North American Elite Insurance Company v. Victory Fire Protection, Inc.

MOTION for Summary Judgment

E.D. Pa.July 6, 2018

8819947 v1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA NORTH AMERICAN ELITE INSURANCE COMPANY, as subrogee of Penn Foundation, Inc., Plaintiff, v. VICTORY FIRE PROTECTION, INC., Defendant. : : : : : : : : : : : : : : : : CASE NO. 2:17-cv-03554-WB VICTORY FIRE PROTECTION, INC., Third-Party Plaintiff, v. PENN BUILDERS, INC.; SIMPLEX GRINNELL, n/k/a JOHNSON CONTROLS FIRE PROTECTION LP; and ANCHOR FIRE PROTECTION COMPANY, Third-Party Defendants. NORTH AMERICAN ELITE INSURANCE COMPANY, as subrogee of Penn Foundation, Inc., Fourth-Party Plaintiff, v. PENN BUILDERS, INC.; SIMPLEX GRINNELL, n/k/a JOHNSON CONTROLS FIRE PROTECTION LP; and ANCHOR FIRE PROTECTION COMPANY, Fourth-Party Defendants. : : : : : : : : : : Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 1 of 13 2 8819947 v1 SIMPLEXGRINNELL LP N/K/A JOHNSON CONTROLS FIRE PROTECTION LP’S MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, Defendant/Third Party Defendant/Fourth Party Defendant/Cross Defendant/Cross Claimant SimplexGrinnell LP, n/k/a Johnson Controls Fire Protection, LP (“SimplexGrinnell”), by and through its counsel, moves for summary judgment in its favor as to the claims against it in North American Elite Insurance Company’s 14(a)(3) Complaint (Doc. 14), Victory Fire Protection, Inc.’s Third Party Complaint (Doc. 13), Penn Builders, Inc.’s Cross Claims (Doc. 22, 23), and Anchor Fire Protection’s Cross Claims (Doc. 26, 56). A Joint Appendix and Statement of Undisputed Material Facts is submitted concurrently herewith. I. Introduction Plaintiff North American Elite Insurance Company (“NAEIC”), insurer of Penn Foundation, Inc. (“Penn Foundation”), seeks to recover for payments it made after water damage occurred at one of Penn Foundation’s properties, Penn Villa facility, Sellersville, Pennsylvania. However, NAEIC’s claims against SimplexGrinnell are barred by 1) provisions in the governing contract precluding subrogation actions and 2) an agreed upon contractual one-year limitation of action provision. Further, to the extent NAEIC’s asserts any tort claims against SimplexGrinnell, those claims are barred by Pennsylvania’s gist of the action doctrine. Victory Fire Protection, Inc. (“Victory”) filed a Third Party Complaint asserting a contribution claim against SimplexGrinnell for Plaintiff’s damages. Because SimplexGrinnell cannot be liable to the underlying Plaintiff, Victory’s contribution claim fails. Penn Builders, Inc. (“Penn Builders”) and Anchor Fire Protection Company (“Anchor”) asserted a general cross-claim for contribution and indemnity against all defendants. Because SimplexGrinnell cannot be liable Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 2 of 13 3 8819947 v1 to the underlying Plaintiff, Penn Builders’ and Anchor’s contribution and indemnity claims fail. For the reasons discussed more fully below, SimplexGrinnell is entitled to summary judgment on all of NAEIC’s, Victory’s, Penn Builders’ and Anchor’s claims. II. Undisputed Material Facts A. Water Damages and Resulting Lawsuit On January 5, 2016, a piping connection for the dry sprinkler system at the Penn Villa facility (“subject property”) allegedly froze and burst, causing damage to the subject property.1 NAEIC reimbursed its insured, Penn Foundation, the cost to repair the damage pursuant to an insurance policy NAEIC issued to Penn Foundation.2 On August 4, 2017, NAEIC filed its Complaint against Victory, alleging negligence, breach of contract, and breach of express and implied warranties.3 On November 27, 2017, after seeking leave of court, Victory filed its Third Party Complaint against Third Party Defendants Penn Builders, SimplexGrinnell, and Anchor.4 Victory’s Third Party Complaint alleges SimplexGrinnell’s tortious actions include the failure to: properly perform the work at the subject property; ascertain the location of low point drain valves prior to work; ascertain weather conditions prior to filling the dry sprinkler with water without regard to the possibility of residual water freezing; identify and address the need for signage at the location of drain valves for the fire protection system; and identify and address the need for labelling at the location of drain valves pipe drains for the fire protection system piping.5 1 See SimplexGrinnell LP n/k/a Johnson Controls Fire Protection LP’s Statement of Undisputed Material Facts (“Facts”), ¶1, citing Joint Appendix Exhibit (“JA Ex.”) A, Complaint (“Compl.”) ¶¶ 6, 10, 18, JCFP_JA_0003-05. 2 Facts, ¶2, citing JA Ex. A, ¶ 21, JCFP_JA_0005. 3 Facts, ¶3, citing JA Ex. A, generally, JCFP_JA_0001-11. 4 Facts, ¶4, citing JA Ex. B, Victory Fire Protection, Inc.’s Third Party Complaint (“Victory’s TPC”), JCFP_JA_0012-23. 5 Facts, ¶5, citing JA Ex. B, Victory’s TPC, ¶¶ 48(a)-(k), JCFP_JA_0020. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 3 of 13 4 8819947 v1 On December 6, 2017, NAEIC filed its Complaint Against Third Party Defendants pursuant to Federal Rule of Civil Procedure 14(a)(3).6 NAEIC’s 14(a)(3) Complaint states the “manner in which Third Party Defendants Penn, Simplex Grinnell and Anchor are alleged to have been negligent and/or are otherwise liable in connection with this matter are set forth in [Victory’s] Third Party Complaint at DE # 13.”7 NAEIC asserts direct claims against SimplexGrinnell “[t]o the extent that Defendant Victory establishes [its] liability.”8 On December 6 and 27, 2017, in its Answer to Plaintiff’s 14(a)(3) Complaint and its Answer to Victory Fire’s Third Party Complaint, Penn Builders asserted a Cross Claim against all defendants, seeking contribution and indemnity, and incorporating its answers to the Rule 14(a)(3) Complaint and the Third Party Complaint.910 On April 26 and May 2, 2018, in its Answer to Plaintiff’s 14(a)(3) Complaint and its Answer to Victory Fire’s Third Party Complaint, Anchor filed its Cross Claim against all defendants, seeking contribution and indemnity, and incorporating its answers to the Rule 14(a)(3) Complaint and the Third Party Complaint.1112 B. Contract between Penn Foundation and SimplexGrinnell 6 Facts, ¶6, citing JA Ex. C, Plaintiff’s, North American Elite Insurance Company, Federal Rule of Civil Procedure14(a)(3) Complaint Against Third Party Defendants Penn Builders, Inc., Simplex Grinnell LP [sic] n/k/a Johnson Controls Fire Protection, LP and Anchor Fire Protection Company (“Plaintiff’s 14(a)(3) Compl.”), JCFP_JA_0024-28. 7 Facts, ¶7, citing JA Ex. C, Plaintiff’s 14(a)(3) Compl., ¶ 4, JCFP_JA_0026. 8 Facts, ¶8, citing JA Ex. C, Plaintiff’s 14(a)(3) Compl., ¶ 5, JCFP_JA_0026. 9 Facts, ¶9, citing JA Ex. D, Answer of Third Party Defendant, Penn Builders, Inc. to the Federal Rule of Civil Procedure 14(a)(3) Complaint of Plaintiff, North American Elite Insurance Company, JCFP_JA_0029-37. 10 Facts, ¶9, citing JA Ex. E, Answer of Third Party Defendant, Penn Builders, Inc. to the Third Party Complaint of Third Party Plaintiff, Victory Fire Protection, Inc., JCFP_JA_0038-51. 11 Facts, ¶10, citing JA Ex. F, Third Party Defendant, Anchor Fire Protection Company’s Answer to Defendant’s Victory Fire Protection, Inc. Complaint, JCFP_JA_0052-74. 12 Facts, ¶10, citing JA Ex. G, Third Party Defendant, Anchor Fire Protection Company’s Answer to Plaintiff’s 14(a)(3) Complaint, JCFP_JA_0075-82. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 4 of 13 5 8819947 v1 On May 18, 2015, SimplexGrinnell entered a contract with Penn Foundation to perform quarterly fire sprinkler system inspections, effective May 1, 2015 to April 30, 2018.13 Immediately above Penn Foundation Chief Financial Officer Francien Mellott’s signature, the Contract states: ATTENTION IS DIRECTED TO THE LIMITATION OF LIABILITY, WARRANTY, INDEMNITY AND OTHER CONDITIONS CONTAINED IN THIS AGREEMENT.14 Penn Foundation agreed to the Contract’s terms, including the following waiver of subrogation provisions: 5. Limitation of Liability: Limitations of Remedy. It is understood and agreed by [Penn Foundation] that [SimplexGrinnell] is not an insurer and that Insurance coverage, if any, shall be obtained by [Penn Foundation] and that amounts payable to [SimplexGrinnell] hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of the [Penn Foundation] property and the property of others located on the premises. [Penn Foundation] agrees to look exclusively to [Penn Foundation’s] insurer to recover for injuries or damage in the event of any loss or injury and that [Penn Foundation] releases and waives all right of recovery against [SimplexGrinnell] arising by way of subrogation….15 22. Waiver of Subrogation. [Penn Foundation] does hereby for itself and all other parties claim under it release and discharge [SimplexGrinnell] from and against all hazards covered by [Penn Foundation’s] insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against [SimplexGrinnell].16 Penn Foundation further agreed to file any lawsuit against SimplexGrinnell within one year of the accrual of the cause of action: One-Year Limitation On Actions; Choice of Law. It is agreed that no suit, or cause of action or other proceeding shall be brought against either party more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the 13 Facts, ¶11, citing JA Ex. H, Service Solution Contract (“Contract”), JCFP_JA_0083-101. 14 Facts, ¶12, citing JA Ex. H, Contract, p. 14, JCFP_JA_0097. 15 Facts, ¶13, citing JA Ex. H, Contract, p. 15, ¶ 5, JCFP_JA_0098. 16 Facts, ¶13, citing JA Ex. H, Contract, p. 18, ¶ 22, JCFP_JA_0101. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 5 of 13 6 8819947 v1 claim arises or whether based on tort, contract, or any other legal theory.17 III. Legal Standard Summary judgment is proper “if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”18 The initial burden is on the moving party to inform the Court of the basis of its summary judgment motion and identify portions of the record that show an absence of any genuine issue of material fact.19 Upon such a showing, the nonmoving party can no longer rest on the pleadings, but must then go beyond the pleadings and present “specific facts showing that there is a genuine issue for trial.”20 If the Court, in viewing all reasonable inferences in favor of the nonmoving party, determines that there is no genuine issue of material fact summary judgment must be granted.21 IV. Argument NAEIC states it is a “subrogee” of Penn Foundation.22 As subrogee, NAEIC acquires no greater rights than those of Penn Foundation and is subject to the same defenses.23 17 Facts, ¶14, citing JA Ex. H, Contract, p. 18, ¶ 28, JCFP_JA_0101. 18 Fed. R. Civ. P. 56(c). 19 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 20 Fed. R. Civ. P. 56(e). 21 See Celotex, 477 U.S. at 322. 22 See Compl., generally, JCFP_JA_0001-11. 23 See, e.g., Pennsylvania Mfrs. Assoc. Ins. Co. v. Wolfe, 626 A.2d 522, 525 (Pa. 1993) (“The rights to which the subrogee succeeds are the same as, but no greater than, those of the person for whom he is substituted [and] the rights, claims, and securities to which he succeeds are taken . . . subject to any defenses that might have been urged against the latter.”) (citing 73 Am. Jur. 2d, Subrogation § 106, pp. 665-6); Universal Underwriters Ins. Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 693-94 (Pa. Super. Ct. 2007) (“[I]t is clear that, under Pennsylvania law, subrogation is a contingent and derivative right, and a subrogee stands in the shoes of the subrogor and ‘can only recover damages when his subrogor has a legally cognizable cause of action against a third party.’”) (quoting Kiker v. Pennsylvania Fin. Responsibility Assigned Claims Plan, 742 A.2d 1082, 1086 (Pa. Super. 1999)). Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 6 of 13 7 8819947 v1 Here, the Contract provides two dispositive defenses to NAEIC’s action. Further, the gist of the action doctrine precludes NAEIC from recasting this ordinary breach of contract claim as a tort claim. It follows that, because Plaintiff’s action is precluded against SimplexGrinnell, and SimplexGrinnell can have no liability to Plaintiff (in tort or otherwise), Third Party Plaintiff Victory’s action for contribution fails, as well as the general cross-claims for indemnity and contribution asserted by Penn Builders and Anchor. A. The Contract precludes any recovery from SimplexGrinnell on behalf of NAEIC as Subrogee of Penn Foundation, Inc. 1. The Contract’s wavier of subrogation provision bars Plaintiff’s suit against SimplexGrinnell. Penn Foundation waived NAEIC’s right to subrogation.24 Pennsylvania courts generally uphold and enforce waivers of subrogation.25 Penn Foundation agreed SimplexGrinnell was not its insurer.26 Penn Foundation upheld its end of the bargain when it obtained insurance from NAEIC.27 NAEIC now attempts to violate Penn Foundation’s contractual promise to SimplexGrinnell by bringing a subrogation action against it. Because the subrogation clause is valid and enforceable under Pennsylvania law, the Court should enforce this waiver and grant 24 See Contract, p. 18, ¶ 22, JCFP_JA_0101. 25 See, e.g., Church Mut. Ins. Co. v. Palmer Constr. Co., Inc., 153 F. App’x 805, 808 (3d Cir. 2005) (upholding waiver of subrogation regardless of whether insurer was a party to the contract that included the waiver) (applying Pennsylvania law); A. Richard Kacin, Inc., 916 A.2d at 694 (“[W]e hold that a waiver of subrogation provision . . . is enforceable irrespective of whether the insurer seeking to avoid its enforcement was a party to the contract of which the provision is a part, or whether the insurer had notice of, or consented to, the provision.”). 26 See Contract, p. 18, ¶ 22 (“[Penn Foundation] does hereby for itself and all other parties claiming under it release and discharge [SimplexGrinnell] from and against all hazards covered by [Penn Foundation’s] insurance, it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation against [SimplexGrinnell].”), JCFP_JA_0101. 27 See id. at p. 15, ¶ 5 (“It is understood and agreed by [Penn Foundation] that [SimplexGrinnell] is not an insurer and that insurance coverage, if any, shall be obtained by [Penn Foundation] . . . .”), JCFP_JA_0098. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 7 of 13 8 8819947 v1 summary judgment in favor of SimplexGrinnell on all of NAEIC’s claims. 2. Plaintiff’s suit is untimely. Penn Foundation and SimplexGrinnell further agreed “that no suit, or cause of action or other proceeding shall be brought against either party more than one (1) year after the accrual of the cause of action or one (1) year after the claim arises, whichever is shorter, whether known or unknown when the claim arises or whether based on tort, Agreement, or any other legal theory.”28 Pennsylvania law permits parties to contractually agree to a limitations period that is shorter than the statutory limitations period so long as it is not manifestly unreasonable.29 A one-year time limit, like that imposed here, is not manifestly unreasonable and, thus, is enforceable.30 The loss occurred on January 5, 2016. NAEIC filed its 14(a)(3) Complaint against SimplexGrinnell on August 4, 2017-almost 19 months after the date of the alleged incident. NAEIC filed its original Complaint more than one year after the incident as well.31 Because NAEIC failed to abide by its subrogor’s contractual promise to sue within one year of the loss, the Court should grant summary judgment in favor of SimplexGrinnell. B. The gist of the action doctrine precludes NAEIC from recasting this ordinary breach of contract claim into a tort claim. Finally, NAEIC, by reference to Victory’s Third Party Complaint, attempts to recast a claim for breach of contract into a negligence claim against SimplexGrinnell.32 This is barred by Pennsylvania’s gist of the action doctrine. 28 See id. at p. 18, ¶ 28, JCFP_JA_0101. 29 42 Pa. C.S.A. § 5501(a). 30 See Gowton v. State Farm Fire & Cas. Co., No. CV 15-1164, 2016 WL 3539138, at *2 (W.D. Pa. June 29, 2016) (granting motion to dismiss for failure to bring lawsuit within the one- year period provided by the parties’ limitation-on-action provision); Lardas v. Underwriters Ins. Co., 231 A.2d 740, 741 (Pa. 1967) (“That [a one year suit limitations] clause is valid and enforceable has long been recognized.”). 31 See Compl., generally, JCFP_JA_0001-11. 32 See Plaintiff’s 14(a)(3) Compl., ¶ 4, JCFP_JA_0026. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 8 of 13 9 8819947 v1 The gist of the action doctrine precludes parties from recasting ordinary breach of contract claims into tort claims.33 “Under the gist of the action doctrine, a tort claim, which is based on a party’s actions while carrying out a contractual agreement, ‘is barred when the gist or gravamen of the cause of action . . . although sounding in tort, is, in actuality, a claim against the party for breach of its contractual obligations.’”34 To determine if a claim is barred by the gist of the action doctrine, the Supreme Court of Pennsylvania recently set forth the following test: If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract-i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract-then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant’s violation of a broader social duty owed to all individuals, which is imposed by the law of torts, and hence, exists regardless of the contract, then it must be regarded as a tort.35 SimplexGrinnell’s duties to Penn Foundation were set forth on page 9 of the Contract and were not imposed as a matter of social policy, as they would be in the tort context. Pennsylvania law does not recognize a common-law or statutory duty to inspect a fire sprinkler system. Any duty SimplexGrinnell owed to Penn Foundation necessarily arose under the Contract and NAEIC cannot recast these contractual obligations as duties arising under tort law.36 Accordingly, the facts as pled in NAEIC’s Rule 14(a)(3) Complaint-by way of Victory’s Third Party Complaint-do 33 See eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002); Atchison Casting Corp. v. Deloitte & Touche, LLP, No. 003193JULY.TERM2002, CONTROL 092939, CONTROL 101332, 2003 WL 1847665, at *2 (Pa. Com. Pl. Mar. 14, 2003). 34 Takeda Pharm. USA, Inc. v. Spireas, No. 17-0452, 2017 WL 4401988, at *14 (E.D. Pa. Oct. 3, 2017) (quoting Downs v. Andrews, 639 F. App’x 816, 819 (3d Cir. 2016)). 35 Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014) (internal citations omitted). 36 See, e.g., Harris v. Saint Joseph’s University, No. 13-3937, 2014 WL 1910242, at *6 (E.D. Pa. 2014) (finding that relationship between student and college was a contractual one, and that plaintiff failed to point to any case law indicating that a private university owes specific duties to its students apart from the terms of its handbook, which is not a general duty of care, and thus its negligence action was barred by the gist of the action doctrine); A/Z Corp. v. Lowe’s Home Center, LLC, No. 1:15-cv-533, 2016 WL 1271356, at *4 (M.D. Pa. Mar. 31, 2016) (dismissing fraud claim under gist of the action doctrine where the facts pleaded stated a claim for breach of a contractual obligation, not a duty arising under tort law). Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 9 of 13 10 8819947 v1 nothing more than state a claim for a breach of a contractual obligation and are barred under the gist of the action doctrine. C. SimplexGrinnell is not liable to the underlying Plaintiff in tort, thereby precluding Victory’s third party contribution claim. In Pennsylvania, a claim for contribution is based on common liability to plaintiff.37 If there is no liability to the underlying plaintiff, there can be no claim for contribution. Pennsylvania law does not recognize a right to contribution in a breach of contract case.38 Specifically, under Pennsylvania law, “contribution is only available among joint tortfeasors.”39 Joint tortfeasors are defined as, “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.”40 Victory’s contribution claim is legally deficient because Victory’s claims against SimplexGrinnell are necessarily based on allegations that SimplexGrinnell was negligent in failing to perform its inspection duties for the fire sprinkler system at the subject property in accordance with its Contract with Penn Foundation. This is, at best, a claim that SimplexGrinnell breached its contract with Penn Foundation. As discussed, the gist of the action doctrine precludes such contractual claims from being recast as negligence claims.41 Because SimplexGrinnell’s sole duty (and thus, sole potential liability) to Plaintiff is in contract and not tort, it cannot be joint tortfeasor with Victory and therefore Victory’s contribution claim fails as a matter of law. The Court should therefore enter judgment in favor of SimplexGrinnell on Victory’s Third Party Complaint. 37 Brown v. Dickey, 155 A.2d 836, 838 (Pa. 1959). 38 EQT Prod. Co. v. Terra Servs., LLC, 179 F. Supp. 3d 486 493 (W.D. Pa. 2016); see also, Kemper National P & C Co. v. Smith, 615 A.2d 372, 380 (1992) (“Pennsylvania only authorizes contribution among joint tortfeasors.”) 39 EQT Prod. Co., 179 F. Supp. 3d at, 493 (W.D. Pa. 2016) (citing the Pennsylvania Uniform Contribution Among Tortfeasors Act, 42 Pa. C.S. § 8324(a)). 40 Id. (citing 42 Pa. C.S.A. § 8322) (emphasis added). 41 See Section B, supra. Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 10 of 13 11 8819947 v1 D. Because SimplexGrinnell has no tort liability to the underlying Plaintiff and no relationship with Penn Builders or Anchor, Penn Builders’ and Anchor’s claims fail. For the same reasons stated above, Penn Builders’ and Anchor’s contribution claims fail as to SimplexGrinnell.42 Furthermore, there is no special relationship between Penn Builders and SimplexGrinnell, or Anchor Fire and SimplexGrinnell, to support an indemnification claim. Indemnification serves as a method for fault shifting to a third party, where the party legally obligated to pay damages caused by another is without fault, but for its legal status.43 There is no contract or legal relationship between Penn Builders and SimplexGrinnell or between Anchor Fire and SimplexGrinnell to support an indemnity claim, nor is any such relationship pled. The cross- claims for indemnity are therefore deficient and fail as a matter of law. The Court should therefore enter summary judgment on Penn Builder’s and Anchor’s cross-claims against SimplexGrinnell for contribution and indemnity. V. Conclusion For the reasons set forth above, SimplexGrinnell LP, n/k/a Johnson Controls Fire Protection, LP, prays that the Court grant its Motion for Summary Judgment and enter judgment in its favor as to the claims against it in North American Elite Insurance Company’s 14(a)(3) Complaint (Doc. 14), Victory Fire Protection, Inc.’s Third Party Complaint (Doc. 13), Penn Builders, Inc.’s Cross Claims (Doc. 22, 23), and Anchor Fire Protection’s Cross Claims (Doc. 26, 56). 42 See Section C, supra. 43 See, e.g., Builders Supply Co. v. McCabe, 77 A.2d 368, 371 (Pa. 1951) (“there is a right to indemnity where a defendant is held vicariously liable based upon “fault that is imputed or constructive only, based on some legal relationship between the parties. . .”); Sirianni v. Nugent Bros., Inc., 506 A.2d 868, 871 (Pa. 1986) (indemnification lies “when a defendant who has been found liable to a plaintiff solely by operation of law, rather than by active fault, seeks to recover for his loss from a defendant who was actually responsible for the accident which occasioned the loss”). Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 11 of 13 12 8819947 v1 Respectfully submitted, SHOOK, HARDY & BACON LLP Dated: July 6, 2018 _/s/ Nicolai A. Schurko Nicolai A. Schurko, PA Bar No. 309548 Two Commerce Square 2001 Market Street, Suite 3000 Philadelphia, PA 19103 T: 215.278.2555 | F: 215.278.2594 E: nschurko@shb.com ATTORNEYS FOR DEFENDANT/THIRD PARTY DEFENDANT/FOURTH PARTY DEFENDANT/CROSS DEFENDANT/CROSS CLAIMANT SIMPLEXGRINNELL LP N/K/A JOHNSON CONTROLS FIRE PROTECTION LP Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 12 of 13 13 8819947 v1 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of July, 2018, I electronically filed the foregoing with the Clerk of the United States District Court for the Eastern District of Pennsylvania using the CM/ECF system, which sent notification of such filing to the following: Jeffrey C. Sotland (via email to jsotland@defensecounsel.com) MINTZER, SAROWITZ, ZERIA, LEDVA & MEYERS, LLP 1500 Market Street, Suite 4100 Philadelphia, PA 19102 ATTORNEYS FOR THIRD PARTY DEFENDANT/ FOURTH-PARTY DEFENDANT/CROSS DEFENDANT ANCHOR FIRE PROTECTION COMPANY Philip D. Priore (via email to ppriore@mccormickpriore.com) William H. Resch, Jr. (via email to hresch@mccormickpriore.com) MCCORMICK & PRIORE, PC 1600 John F. Kennedy Boulevard 4 Penn Center, Suite 800 Philadelphia, PA 19103 ATTORNEYS FOR THIRD PARTY DEFENDANT/FOURTH-PARTY DEFENDANT/ CROSS DEFENDANT/CROSS CLAIMANT PENN BUILDERS, INC. Daniel C. Theveny (via email to dtheveny@cozen.com) COZEN O’CONNOR, P.C. One Liberty Place 1650 Market Street, Suite 2800 Philadelphia, PA 19103 ATTORNEYS FOR PLAINTIFF/FOURTH-PARTY PLAINTIFF NORTH AMERICAN ELITE INSURANCE COMPANY Bryan P. Werley (via email to bpwerley@zarwin.com) Franklin C. Love (via email to fclove@zarwin.com) ZARWIN, BAUM, DEVITO, KAPLAN, SCHAER & TODDY, PC 1818 Market Street, 13th Floor Philadelphia, PA 19103 ATTORNEYS FOR DEFENDANT/THIRD PARTY PLAINTIFF/CROSS DEFENDANT VICTORY FIRE PROTECTION, INC. /s/ Nicolai A, Schurko ATTORNEYS FOR DEFENDANT/THIRD PARTY DEFENDANT/FOURTH PARTY DEFENDANT/CROSS DEFENDANT/CROSS CLAIMANT SIMPLEXGRINNELL LP N/K/A JOHNSON CONTROLS FIRE PROTECTION LP Case 2:17-cv-03554-WB Document 65 Filed 07/06/18 Page 13 of 13