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TRAVELERS INDEM. CO. v. FANTOZZI

March 19, 1993

TRAVELERS INDEMNITY CO., Plaintiff,
v.
DANA FANTOZZI, A Minor by and through her mother and guardian RENEE FANTOZZI, ET AL., Defendants.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 March 19, 1993

 This is a declaratory judgment action by Travelers Indemnity Company ("Travelers") against defendants Dana and Renee Fantozzi (the "Fantozzis") and Frankie, Francis and Annette Hughes (the "Hughes") to determine coverage for claims asserted by the Fantozzis against the Hughes in a civil action (the "underlying action") instituted in the Court of Common Pleas of Bucks County on October 31, 1990. Currently before me is the motion of plaintiff Travelers for reconsideration of my Order of October 20, 1992 which denied Travelers' motion for summary judgment (Document No. 17).

 This Court has jurisdiction over this case under 28 U.S.C.A. § 1332 (West 1966 & Supp. 1992), as the parties are of diverse citizenship, and the amount in controversy is alleged to be in excess of $ 50,000.

 For the reasons discussed below, the motion of Travelers for reconsideration will be granted, and summary declaratory judgment will be entered in favor of Travelers.

 I. FACTUAL BACKGROUND

 The following facts are not in dispute. From January 1985 to May 1989, pursuant to an oral agreement between Renee Fantozzi and Francis and Annette Hughes, the adult Hughes babysat Ms. Fantozzi's then infant daughter, Dana, in their home on a regular basis in return for weekly compensation. Frankie Hughes, the minor son of Francis and Annette Hughes, lived in the Hughes' household during this time. The Hughes agreed to the babysitting arrangement as a means of earning temporary income while Francis Hughes was laid off from his customary job.

 In 1989, after the Fantozzis had moved to Virginia, a therapist allegedly discovered that Dana had been sexually molested by Frankie Hughes during the years she spent in the Hughes' household under their care. On October 31, 1990, the Fantozzis commenced the underlying action claiming that the Hughes were negligent because they breached their duties owed as babysitters and they failed to supervise their minor son, Frankie Hughes. The Fantozzis also include a count against Frankie Hughes for negligent infliction of physical and emotional harm.

 The Hughes sought defense and indemnity from Travelers in connection with the Fantozzi claims pursuant to the personal liability coverage provisions of the homeowners insurance policy issued to the Hughes by Travelers which covered the years of January 1985 through May 1989. *fn1" In its earlier motion for summary judgment, Travelers argued that the homeowners insurance policy does not cover the claims and damages asserted by the Fantozzis because the insurance policy excludes coverage for, among other things, the business pursuits of an insured. My Order of October 20, 1992 denied Travelers' motion for summary judgment based on the existence of a factual issue as to another exclusion in the Travelers policy. I agree, however, that Travelers' argument concerning the "business pursuits" exclusion in the Travelers policy, if efficacious, would result in a finding that Travelers is entitled to judgment in their favor as a matter of law. Therefore, I will reconsider Travelers' motion for summary judgment.

 II. DISCUSSION

 A. Standard

 Travelers has moved for reconsideration of my earlier Order which denied Travelers' motion for summary judgment based on the existence of at least one genuine issue of material fact. I find that Travelers' motion for reconsideration raises issues which demonstrate that there are indeed no genuine issues of material fact as to one of the exclusions in the Travelers' homeowner's policy issued to the Hughes. Given that this memorandum reconsiders an earlier summary judgment motion, the same summary judgment standard applies.

 The examination to be undertaken of a summary judgment motion in federal court is set forth in Fed. R. Civ. P. ...


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