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First Oak Brook Corp. Syndicate v. Comly Holding Corp.

August 23, 1996

FIRST OAK BROOK CORPORATION SYNDICATE

v.

THE COMLY HOLDING CORPORATION D/B/A THE AMERICAN CAFE; THOMAS ROWEN

THOMAS ROWEN,

APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 95-04742)

BEFORE: GREENBERG and ALITO, Circuit Judges, and DEBEVOISE, District Judge

GREENBERG, Circuit Judge

Submitted under Third Circuit LAR 34.1(a) August 15, 1996

(Filed: August 23, 1996)

OPINION OF THE COURT

This appeal arises from a determination in the United States District Court for the Eastern District of Pennsylvania of an issue of state law which is litigated repeatedly in that court, the meaning of an assault and battery exclusion in a liability insurance policy issued to a tavern. *fn1 This litigation recurs in the district court because of the availability of diversity jurisdiction in insurance coverage actions between insurers on the one hand and taverns and their patrons on the other hand. See e.g., First Oak Brook Corp. Syndicate v. Ultimate Sports Bar, Inc., No. 94-4395, 1996 WL 202881 (E.D. Pa. Apr. 19, 1996); Britamco Underwriters, Inc. v. Five Points Sports Bar, Inc., No. 93-6831, 1995 WL 327994 (E.D. Pa. May 31, 1995); Britamco Underwriters, Inc. v. O'Hagan, No. 94-1160, 1994 WL 477551 (E.D. Pa. Sept. 2, 1994), aff'd, 60 F.3d 814 (3d Cir. 1995) (table); Britamco Underwriters, Inc. v. Norm's Union Station, Inc., No. 91-4694, 1992 WL 210323 (E.D. Pa. Aug. 25, 1992). *fn2 Perhaps by determining the meaning of the exclusion we will forestall further litigation on the point in the district courts, thereby saving litigants attorneys' fees and other costs in future cases.

Inasmuch as the appellant, Thomas Rowen, appeals from a grant of summary judgment in favor of the appellee, First Oak Brook Corporation Syndicate, we will recite the facts in the light most favorable to him. On February 13, 1993, Rowen was a patron at the American Cafe in Philadelphia, Pennsylvania. Comly Holding Corporation owns the American Cafe. While Rowen was in the cafe, Comly's employees negligently shoved and pushed patrons into him and he thereby was injured.

Consequently, Rowen filed a civil action against Comly in the Court of Common Pleas of Philadelphia County. In the complaint, Rowen alleged that he was in the vestibule of the cafe when several of its employees shoved friends of his into him, causing him to fall to the ground and suffer injuries. The complaint alleged that Comly was negligent and careless because its employees recklessly and carelessly engaged in this behavior. Rowen charged that Comly was also negligent for "failing to properly hire and train" its employees, "failing to provide a safe passage to and from the entrance and exit" to the cafe, and "failing to use due care in ensuring the safety of patrons on the premises in the same or similar circumstances to that of plaintiff." Comly tendered the defense of Rowen's case to First Oak Brook, which undertook the defense under a reservation of rights.

First Oak Brook then instituted this declaratory judgment action against Comly and Rowen in the district court. In its complaint, it alleged that it had issued a comprehensive general liability policy to Comly, which was in force when Rowen was injured. First Oak Brook set forth the background of the injury to Rowen and the underlying lawsuit. It pointed out that its policy contained the following endorsement:

ASSAULT & BATTERY ENDORSEMENT

In consideration of the premium charged for this insurance, the policy to which this endorsement is attached, is amended and modified as follows:

Actions and proceedings to recover damages for bodily injuries or property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to Indemnify an ...


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