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BORISH v. BRITAMCO UNDERWRITERS

November 18, 1994

ALAN M. BORISH t/a BALA INN and MARY THORNTON
v.
BRITAMCO UNDERWRITERS, INC.



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 Before this Court today is Defendant's Motion to Dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). In considering a 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

 In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). The parties agree that the facts in this case are undisputed and that Pennsylvania law applies to the substantive issues.

 In February, 1989, Plaintiff Alan Borish, Bala Tavern, Inc. t/a Bala Tavern (Bala) purchased a "claims-made" insurance policy from Britamco Underwriters, Inc. (Company). This policy had a retroactive date of February 15, 1987 and an expiration date of February 15, 1990. The policy covered Bala from claims made against it "provided the injury occurs after the retroactive date shown on the policy declarations and the claim is first made during the policy period and that written notice of the claim is reported to the company during the policy period." Policy at § 1. In the event the policy was canceled or was not renewed, "an extension of coverage was granted as respects a claim or claims which may be made against the insured and reported in writing to the company during a period of 60 days after cancellation or expiration of the policy, but only if the injury occurred after the retroactive date and prior to the effective date of cancellation or prior to the expiration date." Id. at § VIII, P 13.

 In July, 1991, Thornton sued Bala for the injuries she suffered in the June, 1989 accident. In September, 1991, Bala first notified the Company of the claim made against it. The Company has refused to cover the claim on the ground that it is not covered by the policy.

 A claims-made policy is an insurance policy that "'protects the holder only against claims made during the life of the policy.'" Bensalem Township v. Western World Ins. Co., 609 F. Supp. 1343, 1346 n.2 (E.D. Pa. 1985) (quoting St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 535 n.3, 57 L. Ed. 2d 932, 98 S. Ct. 2923 (1978)); Bolden v. Niagara Fire Ins. Co., 814 F. Supp. 444, 445 (E.D. Pa.); aff'd, 8 F.3d 810 (3d Cir. 1993). This is in contrast to an "occurrence" policy, which "'protects the policyholder from liability for any act done while the policy is in effect.'" Bensalem, 609 F. Supp. at 1346 n.2.

 The Company argues that Bala does not state a claim upon which relief may be granted because the relevant claim was not made within the policy's term, and because it was not notified of the claim within the policy's term or its 60-day extension period.

 Plaintiffs make four main arguments to support coverage. First, that the policy provides an absolute duty to insure against suits brought against the policy holder regardless of notification. Second, that the policy is ambiguous, and therefore must be construed against its drafter. Third, that the failure to timely notify the Company can be excused. Fourth, that the Company has not shown prejudice to it from the lack of notification. We address each argument in turn.

 First, Plaintiffs argue that there is an independent duty of the Company to insure Bala against suits brought in the United States or Canada. Section V of the policy reads:

 
This insurance applies only to claims first made and reported to the company in writing within the policy period shown on the declaration page of the policy or such shorter period as will exist in the event of cancellation or termination of the policy.
 
The obligation of the company hereunder shall only apply to claims made or suit brought against an Insured in the United States, its territories and possessions or Canada.

 Plaintiffs argue that Bala must be defended against Thornton's suit because that suit was brought in the Philadelphia Court of Common Pleas. "Hence," Plaintiffs argue, "Britamco should be compelled to defend [the state action] since this obligation arises independently ...


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