and Agora's Motion for Summary Judgment. Previously, this Court denied Defendants Levin's and Marlen Corporation's ("Marlen") Motion to Dismiss. For the reasons that follow, Defendant's Motion to Dismiss is denied and Plaintiff's Motion for Summary Judgment is granted.
On April 12, 1993, Levin went to Diperstein's locksmith shop to dispute a bill. The billing dispute escalated and Levin and Diperstein began fighting. Lane became involved while trying to assist Diperstein, her husband.
Diperstein and Levin each filed criminal charges of simple assault
against the other. On November 3, 1993, the trial court found Diperstein not guilty on both counts. Levin was found not guilty of simple assault but guilty of harassment.
Diperstein and Lane then filed a civil action in the Philadelphia Court of Common Pleas against Levin and Marlen Corporation.
The complaint lists counts of assault and battery, negligence, intentional and negligent infliction of emotional distress, and loss of consortium. Both Levin and Marlen sought coverage from Agora under a commercial general liability insurance policy. Agora initially provided both with counsel, while reserving the right to deny coverage and withdraw at a later time.
By letter, dated December 18, 1996, Agora denied coverage to Levin individually but continued to defend Marlen under a strict reservation of rights. The letter states that the insurance policy issued to Levin does not provide coverage for intentional torts. Because harassment is an intentional crime and the complaint filed against Levin alleges only intentional torts, Agora determined that it did not have a duty to defend Levin in the underlying action.
Agora told Levin that his appointed defense counsel would withdraw immediately, and advised him to retain another attorney. In response, Levin contested the withdrawal of his appointed counsel pointing out that negligence is not an intentional tort. On March 19, 1997, the Petition for Leave to Withdraw filed by appointed counsel was denied by the Honorable Arnold New of the Philadelphia Court of Common Pleas.
Agora has filed this action for declaratory judgment pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Agora seeks a judgment declaring that it has no duty to defend or indemnify Levin individually in the underlying state court tort action under the terms of its insurance policy.
II. STANDARD OF REVIEW.
Summary Judgment is proper "if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Then, the non-moving party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(c). If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Celotex, 477 U.S. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
A. Summary Judgment.
The parties disagree over whether or not Summary Judgment may properly be granted. Levin's intent is the material issue in contention. Agora points to Levin's harassment conviction as determinative of the issue of intent and proof of the absence of a material issue of fact. To the contrary, Levin and Marlen argue that the issue of Levin's intent is material and is in dispute, which precludes Summary Judgment. Viewing all facts in the light most favorable to Levin and Marlen, Agora's argument is more persuasive.
In Pennsylvania, "the victim of a criminal act is precluded from litigating the issue of the insured actor's intent where that intent has been established by independent evidence in the prior criminal proceedings." Stidham v. Millvale Sportsmen's Club, 421 Pa. Super. 548, 618 A.2d 945, 954 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (Pa. 1993). Likewise, "criminal convictions are admissible in civil actions" and are "conclusive evidence of the criminal acts." Id. at 952. This rule establishes that the issue in question, Levin's intent, cannot be at issue in the underlying civil action.
Levin's state of mind was conclusively determined at his criminal trial. The crime of harassment requires the court to find the following:
Harassment - A person commits the crime of harassment when, with intent to harass, annoy or alarm another person: (1) he strikes, shoves, kicks or otherwise subjects him to physical contact . . .
18 Pa.C.S.A. § 2709. Thus, to convict Levin of harassment, the trial court had to determine that he acted intentionally. This determination prevents relitigation of the issue of Levin's intent. Since both parties are precluded from arguing the issue of Levin's intent, that issue cannot be in dispute, and Summary Judgment is proper.
Defendants' argue that even if Levin's intent to harass Diperstein was determined at the criminal trial, with respect to Lane, there has been no final determination with regard to Levin's intent. This position is incorrect because intent "may be transferred from an intended victim to another." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 660 A.2d 66, 68 (Pa. Super. 1995), appeal denied, 544 Pa. 676, 678 A.2d 366 (Pa. 1996)(citing Nationwide Mut. Ins. Co. v. Hassinger, 325 Pa. Super. 484, 473 A.2d 171, 173 (Pa. Super. 1984); Germantown Ins. Co. v. Martin, 407 Pa. Super. 326, 595 A.2d 1172, 1175 (Pa. Super. 1991), appeal denied, 531 Pa. 646, 612 A.2d 985 (Pa. 1992)). Therefore, the criminal court's determination of Levin's intent with regard to Diperstein is transferable to Lane.
Having determined that Summary Judgment is proper, Agora's request for declaratory judgment must be addressed.
B. Declaratory Judgment.
The issue presented is whether Levin's harassment conviction discharges Agora's duty to defend him in the underlying state court action. I find Agora's duty to defend discharged for two reasons. First, Levin's harassment conviction places this action within the "expected or intended exclusion" of Agora's insurance policy. Second, it is contrary to the public policy of Pennsylvania to allow insurance coverage for an intentional tort.
1. Policy Exclusions.
Levin's conviction for harassment, an intentional crime, falls directly within the exclusions of Agora's insurance policy. Specifically, Agora's policy provides:
This insurance does not apply to:
a. "Bodily injury" or "property damage" expected or intended from the standpoint of the insured.