Hornak granted Liberty Mutual its request for a declaratory judgment to determine that Penn National Mutual Casualty Insurance Co. "had a duty to defend Liberty Mutual's insured, Cost Company, in an underlying wrongful death action in which a construction worker was killed by a large concrete panel manufactured by Penn National's insured, Pittsburgh Flexicore Co."

Hornak had already denied Penn National's motion for summary judgment and granted one for Liberty Mutual on the "duty to defend issue." The new ruling was on the question of "duty to indemnify." Hornak granted Liberty Mutual's request for "reimbursement from Penn National for the costs Liberty Mutual expended to defend Cost Company" as well as the amount paid to settle the lawsuit out of court, which Hornak said was $850,000.

John Sullivan of Post & Schell in Philadelphia represented Liberty Mutual. "It is our practice not to comment on matters in litigation," Sullivan said Wednesday.

Penn National was defended by Dennis St. J. Mulvihill, Amy Sims and Joshua Guthridge of Robb Leonard Mulvihill in Pittsburgh. They did not have an immediate response to a request for comment. Nor did Penn National's corporate communications office.

It's been 10 years now since the death of Yamil Alexander Gonzalez. He was a laborer on the construction of a senior care home located at the Grandview Building in New Kensington. He was "killed when a Flexicore concrete panel collapsed on top of him," Hornak said.

"Liberty Mutual's insured, Cost, was a subcontractor on the project, who further subcontracted with Flexicore, Penn National's insured," Hornak said. "The present action arose from Penn National's refusal to defend and indemnify Cost in the underlying state court action brought by the survivors of Mr. Gonzalez."

Liberty Mutual hired defense attorneys for Cost, who tendered a claim for indemnification in May of 2011. Penn National didn't respond until March 2014. And that was with a denial. Cost settled the case in 2015 and Liberty Mutual filed the declaratory judgment action against Penn the next year," Hornak said.

"Distilled down, here is what the record reveals happened here. There was a tragic death of a workman whose claims as pleaded would have likely created a sympathetic plaintiff's case at the trial of the Underlying Action. That was where that case was headed until it settled," Hornak said.

"Cost demanded that Penn National defend Cost's interests," Hornak said. "Penn National instead went on 'radio silence,' first ignoring that defense demand altogether, and then declining to defend Cost throughout the mediation process that settled" the Gonzalez family's lawsuit.

"Penn National nonetheless participated in that settlement process on behalf of Flexicore, right alongside of Cost (whose interests were represented by Liberty Mutual, its own insurer, in light of Penn National's cold shoulder)," Hornak said.

"While Penn National was ignoring its duty to defend Cost, it also bypassed the opportunity to advocate for 'no liability' on the part of Flexicore or Cost," Hornak said. The judge noted that the defendants in the Gonzalez lawsuit "faced the risk of both liability and a substantial damages verdict on one or more of the numerous counts asserted" if the case had gone to trial.

"So," Hornak said, "to end its risk, Cost (via Liberty Mutual) fronted the money necessary to settle the death claim (and avoided the risk of a significant verdict at trial for the death of a jobsite worker) with no help from Penn National."