Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 1 of 41
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`2:19-cv-00904-RJC
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`Judge Robert J. Colville
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`GIANT EAGLE, INC. and HBC SERVICE
`COMPANY,
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`vs.
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`Plaintiffs,
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`AMERICAN GUARANTEE AND
`LIABILITY INSURANCE COMPANY and
`XL SPECIALTY INSURANCE COMPANY,
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`Defendants.
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`____________________________________
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`AMERICAN GUARANTEE AND
`LIABILITY INSURANCE COMPANY,
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`Third-Party Plaintiff,
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`OLD REPUBLIC INSURANCE COMPANY,
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`vs.
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`Third-Party Defendant.
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`____________________________________
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`XL SPECIALTY INSURANCE
`COMPANY,
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`OLD REPUBLIC INSURANCE
`COMPANY,
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`Third-Party Plaintiff,
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`vs.
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`Third-Party Defendant.
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`1
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 2 of 41
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`Robert J. Colville, United States District Judge
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`OPINION
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`Before the Court is the Motion for Partial Summary Judgment on the Duty to Defend (ECF
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`No. 75) filed by Plaintiffs Giant Eagle, Inc. and HBC Service Company (collectively, “Giant
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`Eagle”). In this declaratory judgment action, Giant Eagle seeks a declaration that Defendants
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`American Guarantee and Liability Insurance Company (“AGLIC”) and XL Specialty Insurance
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`Company (“XL”) owe Giant Eagle a duty to defend and coverage with respect to multiple lawsuits
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`pending against Giant Eagle in the action captioned In re Nat’l Prescription Opiate Litig., No.
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`2804 (N. D. Ohio) (“Opioid MDL”). Compl. ¶¶ 1-2, ECF No. 46. The Opioid MDL plaintiffs
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`seek to recover damages from Giant Eagle for harm allegedly caused by Giant Eagle’s distribution
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`and sale of prescription opioids. Id. Giant Eagle avers that, to date, AGLIC has “denied coverage
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`and refused outright to defend or indemnify Giant Eagle” in the underlying lawsuits, and that “XL,
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`after simply ignoring Giant Eagle’s multiple requests for a defense for six months, issued a
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`reservation of rights without assuming a defense.” Id. at ¶ 2.
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`In its Motion, Giant Eagle seeks partial summary judgment declaring that AGLIC and XL
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`have a duty to defend Giant Eagle in four cases (the “underlying lawsuits”)1 that have been
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`transferred to the Opioid MDL. Br. in Supp. 1, ECF No. 76. AGLIC and XL collectively oppose
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`Giant Eagle’s Motion for Partial Summary Judgment, and Third-Party Defendant Old Republic
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`Insurance Company (“Old Republic”), against whom AGLIC and XL have each filed a Third-
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`Party Complaint (ECF Nos. 41 and 43), also opposes Giant Eagle’s Motion. This Court has
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`1 These cases are: County of Cuyahoga, Ohio v. Purdue Pharma L.P., et al., Case No 17-OP-45004 (N.D. Ohio);
`County of Summit, Ohio v. Purdue Pharma L.P., et al., Case No 18-OP-45090 (N.D. Ohio); Artz, et al. v. Endo
`Health Solutions, Inc., et al., Case No 19-op-45459 (N.D. Ohio); and Frost, et. al. v. Endo Health Solutions, Inc., et
`al., Case No 18-op-46327 (N.D. Ohio). See Proposed Order 2-3, ECF No. 75-1.
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`2
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 3 of 41
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`jurisdiction in this matter pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1367. Giant Eagle’s
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`Motion has been fully briefed, and is ripe for disposition.
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`I.
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`Factual Background & Procedural History
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`Unless otherwise noted, the following facts are not in dispute:2
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`Giant Eagle was covered by commercial general liability policies issued by Old Republic
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`which ran from April 1, 2015 to April 1, 2016 (the “2016 Old Republic Policy”) and from April
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`1, 2016 to April 1, 2017 (the “2017 Old Republic Policy”) (collectively, the “Old Republic
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`Policies”). Resp. to SOF ¶ 1, ECF No. 88. Each of the Old Republic Policies provides a $1 million
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`per occurrence limit of liability, subject to a $1 million self-insured retention (“SIR”) obligation
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`and a $1 million deductible.3 Id. at ¶ 3. The Old Republic Policies define “self-insured retention”
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`as “the amount the insured legally must pay with respect to claims or ‘suits’ to which this insurance
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`applies.” Resp. to Additional SOF ¶ 10, ECF No. 94. The Old Republic Policies’ SIR
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`endorsements provide:
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`A. Our obligations under the Coverages of the policy to pay damages on your behalf
`apply in excess of the “self insured retention”. The amount of the “self insured
`retention” is shown in the Schedule.
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`B. The “self insured retention” may be satisfied by any combination of the
`following:
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`2 In reciting the facts of this case, the Court will primarily cite to AGLIC and XL’s Joint Response (ECF No. 88) to
`Giant Eagle’s Concise Statement of Material Facts and Giant Eagle’s Response (ECF No. 94) to AGLIC and XL’s
`Concise Statement of Additional Material Facts, each of which quotes and responds to Giant Eagle’s Concise
`Statement of Material Facts (ECF No. 77) and Supplemental Concise Statement (ECF No. 86) and AGLIC and XL’s
`Concise Statement of Additional Material Facts, respectively. The Court will cite to AGLIC and XL’s Joint Response
`as “Resp. to SOF ¶ _____, ECF No. 88,” and will cite to Giant Eagle’s Response as “Resp. to Additional SOF ¶ _____,
`ECF No. 94.” Giant Eagle has attached an Appendix of Exhibits to its Concise Statement of Material Facts. The
`Court will cite to any of the Exhibits set forth in that Appendix in the following manner: “App. Ex. ____, ECF No.
`77.” The Court will cite to any Exhibits attached to Giant Eagle’s Supplemental Concise Statement of Material Facts
`as: “Supplemental App. Ex. ____, ECF No. 86.” The Court will cite to any Exhibit attached to AGLIC and XL’s
`Response to Giant Eagle’s Concise Statements as follows: “Defs.’ App. Ex. _____, ECF No. 88.”
`3 The deductible “[e]quals
`the Limits of Insurance/Liability as provided under
`the policy plus all
`ALAE/Supplementary Payments.” App. Ex. 4 at 16, ECF No. 77. There is seemingly no dispute that the amount
`payable under the deductible obligation at issue herein is $1 million. See Br. in Supp. 13, ECF No. 76; Defs.’ Br. in
`Opp’n 15, ECF No. 87.
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`3
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 4 of 41
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`1. Damages and medical expenses payable under
`Coverage(s).
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`2. Other amounts payable under the policy.
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`the applicable
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`C. Amounts payable under Supplementary Payments, which include but are not
`limited to allocated loss adjustment expense(s) (ALAE) do not satisfy the “self
`insured retention”.
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`If Supplementary Payments and/or allocated loss adjustment expense(s) are not
`described in the policy, Supplementary Payments and/or allocated loss adjustment
`expense(s) are costs associated with the investigation or settlement of any claim or
`“suit” against an insured and include but are not limited to defense costs, attorneys’
`fees, premiums for appeal and bail bonds, prejudgment and post judgment interest,
`expenses incurred by the insurer, first aid expenses, and/or reasonable travel
`expenses incurred by the insured at our request when assisting in the investigation
`or settlement of any claim or “suit”.
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`D. In addition to the Scheduled “self insured retention” you are responsible for
`payment of a proportion of Supplementary Payments and/or allocated loss
`adjustment expenses. Your proportion is equal to the ratio that the “self insured
`retention” amount bears to the damages and medical expenses paid. If there is no
`loss payment, your proportion of Supplementary Payments and/or allocated loss
`adjustment expenses is 100%.
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`E. The “self insured retention” will apply on the same basis as the Limits of
`Insurance (Limits of Liability) applicable to the claim or “suit” regardless of the
`number of persons or organizations who sustain damages. The “self insured
`retention” is an each and every “self insured retention” and does not have an
`aggregate.
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`F. The “self insured retention” will not reduce the applicable Limits of Insurance
`(Limits of Liability).
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`G. We do not have a duty to investigate, defend or settle any claim or “suit” for
`which there may be coverage under this insurance within the “self insured
`retention”. Our right and duty to defend or settle any claim or “suit” do apply to
`any claim or “suit” that exceeds the “self insured retention”.
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`You, at your own expense, must investigate, defend or settle all claims or “suits”
`within the “self insured retention”. We retain the right to elect to join in the defense
`of such claims or “suits” and we will pay any expenses we incur in doing so.
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`4
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 5 of 41
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`Old Republic’s Br. in Opp’n 3-4, ECF No. 89 (emphasis omitted) (quoting App. Ex. 3 at 21-22;
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`Ex. 4 at 18-19, ECF No. 77). The Old Republic Policies’ deductible endorsements, in relevant
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`part, provide:
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`A. Our obligations under the Coverages of the policy to pay damages are subject to
`a deductible. The deductible is shown in the Schedule. Our obligations to pay
`damages apply only to the amount of damages in excess of the deductible shown in
`the Schedule.
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`B. The deductible may be satisfied by any combination of the following:
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`the applicable
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`1. Damages and medical expenses payable under
`Coverage(s).
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`2. Other amounts payable under the policy.
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`3. Amounts payable under Supplementary Payments, which include but are
`not limited to allocated loss adjustment expenses (ALAE):
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`. . . .
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`_X_ Amounts payable under Supplementary Payments, which include but
`are not limited to allocated loss adjustment expenses (ALAE) do not satisfy
`the deductible. In addition to the Scheduled deductible you are responsible
`for payment of Supplementary Payments and/or allocated loss adjustment
`expenses.
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`If Supplementary Payments and/or allocated loss adjustment expenses
`(ALAE) are not described in the policy, Supplementary Payments and/or
`allocated
`loss adjustment expenses are costs associated with
`the
`investigation or settlement of any claim or “suit” against an insured and
`include but are not limited to defense costs, attorneys’ fees, premiums for
`appeal and bail bonds, prejudgment and post judgment interest, expenses
`incurred by the insurer, first aid expenses, and/or reasonable travel expenses
`incurred by the insured at our request when assisting in the investigation or
`settlement of any claim or “suit”.
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`C. The deductible will apply on the same basis as the Coverage(s) Limits of
`Insurance/Limit of Liability applicable to the claim or “suit” regardless of the
`number of persons or organizations who sustain damages.
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`D. The deductible amounts:
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`. . . .
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`5
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 6 of 41
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`_X_ Described in paragraph B.1. and B.2. will reduce the applicable Limits of
`Insurance/Limits of Liability.
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`Id. at 5-6 (emphasis omitted) (quoting App. Ex. 3 at 19-20; Ex. 4 at 16-17, ECF No. 77). The Old
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`Republic Policies describe “Supplementary Payments” as follows:
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`1. We will pay, with respect to any claim we investigate or settle, or any “suit”
`against an insured we defend:
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`a. All expenses we incur.
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`b. Up to $250 for cost of bail bonds required because of accidents or traffic
`law violations arising out of the use of any vehicle to which the Bodily
`Injury Liability Coverage applies. We do not have to furnish these bonds.
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`c. The cost of bonds to release attachments, but only for bond amounts
`within the applicable limits of insurance. We do not have to furnish these
`bonds.
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`d. All reasonable expenses incurred by the insured at our request to assist
`us in the investigation or defense of the claim or “suit”, including actual loss
`of earnings up to $250 a day because of time off from work.
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`e. All court costs taxed against the insured in the “suit”. However, these
`payments do not include attorneys’ fees or attorneys’ expenses taxed against
`the insured.
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`f. Prejudgment interest awarded against the insured on that part of the
`judgment we pay. If we make an offer to pay the applicable limit of
`insurance, we will not pay any prejudgment interest based on that period of
`time after the offer.
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`g. All interest on the full amount of any judgment that accrues after entry of
`the judgment and before we gave paid, offered to pay, or deposited in court
`the part of the judgment that is within the applicable limit of insurance.
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`Id. at ¶ 14.4
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`4 Giant Eagle and Old Republic separately entered into a Program Agreement (the “Program Agreement”) that defines
`“Allocated Loss Adjustment Expenses” to include attorneys’ fees. Resp. to SOF ¶ 49, ECF No. 88. The Program
`Agreement provides: “[t]o the extent that any terms or conditions of the aforesaid Policies are inconsistent with any
`of the terms or conditions of this Agreement, the latter are to be given effect and the former will be considered
`superseded by this Agreement.” Id. at ¶ 50.
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`6
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 7 of 41
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`The Old Republic Policies provide that Old Republic “will pay those sums that the insured
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`becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to
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`which this insurance applies.” Resp. to SOF ¶ 8, ECF No. 88. Under the Old Republic Policies,
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`“[d]amages because of ‘bodily injury’ include damages claimed by any person or organization for
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`care, loss of services or death resulting at any time from the ‘bodily injury.’” Id. at ¶ 13. The Old
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`Republic Polies further provide that Old Republic has the right and duty to defend against any suit
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`seeking such damages. Id. at ¶ 9. The Old Republic Policies define “bodily injury” as “bodily
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`injury, sickness or disease sustained by a person, including death resulting from any of these at
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`any time.” Id. at ¶ 10. The Old Republic Policies apply to bodily injury if the bodily injury is
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`caused by an “occurrence” that takes place in the “coverage territory” and occurs during the policy
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`period. Id. at ¶ 11. “Occurrence” is defined by the Old Republic Policies as “an accident, including
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`continuous or repeated exposure to substantially the same general harmful conditions.” Id. at ¶
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`12.
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`AGLIC issued Commercial Umbrella Liability Policy, No. AUC 2856587-17 (the “AGLIC
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`Policy”) to Giant Eagle for the period of April 1, 2015 to April 1, 2016. Resp. to SOF ¶ 16, ECF
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`No. 88. The AGLIC Policy identifies the 2016 Old Republic Policy as “underlying insurance,”
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`and provides, under “Coverage A,”5 that Old Republic will pay “those damages covered by this
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`insurance in excess of the total applicable limits of underlying insurance.” Id. at ¶¶ 17-18.
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`AGLIC’s duty to defend arises under the AGLIC Policy’s Coverage A “when the applicable limit
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`of underlying insurance . . . has been exhausted by payment of loss for which coverage is afforded
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`under [the AGLIC Policy] . . . .” Id. at ¶ 19. The AGLIC Policy defines “loss” as “those sums
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`actually paid that [Giant Eagle] is legally obligated to pay as damages for the settlement or
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`5 Coverage A provides for the “Excess Follow Form Liability Insurance” provided by AGLIC that is relevant herein.
`See App. Ex. 1 at 13, ECF No. 77.
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`7
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 8 of 41
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`satisfaction of a claim[,]” and further provides that: (1) “[l]oss also includes defense expenses and
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`supplementary payments if underlying insurance includes defense expenses and supplementary
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`payments in the Limits of Insurance;” and (2) “[l]oss does not include defense expenses and
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`supplementary payments if underlying insurance does not include defense expenses and
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`supplementary payments in the Limits of Insurance.” Id. at ¶ 19; Resp. to Additional SOF ¶ 47,
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`ECF No. 94.
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`XL issued Commercial Excess Follow Form and Umbrella Liability Policy No.
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`US00074903LI16A (the “XL Policy”) to Giant Eagle for the period of April 1, 2016 to April 1,
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`2017. Resp. to SOF ¶ 20, ECF No. 88. The XL Policy identifies the 2017 Old Republic Policy as
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`scheduled underlying insurance. Id. at ¶ 21. Under Insuring Agreement A6 in the XL Policy, XL
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`is required to pay on behalf of Giant Eagle:
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`[T]hose amounts [Giant Eagle] becomes legally obligated to pay as damages in
`excess of the “scheduled underlying insurance” as a result of a “claim” covered by
`the “scheduled underlying insurance” and this policy, but only if the actual payment
`of “loss” to which this policy applies, by you or insurers providing “scheduled
`underlying insurance” exceeds the limits of the “scheduled underlying insurance”
`and any applicable and collectible “other insurance.”
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`Resp. to Additional SOF ¶ 57, ECF No. 94 (quoting App. Ex. 3 at 47, ECF No. 77). With respect
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`to XL’s duty to defend Giant Eagle, the XL Policy provides:
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`[XL] will have the right and duty to defend any “suit” covered by Insuring
`Agreement A, but only if the actual payment of “loss” to which this policy applies,
`by you or insurers providing “scheduled underlying insurance” exceeds the limits
`of the “scheduled underlying insurance” and any applicable and collectible “other
`insurance.”
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`Id. at ¶ 59. The XL Policy defines loss as: “those sums you become legally obligated to pay as
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`settlements or judgments in connection with a covered ‘claim.’ ‘Loss’ shall include expenses
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`6 Insuring Agreement A provides for the “Excess Follow Form Liability” insurance that is relevant herein. See App.
`Ex. 2 at 19, ECF No. 77
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`8
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 9 of 41
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`incurred to investigate a ‘claim’ or defend a ‘suit’ if so provided in the ‘scheduled underlying
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`insurance.’” Id. at ¶ 60. The XL Policy’s Schedule of Underlying Limits identifies the 2017 Old
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`Republic Policy and its limits and states that “[d]efense expenses are in addition to the limits.”
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`Resp. to Additional SOF ¶ 62, ECF No. 94.
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`Giant Eagle has been named as a defendant in multiple lawsuits, including, inter alia, the
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`underlying lawsuits, by plaintiffs who seek to recover damages allegedly caused by Giant Eagle’s
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`distribution and dispensing of prescription opioids. Resp. to SOF ¶ 24, ECF No. 88; Resp. to
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`Additional SOF ¶ 82, ECF No. 94. The Artz and Frost actions (collectively, the “NAS lawsuits”)
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`assert claims by legal guardians, on behalf of putative classes of legal guardians, of children
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`diagnosed at birth with opioid dependence, known as Neonatal Abstinence Syndrome (“NAS”).
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`Resp. to SOF ¶ 30, ECF No. 88. The complaints in the NAS lawsuits allege that NAS causes the
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`plaintiff guardians’ children to suffer health conditions and increased risk of certain health
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`conditions as a result of their in utero exposure to opioids. Id. at ¶¶ 32-35. The plaintiffs in the
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`NAS lawsuits seek damages for ongoing care allegedly necessitated by, inter alia, Giant Eagle’s
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`alleged wrongful conduct in distributing and dispensing opioids. Id. at ¶¶ 33-35.
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`The Summit and Cuyahoga actions (collectively, the “County lawsuits”) were filed on
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`behalf of Ohio counties seeking damages allegedly caused by Giant Eagle’s alleged wrongful
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`conduct in distributing and dispensing prescription opioids. Id. at ¶ 36. The plaintiffs in the
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`County lawsuits allege that the opioid use resulting from Giant Eagle’s conduct has led directly to
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`“a dramatic increase in opioid abuse, addiction, overdose, and death throughout the United States,”
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`including in Ohio. Id. at ¶ 37. The complaints in the County lawsuits also aver that the plaintiffs
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`in those actions do “not seek damages for death, physical injury to person, emotional distress, or
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`physical damages to property, as defined under the Ohio Product Liability Act.” Id. at ¶ 37; Resp.
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 10 of 41
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`to Additional SOF ¶ 82, ECF No. 99. The complaints in the County lawsuits assert that the
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`plaintiffs in those actions have suffered ongoing harm, and seek damages, inter alia, for emergency
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`medical treatment, detoxification and addiction treatment, and recovery services related to opioid
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`use of the County plaintiffs’ citizens. Resp. to SOF ¶ 39, ECF No. 88. Each of the underlying
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`lawsuits asserts, to some degree, that Giant Eagle “failed to design and operate systems to identify
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`suspicious orders of prescription opioids, maintain effective controls against diversion, and halt
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`suspicious orders when they were identified, thereby contributing to the oversupply of such drugs
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`and fueling an illegal secondary market.” Id. at ¶ 44.
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`Giant Eagle asserts that it has spent at least $5.7 million in defending against the underlying
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`lawsuits. Id. at ¶ 47. AGLIC has not reimbursed Giant Eagle for any of these purported defense
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`costs. Id. at ¶ 48. Old Republic has not paid any defense costs to or on behalf of Giant Eagle with
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`respect to any of the underlying lawsuits, and further has not paid any judgment or settlement to
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`or on behalf of Giant Eagle with respect to any of the underlying lawsuits. Resp. to Additional
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`SOF ¶ 28-29, ECF No. 99.
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`Giant Eagle filed the operative First Amended Complaint (the “Complaint”) (ECF No. 46)
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`on October 22, 2019. AGLIC and XL each filed an Answer and Counterclaim (ECF Nos. 52 and
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`53) on November 5, 2019. Giant Eagle filed Answers (ECF Nos. 64 and 65) to AGLIC’s and XL’s
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`Counterclaims on November 19, 2019. AGLIC and XL filed their Third-Party Complaints on
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`October 1, 2019 and October 7, 2019, respectively, and Old Republic filed Answers to the Third-
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`Party Complaints (ECF Nos. 70 and 71) on December 6, 2019. As explained by the Honorable
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`Arthur J. Schwab, to whom this case was originally assigned, in his January 2, 2020 Memorandum
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`Order (ECF No. 79) granting in part and denying in part AGLIC and XL’s Joint Rule 56(d) Motion:
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`The Third-Party Complaints filed by Defendants [AGLIC] and XL allege that if
`Plaintiffs prevail on their claim and obtain a declaration that a defense and/or
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`10
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 11 of 41
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`indemnification is owed by [AGLIC and XL] with respect to one or more of the
`underlying opioid lawsuits, [AGLIC] and XL seek various declarations concerning
`the interplay between and among Old Republic, Giant Eagle, and [AGLIC] and XL,
`as well as equitable contribution and contractual or equitable subrogation.
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`Mem. Order 2, ECF No. 85.
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`Giant Eagle filed its Motion for Partial Summary Judgment on December 12, 2019, along
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`with a Brief in Support (ECF No. 76) and a Concise Statement of Material Facts (ECF No. 77).
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`Giant Eagle filed a Supplemental Concise Statement of Material Facts (ECF No. 86) on January
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`6, 2020. AGLIC and XL, collectively, filed a Brief in Opposition (ECF No. 87) to Giant Eagle’s
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`Motion on January 10, 2020, along with a Concise Statement of Additional Material Facts (ECF
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`No. 88) and a Joint Response to Giant Eagle’s Concise Statements. Old Republic also filed a
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`Response in Opposition (ECF No. 89) to Giant Eagle’s Motion on January 10, 2020. On January
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`24, 2020, Giant Eagle filed a Response (ECF No. 94) to AGLIC and XL’s Concise Statement of
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`Additional Material Facts, and also filed a Combined Reply (ECF No. 93) to the Responses filed
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`by AGLIC and XL and Old Republic. This matter was reassigned to the undersigned on February
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`4, 2020. Order, ECF No. 101. Giant Eagle filed a Notice of Supplemental Authorities (ECF No.
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`105) on June 26, 2020, and AGLIC and XL filed a Response (ECF No. 106) to that Notice on July
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`1, 2020. Giant Eagle filed a Second (ECF No. 107) and Third (ECF No. 108) Notice of
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`Supplemental Authority on September 18, 2020 and September 23, 2020, and AGLIC and XL
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`filed Responses (ECF Nos. 109 and 110) thereto on September 23, 2020 and October 5, 2020,
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`respectively. On October 15, 2020, Giant Eagle filed a Reply to AGLIC and XL’s Response to
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`Giant Eagle’s Third Notice of Supplemental Authority.
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`II.
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`Legal Standard
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`Summary judgment may be granted where the moving party shows that there is no genuine
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`dispute about any material fact, and that judgment as a matter of law is warranted. Fed. R. Civ. P.
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 12 of 41
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`56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment
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`against a party who fails to make a showing sufficient to establish an element essential to his or
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`her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett,
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`477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts in the light
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`most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor.
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`Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).
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`In ruling on a motion for summary judgment, the court’s function is not to weigh the
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`evidence, make credibility determinations, or determine the truth of the matter; rather, its function
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`is to determine whether the evidence of record is such that a reasonable jury could return a verdict
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`for the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51
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`(2000) (citing decisions); Anderson v. Liberty Lobby, 477 U.S. 242, 248–19 (1986); Simpson v.
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`Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998).
`
`
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`The mere existence of a factual dispute, however, will not necessarily defeat a motion for
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`summary judgment. Only a dispute over a material fact—that is, a fact that would affect the
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`outcome of the suit under the governing substantive law—will preclude the entry of summary
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`judgment. Liberty Lobby, 477 U.S. at 248.
`
`III. Discussion
`
`In his January 2, 2020 Memorandum Order granting in part and denying in part AGLIC
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`and XL’s Joint Rule 56(d) Motion, Judge Schwab described the scope of Giant Eagle’s Motion for
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`Partial Summary Judgment, as well as the issues presented therein, as follows:
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`This Court is satisfied that, under Pennsylvania law, an insurance carrier’s
`duty to defend differs greatly from its duty to provide coverage, regardless of
`whether that insurer is an excess or primary insurance carrier.
`
`As explained by the United States Court of Appeals for the Third Circuit:
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 13 of 41
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`An insurer’s duty to defend “is a distinct obligation” that is
`“different from and broader than the duty to indemnify.” Sikirica v.
`Nationwide Ins. Co., 416 F.3d 214, 225 (3d Cir. 2005) (citations
`omitted). Because an insurer’s duty to defend its insured in a lawsuit
`is broader than its duty to indemnify, it necessarily follows that it
`will not have a duty to indemnify an insured for a judgment in an
`action for which it was not required to provide defense. Id.
`(citations omitted) [footnote omitted]. Under Pennsylvania law,
`which is applicable on the insurance coverage issue, a court
`ascertaining whether an insurer has a duty to defend its insured
`makes its determination by defining the scope of coverage under the
`insurance policy on which the insured relies and comparing the
`scope of coverage to the allegations of the underlying complaint. Id.
`at 226; see also Gen. Accident Ins. Co. of Am. v. Allen, 547 Pa. 693,
`692 A.2d 1089, 1095 (1997). If the allegations of the underlying
`complaint potentially could support recovery under the policy, there
`will be coverage at least to the extent that the insurer has a duty to
`defend its insured in the case. Sikirica, 416 F.3d at 226 (citing Gen
`Accident Ins. Co. of Am., 692 A.2d at 1095).
`
`
`Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 673 (3d Cir. 2016). In addition,
`the Court of Appeals has also held:
`
`
`To determine whether an obligation to defend exists under the usual
`liability policy, the “court typically looks to the allegations of the
`complaint to decide whether the third party’s action against the
`insured states a claim covered by the policy.” Am. Ins. Grp. v. Risk
`Enter. Mgmt., Ltd., 761 A.2d 826, 829 (Del. 2000). So long as one
`count or claim is covered under the policy, the duty to defend is
`triggered. Any doubt or ambiguity as to the pleadings or the policy
`terms should be resolved in favor of the insured. See Cont’l Cas.
`Co. v. Alexis I. duPont Sch. Dist., 317 A.2d 101, 105 (Del. 1974).
`
`
`Am. Legacy Found., RP v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 623 F.3d
`135, 139–40 (3d Cir. 2010).
`
`
`In the instant case, Plaintiffs’ Motion for Partial Summary Judgment on the
`duty to defend issue (ECF 75), argues that this Court, upon comparing the
`allegations of the instant Complaint with the insurance policies’ language, must
`order Defendants to defend Plaintiffs in the underlying lawsuits in accordance with
`the terms and conditions of those policies. Colloquially, Plaintiffs suggest this
`Court must apply the “eight-corners” test. See Ramara, supra, at 673-74
`(“Importantly, Pennsylvania adheres to the [‘]four corners[’] rule (also known as
`the [‘]eight corners[’] rule), under which an insurer’s potential duty to defend is
`[‘]determined solely by the allegations of the complaint in the [underlying]
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 14 of 41
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`action.[’]” [(quoting Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial
`Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006))]).
`
`Defendants contend that a determination on the duty to defend issue
`utilizing the “eight corners” rule cannot be performed because the insurance at issue
`in the instant case is excess insurance which “follows form” of the primary
`insurance, and thus there are additional questions to be answered prior to any
`determination with respect to the excess carrier’s obligation to defend in the face
`of the factual averments set forth in the instant Complaint. Stated differently,
`Defendants suggest that because their policies are excess policies which overlay
`primary policies (issued by Old Republic) and a self-insured retention policy
`(governed by an agreement between Old Republic and Plaintiff Giant Eagle), those
`policies must first be exhausted (by a covered loss (or losses)) before Defendants’
`excess polic[i]es’ duty to defend can be triggered. Defendants’ Joint Motion to
`Extend Time (ECF 79) argues that because exhaustion is a prerequisite to the duty
`to defend, Plaintiffs will need to prove to this Court that all of the underlying
`policies have been exhausted, before an eight corners analysis can be performed by
`this Court to determine whether Defendants owe a duty to defend. Defendants
`further argue that in light of the amount of extrinsic evidence created by the layering
`of the policies and the need for the Court to first determine whether the underlying
`policies have been exhausted – which Defendants contend must first be obtained
`for the Court to consider before deciding Plaintiffs’ Motion for Partial Judgment –
`there is not sufficient time for Defendant to complete the discovery necessary to
`Respond to Plaintiffs’ Motion for Partial Summary Judgment on January 10, 2020.
`
`The Court both agrees and disagrees with Defendants’ position.
`
`First, the Court finds no matter what type of insurance policy is at issue –
`excess, umbrella, primary – Pennsylvania law and the Federal Courts applying
`Pennsylvania law have consistently and uniformly held that an insurance
`company’s duty to defend its insured is a distinct duty which differs from, and is
`broader than, its duty to indemnify its insured. Thus, this Court will not allow
`Defendants to conflate the policies’ indemnification provisions with the policies’
`defense obligations.
`
`To this end, this Court notes that in Lexington Ins. Co. v. Charter Oak Fire
`Ins. Co., 81 A. 3d 903, 909–10 (Pa. Super. 2013), the Superior Court of the
`Commonwealth of Pennsylvania, specifically discussed an excess insurance
`carrier’s duty to defend the insured. In reaching its conclusion the Superior Court
`stated:
`
`
`No Pennsylvania appellate court has addressed when an exhaustion
`clause triggers an excess insurer’s duty to defend.
`
`
`* * *
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`Case 2:19-cv-00904-RJC Document 112 Filed 11/09/20 Page 15 of 41
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`In our view, the duty to defend is sufficiently different from the duty
`to indemnify that we conclude that Zeig and Koppers are not
`persuasive. Clearly, one difference is the scope of th