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The First Liberty Insurance Corp. v. MM

United States District Court, E.D. Pennsylvania

April 28, 2017

THE FIRST LIBERTY INSURANCE CORPORATION
v.
MM, et al.

          MEMORANDUM

          Bartle, J.

         Before the court are the cross-motions of plaintiff The First Liberty Insurance Corporation for judgment on the pleadings and of defendant MM, a pseudonym, for partial judgment on the pleadings on his declaratory judgment claim.

         First Liberty brought this declaratory judgment action against MM and BB, seeking a declaration that it has no obligation to defend or indemnify MM in a lawsuit brought by BB against MM in the Superior Court of the District of Columbia arising out of a sexual encounter between BB and MM.[1]Jurisdiction is based on diversity of citizenship. First Liberty was incorporated in Illinois and has a principal place of business in Massachusetts. MM and BB are citizens of Pennsylvania. At the time of the events at issue in the underlying lawsuit, MM was an insured under his parents' homeowner's insurance policy issued by First Liberty. MM has filed an answer with counterclaims seeking a declaratory judgment that First Liberty has a duty to defend and indemnify MM as well as for breach of contract, bad faith, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201, et seq., in failing to provide that defense.

         I.

         “The standard for evaluating a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is the same as the familiar standard used for evaluating a motion to dismiss under Rule 12(b)(6).” Accurso v. Infra-Red Servs., Inc., 23 F.Supp.3d 494, 499 (E.D. Pa. 2014). Accordingly, “the distinction between a motion under 12(b)(6) and a motion under 12(c) ‘is purely formal.'” Id. (quoting Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990)). Therefore, insofar as the movants seek judgment on the pleadings, the standard used for a motion to dismiss under Rule 12(b)(6) guides our determination. We must determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         Under Rule 12(c), 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.” Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988) (quoting Soc'y Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). “In order to grant a motion for judgment on the pleadings, it must be apparent that there are no issues of material fact and that only questions of law exist.” Corrigan v. Methodist Hosp., 158 F.R.D. 70, 71 (E.D. Pa. 1994). “[J]udgment 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.'” Jablonski, 863 F.2d at 290 (quoting Soc'y Hill Civic Assoc., 632 F.2d at 1054).

         II.

         The following facts are alleged in the complaint. In July 2016, BB filed a lawsuit against MM in the Superior Court of the District of Columbia claiming that, in September 2015, MM “negligently, intentionally and illegally videotaped [BB] performing a sexual act on him without her knowledge or consent.” BB was a freshman at American University at the time of the incident, which occurred at an off-campus party while BB was intoxicated. She has no recollection of the incident.

         The following day, MM “negligently, intentionally and/or willfully shared this illegal video with his friends and classmates.” BB became aware of the incident when others told her about the video. She alleges that “[a]s a direct and proximate result of [MM's] unconsented physical contact, illegal videotaping, and unauthorized sharing of that videotape with others, ” she suffered physical injuries, severe emotional distress, depression, humiliation, and embarrassment.

         MM was thereafter arrested by the District of Columbia Metropolitan Police Department for this conduct. He pleaded guilty to one count of “Voyeurism - Recording.”

         BB brought two claims for relief in her civil action in the District of Columbia based on this conduct. The first is labeled “Negligence & Gross Negligence.” There, BB claims that MM “owed [her] a duty to exercise reasonable care not to injure her.” The second claim for relief is entitled “Assault & Battery.” With regard to that claim, she asserts that MM “over the course of his attack on [BB], intentionally acted to create in [BB] the apprehension of an imminent harmful and offensive contact with her person.” She seeks $750, 000 in compensatory damages plus interest and costs as to each claim.

         After the underlying complaint was filed in the District of Columbia, MM sought coverage and a defense from First Liberty in the underlying litigation. First Liberty thereafter instituted this declaratory judgment action after informing MM and his parents that it had no duty to defend or indemnify MM with regard to that litigation under the First Liberty policy.

The First Liberty policy[2] provides in relevant part:
COVERAGE E - Personal Liability If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an ...

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