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IMPERIAL CAS. & INDEM. CO. v. HOME INS. CO.

January 8, 1990

IMPERIAL CASUALTY & INDEMNITY COMPANY, Plaintiff,
v.
THE HOME INSURANCE CO. OF MANCHESTER, NEW HAMPSHIRE, et al., Defendants, v. NATIONAL CASUALTY COMPANY, Additional Defendant



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 Plaintiff, Imperial Casualty & Indemnity Company (Imperial), and defendant, The Home Insurance Company of Manchester, New Hampshire (Home), have cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56. *fn1" This is a declaratory judgment action in which Imperial seeks to hold Home liable for the attorney's fees and costs Imperial incurred in defending another action before this court, Parker v. County of York, No. 87-0466 (M.D.Pa.), along with Imperial's contribution to the settlement of that action.

  Imperial had issued a policy of insurance to the County and its Sheriff's Department for "damages because of wrongful acts arising out of Law Enforcement activities. . . ." Home's policy is a comprehensive general liability policy issued to the County of York. Imperial defended the County and one of its employees (Raymond W. Neidinger) in the Parker action pursuant to a reservation of rights. Home declined coverage for several reasons but its defense of this declaratory judgment action is based upon only two of its grounds for doing so, two exclusions in its policy. *fn2" One exclusion, dealing with "Malpractice and Professional Services," provides that there shall be no coverage for "bodily injury or property damage due to the rendering of or failure to render any professional service." The other exclusion, dealing with "Law Enforcement," states that the policy would not apply "to any loss or claim arising out of the law enforcement activities or operations." The Home policy provides no clarifying definitions for these exclusions.

 By way of background on the Parker case, it was brought because of the death by heart attack on May 31, 1985, of Elvin R. Parker, then an inmate at the York County Prison. According to the amended complaint, which we must examine to determine the defendant's duty to defend, see Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir. 1985), Parker was brought to the prison infirmary at about 10:00 p.m. that night suffering from symptoms of a heart attack. The nurse on duty at the time, Mary Ellen Filipovitz, R.N., and Neidinger, a prison guard, were alleged to have acted wantonly, recklessly, and intentionally in failing to provide the decedent with necessary medical treatment. The complaint also apparently alleged that other, unnamed, prison employees failed to provide the decedent with prescribed medication needed for his heart condition in the days prior to the attack and failed to obtain medical treatment for him when he first began to complain of his heart condition. A cause of action under 42 U.S.C. ยง 1983 and pendent state law claims were asserted.

 We will analyze the law enforcement exclusion first. Plaintiff contends that the plain meaning of the phrase "law enforcement" does not include activities dealing with the incarceration or detention of prisoners or others awaiting trial. *fn3" Rather, they involve only conduct occurring prior to that time, such as investigations and arrests. In support, plaintiff refers us to the following definitions of "law enforcement officer."

 
Those whose duty it is to preserve the peace. [cited case omitted]. See also Police officer; sheriff.

 Black's Law Dictionary 796 (5th ed. 1979) (brackets added).

 
A policeman, sheriff, deputy sheriff, constable, or other officer whose duty it is to be vigilant in discovering violations of the criminal laws and ordinances and to arrest offenders.

 Ballentine's Law Dictionary 712 (3d ed. 1969).

 The further reference in the Black's Law Dictionary definition to "police officer" and "sheriff" are in accord with the Ballentine's Law Dictionary definition in limiting a "law enforcement officer" to a person who apprehends and aids in the prosecution of criminals. In the absence of a policy definition, we believe we should rely upon these common definitions in construing the phrase "law enforcement activities or operations" in defendant's policy. Hence, the law enforcement exclusion does not apply to the underlying action since it arose while the decedent was incarcerated in the County prison.

 In reaching this conclusion, we reject defendant's reliance upon Home Indemnity Co. v. Johnson County Fiscal Court, 682 F. Supp. 326 (E.D.Ky. 1987). The policy language at issue in that case is, in our view, distinguishable from the Home policy language in the instant case. In Johnson County, the policy excluded "liability . . . arising out of the performance of the insured's duties to provide law enforcement . . . and all operations necessary and incidental thereto." Id. at 327. The district court concluded that this exclusion barred coverage for the underlying action, a claim arising from the murder of two people by an escapee from the County prison. The court reasoned, in part, as follows:

 
There can be no valid argument that the operation of a jail, for the purpose of incarceration of convicted criminals or detention of accused, pending disposition of charges against them, is ...

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