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Economy Premier Assurance Co. v. Fairfull

February 23, 2010

ECONOMY PREMIER ASSURANCE COMPANY, PLAINTIFF,
v.
THOMAS A. FAIRFULL, DONNA FAIRFULL, HILLARY FAIRFULL AND SAMANTHA PRODANOVICH, A MINOR, BY AND THROUGH HER PARENTS, AND NATURAL GUARDIANS, TINA MCDONNELL AND CHARLES PRODANOVICH, DEFENDANTS.



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

MEMORANDUM OPINION

Introduction

Pending before this court is a motion for summary judgment which raises insurance coverage issues. Plaintiff Economy Premier Assurance Company ("Economy Premier") initiated this action by filing a declaratory judgment complaint against defendants Thomas Fairfull, Donna Fairfull and Hillary Fairfull (collectively, "Fairfull Defendants") and Samantha Prodanovich, by and through her parents and natural guardians, Tina McDonnell and Charles Prodanovich (collectively, "Prodanovich Defendants").*fn1 Economy Premier commenced this action pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a), seeking a declaration that it has no duty to defend or indemnify the Fairfull Defendants in underlying litigation brought against them by the Prodanovich Defendants in the Court of Common Pleas of Westmoreland County, Pennsylvania (the "Prodanovich litigation"). (Doc. No. 1). Pending before the court is Economy Premier's motion for summary judgment. (Doc. No. 35). For the following reasons, the motion will be granted.

Factual Background

The Underlying Prodanovich Litigation Thomas and Donna Fairfull live at 105 Oak Drive in Trafford, Pennsylvania (the "Fairfull residence"). (Doc. No. 37, Ex. D at 6). In June 2003, the Fairfull's daughter, Hillary Fairfull lived with her parents at their residence. (Doc. No. 37, Ex. D at 35-36). At that time, Hillary Fairfull owned a dog that she kept at her parents' home. (Doc. No. 51 ¶¶ 5-6). Donna Fairfull testified that the dog, named Gemini, was kept indoors and outdoors. (Doc. No. 37, Ex. D 54-55).

Defendant Donna Fairfull watched children in her residence on a regular basis, Monday through Friday. (Doc. No. 51 ¶ 21). She testified at her deposition that childcare services were provided in her home approximately eight hours per day. (Doc. No. 51 ¶ 22). She was paid for her services by cash or check. (Doc. No. 51 ¶¶ 22, 26). Prior to 2003, Donna Fairfull was not an incorporated entity, nor was she licensed by the Commonwealth of Pennsylvania to provide childcare services. (Doc. No. 51 ¶ 24). She, however, reported her income to the Internal Revenue Service. (Doc. No. 51 ¶ 26).

Donna Fairfull watched children in her home for approximately ten years prior to the commencement of the litigation underlying this action. (Doc. No. 51 ¶ 21). At her deposition in 2005, she testified:

Q: Now, from 1990 to 2003, were you baby-sitting during that time period or were you doing other jobs?

A: Baby-sitting.

Q: When did you first start baby-sitting?

A: About 15, 16 years ago.

Q: Were you running it out of the 105 Oak Drive address?

A: Yes.

Q: What are the range of ages of children that you watch?

A: Sometimes I have a baby, a young-- you know, a real small one; and usually when they reach -- finish 5th grade, then they no longer need baby-sitting.

(Doc. No. 37, Ex. D at 8-9). In June 2003, Donna Fairfull watched six or seven children in her home at one time, ranging in age from three to twelve years old. (Doc. No. 51 ¶ 25). During her deposition, she testified that she regularly baby-sat these children:

Q: ... In 2003, particularly June of 2003, do you recall who were the children that were at the home?

A: It was Samantha [Prodanovich], [N.S.], [V.M.], [S.B.], [N.M.], and [S.S.].

Q: Now, how long had all these children been baby-sat by you?

A: Most of them, you know, from the time they were little, newborn, you know, real young. Most of those children, except for Samantha [Prodanovich], she was older.

Q: And were these children that were regularly on the property in 2003, particularly June of 2003?

A: Yes.

(Doc. No. 37, Ex. D at 14).

In September 2002, defendant Tina McDonnell began having Donna Fairfull baby-sit her two children, including plaintiff Samantha Prodanovich, at Donna's Fairfull home before and after school. (Doc. No. 51 ¶ 28). Defendant Tina McDonnell testified that she paid Donna Fairfull weekly to watch her children. (Doc. No. 51 ¶ 29). She testified that Donna Fairfull regularly watched Samantha and her son Monday through Friday, both before and after school. (Doc. No. 51 ¶ 30).

Donna Fairfull baby-sat Samantha Prodanovich on June 5, 2005. (Doc. No. 51 ¶ 19). There were four children in her home on that date for whom she was providing childcare services. (Doc. No. 51 ¶ 20). The Prodanovich Defendants allege that, on that date, Samantha Prodanovich was injured in the Fairfull residence when she was bitten by Hillary Fairfull's dog. (Do. No. 51 ¶ 3). Donna Fairfull testified that Samantha Prodanovich was at the Fairfull residence at the time of this incident for the purpose of receiving childcare services from Donna Fairfull. (Doc. No. 51 ¶ 19).

In 2005, defendants Tina McDonnell and Charles Prodanovich, as parents and natural guardians of Samantha Prodanovich, commenced the Prodanovich litigation giving rise to the instant litigation. (Doc. No. 51 ¶ 3). The complaint in the Prodanovich litigation (the "Prodanovich complaint") seeks compensation and damages from the Fairfull Defendants for injuries allegedly sustained by Samantha Prodanovich when she was bitten by a dog at the Fairfull residence. (Doc. No. 51 ¶ 3).*fn2

The Prodanovich complaint contains three separate counts. (Doc. No. 37, Ex. A). Count one asserts a claims for negligence against defendant Hillary Fairfull by Samantha Prodanovich. (Id. ¶¶ 18-20). Count two asserts a claim for negligence against defendants Thomas Fairfull and Donna Fairfull by Samantha Prodanovich. (Id. ¶¶ 21- 23). Count three asserts a claim for negligence against all three Fairfull Defendants by Charles Prodanovich and Tina McDonnell. (Id. ¶¶ 24-25.)

With respect to the Fairfull Defendants, the Prodanovich complaint contains a specific allegation that, on the date of the dog bite, Samantha Prodanovich, age eight, was allowed to play in the Fairfull Defendants' basement and had their permission to do so. (Doc. No. 37, Ex. A ¶¶ 4- 5). The complaint set forth allegations that, on or about June 5, 2003, Samantha Prodanovich "was an invited guest of Defendants, Thomas Fairfull and Donna Fairfull, on their premises located at 105 Oak Road, Westmoreland County . . . and was playing in their basement with their consent and permission." (Doc. No. 37, Ex. A ¶ 10). The Prodanovich complaint contains the following allegations:

11. At or about the same time, Defendants, Thomas Fairfull and Donna Fairfull, allowed Defendant Hillary Fairfull's dog on their property and kept it in the same basement where minor was playing.

12. Defendants Thomas Fairfull and Donna Fairfull did not provide adult supervision when minor Plaintiff was in their basement on the above date even though they were keeping co-Defendant Hillary Fairfull's dog there, which they knew or should have known that it had a dangerous propensity to be vicious, ferocious, aggressive, and prone to attack and/or bite people, in the same basement.

13. Defendants Thomas Fairfull and Donna Fairfull also failed to prohibit children from entering the basement when co-Defendant Hillary Fairfull's dog was kept in the basement, even though they knew or should have known that said animal had a dangerous propensity to be vicious, ferocious, aggressive, and prone to attack and/or bite people.

14. On the above stated date, Defendant Hillary Fairfull knew her dog had a dangerous propensity to be vicious, ferocious, aggressive, and prone to attack and/or bite people, and that the dog was on the co-Defendants' property and knew or should have known that it was kept in their basement with the minor Plaintiff or had access to said minor Plaintiff.

15. While minor Plaintiff, Samantha Prodanovich played in the Defendants Thomas Fairfull's and Donna Fairfull's basement, Defendant Hillary Fairfull's Chow/Akita dog suddenly and without warning, attacked minor Plaintiff, without provocation, biting her left cheek, her chin and her left jaw line.

(Doc. No. 37, Ex. A ¶¶ 11-15).

In the Prodanovich litigation the Prodanovich Defendants seek damages for Samantha Prodanovich's injuries, including cost of surgical and medical attention, hospitalization, medical supplies, medicines and services in an effort to cure Samantha Prodanovich and compensation for Charles Prodanovich and Tina McDonnell for the loss of the services of their child, Samantha Prodanovich. (Doc. No. 37, Ex. A ¶ 25).

The Economy Premier Homeowner's Policy

The Fairfull Defendants procured a homeowner's insurance policy from Met Life*fn3 through the assistance of an insurance agent. (Doc. No. 51 ¶ 31). Economy Premier issued a VIP Plus homeowner's policy of insurance to Thomas Fairfull, bearing policy number 1604092620 (the "2003 policy"). (Doc. No. 51 ¶ 35).*fn4 The 2003 policy was effective for the policy period of September 20, 2002 through September 20, 2003. (Doc. No. 51 ¶ 35).

The declaration page lists the insured property as the Fairfull residence, at 105 Oak Road Trafford, Pennsylvania, and Thomas Fairfull as the named insured. (Doc. No. 37, Ex. F). The policy provided coverage for personal liability as follows:

Section II- LOSSES WE COVER COVERAGE F- PERSONAL LIABILITY

We will pay all sums for bodily injury and property damage to others for which the law holds you responsible because of an occurrence. This includes prejudgment interest awarded against you.

We will defend you, at our expense with counsel of our choice, against any suit or claim seeking these damages. We may investigate, negotiate, or settle any suit or claim.

We are not obligated to pay any claim or judgment or defend any suit if we have already exhausted the limit of liability set forth in the Declarations by paying judgments of settlements. (Doc. No. 37, Ex. F at 16). The policy contained, in relevant part, the following exclusions with respect to coverage for personal liability:

Section II- LOSSES WE DO NOT COVER UNDER COVERAGE F- PERSONAL LIABILITY AND COVERAGE G- MEDICAL PAYMENTS ...


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