Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2002

Matson Lumber Co v. Twin Cty Fire Ins
Precedential or Non-Precedential:

Docket 1-1758




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Recommended Citation
"Matson Lumber Co v. Twin Cty Fire Ins" (2002). 2002 Decisions. Paper 25.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/25


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                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                            No. 01-1758
                            ___________

                      MATSON LUMBER COMPANY,

Appellant
                                v.

                 TWIN CITY FIRE INSURANCE COMPANY

                            ___________

        On Appeal from the United States District Court
            for the Western District of Pennsylvania

      Magistrate Judge: The Honorable Ila Jeanne Sensenich
                  (D.C. Civil No. 00-cv-00001)
                           ___________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                      Tuesday, January 8, 2002

      Before: MANSMANN, RENDELL, and FUENTES, Circuit Judges

                 (Opinion Filed: January 17, 2002)
                      ________________________

                         MEMORANDUM OPINION
                      ________________________
FUENTES, Circuit Judge:
     On March 13, 1995, Albert T. Carlisle filed a civil action in the
District Court for
the Western District of Pennsylvania against Matson Lumber Company and
Matson
Hardwoods, Inc. (now, by merger, Matson Lumber Company). The complaint
asserted
claims for breach of contract, trespass, and conversion, alleging that
Matson Lumber had
breached the terms of an agreement between Carlisle and Matson Lumber's
predecessor
in interest, when it improperly harvested trees in a "no-cut zone" on
Carlisle's property.
In addition, the complaint requested an accounting, and certain
declaratory and injunctive
relief.
     After commencement of the action, Carlisle voluntarily dismissed the
tort claims
for trespass and conversion. Therefore, the underlying action was
presented to the jury
only on Carlisle's claims for breach of contract and declaratory relief.
On December 18,
1997, the jury returned a verdict in Carlisle's favor and awarded damages
in the sum of
$110,000.
     On December 10, 1999, Matson brought an insurance coverage action
seeking
indemnity for the damages it was required to pay Carlisle, under a general
liability
commercial insurance policy held by Twin City Fire Insurance Company
("Twin City
Fire"). That policy stated that Twin City Fire would indemnify Matson
Lumber from
liability for any 'property damage', defined as "physical damage to
tangible property,
including all resulting loss of use of that property." The policy also
expressly excluded
from coverage "any 'property damage' for which the insured is obligated to
pay damages
by reason of the assumption of liability in a contract or agreement."
     On January 3, 2000, Twin City Fire removed the action to the District
Court for
the Western District of Pennsylvania. On February 28, 2000, on cross-
motions for
summary judgment, the District Court denied Matson Lumber's motion, but
granted
Twin City's cross-motion, and dismissed Matson Lumber's claim. See, Matson
Lumber
Co. v. Twin City Fire Insurance Co., Civil Action No. 00-0001 (W.D. Penn.,
2001)
(unpublished opinion).
     In its ruling, the court determined that because the exclusion
language in the
policy was 'clear and unambiguous,' and because Matson Lumber was found
liable in
the underlying action solely on breach of contract, applicable
Pennsylvania law does not
require Twin City to indemnify Matson. See, e.g., Redevelopment Authority
of Cambria
County v. International Ins. Co., 

(Pa. Super. 1996) (en
banc), appeal
denied, 

(Pa. 1997) (where "the underlying suit arises out of
breach of
contract which is [excluded] by the provisions of the general liability
insurance
policy...applicable case law from this and other jurisdictions compels the
conclusion that
[the insurer] ...has no duty to...indemnify [the insured]"). Matson Lumber
Company now
appeals the District Court's order.
     After a careful review of the briefs and appendices submitted by the
parties, we
find no basis for disturbing the District Court's rulings. Therefore, we
will affirm the
order, denying Plaintiff/Appellant Matson Lumber Company's motion for
summary
judgment and granting Defendant/Appellee Twin City Fire Insurance
Company's motion
for summary judgment, substantially for the reasons expressed by
Magistrate Judge
Sensenich in her well-reasoned memorandum opinion. 

_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                     /s/Julio M. Fuentes

Circuit Judge