Pennsylvania Record

Monday, September 16, 2019

Defense and indemnification action involving Penn National, Travelers insurance companies is dismissed

Lawsuits

By Nicholas Malfitano | Jun 4, 2019


PHILADELPHIA – A dismissal was reached in a federal court suit surrounding an underlying personal injury action which had a construction company seeking both indemnification and defense from the Penn National and Travelers insurance companies.

On Sept. 14, plaintiff counsel filed a stipulation of voluntary dismissal without prejudice.

Plaintiff Allied World National Assurance Company of Boston first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 25, 2018 versus Penn National Mutual Insurance Company of Harrisburg and Travelers Property Casualty Company of America, of Hartford, Conn.

On March 18, 2016, Brian Scollon and Kathleen Scollon filed a lawsuit in the Philadelphia County Court of Common Pleas against Frankford Valley Foundation for Literacy II, Tacony Academy Charter School, McGregor Industries, Inc., BSI Construction, LLC and BSI Consulting, LLC.

The suit was in connection with injuries Mr. Scollon, an ironworker, allegedly sustained when he fell from a column about 40 feet above the ground and struck a beam during his fall at a construction project. Scollon sought damages related to a variety of full-body injuries he suffered in that accident, and for negligence on several counts relating to failing to protect workers on that job site.

FVF and McGregor entered into a written contract where McGregor would indemnify and hold harmless, BSI/CM from all claims and damages for personal injuries – even with respect to alleged negligence not attributable to McGregor, and requires McGregor name BSI as an additional insured on the commercial general liability policy.

Allied World issued a commercial general liability policy to BSI, spanning March 2, 2015 to March 2, 2016 and with limits of $1 million for each occurrence and $2 million aggregate.

Penn National issued a commercial general liability policy insuring McGregor Industries, Inc., spanning Oct. 1, 2014 to Oct. 1, 2015 and with limits of $1 million for each occurrence and $2 million general aggregate.

Travelers issued an umbrella liability policy also insuring McGregor, spanning Oct. 1, 2014 to Oct. 1, 2015 and with limits of $15 million per each occurrence and aggregate.

Meanwhile, the April 6, 2015 accident to Scollon took place within the coverage periods of all three policies – Penn National was marked as “Insurer A” and Travelers as “Insurer B”.

After being put on notice of the lawsuit, Penn National advised the plaintiff’s third-party administrator that it was prepared to offer a conditional defense and indemnity for the defendants in the Scollon lawsuit, subject to “reservation of rights” – such as waiver of conflict and one counsel representing all parties, in addition to the defense and indemnification being ended if independent negligence was found to be responsible for Scollon’s accident, and not caused by McGregor.

However, when Travelers was contacted regarding the Scollon lawsuit, it said though BSI may be entitled to indemnification and defense pending a reservation of rights and Travelers had no duty or obligation to defend BSI.

Neither Penn National nor Travelers cited any Employer Liability Exclusion in these matter, the instant suit claimed.

The plaintiff was represented by Andrew P. Moore of Andrew Moore & Associates, in Abington.

The defendants were represented by Samuel J. Arena Jr. and Joseph Thomas Kelleher of Stradley Ronon Stevens & Young, plus Andrew J. Gallogly of Margolis Edelstein, all in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-02658

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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