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Nationwide Mutual Fire Insurance Co v. Francis Malofiy

March 22, 2011


The opinion of the court was delivered by: Slomsky, J.



On August 16, 2008, Defendant Francis Malofiy was a patron at Liberty Bar located at 2204 Market Street, Philadelphia, Pennsylvania.While at the Bar, Malofiy was involved in a physical altercation with another patron, Dante Troiani. The circumstances giving rise to this altercation are heavily disputed. It is undisputed, however, that the altercation culminated with Malofiy striking Trioani on his head and face with a beer glass, causing severe injuries.

Following the incident, Defendant Malofiy was arrested by the Philadelphia Police and charged with aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of a crime ("Underlying Criminal Action"). Malofiy was also sued civilly as a result of the incident. Trioani filed a civil action against Malofiy, Liberty Bar and its owners inthe Court of Common Pleas of Philadelphia County, Troiani v. Malofiy et al., No. 09-1162 ("Underlying Civil Action"). After the Underlying Civil Action was filed, Malofiy made a claim with his parents' homeowners insurance company, Nationwide Mutual Fire Insurance Company, seeking to have Nationwide defend and indemnify him in the Underlying Civil Action. Coverage was sought under the personal liability section of the policy. Nationwide, in turn, filed a declaratory judgment action in this Court. Plaintiff Nationwide Mutual Fire Insurance Company seeks a declaration here that it does not have a duty to defend or indemnify Malofiy in the Underlying Civil Action.

On November 29, 2010, Plaintiff filed a Motion for Judgment on the Pleadings in this case (Doc. No. 21), claiming again that it has no duty to defend or indemnify Malofiy in the Underlying Civil Action. Malofiy filed a Response and opposing brief on December 21, 2010 (Doc. Nos. 25, 26). On February 9, 2011, the Court held oral argument on the Motion. At the hearing, the Court granted the parties leave to file supplemental briefs and they did so. (Doc. Nos. 29, 31).

Upon consideration of the Motion and Response, the briefs filed by the parties in support of or in opposition to the Motion, and the arguments of counsel at the hearing, the Court will grant the Motion for Judgment on the Pleadings and enter judgment that Plaintiff has no duty to defend or indemnify Malofiy in the Underlying Civil Action.


A. Complaint for Declaratory Judgment*fn1

Plaintiff Nationwide Mutual Fire Insurance Company issued a Homeowner's Insurance Policy (the "Policy") (Doc. No. 3-1) to Alexander and Pauline R. Malofiy, parents of Defendant.

The Policy provides coverage for damages an insured*fn2 becomes legally obligated to pay due to an "occurrence," as defined in the Policy. (Id. ¶ 15.) Occurrence is defined as "bodily injury or property damage resulting from an accident." (Id. ¶ 17.) According to Plaintiff, since Malofiy is being sued for his intentional acts, any damages he becomes legally obligated to pay in the Underlying Civil Action are not a result of an "occurrence," or an accident. Accordingly, Plaintiff claims that Defendant is not covered by the Policy. (Id. ¶¶ 20-23.) In this Court, Plaintiff, in effect, seeks a declaration through the Motion for Judgment on the Pleadings that, pursuant to the terms of the Policy, it has no duty to defend or indemnify Malofiy in connection with the Underlying Civil Action.*fn3

B. The Underlying Civil Action

The facts regarding the August 16, 2008 incident at Liberty Bar are heavily disputed. However, because only those facts which are contained within the "four corners" of the complaint in the Underlying Civil Action (the "Underlying Complaint") (Doc. No. 3-3) may be considered in determining whether an insurer has a duty to defend, the Court will consider here only the facts contained in the Underlying Complaint.*fn4

On the evening of August 16, 2008, Trioani and Malofiy were patrons at the Liberty Bar, owned and operated by James P. Panaos and Paraskevi V. Pananos ("defendant Bar Owners"), who are named defendants in the Underlying Civil Action. The Underlying Complaint alleges that defendant Bar Owners and/or their agents "negligently, wantonly, willfully and recklessly sold and served alcoholic beverages" to Malofiy, who was "obviously in a visibly intoxicated condition." (Doc. No. 3-3 ¶¶ 15-20.) Malofiy, while in this inebriated state, "did strike [Trioani], with great force, with a beer glass, causing severe blows to [Trioani's] head, face and other parts of his body causing [Trioani] to sustain the severe, disfiguring and disabling personal injuries set forth at length." (Id. ¶ 20.)

The Underlying Complaint contains two counts. Count One alleges negligence against defendant Bar Owners and defendant Liberty Bar for "negligent, careless, willful, wanton and reckless actions, inactions and disregard" in serving and permitting their agents to serve Malofiy intoxicating beverages. (Id. ¶¶ 23-29.) Count Two alleges battery against Malofiy. (Id. ¶¶ 30-38.) The Underlying Complaint states:

31. Defendant Francis Malofiy struck Plaintiff [Trioani] in and about the head and face and body wantonly, recklessly and with the malicious intent to injure Plaintiff and with absolute disregard for Plaintiff's health, safety and welfare.

32. The action of Defendant Francis Malofiy in striking plaintiff caused harmful and offensive contact with Plaintiff which was committed with the intent to cause Plaintiff to suffer such harmful and offensive contact, and this constituted a battery as a matter of Pennsylvania law.

33. The harmful and offensive contact caused by Defendant Francis Malofiy was not consented to by Plaintiff, was without provocation of any kind, and was not otherwise privileged.

(Id. ¶¶ 31-33.)

Count Two further alleges that "as a direct and proximate result of the negligent, careless, willful, wanton, reckless, outrageous and unlawful conduct and disregard by the said Defendants," Trioani has suffered severe injury. (Id. ¶¶ 34-38.) In the prayer for relief contained in Count Two, Trioani requests punitive damages "for the willful, reckless, wanton, outrageous, unlawful conduct and disregard of the rights of the Plaintiff by the said Defendant herein."

C. Underlying Criminal Action

Separate from the Underlying Civil Action, but related to the August 16, 2008 incident, Malofiy was arrested and charged with Aggravated Assault, Simple Assault, Possession of an Instrument of Crime, and Recklessly Endangering Another Person. Beginning on August 12, 2010, Malofiy was tried before a jury. On August 19, 2010, the jury returned a verdict of not guilty on all counts. In the Underlying Criminal Action, Malofiy testified that he was acting in self-defense when he struck Trioani. According to Malofiy, Trioani, the "main aggressor," and his friends began harassing Malofiy's girlfriend, Ms. Gallagher. Malofiy attempted to verbally defend his girlfriend, directing Trioani to leave her alone.

However, the situation escalated and Malofiy decided that he and Ms. Gallagher should leave. At this point a physical altercation between Malofiy and Trioani ensued. As Malofiy testified at his criminal trial:

"Eventually, at that point, I was about ready to leave. Then he [referring to Trioano] came over, reached his hand over and he came up to my face like this (indicating), said, listen, it's cool, I'm being an asshole. . . . and I said, no, it's not cool at all. . . . At that point, I just wanted to diffuse the situation, and I grabbed his hand and said, okay, it's over, forget it. And I shook his hand. . . . Immediately after that, more insults were being hurdled back and forth, and there was a person behind me who was saying things also derogatory. At that point, I became very concerned. My girlfriend at that point said to me - - at this point, she said she was inappropriately touched and said she wanted to ...

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