Opinion
No. 103 MAP 2022
04-25-2024
Stewart KRAMER and Valerie Conicello v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE CO. and Laurie Cruz, Administrator for the Estate of Michael T. Murphy, Jr., Deceased, and Adam Kramer Appeal of: Nationwide Property and Casualty Insurance Company
Christopher Michael Jacobs, Esq., Houston Harbaugh, P.C., for Amicus Curiae PA Defense Institute, Insurance Federation of PA, Inc., and PA Assoc. of Mutual Insurance Companies. George Gerasimos Rassias, Esq., Schmidt, Kirifides & Rassias, PC, for Amicus Curiae Pennsylvania Association for Justice. Sarah Elizabeth Crosley, Esq., Nicholas Andrew Cummins, Esq., Bennett Bricklin & Saltzburg LLC, for Appellant Nationwide Property and Casualty Insurance Company. Kevin Cornish, Esq., High Swartz, LLP, for Appellee Stewart Kramer and Valerie Conicello. Lawrence Alan Katz, Esq., The Lento Law Group, Joseph D. Lento, Esq., Lento Law Firm/Lento Law Group, for Appellee Laurie Cruz and Adam Kramer.
Appeal from the Order of the Superior Court at No. 726 EDA 2021 dated December 2, 2021, reconsideration denied February 10, 2022, Affirming the Order of the Montgomery County Court of Common Pleas, Civil Division at No. 2020-17901 dated February 19, 2021, Gary S. Silow, Judge
Christopher Michael Jacobs, Esq., Houston Harbaugh, P.C., for Amicus Curiae PA Defense Institute, Insurance Federation of PA, Inc., and PA Assoc. of Mutual Insurance Companies.
George Gerasimos Rassias, Esq., Schmidt, Kirifides & Rassias, PC, for Amicus Curiae Pennsylvania Association for Justice.
Sarah Elizabeth Crosley, Esq., Nicholas Andrew Cummins, Esq., Bennett Bricklin & Saltzburg LLC, for Appellant Nationwide Property and Casualty Insurance Company.
Kevin Cornish, Esq., High Swartz, LLP, for Appellee Stewart Kramer and Valerie Conicello.
Lawrence Alan Katz, Esq., The Lento Law Group, Joseph D. Lento, Esq., Lento Law Firm/Lento Law Group, for Appellee Laurie Cruz and Adam Kramer.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE DONOHUE
The Court of Common Pleas of Montgomery County ("trial court") granted summary judgment in favor of Stewart Kramer and Valerie Conicello ("Parents"), ordering Nationwide Property and Casualty Insurance Company ("Nationwide") to defend Parents under their homeowners insurance policy ("the Policy") against wrongful death and survival actions (together "Underlying Lawsuit") involving the fatal drug overdose of Michael T. Murray, Jr. ("Decedent") at Parents’ home. The Superior Court affirmed based on an interpretation of the Policy that was not espoused by the trial court. Because we conclude that its interpretation was erroneous as a matter of law, we reverse the decision of the Superior Court.
I. Background
A. Pertinent Policy Provisions
The relevant provisions of the Policy are as follows:
Section II Liability Coverages
* * * *
Coverage Agreements
COVERAGE E - PERSONAL LIABILITY
We will pay damages an insured is legally obligated to pay due to an occurrence resulting from negligent personal acts or negligence arising out of the ownership, maintenance or use of real or personal property. We will provide a defense at our expense by counsel of our choice. We may investigate and settle any claim or suit. Our duty to defend a claim or suit ends when the amount we pay for damages equals our limit of liability.
The Policy, Section II, at G1 (emphasis in original) (hereinafter "Coverage E").
The Policy defines "occurrence" for purposes Section II liability coverages as follows:
"OCCURRENCE" means bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general condition. The occurrence must be during the policy period.
Id. (emphasis in original).
The Policy further defines "bodily injury" for purposes Section II liability coverages as follows:
"BODILY INJURY" means bodily harm, including resulting care, sickness or disease, loss of services or death. Bodily injury does not include emotional distress, mental anguish, humiliation, mental distress or injury, or any similar injury unless the direct result of bodily harm.
Id. (emphasis in original).
There are also several liability exclusions applicable to Coverage E set forth in the Policy; pertinent here is 1.m), the controlled substance exclusion:
Liability Exclusions
1. Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to bodily injury or property damage:
* * * *
m) resulting from the use, sale, manufacture, delivery, transfer or possession by a person of a controlled substance(s) as defined by Federal Food and Drug Law (21 U.S.C.A. Sections 811 and 812). Controlled substances include but are not limited to: cocaine; LSD; marijuana; and all narcotic drugs.
This exclusion 1.m) does not apply to the legitimate use of prescription drugs by a person following orders of a licensed physician.
The Policy, Section II, H1-H2 (emphasis in original) (hereinafter "controlled substance exclusion").
B. The Underlying Complaint
Decedent’s mother, Laurie Cruz ("Mother"), acting in her capacity as the administrator of Decedent’s estate, sued Parents and their son, Adam Kramer ("Kramer"), in the Underlying Lawsuit. Mother averred the following facts in the complaint: While Parents were away, Decedent stayed with Kramer at Parents’ home on the evening of September 4, 2018. Mother’s Complaint, 9/15/2020, ¶¶ 21-22, 26. Mother and Decedent knew that Kramer used and distributed narcotics. Id. ¶ 23. In the early morning hours of September 5, 2018, first responders discovered Decedent dead upon their arrival at Parents’ home. Id. ¶ 23. The Montgomery County Coroner’s Office ultimately determined that his cause of death was a drug overdose triggered by a combination of fentanyl, heroin, and benzodiazepines. Id. ¶ 28.
Count I of Mother’s complaint in wrongful death contends that Parents entrusted Kramer with their home when they knew or should have known that he used and distributed narcotics. Id. ¶¶ 31-32. Mother asserted that Parents, with that knowledge, breached a duty of care owed to all invitees, including Decedent, by entrusting their property to Kramer, who permitted access to and use of controlled substances by Decedent, while on Parents’ property. Id. ¶¶ 33-34. Mother averred that, but for Kramer’s grant of access to the controlled substances to Decedent he would not have died, and the harm to Decedent was foreseeable. Id. ¶¶ 35-36. Based on these averments, Mother sought damages under Pennsylvania’s Wrongful Death Act in excess of fifty-thousand dollars.
42 Pa.C.S. § 8301 ("Death action").
Though the court held the bank was not entitled to a refund, it ordered the Commonwealth to "provide meaningful retrospective relief" to remedy the bank’s non-uniform treatment. Lebanon Valley, 83 A.3d at 111.
Count II of Mother’s complaint asserted a survival action against Parents and Kramer. She alleged that Parents and Kramer owed a duty of care to Decedent within their home and that they breached that duty when Decedent was afforded access to controlled substances through Kramer. Id. ¶¶ 42-44. Mother again claimed that this breach was the but-for cause of Decedent’s death, that his resulting death was foreseeable, and that it constituted negligence per se because of the illegality of the drugs. Id. ¶¶ 45-47. Mother alleged that as a result of the breach of Parents’ duty of care, Decedent sustained pain and suffering before his death. Mother sought judgment against Kramer and Parents in an amount exceeding fifty-thousand dollars. Id. ¶ 48.
42 Pa.C.S. § 8302 ("Survival action").
In fact, as ably explained by the majority, see Majority Opinion at 1041–42 & n.14, this portion of the Superior Court’s opinion was part of its holding and not dicta.
C. Declaratory Judgment Action
Parents tendered the complaint to Nationwide for coverage under the Policy. Nationwide issued a denial of coverage letter to Parents, prompting them to file a declaratory judgment action requesting the trial court to order Nationwide to defend them against the Underlying Lawsuit. Declaratory Judgment Complaint ("DJC"), 11/2/2020, ¶ 16. In its denial of coverage letter, Nationwide relied on the controlled substances exclusion. Denial of Coverage Letter, 10/6/2020, at 3 (attached to the DJC as Exhibit C). Parents alleged that Nationwide "breached its contractual and statutory obligations … by failing to provide them a defense" to the Underlying Lawsuit. DJC, ¶ 24. Parents argued against the applicability of any exclusion in the Policy and reiterated their request that the trial court declare that Nationwide had a duty to defend Parents in the Underlying Lawsuit.
Nationwide originally also relied on the Policy's criminal act exclusion, but it abandoned that theory during litigation before the trial court. Trial Court Opinion, 5/13/2021, n.2.
I highlight our subsequent grant of nunc pm tunc relief to Meyer Darragh, see Order, Meyer Darragh v. Malone Middleman, 62-63 WM 2016 (Pa. Sept. 7, 2016) (per curiam), was a bit of an outlier, and Parents would need to make a strong showing such extraordinary relief is warranted here. Rule 105(b) dictates "the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, a petition for review, or a petition for specialized review." Pa.R.A.P. 105(b). Nevertheless, "appellate courts may grant a party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary circumstances." Criss, 781 A.2d at 1159. Traditionally, nunc pro tunc relief was "limited to circumstances in which a party failed to file a timely notice of appeal as a result of fraud or a breakdown in the court’s operations." Id. The standard was later liberalized to allow late filings where a party "has failed to file a notice of appeal on time due to non-negligent circumstances[.]" Id. (reciting factors requiring the applicant prove: "(1) the [applicant’s] notice of appeal was filed late as a result of non-negligent circumstances, either as they relate to the [applicant] or the[ir] counsel; (2) the [applicant] filed the notice of appeal shortly after the expiration date; and (3) the [other party] was not prejudiced by the delay.") (emphasis added). This exception is "meant to apply only in unique and compelling cases in which the appellant has clearly established that she attempted to file an appeal, but unforeseeable and unavoidable events precluded her from actually doing so." Id. at 1160. Moreover, the notice afforded to Parents here is different from the notice lacking in Meyer Darragh. For one thing, Meyer Darragh alerted future litigants that it may be prudent to file a cross-petition for allowance of appeal in these circumstances. See 137 A.3d at 1259-60 (Saylor, C.J., concurring). For another, as the majority explains, the note to Rule 511 was amended to state: "If … an intermediate appellate court awards different relief than the trial court or other government unit, a party may wish to file a cross-petition for allowance of appeal under Pa.R.A.P. 1112. See, e.g., … [Meyer Darragh,] 635 Pa. 427, 137 A.3d 1247 (2016)." Pa.R.A.P. 511 note. In my view, if Parents seek nunc pro tunc relief, they will need to explain why they are entitled to such extraordinary equitable relief despite the notice given by Meyer Darragh and the Rule amendment.
Parents also raised a breach of contract claim that is not the subject of the instant appeal.
Frankly, my hesitation here springs largely from concerns about suggesting an appellee in a discretionary appeal would suffer "pain of waiver" if they failed to file a cross-petition challenging any portion of the intermediate court’s opinion they did not agree with. This Court has the authority to affirm the lower courts for any reason supported by the record, even if contrary to the reasoning offered below. And certainly, appellees raise such right-for-any-reason arguments regularly (even if they do not file cross-petitions for allowance of appeal), and briefing on those issues is often very helpful. 1 further note that while the majority's distinction of discretionary appeals as not requiring aggrievement is apt, Lebanon Valley somewhat undermines this distinction by first suggesting the Commonwealth was not aggrieved, but then staling "[w]hile the Commonwealth certainly could have filed a cross-appeal raising a challenge to the Commonwealth Court's constitutionality determination, this Court refuses to require such a filing where the court’s holding granted the relief sought, although based on an alternate reasoning." Lebanon Valley, 83 A.3d at 112 (emphasis added). It appears the Court took into account that a non-aggrieved prevailing party could choose to file a "protective" cross-appeal regardless of Rule 501’s aggrievement requirement — just as a non-aggrieved, prevailing party can choose to file a cross-petition for allowance of appeal. For these reasons, I would want to hear full advocacy before imposing such a harsh rule.
Nationwide filed an answer and new matter, maintaining that it properly denied both a defense and indemnity under the Policy based on the controlled substance exclusion. Answer, 11/20/2020, ¶ 16. Nationwide acknowledged that no Pennsylvania court had yet addressed the controlled substances exclusion but noted its application in a sister state and argued for its application here. Both parties sought summary judgment.
See Massachusetts Prop. Ins. Underwriting Ass’n v. Gallagher, 75 Mass.App.Ct. 58, 911 N.E.2d 808 (2009) (applying a similarly worded exclusion, thereby relieving the insurer of its duty to defend, in circumstances where the decedent intentionally overdosed on propoxyphene in the insured’s home where it was alleged that the insured negligently left his prescription unattended despite the decedent’s fragile emotional state).
The trial court granted summary judgment in favor of Parents and ordered Nationwide to provide them with a defense to the Underlying Lawsuit, and Nationwide filed a timely appeal. In its Pa.R.A.P. 1925(b) statement, Nationwide asserted that the trial court erred by not enforcing the Policy’s controlled substances exclusion. Pa.R.A.P. 1925(b) Statement, 4/9/2021, at 1-2. In its Pa.R.A.P. 1925(a) opinion, the trial court rejected Nationwide’s claim of error:
The [U]nderl[y]ing [L]awsuit acknowledges that [P]arents were out of town on the night of [D]ecedent’s death. The theories of liability asserted against them are grounded in negligence. They are alleged to have negligently entrusted their home to their son, they are alleged to have known or should have know[n] of their son’s involvement with controlled substances, and they are alleged to have had, and breached, a duty of reasonable care to an invitee at their home. These allegations are distinct from injuries "resulting from" the use or delivery of controlled substances. As [Parents] argue in their summary judgment filings, they have been named in the underlying action because of their alleged breach of duty of care to an invitee to their home. The negligence theories asserted against them, therefore, fall within the [P]olicy’s
coverage. As such, Nationwide must provide a defense to [P]arents "until it could confine the [underlying] claim to a recovery excluded from the policy." (citations omitted).
Trial Court Opinion, 5/13/2021, at 6.
II. Decision Under Review
Nationwide appealed and the Superior Court affirmed on alternative grounds in a published opinion. Kramer v. Nationwide Prop. & Cas. Ins. Co., 271 A.3d 431 (Pa. Super. 2021), appeal granted, 286 A.3d 711 (Pa. 2022).
The Superior Court summarized the Underlying Lawsuit as alleging that at the time Kramer hosted Decedent at Parents’ home, Kramer was "widely known to use and sell controlled substances[;]" that Kramer "was negligent in supplying Decedent with the drugs that caused his over-dose[;]" and that Parents were negligent "in allowing Kramer to use their home for such illicit activities." Id. at 433. The wrongful death count included a demand for damages by the beneficiaries of the Decedent’s estate including Mother and the survival action included a demand for Decedent’s damages for pain and suffering prior to his death. Id. at 434.
In light of the allegations and prior to interpreting the Policy to determine whether Nationwide had a duty under it to provide Parents with a defense against the Underlying Lawsuit, the Superior Court restated the provisions of the Policy upon which the parties relied. As to Parents, the lower court cited the language of Coverage E, and as to Nationwide, it cited the controlled substance exclusion. It also set forth the definition of bodily injury from Section II of the Policy. The court did not consider the definition of occurrence from Section II in its analysis. Id. at 434.
See supra at 1033-34.
[1] The Superior Court explained the trial court’s reasoning in rejecting the applicability of the controlled substance exclusion was because Parents’ "alleged liability in the underlying action was rooted in negligence, which was distinct from the type of occurrence contemplated by the exclusion." Id. It recognized that Nationwide’s single ground for appeal emanated from the trial court’s refusal to find that the controlled substances exclusion relieved it from any duty to defend Parents in the Underlying Lawsuit since the Decedent was alleged to have died solely from the use of heroin, fentanyl, and benzodiazepines. Id. However, in framing its analysis, the Superior Court broadly stated the "substantive issue" as whether Nationwide has a duty to defend the Parents in the underlying action. Id. at 435.
The Superior Court correctly stated the applicable appellate standard of review, indicating that the interpretation of the contractual language in an insurance policy is a pure issue of law subject to a de novo standard of review. Kramer, 271 A.3d at 435 n.1 (quoting Kraemer Metals Div. of Kraemer U.S., Inc. v. Com. Union Ins. Co., 589 Pa. 317, 908 A.2d 888, 897 (20061).
The Superior Court first addressed the claims based on the Parents’ negligence in the ownership, maintenance and use of their home. It described Parents’ negligence as "allowing their son to supply the Decedent with controlled substances at the residence" and concluded that this is the type of occurrence that would be covered by the Parents’ Policy, triggering Nationwide’s duty to defend the claims. Id. at 436.
Next, focusing on the controlled substances liability exclusion, the court stated that by its terms, the Policy excludes personal liability coverage for bodily injury resulting from the use of controlled sub- stances. Id. The panel noted that the Policy defines "bodily injury" as "bodily harm, including resulting care, sickness or disease, loss of service or death." It said that Nationwide "would have no obligation to pay out for such damages if … [P]arents are ultimately found liable for them. Correspondingly, Nationwide would then have no duty to defend with respect to those discrete classes of damages." Id.
The opinion omits the second sentence of the definition of bodily injury which states: "Bodily injury does not include emotional distress, mental anguish, humiliation, mental distress or injury, or any similar injury unless the direct result of bodily harm." The Policy, Section II, at G1 (definition of bodily injury) (emphasis in original).
The Superior Court found, however, that the wrongful death claim is not limited to bodily injury "as such damages are defined in the [P]olicy." Id. According to the Superior Court, apparently by extrapolating from the bald claim for wrongful death damages in the Underlying Lawsuit, there is also potentially a claim for other types of damages rooted in " ‘emotional distress, mental distress or injury, or any similar injury,’ none of which would be the direct result of bodily harm to the decedent’s family itself." Id. Because these types of damages do not fall under the ambit of the Policy’s bodily injury definition, the panel determined that the Policy’s controlled substance exclusion, which excludes coverage for bodily injury resulting from the use of controlled substances, does not apply to those damages. Id.
The panel cited to Retlger v. UPMC Shadyside, 991 A.2d 915, 922 (Pa. Super. 2010) (recognizing that in a wrongful death suit, a family may recover for its emotional and psychological loss). Kramer, 271 A.3d at 436.
The limiting language is apparently derived from the definition provided for "bodily injury" in Section II of the Policy. See supra at 1033-34.
We granted Nationwide’s petition for allowance of appeal to determine whether the Superior Court incorrectly ruled that emotional distress damages are covered under an insurance policy providing liability coverage only for bodily injury, where the policy explicitly excludes emotional distress from the definition of bodily injury. Kramer v. Nationwide Prop. & Cas. Ins. Co., 286 A.3d 711 (Pa. Oct. 18, 2022) (per curiam).
III. Argument of the Parties
Nationwide contends that the Superior Court erred as a matter of law by construing the Policy to cover emotional distress damages purportedly claimed by Mother. Nationwide’s Brief at 20. Nationwide maintains that the Policy only permits coverage for bodily injury, and that the mutual understanding of the parties when they filed cross-motions for summary judgment in the trial court was that they were contesting whether the otherwise-covered bodily injury claims set forth in the Underlying Lawsuit were subject to the controlled substance or criminal act exclusions. Id. at 25. Nationwide believes that once the Su- perior Court determined that emotional distress claims did not fall within the definition of bodily injury, its inquiry was at an end regarding whether Nationwide had a duty to defend, because the Policy "does not potentially cover non-‘bodily injury’ emotional distress claims." Id at 30. Nationwide contends that because the Superior Court determined that the alleged emotional distress claims did not constitute bodily injury, the potential for damages on such claims fell outside the Policy’s scope of coverage. Thus, Nationwide maintains it was immaterial whether the controlled substance exclusion—or any exclusion—applied, because the Superior Court’s conclusion that "Nationwide would be obligated to pay out on the covered portions of the underlying claims if the parents are ultimately found liable" was a non sequitur that constituted legal error. Kramer, 271 A.3d at 437.
We agree with Nationwide’s characterization of the record in this regard. In their motion for summary judgment, Parents averred that there was "no dispute" that "Decedent suffered bodily injury from an accident" while on their property and, therefore, that Decedent's bodily injury qualified as an occurrence within the terms of the Policy. Parents’ Motion for Summary Judgment, 12/15/2020, ¶¶ 16-18. Parents argued that the criminal act and controlled substances coverage exclusions did not apply despite Nationwide’s invocation of those provisions. Id. ¶¶ 33-64 (arguing that the controlled substances exclusion did not apply by operation of the severability clause because, inter alia, the negligence alleged against Parents pertained to the negligent entrustment of their home to Kramer, not from the use, sale, manufacture, delivery, transfer or possession of a controlled substance).
Moreover, Nationwide contends that this Court has not been asked to determine whether the emotional distress at issue could constitute bodily injury under the policy, nor whether the controlled substance exclusion applies. Nationwide's Brief at 31-32.
Parents maintain that the Superior Court "correctly ruled that emotional distress damages are covered" under the Policy and that it "does not limit coverage only to bodily injury." Parents’ Brief at 2. Parents argue that a bodily injury "is the triggering event requiring insurance coverage" and, therefore, Decedent’s death triggered the Policy’s coverage because it occurred on Parents property and because they were sued via wrongful death and survival actions due to that death. Id. at 3. They contend that Nationwide is obligated, under the Policy’s definition of bodily injury, to pay for "emotional distress and mental damages as a direct result of" that bodily harm and, therefore, "provide [them] a defense for the lawsuit." Id. at 3-4. Parents aver that our allocatur grant "misconstrues a ‘bodily injury’ as a scope of coverage limitation when it in fact is the trigger for coverage." Id. at 5. Parents contend that their triggering-event interpretation is supported by other language in the Policy, such as the definition of "bodily injury" itself, which Parents assert excludes emotional distress as a triggering event, but not emotional distress damages if they are the direct result of a "bodily injury." Id. at 6. However, in their brief, Parents do not advance the trial court’s rationale for finding that Nationwide had a duty to defend.
Parents dispute that the Superior Court ruled on the applicability of the controlled substances exclusion to the bodily injury to Decedent, arguing that the Superior Court in fact ruled on an alternative ground in concluding that Nationwide owed a duty to defend. Id. at 9. As such, they characterize the Superior Court’s discussion of the exclusion as dicta. Id. In any event, Parents alternatively assert that they would be prejudiced by a decision by this Court that reaches the controlled substance exclusion because, as the prevailing party below, Parents were not an aggrieved party (as the Superior Court had ruled that Nationwide had a duty to defend) and, therefore, they had no opportunity to appeal the Superior Court’s application of the controlled substances exclusion to the bodily injury damages alleged in the Underlying Complaint. Id. at 10.
Nationwide disagrees that the Superior Court’s analysis of the controlled substances exclusion was dicta. Nationwide’s Reply Brief at 10-11. Nonetheless, Nationwide does not dispute that the procedural posture of this case deprived Parents of their right to seek review from an adverse decision on Nationwide’s duty to defend premised on the applicability of the controlled substances exclusion. Id. at 11-12. Accordingly, Nationwide recommends that this Court remand for the Superior Court to enter judgment in favor of Nationwide, thereby permitting Parents an opportunity to file a petition for allowance of appeal. Id. at 12.
IV. Analysis
This appeal involves the interpretation of an insurance policy to determine its scope of coverage insofar as it implicates the insurer’s duty to defend a policy holder facing litigation. The texts of the Policy and Mother’s complaint are the undisputed facts of record. Thus, this matter presents a pure question of law subject to a plenary scope of review and a de novo standard of review. Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 630 Pa. 1, 106 A.3d 1, 14 (2014).
[2–6] An insurance policy is a contract; as such, the overarching goal of our interpretation of an insurance policy is to ascertain the intent of the parties "as manifested by the language of the written instrument." Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). In doing so, we are bound by the clear and unambiguous meaning of the policy; however, we are obligated to construe ambiguities "in a light most strongly supporting the insured." Mohn v. Am. Cas. Co. of Reading, 458 Pa. 576, 326 A.2d 346, 351 (1974). Ambiguity exists where the policy’s terms are reasonably susceptible to multiple interpretations based on the "plain and ordinary" meaning of the policy’s language. St. John, 106 A.3d at 14. The plain and ordinary meaning of a policy is also contextually constrained, as our understanding of the mutual intent of the parties in forming the insurance contract derives from consideration of the whole written instrument, not by reading its individual provisions in isolation. Riccio v. Am. Republic Ins. Co., 550 Pa. 254, 705 A.2d 422, 426 (1997) (stating that "an insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument").
[7–9] "An insurer’s duty to defend is broader than its duty to indemnify[.]" Babcock & Wilcox Co. v. Am. Nuclear Insurers, 635 Pa. 1, 131 A.3d 445, 456 (2015). The duty to defend arises when a complaint, on its face, alleges an injury that is at least potentially within an insurance policy’s scope of coverage. Am. & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 606 Pa. 584, 2 A.3d 526, 541 (2010). When "an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense." Madison Const. Co. v. Harleysville Mut. Ins, Co., 557 Pa. 595, 735 A.2d 100, 106 (1999).
[10] Our analysis begins with an examination of the pertinent Policy provisions. The Underlying Lawsuit pleaded wrongful death and survival actions, both claims sounding in negligence premised on Parents’ alleged breach of a duty of care owed to Decedent, occasioned by the negligent entrustment of their property to Kramer on the evening of Decedent’s overdose death. In the wrongful death claim, Mother asserted damages in an amount exceeding fifty-thousand dollars as compensation for Decedent’s wrongful death. The damages were not further delineated. Mother’s Complaint, 9/15/2020, at 5-6. In the survival action, Mother asserted damages for Decedent’s "sustained pain and suffering prior to his untimely death[,]" also in an amount exceeding fifty-thousand dollars. Id. at 7.
The Policy defines the scope of Parents’ personal liability coverage as follows: COVERAGE E - PERSONAL LIABILITY
We will pay damages an insured is legally obligated to pay due to an occurrence resulting from negligent personal acts or negligence arising out of the ownership, maintenance or use of real or personal property. We will provide a defense at our expense by counsel of our choice. We may investigate and settle any claim or suit. Our duty to defend a claim or suit ends when the amount we pay for damages equals our limit of liability.
Coverage E (emphasis in original). An "occurrence" under the Policy "means bodily injury … resulting from an accident, including continuous or repeated exposure to the same general condition." Id. (emphasis in original). Bodily injury, in turn, "means bodily harm, including resulting care, sickness or disease, loss of services or death. Bodily injury does not include emotional distress, mental anguish, humiliation, mental distress or injury, or any similar injury unless the direct result of bodily harm." Id. (emphasis in original).
Even if a claim falls within the scope of personal liability coverage defined in Coverage E, there are a multitude of exclusions from liability in the Policy. Pertinent here, Coverage E does not apply to bodily injury:
m) resulting from the use, sale, manufacture, delivery, transfer or possession by a person of a controlled substance(s) as defined by Federal Food and Drug Law (21 U.S.C.A. Sections 811 and 812). Controlled substances include but are not limited to: [C]ocaine; LSD; marijuana; and all narcotic drugs.
Controlled Substances Exclusion.
Although this case was litigated in the trial court on the applicability of this exclusion, the Superior Court’s analysis renders the controlled substance exclusion irrelevant. The Superior Court's conclusion that Mother did not suffer bodily injury obviates coverage under the Policy provisions that control when Nationwide is obligated to pay (and thus defend). Reduced to its essence, as relevant to this appeal, Nationwide’s obligation arises only when there is an occurrence. An occurrence requires a bodily injury. A bodily injury, by definition under the Policy, does not include emotional distress or similar injury unless the direct result of bodily harm. The Superior Court’s determination that Mother did not suffer a bodily injury as defined in the Policy for purposes of the wrongful death claim requires a conclusion that there is no coverage for the wrongful death claim. Therefore, the Superior Court’s interpretation that Nationwide was potentially required to pay out for Mother's emotional and mental distress damages for that wrongful death claim is contrary to the unambiguous provisions of the Policy and erroneous as a matter of law.
[11, 12] We accept solely for the limited purposes of our analysis that Mother actually claimed her own emotional and mental injuries in her wrongful death action and that such damages are recoverable in a wrongful death action. Mother alleged that, "[p]ursuant to the Pennsylvania Wrongful Death Act, Decedent’s wrongful death results in damages to the beneficiaries of Decedent’s Estate, including [Mother]." Mother’s Complaint, 9/15/2020, ¶ 38. Generally, "[w]rongful death damages are established for the purpose of compensating the spouse, children, or parents of a deceased for pecuniary loss they have sustained as a result of the death of the decedent." Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (emphasis added). "The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expenses." Id. (emphasis added).
The Superior Court, relying on dicta in Heitger v. UPMC Shadyside, 991 A.2d 915, 922 (Pa. Super. 2010), stated "that in a wrongful death suit, a family may recover for its emotional and psychological loss[,]" and extrapolated from Mother’s complaint that she was potentially seeking damages for mental and emotional distress under the auspices of her wrongful death claim. Kramer, 271 A.3d at 436. This Court has never addressed whether mental and emotional distress injuries to surviving family members are compensable under the current version of the Pennsylvania Wrongful Death Act. We explicitly declined to address a similar question in Department of Public Welfare v. Schultz, 579 Pa. 164,855 A.2d 753, 754 (2004) (stating that we would not "resolve the issue of whether the Wrongful Death Act, outside the context of sovereign immunity, permits recovery of" non-pecuniary damages "in a suit against a private party"), and we do not address the issue in this appeal given the narrow question granted for our review.
For this reason, we also do not address Parents’ alternative argument that bodily harm is a triggering event for coverage under the Policy. Interpreting Coverage E and the definition of bodily harm in Section II, they contend that Nationwide must pay any and all damages due to the death of Decedent, including emotional distress and mental damages "as a direct result of bodily harm." Following the Superior Court’s lead, Parents interpret this latter phrase to include emotional and mental distress damages suffered by Parents as a result of Decedent’s death as part of the wrongful death action. See Parents’ Brief at 3.
V. Parents’ Remand Request
[13] Anticipating the possibility of reversal of the Superior Court’s decision, Parents included a request for remand to the Superior Court for the entry of an order in favor of Nationwide so that they can file a petition for allowance of appeal from that order. Parents’ Brief at 11-12. Although not opposed by Nationwide, Parents have failed to demonstrate that they are entitled to such relief, particularly in light of our decision in Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 635 Pa. 427, 137 A.3d 1247 (2016).
Here, the trial court found that Nationwide had a duty to defend Parents in the Underlying Lawsuit based on the allegations in both the wrongful death and survival actions that Decedent’s overdose death resulted from Parents’ negligent entrustment of the insured premises to Kramer, who provided the drugs to Decedent, and that these negligence theories fell within the Policy’s coverage. The trial court found these allegations are distinct from injuries "resulting from" the use or delivery of controlled substances as encompassed by the controlled substances exclusion contained in the Policy and thus, that Nationwide had a duty to defend. On appeal, Nationwide claimed that this was error because the exclusion, "which excludes coverage for bodily injury resulting from the use of a controlled substance, precludes such a defense where the Decedent in the underlying action was alleged to have died solely from the use of heroin, fentanyl and benzodiazepines." Nationwide’s Superior Court Brief at 4.
In this case of first impression dealing with the controlled substances exclusion, the Superior Court did not address the trial court’s reasoning that bodily injuries resulting from the negligent entrustment were distinct from injuries resulting from the use of controlled substances, thereby triggering coverage. However, it did hold, albeit without explanation, that the controlled substances exclusion applied to the survival action in its entirety and to the wrongful death action except, as discussed, to damages for emotional and mental distress. Kramer, 271 A.3d at 436. The Superior Court based its conclusion that Nationwide had a duty to defend Parents in the Underlying Lawsuit on the claim for emotional and mental distress it found embedded in the wrongful death action. Thus, it affirmed the trial court’s summary judgment order granting Parents a declaratory judgment as to Nationwide’s duty to defend, but on alternative grounds. Id. at 437. Nevertheless, the Superior Court’s erroneous theory was contingent upon its preliminary holding that the controlled substances exclusion applied to the damages sought in the Underlying Lawsuit for Decedent’s overdose death.
The Superior Court had no reason to assess the applicability of the controlled substance exclusion to emotional and mental distress damages purportedly alleged in Mother’s wrongful death claim without first finding that the same exception applied to the explicitly asserted claims for bodily injury the Underlying Lawsuit. Thus, we disagree with Parents that the Superior Court’s application of the controlled substances exclusion to the bodily injury damages claims was merely dicta.
Parents assert that they were not aggrieved by the Superior Court’s decision because it concluded that Nationwide had a duty to defend against the Underlying Lawsuit. As a result, Parents maintain they have been denied the opportunity to challenge the Superior Court’s determination that the controlled substances exclusion applied to the survival and wrongful death actions insofar as those claims sought damages for bodily injury. Parents cite In re Estate of Pendergrass, 26 A.3d 1151 (Pa. Super. 2011), as well as this Court’s decision in Basile v. H&R Block, Inc., 601 Pa. 392, 973 A.2d 417 (2009), for the proposition that because they were not aggrieved by the Superior Court’s decision, they did not have the opportunity to seek relief from that decision. Parents’ Brief at 10. Both cases relied on by Parents involved appeals governed by the rules applicable to appeals as of right. See Pa.R.A.P. 501 (providing a right of appeal to "any party who is aggrieved by an applicable order…"). The Basile Court cited, inter alia, the note to Pa.R.A.P. 511 which stated then, as it states now, that an "appellee should not be required to file a cross appeal because the Court below ruled against it on an issue, as long as the judgment granted Appellee the relief it sought." Id. (quoting Pa.R.A.P. 511, Note). This Court reached a similar conclusion in a case involving an appeal as of right to this Court in Lebanon Valley Farmers Bank v. Commonwealth, 623 Pa. 455, 83 A.3d 107 (2013). Again, Basile and Lebanon Valley concerned only Rules 501 and 511, which govern appeals as of right and related cross-appeals, respectively. Those decisions have no application here because this matter involves Parents’ failure to file a cross-petition for allowance of appeal.
To the extent that the text of Rule 511 mentions cross-petitions for allowance of appeal, it does so only to extend the window of time to file a cross-petition following a timely-filed petition for allowance of appeal. See note 17, supra.
Petitions for allowance of appeal are controlled by Pa.R.A.P. 1111-23. None of the rules applicable to appeals by allowance contain an express aggrievement standard akin to Rule 501. Rule 1112 governs appeals by allowance generally, and Rule 1113 governs the timing of petitions for allowance of appeal. Moreover, Pa. R.A.P. 1113(b) provides as follows:
(b) Cross petitions.--Except as otherwise prescribed in paragraph (c) of this rule, if a timely petition for allowance of appeal is filed by a party, any other party may file a cross-petition for allowance of appeal within 14 days of the date on which the first petition for allowance of appeal was served, or within the time otherwise prescribed by this rule, whichever period last expires.
Pa.R.A.P. 1113(b) (some emphasis added). This Court addressed the failure to file a protective cross-petition for allowance of appeal in Meyer Darragh.
Meyer Darragh involved a dispute over attorney’s fees. In the trial court, the Meyer Darragh firm brought the action against the Malone Middleman firm, asserting breach of contract and quantum meruit claims. "Both parties filed cross-appeals in the Superior Court, with Malone Middleman challenging the trial court’s grant of relief on the quantum meruit claim and Meyer Darragh contending, inter alia, that the trial court erred by denying relief on its breach of contract claim." Meyer Darragh, 137 A.3d at 1252. The Superior Court vacated the trial court’s order on both grounds. Malone Middleman sought allowance of appeal as to the breach-of-contract claim, which this Court granted. Id. at 1249. Meyer Darragh did not file a cross-petition for allowance of appeal.
Important for our purposes here, Malone Middleman argued that Meyer Darragh had "abandoned its quantum meruit claim against Malone Middleman by failing to appeal to this Court the Superior Court’s adverse ruling on that claim." Id. at 1256. This Court then held "that under the specific facts presented, any recovery that may have been due to Meyer Darragh would lie in quantum meruit, and not breach of contract." Id. at 1259. We reversed "the order of the Superior Court, which entered judgment in favor of Meyer Darragh on the breach of contract claim." Id.
This Court added in a footnote that Meyer Darragh did "not attempt to resurrect its quantum meruit claim against Malone Middleman in its brief to this Court." Meyer Darragh, 137 A.3d. at 1256 n.9.
Two concurring opinions were filed. First, then-Justice Saylor, joined by Justice Dougherty, stated that although he otherwise joined the majority, he was "circumspect concerning the degree to which the present decision may be construed as suggesting, if only implicitly, that Meyer Darragh has abandoned its quantum meruit claim by failing to raise it in its brief or by not filing a protective cross-petition for allowance of appeal." Id. at 1259-60 (Saylor, J., concurring). Justice Saylor opined: "It is possible that, in electing not to file a cross-petition for allowance of appeal, Meyer Darragh relied to its detriment upon this Court’s pronouncements in Lebanon Valley and Basile[,]" id. at 1260, and he further noted that it "is simply not clear how Lebanon Valley’s guidance translates into scenarios, such as this, where remedies are mutually exclusive, and into the discretionary appeals context, where the Court is generally confined according to the issues accepted for review[,]" id. at 1260 n.2. Accordingly, Justice Saylor advised that his joinder to the majority opinion in Meyer Darragh "should not be construed as foreclosing Meyer Darragh’s ability to request nunc pro tunc relief in the form of leave to cross-petition for allowance of appeal in light of today’s holding." Id. In a separate concurring opinion, then-Justice Todd joined the majority but fully agreed with Justice Saylor’s statement "regarding the predicament in which Meyer Darragh finds itself concerning the quantum meruit issue." Id. (Todd, J., concurring) (stating she would "expressly permit Meyer Darragh to file a nunc pro tunc cross[-]petition for allowance of appeal" and "refer to the Appellate Rules Commit- tee the question of amendments to our appellate rules which account for the impact of Lebanon Valley in the procedural context of this case").
In the aftermath of Meyer Darragh, the Appellate Rules Committee amended the note to Rule 511 in 2019, which now reads, in pertinent part:
An appellee should not be required to file a cross-appeal because the court below ruled against it on an issue, as long as the judgment granted appellee the relief it sought. See Lebanon Valley Farmers Bank v. Commonwealth, [623 Pa. 455,] 83 A.3d 107, 112 (Pa. 2013); Basile v. H & R Block, Inc., [601 Pa. 392,] 973 A.2d 417, 421 (Pa. 2009).
If, however, an intermediate appellate court awards different relief than the trial court or other government unit, a party may wish to file a cross-petition for allowance of appeal under Pa.R.A.P. 1112. See, e.g., Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., [645 Pa. 362,] 179 A.3d 1093, 1098 & n.5 (Pa. 2018); Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., [635 Pa. 427,] 137 A.3d 1247 (Pa. 2016).
Pa.R.A.P. 511, Note (emphasis added).
Inexplicably, no version of the second paragraph of this Note, or any reference to Meyer Darragh, appears as a Note to Rule 1113 governing the timing of petitions and cross petitions for allowance of appeal. This omission should be addressed by the Appellate Court Procedural Rules Committee.
Here, by electing not to file a cross-petition for allowance of appeal, Parents find themselves procedurally in the same position as the appellees in Meyer Darragh. That case highlighted the danger of failing to file a cross-petition for allowance of appeal. Despite the Superior Court’s holding that Nationwide had no duty to defend claims premised on Decedent’s bodily injury damages by application of the controlled substances exclusion, Parents failed to challenge that aspect of the panel’s decision by filing a cross-petition for allowance of appeal. Parents’ creative attempt at relief is unavailing. A remand to the Superior Court for entry of judgment in favor of Nationwide does not rectify the failure to file a timely cross-petition for allowance of appeal pursuant to Pa.R.A.P. 1113(b). Parents’ recourse is to file a nunc pro tunc cross-petition for allowance of appeal in light of our holding. For the reasons stated in our analysis, we reverse the judgment of the Superior Court insofar as it held that Nationwide owed a duty to defend the Underlying Lawsuit because emotional and mental distress damages in the wrongful death claims were not bodily injuries.
Our decision today is informed by the opinions filed in Meyer Darragh and the distinct standards for cross-appeals and cross-petitions for allowance of appeal as set forth in our Rules of Appellate Procedure. Meyer Darragh was fair notice to practitioners of the consequences of the failure to file a cross-petition for allowance of appeal. None of the opinions in Meyer Darragh suggest the form of relief endorsed in the Concurring Opinion for failure to file a timely cross-petition for allowance of appeal. See Concurring Opinion at 1050 (Mundy, J.), (stating "I would grant" the "request to remand the case … for entry of an order entering judgment in favor of Nationwide").
Speaking for himself and Justice Dougherty in Meyer Darragh, then-Chief Justice Saylor stated only that "my present joinder should not be construed as foreclosing Meyer Darragh's ability to request nunc pro tunc relief in the form of leave to cross-petition for allowance of appeal in light of today's holding." Meyer Darragh, 137 A.3d at 1260 (Saylor, J., concurring) (emphasis added). Then-Justice, now Chief Justice Todd indicated that she would "expressly permit Meyer Darragh to file a nunc pro tunc cross petition for allowance of appeal[,]" Id. (Todd, J., concurring). Here, we condone the recommendation of the concurring justices in Meyer Darragh insofar as we do not foreclose Appellee’s opportunity to seek leave to file a nunc pro tunc cross-petition for allowance of appeal.
The Concurring Opinion notes that we have yet to directly "address Lebanon Valley’s application in circumstances such as this and we did not accept that issue for review in this case." Concurring Op. at 1050 (Mundy, J.). But the concurring opinions in Meyer Darragh did question its application and Parents assert their reliance on Lebanon Valley and Pendergrass, see Parents’ Brief at 10, without recognizing the red flag raised in Meyer Darragh seven years after it was decided, Lebanon Valley specifically discussed the previous note to Rule 511, Lebanon Valley, 83 A.3d at 112, which now alerts litigants to Meyer Darragh and the distinction between cross-appeals and cross-petitions for allowance of appeal. Pa. R.A.P. 511 (Note). This is not a preservation problem; it is a research problem. Moreover, if we did not address the issue at all, Parents only possible recourse would be to file a nunc pro tunc cross-petition for allowance of appeal.
VI. Conclusion
We reverse the judgment of the Superior Court that affirmed the trial courts’ order granting Parents’ motion for summary judgment and denying Nationwide’s motion for summary judgment.
Chief Justice Todd and Justices Wecht and Brobson join the opinion.
Justice Dougherty files a concurring opinion.
Justice Mundy files a concurring opinion.
JUSTICE DOUGHERTY, concurring
I join much of the majority opinion, but respectfully, I agree with Justice Mundy that in this case, the majority need not go so far as to say that Lebanon Valley Farmers Bank v. Commonwealth, 623 Pa. 455, 83 A.3d 107 (2013), and Basile v. H&R Block, Inc., 601 Pa. 392, 973 A.2d 417 (2009), "have no application here because this matter involves Parents’ failure to file a cross-petition for allowance of appeal." Majority Opinion at 1042. Unlike Justice Mundy, however, I agree with the majority that Parents’ way forward is to seek nunc pro tunc relief in accordance with the concurring opinions in Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 635 Pa. 427, 137 A.3d 1247 (2016) ("Meyer Darragh").
First, I note that procedurally, this case is analogous to Meyer Darragh but distinct from Lebanon Valley and Basile. In Lebanon Valley, Lebanon Valley Farmers Bank sought a tax refund, arguing a statutory scheme pertaining to the taxation of banks that had merged with other banks violated the Uniformity Clause of the Pennsylvania Constitution. See 83 A.3d at 109-10. An en banc panel of the Commonwealth Court held the statutory scheme violated the Uniformity Clause, but nevertheless held the bank was not entitled to a refund. See id. at 110-11.1a The bank filed an appeal as of right in this Court, but the Commonwealth did not file a cross appeal. See id. at 111. Yet on appeal, the Commonwealth raised (and we heard argument on) the issue of whether the statute violated the Uniformity Clause, the question decided against it below. See id. The bank argued the Uniformity Clause issue was not properly before the Court because the Commonwealth waived the issue by failing to file a protective cross-appeal challenging that portion of the Commonwealth Court’s holding. See id.
We rejected the bank’s argument, initially reciting that Pennsylvania Rule of Appellate Procedure 501 states "any party who is aggrieved by an appealable order … may appeal therefrom." Id. at 112, quoting Pa.R.A.P. 501. We also explained the Note to Rule 511 provided that "[a]n appellee should not be required to file a cross appeal because the court below ruled against it on an issue, as long as the judgment granted appellee the relief it sought." Id., quoting Pa.R.A.P. 511 note. We further relied on Basile, where the Court explained "Pennsylvania case law also recognizes that a party adversely affected by earlier rulings in a case is not required to file a protective cross-appeal if that same party ultimately wins a judgment in its favor; the winner is not an ‘aggrieved party.’ " Id., quoting Basile, 973 A.2d at 421 (emphasis in original). Considering this legal backdrop, we reasoned the Commonwealth Court granted the Commonwealth the relief it sought (i.e., denial of the bank’s refund request) even though it disagreed with the Commonwealth’s Uniformity Clause argument. See id. We held, "[w]hile the Commonwealth certainly could have filed a cross-appeal raising a challenge to the Commonwealth Court’s constitutionality determination, this Court refuses to require such a filing where the court’s holding granted the relief sought, although based on an alternate reasoning." Id. (emphasis added). We elaborated:
Moreover, any positive impact stemming from the filing of a protective cross-appeal is greatly outweighed by its negative impact on court efficiency. The court system is constantly inundated with appeals. "[R]efusing to hear protective cross-appeals will streamline cases on appeal and prevent prevailing parties from deluging the courts with unnecessary protective cross-appeals." Basile, [973 A.2d] at 427 (Baer, J., concurring). Protective cross-appeals by a party who received the relief requested are not favored. As such, a successful litigant need not file a protective cross-appeal on pain of waiver.
Id. at 112-13 (emphasis added).
Basile similarly involved a question of waiver. In that case, the trial court ruled against H&R Block in granting class action certification (after which H&R Block did not seek an immediate interlocutory appeal), but the court subsequently granted H&R Block’s motion for summary judgment and denied the class’s motion for summary judgment. See Basile, 973 A.2d at 419-20. The class appealed the disposition of the summary judgment motions, and H&R Block appealed the class certification order. See id. at 420. The Superior Court reversed the grant of summary judgment to H&R Block, and after an appeal in this Court and a remand to Superior Court, the case ended up back in the trial court on remand. See id. There, H&R Block filed a motion for decertification of the class, which the trial court granted based on the legal developments in the case. See id. The class appealed the decertification order, and the Superior Court reversed the decertification, reasoning H&R Block waived its right to challenge the class certification during the first appeal to the Superior Court. See id.
After granting H&R Block’s petition for allowance of appeal, this Court reversed. See id. at 421. We first explained the Superior Court was factually incorrect, as H&R Block had in fact filed a cross-appeal from the class certification order when the case was first before the Superior Court. See id. More importantly for today’s purposes, however, we also cited the "aggrieved party" standard in Rule 501 and explained H&R Block "was the ultimate prevailing party at the time of the [first] appeal because it won its motion for summary judgment on the merits of the class action. As the prevailing party, it was not required to file a protective cross-appeal on the issue of class certification, although it did." Id. at 422 (footnote omitted). "Therefore," we held, "[H&R] Block did not waive its challenge to class certification." Id. at 423 (emphasis added).
Unlike Lebanon Valley and Basile, the present case does not really involve a waiver issue. To be precise, Parents do not seek to raise an argument pertaining to the applicability of the controlled substances exclusion in this Court, and Nationwide does not argue that issue is waived due to Parents’ failure to file a cross-petition for allowance of appeal. Instead, Parents claim the Superior Court never actually decided the applicability of the exclusion since, according to Parents, its discussion of the exclusion was mere dicta, and they thus lacked the opportunity to challenge this aspect of the Superior Court’s opinion because they were not "aggrieved" by an inconsequential detour by the panel below. But the majority is correct that Rule 1113(b) does not include any aggrievement requirement, and that Parents certainly had the opportunity to file a cross-petition for allowance of appeal to challenge the Superior Court’s "dicta" about the policy exclusion.2a See Majority Opinion at 1042-43. Thus, the issue here is not "waiver" as presented in Lebanon Valley and Basile; it is one of timeliness.
In this regard, Meyer Darragh is precisely on point. As the majority explains, see Majority Opinion at 1043, that case involved a dispute over attorneys’ fees, where the Superior Court ruled against Meyer Darragh on its quantum meruit claim but ruled for Meyer Darragh on its breach of contract claim. See Meyer Darragh, 137 A.3d at 1252-53. The opposing law firm, Malone Middleman, filed a petition for allowance of appeal (which we granted) challenging the Superior Court’s breach of contract holding, but Meyer Darragh did not seek allowance of appeal from the court’s denial of its quantum meruit claim. See id. This Court reversed the Superior Court, holding "any recovery that may have been due to Meyer Darragh would lie in quantum meruit, and not breach of contract." Id. at 1259. The majority noted "Meyer Darragh does not attempt to resurrect its quantum meruit claim against Malone Middleman in its brief to this Court." Id. at 1256 n.9.
In his concurring opinion (which I joined), then-Chief Justice Saylor explained he was "circumspect concerning the degree to which the present decision may be construed as suggesting, if only implicitly, that Meyer Darragh has abandoned its quantum meruit claim by failing to raise it in its brief or by not filing a protective cross-petition for allowance of appeal." Id. at 1259-60 (Saylor, C.J., concurring). He explained "[l]itigants are generally discouraged from briefing issues not accepted for review[,]" and that the Court had recently stated in Lebanon Valley that "protective cross-appeals are disfavored and that ‘a successful litigant need not file a protective cross-appeal on pain of waiver.’ " Id. at 1260, quoting Lebanon Valley, 83 A.3d at 113. Former Chief Justice Saylor did not opine on whether that principle from Lebanon Valley applied. Indeed, he explained "[i]t is simply not clear how Lebanon Valley’s guidance translates … into the discretionary appeals context, where the Court is generally confined according to the issues accepted for review." Id. at 1260 n.2. Instead, he simply recognized the possibility that "in electing not to file a cross-petition for allowance of appeal, Meyer Darragh relied to its detriment upon this Court’s pronouncements in Lebanon Valley and Basile." Id. (footnote omitted). As a solution for the problem caused by this potential confusion — Meyer Darragh’s decision not to challenge the Superi- or Court’s quantum meruit determination in a timely cross-petition for allowance of appeal — Chief Justice Saylor suggested it could request relief in the form of leave to file a cross-petition for allowance of appeal nunc pro tunc. Then-Justice Todd agreed, but "would expressly permit Meyer Darragh to file a nunc pro tunc cross petition for allowance of appeal within 30 days[.]" Id. (Todd, J., concurring).
Just like in Meyer Darragh, Parents here got the relief they sought in Superior Court, even though they lost on their alternative argument. And as in Meyer Darragh, Parents did not file a cross-petition for allowance of appeal and "d[id] not attempt to resurrect" their arguments pertaining to the Controlled Substances Exclusion in their brief to this Court. Id. at 1256 n.9. The question therefore is not whether they waived their challenge to the Superior Court’s holding regarding the exclusion — it’s whether they can bring a challenge to the Superior Court’s decision, even though it is too late to file a cross-petition for allowance of appeal from that decision. See Pa.R.A.P. 1113(b). The typical course for seeking review of an untimely petition is by applying for permission to file nunc pro tunc. See, e.g., Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001); Pa. R.A.P. 1113(d) (noting "the right of any petitioner to seek nunc pro tunc relief in compliance with the standard set forth in case law"). For this reason, I agree with the majority that Meyer Darragh applies instead of Lebanon Valley or Basile, and at this juncture, for Parents to challenge the Superior Court’s decision on the controlled substances exclusion, they must seek (and be granted) nunc pro tunc permission.3a
However, to the extent the majority opinion can be construed as holding the principles from Lebanon Valley — that protective cross-appeals are disfavored and "a successful litigant need not file a protective cross-appeal on pain of waiver," 83 A.3d at 113 — do not apply in the context of discretionary appeals, I agree with Justice Mundy we need not go so far. As explained above, the question here is not about waiver. The appropriate case to address the applicability of Lebanon Valley in the context of a discretionary appeal would be one where: (1) the appellee failed to file a cross-petition for allowance of appeal, but (2) nonetheless attempts to raise arguments before this Court challenging part of the intermediate court’s holding, and (3) the appellant responds by claiming those arguments are waived. That is not this case. The majority makes some very convincing points about the distinctions between appeals as of right and appeals by allowance, but we should wait for the proper case to consider those points.4a
JUSTICE MUNDY, concurring
I agree with the Majority’s conclusion that Nationwide did not have a duty to defend Parents in the underlying lawsuit because, under the specific language of the insurance policy at issue, emotional and mental distress damages in the wrongful death claim are not bodily injury. I highlight that the Court was tasked with interpreting the specific language of the policy and did not address the question of whether emotional distress damages constitute bodily injury more generally. Unlike the Majority, however, I would grant Parents’ request to remand the case to the Superior Court for entry of judgment in favor of Nationwide so Parents can file a petition for allowance of appeal from that order addressing the applicability of the policy’s controlled substance exclusion.
The Majority correctly observes the Superior Court did hold, without explanation, that the controlled substance exclusion applied to the claims raised in the underlying lawsuit, with the exception of damages for emotional distress. Maj. Op. at 1041-42 (citing Kramer v. Nationwide Prop. & Cas. Ins. Co., 271 A.3d 431, 436 (Pa. Super. 2021), appeal granted, 286 A.3d 711 (Pa. 2022)). That being the case, the Superior Court still affirmed the trial court’s summary judgment order granting Parents declaratory judgment as to Nationwide’s duty to defend. Kramer, 271 A.3d at 437. As such, Parents make a colorable argument that they were the prevailing party before the Superior Court and not aggrieved by its holding. In Lebanon Valley Farmers Bank v. Commonwealth, 623 Pa. 455, 83 A.3d 107 (2013), this Court stated that "[p]rotective cross-appeals by a party who received the relief requested are not favored. As such, a successful litigant need not file a protective cross-appeal on pain of waiver." Lebanon Valley, 83 A.3d at 113. The Majority rejects the applicability of Lebanon Valley, along with Parents’ reliance on Basile v. H&R Block, Inc., 601 Pa. 392, 973 A.2d 417 (2009) (tax-preparer was not required to file protective cross appeal challenging class certification because it was not an aggrieved party), as those cases concerned Pa.R.A.P. 501 and 511, which govern appeals as of right and related cross-appeals, rather than a petition for allowance of appeal, which is governed by Pa.R.A.P. 1113. Maj. Op. at 1041-42. Instead, the Majority relies on two concurring opinions in Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman PC, 635 Pa. 427, 137 A.3d 1247 (2016), to determine that Parents’ only avenue for relief is to file a nunc pro tunc petition seeking permission to file a petition for allowance of appeal.
In his concurrence in Meyer Darragh, however, then-Chief Justice Saylor observed that "[i]t is simply not clear how Lebanon Valley’s guidance translates … into the discretionary appeals context, where the Court is generally confined according to the issues accepted for review." Meyer Darragh, 137 A.3d at 1260 n.2 (Saylor, C.J., concurring). The Court has yet to address Lebanon Valley’s application in circumstances such as this and we did not accept that issue for review in this case. As such, I would not reject Lebanon Valley’s application out of hand as the Majority does and would leave the Court’s consideration of such for another day when the issue is directly before us and fully briefed by the parties. Further, I disagree with the Majority that "Meyer Darragh was fair notice to practitioners of the consequences of the failure to file a cross-petition for allowance of appeal[,]" when they
obtained the relief they sought below, in this instance affirmance of the trial court’s declaratory judgment order. Maj. Op. at 1044-45 n. 18. The majority opinion in Meyer Darragh does not address the question at all, as it was not directly before the Court. As for then-Chief Justice Saylor’s and then-Justice Todd’s concurrences, while they endorsed granting nunc pro tunc relief, they did not endorse rejecting a party’s remand request as one was not before the Court. To the extent the Meyer Darragh concurrences can be read to foreclose such relief, that position is not binding precedent as it did not garner a majority of the Court. See Mt. Lebanon v. County Bd. of Elections of Allegheny County, 470 Pa. 317, 368 A.2d 648, 650 (1977). Therefore, given the paucity of the Superior Court’s explanation for its rejection of Parents’ argument that the controlled substance exclusion does not apply, Nationwide’s concurrence in Parents’ request, and the apparent continued ambiguity in this area, I would grant Parents’ request to remand the case to the Superior Court for entry of an order entering judgment in favor of Nationwide and allow Parents to file a petition for allowance of appeal from that order as of right.