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Essex Insurance Co. v. Oli-Car Inc.

September 18, 2007

ESSEX INSURANCE COMPANY, PLAINTIFF,
v.
OLI-CAR INC.; BRANDON MALLICK; BRASS SADDLE, INC., D/B/A/ FILLY CORRAL AND EL-DO, INC. DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Pending before this court is a motion for judgment on the pleadings filed by plaintiff Essex Insurance Company ("plaintiff" or "Essex"). In its one count complaint for declaratory judgment, plaintiff alleges it does not have a duty to defend defendants in connection with underlying state court actions alleging injuries sustained by defendant Brandon Mallick ("Mallick") as a result of an assault and battery. Defendants Brandon Mallick and El-Do, Inc. ("defendants") argue that this court should not exercise jurisdiction over this matter and if it does, there is a duty to defend. Under the circumstances of this case, plaintiff does not have a duty to defend defendants in the underlying state court actions. For the reasons set forth on the record and in this memorandum opinion, the court will grant plaintiff's motion for judgment on the pleadings.

Background

Plaintiff underwrote a commercial general liability insurance policy (the "insurance policy"), which was issued to defendant Oli-Car Inc. The insurance policy provided insurance coverage of $1,000,000 per occurrence and $1,000,000 in the aggregate. The insurance policy also contained certain exclusions which precluded coverage for a number of claims. Specifically, the insurance policy contained an exclusion related to claims for assault or battery (the "assault and battery exclusion"). The assault and battery exclusion provided in pertinent part:

The coverage under this policy does not apply to any claim, suit, cost or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured, Insured's employees, patrons or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision. Furthermore, assault and/or battery includes "bodily injury" resulting from the use of reasonable force to protect persons or property. (Pl.'s Br. Ex. 1 (A))(emphasis added). The insurance policy also contained identical language in an exclusion related to the Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement.

Defendant Brandon Mallick ("Mallick") filed two complaints in state court which have been consolidated. The first complaint was filed against Brass Saddle, Inc. and El-Do, Inc., entities from whom Oli-Car, Inc. leased the premises on which Mallick was injured. The second complaint was filed on September 20, 2005, against Oli-Car, Inc. In the complaints Mallick alleged he was injured as a result of an "assault and battery" that occurred in the parking lot of the premises leased by Oli-Car, Inc. Mallick claimed that following an evening at defendant's gentlemen's club, he was attacked by an unknown assailant. Specifically, Mallick alleged that:

9. Upon entering his vehicle situated on Defendant's premises, Plaintiff was approached by an unknown assailant who had been present on the premises for an extended period of time prior thereto, and who had been openly and dangerously harassing other lawful invitees of the establishment.

10. The unknown assailant punched through the window of plaintiff's vehicle, which was located in Defendant's parking lot, causing the Plaintiff to suffer severe injuries. The unknown assailant then proceeded to violently assault and beat the Plaintiff by punching and otherwise striking Plaintiff, causing the Plaintiff to suffer severe injuries. (Pl.'s Br. Ex. 1 (B).) As a result of the attack, Mallick alleged that he suffered serious injuries and sought monetary damages.

In its motion for judgment on the pleadings, plaintiff argues that the insurance policy at issue precludes coverages for the assault and battery and any "act or omission in connection with the prevention or suppression of such acts." (Pl.'s Br. Ex. 1 (A).) Plaintiff argues that the clear language of the exclusion is unambiguous and excludes coverage for the actions that are the subject of the underlying state court complaint. Plaintiff requests a declaratory judgment in its favor confirming that it does not have a duty to defend the underlying state court defendants. Defendants argue that this court should not exercise jurisdiction over this declaratory judgment action because there is unsettled state law in issue.*fn1 Next, defendants argue that Pennsylvania courts have held that an insurer cannot be absolved of its duty to defend its insured where an underlying state court complaint contains allegations sounding in negligence.

On August 15, 2007 and August 16, 2007, the court held hearings on the plaintiff's motion for judgment on the pleadings. As set forth more fully on the record, the court chose to exercise jurisdiction over this matter because there is no unsettled state law in issue. Further, the court held that plaintiff's motion for judgment on the pleadings would be granted because the insurance policy at issue excludes coverage for bodily injury sustained as a result of an assault and battery and any act or omission in connection with the prevention or suppression of an assault or battery.

Standard of Review

A motion for judgment on the pleadings will not be granted "unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Society Hill Civic Ass'n v. Harris, 632 F.2d 1045 (3d Cir.1980). When reviewing a motion for judgment on the pleadings, the court must "view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Id.

Discussion

I. Declaratory ...


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