ZURICH AMERICAN INSURANCE COMPANY v. CITIZENS INSURANCE COMPANY OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ZURICH AMERICAN INSURANCE : CIVIL ACTION

COMPANY :

:

v. : NO. 24-1879

:

CITIZENS INSURANCE COMPANY :

OF AMERICA, BELFI BROS. AND :

COMPANY, INC.

MEMORANDUM

KEARNEY, J. September 13, 2024

A general contractor on a construction project hires subcontractors to complete the assigned

project. Both the general contractor and subcontractor purchase liability insurance. The general

contractor requires the hired subcontractor to identify the general contractor as an “additional insured”

on the subcontractor’s insurance. The subcontractor’s employees perform services at the Pennsylvania

job site. If subcontractor’s employee is injured on site, the Pennsylvania Workers’ Compensation Act

bars the employee from suing the employer subcontractor. So the injured employee instead sues the

general contractor for negligence in state court. And the general contractor looks to the subcontractor

for insurance coverage. We today address whether the subcontractor’s insurer must cover the general

contractor’s costs of defending the employee’s negligence case. We study the four corners of the

“additional insured” policy language and the employee’s allegations. Our Court of Appeals and several

colleagues offer thoughtful guidance. The employee’s state court allegations sufficiently trigger the

obligations of the subcontractor’s insurer to pay the general contractor’s costs of defending the

employee’s case. We enter judgment on the pleadings, declaring the subcontractor’s insurer must

reimburse for earlier costs and cover current fees and costs necessary to defend the general contractor

in the employee’s case. We dismiss the remaining claim for indemnity as not ripe.

I. Background

Southeastern Pennsylvania Transportation Authority hired general contractor James J.

Anderson Company, Inc. to perform construction work on the Susquehanna-Dauphin Broad Street

line station.1 General contractor Anderson Construction purchased general liability insurance for

its protection from Zurich American Insurance Company.2

General contractor Anderson Construction hired Belfi Bros. and Company, Inc as a tiling

subcontractor.3 Subcontractor Belfi agreed to maintain commercial general liability insurance and

name general contractor Anderson Construction as an additional insured for its work on SEPTA’s

job on a primary non-contributory basis.4 Belfi bought insurance from Citizens Insurance

Company of America.5 It identified Anderson Construction as an additional insured.6 Citizens

agreed to provide coverage for Anderson Construction to recover as an additional insured: (1) for

injuries “caused, in whole or in part, by” Belfi’s “acts or omissions” or the “acts or omissions of

those acting on [Belfi’s] behalf; in the performance of [Belfi’s] ongoing operations for [Anderson

Construction]”;7 and (2) for injuries “caused, in whole or in part, by [Belfi’s] acts or omissions, or

the acts or omissions of those acting on [Belfi’s] behalf but only with respect to . . . [Belfi’s] work

for the additional insured(s) designated in the contract, agreement or permit; . . . Premises [Belfi]

own[s], rent[s], lease[s] or occup[ies],” or for “[Belfi’s] maintenance, operation or use of

equipment leased to [Belfi].”8

Enrico Panvini worked at SEPTA’s job site for Belfi.9 Mr. Panvini slipped while carrying

the heavy part of a wet saw backwards down about thirty steps.10 He sustained severe and

permanent bodily injuries and losses.11 He sued SEPTA, general contractor Anderson

Construction, and John Does in the Philadelphia County Court of Common Pleas alleging their

negligence caused his injuries and seeking damages.12 He alleged his injuries occurred within the

scope of his employment with Belfi.13 He also alleged general contractor Anderson Construction’s

agents and representatives failed to supervise the work, provide a safe work site, and provide a

safety plan.14 Mr. Panvini did not sue his Employer, Belfi.15 Anderson Construction, through its

insurer Zurich, asked Citizens to provide a defense as an additional insured under Belfi’s insurance

policy in Mr. Panvini’s action on February 15, 2024.16 Citizens declined to defend.17

II. Analysis

The general contractor’s insurer Zurich now sues the subcontractor’s insurer Citizens

asking we declare Citizens has a duty to defend the general contractor in Mr. Panvini’s ongoing

negligence suit.18 Zurich also asserts a claim for indemnification. The two insurers now cross-

move for judgment on the pleadings as to Citizens’ obligation to pay the costs of defense in Mr.

Panvini’s suit.19

Zurich argues its customer general contractor Anderson Construction qualifies as an

additional insured under either of Citizens’ additional insured endorsements because Mr. Panvini

alleged Employer Belfi’s acts or omissions potentially caused his injuries in his negligence case.20

Citizens responds general contractor Anderson Construction does not qualify as an additional

insured because Mr. Panvini did not allege Employer Belfi’s acts or omissions potentially caused

his injuries.21

We grant Zurich’s Motion and deny Citizens’ Motion. Mr. Panvini alleged Employer Belfi’s

acts or omissions potentially caused his injuries. Subcontractor Belfi’s insurer Citizens must

defend general contractor Anderson Construction as an additional insured on Belfi’s insurance

policy issued by Citizens.

A. We construe Mr. Panvini’s allegations in favor of Anderson Construction.

Citizens has a duty to defend general contractor Anderson Construction if Mr. Panvini’s

underlying negligence complaint alleges Employer Belfi is “in whole or in part” responsible for

his injuries.22 We resolve this issue by comparing Mr. Panvini’s allegations to the language of the

Citizens policy.23 Citizens must defend Anderson Construction if Mr. Panvini’s negligence

allegations potentially support recovery under the policy.24

An insurer’s duty to defend under Pennsylvania law “is a distinct obligation” “different

from and broader than the duty to indemnify.”25 Determining whether an insurer has a duty to

defend requires defining the scope of coverage under the insurance policy on which the insured

relies and comparing it to the employee’s allegations.26 We construe ambiguities in the Citizens

policy “in favor of the insured to further the contract’s prime purpose of indemnification and

against the insurer, as the insurer drafts the policy and controls coverage.”27

The Pennsylvania Supreme Court counsels, “[i]f the complaint filed against the insured

avers facts which would support a recovery that is covered by the policy, it is the duty of the insurer

to defend until such time as the claim is confined to a recovery that the policy does not cover.”28

“[A]n insurer has a duty to defend if there is any possibility that its coverage has been triggered by

allegations in the underlying complaint.”29 Judges applying Pennsylvania law follow the “four

corners” or “eight corners” rule, which limits an insurer’s potential duty to defend to solely the

“allegations of the complaint in the [underlying] action.”30

We do not look outside Mr. Panvini’s allegations or consider extrinsic evidence.31 We view

as true and liberally construe Mr. Panvini’s allegations in general contractor Anderson

Construction’s favor to determine whether the allegations trigger Citizens’ duty to defend

Anderson Construction.32

B. We must account for the fact Mr. Panvini cannot sue Belfi in state court while

applying the four corners interpretative rule.

Mr. Panzini did not sue his Employer, Belfi, in state court. His underlying allegations do

not directly attribute fault to Citizens’ insured (Belfi). We must account for the Pennsylvania

Workers’ Compensation Act when analyzing Mr. Panvini’s allegations (or lack thereof) about

Employer Belfi in the underlying complaint.

The Workers’ Compensation Act is an injured worker’s exclusive remedy against his or her

employer.33 The Pennsylvania General Assembly prevents Mr. Panvini from suing Belfi. This

limitation impacts an insurer’s duty to defend. Our Court of Appeals instructed in Ramara, Inc. v.

Westfield Ins. Co. “where the Workers’ Compensation Act is relevant to a coverage determination,

insurers (and the courts that review their determinations) must interpret the allegations of an

underlying complaint recognizing that the plaintiff's attorney in the underlying action drafted the

complaint taking the existence of the Act into account.”34

Our awareness of the Act’s impact on Mr. Panvini’s underlying negligence claim does not

violate Pennsylvania’s four corners rule.35 As our Court of Appeals directed in Ramara, “[t]he four

corners rule . . . does not permit an insurer to make its coverage decision with blinders on,

disclaiming any knowledge of coverage-triggering facts.”36 Our colleagues consistently account

for the Workers’ Compensation Act when an insured subcontractor’s employee is injured, the

employer subcontractor is immune from suit under the Act, and the duty to defend is at issue.

Judge Robreno’s analysis in Liberty Mutual Fire Ins. Co. v. Harleysville Worcester Ins. Co.

is illustrative.37 Like here, the general contractor’s insurer sued the subcontractor’s insurer seeking

a declaratory judgment the subcontractor’s insurer had a duty to defend the general contractor.38

The subcontractor’s employee sustained injuries on the job and the subcontractor’s insurer

declined to defend the general contractor.39 Applying the facts of Ramara, Judge Robreno noted

because “direct employers are immune from tort claims for workplace injuries of their employees,

the plaintiff’s attorney in the underlying action in Ramara would not have drafted the complaint

to include [the subcontractor], regardless of whether the damages were caused by [the

subcontractor].”40 We are viewing the same issue.

We draw contrast to the distinct facts Judge Hey addressed in Cincinnati Ins. Co. v. Colony

Ins. Co. There, the general contractor’s insurer sued a subcontractor’s insurer to defend the general

contractor in an underlying action involving injuries sustained by a different subcontractor’s

employee.41 Neither of the insurers had a relationship with the injured employee’s subcontractor.42

Judge Hey concluded our Court of Appeals’s concerns about the Workers’ Compensation Act in

Ramara were inapplicable.43

The facts of our case track the facts of Ramara and Liberty. Mr. Panvini worked for Belfi,

Anderson Construction’s subcontractor. He sustained his injuries while working for Belfi at a job

site where Anderson Construction was the general contractor. The Workers’ Compensation Act

bars Mr. Panvini from suing Belfi.44 We can infer in the absence of the Act Mr. Panvini would

have pleaded more detail concerning Belfi’s negligence in his underlying complaint.45 We bear

this in mind as we address whether Mr. Panvini’s allegations require Citizens to defend Anderson

Construction.

C. Mr. Panvini pleads facts confirming Belfi’s conduct proximately caused his

injury.

Citizens agreed to defend general contractor Anderson Construction for bodily injury

“caused, in whole or in part, by” “[Belfi’s] acts or omissions” or “the acts or omissions of those

acting on [Belfi’s] behalf; in the performance of [Belfi’s] ongoing operations for the additional

insured.”46 We must determine whether Belfi’s conduct was a but-for or proximate cause of Mr.

Panvini’s injuries entitling Anderson Construction to a defense in Mr. Panvini’s underlying case.47

Our Court of Appeals applies proximate causation instead of but-for causation in duty to

defend cases because “a proximate cause requirement is more demanding than a but-for cause

requirement – meaning that allegations satisfying the former necessarily will satisfy the latter[.]”48

“Proximate causation is defined as a cause which was ‘a substantial factor in bringing about . . .

the harm.’”49 Proximate causation is a “limiting principle that functions as ‘shorthand for the

policy-based judgment that not all factual causes contributing to an injury should be legally

cognizable causes.’”50

An employee in a duty to defend case sufficiently pleads proximate causation when he or

she alleges: (1) the general contractor acted “through its agents, servants, and/or employees”; and

(2) some other failure, such as failure “to provide and require that equipment be used in accordance

with industry standards,” failure “to inspect the work,” failure to “hire competent contractors and

subcontractors,” or failure to “supervise the construction work.”51 In other words, if Mr. Panvini

“was injured during the course of his normal duties at the job site, and the injury was caused by

the acts or omission of [Anderson Construction’s] . . . subcontractors – of which [Belfi] was one –

these allegations raise at least the potential that [Belfi’s] conduct was a proximate cause of his

injuries.”52

We agree with Zurich and find Mr. Panvini’s allegations satisfy both steps outlined by our

Court of Appeals in Ramara. Mr. Panvini’s allegations raise the potential Belfi’s conduct

proximately caused his injuries.

a. General contractor Anderson Construction acted through its subcontracted

agents.

To sufficiently allege proximate causation as to his or her employer an injured employee

first must plead the general contractor acted through its agents, servants, or employees. The

absence of the employer’s name in the underlying complaint is not dispositive because we

recognize “the plaintiff’s attorney in the underlying action drafted the complaint taking the

existence of the [Workers’ Compensation] Act into account.”53 And the Act limits the types of

allegations an employee can bring against his or her employer.54 If the employer’s contractual

relationship with the general contractor could be interpreted to fall within the category of “agent,”

“servant,” or “employee,” the employee need not explicitly name the employer as the cause of the

injury.55 The salient question is “whether [the employer Belfi] could potentially be implicated

given the allegations in the underlying complaint.”56

Mr. Panvini alleged general contractor Anderson Construction acted “by and through its

agents, servants, workmen, employees and/or other representatives acting within the course and

scope of their employment, agency and/or service for the same . . . . ”57 Zurich argues Anderson

Construction is entitled to a defense from Citizens because Belfi (Citizens’ insured) was

Anderson’s tile subcontractor.58 Though Citizens points out Mr. Panvini did not explicitly refer to

Belfi as a “subcontractor” of Anderson Construction in his underlying complaint, the parties do

not dispute Belfi’s subcontractor status.59 And the exact nature of Belfi’s contractual relationship

with Anderson Construction is irrelevant. Mr. Panvini alleged Anderson Construction hired Belfi

to perform construction work at the Susquehanna-Dauphin subway station.60 Our Court of Appeals

instructs it is Belfi’s possible implication in Mr. Panvini’s injury, and not the precise terms of its

contractual relationship with Anderson Construction, which informs our duty to defend analysis.61

We find Mr. Panvini sufficiently alleged Belfi was an agent, servant, or employee of Anderson

Construction and proceed to the second step of the proximate causation analysis.

b. Mr. Panvini alleged Belfi’s negligence.

Our second step is to study whether Mr. Panvini alleged negligence implicating his

Employer Belfi although he could not sue Belfi itself. An employee injured on a job site must also

plead negligence possibly attributable to his or her employer to allege proximate causation

triggering the employer’s insurer’s duty to defend. Zurich and Citizens dispute whether Mr.

Panvini’s allegations of negligence satisfy this requirement. We again look to our Court of

Appeals’s analysis in Ramara and thoughtful decisions by colleagues for guidance.

The injured employee in Ramara alleged the garage owner for whom the employer was a

subcontractor “failed to provide and require that equipment be used in accordance with industry

standards,” failed to “employ field personnel, project supervisors and safety inspectors to inspect

the work,” failed to “hire competent contractors and subcontractors,” failed to “supervise the

construction work,” failed to “coordinate with the other entities and subcontractors on the

premises,” and failed to “enforce a site specific fall protection plan.”62 Our Court of Appeals found

the subcontractor (plaintiff’s employer) proximately caused the employee’s injury because his

“employment by [the subcontractor] was the sole reason . . . [he] was at the job site and was

injured.”63 Our Court of Appeals concluded the subcontractor’s insurer had a duty to defend the

garage owner in the employee’s lawsuit.64

We also look to Judge Surrick’s analysis in Zurich Am. Ins. Co. v. Indian Harbor Ins. Co.

where a subcontractor’s employee was injured on a job site and alleged the building owner and its

agents failed to maintain the premises, to inspect and supervise the dangerous conditions, to

maintain proper barrier equipment, to warn of danger, and to properly surprise or provide proper

safety management.65 Judge Surrick found the subcontractor’s insurer had a duty to defend the

building owner.66 Judge Robreno came to a similar conclusion in Liberty where a subcontractor’s

injured employee alleged the general contractor and its agents failed “to require contractors,

subcontractors and other entities working at the project to the protect against the risk of injuries,”

to “properly supervise the project,” and to “properly train and supervise its employees,” and “had

actual notice of unsafe and dangerous condition of the premises and sufficient time to correct the

dangerous situation.”67 Judge Robreno found the subcontractor’s insurer had a duty to defend the

general contractor.68

Mr. Panvini alleged general contractor Anderson Construction failed to supervise and

regulate the work as it was performed.69 He alleged Anderson Construction failed “to adequately

warn workers assisting in the construction project of the attendant dangers thereto,” “provide

plaintiff a safe place to work,” “properly plan, supervise and regulate the work as it was being

performed,” and “to implement an adequate safety program.”70

Citizens argues these allegations are insufficient to support proximate cause. It submits the

duty to defend is only triggered when the general contractor failed to supervise its subcontractors,

and the supervisors were in turn negligent.71 Citizens claims Mr. Panvini’s allegations are

insufficient because he did not plead Anderson Construction failed to supervise its subcontractors

or the subcontractors acted negligently; he instead only alleged Anderson Construction acted

negligently. According to Citizens, Mr. Panvini’s “boilerplate allegations” Anderson Construction

acted “through its agents, servants, and employees” (i.e., Belfi) is not enough for us to conclude

Belfi proximately caused Mr. Panvini’s injury.

We disagree. First, we are not convinced the duty to defend is only triggered when a general

contractor had a duty to supervise its subcontractors, who were in turn negligent. As our Court of

Appeals instructs, Anderson Construction (through Zurich) only needs to show Mr. Panvini’s

injury arose during his normal duties at the job site, and the acts or omissions of Anderson

Construction’s subcontractors caused his injury.72 Mr. Panvini plainly pleads facts sufficient to

establish injury during the course of his normal job duties. And Mr. Panvini’s “employment by

[Belfi] was the sole reason . . . [he] was at the job site and was injured.”73 Second, even under

Citizens’ interpretation requiring a failed duty to supervise, Mr. Panvini alleges Anderson

Construction did not supervise the work as it was performed.74 We are persuaded by the reasoning

in Ramara, Indian Harbor, and Liberty confirming allegations a general contractor failed to

supervise the work is equivalent to failing to supervise subcontractors.

We follow our Court of Appeals’s approach and find Mr. Panvini’s “factual allegations . . .

potentially would support a conclusion that [his] injuries were ‘caused, in whole or in part’ by

[Belfi’s] acts or omissions.”75

D. Zurich provides excess coverage for general contractor Anderson

Construction.

Zurich argues it provides only excess coverage to general contractor Anderson

Construction because Citizens provides primary coverage.76 Citizens does not challenge the

primary or excess coverage issue.

Insurance policies are generally divided into two levels of coverage: primary and excess.77

Primary insurers are liable when there is an injury within the scope of the policy.78 Excess insurers

are not liable until the primary insurance has been exhausted.79 “Other insurance” provisions in

policy contracts allocate responsibility for multiple insurers when primary and excess coverage is

an issue.80 Zurich defines when its coverage is excess.81 Zurich provides excess coverage when

“[a]nother primary insurance available to [general contractor Anderson Construction] covering

liability for damages arising out of the premises or operations, or the products and completed

operations, for which [Anderson Construction has] been added as an additional insured . . . .”82

Zurich provides excess insurance coverage because general contractor Anderson

Construction qualifies as an additional insured under the Citizens policy. Citizens provides primary

coverage for Anderson Construction. Zurich’s coverage will be triggered only when Citizen’s

coverage is exhausted.83

III. Conclusion

We grant Zurich’s motion requiring we declare Citizens must tender a defense to Anderson

Construction through final order in Mr. Panvini’s negligence claim. Citizens must also reimburse

for all defense costs paid to date on Belfi’s behalf consistent with its agreement with Belfi. We find

it unnecessary to address Zurich’s alternative relief asking us to declare Belfi has a duty to defend

Anderson Construction.

The issues on indemnity obligations are not ripe and we dismiss them without prejudice.84

1 ECF 22 ¶¶ 3, 7, 13. We assume, without deciding, Belfi acted as a subcontractor for Anderson

Construction because the parties do not dispute this fact. See, e.g., ECF 22-1 at 19 (referring to

Belfi as a “tile subcontractor” for Anderson Construction); ECF 23-1 at 2 (describing the

“Subcontract” between Belfi and Anderson Construction).

2 ECF 22 ¶ 11. The Zurich Policy is excess coverage when primary coverage is in place. Id. ¶ 22.

3 Id. ¶ 3; ECF 22-1 at 8.

4 ECF 22 ¶ 8; ECF 23-1 at 2.

5 ECF 22 ¶ 10.

6 ECF 22 ¶ 13.

7 ECF 22-3 at 202. This endorsement is referred to as the “endorsement for owners, lessees, or

contractors with automatic status for other parties when required.”

8 ECF 22-3 at 152. This endorsement is a broadening endorsement adding additional insured

parties by contract, agreement, or permit. Citizens uses the term “you” or “your” in their additional

insured coverage, which the parties defined as the policy purchaser, Belfi. ECF 22-1 at 13.

9 ECF 22-5 ¶ 10.

10 Id. ¶ 13.

11 Id. ¶ 13.

12 Id. ¶¶ 1, 2, 3, 4, 26, 36, 46, 52. Mr. Panvini’s wife, Christina Panvini, is also a party in Mr.

Panvini’s complaint seeking damages for loss of consortium.

13 Id. 22-5 ¶ 13.

14 Id. ¶¶ 34(i), (l), (n).

15 Id. at 1. The Pennsylvania Workers’ Compensation Act prevents him from doing so. PA. STAT.

AND CONS. STAT. § 481.

16 ECF 22 ¶ 14; ECF 22-6 at 2.

17 ECF 1 at 2.

18 ECF 22 at 1. Zurich seeks alternative relief asking we declare Belfi is obligated to defend

Anderson Construction. Id.

19 ECF 22; ECF 23. Under Federal Rule of Civil Procedure 12(c), “after pleadings are closed but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.

Rule 12(c). Judgment on the pleadings is appropriate when “the movant clearly establishes that no

material issue of fact remains . . . and that he is entitled to judgment as a matter of law.” Rosenau

v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008). Rule 12(c) motions are reviewed under the

same pleading standard as motions to dismiss for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6). Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010); Zimmerman v.

Corbett, 873 F.3d 414, 417 (3d Cir. 2017); Fed. R. Civ. P. Rules 12(c), 12(b)(6). We take the

allegations contained in Zurich’s complaint as true and draw all reasonable inferences in favor of

Zurich but construe them in the light most favorable to Citizens. Tatis v. Allied Interstate, LLC,

882 F.3d 425, 426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262

n.27(3d Cir. 2010)). We give no deference to legal conclusions because we are “not bound to accept

as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

20 ECF 22-1 at 5.

21 ECF 23-1 at 7.

22 ECF 22-3 at 183.

23 Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Com. Union Ins. Co., 908 A.2d 888, 896 (Pa.

2006).

24 Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 226 (3d Cir. 2005) (citing Gen. Acc. Ins. Co. of

Am. v. Allen, 547 Pa. 693, 692 A.2d 1089 (1997)).

25 Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 673 (3d Cir. 2016) (quoting Sikirica v.

Nationwide Ins. Co., 416 F.3d 214, 225 (3d Cir. 2005)). Pennsylvania law applies to the substantive

issues in this diversity case. Travelers Indem. Co. of Illinois v. DiBartolo, 131 F.3d 343, 348 (3d

Cir. 1997).

26 Ramara, 814 F.3d at 673 (citing Sikirica, 416 F.3d at 226).

27 Kvaerner, 908 A.2d at 897.

28 Ramara, 814 F.3d at 673 (quoting Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 533

(1987)).

29 Id. at 674 (citing Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 606 Pa. 584, 609 (2010)).

30 Id. at 673 (quoting Kvaerner, 908 A.2d at 896).

31 Kvaerner, 908 A.2d at 896–97. But see Zurich Am. Ins. Co. v. Indian Harbor Ins. Co., 235

F.Supp.3d 690 (E.D. Pa. 2017). Citizens argues Indian Harbor violates Pennsylvania’s four corners

rule because Judge Surrick considered the terms of a purchase order between the parties. ECF 23-

1 at 19–20. Citizens claims “the court impermissibly factored the terms of the contract between

LWC [the plaintiff’s employer] and Rittenhouse into its determination.” Id. at 20. Zurich responds

the Indian Harbor decision is consistent with other Pennsylvania decisions because “the additional

insured endorsements in the Citizens Policy require that Citizens review the operative contract to

determine coverage.” ECF 24-1 at 9. It is unnecessary for us to determine which party’s

interpretation of Indian Harbor is correct because Mr. Panvini sufficiently alleges facts concerning

the relationship between him, Belfi, and Anderson Construction. ECF 22-5 ¶¶ 7–13. We need not

examine the contract between Belfi and Anderson Construction to analyze the duty to defend. The

exact nature of the employer’s contractual relationship with the general contractor is not material.

32 Ramara, 814 F.3d 660, 673 (citing Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742,

746 (3d Cir. 1999)).

33 PA. STAT. AND CONS. STAT. § 481 (“The liability of an employer under this act shall be exclusive

and in place of any and all other liability.”).

34 814 F.3d at 679. In Ramara, a garage owner hired a general contractor who in turn hired a

subcontractor. The subcontractor obtained general liability insurance. The subcontractor’s

employees sustained injuries on the job. The employee sued the garage owner and the general

contractor, but not his employer, the subcontractor. The subcontractor’s insurer declined to defend

the garage owner. The owner sued the subcontractor’s insurer seeking a judgment declaring the

subcontractor’s insurer had a duty to defend. Our Court of Appeals upheld the district court’s

decision finding the subcontractor’s insurer had a duty to defend. Id. at 681.

35 Id. at 679. Our Court of Appeals described it as an “interpretive constraint.” Id. at 680.

36 Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 679 (3d Cir. 2016).

37 524 F. Supp. 3d 462 (E.D. Pa. 2021).

38 Id. at 464–65.

39 Id. at 465–66.

40 Id. at 470; see also Selective Ins. Co. of Am. v. Indian Harbor Ins. Co., No. 16-1464, 2016 WL

3457719, at *1 (E.D. Pa. June 23, 2016) (“[T]he Act help[s] explain why [the employee] would

not have focused on [the subcontractor] in framing her underlying complaint. [The employee]

would not have given much attention to [the subcontractor] because the Act precludes her from

suing her former employer.”).

41 Cincinnati Ins. Co. v. Colony Ins. Co., No. 21-0289, 2022 WL 294550, at *1, *8 (E.D. Pa. Jan.

31, 2022).

42 Id. at *2.

43 Id. at *8 (citing Cont’l Cas. Co. v. Westfield Ins. Co., No. 16-5299, 2017 WL 1477136, at *10

(E.D. Pa. Apr. 24, 2017)).

44 PA. STAT. AND CONS. STAT. § 481.

45 Selective, 2016 WL 3457719, at *3–*4.

46 ECF 22-3 at 202.

47 Ramara, 814 F.3d at 675.

48 Id. (first citing Bouriez v. Carnegie Mellon Univ., 585 F.3d 765 (3d Cir. 2009); then citing Hamil

v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); and then citing RESTATEMENT (SECOND) OF TORTS §

431 (AM. L. INST. 1965)).

49 Id.

50 Id. (quoting CSX Transp., Inc. v. McBride, 564 U.S. 685, 701 (2011)).

51 Id. at 675–76. Our Court of Appeals first addressed the garage owner “act[ing] by and through

its agents, servants and/or employees[,]” then addressed additional allegations such as failure to

inspect and supervise the work. Our Court of Appeals “[took them] together” and construed them

liberally in favor of the owner to find the allegation of proximate causation. Id. Chief Judge

Goldberg recognized a similar framework in PECO Energy Co. v. Nationwide Mut. Ins. Co. where

a subcontractor’s injured employee sued property owner PECO his injuries and then property

owner PECO sued the subcontractor’s insurer seeking a declaratory judgment for the

subcontractor’s insurer to defend property owner PECO. 586 F. Supp. 3d 339, 342 (E.D. Pa. 2022).

Chief Judge Goldberg explained “[two] patterns can be gleaned from these decisions: (1) the duty

to defend is triggered by something less than an explicit allegation of the primary insured’s fault

but more than mere silence” and “(2) the outcome in each case is closely tied to the particular

allegations in the underlying complaint.” Id. at 345.

52 Ramara, 814 F.3d at 676.

53 Id. at 679.

54 Id. at 680.

55 Indian Harbor, 235 F. Supp. 3d at 697.

56 Id.

57 ECF 22-5 ¶ 24.

58 ECF 22-1 at 19.

59 ECF 23-1 at 18.

60 ECF 22-5 ¶ 10.

61 Ramara, 814 F.3d at 676 n.11.

62 Id. at 675–76.

63 Id. at 676.

64 Id.

65Indian Harbor, 235 F. Supp. 3d at 692–93.

66 Id. at 698, 702.

67 Liberty, 524 F. Supp. 3d at 470 –71.

68 Id.

69 ECF 22-5 ¶ 44(l).

70 ECF 22-5 at ¶ 34(h), (i), (l), (n).

71 ECF 23-1 at 17.

72 Ramara, 814 F.3d at 676.

73 Id.

74 ECF 22-5 ¶ 44(l).

75 Ramara, 814 F.3d at 676.

76

77 Gen. Refractories Co. v. Allstate Ins. Co., No. 89-7924, 1994 WL 246375, at *4 (E.D. Pa. June

8, 1994).

78 Id.

79 Id.

80 Id. at *7–*8.

81 ECF 22-4 at 60.

82 Id.

83 White v. Cont'l Ins. Co., 233 F. App’x 135, 138 (3d Cir. 2007).

84 Parties seeking declaratory judgment must present “an actual controversy.” Step-Saver Data

Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990) (quoting 28 U.S.C.§ 2201). Such

controversies require ripeness, which “determine[s] whether a party has brought an action

prematurely . . . and counsels abstention until such a time as a dispute is sufficiently concrete to

satisfy the constitutional and prudential requirements of the doctrine.” Plains All Am. Pipeline L.P.

v. Cook, 866 F.3d 534 (3d Cir. 2017) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d

Cir. 2003)). Our Court of Appeals instructs us to apply a three-prong test in determining whether

a declaratory judgment action is ripe for adjudication: (1) the adversity of the parties’ interest; (2)

the conclusiveness of any declaratory judgment on indemnification; and (3) the practical utility of

a judgment to the parties at this time. Step-Saver, 912 F.2d at 647–50. While the issue of an

insurer’s duty to defend is ripe before the resolution of the underlying litigation, the issue of

indemnification is not. “[A]n insurer’s duty to defend its insured in a lawsuit is broader than its

duty to indemnify . . . .” Ramara, 814 F.3d at 673. “[C]ourts refrain from adjudicating whether an

insurer has duty to indemnify the insured until after the insured is found liable for damages in the

underlying action.” Evanston Ins. Co. v. Layne Thomas Builders, Inc., 635 F. Supp. 2d 348, 353

(D. Del. 2009). “This general proposition rests on the reasoning that while an underlying action is

pending, the issue of indemnification is not yet a controversy between the parties, and thus, does

not meet the Constitutional requirement that federal courts may only adjudicate actual cases or

controversies.” Id. (citing U.S. CONST. ART. III, § 2). Zurich alleges Mr. Panvini’s state court

litigation is ongoing. ECF 1 ¶ 55 (“Zurich . . . continues to provide a defense to [Anderson

Construction] in the Panvini Litigation.”); ¶ 56 (“Zurich . . . continues to expend significant

amounts of money to defend [Anderson Construction] in the Panvini Litigation.”). As the

underlying litigation is still pending, we dismiss Zurich’s claim concerning indemnification

without prejudice as unripe. See Access Ins. Co. v. Carpio, 861 F. Supp. 2d 539, 543 n.5 (E.D. Pa.

2012) (“[A] court may sua sponte dismiss a case on grounds of mootness or ripeness.”).