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.
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.
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. § 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.
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.
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 ...