United States District Court, M.D. Pennsylvania
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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. §
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).
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).
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.
The Underlying Tort Complaint
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). 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
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)).
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 ...