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Et landscaping & lawn care inc

Et landscaping & lawn care inc



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Et landscaping &, lawn care inc. v. St. Paul Guardian Ins. Co.

Docket No. C-98-4151-MJP

January 12, 2000.

ROSE ET AL., Plaintiffs-Appellants,v.ST. PAUL GUARDIAN INSURANCE CO., Defendant-Appellee.

The opinion of the court was delivered by:

WALLIS, Judge.

Plaintiffs appeal the trial court's grant of summary judgment to defendant. At issue is whether the trial court erred in finding that the "your work" exclusions in the insurance policies for defendant's landscaping and lawn care business precluded coverage for a garden-variety sod cutting accident. For the reasons set forth below, we reverse and remand.

The relevant facts are not in dispute. Defendant, a Pennsylvania corporation, was in the business of selling, tending and maintaining landscaping and lawn care products to individuals and local municipalities. Defendant's standard general liability insurance policy ("the policy") for the period from April 1, 1990 to April 1, 1993, provided coverage for property damage or bodily injury resulting from operations performed by the insured at any business premises.

Plaintiffs are a father, mother and son. The son is an 18-year-old high school senior who received his permit to cut grass and sod at defendant's business premises during the summer of 1993. On August 10, 1993, while performing sod cutting at defendant's business premises, the son became entangled in a "power lift" used to pull the sod off the lawns at defendant's business premises. The son suffered extensive injury to his back, shoulders, arms and legs, as a result of the accident.

Plaintiffs sought payment for the son's injuries under defendant's general liability insurance policy. Defendant refused payment on the ground that the sod cutting was a "business" activity and thus was excluded from coverage under the "your work" exclusion found in the policy. On October 20, 1994, plaintiffs filed a complaint in the Court of Common Pleas of Allegheny County, which sought payment under defendant's general liability insurance policy. On January 19, 1995, defendant removed the action to the United States District Court for the Western District of Pennsylvania on the ground that federal question jurisdiction existed because the son's tort claim was governed by the Occupational Safety and Health Act, 29 U.S.C. § 653, and the regulations promulgated under it, 29 C.F.R. § 1910.120-.127, and thus arose under federal law. On October 13, 1995, the District Court entered an order granting summary judgment in defendant's favor and denying plaintiffs' motion to remand the case to state court.

Upon review, we conclude that the "your work" exclusion is ambiguous. The policy does not expressly exclude coverage for the son's injuries incurred while performing sod cutting, but does exclude coverage for damages incurred while performing work at defendant's place of business. Therefore, this Court must construe the exclusion strictly against defendant. In light of this construction, the exclusion does not apply and plaintiffs' action is not preempted by the Federal Act. Accordingly, the District Court's order denying plaintiffs' motion to remand and granting defendant's motion for summary judgment will be affirmed.

II

Background

In April 1993, plaintiffs entered into a contract with defendant to remove sod from its premises. Plaintiffs then sent their son, who was a minor at the time, to the premises to perform the work. The accident occurred when the son stepped on a piece of asphalt and it flew into his face. As a result of the accident, the son was rendered unconscious.

Plaintiffs initially filed a complaint in state court, which sought recovery for the son's injuries. Defendant removed the case to federal court, claiming that the case was preempted by the Federal Act.

Upon review, the District Court concluded that the son's accident was excluded from coverage under the Federal Act because he was performing work at defendant's place of business when the accident occurred. Thus, the District Court granted defendant's motion for summary judgment.

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