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Slate Bar & Lounge, Inc. v. Founders Insurance Co.

United States District Court, M.D. Pennsylvania

October 18, 2017

SLATE BAR & LOUNGE, INC., d/b/a SLATE BAR & LOUNGE, Plaintiff,
v.
FOUNDERS INSURANCE COMPANY, Defendant.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         This insurance declaratory judgment action was removed from the Court of Common Pleas for Luzerne County, Pennsylvania. The plaintiff, Slate Bar & Lounge, Inc. d/b/a Slate Bar & Lounge (“Slate Bar”), filed its original complaint in state court on November 4, 2015. (Doc. 1-3). The action was timely removed to this Court by the defendant, Founders Insurance Company (“Founders”), on November 24, 2015, pursuant to 28 U.S.C. §§ 1441(a) and 1446. (Doc. 1).

         In this action, Slate Bar seeks a declaration by the Court that Founders has a duty to defend and indemnify it with respect to a particular state tort action under a commercial liquor liability policy issued to it by Founders. In the underlying state court action, the tort plaintiff seeks an award of damages for injuries he suffered at the hands of a bouncer employed by Slate Bar during an altercation that occurred when the tort plaintiff attempted to enter the bar to purchase a twelve-pack of beer to go. The tort plaintiff was allegedly stabbed with a 3-inch knife.

         This matter is now before the Court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Doc. 30; Doc. 31). For the reasons set forth below, the defendant's motion (Doc. 31) will be denied, the plaintiff's motion (Doc. 30) will be granted with respect to Founders' duty to defend it and denied with respect to Founders' duty to indemnify it, and judgment will be entered in favor of the plaintiff with respect to Founders' duty to defend Slate Bar in the underlying tort action. The plaintiff's claim for declaratory relief on Founders' duty to indemnify Slate Bar will be dismissed without prejudice as premature and unripe.

         I. Background

         The plaintiff is a Pennsylvania corporation with its principal place of business at 2324 Sans Souci Parkway, Hanover Township, Pennsylvania, where it at one time operated a drinking establishment, also called Slate Bar & Lounge. The defendant is an insurance company organized under the laws of the State of Illinois, with its principal place of business located in Des Plaines, Illinois. Because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000, the Court has proper jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

         The complaint in this action was originally filed by the plaintiff in the Court of Common Pleas for Luzerne County, Pennsylvania, on November 4, 2015. (Doc. 1-3, at 4-11). It was timely removed to this Court by the defendant on November 24, 2015. (Doc. 1).

         Founders filed a motion to dismiss for failure to state a claim on November 25, 2015. (Doc. 3). That motion was denied on July 8, 2016. (Doc. 18; Doc. 19). Founders filed a motion for reconsideration on July 22, 2016. (Doc. 20). On July 26, 2016, Founders filed its answer to the complaint. (Doc. 21). On January 9, 2017, we denied the motion for reconsideration. (Doc. 23: Doc. 24).

         On March 25, 2017, the plaintiff filed its motion for judgment on the pleadings, requesting that judgment be entered for the same reasons stated in our opinion denying the defendant's original motion to dismiss. (Doc. 30). On March 27, 2017, the defendant filed its cross-motion for judgment on the pleadings, largely relying on the same arguments it had presented in support of its earlier motion to dismiss. (Doc. 31). On April 10, 2017, the plaintiff filed a brief in opposition to the defendant's motion. (Doc. 33). These motions are now ripe for disposition.

         A. The Underlying Tort Complaint

         The underlying state tort complaint was filed in the Court of Common Pleas for Luzerne County, Pennsylvania, on February 19, 2013. (Doc. 1-3, at 25-32).[1] The tort complaint alleged injuries suffered by the tort plaintiff, Bruce H. Fine, when he was stabbed by Edwin Cortez, a “bouncer/security guard” employed by Slate Bar. In his complaint, Fine alleged the following facts:

6. On the evening [of] Saturday, December 8, 2012, Plaintiff Bruce Fine, along with friends Jennifer Ruchinski, Jason Girton, and Chastity Girton, traveled to Defendant, Slate Bar and Lounge, to purchase a twelve (12) pack of beer. Plaintiff and his friends were not planning on staying at Defendant, Slate Bar and Lounge, after purchasing the beer to go.
7. Upon arriving at the door of Defendant, Slate Bar and Lounge, Plaintiff, Bruce Fine, and his friends were stopped by Edwin Cortez and two other employees (hereinafter “Slate Bar Bouncers”) working at the door, and were informed that there was a $5.00 cover charge, total[ing] $20.00 for the entire group, for admission [to] the Defendant bar.
8. The group informed the Slate Bar Bouncers that they wanted only to purchase beer and leave, the Slate Bar Bouncers informed the patrons that only the females were allowed to enter the bar, requiring the males to remain outside.
9. Mr. Fine and Mr. Girton objected. An exchange of words ensued. The untrained and unsupervised Slate Bar Bouncers negligently escalated the matter into an altercation.
10. During the scuffle, Edwin Cortez, acting as a Slate Bar Bouncer, suddenly and without warning, produced a knife and stabbed Plaintiff, Bruce Fine[, ] in the abdomen.
11. Jason Girton, recovered Edwin Cortez's knife[, ] which had a blade of approximately 3 inches. The knife was turned [] over to police and remains in custody of the Hanover Township Police.
12. According to a criminal complaint filed against Edwin Cortez, police responded to the Slate Bar and noted bruises and abrasions on Plaintiff[] Bruce Fine's face, along with stab wounds. . . .
13. According to the criminal complaint, Edwin Cortez and Justin Catalano, employees of this licensed bar, fled out the back door of the Defendant, Slate Bar and Lounge, when police responded to the scene to investigate what had happened.
14. Using a police dog, police officers tracked Edwin Cortez.
15. Neither Mr. Mannino nor any other representative of Defendant, Slate Bar and Lounge, made any meaningful attempt to intervene, protect, or assist Plaintiff, Bruce Fine[, ] while the Slate Bar Bouncers negligently and improperly confronted Mr. Fine.
16. As a direct and proximate result of Defendant's negligence, Plaintiff, Bruce Fine[, ] has been, and may continue to be, subjected to further medical procedures and treatments, and all accompanying risks, hazards, pain, suffering, discomfort, and economic losses associated therewith, all to his continuing detriment and loss, and may be compelled to expend money for medicine and medical attention in an attempt to cure or relieve the pain caused by the aforementioned injuries.

(Id. at 26-28 (footnote omitted)).

         The single-count tort complaint alleged that Slate Bar was negligent by reason of the following conduct:

a. Failing to properly train its employees, agents, and/or ostensible agents to identify and avoid conduct that could lead to harm to patrons;
b. Failure to properly train its employees, agents, and/or ostensible agents to intervene in situations where the probability of ...

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