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FEDERAL INS. CO. v. POTAMKIN

April 21, 1997

FEDERAL INSURANCE COMPANY, Plaintiff
v.
JEANNE POTAMKIN, et al., Defendants



The opinion of the court was delivered by: KATZ

 AND NOW, this 21st day of April, 1997, upon consideration of Motion for Summary Judgment of Plaintiff Federal Insurance Company; Defendant Jeanne Potamkin and Jamin Potamkin's Joint Motion to Dismiss the Complaint and/or for a Stay or Proceedings, or in the Alternative for Summary Judgment in their Favor; the responses thereto; the Stipulation of Facts; and after a hearing; it is hereby ORDERED that plaintiff's Motion is GRANTED and defendants' Motion is DENIED.

 DISCUSSION

 Factual Background

 Plaintiff Federal Insurance Company instituted this action seeking a declaratory judgment that under the policies it issued to defendant Jeanne Potamkin, it is not obligated to defend nor to indemnify Jeanne and Jamin Potamkin in defendant Mary Coraza's state action against them (the "underlying lawsuit"). The underlying lawsuit stems from actions that occurred after Coraza treated defendant Jamin Potamkin for psychological difficulties from 1981 to 1985. Am. Compl. P 6. *fn1" Coraza alleges that after Jamin Potamkin had ceased to see her for treatment, he and his mother made untrue accusations about her abusing him, threatened to kill her, made harassing phone calls to her home, and attempted to run her down with their car. See Am. Compl.

 Coraza filed criminal charges against the Potamkins, and a jury convicted them of Terroristic Threats (18 Pa. C.S. § 2706); Simple Assault (18 Pa. C.S. § 2701); Recklessly Endangering Another Person (18 Pa. C.S. § 2705); and Criminal Conspiracy (18 Pa. C.S. § 903). Id. P 22. Defendants were sentenced to 11 1/2 to 23 months. Id. P 23. These criminal convictions have been appealed. Stip. of Facts P 3.

 Coraza then filed the Complaint in the underlying lawsuit. Plaintiff filed this action seeking a declaratory judgment that under the terms of Jeanne Potamkin's primary and excess policies, the intentional act exclusion applies, and therefore it is not required to defend nor indemnify the Potamkins. Both policies contain the following intentional acts exclusion:

 
Intentional acts. We do not cover any damages arising out of an act intended by any covered person to cause personal injury or property damage, even if the injury or damage is of a different degree or type than actually intended or expected. An intentional act is one whose consequences could have been foreseen by a reasonable person. But we do cover such damages if the act was intended to protect people or property unless another exclusion applies.

 Stip. of Facts P 9.

 Coraza amended the Complaint on April 8, 1996. Id. P 2. Coraza's Amended Complaint includes a count for negligence. See Am. Compl. PP 39-40. Plaintiff contends that despite this amendment, the underlying suit is based on intentional criminal conduct falling within the policies' exclusions. The parties have filed cross-motions for summary judgment. For the reasons stated below, plaintiff's motion is granted.

 Summary Judgment Standard

 Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of showing there are no genuine issues of material fact, Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir. 1985), and, in response, the non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. v. DeFrensne, 676 F.2d 965, 969 (3d Cir. 1982).

 The Complaint Does Not Allege Facts That Would Support Recovery Under the Policy

 "An insurer has a duty to defend if the complaint alleges facts that support recovery within the policy . . . ." Terra Nova Ins. Co. v. 900 Bar, Inc., 887 F.2d 1213, 1216 (3d Cir. 1989). Here, all the facts point toward intentional conduct. In the section of her Amended Complaint entitled "Conduct Intended to Threaten Plaintiff," Coraza alleges that Jamin Potamkin asked another psychiatrist "what would happen to him if he ' . . . killed Dr. Coraza' . . . adding that . . . she needed to be killed." Am. Compl. P 7. According to Coraza, the Potamkins then "initiated a continuous course of conduct designed to further harass and terrorize [Coraza]" including "telephoning her at all ...


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