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Great Lakes Insurance SE v. Smithwick

United States District Court, E.D. Pennsylvania

October 3, 2019

GREAT LAKES INSURANCE SE, Plaintiff,
v.
VINCENT SMITHWICK, et al. Defendants.

          MEMORANDUM

          Schiller, J.

         Vincent Smithwick was shot in a parking lot of a bar. He sued the following defendants in the Philadelphia County Court of Common Pleas: Bala Inn; Bala Inn, Inc.; Bala Inn Sports Bar & Grill; Bala Tavern Company, Inc.; Cynthia Borish; Scott Borish; City Avenue Pawnshop Outlet; Robert Mazer; Little Kitchen City Restaurant; Daisy Larcena Walker; Jiffy Lube; Jiffy Lube #183; Jiffy Lube International Inc.; Jiffy Lube International of PA, Inc.; and City Avenue Investors, L.P. Smithwick alleged that the defendants' negligence and recklessness-specifically their failure to take reasonable security measures-caused Smithwick's injuries.

         Great Lakes Insurance SE (“Great Lakes”) issued to Mazer a commercial general liability policy that was in effect on the date that Smithwick was shot. Great Lakes filed a lawsuit in this Court seeking a declaration that it owes Mazer no duty to defend or indemnify him in Smithwick's state court lawsuit, and a declaration that it has no duty to satisfy any cross-claim for contribution and/or indemnification asserted by Mazer's co-defendants in that lawsuit.

         Presently before the Court is Great Lake's motion for judgment on the pleadings. Smithwick has not responded to the motion.[1] For the reasons that follow, the Court grants the motion.[2]

         I. FACTUAL BACKGROUND

         A. Smithwick's Allegations

         On April 7, 2016, Smithwick wanted to go to the Bala Inn. (Smithwick Compl. ¶ 21.) To achieve that objective, he “visited and entered the property and parking lot owned, managed and/or possessed and controlled by the Defendants upon the invitation of these Defendants.” (Id.) At around 10:50 p.m., while in Defendants' rear parking lot, Smithwick and another person were shot by an unknown individual. (Id. ¶ 25.)

         Smithwick claims that this parking lot had previously been the location of “prior violence and criminal acts, ” including a shooting, and that “Defendants had or should have had knowledge of prior incidents of violence and criminal acts on the property and parking lot in the immediate vicinity of the bar/nightclub known as ‘Bala Inn' and/or the ‘Bala Inn Sports Bar and Grill.'” (Id. ¶¶ 22-23.)

         Smithwick's complaint includes three counts: one for negligent security; one for negligence; and one for negligent infliction of emotional distress. Smithwick claims that Defendants recklessly disregarded his safety and the safety of others because Defendants knew of prior crimes in that parking lot. (Id. ¶ 41.) The negligent security claim lists a number of Defendants' purported failures, including creating a dangerous condition on their land, failing to have in place reasonable security measures, failing to prevent injuries, failing to intervene, failing to adequately staff the premises, creating a public and/or private nuisance, and negligently leasing property to Defendants. (Id. ¶ 36.)

         Smithwick explicitly “asserts no claim for assault and/or battery.” (Id. ¶ 26.) “Plaintiff does not allege or assert that plaintiff's injuries were due to intentional conduct, but rather due to the Defendants' negligent and/or reckless acts, omissions and other violations.” (Id. ¶ 29.) According to Smithwick, his injuries were “negligently caused by the Defendants' actions and/or inactions.” (Id. ¶ 30.) Smithwick also claims that Defendants recklessly caused his injuries. (Id. ¶ 31.)

         B. The Policy

         Great Lakes issued to Mazar a Commercial General Liability Policy (“Policy”), which was in effect on the date that Smithwick was injured. (Decl. J. Compl. ¶ 14.) Pursuant to the Policy, Great Lakes agreed to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury' or ‘property damage' to which the insurance applies. We will have the right and duty to defend the insured against any ‘suit' seeking those damages.” (Decl. J. Compl. Ex. 1 [Policy].) Great Lakes covers “bodily damage” caused by an “occurrence, ” which the Policy defines as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Policy.)

         The Policy does not, however, cover damages for personal injuries arising out of an “assault, ” “battery, ” or “physical altercation.” The “Assault or Battery Exclusion, ” states:

This insurance does not apply to “bodily injury”, “property damage”, or “personal and advertising injury” arising out of an “assault”, “battery”, or “physical altercation”: a. Whether or not caused by, at the instigation of, or with the direct or indirect involvement of an insured, an insured's employees, patrons, or other persons in, on, near, or away from an insured's premises; or b. Whether or not caused by or arising out of an insured's failure to properly supervise or keep an insured's premises in a safe condition; or c. Whether or not caused by or arising out of any insured's act or omission in connection with the prevention, suppression, or failure to warn of the “assault”, “battery”, or “physical altercation”, or providing or not providing or summoning or not summoning medical or other assistance in connection with the “assault”, “battery”, or ...

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