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AETNA CAS. & SUR. CO. v. ERICKSEN

October 27, 1995

AETNA CASUALTY AND SURETY COMPANY, Plaintiff
v.
MARY K. ERICKSEN, DUANE ERICKSEN, and SALIM QURESHI, Defendants


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

October 27, 1995

 BACKGROUND:

 On June 20, 1994, plaintiff Aetna Casualty and Surety Co. initiated this action with the filing of a complaint seeking a declaratory judgment pursuant to 28 U.S.C. ยงยง 2201, 2202. Plaintiff seeks a ruling that it is not liable to defend and indemnify defendants Mary K. and Duane Ericksen (collectively, "Ericksens") with respect to claims against them by defendant Salim Qureshi. The Ericksens have asserted counterclaims against Aetna for breach of contract, violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and bad faith.

 Before the court are cross-motions for summary judgment.

 DISCUSSION:

 I. STANDARD OF REVIEW

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added).

 
...The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 II. STATEMENT OF FACTS

 On October 13, 1993, defendant Salim Qureshi filed a complaint in the Court of Common Pleas of Columbia County, Pennsylvania, naming the Ericksens as defendants. In that action, Qureshi alleged that Mary K. Ericksen was liable for falsely and publicly accusing Salim Qureshi of sexual harassment. Also, Qureshi claimed that he was assaulted by Duane Ericksen. The complaint arose out of events occurring while both Qureshi and Mary K. Ericksen were employed as faculty members by Bloomsburg University.

 A. Qureshi's Claims

 The events giving rise to Qureshi's claim against Mary K. Ericksen began with a department meeting on September 28, 1992. Mary K. Ericksen had circulated the results of an unauthorized student survey which was critical of Qureshi, and she was forced to apologize to Qureshi during the meeting. The next day, Mary K. Ericksen submitted to the Dean of the College of Business a complaint alleging sexual harassment by Qureshi. Qureshi claims that the memorandum was drafted in retaliation for his complaint concerning the student survey.

 Mary K. Ericksen withdrew her complaint so that the matter could be resolved informally, but the process was not productive. She therefore filed a second complaint with the University alleging sexual harassment in the workplace and an unpleasant work environment. The University Provost found that Qureshi had sexually harassed Mary K. Ericksen and ordered him to report to the dean and watch tapes on sexual harassment. Also, a letter regarding the charges was placed in Qureshi's personnel file.

 The disposition was unsatisfactory to Mary K. Ericksen. She spoke to a reporter from a local newspaper, which published an article describing the hearing process, the allegations of sexual harassment, and Mary K. Ericksen's opinion as to the outcome.

 Qureshi's other claim, that against Duane Ericksen, related to an incident following a fact-finding hearing on November 10, 1992. Duane Ericksen appeared in the hearing room, rushed at Qureshi, and physically menaced and verbally threatened Qureshi. Qureshi's complaint alleges that the actions of Duane Ericksen constitute assault.

 B. The Aetna Policy

 Aetna issued to the Ericksens a homeowner's insurance policy which reads in part:

 
If a claim is made or a suit is brought against any insured for damages because of bodily injury, personal injury or property damage caused by an occurrence to which the coverage [sic] applies, we will:
 
a. pay up to our limit of liability for the damages for which the insured is legally liable; and
 
b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.

 Complaint, Exhibit A at 25 (rider appended to policy, captioned "SECTION II -- LIABILITY COVERAGES, COVERAGE E -- PERSONAL LIABILITY").

 Relevant terms defined in the policy include:

 
"bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death that results.
 
"business" includes trade, profession or occupation. . . .
 
"occurrence" means an accident, including continuous or repeated exposure to substantially the same generally harmful conditions which ...

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