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SELECTED RISKS INS. CO. v. BRUNO

December 13, 1982

SELECTED RISKS INSURANCE COMPANY, Plaintiff,
v.
Anthony V. BRUNO and Lucy C. Bruno, his wife, and Anthony Bruno, Jr., Defendants



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 Plaintiff Selected Risks Insurance Company (Selected Risks) instituted this lawsuit on August 25, 1981 seeking a declaratory judgment, under 28 U.S.C. § 2201 et seq. and Rule 57 of the Federal Rules of Civil Procedure, that it is not obligated to afford either a defense or coverage to the Defendants in a pending state court action. Jurisdiction of the Court is founded upon diversity of citizenship between the parties, 28 U.S.C. § 1332(a). *fn1" Presently pending for the Court's consideration is a motion for summary judgment filed by the Plaintiff Selected Risks. For the reasons set forth below, the motion will be denied and summary judgment will be entered in favor of the Defendants.

 I. FACTS

 A review of the materials submitted herein reveals the following facts to be undisputed. *fn2" Selected Risks issued a policy of homeowners insurance, effective June 28, 1979 to June 29, 1979, to Defendants Anthony V. Bruno and Lucy C. Bruno, his wife. It provided bodily injury liability coverage in the amount of fifty-thousand dollars ($50,000) *fn3" and medical payment coverage in the amount of one-thousand dollars ($1,000). Anthony Bruno, Jr., the son of Defendants Anthony and Lucy Bruno, was not a named insured in the policy but was an insured thereunder since at all relevant times he was a resident of his parents' household. *fn4" However, he was not involved whatsoever in the actual purchase of the insurance policy.

 On June 20, 1979, Anthony Bruno, Jr. physically struck Joseph Whah who, as a result of the injuries sustained in this altercation, died on November 5, 1979. As a consequence of the events which occurred on June 20, 1979, Anthony Bruno, Jr. was convicted of the crime of simple assault in the Court of Common Pleas of Lackawanna County. *fn5" Thereafter, a civil suit was filed in the Lackawanna County Court by Elizabeth Cotter, the executrix of the estate of Joseph Whah, and others, against Anthony Bruno, Jr. and others, seeking monetary damages for the death of Joseph Whah. *fn6" The defense of the state court civil action was tendered to Selected Risks and the carrier entered its appearance on behalf of Anthony Bruno, Jr. after reserving its right to deny coverage under the policy.

 As noted above, on August 25, 1981, Selected Risks filed the instant declaratory judgment action seeking, inter alia, a determination that it is not obligated to provide a defense in the state court proceedings. Specifically, in moving for summary judgment, Plaintiff relies upon the following exclusion in the Defendants' homeowners policy:

 
"1. Coverage E -- Personal Liability and Coverage F -- Medical Payments to others do not apply to bodily injury or property damage:
 
a. which is expected or intended by the insured. . . ." (emphasis in policy).

 A supporting and reply brief was filed by the Plaintiff on November 1 and November 29, 1982, respectively, and the Defendants filed their brief in opposition to the Plaintiff's summary judgment motion, accompanied by an affidavit, on November 15, 1982. Thus, the matter is currently ripe for disposition by the Court.

 II. DISCUSSION

 In support of its motion for summary judgment, Selected Risks contends that the deposition testimony of Anthony Bruno, Jr. *fn7" and his prior state court criminal conviction for simple assault establish, as a matter of law, that Anthony Bruno, Jr. "expected and intended" to cause bodily injury to Joseph Whah. Consequently, it is argued that the aforementioned policy exclusion is applicable and, therefore, Selected Risks may with impunity deny a defense and coverage to the Defendants in the pending state court civil suit.

 Defendants concede that the criminal assault conviction "precludes Anthony Bruno, Jr., from controverting that when he struck Joseph Whah, he expected or intended bodily injury to be suffered by Whah." Defendants' Brief (Doc. # 14) at 3. They maintain, however, that the principles espoused in the Pennsylvania Superior Court's decision in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974) prevent Selected Risks from asserting the previously cited exclusion as a ground for refusing a defense or coverage under the policy.

 In Hionis, the Court held that "even where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him." 230 Pa. Super. at 516-17, 327 A.2d 363. *fn8" The Hionis rationale was recently reaffirmed on two occasions by the Pennsylvania Superior Court in Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., 285 Pa.Super. 13, 426 A.2d 680 (1981) and Klischer v. ...


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