parking a

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`m o to r vehicle' or motorized bicycle or tricycle on, or on the ways next to, premises you o w n or rent, provided the `motor vehicle' is not owned by, or rented or loaned to you or th e `insured;' (c) a `motor vehicle' not subject to motor vehicle registration by reason of its exclusive use as a device for assisting the handicapped; (d) a licensed recreational `m o to r vehicle' owned by an `insured,' provided the `occurrence' takes place on the `in s u re d location;' (e) `bodily injury' or `property damage' arising out of the operation of a n y of the equipment listed in ¶¶ f(2) or f(3) of the definition of `mobile equipment.' Id. a t 1, 2. B re th re n 's Farm Liability policy includes the following conditions in addition to th e Common Policy Conditions: "If a claim is made or `suit' is brought against any `in s u re d ,' you must: (1) immediately record the specifics of the claim or `suit' and the d a te received; and (2) notify us as soon as practicable; you must see to it that we receive n o tic e of the claim or `suit' as soon as practicable. Id. at 9. Id. at 9. I I . STANDARD OF REVIEW S u m m a ry Judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such th a t a reasonable jury could return a verdict for the non-moving party. Anderson v.

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L ib e rty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might a f f e c t the outcome of the case under governing law. Id. The moving party must establish th a t there is no triable issue of fact as to all of the elements of any issue on which the m o v in g party bears the burden of proof at trial. See In re Bressman, 327 F.3d 229, 2 3 7 -38 (3d Cir. 2003). A party seeking summary judgment always bears the initial responsibility for inf o rm ing the court of the basis for its motion and identifying those portions of the record th a t it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v . Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of p ro o f on a particular issue at trial, the movant's initial Celotex burden can be met simply b y "pointing out to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Id. at 325. After the moving party has met its initial burden, " th e adverse party's response, by affidavits or otherwise as provided in this rule, must set f o rth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by m a k in g a factual showing "sufficient to establish the existence of an element essential to th a t party's case, and on which that party will bear the burden of proof at trial." Celotex C o rp . v. Catrett, 477 U.S. at 322. A motion for summary judgment looks beyond the pleadings and factual sp ec ificity is required of the party opposing the motion. Celotex, 477 U.S. at 322-23. In

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o th e r words, the non-moving party may not merely restate allegations made in its p le a d in g s or rely upon "self-serving conclusions, unsupported by specific facts in the re c o rd ." Id. Rather, the non-moving party must support each essential element of its c la im with specific evidence from the record. See id. U n d e r Rule 56, the court must view the evidence presented on the motion in the lig h t most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 2 5 5 ; see also Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (a d is tric t court analyzing a motion for summary judgment must view the facts in the light m o s t favorable to the non-moving party and make every reasonable inference in favor of th a t party). The court must decide not whether the evidence unmistakably favors one side o r the other but whether a fair-minded jury could return a verdict for the plaintiff on the e v id e n c e presented. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. If the non-moving p a rty has exceeded the mere scintilla of evidence threshold and has offered a genuine is s u e of material fact, then the court cannot credit the movant's version of events against th e opponent, even if the quantity of the movant's evidence far outweighs that of its o p p o n e n t. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3 d Cir. 1992). III. DISCUSSION P e n n s ylv a n ia courts interpret insurance contracts as a matter of law. Home Ins. C o . v. Law Offices of Jonathan DeYoung, P.C., 32 F.Supp.2d 219, 223 (E.D. Pa. 1998).

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T h e goal in interpreting an insurance contract is to ascertain the intent of the parties as m a n if e ste d by the language of the written instrument. The court must read the insurance p o licy as a whole and "its terms, when unambiguous, must be construed according to their p la in and ordinary meaning." Jacobs Constructors, Inc. v. NPS Energy Servs., 264 F.3d 3 6 5 , 376 (3d Cir. 2001). The policy's language should not be tortured to create a m b ig u itie s ; rather, the policy should be read to avoid them, if possible. Home Ins. Co., 3 2 F.Supp.2d at 223; see also St. Paul Fire & Marine Ins. Co. v. U.S. Fire Ins. Co., 655 F .2 d 521, 524 (3d Cir. 1981). Furthermore, the policy should not be rendered ambiguous b y the mere fact that the parties disagree as to the proper construction. See Pizzini v. Am. Intern . Specialty Lines Ins. Co., 210 F.Supp.2d 658, 667 (E.D. Pa. 2002). Rather, a term is ambiguous only if it is reasonably susceptible to different constructions, is capable of b e in g understood in more than one sense and is "obscure in meaning through in d e f in ite n e ss of expression or has a double meaning . . ." Id. Accordingly, in a d e c la ra to ry judgment action requesting that the court provide the proper construction of a n insurance policy, the first step is normally to determine whether the policy term in q u e stio n is ambiguous. St. Paul Fire and Marine Ins. Co. v. Lewis, 935 F.2d 1428, 1431 (3 d Cir. 1991). If the term is unambiguous, then it must be given its plain meaning. On th e other hand, terms in an insurance contract which are ambiguous are to be construed s tr ic tly against the insurer and in favor of the insured. Id. (citing Mohn v. American Cas. C o ., 326 A.2d 346, 351 (Pa. 1974)). One stated rationale for the enforcement of this

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p rin c ip le is that insurance policies are not ordinary contracts but are contracts of adhesion b e tw e e n two parties who are not equally situated, and thus equity requires their in te rp re ta tio n in favor of the weaker party (i.e. the insured). McMillan vs. State Mutual L if e Assurance Company of America, 922 F.2d 1073 (3d Cir. 1990). Brethren first argues that there is no coverage for the dump truck under the B u sin e ss Auto policy it issued to Defendant Byler. I agree. The dump truck is not a c o v e re d auto because it is not a specifically described auto under the policy. The c o v e ra g e of the policy applies only to autos specifically described in item Three of the D e c la ra tio n s . The only vehicle listed in that item is a 2001 Ford F350 Truck. See Pl. Ex. N . It was not the Ford F350 Truck involved in this accident, but the dump truck re g is te re d to and owned by Defendant Billig and driven by Defendant Cohick. The dump tru c k was not owned by Byler or Cohick, or anyone in their households. Accordingly, the d u m p truck is not a covered auto under the Business Auto policy issued by Brethren, and lia b ility coverage under the policy does not apply. Brethren next argues that Defendants Byler and Cohick do not meet the definition o f an insured under the Business Auto policy it issued to Byler. I agree. An insured is d e f in e d as "[the policyholder] for any covered `auto.'" Defendant Byler, the p o lic yh o ld e r, does not meet the definition of an "insured" under this policy because the v e h ic le involved in the accident was not a covered auto under the policy. Defendant Cohick also does not meet the definition of an "insured" under the

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B u s in e ss Auto policy because (1) the vehicle involved in the accident was not a covered a u to , (2) Cohick did not own the vehicle involved, (3) no one in Cohick's household o w n e d the vehicle involved, and (4) Cohick was not in the business of selling, servicing, re p a irin g , parking or storing autos. The defendants suggest that the language of the policy in the definition of an " in su re d " implies that there may be more than one category of covered autos in this p o lic y: those that are actually owned by the named insured and other vehicles such as " b o r ro w e d vehicles." They insist that the definition of who is an insured includes a p ro v is io n for borrowed vehicles. I do not agree. The Business Auto policy defines an in su re d as follows: (a) you for any covered "auto;" and (b) anyone else while using with yo u r permission a covered "auto" you own, hire or borrow. The policy then delineates f iv e exceptions which do not apply here. Notwithstanding the well-reasoned argument of th e defendants, there is no escaping the fact that the dump truck is not listed in item Three a s a covered "auto." A covered "auto" is defined as one described in item Three of the D e c la ra tio n s for which a premium charge is shown. Reading subsections (a) and (b) to g e th e r, it is clear that a covered auto would still have to be listed in item Three whether th e policyholder owned it, hired it, or borrowed it. The dump truck was not listed in item T h re e , and thus cannot be considered a covered "auto." There is no ambiguity here. Likewise, I am not persuaded by the defendants' argument that Cohick is an " in s u re d " because of the language of the policy that provides, "anyone else while using

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w ith your permission a covered "auto" you own, hire or borrow." While it may appear th a t Cohick received permission to use the dump truck from Byler, the policyholder, the d u m p truck was still not listed as a covered auto, a requisite listed in the definition. Because, Cohick cannot be an insured under subsection (b), the defendants cannot find re lie f in subsection (c) to establish that Byler is also an insured as vicariously liable for th e negligent acts of Cohick, his employee. Accordingly, Brethren has no duty to defend and/or indemnify Defendants Byler a n d Cohick under the Business Auto policy it issued to Byler. Brethren next argues that there is no coverage under the Farm Liability policy it iss u e d to Defendant Byler because the dump truck does not qualify as "mobile e q u ip m e n t." Instead, Brethren insists, the dump truck qualifies as a "motor vehicle," and a s such is not covered under the Farm Liability policy. It is undisputed that coverage e x is ts under Brethren's Farm Liability policy if the dump truck is "mobile equipment" as d e f in e d under § 13 of the policy. Thus, the crux of this case turns on whether the dump tru c k is "mobile equipment" under the terms of this policy. Brethren insists that a simple reading of the definition of "mobile equipment" u n d e r the Farm Liability policy would lead to the conclusion that the dump truck is not " m o b ile equipment." The dump truck is not a bulldozer, a forklift or a tractor. Brethren c o n ten d s that if an owner of the truck would seek information on using the dump truck in fa rm ing activities, there would be no such information found in the manufacturer's

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O w n e r's and Driver's manual. See Pl. Ex. M. In fact, Brethren argues, the dump truck is ref ere n ce d as a "vehicle" or "motor vehicle" throughout the Owner's and Driver's M a n u a l, and never as "mobile equipment" or farm equipment. It contends that not only w a s the dump truck designed primarily for use on public roads, it was actually used on p u b lic roads. Brethren offers the opinion of Engineer George H. Meinschein who inspected the d u m p truck after the accident to determine the design and manufacturer's specifications, a n d made the following notes, inter alia: The [dump] truck that is the subject of this evaluation was m a n u f ac tu re d in two stages. General Motors Corporation m a n u f ac tu re d the incomplete vehicle as a cab and chassis that c o n f o rm e d to all the existing United States federal regulations th a t were applicable to motor vehicles with a Gross Vehicle W e ig h t Rating of approximately 32,000 pounds. The in c o m p l e te vehicle contained approved glazing, high and low b e a m headlamps, turn signals, brake lamps, tires, a single p e d a l to actuate all service brakes, horns, energy-absorbing steerin g column, windshield wipers, mirrors and seat belts. In m y opinion, General Motors Corporation manufactured the s u b je c t vehicle for use primarily on public roadways. The m a n n e r in which General Motors Corporation intended the tru ck to be operated is detailed in the [dump truck] Owner's a n d Driver's Manual for the subject truck. See Pl. Ex. L. As the defendants point out, this report assumes, but does not establish by re f ere n c e to any manual provision or other documentation, that the dump truck was in te n d e d to be operated primarily on public roadways. It also assumes without proving th a t this particular type of truck is a "truck service" vehicle, as opposed to a "tractor

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s e rv ic e " or combination "truck service ­ tractor service" type of vehicle. See Pl. Ex. M at 3 . The dump truck Owner's Manual describes three types of gross vehicle weight rating p late s: (1) one for a "Truck Service ­ Tractor Service;" (2) one for a "Truck Service;" an d (3) one for a "Tractor Service." Id. Only a vehicle characterized in the Owner's M a n u a l as a "truck service" is defined as "a motor vehicle designed primarily for the tra n s p o rta tio n of property or special purpose equipment, designed for uniform frame lo a d in g including pulling a full trailer." Id. Furthermore, even if the vehicle in question is a "truck service" type of vehicle, it is not defined in the manual as a vehicle designed f o r travel on public roads. Only the "truck service" rating plate specification makes re f ere n c e to a motor vehicle. Id. The Owner's and Driver's Manual does not contain any d e f in itio n of a land motor vehicle. The defendants argue that there are genuine issues of material fact as to whether B re th re n is obligated to provide coverage and defend and indemnify Defendant Byler u n d e r the "mobile equipment" provisions of the Farm Liability policy. Specifically, the d e f en d a n ts contend that genuine issues of material fact exist as to whether the dump truck c o n stitu te d farm machinery designed for use principally off public roads and as an im p le m e n t for cultivating and harvesting under § 13(a) of the Farm Liability policy so as to qualify as "mobile equipment." Likewise, they contend that genuine issues of material f a ct exist as to whether the dump truck was maintained primarily for purposes other than th e transportation of persons or cargo under § 13(f) of the Farm Liability policy so as to

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q u a lif y as "mobile equipment." Under Section 13(a) of the Farm Liability policy, bulldozers, forklifts and tractors co n stitute "mobile equipment." However, the definition also includes "other farm m a c h in e ry" where it is designed for use (1) principally off public roads; and (2) as im p lem en ts for cultivating and harvesting. See Pl. Ex. O at 13. The terms "farm m a c h in e ry," and "implements for cultivating harvesting" are not defined in the definitions p o rtio n of the Farm Liability policy. Therefore, the court is required to use the plain m e a n in g of the words. Sheridan Broadcasting Networks, Inc. v. NBN Broadcasting, Inc., 6 9 3 A.2d 989 (Pa.Super. 1997). An "implement" is defined as "a device used in the p e rf o rm a n c e of a task ­ tool, utensil." See Merriam-Webster's Collegiate Dictionary, 11 th E d . (2003). "Cultivate" is defined as to "prepare or prepare and use for raising or crops." Id. Finally, "harvest" means "the act or process of gathering in a crop." Id. In considering the above definitions, the dump truck would qualify as "other farm m a c h in e ry" within the meaning of Section 13(a) of the definition of "mobile equipment" u n d e r the Farm Liability policy. Deposition testimony establishes that the dump truck w a s used as farm machinery on the Timothy Billig and William Dietrich Farms. For e x a m p le , it was used in the fields for bringing fertilizer and used for the removal or h a rv e stin g of silage from the fields. Testimony of the witnesses established that the truck w a s regularly used in farm fields in the cultivation and harvesting of farm crops. See D ie tric h Dep. at 24-25; Byler Dep. at 23-24; Cohick Dep. at 63; T. Billig Dep. at 45-47,

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8 6 . The truck served a number of farming purposes. See Cohick Dep. at 78. The truck w a s used to transport fertilizer to the farm field. See B. Billig Dep. at 84. On several o c c as io n s , the truck was used as an integral part of the silage harvesting operations on the D ie tric h farm. See Dietrich Dep. at 24-25; Byler Dep. at 21; Cohick Dep. at 88. The dump truck had multiple functions on the day of the accident. Transporting a n d hauling can be considered farming purposes. These functions occurred both in the f ie ld and on the road. The dump truck was on public roads hauling between the two f a rm s of the defendants. The silage operation could not have taken place without the d u m p truck being in the field driven alongside the chopper and without it being on the B yle r farm. Accordingly, there can be no dispute that the dump truck was used as an im p le m e n t for cultivating and harvesting based upon the deposition testimony of the w itn e s s e s . However, the second requisite to qualify as mobile equipment under Section 13(a) is not so well-established. To qualify, the dump truck must have been designed for use p rin c ip a lly off public roads. In an attempt to satisfy its burden of establishing this e le m e n t, Brethren contends without supportive evidence that the dump truck was d e s ig n e d principally for operation on public roadways. However, according to the dump tru c k Owner's and Driver's Manual, the truck may have been of the "tractor service" or " tru c k service ­ tractor service" variety, rather than a "truck service" type of vehicle. The m a n u a l does not establish that any of these three types of service are designed for

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p r in c i p a l on-road use. Based upon the record as it stands, Brethren has failed to establish th a t a vehicle manufactured over thirty years ago, having a farm license plate, is not a v e h icle designed principally for off public roads. Furthermore, Brethren has failed to e sta b lis h undisputed material facts that would entitle it to judgment as a matter of law that th e dump truck cannot be considered "other farm machinery" designed for use principally o f f public roads and as an implement for cultivating and harvesting under the record as it e x is ts . This is especially true in light of the credible deposition testimony establishing th a t the dump truck was regularly used in farming operations for cultivation and h a rv e s tin g . Even if the dump truck does not qualify as "mobile equipment" under Section 1 3 (a ) of the Farm Liability policy, it nonetheless may qualify under Section 13(f) as " (v )e h ic le s not described in Sections (a), (b), (c) or (d) that are maintained primarily for p u rp o s e s other than the transportation of persons or cargo." There is no evidence of re c o rd , nor does Brethren contend, that the dump truck was maintained primarily for the tra n sp o rta tio n of persons. The vehicle was maintained primarily for farming purposes a n d not for the transportation of persons. There exist, however, disputed issues of material fact as to whether the vehicle was m a in ta in e d primarily for the transportation of cargo. The Farm Liability policy does not d e f in e "cargo." Therefore, the ordinary meaning of the word must be examined. Cargo is d e f in e d as "the goods or merchandise conveyed in a ship, airplane, or vehicle; freight."

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S e e Merriam-Webster's Collegiate Dictionary, 11 th Ed. (2003). Another meaning is " g o o d s carried commercially on a ship, aircraft, or truck." See Compact Oxford English D ic tio n a ry, 3 r d Ed. (2005). Brethren maintains that the dump truck does not meet the d e f in itio n of "mobile equipment" under 13(f) because all of the facts developed during th e course of discovery establish, as a matter of law, that the dump truck was maintained p rim a rily for the purpose of transporting cargo. See Cohick Dep. at 25, 64, 78; Byler D e p . at 79; T. Billig Dep. at 20, 51, 85, and 87; Dietrich Dep. at 56, 74. Brethren also in s is ts that the use of a motor vehicle on a farm merely to transport commodities and/or c a rg o does not qualify the motor vehicle as farm equipment. On the other hand, Defendant Byler maintains that the primary purpose of the v e h icle was not to convey cargo or goods and merchandise commercially, but rather to c o n v e y farming products. For example, at the time of the accident the dump truck c o n tain e d silage, which was a harvested but unprocessed agricultural product intended to b e used as animal feed for Byler's dairy farm. He insists that farming products are clearly n o t "goods and merchandise." The product being hauled was for his own use, not in te n d e d to be sold to the public, so it cannot be considered "freight." In conclusion, the court cannot find, as a matter of law, that the dump truck in v o lv e d in the accident is mobile equipment as that term is defined in the Farm Liability p o lic y. It has not been proven that the dump truck was maintained primarily for purposes o th e r than the transportation of persons or cargo. There is some evidence that the dump

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tru c k was designed primarily for on-public-road use. Other evidence points to the fact th a t the dump truck was especially used for its work in the fields, and its hauling of p ro d u c t on public roads was incidental. Additionally, there is evidence that the dump tru ck was used primarily to transport or to haul, and thus could not be considered farm m a c h in e ry. Other testimony strongly supports a finding that the dump truck was used as a n implement for cultivating and harvesting. The court is not permitted to weigh these resp ec tiv e pieces of evidence when resolving a motion for summary judgment. Rather, th e court must conclude that reasonable fact-finders, viewing the competing evidence in the record, could come to different conclusions. Accordingly, I will deny Brethren's m o tio n for summary judgment. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

N A T I O N W I D E AGRIBUSINESS I N S U R A N C E COMPANY, P laintiff

: CIVIL ACTION : : : v. : N O . 06-1604 : B A R E T T N. BYLER, et al., : D efe n d a n ts : ...................................................................................................................................... T H E BRETHREN MUTUAL I N S U R A N C E COMPANY, P laintiff v. B A R E T T N. BYLER, et al., D efe n d a n ts : : : : : : : : CIVIL ACTION

N O . 06-5421

ORDER

A N D NOW, this 31st day of March, 2009, upon consideration of Brethren Mutual In s u ra n c e Company's motion for summary judgment (Document #27 of Civil Action No. 0 6 -5 4 2 1 ), and the responses of the defendants thereto, it is hereby ORDERED that the m o tio n is DENIED.

BY THE COURT:

/s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.