The opinion of the court was delivered by: Stengel, J.
This is a declaratory judgment action seeking a ruling that Aspen Specialty Insurance Company does not have a duty to defend or indemnify Wilson Borough for claims arising out of a lawsuit filed in the United States District Court for the Eastern District of Pennsylvania, LaBar v. Alercia, Civil Action No. 09-4182. Aspen Specialty Insurance Company filed a motion for summary judgment. Wilson Borough filed a cross motion for summary judgment. For the reasons set forth below, I will grant Aspen's motion for summary judgment and deny Wilson Borough's motion for summary judgment.
A. Insurance Policy Aspen issued a police professional liability policy to Wilson Borough. The policy contained two coverage sections. Section A covered "bodily injury and property damage liability." Section B covered "personal injury liability."
The policy defined "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." It defined "personal injury" as "injury, other than 'bodily injury' arising out of one or more of the following offenses . . . .(k) Violation of civil rights protected under 42 U.S.C. § 1981 et seq. or State Law."
One of the exclusions from the bodily injury coverage is the automobile exclusion. This exclusion applies to: "'bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft owned or operated by or rented or loaned to any insured. Use includes operation and 'loading or unloading.'" The personal injury coverage does not contain an automobile exclusion.
The underlying complaint alleges that a car driven by Daniel LaBar's wife was struck by a car driven by a felon who was fleeing from police during a high speed chase. Ms. LaBar died from the injuries sustained.
Mr. LaBar raised twelve counts alleging: (1) a section 1983 claim against all defendants; (2) a section 1983 claim against all defendants based on the Fourth Amendment and on the Fourteenth Amendment; (3) a section 1983 claim based on supervisory liability against the individual defendants; (4) a section 1983 claim based on municipal liability against the Township of Palmer; (5) a section 1983 claim based on municipal liability against the Borough of Wilson; (6) state constitutional claims against all defendants; (7) an assault and battery claim against defendants Officer Alercia, Officer Border, Officer Vogel, Officer Potope, and John Does 1-10; (8) a section 1983 civil conspiracy claim against all defendants; (9) a section 1983 non-supervisory failure to intervene claim against Officer Potope and John Doe officers 1-10; (10) a section 1983 wrongful death claim against all defendants; (11) a section 1983 survival action against all defendants; and (12) a loss of consortium claim against all defendants. Counts one through nine allege the defendants were the proximate cause of Mrs. LaBar's injuries. Counts ten through twelve allege derivative claims.
Summary judgment is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" when "a reasonable jury could return a verdict for the nonmoving party" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it "might affect the outcome of the suit under the governing law." Id.
Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw "all justifiable inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The court must decide "not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's "version of events against the opponent, even if the quantity of the [moving party's] evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. DISCUSSION "Under Pennsylvania law, it is the province of the court to interpret contracts ofinsurance." Nationwide Mut. Ins. Co. v. Consenza, 120 F. Supp. 2d 489, 493 (E.D. Pa. 2000).*fn1 "The primary consideration in interpreting an insurance contract is 'to ascertain the intent of the parties as manifested by the language of the written instrument.'" Id. (quoting Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983)). A court must read the insurance policy as a whole and construe it "according ...