United States District Court, E.D. Pennsylvania
Direct Insurance Company brought this action seeking a
declaration that it has no duty to defend and indemnify its
insured, Michael Esposito, in a pending state court action
alleging he assaulted the plaintiff. Moving for judgment on the
pleadings, Unitrin argues that Esposito is not covered
because there was no occurrence, as defined in the policy,
causing bodily injury. It also contends that coverage is
excluded because the claim in the underlying action is for
intentional bodily harm.
than addressing Unitrin's coverage defenses, Esposito
argues that there is no federal jurisdiction and that the
action should be dismissed for failure to join indispensable
parties. His arguments are meritless. Nevertheless, we shall deny
Unitrin's motion to the extent it seeks a declaration
that it need not defend Esposito.
reviewing the policy, the plaintiff's complaint in the
underlying action, and the complaint and the answer in this
action, we conclude that Unitrin has failed to meet its
burden of demonstrating that the insurance policy excuses it
from defending Esposito as a matter of law. Although the
injury-producing conduct alleged in the underlying action
does not fall within the policy definition of an occurrence
triggering coverage, the policy exclusion for intentional
conduct expressly provides coverage when the insured acts in
self-defense or in the defense of others. Because Esposito
claims in the underlying action that he acted in defense of
himself and his wife, Unitrin must defend him. If the jury
rejects his defense and finds against him in the state court
action, Unitrin will have no duty to indemnify him. If it
finds for him, the issue of indemnity will be moot.
August 2, 2014, Esposito physically assaulted Mark Anderson
at The Deck at Harbour Pointe, a bar located in Delaware
County, Pennsylvania. Anderson sued The Deck and Esposito in
state court. His complaint states causes of action for
negligence against Esposito and The Deck, and for assault and
battery against Esposito. In the assault count, Anderson
alleges that Esposito, “without provocation, punched,
kicked and injured [Anderson] causing permanent, significant
and disfiguring facial injuries.”Anderson suffered
facial fractures, a concussion, nerve damage and
scarring. He also alleges that Esposito pleaded
guilty to assault.
time of the assault, Esposito was covered by a
homeowner's policy issued by Unitrin. Unitrin is
defending Esposito in the state court action pursuant to a
reservation of rights. We must decide whether Unitrin has a duty
to defend and indemnify Esposito in the state court action.
In other words, we must determine whether any of the claims
in the complaint are potentially covered by the policy.
interpretation of an insurance contract is a question of law.
Am. Auto. Ins. Co. v. Murray, 658 F.3d 311, 320 (3d
Cir. 2011). Whether a claim is within a policy's coverage
or is barred by an exclusion may be determined on a motion
for judgment on the pleadings. Allstate Fire & Cas.
Ins. Co. v. Hymes, 29 A.3d 1169, 1171 (Pa. Super. 2011).
deciding a motion for judgment on the pleadings made pursuant
to Rule 12(c), the court considers the facts alleged in the
pleadings and documents attached as exhibits or incorporated
by reference in the pleadings. See Fed. R. Civ. P.
10(c); Commercial Money Ctr., Inc. v. Ill. Union Ins.
Co., 508 F.3d 327, 335 (6th Cir. 2007); cf.
Steinhardt Grp. Inc. v. Citicorp, 126 F.3d 144, 145
& n.1 (3d Cir. 1997) (in Rule 12(b)(6) context). All the
well-pleaded factual assertions in the nonmovant's
pleadings are accepted as true and all contrary allegations
in the movant's pleadings are assumed to be false. 5C
Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 1368 (3d ed., Apr. 2016) (citing Allah
v. Al-Hafeez, 226 F.3d 247, 249-50 (3d Cir. 2000)).
movant must establish that no material issue of fact remains
to be resolved and that it is entitled to judgment as a
matter of law. Jablonski v. Pan Am. World Airways,
Inc., 863 F.2d 289, 290-91 (3d Cir. 1988); Shelly v.
Johns-Manville Corp., 798 F.2d 93, 97 n.4 (3d Cir.
1986). The motion can be granted only if the nonmovant cannot
prevail under any set of facts. Green v. Fund Asset
Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001); Turbe
v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991).
these principles, we examine the insurance policy and the
allegations in the state court complaint. Because we are
deciding a motion for judgment on the pleadings, we also
consider Unitrin's complaint and Esposito's answer in
of Insurance Contracts
must give effect to the plain language of the insurance
contract read in its entirety. Am. Auto. Ins. Co.,
658 F.3d at 320. When the language is plain and unambiguous,
the court is bound by that language. Pa. Nat'l Mut.
Cas. Ins. Co. v. St. John, 106 A.3d 1, 14 (Pa. 2014).
When the policy language is ambiguous, the provision is
construed in favor of the insured. Ramara, Inc. v.
Westfield Ins. Co., 814 F.3d 660, 673-74 (3d Cir. 2016);
Pa. Nat'l, 106 A.3d at 14. Contract language is
ambiguous if it is reasonably capable of more than one
meaning. Pa. Nat'l, 106 A.3d at 14. However,
policy language may not be stretched beyond its plain meaning
to create an ambiguity. Meyer v. CUNA Mut. Ins.
Soc., 648 F.3d 154, 164 (3d Cir. 2011); Trizechahn
Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009).
the insurer relies on a policy exclusion as the basis for
denying coverage, it has the burden of proving that the
exclusion applies. State Farm Fire & Cas. Co. v.
Estate of Mehlman, 589 F.3d 105, 111 (3d Cir. 2009);
Wolfe v. Ross, 115 A.3d 880, 884 (Pa. Super. 2015).
Policy exclusions are strictly construed against the insurer.
Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197,
206-07 (3d Cir. 2001); Mut. Benefit Ins. Co. v.
Politsopoulos, 115 A.3d 844, 852 n.6 (Pa. 2015) (citing
Madison Constr. Co. v. Harleysville Mut. Ins. Co.,
735 A.2d 100, 106 (Pa. 1999)); Peters v. Nat'l
Interstate Ins. Co., 108 A.3d 38, 43 (Pa. Super. 2014).
insurance carrier's duty to defend is distinct from its
duty to indemnify. It is interpreted more broadly than the
duty to indemnify. Kvaerner Metals Div. of Kvaerner U.S.,
Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896 n.7
(Pa. 2006). An insurer may have a duty to defend even though
it may have no duty to indemnify. Frog, Switch & Mfg.
Co. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d ...