LIBERTY MUTUAL FIRE INSURANCE COMPANY v. SKOROCHOD et al, No. 5:2015cv04365 - Document 70 (E.D. Pa. 2018)

Court Description: MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 1/19/18. 1/19/18 ENTERED & E-MAILED. COPY MAILED TO UNREP.(fdc)

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LIBERTY MUTUAL FIRE INSURANCE COMPANY v. SKOROCHOD et al Doc. 70 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA : LIBERTY MU TU AL FIRE IN SU RAN CE COMPAN Y Plain tiff, : CIVIL ACTION : : v. KAREN SKOROCH OD , e t al. D e fe n d an ts . : N O. 15-cv-0 4 3 6 5-RAL : : MEMORAN D U M OPIN ION Rich ard A. Llo re t U n ite d State s Magis trate Ju d ge Jan u ary 19 , 2 0 18 I. In tro d u ctio n an d p ro ce d u ral h is to ry. Anthony Skorochod and Robert Mills J r. were riding an ATV owned by Anthony the evening of October 29, 20 12, as a storm rolled in. The ATV hit a downed tree, ejecting both young m en. Robert died from his injuries. Anthony was badly injured, but survived. The Estate of Robert Mills J r., along with Robert Mills and Cathy Vaughn, the parents of Robert Mills J r., com m enced a wrongful death action against Anthony Skorochod and others in the Court of Com m on Pleas for Northam pton County, where the accident happened. At the tim e of the accident, Karen Skorochod, Anthony’s m other, was insured under a hom eowner’s policy issued by Liberty Mutual Fire Insurance Com pany. Liberty Mutual filed this federal action against Anthony Skorochod, Karen Skorochod, and the plaintiffs in the underlying tort action (the “Estate Defendants”) seeking a declaration that Liberty Mutual has no duty to defend or indem nify the Skorochods because policy language excluded this particular risk. Dockets.Justia.com Liberty Mutual now seeks sum m ary judgm ent declaring that they have no duty to defend or indem nify the Skorochods under the policy. The Estate Defendants filed a pleading titled “Motion for Sum m ary J udgm ent,” Doc. No. 47, but have not actually asked for a judgm ent declaring that Liberty Mutual m ust defend and indem nify the Skorochods.1 The Skorochods have not filed for sum m ary judgm ent, but resist Liberty Mutual’s m otion. Doc. No. 52. For the reasons set forth below, Liberty Mutual’s Motion for Sum m ary J udgm ent is denied. I will also deny the Estate Defendants’ m otion. Finally, I will issue an order to show cause requiring the parties to explain why I should not grant sum m ary judgm ent, sua sponte, to the Skorochods, as to Liberty Mutual’s duty to defend. II. Stan d ard o f Re vie w . Sum m ary judgm ent is appropriate if the record establishes “that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(c). The m oving party bears the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).2 Once the m oving party m eets its burden, the burden then shifts to the non-m oving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). An issue is “genuine” only if there is a sufficient evidentiary basis for a 1 The Estate Defendants did not actually ask for a declaration as to Liberty Mutual’s duties under the policy, or subm it a proposed order seeking such relief. Doc. No. 47. The Estate Defendants’ various m em oranda sim ply contest Liberty Mutual’s right to sum m ary judgm ent. It is the Estate Defendants’ responsibility to m ake clear what affirm ative relief they seek. In any event, the Estate Defendants would not be entitled to sum m ary judgm ent on the indem nity issue, since there is a genuine issue of m aterial fact. 2 I will call this the “m otion burden,” as opposed to the burden of proof at trial. It becom es im portant to differentiate between different burdens in this case. 2 reasonable jury to find for the non-m oving party, and a factual dispute is “m aterial” only if it m ight affect the outcom e of the action under the governing law. Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248-49 (1986). A court evaluating whether there is sufficient evidence to go to trial m ust m easure the evidence against the burden of proof at trial, id. at 252, after crediting the non-m oving party’s evidence and drawing all reasonable inferences against the m oving party. Id. at 255. When a m oving party bears the burden of proof at trial,3 the m oving party “m ust show that it has produced enough evidence to support the findings of fact necessary to win.” El v. Southeastern Pennsy lvania Transp. Authority (SEPTA), 479 F.3d 232, 237 (3d Cir. 20 0 7) (citations om itted). “[I]t is inappropriate to grant sum m ary judgm ent in favor of a m oving party who bears the burden of proof at trial unless a reasonable juror would be com pelled to find its way on the facts needed to rule in its favor on the law.” Id. at 238. Because the trial burden “includes the obligation to persuade the factfinder that one's propositions of fact are indeed true . . . if there is a chance that a reasonable factfinder would not accept a m oving party's necessary propositions of fact, pre-trial judgm ent cannot be granted.” Id. If the m oving party successfully shows facts necessary to satisfy its burden of proof at trial, the non-m oving party m ust point “to evidence in the record that creates a genuine issue of m aterial fact.” Id. (citation om itted). Allegations and denials in pleadings will not do. Fed. R. Civ. P. 56(e)(2). The non-m oving party m ust point to actual evidence in the record on which a jury could decide an issue of fact its way. Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 20 1 (3d Cir. 20 0 6) (“In this respect, sum m ary judgm ent is essentially ‘put up or shut up’ tim e for the non-m oving party . . 3 I will refer to this as the burden of proof, or trial burden. 3 .”). “Specious objections” cannot defeat a motion for sum m ary judgm ent, but “real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the m ovant's proof, will.” El v. SEPTA, 479 F.3d at 238. When the tables are turned, and the non-m oving party bears the trial burden on an issue, “the [m otion] burden on the m oving party m ay be discharged by “showing”— that is, pointing out to the district court—that there is an absence of evidence to support the nonm oving party's case.” Celotex Corp., 477 U.S. at 325. The non-m oving party need not depose its own witnesses, but m ust respond with evidence that would be adm issible at trial: Rule 56(e) perm its a proper sum m ary judgm ent m otion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the m ere pleadings them selves, and it is from this list that one would norm ally expect the nonm oving party to m ake the showing to which we have referred. Celotex Corp., 477 U.S. at 324. An affidavit suffices to establish what a witness would say at trial. See W oloszy n v. County of Law rence, 396 F.3d 314, 323 (3d Cir. 20 0 5). So does an unsworn declaration under oath. Unzicker v. A.W . Chesterton Com pany , 20 15 WL 1294190 0 , at *1 (E.D. Pa. 20 15). And while a court cannot rely on inadm issible evidence in deciding a sum m ary judgm ent m otion, hearsay evidence produced in opposition to a sum m ary judgm ent m otion m ay be considered “if the out-of-court declarant could later present the evidence through direct testim ony, i.e., in a form that would be adm issible at trial.” J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 90 9 F.2d 1524, 1542 (3d Cir. 1990 ) (no indication that the declarants who m ade the statem ents m entioned in the opposition m aterials would not be available for trial). 4 III. D is cu s s io n . Subject m atter jurisdiction over this case is founded on diversity. I m ust apply Pennsylvania substantive law and federal procedural law. See Liggon-Redding v. Estate of Sugarm an, 659 F.3d 258, 262 (3d Cir. 20 11). The burden of proof at trial is a m atter of substantive law. Dick v. New York Life Ins. Co., 359 U.S. 437, 446– 47 (1959); Blair v. Manhattan Life Ins. Co., 692 F.2d 296, 299 (3d Cir. 1982) (citations om itted). The parties have thoroughly disagreed about who bears the burden of proving coverage (or non-coverage) under the policy, what type of evidence m ay be produced to satisfy that burden, and whether the burden – whoever bears it - has been m et. A. Th e co n to u rs o f th e d is p u te . Liberty Mutual concedes, for purposes of this m otion, that although the Skorochods bear the initial burden of dem onstrating coverage under the policy, the language in “Coverage E – Personal Liability” applies to this accident. As defined in the policy, the Skorochods are “insureds,” there was “bodily injury” to Robert Mills J r., the injury arose from an “occurrence,” and the Skorochods face legal liability for this bodily injury. Appendix, 91 (A91). Doc. No. 46-6 at 18. Liberty Mutual relies upon exclusionary language found in “Section II – Exclusions,” ¶ (1)(f), to deny coverage. Doc. No. 48 at 5; A91. Liberty Mutual concedes that it bears the burden of proving an exclusion of coverage, but contends that it has borne its burden, because there is no dispute that the ATV was a m otorized land conveyance, and coverage is excluded when bodily injury arises out of the ownership of “m otorized land conveyances . . . owned or operated by . . . an ‘insured.’” Id.; A91, ¶ 1(f)(1). 5 The Skorochods note that “Section II – Exclusions,” ¶ (f)(4) 4 of the policy says that “[t]his exclusion does not apply to: (4) A vehicle or conveyance not subject to m otor vehicle registration which is: (a) Used to service an ‘insured’s’ residence[.]” A92. The Skorochods further note that the underlying com plaint, filed by the Estate Defendants, alleges that the ATV serviced the insured property.5 Doc. No. 52 at 7. The Skorochods argue that under Pennsylvania law only the allegations within the “four corners” of the underlying com plaint are adm issible when interpreting the policy language to determ ine coverage. Id. Since the com plaint contains allegations sufficient to trigger coverage, the Skorochods contend that Liberty Mutual should not be granted sum m ary judgm ent. The Estate Defendants argue that sum m ary judgm ent for Liberty Mutual is not appropriate because there is sufficient evidence in the record to create a genuine issue of m aterial fact about whether the ATV was used to service the insured’s residence. Doc. No. 63. Liberty Mutual argues that the language in paragraph (f)(4) of the insurance policy is an “exception” to the exclusion, and that the insureds – the Skorochods therefore bear the burden of proving that it applies, under Pennsylvania law. Doc. No. 48 at 5. Liberty Mutual contends that the Estate Defendants have failed to point to 4 Following the language at the beginning of paragraph 1, which says that liability coverage “do[es] not apply to bodily injury ,” sub-paragraph 1(f) begins with the words “Arising out of” and proceeds with three sub-subparagraphs (1, 2 and 3) that define circum stances in which liability coverage does not apply, all of which concern m otor vehicles. A92 (em phasis added). After sub-sub-paragraph 3, sub-paragraph (f) proceeds with a sentence that begins “This exclusion does not apply to[,]” followed by four m ore sub-subparagraphs (1, 2, 3 and 4) that define circum stances in which the exclusionary language does not apply. Id. (em phasis added). 5 Paragraphs 8 and 9 of the underlying com plaint allege that the ATV was used to service the Skorochod’s property, both prior to and at the tim e of the accident. A18. 6 adm issible evidence that would satisfy their burden of proving that the ATV was used to service the residence. Doc. No. 48 at 6. B. Th e alle gatio n s o f th e u n d e rlyin g co m p lain t trigge r a d u ty to d e fe n d u n d e r th e p o licy. Pennsylvania law requires that only the allegations of the underlying com plaint – the “four corners” of the com plaint - be consulted when determ ining whether a duty to defend exists under an insurance policy. Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Com m ercial Union Ins. Co., 90 8 A.2d 888, 896 (Pa. 20 0 6) (“the obligation of a casualty insurance com pany to defend an action brought against the insured is to be determ ined solely by the allegations of the com plaint in the action”) (citations and internal quotations om itted). The “four corners” doctrine is tem pered by the consideration of extrinsic evidence when an insured m ust prove an exception to an exclusion triggered by the language of the com plaint. See Air Products and Chem icals, Inc. v. Hartford Acc. and Indem . Co., 25 F.3d 177, 180 (3d Cir. 1994). The rule adm ittedly favors the insured by denying the insurer the ability to prove a lack of coverage under an exclusion except by reference to the language of the com plaint, while perm itting an insured to prove by extrinsic evidence (i.e., evidence beyond the allegations of the com plaint) that an exception to an exclusion is applicable, such that coverage exists. Id. Here, the allegations in the com plaint trigger a duty to defend by alleging facts that fall within the exception to the policy’s exclusionary clause. Consequently, Liberty Mutual, rather than its insured, now seeks to adm it extrinsic evidence on the coverage issue in order to defeat the allegations of the com plaint and elim inate its duty to defend 7 the Skorochods.7 The argum ent is ingenious, but unconvincing. No Pennsylvania case cited to by Liberty Mutual has perm itted this in the context of a duty to defend. It is im portant here to distinguish the duty to defend from the duty to indem nify. The burden shifting schem e argued by Liberty Mutual arose in the context of a trial of a particular indem nity issue – whether a pollution discharge was “sudden and accidental,” and therefore a covered risk under an insurance policy. See Low er Paxton Tw p. v. U.S. Fidelity and Guar. Co., 557 A.2d 393, 399 (Pa. Super. 1989). The Superior Court held that the trial court properly instructed the jury that the insured (a plaintiff) bore the burden of proving that the pollution discharge was “sudden and accidental,” an exception to the general exclusion of losses due to pollution discharges, relying on language in Techalloy Co., Inc. v. Reliance Ins. Co., 487 A.2d 820 (Pa. Super. 1984). Low er Paxton Tw p., 557 A.2d at 40 3. The Pennsylvania Superior Court held that there was insufficient evidence before the jury to prove a sudden discharge, under the policy language as properly construed. The only evidence in the case was that the m ethane gas at issue had dispersed “gradually.” Id. at 40 3. The Techalloy decision, relied upon in Low er Paxton, held in the context of a m otion for judgm ent on the pleadings that the com plaint did not allege a “sudden and accidental” discharge, and that the insured, a plaintiff, had not shown otherwise in the lim ited record developed prior to the m otion by the insurer. Techalloy , 487 A.2d at 82728. The Techalloy court distinguished the holding in C. H. Heist Caribe Corp. v. 7 Liberty Mutual also argues that because there is no adm issible evidence of a duty to indem nify, there can be no duty to defend. Because I conclude that there is a genuine issue of m aterial fact precluding judgm ent on the indem nity issue, infra, at part III(C), that route to judgm ent is also foreclosed. I address the burden shifting argum ent in the context of the duty to defend first because I wish to be clear about the different standards governing evaluation of a duty to defend and a duty to indem nify. 8 Am erican Hom e Assur. Co., 640 F.2d 479, 483 (3d Cir. 1981), in which the Third Circuit had affirm ed the denial of sum m ary judgm ent on sim ilar facts, because the underlying com plaint in Heist “did not describe in detail the circum stances surrounding the incident” . . . thus preclud[ing] the appeals court from considering the applicability of the exclusion” before trial. Techalloy Co., Inc. 487 A.2d at 827. Neither Low er Paxon Tw p. nor Techalloy stands for the proposition that an insurer m ay introduce extrinsic evidence in order to negate its duty to defend at the sum m ary judgm ent stage of a proceeding. The opinion in Air Products noted that som e Pennsylvania cases perm itted an insured to rely upon extrinsic evidence to prove that an exception to an exclusionary clause applied to the dispute, triggering a duty to defend, but rejected the insurer’s attem pt to introduce extrinsic evidence to dem onstrate that it had no obligation to defend the insured. 25 F.3d at 180 . As the court explained, [w]e recognize that the rule perm itting the introduction of evidence to show that an exception to an exclusion applies, while disallowing evidence to show that an exclusion applies, appears to be one-sided. This construction against the insurer and in favor of the insured, however, is consistent with general insurance law principles and, in particular, the Pennsylvania rule that requires only a “potential” of coverage of the allegations in the com plaint for the duty to defend to be triggered. Id. In Northern Ins. Co. v . Aardvark Assocs., 942 F.2d 189 (3d Cir. 1991), relied upon in Air Products, the court of appeals relied in turn upon the reasoning in Low er Paxton Tw p. and Techalloy to predict that the Pennsylvania Suprem e Court would im pose the burden of proving a “sudden and accidental” discharge on the insured at a trial of the indem nity issue. Id. at 195. As to this issue, the court found no genuine issue 9 of m aterial fact in the record before it. Id. By contrast, when analyzing the duty to defend, the court of appeals exam ined only the underlying EPA com plaint to determ ine whether there were any allegations of “sudden and accidental” discharge, and found none. Id. at 195-96. These cases supply m e with guidance. A duty to defend is broader than a duty to indem nify. Kvaerner, 90 8 A.2d at 896 n.7. When deciding whether an insurer has a duty to defend, a court m ust exam ine only the allegations of the underlying com plaint, and determine if they trigger potential coverage. Kvaerner, 90 8 A.2d at 896. If the language of the com plaint alleges facts that would trigger an exclusion to coverage, but does not allege facts that would m ake applicable an exception to the exclusion, the insureds m ay introduce extrinsic evidence to prove an exception to a policy exclusion. Air Products, 25 F.3d at 180 . As to the duty to defend, the insureds in this case need not rely on extrinsic evidence, because the allegations of the com plaint clearly trigger coverage under the exception for a m otorized conveyance that services the property. Liberty Mutual m ay not rely on extrinsic evidence to negate the exception and prove that its exclusionary language applies, at least not with respect to the duty to defend. At this stage, Pennsylvania’s “four corners” doctrine requires Liberty Mutual to abide by the consequences of the allegations contained within the underlying com plaint. Accordingly, I will deny Liberty Mutual’s m otion, as it pertains to the duty to defend the underlying com plaint. Although it appears that the Skorochods are entitled to sum m ary judgm ent on the duty to defend as a m atter of law, they have not m oved for relief. I will therefore give the parties an opportunity to explain why I should not enter sum m ary judgm ent on the duty to defend in favor of the Skorochods. 10 C. Th e re is a ge n u in e is s u e o f m ate rial fact abo u t w h e th e r th e ATV w as u s e d to s e rvice th e in s u re d ’s p ro p e rty, w h ich p re clu d e s s u m m ary ju d gm e n t o n th e in d e m n ity is s u e . The duty to indem nify is subject to different rules than the duty to defend. Unlike the duty to defend, a determ ination of the duty to indem nify is not necessarily lim ited to the factual allegations of the underlying com plaint. Rather, there m ust be a determ ination that the insurer's policy actually covers a claim ed incident. State Farm Fire and Cas. Co. v. DeCoster, 67 A.3d 40 , 46 (Pa. Super. 20 13) (citations and internal quotations om itted).8 The trier of fact m ust determ ine whether the circum stances of the event are covered under the policy, based on evidence, unless there is no genuine issue of m aterial fact. Id.; see also Northern Ins. Co., 942 F.2d at 195. In this case, sum m ary judgm ent is inappropriate on the issue of indem nity coverage because there is a genuine issue of m aterial fact. While the parties disagree over who bears the burden of proof at trial, the trial burden is not crucial to the decision. I will deny Liberty Mutual’s m otion seeking a declaration that it has no duty to indem nify. The key fact question on the indem nity issue, as it is with the duty to defend, is whether the ATV was used to “service” the Skorochod’s property. The difference is that evidence about the use of the ATV m ay be considered to determ ine the indem nity issue. DeCoster, 67 A.3d at 46. In determ ining the duty to indem nify, I am not lim ited to review of the underlying com plaint, as I am when deciding the duty to defend. This m eans the trial burden com es into play. I find that whoever has the burden of proof at 8 In determ ining Pennsylvania law I m ust give due regard to the opinions of lower appellate tribunals, unless I am convinced by persuasive evidence that the Pennsylvania Suprem e Court would decide the issue otherwise. Northern Ins., 942 F.2d at 193. 11 trial,9 there is sufficient adm issible evidence in the record from which a reasonable juror could conclude that the ATV was used to service the Skorochod’s property. Several witnesses provided deposition testim ony describing Anthony Skorochod’s use of the ATV. Robert Mills, the father of the decedent, testified that, on the day of the 9 I expressed m y doubts on the subject at oral argum ent. I asked for supplem ental m em oranda from the parties addressing the question, particularly in light of the opinion in Betz v. Erie Ins. Exchange, 957 A.2d 1244 (Pa. Super. 20 0 8), which im posed the burden of proof on the insurer, regardless of whether the policy language at issue was an exclusion or an exception to an exclusion. Id. at 1255, 1257. I rem ain doubtful that there is a general rule, under Pennsylvania law, im posing the burden of proof at trial upon an insured to prove an exception to an exclusion of coverage, regardless of the circum stances or policy type. Liberty Mutual distinguishes Betz because that case involved an “all risks” policy. True enough, and it was a significant consideration, but that was not the only rationale for the decision in Betz. More im portant was the court’s concern that a burden shifting rule would “m erely em power insurers to m anipulate the burden of proof by sleight of hand.” Id. at 1257 n.5. That is not a concern lim ited to “all risks” policies. This reasoning, and not a distinction based on the special circum stances of an “all risks” policy, was the basis of the Superior Court’s outright rejection of the burden shifting rule applied in S.R.P. Managem ent Corp. v. Seneca Ins. Co., 20 0 8 WL 20 39466, at *6– 7 (E.D. Pa. 20 0 8), which involved a defined risk policy. Id. Had the difference between an all risks and a defined risks policy been the court’s critical concern, that would have been the basis for distinguishing the holding in S.R.P. Managem ent Corp. But the court in Betz did not m ention the all risks/ defined risks distinction when rejecting the holding in S.R.P. Managem ent Corp. Id. The ordinary rule is that the insurer, not the insured, bears the burden of excluding coverage, once the insured dem onstrates that the risk com es under the general coverage language, and that includes negativing exceptions to exclusions. New Castle County v. Hartford Acc. and Indem . Co., 933 F.2d 1162, 1182 (3d Cir. 1991) (quoting 19 G. Couch, Couch on Insurance 2d § 79:385, at 338 (M. Rhodes rev. 2d ed. 1982)). Som e cases have adopted the rule applied in Low er Paxton Tw p. Id.; see Northern Ins. Co. 942 F.2d at 195 (following Low er Paxton Tw p.). While our court of appeals has predicted that the Pennsylvania Suprem e Court would adopt a burden shifting rule in the context of policies with a “sudden and accidental” exception to pollution exclusion language, it carefully lim ited its holding to that particular phrase, and did not predict adoption of a generalized burden shifting rule. Id. The language of Betz does not suggest a settled, generalized burden shifting rule under Pennsylvania law. Rather, it suggests that, as in the “sudden and accidental” cases, a particularized analysis is appropriate. Cases that describe the general considerations to be taken into account when allocating a burden-of-proof should prove helpful. See, e.g., Barrett v. Otis Elevator Co., 246 A.2d 668, 674 (Pa. 1968); Tincher v. Om ega Flex, Inc., 10 4 A.3d 328, 40 8– 0 9 (Pa. 20 14). The parties will have an opportunity to subm it jury instructions and trial m em oranda reflecting their views before trial of the indem nity issue. 12 accident, “Anthony shows up on his four-wheeler and wants m y son to go with him and help him get a generator and get it running at their house. . . Anthony left on his fourwheeler. My son left in his pickup truck and drove down to Anthony’s house.” Mills Dep., 1/ 25/ 17, at 18-19. “Anthony said that they had got one [a generator] and they had to go pick it up and get it running. And could Robbie please – Would I please let Robbie go with him to get it.” Id. at 41. “They had a generator som ewhere close by. They were going to get it. . . And they were going to fire it up and they were going to get it ready so that his house had adequate electric, as well. . . He practically begged m e to let m y son help him , and I did.” Id. at 45. “Around 7:30 p.m . I called him [Robert Mills J r.] . . . [a]nd he said he will be hom e shortly. They were still working on getting, you know, that ready or going to get it or whatever.” Id. at 19-20 . Mr. Mills “had no understanding of what they were going to do, except they were going to get a generator that was close by, and they were trying to do it. And I thought it was a little late, because the storm was probably within three or four hours of com ing in and getting serious.” Id. at 49. Mr. Mills thought he saw a generator “being taken back. I know I seen com pressors and stuff and gas cans and whatever. I m ean, like I said, they obviously used it that night . . . I don’t know if they ever got it hooked up.” Id. Mr. Mills saw a com pressor shortly after the accident, in a vehicle driven by Anthony Skorochod. Id. at 50 -51. The deposition testim ony is unclear, but this episode appears to have happened the day after the accident. Id. at 51. Mr. Mills further testified that he saw Anthony Skorochod “haul a lot of stuff around . . . if they needed fuel oil for the house, if he needed a generator, if they needed gasoline for the m owers. It was his form of a pickup truck in m y eyes.” Id. at 34. Mr. Mills saw Anthony Skorochod do this “hundreds” of tim es. Id. Mr. Mills testified that 13 Anthony Skorochod used a wagon for the ATV, id. at 50 , and used the wagon “all the tim e.” Id. at 53. Mr. Raym ond N. Gerry testified that he saw Anthony Skorochod driving the ATV with a wagon attached, hauling gas cans, “[b]oard type wood, also firewood type wood.” Gerry Dep., 1/ 25/ 17, at 18-19. When Gerry saw him driving the ATV, som etim es Skorochod had a wagon attached to the ATV. Id. at 20 . Allen Wilson stated 10 that he was with Robert Mills at the scene of the accident a short tim e after the accident when a young m an in a back brace and a sling drove up in an ATV, towing a trailer with a com pressor in it. Wilson Statem ent at 5-8. The young m an talked with Robert Mills while Wilson listened. Id. at 9. The young m an said he was taking the com pressor to “som e farm , he said down the road.” Id. at 11. Wilson identified the ATV in a picture. Id. at 6. The ATV appeared to have been in an accident. Id. at 8. Wilson saw the sam e young m an driving the sam e ATV, towing the sam e wagon, at Robert Mills’ house, perhaps the sam e day, where he picked up som e tools. Id. at 10 . Wilson also saw the sam e young m an at Robert Mills. J r’s viewing. Id. at 13, 14. Liberty Mutual argues that the testim ony from Mr. Mills, Mr. Gerry and Mr. Wilson is not relevant, not adm issible, and not sufficient to raise a genuine issue of m aterial fact. I disagree.11 10 The parties did not depose Mr. Wilson. Mr. Wilson did, however, provide a statem ent to a private investigator at the behest of counsel for the Estate Defendants. The investigator certified under oath that he took Mr. Wilson’s statem ent on J anuary 8, 20 14 and subsequently had it transcribed. Wilson Statem ent at 16-17. The transcriptionist certified that she was a notary public and a certified court reporter of the State of New J ersey, and that the transcription was accurate. Id. at 16. 11 In his statem ent to the police the day after the accident, Anthony Skorochod said he was using the ATV to get a generator, Doc. No. 51-1 at 8, but in his deposition testim ony he did not rem em ber m aking this statem ent, or anything about the accident. 14 First, the pre-accident statem ents by Anthony Skorochod and Robert Mills J r. to Robert Mills about their plan to go get a generator are adm issible. These statem ents are out-of-court declarations of the two declarants’ then existing intent or plan. Fed. R. Evid. 80 3(3). Rule 80 3(3) perm its a declarant’s "then existing state of m ind (such as m otive, intent, or plan) . . . but not including a statem ent of m em ory or belief to prove the fact rem em bered or believed unless it relates to the validity or term s of the declarant’s will." This is a restatem ent of the com m on law rule described in Mutual Life Ins. Co. of New York v. Hillm on 145 U.S. 285, 295-97 (1892) (letters describing a dead victim ’s intent to travel with the defendant adm itted as evidence tending to m ake it m ore likely he carried out his plan). See U.S. v. Donley , 878 F.2d 735, 738 (3d Cir. 1989) (the statem ent of a m urder victim was adm issible to prove her plan to separate from the defendant and force him out of their house, as a prelude to proving the defendant’s m otive to kill her). The pre-accident conversation with Robert Mills concerned the two young m en’s present and future intent and plan. The statem ents are not offered to prove the likelihood of an event that happened before the conversation, but one occurring after the conversation. See Shepard v. United States, 290 U.S. 96, 10 6 (1933) (the tem poral distinction is critical in lim iting the scope of the rule); U.S. v. Hernandez, 176 F.3d 719, 727 (3d Cir. 1999) (such evidence could not be used to prove the occurrence of an event prior to the statem ent, but only a present intent or plan of action). Nor are the statem ents proffered to prove the underlying circum stances that m otivated or triggered Skorochod Dep., 4/ 27/ 17, at 41-49. The Estate Defendants claim that Anthony’s statem ent to the police is adm issible as an excited utterance under Federal Rule of Evidence 80 3(2). The foundation for that hearsay exception – that Skorochod was still under the stress of excitem ent caused by the accident – has not been established. I will not consider the statem ent as evidence at this point. 15 a state of m ind. See Shepard, 290 U.S. at 10 6 (statem ent by a victim that she had been poisoned was an inadm issible description of a past act, used for the purpose of proving that act, not a statem ent of state of m ind or intention). In this case, the defendants will be perm itted to adm it the young m en’s statem ents in order to prove (1) that their then existing plan was to fetch a generator to use on the Skorochod’s property, and (2) that they followed through on their plan, an event that would have occurred after the statem ent. Evidence of a plan perm its a jury to infer the plan was carried out. See Hillm on 145 U.S. at 295-97; Donley , 878 F.2d at 738. Based on this evidence, a reasonable jury could conclude that the two young m en were using the ATV to fetch a generator to “service” the Skorochod’s property, on the night of the accident. The term “service” is not defined in the policy, and a com m on sense understanding of the word covers getting a generator to supply electricity for the Skorochod’s hom e in the face of a storm . See Kvaerner, 90 8 A.2d at 897 (com m on words in a policy should be given their ordinary m eanings). The term used in the policy does not require that the ATV was being used to service the property at the m om ent of the accident, nor does Liberty Mutual contend that the policy should be read that way. The deposition testim ony provides additional evidence from which a jury could conclude that the ATV was used to “service” the Skorochod’s hom e. Mr. Mills testified that he saw Anthony Skorochod “haul a lot of stuff around . . . if they needed fuel oil for the house, if he needed a generator, if they needed gasoline for the m owers. It was his form of a pickup truck in m y eyes.” Mills Dep., 1/ 25/ 17, at 34. Mr. Mills saw Anthony Skorochod do this “hundreds” of tim es. Id. Mr. Mills testified that Anthony Skorochod used a wagon for the ATV, id. at 50 , and used the wagon “all the tim e.” Id. at 53. Mr. 16 Mills thought he saw a generator “being taken back. I know I seen com pressors and stuff and gas cans and whatever. I m ean, like I said, they obviously used it that night . . . I don’t know if they ever got it hooked up.” Id. Mr. Mills saw a com pressor shortly after the accident, while at the scene of the accident. The com pressor was loaded in the ATV, which was being driven by Anthony Skorochod, who stopped and spoke with Mr. Mills. Id. at 50 -51. The deposition testim ony is unclear, but a jury could reasonably conclude that this episode happened the day after the accident. Id. at 51. Liberty Mutual contends that this post-accident event is not adm issible to prove Skorochod’s use of the ATV to service the property. I disagree. Under Pennsylvania law, if the language of the policy is reasonably susceptible of m ore than one m eaning, I m ust adopt the interpretation m ost favorable to the insured. Prudential Property and Cas. Ins. Co. v. Sartno, 90 3 A.2d 1170 , 1174 (Pa. 20 0 6). There is no tem poral nexus between “service” and the accident; the policy does not say, for instance, exactly when the insured m ust use the ATV to service the property, or how often, in order to escape exclusion from coverage. A reasonable jury could find that Skorochod used the ATV the day after the accident to haul item s back to a location where he’d gotten them the night before, in connection with his efforts to hook up a generator for the property. That inference is not inevitable, but it does not need to be, to be adm issible. In short, the “fact of consequence,” under the language of Rule 40 1 of the Federal Rules of Evidence, is whether the ATV was used to service the property, not whether it was being used to service the property at a particular tim e, for instance, the night of the accident. 17 Under a broad but fair definition of “service,” Skorochod’s use of the ATV to haul a com pressor and gas cans the day after the accident is com petent proof of “service,” if a jury links the significance of that chore to Skorochod’s pre-accident statem ent that he planned to get a generator for the property. The post-accident testim ony from Robert Mills is certainly relevant to a trier of fact required to m ake a fact determ ination under a broad definition of service. Rule 40 1 requires only that a piece of evidence, or an inference drawn from that evidence, m akes a fact of consequence m ore or less likely. Fed. R. Evid. 40 1. The deposition testim ony satisfies that test. Second, even if this act is viewed as a subsequent act, under Rule 40 4(b)(2), and not part of the proof of “service,” as broadly defined under the policy, there is nothing inherently inadm issible about subsequent acts, as opposed to prior acts. Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 20 0 3) (“The fact that the evidence involved a subsequent rather than prior act is of no m om ent.”) (quoting United States v. Germ osen, 139 F.3d 120 , 128 (2d Cir. 1998)). A reasonable jury could infer that Skorochod’s act of carting around a com pressor and gasoline cans the day after the accident tended to m ake it m ore likely that he carried out his plan to fetch and hook up a generator, which he m entioned shortly before the accident. See U.S. v. Cook, 745 F.2d 1311, 1318 (10 th Cir. 1984) (subsequent acts of m isidentification were “essentially a continuing part of [the defendant’s] plan to give a false identity to the bank, the very offense charged in the indictm ent.”). Anthony Skorochod’s post-accident statem ent to Mills, overheard by a thirdparty witness, Allen Wilson, who was with Mills at the tim e, stands on a different footing. It is an out-of-court declaration, and subject to exclusion as hearsay unless it 18 com es within a hearsay exception.12 Wilson said a young m an talked with Robert Mills while Wilson listened. Wilson Statem ent at 9. The young m an said he was taking the com pressor to “som e farm , he said down the road.” Id. at 11. While Wilson was never introduced to Skorochod, he identified the ATV and the young m an sufficiently that a reasonable juror could conclude that it was Skorochod who spoke with Robert Mills, and that Skorochod was driving the ATV involved in the accident, with a com pressor loaded on the ATV. If the defendants were lim ited to proving that Skorochod used the ATV on the night of the accident to “service” the property, then they would be seeking to introduce a statem ent about Skorochod’s intent or plan (to take a com pressor to a nearby farm ) to prove a past event (his use of the ATV to fetch a generator on the day of the accident). That is a prohibited use, under Rule 80 3(3). See Hernandez, 176 F.3d at 727 (evidence of the declarant’s then-existing state of m ind could not be used to prove the occurrence of an event prior to the statem ent, but only a present intent or a plan of action). But I have found that the defendants are not so lim ited. The definition of “service” under the policy is broad enough to encom pass proof that Skorochod was using the ATV the day after the accident to service the property. The jury could use the evidence of his statem ent to infer that Skorochod carried through on his plan to haul the com pressor to a farm . This use would be com petent proof of a pattern of using the ATV to “service” the property, under a reasonable understanding of that term as it is used in the policy. While an instruction would be necessary to guide the jury on the perm issible inference that m ight be drawn from the evidence, properly considered by the jury, Skorochod’s 12 Rule 80 3(3), concerning statem ents of the declarant’s then-existing state of m ind such as m otive, intent, or plan, m ay provide such an exception. Fed. R. Evid. 80 3(3). 19 post-accident statem ent would fall within Rule 80 3(3), and therefore be “capable of being adm issible at trial.” Fraternal Order of Police, Lodge 1 v. City of Cam den, 842 F.3d 231, 238 (3d Cir. 20 16) (citations and internal quotations om itted). That is all that is required, at this stage.13 Liberty Mutual contends that Allen Wilson’s statem ent is inadm issible, because it was not reduced to a form at that com plies with Rule 56(c). 14 I disagree. Wilson’s statem ent was not reduced to an affidavit. The statem ent was recorded by an investigator for the defendants, and later transcribed by a certified court reporter, under the reporter’s declaration under oath and the investigator’s declaration under oath. See Wilson Statem ent at 1-2, 16. A party opposing sum m ary judgm ent need not “produce evidence in a form that would be adm issible at trial in order to avoid sum m ary judgm ent.” Celotex Corp., 477 U.S. at 324 (“Obviously, Rule 56 does not require the nonm oving party to depose her own witnesses.”). “The rule in this circuit is that hearsay statem ents can be considered on a m otion for sum m ary judgm ent if they are capable of being adm issible at trial.” Fraternal Order of Police, Lodge 1, 842 F.3d at 238 (internal quotation and citation om itted). “[Defendants] identified the third-party declarants, and nothing suggests that those declarants would be unavailable to testify at trial. That is all that was required to 13 Exclusion of evidence under Rule 40 3 at the sum m ary judgm ent stage is an “extrem e m easure” that should be rarely invoked. In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 859 (3d Cir. 1990 ). At this stage I have not yet considered whether the evidence would be adm issible at trial under Rule 40 3. That would require assessm ent of the statem ent’s probative value, in light of the other evidence in the case, and its potential to create jury confusion or unfair prejudice. 14 The point is not dispositive. Mr. Mills’ testim ony, standing alone, would satisfy the defendants’ m otion burden to show a genuine issue of m aterial fact. Mr. Wilson’s testim ony is m erely corroborative of Mr. Mills’ testim ony about one episode involving Anthony Skorochod’s use of the ATV. 20 survive that aspect of [Plaintiff’s] m otion for sum m ary judgm ent.” Id. at 239. Defendants have identified the third-party declarant, Wilson, have supplied a transcription of Wilson’s recorded statem ent, and have supplied a declaration under penalty of perjury concerning the taking of the statem ent. There is nothing suggesting Wilson will not be available at trial. Id. at 238. I find that the Wilson statem ent m ay be considered by m e in deciding the sum m ary judgm ent m otions. There is sufficient evidence from which a jury could conclude that the ATV was used to “service” the Skorochod’s property, whether the burden-of-proof on the indem nification issue at trial is on Liberty Mutual or the defendants. Much will depend on the credibility of the various witnesses. Whether the ATV was in fact used to service the property will have to await determ ination by a trier of fact, either in the underlying lawsuit or at a trial in this case. 21 IV. Co n clu s io n . For the reasons described, I will deny sum m ary judgm ent to Liberty Mutual. I will deny the Estate Defendants m otion. I will issue an order to show cause requiring the parties to explain why I should not grant sum m ary judgm ent, sua sponte, to the Skorochods, as to Liberty Mutual’s duty to defend. See Gibson v. May or and Council of City of W ilm ington, 355 F.3d 215, 222 (3d Cir. 20 0 4) (court m ay enter sum m ary judgm ent sua sponte, but m ust ordinarily provide notice of its intent to do so). I will convene a scheduling conference to determ ine whether this m atter should be stayed, pending a trial in state court, or whether a trial date should be set for the indem nity issue. BY TH E COU RT: s / R ich a r d A. Llo r e t RICH ARD A. LLORET U .S. MAGISTRATE JU D GE 22

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