Nationwide Mutual Insurance Company v. Rose Brophy

Hon. A. Wallace Tashima, Senior Judge, United States*
Court of Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2141
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
ROSE BROPHY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 08-cv-02108)
District Judge: Hon. Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
February 11, 2010
Before: SLOVITER, ROTH and TASHIMA , Circuit Judges*
(Filed: March 16, 2010)
OPINION OF THE COURT

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The District Court had subject matter jurisdiction under 281
U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.
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TASHIMA, Circuit Judge.
Appellant Rose Brophy appeals the District Court’s order denying Brophy’s
motion for summary judgment and granting summary judgment to Appellee Nationwide
Mutual Insurance Co. (“Nationwide”). We will affirm.1
I.
The following facts, as recited by the District Court, are undisputed. Brophy is a
mail carrier for the United States Postal Service. On October 15, 2001, she was returning
to the post office in her standard mail delivery truck when she was in a collision with a
vehicle driven by Mylene Sweeney. Brophy suffered serious injuries in the collision.
Brophy eventually settled with Sweeney for the limits of Sweeney’s liability
insurance policy. She then filed a claim with her insurer, Nationwide, seeking additional
compensation through her underinsured motorist coverage. Nationwide denied Brophy’s
claim, citing her policy’s exclusion of injuries incurred when “us[ing] . . . any motor
vehicle . . . to carry persons or property for a fee.” App. at 64.
In this action, Nationwide seeks a declaratory judgment that Brophy’s injuries
were not covered by her policy. Brophy first moved to remand the action to arbitration,
which was denied. The parties then eventually filed cross-motions for summary
judgment. The District Court denied Brophy’s motion, granted Nationwide’s, and entered

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We review the District Court’s order resolving cross-2
motions for summary judgment de novo. Startzell v. City of Phila.,
533 F.3d 183, 192 (3d. Cir. 2008). Under Pennsylvania law, which
the parties agree is applicable here, “the interpretation of an
insurance contract regarding the existence or non-existence of
coverage is generally performed by the court.” Nationwide Mut.
Ins. Co. v. CPB Int’l, Inc., 562 F.3d 591, 595 (3d Cir. 2009).
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judgment in Nationwide’s favor. (App. 3-15, 16.) Brophy timely appeals. (App. 1-2.)2
II.
We must decide the meaning and effect of Endorsement 2538 to the insurance
policy between Brophy and Nationwide. That endorsement sets out Brophy’s
underinsured motorist coverage. Brophy contends that the District Court committed three
errors in its interpretation of her policy. We address each of these contentions seriatim.
A.
Endorsement 2538 excludes from Nationwide’s underinsured motorist coverage
the “[u]se of any motor vehicle by an insured to carry persons or property for a fee.”
App. at 64. Brophy argues that this language is ambiguous and should therefore have
been interpreted in her favor. See Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735
A.2d 100, 106 (Pa. 1999). The District Court concluded, however, that the language
unambiguously excluded Brophy’s injuries from coverage. We agree with the District
Court.
The language at issue here, or substantially similar language, has been the subject
of numerous lawsuits throughout the United States. See, e.g., Cincinnati Ins. Co. v. W.

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Am. Ins. Co., 112 F. Supp. 2d 718, 721-22 (C.D. Ill. 2000) (collecting cases). In the most
factually analogous Pennsylvania case, the Superior Court held that this language
excluded from coverage the injuries that a delivery truck driver incurred when he was in
his delivery truck. See Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071, 1073-74
(Pa. Super. Ct. 2004). Given that the Supreme Court of Pennsylvania did not express any
disagreement with Brosovic when presented with the opportunity, we find the analysis in
Brosovic convincing. See Prudential Prop. & Cas. Ins. Co. v. Sartno, 903 A.2d 1170,
1176 (Pa. 2006) (“A delivery van is certainly a vehicle used to carry property for a fee.”
(quoting Brosovic, 841 A.2d at 1074) (alteration omitted)); see also Ratush v. Nationwide
Mut. Ins. Co., 619 A.2d 733, 733 (Pa. Super. Ct. 1992) (concluding that policy language
excluded from coverage the injuries a taxi driver sustained while he was “driving to his
home and had no intention of carrying persons for a fee”).
Brophy’s reliance on Sartno is misplaced. In that case, the Pennsylvania Supreme
Court found a similarly worded provision ambiguous as applied to the employee of a
pizzeria who, among other duties, occasionally used his personal vehicle to deliver pizzas.
Sartno, 903 A.2d at 1171-73. The court concluded that a reasonable reading of the policy
was that “Sartno did not carry property for a fee because there was no delivery charge.”
Id. at 1177; see also id. at 1175 (citing with approval an Ohio Supreme Court decision
that a similar accident “would not be excluded by the policy, since neither [the pizzeria]
nor its customers paid [the insured driver] a fee specifically for delivering the pizza”

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(emphasis in original)).
In this case, however, not only was Brophy operating a vehicle owned by her
employer, but the primary purpose of that vehicle – indeed, the primary business of her
employer – was the delivery of mail for a fee. Unlike in Sartno, there is no question that
the post office’s customers paid to have their mail collected, transported, and delivered.
Under these circumstances, we see no ambiguity in the endorsement and conclude that
Brophy used the mail truck to “carry property for a fee.” See id. at 1174 (“[The
determination whether contractual language is ambiguous] is not a question to be resolved
in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than
one reasonable interpretation when applied to a particular set of facts.” (quoting Madison
Constr. Co., 735 A.2d at 106)).
B.
We also reject Brophy’s contention that this case falls within the ambit of the
policy’s arbitration clause. That clause provides for the arbitration of disputes “about the
right to recover damages from the owner or driver of an underinsured motor vehicle or
the amount of such damages.” App. at 65. Brophy’s policy also provided, however, that
“[q]uestions between the injured party and [Nationwide] regarding whether the injured
party is an insured under this coverage, or the limits of such coverage, are not subject to
arbitration and shall be decided by a court of law.” App. at 64.
In this case there is no dispute over Brophy’s “right to recover damages” from

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Sweeney; indeed, she has already done so. Nor are the amount of such damages yet in
dispute. Rather, the parties here disagree about whether Brophy may seek additional
compensation from Nationwide. We have held that such preliminary coverage questions
fall outside of similar arbitration clauses. See Nationwide Mut. Ins. Co. v. Cosenza, 258
F.3d 197, 204 (3d Cir. 2001); State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710,
717-20 (3d Cir. 2000). In light of the clear policy language, we see no reason to depart
from these holdings.
C.
Finally, Brophy argues that the District Court erred when it refused to consider
evidence that Nationwide had clarified the language of the exclusionary clause at issue
here after the accident in this case. Only where a contract’s language is ambiguous,
however, may a court consider extrinsic or parol evidence to determine the intent of the
parties. Ferrer v. Trs. of the Univ. of Pa., 825 A.2d 591, 608 (Pa. 2002). Because the
District Court correctly found that the contract’s language was unambiguous as applied to
the facts of this case, it did not err in refusing to consider the extrinsic evidence Brophy
presented.
III.
For the above-stated reasons, we will affirm the judgment of the District Court
granting summary judgment to Nationwide.
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