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98.1756 CIVIL
Pa. R. Clv. P. 1035.2. In deciding a motion for summary Judgment, the Court will
'vlew the record In the light most favorable to the non moving party, and all doubts
as to the existence of a genuine Issue of material fact must be resolved against the
moving party.' E.MJ v. Patriot t'jews CQ.", 544 Pa. 93,98-99,674 A,2d 1038,1041
(1996).
It is well settled that the proper focus in interpreting Insurance contracts Is
the reasonable expectation of the insured. Britamco Underwriters. Inc. v.
~?;, 433 Pa. Super. 55, 59, 639 A.2d 1208, 1210 (1994). "Where a
provision of an insurance polley Is ambiguous, the provision is construed In favor
of the insured and against the Insurer." J,g. at 60,639 A.2d at 1210.
The use of a declaratory judgment action is a proper method by which a
court may interpret an insurance contract. GenerS!! Ace, Ins. Co. of Amer:.iQu"
Allill, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). A two step process Is used
in a declaratory Judgment action to determine the obligations of the parties to an
insurance contract: (1) determine the scope of the policy's coverage and (2)
examine the complaint in the underlying action to ascertain If coverage is required.
ltt.
As a matter of law, "an Insurer may base Its decision to defend solely on the
allegations of the complaint." Gene's Restaurant v. ~Ins. Co., 519 Pa.
306, 308, 548 A.2d 246 (1988). It Is Important to note that it is not the details of
4
98.1756 CIVIL
the Injury but the natura of the claim Itself which determines whether an Insured
must be given a defense. Donegal MlJ1.Jn~_QQ,...~lliU:Sl, 380 Pa. Super, 588,
593, 552 A.2d 699, 701 (1989). "In Pennsylvania, whether bodily Injury or damage
to property is caused by accident must be determined from the perspective of the
Insured." .smtQ.fi.mLMyt. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442,444,660
A.2d 66, 67 (1995).
The scope of the Zlnn polley is as follows: It provides coverage for bodily
Injuries resulting from an occurrence. An occurrence Is defined as an accident.
The polley contains an exclusion from coverage for any bodily injury expected or
Intended by the Insured.
The allegations in the underlying complaint assert that, while Zlnn .)nly
Intended to humiliate and embarrass Brymesser, he did kick Brymesser
Intentionally and without provocation, committing a battery. To be liable for battery
one must act intending to cause a harmful or offensive contact with another person
and the contact must result directly or Indirectly. Restatement (Second) of Torts
~13 (1965). The intent necessary to be liable for battery is stated as:
(1) If an act is done with the intention of inflicting upon
another an offensive but not a harmful bodily contact, or
of putting another In apprehension of either a harmful or
offensive bOdily contact, and such act causes a bodily
contact to the other, the actor Is liable to the other for a
battery although the act was not done with the intention
of bringing about the resulting bodily harm.
5
98.1756 CIVIL
Restatement (Second) of Torts ~16 (1977),
At Issue In this case Is whether the Incident between Zlnn and Brymesser
oan be defined as an occurrence, or accident. If not, the Inquiry ends, And even
If the Incident was an occurrence for purposes of the polley, It stili may be
precluded from coverage because the results of the kick were expected or Intended
by Zlnn,
In ~~taurant, Plaintiff flied an action In assumpsit to recover costs
and fees It paid In defending Itself In a trespass action, ~'s Restaurant '!L..
N.gtlonwlde Jns, Co" 519 Pa, 306, 308, 548 A.2d 246 (1988). The underlying
action In that case Involved a husband beating a wife on the restaurant's premises;
the wife sued the restaurant In trespass, alleging that the malicious assault by the
husband was not stopped by the restaurant. lih The restaurant's liability policy
covered bodily Injury for each occurrence during the polley period, Gene's
Restaurant at 309, 548 A.2d at 247. "Occurrence" was defined In the policy as
an accident, lih The court held that a willful and malicious assault Is not an
accident but an Intentional tort, !Q... "As such, It Is not covered bylhe policy and,
therefore, the Insurer owed no duty to defend."
lM...,Q.Q..... 519 Pa, 306,309,548 A,2d 246, 247 (1988).
Defendants In the nase at bar cite ~ States Auto Ass'n v,~. 358
6
98.1756 CIVIL
Pa. Super. 362, 617 A.2d 982 (1986), to support their claim that Zlnn is owed a
defense under the homeowner's polley issued by the Plaintiff. Defendant's reliance
Is misplaced. ~ dealt with the Interpretation of an exclusionary clause,
identical to the clause In the Zlnn polley, in holding that the Insurer had a duty to
defend Its Insureds. kI.. Given the holding In Gene's Restaurant, It Is clear that we
should not reach any interpretatlc," of the Zlnn exclusionary clause. An intentional
tort, as pled in Brymesser v. Zlnn, cannot be characterized as an occurrence under
the policy. A battery Is not an accident.
Our application of Elitzky Is supported by the holding In Donegal.MJ.!1.Jn.s..
Q.9. v. Ferrara, 380 Pa. Super. 588, 652 A.2d 699 (1989). In Ferrar", the court
held that an Insurer had no duty to defend an Insured who Intentionally kicked
another and the kick resulted in unexpectedly serious injuries. kL. The Ferrillil
court did not look past the allegations in the complaint to determine the damage
Intended by the kick. kI..
In the case~, we cannot look beyond the allegations in Brymesser's
complaint. Brymesser alleges that Zlnn committed a battery against him. An
Intentional tort, such as a battery, cannot be considered accidental. Zinn's actions,
as pled by Brymesser, fall outside the scope of the homeowner's policy Issued by
the Plaintiff. Therefore, Plaintiff has no duty to defend Zinn in the underlying
action, Brymesser v. Zlnn, and Plaintiff's Motion for Summary Judgment is granted.
II. fROCEDURAL HISTOij'i
On September 19, 1997, Craig L. Brymesser flied a Complaint alleging battery
and in the alternative, negligence, On or about October 14, 1997, Larry L. Zinn flied
both Preliminary Objections to Brymesser's Complaint and an Answer to Brymesser's '
Complaint. While Zinn filed an Answer to the underlying Complaint through his
personal counsel, counsel retained by Erie Insurance, Zlnn's homeowner insurance
carrier, flied preliminary objections,
During the oral arguments which were set to address Zinn's preliminary
objections, Brymesser's counsel voluntarily withdrew any claim for punitive damages as
well the count for negligence. The remaining claim is a claim for battery,
On or about August 12, 1998, Erie Insurance Company, Zinn's homeowner
Insurance carrier, filed a Complaint for a declaratory judgment seeking to avoid
coverage for the claims set forth in Brymesser's underlying Complaint.
Plaintiff has previously filed a summary judgment motion which has been argued
and a decision has not been made by this Honorable Court,
, '
Pa, 633, 606 A2d 903 (1991), Thus, the non.movant may not rely upon his or her
pleadings to controvert those facts presented by the moving party's depositions and
affidavits,
Rule 1035(d) of the Pennsylvania Rules of Civil Procedure provides that summary
judgment will be entered, If otherwise appropriate, when a properly supported motion for
summary jUdgment is made against an adverse party who rests upon the allegations or
denials In the pleadings and fails to respond to the motion by affidavits, or as otherwise
provided by the procedural rule governing summary judgment (such as by depositions,
answers to interrogatories and admissions on file), setting forth specific facts ShOWing that
there is a genuine issue for trial.
B. The Excluslonarv Clause of Erie's Homeowner's Pollc~
In !Jnlted Services Automobile Association y, Elitzky, 359 Pa, Super, 362, 517
A.2d 982 (1986) our Superior Court addressed the issue of exclusionary clauses in
homeowner policies,
United Services Automobile Association (United) brought an action for
declaratory judgment requesting a decree that It had no duty to Indemnify or to provide
a defense for Nathan and Judy Elitzky In an action filed against them by the Honor,,:ble
Joseph C, Bruno, Judge of the Court of Common Pleas of Philadelphia County, United,
517 A,2d at 984,
The Elltzkys stated that Judge Bruno was involved In a "behind the scenes
arrangement to circumvent discovery;" was believed by "federal officials" to be "a
participant in the cover-up of the criminal activity of trustees;" was guilty of "Judicial
corruption;" attempted to "fix" a case; and had an "improper relationship" with a party to
the case and with the law firm of Wolf, Block, Schorr and Solis-Cohen, Judge Bruno
denied all of the allegations and filed a complaint against the Elitzkys, United, 517 A,2d
at 964,
At the time Judge Bruno filed his complaint, the Elitzkys possessed a
homeowner's insurance policy from United, which was purchased in November, 1979
and remained in force at the time of the acts alleged in ,Judge Bruno's complaint.
Uni.IQQ, 517 A.2d at 984,
At this point we will compare the language used in United's policy, which was the
subject of litigation in that case, against the language in Erie's policy, upon which this
declaratory Judgment case Is based:
~
~~
Tne policy provided coverage tor
"damages because of bodilY InjUry
and property damages" sub\ect to
tne tollowing e)(CIUsionar{ claUse',
"ne policy provides coverage tor '
"damages because of bodilY injury or
property damage resulling from an
occurrence" ," sub\ect to the tollowing
e)(cIUslonar{ claUse',
section \I _ personal LiabillW coverage
Medical payments to Others coverage
~, coverage E. __ personal liability
and coverage f -- Medical
payments to ot\1ers do not applY
to bodily In\ury or property damage,
a, Wnlcn Is expected or Intended by
the insured,
We do not cover ", :
t ~) BodilY in\ur{ or property damage
expected or intended by anyone
we protect.
E.rie Insurance I-\omeowner's policy
page ~3
\J.!'ltes!., 5H A,2d at 984-5
Emphasis added,
" i' noted th" '''' l,ngUSg' In both ,ollel" I' le.nl\c81 aX.,.,1 th. unl\8d ,ollc'/
u'"' 11\. ,,,,,.. '11\' In,u"d" .ad \1\8 E,\8 ",lio, u'" th. ,1\"" "nY"" .. ,,,\801'
,u,"u.nI 10 ,1\' E,Ia '0110'/, ""~ l Zlnn " undoubl.dI, · ,,,,,n ,1\,1 .oule I,ll Into th.
b"ad ,,\8gO<'/ of ",n,o,," th.,.. ,,,,,,'.' 11\.,,'0", \1\8 ,01- ." "I.n,'b" ,1\'
simll'rlY 10 th. 0'" " I\8nd, 11\8 EII~"" nom...n"" In,u"n" 0,,,,\8'
di",.Ima<! """"g. unde' ,I\e ,oliO, "" th. ,,,,, "Iag.d In \1\8 unde"""" ""m",'n'
same,
.nd ',lad .n ,oil"" ",,,,,,, . d'cl"'to~ ludgmoot. ou' SU'""", Court "enb"'"
,,1.oI8d unl\8d" ,,,lIlon ,nd ",ul"" Unll.d 10 ,,,,,Ie' """",ge ,,, 11\. E""'"
What might be most Important to note Is that the Elltzky's were Insured by Erie
Insurance Company,
B, tnmmretatlon of Erie InsuranQ~!l..J:omDa.M's Homeowner's Pollcv
Erie has suggested that it should be free to decide whether to defend an insured
bas6d on the claims set forth in plaintiff's complaint. The obligation of an insurer to
defend anl1ction against the insured is fixed solely by the allegations in the underlying
action, Cadwallader v, New AmstEl,rdam Casualtv Co" 396 Pa, 582, 152 A.2d 484
(1959); Vale Chemical Co, v, Hartford Acc, & :ndem" 340 Pa, Super, 510,490 A,2d
896 (1985),
The standards to be applied in reviewing an insurance contract are well settled,
First, the words included in the instrument must be given their ordinary meaning, Erie
Ins, Exchanae v, Transamerica Ins, Co., 352 Pa. Super. 78, 83, 507 A.2d 389, 392
(1986), Second, ambiguous terms in an insurance polley should be construed against
the insurer, kl Third, a term is ambiguous only "if reasonably intelligent men on
considering it in the context of the entire polley would honestly differ as to its meaning,"
Id, Fourth, the parties true intent must be determined not only from the language but
from all the surrounding circumstances, kl Even if coverage is not excluded by the
terms of the policy, it may be excluded as violative of the public policy of Pennsylvania,
, ,
Nationwide Mutual Ins, Co, v, Hassl[1g!U, 325 Pa, Super. 484, 489, 473 A,2d 171, 173
(1984),
The tiasslnaer court defined Intent by relying on the Restatement (Second) of
Torts, @ 8A The court held that Intent means that the actor desired to cause the
consequences of his act or that he act"d knowing that the consequences were
substantially certain to result, kL., 325 Pa,Superlor Ct. at 493,473 A2d at 175,
Emphasis added,
Similar to the United court, we find ourselves needing to Interpret the words
"Intended" and "expected" as used in Erie's Insurance contract with Zinn,
Contemporary liability insurance policies generally exclude coverage for Injury or
damage intended by the insured, See Annot., 31 ALR 4th 957.
The United court, after reviewing the exclusionary clause in the United policy,
determined that such exclusionary clauses are susceptible to several reasonable
interpretations, Therefore, the Superior Court rejected the trial court's conclusion that
the exclusionary clause In the United polley was clear and unambiguous and held that
as a matter of law, such clauses are ambiguous and must be construed against the
Insurer, ~ee EriUQ.s, Exchange" 352 Pa, Super, at 83, 507 A2d at 392, As noted
supra, the United clause Is, for all intents and purposes, Identical to the language used
in the Erie exclusionary clause, The United Court held that an intended harm
I, f
exclusionary clause In an Insurance contract Is ambiguous as a matter of law and mus~
be construed against the Insurer, Similar to the United clause, the Erie clause is
susceptible to several reasonable interpretations, hence ambiguous and should be
construed against Erie and coverage and indemnity must be required,
Pennsylvania law is clear on the fact that an exclusionary clause applies only
when the Insured intends to cause a harm, United, 517 A,2d at 987, Insurance
coverage Is not excluded because the Insured's actions are Intentional unless he also
Intended the resultant damage, See Mohn v, American Casua!rL.Co, of Reading, 45B
Pa, 576, 326 A.2d 346 (1974), Emphasis added, The exclusion is Inapplicable even if
the Insured should reasonably have foreseen the Injury which his actions caused,
United, 517 A.2d at 987,
In United, President Judge Cirillo added that such a clause excludes only injury
and damage of the same general type which the insured Intended to cause, An insured
Intends an injury If he desired to cause the consequences of his act or If he acted
knowing that such consequences were sUbstantially certain to result. United, 517 A.2d
at 9B9.
In the present matter, the facts make it clear that Larry L. Zlnn simply intended to
kick Craig L. Brymesser In order to humiliate and embarrass him, Larry L. Zlnn had no
Intention of physically Injuring Mr, Brymesser or breaking Mr, Brymesser's coccyx, Mr.
.1 . ,I
, .
Defendant, Larry L, Zlnn, never Intended or expected to cause Craig
.~_..r bodi'Y '",.", not any harm .11.."" In Cra" .~m."er" underlying
complaint. Emphasis Added,
Craig L. BrymesSer's claim In clear. Mr, Zinn kicked Mr, Brymesser. The kick ,
resulted In physical injuries which were not the intended result of Mr, Zinn, There can
be nn qU.,lion .boul Mr. Zlnn'. \n\Onl" he h., m.de hi. intenl .bundantly oleer \n hi.
New Matter and the attached Affidavit of Larry L. Zinn,
.
I. statement of FactR
Larry Zinn and Craig Brymesser were both employed by
Roadway Express in Carlisle, Cumberland County, Pennsylvania. On
April 2, 1997, Mr. Brymesser was working when Mr. Zinn approached
him and kicked him in the buttocks. As a result, Mr. Brymesser
allegedly suffered injuries. Mr. Brymesser filed a civil action
against Mr. Zinn for battery and negligence at No. 97-5119 (See
Exhibi t "A" to Erie's Motion for Summary Judgment). The negligence
count in the Complaint was stricken by way of Preliminary
Objection, pursuant to an Order by Judge Guido (See Exhibit "B" to
Erie' s Motion for Summary Judgment). The only remaining claim is
the claim for battery, which includes allegations of willful and
malicious conduct.
Zinn requests indemnity and defense from Plaintiff Erie
Insurance ("Erie") based on a homeowner's policy ("policy")
maintainEd by Erie for Mr. Zinno The policy does not provide
coverage for intentional torts. There must be an "occurrence" as
defined in the policy (Policy at 13) in order for there to be
coverage. Additionally, the policy specifically excludes bodily
injury / "expected or intended by anyone we protect." (Policy at
13) . Erie has advised Mr. Zinn that there was no indemnity or
defense coverage for him under the policy for the claims alleging
2
the injury, but the nature of the claim that determines whether the
insurer is required to defend. lctL (Emphasis added).
Intentionally kicking someone in the buttocks is clearly
not an "untoward or unexpected happening" that could be classified
as an "accident" under the policy. To classify kicking someone in
the buttocks as an accident would be similar to calling a punch in
the back of the head an accident also. Mr. Zinn picked his target
and chose to swing his foot in that direction.
There is a clea,( distinction between the act committed by
Mr. Zinn and an act that would potentially qualify for coverage
under the policy. For example, had the nature of the claim against
Mr. Zinn arisen out of a negligent act on his part, there would be
a potential for coverage under the terms of the policy. (Emphasis
supplied). Under the facts of this case, it is undisputed that
onlya claim of battery can be supported. Therefore, Mr. Zinn's
actions lack the potential to be covered by t.he policy as an
"occurrence" because the nature of the claim asserted requires a
showing that Mr. Zinn acted int.entionally, not. negligently. An
"occurrence" covered under the terms of t.he policy does not include
actions that. arise out of wilful and malicious conduct.
This reasoning is best illustrated by the case of Gene's
.f\estauranLInc. v. Nationwide Insurance Co., 519 Pa. 306, 548 A.2d.
8
Court responded by saying, "[Sluch a r.eading ignores the policy
requirement that the "occurrence" must be an accident which a
malicious, wilful assault and beating could never be." 548 A.2d.
247 (See footnote 1). (Emphasis added) .
The .Gene's Restaurant case makes clear that a wilfl11,
malicious or intentional action could never be an "occurrence"
giving rise to coverage under the language of e1ther t.he Nationwide
policy 1n that case or the Erie homeowner's policy in this case.
As such, Erie has no duty to defend Mr. Zinn because the only cla1m
remaining against him is that he acted intentionally, wilful1y and
maliciously in kicking Mr. Brymesser in the buttocks. Such an act
is clearly not an "occurrence" giving rise to coverage under the
terms of the policy.
It must be noted that the Gene's Restaurant decision
interpreting the concept of bodily injury and occurrence was
decided by the Pennsylvania Supreme Court in 1988 after the United
States A.1!121!tobi.le Association case relied upon by Defendant
Brymesser in 1986. Clearly, the Supreme Court recognized that the
policy definition of coverage was controlling. The analysis of the
present case should not turn on the interpretation of an exclusion
butt rather, upon what is the definition of the coverage provided
under the policy. The Supreme Court/s interpretation in Gene's
10
Restaurant clearly indicates that a policy that defines coverage
based upon occurrence, as does the present Erie policy, simply does
not afford coverage when the event does not constitute an
occurrence.
Two recent slip opinions have also reached a similar
result. In Erie Insurance v. Fry, No. 1997-3271 (C.P. Mercer,
August 20, 1998), the Court, in a Declaratory Judgment Action, was
asked to determine whether Erie had a duty to defend and indemnify
Fry. The complaint alleged that Fry shouted obseeni ties at Flouch
as he opera ted a vehicle. Fry then reached in through the window
and grabbed Flouch by the hair and pounded his head against the
window of the vehicle. The Court found that the facts established
that the claim was neither accidental nor negligent, and found that
there was no coverage under the Erie policy because the underlying
claim did not constitute a claim for bodily injury resulting from
an occurrence.
The Court in Frv specifically commented on the Uni ted
ServiceRAutomobile l\ssociation case relied upon by the Defendant,
but found that as the claim did not constitute an occurrence, there
was no coverage.
A recent slip opinion of the United states District Court
for the Eastern district of Pennsylvania also reached a similar
11
the tonns of the Pioneer 21" Century Home Protector IMurance Polley, No. 049-3104197 (lbt
"Brie Policy"). Erie Initiated thi. dcdaratOf')' judgmont action to have W, Court dewmlne
whether Brie hu lilY duty or obUgation under the Brie Policy to dcfbnd and indemrllfy PI}' &om
lilY ClIIIm arillng out of the Incldelll between Floch IIIId PI}' that OCQIrred on MItch 26, 1995,
whioh Incident II the IUbject of tho undortylng I'wllli\. Currontly pending before thia Court I,
Brie' Motion for SUR\lllll)' 1udgmont. For the rlllORllOt forth bdow,lhI. Coul181'111ta Erie',
Motion for Sumnwy 1udament and declaru that Brie haR IlO duty or obligation to dthcr defend
or Indemnl~ Fry In the unde.rlylng '-wllUit.
STANDARD OF REVIEW
A motion for IlUnunal'y Judgment i. properly granted if, the pleadings, depositions, anlWer~
to Interrogatories, adml..lon. on tile, togcther with any affidavits, demon'lrate that there exists no
senuine il8ue of material &ct and lhe moving party i. entitled to judgment u a matter of law. Sml
PI. R. Civ. P. 1035.2. Tho trial &lort muat ClCIIlIine tho record In tho light molt &vorabIe to the
non-moving pllfly Ill1d IllIOlve all doubt. agaln.t tho moving pany. Britamco Underwritflf'l. IOC(.
v. Welnm:, 431 Pa. Super. 276, 6Jll A.2d 649, 651 (1994). SUlllltl4ry judgment mAY be grlUltcd
only when the right Is clear and free from doubt. 636 A.2d at 6~O.
nrSClJSSlON
Tho Declaratory Judgments Act, 42 Pa. C.S.A. if 7531.7541, may be invoked to
detcnnlnc whether an imurer Iuu I duty to defend and lndemnl~ lt~ IlI.Rlred with f'lIIpect to an
underlying Iawauit, .CiGObl AccldenllllRul'lnre Co of America v. Alleo. 547 Pa. 693, 692 A,2d
1089. 1095 (1997). on remanct.m. 708 A.2d 828 (PI. Super. 19911). AJ the Plnnaylvanl..
Supreme Court in AlWt explalned:
2
, ,
^ COUrt', first .tep in a declaratory jud,mellt action conccrnJns Insul'Ul(;Cl COYCIl'IIe
II to Illltcnnlne the scope or the pollcy's cov<<lge. After dctennlnlna the ICOJMl of
COVI..'I'Ige, the court mutt c"arnlnc the complaint in the underlyinllCtlon to
Ucet't4in ifit triggers coverage, If the complaint against the Intured Iverl facta
that would Npport I recovery covered by the policy, then covCfllBe iJ trigcrcd
and the lnsun:r has a duty to defend untlllUch time that the claim I, cont1ned to a
RCoVllry that the polley does not cover. The duty to defend allO canieI with It .
conditionll obligation to indemnify in the event the In.ured I. held liable fbr I claim
covered by the policy, Although the duty to defOlld is separate &om and broader
than tho duty to indemnify. both dUlies flow from a dctcrmillltlon that the
complaint trigger. coverlBe.
692 A.2d at 1095 (dtaticm. omitted).
Section n of tho Eric Policy. entitled "Home and Famlly UabIlity Protcc:tioft, .. prcw!dca in
relevant part:
We will pay aU sums up to the amount shaWlI on the Declaration.. which anyone
we protect becomes legaUy obligated to pay IS damagel because orbodlJy injury
or property damage rewlting from an Occurrence during the policy period. WI:
will PlY tbr only bodily injury t>r property damage covered by Ibis policy.
. .. lfanyone We protect i.wed fbr dlma8es because of bodily injwy or property
damage covered by this p'olicy. We will provide I defense with . lawyer we chooIe.
even If the allegations Ire not true.
(omphuis added), wOccurrence"ls defined in the ErIe Policy lIS an "lICCident, Includlna
continuous or repeated expoturc to the IIlllC seneral harmful conditinnA," "AecldeGt," however,
is lUll defined in the Erie Policy.
In Pennsylvania, whether bodily injury is c:wscd by an accldent IIlUIt be detennlllOd &om
the petapectlve of the inJured. SIltt..Fann Mutual Automobile ~. Co, v. M~ +42 PI. Super.
442,660 A2d 66,67 (1995). AJthoup this Court hu boon unable to find. cue deftalna
"accident" in the context or a IIabUlty insurance policy, this Court did find a PenneytyW.
Supreme Court case discuulng the deflnitloll oftbc phrue ","idcntlll1lClnl" In tho context ota
3
IIrtllnsul'll\Ce polley. In Urian \/, El'lultabJillfe AIAllrance So_ 310 Pa. 3"2, 16S A. 311
(1933), th~ Pelu'MylvlnJa Supreme Court Illled:
Our oases have unlronnly held thai where tho cause of injury or death wu 10 act
of the insured, the mCanl whieh .oauaed tho result, to be Iccldental, ll'lIJ&t be
undesigned and unintentional; that accidllntallnjury or death I. an unlmendcd and
undeaigncd rcault arialng from Ictl done, while Injury or death by accideltlallllt.llll
i. . result arising from acts unintentionally done.
165 A. at 390, ~ Martin. 660 A.2d at 67.
Seotion n oftlle Erie Policy allO excludet covetfl8o to named Inaureda far bodily ~
lllllllltionally Inflicted:
WHAT WE DO NOT COVER - EXCLUSIONS
PERSONAL LIABILITY COVBllAOE
MEDICAL PAYMENTS TO OTIIERS COVERAGE
We do not cover under P,r.Mnal1Jablllty CoveraRf t.JVlM,dica/ PtI)'IfIIPlII 10
Other., Cowrage:
(1) Bodily injury or proport.y damage cxpcacd or IIIlCftdccl by llOyone we
protect,
For the purpose of an insurance polley provilion excluding coveraae rOC' bocIUy Injury
"expected or intended by the InlUred," "an Insured Intend. an Injury if he doalRd to ~ th$ ,
oonsequenoee of his aot or if lie acted knowing dlat lIUdt oonscqucnCCll were IUbItandaDy eenlln
to result." lJnited Setylcea AulomQ)/1lc Au'n v. ~ 358 PI. Super. 362, m A.2cl982, 989
(11)86), After a thorough anaIYlla or"lhe CllpclCted or Intended hann" c1IU1Cl, the Superior Court
In ~Ii~ held thallhe clause Is amblguoul a.a matt<< of law and mUll be conatrued apinIt the
iNurer, S 17 A.2d It 989, and ftlnher hold that the word. "lntonded" and "expected" ICfl
.ynunymou. for the putpose of interpreting thllll types of ClCclllal~nary cIaolOl. 517 A.2d at ~1.
..
"Bath torma COMOte lIIl element of ClOnKlou. &WII'CIIO" on tho pan ofthelnlurwd." III. lithe
,atar dooe not have the abtuty to funnulale ...llltent, tho ro.uhllls act caNlot be intentional.
as~inller. 32S Pa. Super. 484, 473 A,;zd 111. 116 (19'.).
In the wnded Complalnt in the underlying lawsuit, Floch seeks to recover money
damqos against Fry for Injuries and dlllUl8~ allegedly sustained as a rrosult of 11\ uault on Floch
by Fry. In Paragraph 9 oftllo AIlIended Complaint, Floch dlllCribes the alleged ulloM of Fry u
foUows:
Thlt on March 26, 1995, tho Defendant, Donald Fry, shouted obscenities at the
Plalndft'for driving oft'hls driveway into his yard, The Defendant. Donald Fry.
then reached through the window ofthe vehicle end lVabbed the Plaintiff; Timothy
L. Floch. Jr., by tho hair and pounded the Plaintiff'. hesd against the window of
the vehlcle and slammed the Plaintiff's head agslnst the car snapping hi. neck back
and forth.
SR , 9 of'the Amended Complaint in tho underlying lawsuit, attached u Exhibit A to Bric'.
Motion for Summary Judgment. Although tbe actions alleged In Paragraph 9 certIinIy SUSSeM
.
intentional conduct, other paragrapbs orthe Amended Complaint refer to Fry', actIonl ..
negligent. reckless, and wanton. ~ m 12, Il, and 14 of the Amended Complaint In the
\Indortyln811W1\1lt, Ittlched u Bxhiblt A tn Bric'. Motion for Summary J\ldament. After the
complaint In the \IIldcrlyll1g lawsuit was filed. Eric undertook a dcfcnac on behalf ofFI)' puraulllt
tn a rewvatlon of ri8ht..
In an attempt to CltabUsh that the claim against Fry in tbe undorlying IawNI, talla outaide
the IQOpe or coverage In tho Erie Polley, Eric took the deposition of both Floch and FI)' in thia
declaratory judgment actlnn, In hlA deposition, Floch's description otpry'. aUoaod llCtiONl ill
conalstent with that in the Amended Complaint:
5
When I WOJ actlioa. you know, pullin, up behind him And .topplna. he w.. .cttlna
out of his truc:k., and he corne up and I'llllchcd throup the window and called me a
fbckina Idiot and .muhed my head up - arabbed me through the willdnw, becaulCl
the window was down about elahl inches 10 nine inchD8, and he reached thtou.h
and Srabbed me by the hair and JUSI .laned yankJna my head, pullins up asalnlc tho
door, and he was, like, How mueh of an idiot arc you blckins Into my yard'l IIllI. 1
don't know, I don't remember too much.nor that. Iju.tldnd of -I don't Ialow.
~ Depo8ltion of Ploch It p.7, att80hcd as Exhibit D to Erie', Briefin Support oeMotion for
Summary Judgment. Fry, on the other hand, contend. thai he never attaclccd or WlUlled F1oc1t:1
Q. So you'reltillln your vehicle u you pull down to the road?
A. Rlght. And I pulled down to the road and I looked In the mil1'Or. and
in.tead of him backing In the turn-around, he baclc.ed around my car and risht over
into my front yard and gOllhc fender up against the house. Well, at that point I
got out oftbe truck and walled bacll. up Ihe drivcwlly. HIl hallthu window down
two to three Inches, and I said 10 him. What the hell do YOll think yuu're doing In
my front, yard? I said, There's the turn-around over there. And he didn't wwer
me. Iftd I .ald, Look at me, and I shook my flnser at him 1lJcc that (indicatina), and
1 auw IlWore at him, and in l'eturn, the srandfather, he said, Don't IWCIU' at my
grandson, and J .ald, Well, you aln't no goddamn better than he i. !fyou're that
ignorant to back into my /Tont YArd. J jullt had it rolled. He started swinslnl hi.
. ,
ann. and ,-
Q. Old you reaoh insido?
A. No. I was .haklng illY liSl. but lilY 11llIIc.! nl:Vl:r wc:ntln, because the
window was only down "bout that much (indicating), and I had . heavy winter
coat on and thore was no way I could've got my hand imide the truclc.
Sf;a Deposition of Fry at p. 20, attached u Exhibit E to Erie', Bricfln Support of Motion for
I The ract that Fry denies the allegations In the undcr1ying lawsuit dOlI not give rile
to . duty to defend on the part of Erie. Erie'. duty i, not a duty to defend all cIalllll that iil
illlUrcd contenda are sroundleu, fal~ nr fraudulent. Rather, Eric'. duty II . duty to dertnd all
claims cove~ under the poli~. evan Itthe allegatioN are not true. ~ Erie Polley, Seetlonn at
p. IJ, ItlIolIed as Exhibit B to Eric's Motion Cor Summary ludgment. $,lIUIm ~llllt
Insurance Co. of Amerlc. v. A.l1~ 547 Pa. 693, 692 A2d 1089, 1093.94 (1997) (1ft inan'er'.
duty to derend lawsuit. even if aroundless. false, or fraudulent ill/mlted to lawsuit, ralIina cI.1mo
covered under the policy), no remAnet tL1, 708 A,2d 828 (PI. Super. J 998).
6
'.
Summary Judgment.
Floch', deposition testimony estabUlhes that Fry's alleged actions that form the basil fof'
the underlyinglawauit were neither accidental nor nealisont. Furthennorc. no facti WIll'O
catabU.hed or revealed during the depoaitlon of Floch or Fry to show that Fry did I>>S haw
( I) . eonsclouI awareness of his actIons or their consequences, or (2) an abiUly to fonnulato an
Intont.t Consequently, this Court concludes.. a matlor of law that the alleged actlo4la ofrry
dCllCribed in fIloch', deposition arc allintentlonalIlCtIOlls.~ Tllor.., I. 110 allClScd adion of Fry that
could possibly be characterlt.ed as accldental or Mglisent. Therefore, there IA M cnverage under
the BrIe Policy because the underlying lawsuit does not contain a claim for bodily injury rosulting
from an "oCCl!rrence," In addition, the claim contained in the underlyinglawsuil i. excluded
I For example. if an insured WIIS intoxicated at the time of the commIlIion of the
allesed act.. that faot must bel considered in detennlning If the insured had the ability to Cannulate
an intent. Nationw\~Cl Mutual In', Co. .... HassinllCt'. 325 Pa. Super. 484.473 A.2d 171, 176
(1984). See also SSidJWn v. MlUnI~ Sportlmen'. Cblb, 421 Pa. Super. 548,618 A.2d 945
(I 991)(even though the Insured Ihot and killed a ptl'son and pled guilty to third degree murder,
the Insurer stili bad a duty to defend the civil ClIO aglilllt tho IlL'IUred bOOlluse (1) the civil
complaint against the insured alleged MOllgont, c:arelelS, recldess, andlor willful conduct, IIId
(2) evidence establilhed that the Insured was Intoxicated at the time of the Ihootlnglnddent).
J In the Amended Complaint in the underlylnSlawsuit, Floch'l attOl1lllY IIbeIecl
Fry'aactinnllll'negllscnt, reokloss, and wanton. S= 1ft 12,13, and 14 otthe Amended
Complaint In the underlying llwsuit, attached al Exhibit II. to Brie'. Motion Cor Summary
Judgment. Under pcnnaylvwa taw, "11\ Insurer'. duty to defend an action apIll1& the iNured I.
measured, ~ by tbe aIIeglltionain the plainders ptcadlnas." ~
Inc v. Nltlnnwldn In.ur.lIt'~ Co.. S19 PI, 306, S41 A.2d 246 (1918) (emp1wll tddecI)(quotkls
1C J. Applemln, Jnsuranee Law andYractlce i 4683, at 42. (W. Berdel ed. 1979)), However,
now that the partioa have Illl8aaed in discovery and had tho opportunity to lllly deYtIop the
factual record in .upport of Floch' I claim in the undlll'lying lawluit, this Court II no Iooaca'limltcd
to a consid<<ltlon of the aUogationl in the Amended Complaint and the label. placed therein on
Fry" .ctioOl. Moroover, those tabol. an: nothlns mof'O than logal conc\uaiona- wNch thle Court
has now determined, baaed upon tho ovidence obtained through diseovecy, to bel OlTOnOOU.1epI
concluaion..
7
.
under the Eric Policy bcoause tho alleged bodily Injuries IUSlalned by Floch. are the typea of
Injuries intended ur expected .... . result or the allcaed intentlonalactlons ofFI}I. In olher wordJ,
Pry's alleged action. aro ofauch . natllre thltllllntont to In1Ilct the type oflnJuriOl IlICl1llllly
IUItIlIllld by llIoch can be InfCITod U Ilnalter of law. Consequently, U. rwlt oftbe depoamon
testimony ofFlooh and Fry, Brie has now confined Floch's claim to. claim (I) not covered under
the Brie POlley, and/or (2) specificllly elCeluded by the Erie Polley,
CONCLUSION
Por the reasonl set forth above, this Court arants Brie's Motion tOr Sum1llll)' Judflment
and declaretl that Brie has no duty or obligation under the Brie Policy to defend m:llndllRwry'
Fry In the underlying lawlllit.
An appropriate ordor follows.
.
4 A. I rosult of Fry's alleged wault on Floch, Floch alleges to havCl MWnod
.erious InJurie1, including, but not limited to, the foUowlns:
II. Thoracic and cervical strain;
b. Ccmcusslon;
o. Neck-injury - right al1ll nu1llbne..;
d. Headaches;
e. Back pain;
f. Abrasions;
g. Emotin"nJ distress.
.&all Amended Compllint in the underlying lawluit at t II. attached IS Exhibit A to Erie', Motion
for Summary Judament.
.' B0!:4usc the duty to defend il broader thanlhe duty to indemnifY. F.rio could not
be requIred to indemnitY FI}I without 1110 beina obUaated to defend him.
8
.
,
'1?cy.v 9f;1; S J ~ d 3ot.J-~ 3-(J
(5-)
IN THE UNITED STATES DISTRICT COURT
~'(ll( THE EASTERN DISTRICT 01" I'llNNSYLVANr1l
STATE FAlUf FIM .. CM. CO.
CIVIL ACTION
v.
MAlty ELLEN TOLMIE, ~'HOMAS
~ACOBS and ANN JACOBS
NO. 97-7878
MEMORANDUM
WALDHhN, J. Ootobe~ ~1, 1~~8
Plaint1ff seeks a doclarAtion thaL it has no duty to dofend or 1ndemnit,v
its Insured, derendllnL MttL'Y El1lJll To1mi., ill" pending .tete ..ourt, t,ort.
8uit filed agAinst her by Ann and Thomas Jaoobs.
Th. underlying luit arises from 41'1 argument at an equestrian l..hoo1 Whioh
, Ad to vlo1ence when MY. Jduobs Asked Ms. Tolmte to vQcD.te Il ridlng ting
while MS. Jacob. gave A r1ding l...son. Ms. Jaoobo swore out .. c~imin.l
~ompla1nt against Mr.. TOlmlA ~nd tiled the UndQrlying cl~il l~w.ult in the
bucks County common PloaD Court against h~r (er injurioo r~sultina from the
fight. Mr. JanohR aued tor loss of aonsortium.
At aU reillv~mt t lilies, Ms. To1mle was Ins\lL'''\\ ll11d,lol: a hOlllflownen pollcy
issued by plaintiff St~tu Farm. St.at~ Farm retained couns.l for Ms. Tolro10
a\llljeat to fI. L'''$..rvation ot l'ights /In" commenced thlo inatant doclaratory
judgmont Mtl(1n.
The ccurt hae 8ubjent matter jur1sdictlon pursuant t(l 2ft II.S.C. 1332(al.
The cithenship or the parties is dlverse and the amount 1n oontrovorsy
.w~sed. $75,000.(1)
praaentll( bitt ore the aoutt 1sI pla1nUU staa Farm'B Motion CUL' SWl_L.I'
JUclgment .
The followlng quot.. &uoolnot~y summarizes an lnaurer's dutl( to clelAnd and
to Indemnity it. insur..d under !>onnaylvania law. (2)
The duty to defend is a dlstinot obllgation separate and apart from the
duty to Indemnity. Erie In.. EXchange v. Tranaamerlca Ins. co., 516 pa.
57., 562, ~J3 A.2d 1JGJ, 13&0 (1907). The duty tu dur~nd arl.... When.ver
claims asserted by the injured party potential IV come within the coverage
at t~1l poUoy, aodeon v. St"'t~ FaJ;'ll1 H\IWMl Automoblle Ins. Co.. 410 Pa. 55,
56, 188 A.2d 320. 321 (l~bJ), while the duty to lndel1lllHy arlMllu unly when
the inaured i, cletermined to bo liable for d~gea within the coverage of
the policy. See, ..g., Illnployers ROllnourance Corll. v. Sarris, .", P. II.Ipp.
!l,60, 566-68 (E.D. Pa. 1990). It followB t,hl," , that when the olaims in the
.
Un~.rlylng action have not b~~n adjudic~tad, thG oourt enterc<<ining the
declaratory jU4gment Aotion must tccus on whQChAr the undexlyin~ cla1m8
could potentla!ly come within the coverage ot the policy. Air products ~d
Okemtode, Inc. v. Hartford Acoident oIl11d lndomnicy Co., 25 F.3d 177, 1'/9
(3d Cir. 1994). It there ie e pORR1hility that anv of tho undorlying oluims
could be oovared by the pOlicy at iRBue, the in.urar i. obliged to provide
a deten.. at leAst until such time .1 those faoCe Are determined, and the
cldm 11 narrowed to one Pdtlfl.Lly outllidO ot coverAge. C. Raymond DAvis .
dona, Inc. v. Lll'lf<'LY Hut. Ins. Co.. 41>" F. supp. li, 19 (E.D. P.... Un),
On the other h&nd, it there ie no pODoibillty t~t &ny of the underlying
claim. oould be covered by the policy at isllue, jUdgme"t in the IMllur'.
tAvor With regard to the duty co defend and indemnitic4tioo il appropriate.
S..e, '.11., aarlMnt(IWr.. InD. Co. v, MArtin, 407 I>a. s:up~r. 326, 595 A.~d 1172
(19921, alloe, deni.d. ~~1 ~~, 646, 612 A.2d OilS (199~1.
Rritamco underwrlt.r~, Inr.. V. Sloke., 001 F. supp. 19~, 198 (E.D. Pa.
1995) .
An ir"IITer' s duly r.o det..,,/! 18 datormlnlld solaly frOlll tha allegationl in
the underlying compl.,l,l'\t giving rh.. to thlll "him 0.90.1n8e the insured.
Lebanon coach Co. v. (:~rol1na Cu. 1011. Co., 675 A,M 279, 286 (Pol.. SupAr.
19961. Determining thl!! duty to defend unCler an in.urllllce policy 11 a
quollt:ion or lCl\ol requiring only 'm lfxwninat10n ot th1i language of the \)ol1cy
at ill8ue and thll allegationll in th" undarlyill\l compldnt. Clane' 8
Restaurant, Inc. v. Nationwln~ Ins. Co., 548 A.2d 246. 246-4? (rQ. 1980).
An ineurano~ pOlicy mult he rQ~d all a whole and be construed according to
tho plain moaning ot it. terms. C.H. H~ist cKciba Corp. v. AmerioAn Kome
Auur. Co., 640 F.2d 479. 481 (3d ell". l!HH) I At.lclntj,o MIlt. lnll. Co. v.
Brotech Corp., 857 F. Supp. 423, 427 (E.D. PII. 1994) At('d, 60 1".3d 813
(1995). "Whorll the language of the contract 19 clear, ^ oourt i. required
to giv.. the wordll thoir ol'dinnry ~"n1ng.' IcI. II.... alwu aen.. " Harvey
Rllildarl, Inc. v. Ponnsylvan11!1 Hfrs' AlIS'n JnA. r.:,-", 517 "'.2d no, IU (pa.
1986) (hold.l.nq thaI: oOllrts entOt'Cll t:llA plKin lMlaning ot. unlU1lbiguoua policy
languag~ dti d "at.tar ot. law).
'l'Ile burel..n ia on the insured to establish coverage under an ir,aur&no.
policy. 2~i. In.. Exch., ~33 A,2d dL 1366-67; Benjamin v. Allstate Tn..
Co., 511 A,2d 866,868 (pa. !':llPl1'r, 1986). The hurd'ln or otltablilhing the
~pplioab11ity of an exolusion i8 on the insurer. Al18tat~ Ins. Co.. 834 F.
supp. at 857/ E~i. Ins, txch., 533 A."rl ~t \)66,
'l'hll insurance polioy at j,SSU8 provides in port,inent Plitt I
COVERAGE L - PERSONAL LIABILITY
It A claim i8 ~d~ Dr a suit i8 hrought againat an in.u~ft~ for damages
becaullA nf I:w:ldUy injllry or pr.oporty d.:iJl\o).ga 1:0 whioh thb CClVoIIlct\llf app11es,
oaused by an occurrenoe, We willi
1. pay up to o\.r limit ur llabilit.y t.or the dol.lllllgoe for Which the in_ured
is legally liable, And
2. Pl'uvlde II der.nee at ouX' expense by counsel of our
choice. We may make any investigation end sett)", any olaim or .ulr. t~t w.
deoide ill apptopr1ate. Our obliglltion to det.end any chlim or luit ends wlllln
r.hO!! NllO'.\nt we pay ror dlll1lages, to .thct settl.lnent 01' yat.hty a judgment
rellulting frnm the occurrenoe, equalc our limit. of 1i"bility. . . .
BECTION II - EXCLUSIONS
1. Coverage L and Cov.r4U~ M do not apply 1:0
I. bOdily Injury or property d4m4gO!!I
,
(1) whioh i. elther expected or intandod by An
lnlllndl or
(2) to any pari on or property which i. the r..u1t
<:It willful end "",11oiouI acts ot an insured.
(emphlllh in original).
'1'11e policy daUna. 'ocourrence' as 'an acoid~IIL, lllulullin" AA\l08Ilr. tQ
conditiClne, which result. inl a. podily injury I or b. property cWu.g..'
IltAt. ",srm ar<;luee ellato th.. injuriaa to Mr. and loin. JAcoba ara not r.lov.rlKl
because the auault by Ms. Tolm1e wu riot an 'oocurrence' and beeaue. the
int110tion or injury to MS. Jacobs was '~xp.ct.d or intended' by H~.
Tolmh,
The Suprem.. Court ot Ilannsylvan1a hAS construod an equivalently wun)w
d"t'1nir ion ot .OO(:t1.I1~L.f!'n"ft. '~n maan 'Accident,' flee Oene'. R..taur~t I s..a
A.2d at 247. When it is all8qed that the conduct or the lnaur.d oaueing
harm w&e intentional, there Il"'R h....n 110 aco1dent or 'ocourrenoe.' II..
Nationwide Kill:. t'j.u Xns, I~O. v. Pipher, 140 1".31.1 22:'>', 226 (3tl elL. lUll).
The 'expected or intended' olau~.. ~xolude$ trom oov..rag.. liability tor harm
ot thR typ.. whioh th.. inaured Intends to oauSA. ld. at 227. An insured
intenda to caUQa harm it he d~$1red by hia act to do so or it hA ~~t.ed
knm.ing Llllit 6luoll hcllrm WAS substllntially cutain to re9ult. Uni ted Servioes
/lutOll\obil.. Au'n v. l:HtZKY, f;17 ....~d 982, 989 (Pot.. S"p.;.r, URn),
f.>laintitte in the Ilnd..rlyinll Iluit allegoEl t.hllt th.. inauud 'violently hit
[M9. J4UOU~) in th.. rao.. with her whip and lead,' that tho insured 'jump~
ott h~r horse and startlln to violently beat upon [Ms. JlIcoba)' &nd that the
in.u~.d 'used both hands to aggrcooivoly grab ar.ound IMa. Jaooba'a] nock.'
Queh act. w.r.. ~le~rly int.ntional an~ of ~ type sUbstAntiAllY oertAin to
OAIl" il\:iury.
Tho Jacob..1 A1IO Alleges that KQ, Tolmie WAR 'negligent' tor failing 'to
proporly rido hor hor.. An~ oontrol her temper.' Ther.. la no ~llegAtion or
Cu""..tion that the injllriea l1uataiMd by Ms. ,Yaoohl1 WAre proximately
oaused by the In4nner in which MI. Tolmie WdS riding. (3) ho"uminll tlwlt one
oan "negUgem;ly' lose one' II tempfi'r, 1L w..~ ~h.. j.>hywi<':Ql whit>t>ing,
6trllTloUng and beating which oaused Ms. J...cobs'. Injuries. It is virtudly
inconceivable that for ooverage purpo... the state oourts would di.tin~i.h
'hAr,wAAn 1111 1111.11111.1 (111111 lJdttll!l'y dut:lol'll\'klnied by a display of ~ngl!!r from one
inrlicted by a cool and oomposed der~nddnt.
Although factual allegatiQ~ eou1!il.li'lIll: 1:0 otolto a pri..... faolo ol~illl tor
naQl111ence wOllld trigger the duty to der~nd, 'C1 pl.C1iut1tf m..y lIot dress up
a oompldnt so AI to avoid the insuiance exclufI t on,' NuLiollwille M\.lt. Ins.
Co. v. Yaeger, 1994 WL 447405, ...t "2 (~.u. Pol.. AUg. 19, 1994), arr'd, 60
F.Jd 816 (31.1 eil:. l~~S). . [I)t t,h.. fAntll~l allagations ot the oomplaint
lIouI,d I.u illt'lI\tlcJI1al tort, arb1trluy URe of the word 'negligenoe' will not
trigger an insurer's duty to derend.' AgorA syndioate, Inc. v. Levin, 977
F. Supp. 713, 715 (E.D. Pa. 1997). Se.. alao Potamkin, 961 F. 9upp. at
11.'-'1~ (..ddltlon of nealigenoll claim did not brinlt complaint. within
cover.ge whon the factual all..gations sugg.st..d intentional conduct)
aermantown Ina. Co. v. Martin, 595 A.2d 1172, 1175 (P"I, !lnper. Ct, lhl)
(~Qnying coverage where complaint included nQgligon~o cl~im but oonduct
desorib..d WlIa intentiOl\all. The tactual alleqlltions in the underlying
complaint olearly des crib.. intentional conduct and not m.re n.glig.noe. See
a"ne's RQataurant, ~4H A.~d at l47 (~llegatlons of ~trikin~ with Eilts
deaoribllD intentional tort). Soo aleo Allstat.. Insuranco co. v. Fisohor,
1998 "'1. 205693, at "J (E.D. I'a. A\)I:'. 28, 1998) ('A Ll\ll'IlOIl cannot
~egligently gr~b another p~rRon And repe~tedly strike hto face.')1 Yaeger,
..
l~~C WL 447405 (8triking victinl with broom handle ie intentionAL And not
negligent: I .
'I'h'" lou ot' Clon'Q"U\II'Q clAim Aho doell not triggor pldntitt'n 4ul~y to
d&tend .1nc. thl. ol~im i. deriv~tiv~. ~~~ Fi.cher, 1998 WL 205693, At *)
(denyinll Cloverage fo" derivativfl Lou ot oonsortl,um clAim) .
D.f.ndant. a"gu. alternativ.ly thAt Ms. TDlml~'w Qwwllrtion .ho aClted ln
fllll! dllten.. trJ.qg'rlI the dllthe to a.tend and indemnity. Wh.1le t.hlll
~ennsylvania Supr.m. Court hag not .quarely ruled on this que.tion, thA
Superior Court bAo held that an ass.rtion ot solt de(ense dO.1 oot brlnq
such an aotion within the coverage ot A policy with an "expeoted or
inten4fld" e"clusion. Gel!! DOI"...,...l HUt. Xnw. Co. v. 7.rrara, 55::>' 1'1.34 U9,
702 (l'ol. !'luper. 19891. Thh rulinl'l 1l\'lI'Mr. to bo lIound .-nd (lond.tllnt with
the rille that the duty to d.fend Is determined by the tactuaL allegations
in the und.rlying complaint.
Xl: ol.arly appears trom the factual Allegation. in the und~r!ying oomplaint
thllt the injurieg iuflict.d on Hre. Jl\Clob~ r,,"ultod from intentional
conduct. by r,h.. in"lIn4 and if not intendfOd, whioh would ba vin.udly
inconcaivabla, were of a type substAntiAlly "ort.in to result trom th.
aggravated battery described. As luoh, there CAn he no ooverage under the
Stat.. "...rm pr,tlioy. at&t. FArm thu~ h.... no Cluty to dofend 01' In<1Olllnlty MA.
Tol~ie. Accordingly, plaintltfR motlon will be grAnted. An approprlats
order wil1 be Bncered.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYI,VANIA
STATE F~ FIRE' CAS. CO.
CIVIL ACTION
v.
MARY ELLEN TOLoMIE, '1'H0MlI!l
JACobS and ANN JACOBS
NO. 97~7878
"'.'
ORDER
MD NOW, thia a"y of october, lYYlI, "pon oons1aeratlon af pldntiff'.
Hotion far Summ&ry J'''dgm",nt (Doc. 18) and d.f.ndantl' r..lpollle thereto/
consistont with the acoompanVioQ me~orandum, ~T IS HEREBY ORDERED that R~id
Hotion ls GRANTED and aooor~lngly JUDGMENT ls ENTeRED in the above
dQOldU.tOly JuCll/mont actlon ~or pl.alntttr "nl1 "gdnst -:loten4antl, AM it 11
thUR I1AnlAr....d that phlntiff ha. no duty to ddena or indomnUy M&ry'Ellen
Tolmle tor thQ clalm.. now asoQrtod againllt her in the aotion entitled
Thomlll Jacobs And Ann Jacobo v. H~ry Tolmle. pending in th. Court of C~
Pleal of aucks county, Duuklll No. S4-0769C-1C-2.
BY THt COURTl
.'
I. Staterllent of Faots
Larry ZInn and Craig Brymesser were both employed by
Roadway Express in Car Us Ie, Cumberland County, Pennsylvania. On
April 2, 1997, Mr. Brymesser was working when Mr. ZInn approached
him and kicked him .in the buttocks. As a result, Mr. Brymesser
allegedly suffered injuries. Mr. Bryrnesser filed a civil acUon
against Mr. Zinn for battery and neglIgence at No. 97-5119 (See
Exhibit "A" to Erie's Motion for Summary Judgment). The negligence
count in the Complaint was stricken by way of Preliminary
Objection, pursuant to an Order by Judge Guido (See Exhibit "8" to
Erie's Motion for Summary Judgment). 'rhe only remaining claim is
the claim for battery, which includes allegations of willful and
malicious conduct.
Zinn requests indemnity and defense from Plaintiff Erie
Insurance ("Erie") based on a homeowner's policy ("policy")
maintained by Erie for Mr. Zinn. The pol icy does not provide
coverage for intentional torts. There must be an "occurrence" as
defined in the policy (Policy at 13) in order for there to be
coverage. Additionally, the policy specifically excludes bodily
injury, "expected or intended by anyone we protect." (Policy at
13). Erie has advised Mr. Zinn that there was no indemnity or
defense coverage for him under the policy for the claims alleging
2
the injury, but the nature of the claim that determines whether the
insurer is required to defend. Id. (Emphasis added) .
Intentionally kicking someone in the buttocks is clearly
not an "untoward or unexpected happening" that could be classified
as an "accident" under the policy. To classify kicking someone in
the buttocks as an accident would be similar to calling a punch in
the back of the head an accident also. Mr. Zinn picked his target
and chose to swing his foot in that direction.
There is a clear distinct:lon between the act committed by
Mr. Zinn and an act that would potentially qualify for coverage
under the policy. For example, had the nature of the claim against
Mr. Zinn arisen out of a negligent act on his part, there would be
a potential for coverage under the terms of the policy. (Emphasis
supplied). Under the facts of this case, it is undisputed that
only a claim of battery can be supported. Therefore, Mr. Zinn's
actions lack the potential to be covered by the policy as an
"occurrence" because the nature of the claim asserted requires a
showing that ~Ir. Zinn acted intentionally, not negligently. An
"occurrence" covered under the terms of the policy does not include
actions that arise out of wilful and malicious conduct.
Thi.s reasoning i.s best illustrated by the case of lie.n.~
J3&iU;aurant Inc. v. NatIonwide Insurance Co., 519 Pa. 306, 54B A.2d.
B
Court responded by saying, "[s]uch a reading ignores the policy
requirement that the "occurrence" must be an acel,dent which a
malicious, wilful assault and beating could never be." 548 A.2d.
247 (See footnote 1). (Emphasis added).
The Gene's_Restaurant case makes clear that a wilful,
malicious or intentional action could never be an "occurrence"
giving rise to coveraqe under the language of eHher the Nationwide
policy in that CRse or the Erie homeowner's policy in this case.
As such, Erie has no duty to defend Mr. Zinn because the only claim
remaining against him is that he acted intentionally, wilfully and
maliciously in kicking Mr. Brymesser in the buttocks. Such an act
is clearly not an "occurrence" giving rise to coverage under the
terms of the policy.
It must be noted that the Gene's RestiO,urant decision
interpreting the concept of bodJ.ly injury and occurrence was
decided by the Pennsylvania Supreme Court in 1988 after the United
States Automobile Association case relied upon by Defendant
Brymesser in 1986. Clearly, the Supreme Court recogni zed that the
policy definition of coverage was controlling. The analysis of the
present case should not turn on the interpretation of an exclusion
but, rather, upon what is the definition of the coverage provided
under the policy. The Supreme Court's interpretation in Gene' s
10
ful.stauranl;. clearly indicates t.hat <I policy that defines coverage
based upon occurrence, as does the present Erie policy, simply does
not afford coverage when the event does not constitute an
occurrence.
Two recent slip opinions have also reached a similar
result. In Erie InsurarlCe v. Fry, No. 1997-3271 (C.P. Mercer,
August 20, 1998), the Court, in a Declaratory Judgment Action, was
asked to determine whether Erie had a duty to defend and indemnify
Fry. The complaint alleged that Fry shouted obscenities at Flouch
as he operated a vehicle. Fry then reached in through the window
and grabbed Flouch by the hair and pounded his head against the
window of the vehicle. The Court found that the facts established
that the claim was neither accidental no;:" negligent, and found that
there was no coverage under the Erie policy because the underlying
claim did not constitute a claim for bodily injury resulting from
an occurrence.
The Court in Frv specifically cOll\ll\ented on the .l1.nited
Services Automobile Association case relied upon by the Defendant,
but found that as the claim did not constitute an occurrence, there
was no coverage.
A recent slip opInion of the Uni ted states District Court
for the Eastern district of Pennsylvania also reached a similar
11
.'
the terms orthe Ploncer 21" Century Home Prolector Insurance Policy, No. 049-3104 1 97 (\be
"Brie Polley"), Brie Inltillted lhi. doc/aratOl)' judgm8llt action to have W. Court determine
whetber BrIe baa any duty or obUptlon unda' the Brie PoUey to defend lAd inclemalty Fry tom
any claim arising out ortllfllnoldellt between Ploch IlIId Pry dw occumd on Marcb 26, IlJ9S,
which lnddent It the aubjeet of th. und.rlylll3 lawault, CUITClIltly pending beior. thia Court I.
Erie' Motloll for Summary 1udsmonl. For the rlllORlIOt fot1h below, thi. Court It'IIltI Brie'.
Motlon fOf Su~ ludsment and declaru that Brie hlll no duty or oblisation 10 either dofend
or Indcmni~ Fry In the underlying lawllUlt.
STANDARD OF REVIEW
A modon for summary judgment is properly granted It, the plcadlnp, depoliliofll, IIIIWI'lCC
to Interraptories, Idmlulon. on fiJe, together with any affidavit.. demon.trate that there exllt$ no
aenulne iaul ot'material fact and the moving party i. entitled to judament u a matter of Jaw. S.
Pa. It. Civ. P. 1035.2. The trIal ~rt muat examine the record in the light molt &vonhIe to tho
non-moving ptu'ly Ind resolve all doubt. agaln.IIM movlnS party. Britamco 1I1\1111lrWritera. IIlO.
v, Welner, 431 P.. Super. 276, 636 A.2d 649, 651 (1994). Summary judsmcnt may bel "ranted
only when the right I. clear and fl'ee from doubt. 636 A,2d .t 650.
DISCUSSION
The Declaratory Judgments Act, <12 Pa. C,S.A. if 7531.7541, may be lnwkecl to
determine whether an lnaurer hu a duty to defend and lndemnl~ IlK hoored with ,.,. to 11\
underlying lawllIit, General AecldentlnAUl'ance Co Of Ameriea v. All., 547 PI. 6S1J, 6P2 A,2d
1089. 1095 (1997), on l'MUIllclJA. 701 A.2d 128 (pa. Super. 1998). AI the PtMIylvania
Supreme Court in AllIn explained:
2
A court'. lirat .tep in a declaratory judJmont action conccrnlna IfllUl'IIICe c:overqe
I. to ~~tcnnlne the 1C0pe of the policy's coverall'. After dctennlnlna the ICOJMl of
cover.Be. the c;ourt must examine the complalnf.ln the un~erJyin, action to
ucert4ln ifit trisgeu coverage. If the complaint against the Insured Iver. &.ct.
that would eupport a recovery covered by the policy, then coveralJe it triped
and tho InMa' hu a dUly to defend ulltlllUch time that the claim I. colI8ned to a
recoVllry that the polley does lIot cover. The dllty to defend 1110 canieI witIllt .
COnditional obllsatlon to Indemnify In the event tho In.urCld I. hold llabl, fbr . olaIm
covered by the polley. Although tho duty 10 defend I. 8tparate &om and broader
than the duty to indemnlly, both dutlc. flow from a dctcnnlnation that the
comp/alDt trlgcn coveraae.
692 A.2d at 1095 (citation. omitted),
Scotion n of the Erie Polley, ontltled "Homo and Famlly Liability Protecdoft, .. provlda in
relevant part:
Wo will pay aU sums up to the amount UIoWll on the Declarationa. whlcl1l1l)'one
we protect becomes legaUy obligated to pay a. damages becaU8t ofbodlly Injury
or property damage rcaulting /!'om an occurrence during the policy period. We
will pay fur only bodily Injury or property damago covered by lhi, policy.
. .. If anyone we protect i. sued tor damage. becauae of bodily injury or property
dornase covered by this p'olicy, we will provide a defense with I lawyer we cbooee,
oven if the allegation. are not true.
(omphaais added). ~OcculTence"ls defined in the Erie Pollc}' lL\; an "lIa:ident, Including
continuous or ropeated oxpolUre to the IIJllc 8encra! harmful condltinnA." ~ Acddeat, " however,
i'lIQ1 deflDed in the Brie Policy.
In Pennaylvania, whether bodily injury I. caused by III accldcmt IIlUIt be detnlinocl &om
the per.pective of the inaured. StalLFann Mutual AutomobUe I"". Co. \I. MI(tJn. +42 Pa. Super.
442,660 A2d 66, 67 (t99S). Althoup thi. Court hu boen unablo to &nd. cue de&lna
<<accident" in the context ofa liability insurance pollcy, thiJ Court did find . PlIl/IIYMnia
Supreme Court cue discuulns the deflnitlnn of tbe phruo "*idcotalll1Oll\l" in tho ClOIltext of.
3
. .
.
life InlW'lnce policy. In UrDl) '/. Equlllhl~ 'tife Auurance Sorh1.v. ] 10 PI. 342, 16S A. 311
(1933), thcJ Ptlu'Mylvlnla Suprl!mfJ Court atated:
Our oases havll unlfonnly held that where the cause of injury or death wu IUI act
oCtile lnaured, the mCIN which .CIUIed tho relUllo to be accidental. muat be
undesigned and unintentional; that Iccidcntallnjury or deatb I. an unlrtended and
undeaigncd result lrising /Tom let. done, while injury or death by accidelltal meII1I
i. a result lri.ing /Tom lets unintentionally done.
165 A. at 390, Quotedjn Martin. 660 A.2d at 67.
Section n of the Brie Policy also excludet eoverqo to named lnaureda for bodlIy ~
lntentlonaDy Inflicted:
WHAT WE DO NOT COVER. - EXCLUSIONS
PERSONAL LTAJUUTY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not cover under P,r.MMll lahillty Coveragf UJJJ UediCQ! PI1)WNHU k>
Olhm Coverage:
(I) BodDy injury or property dama80 oxpc<:tcd or intended by anyone we
prote(.'t.
Por the purpose of III insurance policy proviaion excluding eovera&e for bodily Injury
"expected or Intended by the inaurcd," "lIIlnaured Intend. an injury jf he dulred to '** the
oonHquenoeI ofhia act or lfhc acted knowina that IUCh eollMlQ~ were IuhItandaDy cenaln
to reaull." ~ Services Auto\lKlllUe Asl'n v. HIlDb'. 358 Pa. Super. 362, 517 A.2cI982, 989
(I !>86). After a thorough analyal. or"Lh., cxJlflClcd or Intended harm" ClaulCl, tho Superior Court
In nllIZQ: held that the \;llulIC i. amblguoul .. . matter otlaw I/Id mUll be collltnled aplrJJt the
Insuror, S 17 A.2d at 989, I/Id ftlrther held that the word. "Illtended" and "expected" are
aynunymoua ror the purpo.. of Interpreting th... ~ or exclualol\lt)' cIIu... S 17 A.2d .. 991.
..
"Both temu IlOnnote an elelllent or oonlGlCluI IWtltClle.. on th. pert of th. InMU'1Id." Ill. It....
aator do.. not have the IblUty to f'urmulatll 1..lnlent, th. re,ultllla aet c:annot be lJUeNJonaJ.
Y. Ha..il\J1e(, J2S Pa. Super. 484, 473 A.Zd 171, 176 (19'4).
In the Amtnded Complaint in tho underlying Iaw.uit, Floch setJc. to recover money
dll'lla8C8 asalnst Pry for Injuries and damqca allegedly sustainod as I rcaull of an UllUlt on Floch
by Fry. In Parlsraph 9 of tile Amended Complaint, Floch dUGlibe~ the al10aed actlona orFry u
follows:
That on March 26, 1995, the Defendant, Donald Fry, .houted obsccnltlcsat the
Plalntlft'for driving offhls driveway into hi. yard. The Defendant, Donald Fry,
then reached through the window of the vehicle Ind l:J'abbed the Plalnlift; Timothy
L. Ftoch,Ir., by tho hair and pounded the Plainlifr. head against the window of
the vehlcle and slammed the Plaintiff's head agalNt the csr .napplng hl_ neck back
and forth.
S.,9 ofthc Amended Complalnt in the underlying Ilwsuit, attacht.d II Bxhlbit A to Brie',
Motion for Sununary Iudpnt. Although the action. alleged In ParlJl'aph 9 certainly IUgest
,
intentional conduct, other paragraph. of the Amended Complaint refer to Fry', actiona II
negligent, reckles" and wanton. SH m 12, 13, and 14 of the Amended Complalnlln the
undertyinsllWlult. Ittaehed II :Exhibit A tn Erie', Modon for Summary Judament. After the
complaint In the underlying I,w.ult wa, flIed, Brie undertook 1 defense on behaltotFry punuant
tn . reAtlfVltlon of "Sht..
In an attempt to Cltlbll.h that the claim ..aiNt Fry In tbe und.r1yinlllawlUlt tall. outaldo
the JCOpe of coverase In the Erie Poliey, Bric took the deposition ofbcJth Floell and Fry In thl.
declaratory judgment actlnn. In hlR deposition, Floch's deKription otpry', aIJoaed ICtlOlll1a
coll.llltent with that In the Amended Complaint:
5
\ "
Whon J waa IIcttlna. you know, pulllna up behind him and .topplna. he wu ,cttlna
out of hi a tnede.. and he come up .nd reached throuah th" window and called me I
ftlddll8ldlot and amuheel my head lip - arabbed mfl thrnuah the window, becauMl
the window w.a down about elabt lnchet to nine InchCll, and he reached lMoulh
IIld ,rablMd me by thl hair end Just Iterted Ylnklna my hlllld, plllllns up .,aIIIat the
door, end he WU, like, How much of an Idiot arc you backin. Inlo my yard" aud, I
don't know, I cIon't remember too much after that. I jUlt kind of - I don't know.
J",
L
'11
r;
~ ,
W
ill ~lIition ofPlooh It p,?, attaol1cd u Rllhlbit D to Eri,,', Briofin Support of Motion for
Summary Judgment. Fry, on Ihe other hand, conlend. that he never attacked or WIlIlted Flocl1;1
Q, SO you're atill In your vehicle u you puU down to the road?
A. Rlghl. And I pulled down to the rOld and I looked In the mirror, and
InatCld ofhlm backinaln the tum-around, he backed.round my car and risht over
into my tront yard and got the fender up ISlinst the houIe. Well, at that poinl J
Bot out oftbe tneck and wallc.ed b.l~1c. up Ihe drivcwllY. H"llalllhu wbAdow down
Iwo to threo lnohcs. and 1 said 10 him, What the hell do you think. yuu're dolnJln
my front yard? J lIid, There"lhe turn-around over there. And he didn't IIIIW<<
mo, and lllld, Look at me, and 1 .hoole: my finaer at him Ilkc that (lndicatl.), and
I au"" lawor. at him, and in totum, the arandfather, he Slid, Don't IWCI/' at my
,candlOn, and J aa1d. Well. you ain't no goddamn better than he I.lfyou're thai
isnorant to back Into my "'ont YArd, J jult had it rolled. He stal1ed'wlnBinl hit
-_..' ,
ann. 0UlU -
Q. Old you reach inside?
A. No. J Will .llakJtl8 my fill, lJullllY hlllllllll:vU Wl:IIlln. beau. the
window wu only down about that much (indklating), and J had . heavy winter
coat on and there walno way J could've got my hand inside the trude.
as. Deposition of Fry at p. 20, attached II Ellhibit E 10 Erie'. Briefln Support of Motion for
I The ract that Fry deniet the alleSatloll& in the IInderlyinalawlUlt doll not give rile
to a dUly 10 defend on the pan of Brie. Erie', duly i. nol a duty to defend all daimtthat itJ
insured contends are sroundl.... fallle, nr "'lUdulcnl. Rather, Erie', duly II a duty to deltnd all
c1_ ~ evon if the allapliana are not tnee. 8M Frie Policy, ~n "at
p. 13, Ittaohed u Exhibil B to Erio'. Motion for Summary ludarnenl. SOI.JlIg ~t
Jnsul'llleA Co. of AmerIca v. A11m. S47 Pa. 693, 692 AU 1089, 1093.~ (1997) (III insurer'.
duty to defend IaWlUlt. even if aroundl..., fal... or hudulent I. Umited tolaWlUita raiJiaa cia.
covered under the policy), on rllmand ta, 708 A,2d 121 (pa, Super. 1 99i).
6
\ ..
. Summlry Judsmlllt.
Ploch'l depo.ltl~n ,..tlrnony eatmUeh.e that Fry'e al1esed actlonl that Conn tilt baell for
the unde.rlyins laWtUlt wece neither accidental nor noallsont. Fulthennorc. no facta were
catabllahed or revealed during the dopolltion of Floc:h or Fry to .how that Fry dlcIlMll have
(I) a conscloo. aw.renCII of hi. action. or their coniequcncr.a, or (2) III Iblllty to (annulate an
Intent. I ConHqulntly, thl. Court concludea II a matter of law that the alIeatd actione of Fry
dcacrlbcd in Ploch'. depolitiun aro alllnlentlonalactlOlls.l Therols no alleged action of Pry tha&
could pouibly be cltarlcterlud II accidental or negllaMt. 1'herflfore, there IA nn cnverage under
the Brie Policy because tho underlying lawsuit does not contain a claim for bodlIy injury fOlUltlng
from an "occurrence." In addition, the claim contained in the underlyinglawauit I. excluded
I For example. if an InlUred wa.lntoxicated It the timo ofth. commllllon of tile
alle.ed acta, that faot must be considered in determinina lfthllln:\llred Iw.I tho abilily 10 (onnulate
an intent. Natlon'<<lde MutlJAllnf. Co. Y. Hassinler. 32S Pa. Super. 484,473 A,2d 171, 176
(1984). See 1110 ' 421 Pa. Super. 5048,618 A.2d 9-45
(1992)(even though the insured ahot and killed. person and pled sullty 10 third degree murder,
the Insurer Itlll had a duty to defend tho civil caac asalmt the IlL'lUred booauae (1) the civil
complaint _plllJt the in'ured alleged neslisent, welen, reckless, andlor willful conduct, IDlI
(2) evidence establi,hed that the insured wu intoxicated at the time of the .hootlng incldent),
J In the Amended Complaillt in the underlyins lawsuit, Floch'. attonwy labeled
Fry'. actions.I'negligent, reckless, and wanton. hG m 12, 13, and I.- otthe A.mtndecl
Complaint in the underlying lawault, at~hed .. Exhibit A to Erie', Motion for Summary
Judgment. Under Ponnsylvanlalaw, "an Insurer's duty to defend an action ...i.. the INurtel ia
measured, ~ by the aUeSfttionallltb.e plaintiff', pleadin..." ~
rile v Natl~"wlrlllln'1-lr.lK'~ Co.. SUI PI. 306, 5.1 A.2d 246 (191') (amphula IddecI)(quotins
7C J. Appleman, Jnsur~w and.Practice i 4683, at 42 (W. Berde! tel. 1979)), However,
now that tho parti.. hay. enSIBteI In dlacovery and had the opportunity to RIlly cIevelop the
factual rellord in .upport of Ploch' I dalm in the underlying lawlult, thi. Court il no !oaaCl'llmitcd
to a conslderallon orthe allegation, In the Amended Complalnund the labela placecl therein on
Fry's Ictllln., Moreover, those I,bol, .... nothln. mort than logal conoluaiona - which thle Court.
h'l now determined, bued upon the evidence obtained through dilOOvery. to bel orTOI1GOUllepI
conclullon..
7
\ "
,
under the Erie Policy because the alleged bodily injuries sUltalned by Ploch' Ire the typcI of
lnjurialntended Or expected u . result oribe alleged intcntlonalactlnns ofJlry. In other words,
Pry'.lIleged actlona arc of such . nlUuro that an Intent to lnOiot lhe type oflnjuriCll alleelldly
IUJtalIJlld by Ploch can be illforred u . maltCll' of law. Consequently, u. reeult of tile deposition
teetimony ofFloc:h Ind Fry, Brie hu now confined Floch's claim to a c1alm <,> not coverld under
the Brie PoUcy, and/or (2) specificllly exeluded by the Erie Policy.
CONCLUSION
Fnr the l'eUOnl set forth above, this COlin arantl Erio'l Motion for SUI1lIlW} Judsment
and declarH that nrie has no duty or obligltion under the Bri, ,Polley to defend and lndamnity'
Fry In the underlyina lawauit
All appropriate order followl.
,
4 AI a rClUJt of Pry'S alleged IISIUIt on Floch, Floch alleges to have IUIUinod
mooI injuries, Includll1& bot not limited to, the foUowlllB: .
I. Thoracic and cervical Itrain;
b. Concuulon;
c. Neck.injury - risht arm numbne..;
d. Headaches;
e. Back paln;
f. Abrasions;
S. Emotln11al dlltrcsl.
Sa Amended Complaint In the underlying lawluit at 111, attached II Exhibit A to Erie'. Motion
for Summary Jud,ment.
" Because the duty tn defend il broader than the duty to indemnifY, Erio coulclllot
be required to indemnifY Fry without Ilso beina obUglted to defend him.
8
.
, "17~ 9dJ Q - ~ 3oLJ-~ .5 -rr~\
(5-)
IN THE UNITED STATES DISTNICT COURT
HIt( THl:1 IlASTERN PIS1'IIICT OF I'ltNNSVLVNUI'I
IlTATE FARM FIM , CM. co.
OXVIL ACTION
V.
MAllV El;LEN TOLHUI, THOMAS
JACOBS lInd ANN JACOBS
NO. ~7-7878
MEMORANDUM
W^LD~, J. ootobe~ JI, IPP8
Pll1intltr seeks a dQC14ration thaL It has no duty to detend or in~~i~
lLII insured. detendllllL M<u'y E11"1I Tolmi$, in .. ponding .ellte COU1't, torr.
suit filed agAinst har by Ann and Thomas Jacobs.
The underlYing .uit arieee tr~m lIn argument at an aqua.eria" echoolWhioh
, Ad to violence Whllll Mw, JdUClb9 dsk.d H5. Tolmi. to Vile/lee Q riding rin"
whUe M9. Jacob. gave A riding lauon. H8. JlIcobo swore out II criminal
complaint Against Ms. TolmlA ~nd tIled the undorlying civil lawsuit in eh.
bucks COUy,r.y COllmon Ploao court against h",r tor injurioo r1!l8Ult. tna frOll\ th.
tight. Mr. Jacohs Ruad tor loss of consortium.
At au relev.mt tima., MS. To1mie was .lllsUL">.,1 Illll'],n a homeowner. policy
lsauod by plaintiff StaC~ Farm. State Farm retained coun.al tor Ms. '01m1~
lubject to II. L'..IIO.rvAticm ot dghefl """ cOl1\llIoncod the instant doclaraeory
jU6gment ACt i"n.
Th$ eourt has subj~"t matter jurisdiction pursuant t" 2ft II.S.C. 1332(4).
The e1tizll/Ulhlp ot the parties is diver.. and the GlIIount in oentrovor.y
Q~oeeds $75,000.(1)
I'r""ently before the COUrt ill p!aintiff !it ate Farm's Motioro (UL' SW'IUIClLY
Judgment.
The follOWing quota SUCCinctly 8uI1\rn4rizes an lnourer's duty to derond And
to indemnity it. in.ur..d ur,dn ~onnay1vlln1A lawl (2)
'l'ha duty t<> defend ie a dhtinct obligat.l.on separate anl3 apart trolll tho
duty to indemnify. Erie Ins. S~change v. TranoAMerica In.. co., 51' PA.
~74, 582, GJ3 A.2d 1363, 13&0 (19D7). The duty ~<> detond ~ri.". whenev.r
claims aalerted by the injured party potential IV oome within the oov.rlia
ot the poUcy, aedaon v. Stllt" Film Ml.lr,\I~l Automobile Ins. Co.. no Pl. 55,
56, 180 A.2d 320, 321 (l~b]), while the duty to indemnity arb.... ullly whon
the ineured i. detemined to be liable for damage. within tha cov.riQA of
th.. policy. 9.8, a.g.. Illnployar. Reinouranee corp. v. Sarr1s, '/46 F. 8\lPP.
~60, 5~6-68 (E.D. PM. 1990). It folloWQ thAn, that when the claim. in tho
, ..
''''''\
r,
unclerlying action hAve not bElen ltujudtOAt&ld, the court "nt.rednlng the
daolaratory judgment Action must rocus on whQt.hAr th" un~.tlyin~ cla1..
cculd potentl&!lY corn. within the coveregEl or tn. policy. Air product. and
Ch.rnl."ah, Inc. v. Hartford Accident dlld lndomnltl' Co., ~S F.3d 177, 1'/9
(3d Oil'. ,q~4). If there ia a pOAAlhl1ity thet any of tho undorlying ~l~im.
could be coverecl by the policy At hsue, the in.urar 1. ubliged to provide
e cI.r.na. at least until auch time a. tho.. f.nt.~ are det.rmin.d, ~d the
01",111I h narrowed to one ~iltlilllLly outlJide ot coveraga. c. Raymond o..via r.
Sone, Inc. v. Liulu'Ly l'Nt. Ina. Co" lib" F. Stipp. 1" 19 (1:.0. Pol.. 191P1.
On the other hand, it thera i. no poaaibillt.y t~t any of tha undarlying
claillls cculd be oovered by the policy lit buue, judlllllont in the lntllllrn'.
tllvor with regllrd to the duty to derend And indell\lliticotion i. appropriate.
C~o, a.g., Oermantown Ina. co. v, Martin, 407 Va. SupElr. 326, 595 A.2c1 1172
119921, 1I11or.. deniad. ~~, P~. 646, '1~ A.~~ Das (1992).
llritlllnoo ul1derwriteu, InCl. V, Stoko., 001 F. SupP. 196, 198 (E.D. Pa.
IUS) .
An insurer's duty to dElt..",! 18 detorminlld eOlely rrolll the lIllegation. in
the llnderlyino comll',~l,nr giving riel> to th.. cldm o.go.lMt the in'l.lred.
Laharlon COllch Co. v. (:;\r011.na Cas. Inll. Co., 675 A.2d 219, 286 (PA. SupAr.
1996). O"termining thflt duty to de tend undn An inWUrOl1Cll policy is a
quootion ot low requiring only "'11 wxwninat10n at the ldnguo9" or the policy
At iuue and the llllegationll in the underlyhlll compldnt. aen."
ae'tllurant, Inc. v. Nationwld~ Ins. Co., 548 A.2d 246, 246-41 (~Q. 1980).
An in.urllnOEl pOlicy mu.t be read ao a whole and he oonstru&ld aooording to
tho plain meaning or its torlll.. C.H. Ho;,ist Ct1r1bll Corp. v. AmaricAn Home
"nur. Co., 640 F.2d "9, 481 (3d cll'. Hal) I Atlllntio MUt. !na. Co. v.
Brotech Corp., 957 P. Supp, 423, 421 (E.D. Pa. 1994) atC'd. 60 r.3d 813
(1995). "Where the language of the contract is olear, A oourt i. required
to giv.. tho worda thoir ordin,ny M"anl.ng.' Id. II.... <tlWLI aene " Harvey
Rlll1d&\rll, Inc. v. Ponnsylvani~ Mfrs' Au'n rn~. c"., 517 A.~d 910, 113 (PA.
1986) (holdinq that oourts entorce th.. pl"in lMloning ot unMlbiguoua policy
lsnguag$ dW ~ matt.ar ot law).
'11Ie burden 19 on the insur.d to establish l;'overag. under an insuranoe
policy. 1~1. Ins. Exoh., 533 A.2d dL 1366-67; Benjamin v. All.tllte Tnl.
Co., Sl1 A.2d 866, 868 (PI!. .~\lp...r, 1986). The hurdGn ot Clct4bihhinll the
applioability of an exolusion is on the insurer. All.t.&te In.. Co., 834 P.
supp. at 851; Erie Ins. Exch., 533 A."d ^t. 1)66,
1he inSUrahoQ policy dt issue provides in pertinent p~rtl
COVERAGR L - PERSONAL LIABIJJITY
It d claim is mad* o~ a suit i. hrought I!(lainilt An in,ur"~ for ~ge.
beC:IIUAA of l:>r.Idlly injury or proporty d~ge 1:0 wh1ch thh a.:lVolIl<tlllt appU..,
cduaed by an oocurrence, we willI
1. pay up to our liMit uL llabilir,y tor the dalMgea tor Which the inSured
is legally liablel and
2. VI'ovidl a detense at our expense by counsel of our
choice. We ~y mako any investigation and aett.1... any olaim or autr. that wa
deoide 18 appropriAte. Our Obl1gAtion to detend MY cl,aim or suit endll whan
t.hl!l MlOunt we PlIlY tor dl!/nollges, to affect settlement, 01' wat.hty a jUdgll\ent
resulting frNll\ th.. ooourrenoo, .q~alc our l1MJI: of liability. . . .
SECTION II - EXCLUSIONS
1. Covaragl L and Covor~u~ M do not apply 1:0
~. bodily lnjury or property damage I
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(1) which i8 either ~xpect.4 or intended by ~
in8llnq/ or
(2) to Any pereon or property wh10h 1. the r.e.Ult
or willful and 1NI11oioUI aot. or an incurod.
(empha,ia 1n original).
'1'11. polioy daUn" 'ooourrenoe' as '/Ul acr:idlUlL, lllu1ul1inr./ ..xpOllla:e tQ
comUt1ona, whioh results inl a. bodily injury, or b. property d4aa"..'
Ilt"te Farm Arguell that. th.. injuriea to Mr. And Mr~. Jacobe ara not cov.r~
beO",UI/iI the auault by Ms. Talmie WM flot an 'oocurrenoe' and beClaUI. the
inrliotion or injury to MS. Jaoobs WAS '~xpactad or intellde6' by HG.
'1.'olmb.
The Supremll court or I'ennsylvania hIlS construCld An aquJ.valently wUl'clllll
,!hll!lnic 10n ot 'O<:l<:lurr..n"..' r.n "'....n ...."c:ld.nt.' (lee Gene'. lIeotAurant, SU
A.2d at 247. When it is alleqod that the oonduct or tho lnllured "aulino
harm wal intentional. there haR IIlllln rlo aor.:ldent or 'ooourrenc..' I..
NationwldF,l IIUr.. ,'ire Inll. Co. v, Plpner, 140 F. ~d 22~, 226 (3cJ C.1t. lUll).
The 'exp$oted or intended' olauGll ~xolude$ rrom covllrag.. liability tor har~
~r thR t.ype which thll ingurCld intends to caURA. ld. at 227. An lnlurad
int..nd. to oaUAO harm lr he d~~irF,ld by hia act to do so or if ha ~ot.ad
knClWing Lhat Iluuh hArlll was substantially certail\ to re9ult, Un,! tad ..rvio..
lIutOll\obilll Au'n v. li:litzky. <;17 ....2d 982. 989 (PlI. Sl1por, UM).
1>1aintUrs in the I.lndorl~ing Ilult alle~e th~t thll J.nluud 'violently hit
[Mil. J"l)ol.>~J ln th.. tAO" with her whip find lead,' that th.. .1nsuz'ecI. 'jump'"
off her horse and start.Ad t.n vlnl"ntly beat upon [Ms. JaCObi]' And that the
insurad 'uled both hando to aggrcooivoly grab around [Ma. Jaooba'a] nock,'
Ql.loh eots were cl.~rly intontion"l !Inri of ~ typ.. aUbatantiallY cortaln to
Clal.llUI injury.
Tho Jadob... al.o Allege. th~t MA. Tolmie W~R 'negligllnt' tor tailing 'to
proporly rl.do hllr horee and control hor t"mper.' Th.u'e .is no all..gation or
,u"".ltion that the injurhe lIuetalned by Ms. .rMobe WArll prcncill\At:lly
oaused by the IlI41lner in which Ms. Tolmie w...s riding. (3) ^""uming tl'wlt one
can "neg11gently' lose one" temper, .1L Walll LI&.. ~l&y..ll)Q1 whiwing,
st.un(lUng and b...tinll which caused Ms. Jaoobs'. injuries. It i. virtudly
inconceivable that tor Cloverage purpose' the .tate oourt. would distinguish
hIIr,wAArI /11\ 111.""I,lul\/t1 lJdttlollY dULJUlTIj:!<\l\ied by d display of lIlngl!r from on.
inrlioted by a cool and composed a~tQnrt~nt..
....lthough tactual allegation" sufCiuiarl': to otate " pr.1ma faoio ola.1. for
neQl1gence would tr1gger the duty to df.\renrt, '<I pldillt:1rr hlalY not dulS up
.. comphint so AI to IIvold the 1nsl1r~nce exc:lurI t on.' NltL!cmwlc1" M\lt. Irll.
Co. v, Yaeger, 1994 WL 447405, at "2 (~.u. ~a. Aug. 19, 1994), Art'd, 60
F.3d 816 (3d Cir. 1995). '(I)l: t,h.. h(lt,II~' lI11..gations or the cOI1Ipldnt
1I0UllU ill il1t&mtlonal tort. arbltr.ary URe ot the word 'negUgenoe' will not
trigger an in.urer's duty to d~fenc1.' A(lora syndioate. Inc. v, Levin, 977
F. Bupp. 713, 719 IE.D. Pa. 1997). gall a1ao Potamkin. 961 r. Dupp, at
Il,-,,? (~ddlt.lnn of nll"UgllncA claim dld not. bring complaint. within
cov~r1lge whon th.. fActual Allegatlons sUllllestod lntentional conduct)
Oerm<<ntown Ina. Co. v. MUtln, 595 A.:act U72, 117~ (P~. I1l1pilOr, Ct. lh1)
(denying coverage where oomplaint Includlld n"gligenoo claim but condUClt
describlld WAll intentional). The factud ..Hll~Ations ln the undarlyinCl
oomplaint clearly deaor.1bll intentlonAl conduct and not mer. ne91ig.nCl., Se.
Ollnll'lI RlIstaurant, ~.ti A.~a at .17 (.1lll9Atlon8 or at.rlking w1tn fl.tt
duoribllD intllntional tort). SQO alGo Alhtaell lhO\lraneo Co. v. F!leher,
1998 WL 205693, at "] (E.D. I'a. Apr. 28, 1998) ('A "111'11011 uannot
~tglig.ntlY gr~b dnoth~r pArRon ~nd repeatedly otrikc hiD t4C..')1 Yaeger,
..'
, .-
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1994 WL 447405 (eeriking victim wieh broom handle i~ intentional And not
negligent I .
'\'till' 1".. of Clon.ortl.um olaim .180 dOllll not triggor pldnt.1tt'n dut,y to
defend .ince thi. claim i. derlv~tlv~. ~~~ Fi.cher. 1998 WL 205"1, ae .)
(denying coverage for derivarive 10e. of oon.ortium claim).
D.r.nelallte aX"gue alternatively that Hs. Tt)llllil.' II '''lllllrl:ion .h. aoted in
VlIlC d.t.n.e tr19'll/re the dutlCl8 co defend and 11ldemnl ty. Wh,! Ie t.hlt
Pennsylvania Supreme Court ham not .quarely ruled on th1. queetion, th~
Superior Court ~D helel that an a.mertion ot selt defenDe do.. not ~rina
.ugh an aotion within the coverage of A policy with an "expeoted or
intended" elCC!lu.ion. (1.6 D01\oIlo,;jd H\lt. 11'111. Cu. v. Ferrara, S52 A. ad au,
703 (1''''. /luper. 19891. Thie rill lna II[l[lMU to b.. .oun!! Olnd c:1onl'1nant with
the rule that the duty to defend i. determined by the factull allegation8
in the underlying complaint.
It clearly apP8llrl from the factual Allegation. in the unch'rlying cOIlpldnt
that the 1njur1a~ inflicted on Mrs. JacobI: r""ult,,d from intflntion.al
con"utlt by t.h... in,ur.d And it not int..ndGd, whioh would be Vh.tUOlUy
inconcfliv&bl~, were of a type 8ub.tantia11y c"rtain to result tr~ the
aggravated battery described. As such. there r.~n ha no coverlgo under the
Stat:", ""nn pr.>1icy. 3tat. VArm t.llut' tUt~ no duty to d"r..nd 01' in<1omnl ClI lla.
Tolmle. ACCordingly. plalntlrrH motion w111 be granr"d. An appropriat.
ordGX" will be entend.
IN THE UUITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYINANTA
STATE FARM FIRE' CAS. co.
CIVIL ACTION
v.
MARY ELLEN 'l.'OLHIE, THOMAS
.J1.OOIl9 and ANN JACOBS
No. 97-7878
ORDER
AND NOW, thi. daY of Ootober, lYY~. upon consideration of plaintiff"
Motlon for S\\mrnAry Judgm.l1lt (000. 19) and d.f.ndant.' r.,pon.. thereto,
consiatent with the accompanying memorandum, IT IS HEREBY ORDERED t:hAt A.id
Hotion is GRANTED And accor~lngly JUDGMENT i8 ENTERED in thl above
deo14rAtol'Y J udgm"nt .ot100 rQr pl.al nr.1 rr o1IIn" "g"inst deten4antl. aM it h
t,hUA IIAtllAr.d that plAintiff hu no duty to def.nd or indomnify Mary Ill.n
TOlmi. tor the olaimu now aS8ortod ~gain.t hAr in the action .ntitled
Thonuls Jllcobll and Ann Jaooba v. Mary Tolmi., pending 1n the Court o( CcnlIO\'I
Pl...8 at pucks County. Dook~L No. 94-07694-14-~.
BY TH!: r;OUR'r:
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98-1756 CIVIL
Cumberland County, Ponnsylvania, in April of 1997. On April 2, 1997, Zlnn
approached Brymesser and kicked him In the buttocks. As a result of the kick,
Brymesser suffered Injuries, including a fractured coccyx. Brymesser flied suit
against Zinn, asserting counts In battery and negligence. The allegations In
Brymesser's complaint state:
4. On April 2, 1997, Plaintiff was lawfully on the
premises of his employer as a part of his regular work
shift from 11 :00 p.m. until 7:00 a.m.
5. While engaged In his work duties for Roadway
Express, particularly completing some paperwork, Plaintiff
was bending over a desk writing.
6. As Plaintiff was bending over the desk, and In the
presence of John Horoschak, the Defendant kicked the
Plaintiff In the buttocks.
7. ":hlle only Intending to humiliate and embarrass
the Plaln!'ff, the Defendant kicked the Plaintiff with such
great force as to cause the Plaintiff phYSical damage.
8. Defendant's kick caused such pain so as to cause
Plaintiff to leave work early that day and to seek medical
attention.
'" .
1 O. On the aforesaid date. time and place, Plaintiff,
Craig L. Brymesser, was intentionally touched and struck
by the Defendant Upon his person without provocation or
justification Intending to cause Plaintiff humiliation and
embarrassment.
(Plaintiff's Complaint, Brymesser v. Zlnn, No. 97-5119).
Zlnn's homeowner's polley, Issued by the Plaintiff, contains the follOwing
promise: "[w]e will pay all sums up to the amount shown on the Declarations,
2
I
I
98-1756 CIVIL
which anyone we protect becomes legally obligated to pay as damages because
of bodily Injury or property damage resulting from an occurrence during the polley
period." Plaintiff's Complaint, Exhibit C. "Occurrence" is defined in the polley as,
"an acoldent, Including continuous or repeated exposure to the same generai
harmfui conditions." .Id.. The policy included an exclusion which said that Plaintiff
will not cover "[b]odily injury or property damage expected or Intended by anyone
we protect." kI. Given the language of the polley and the facts, as pled in the
underlying action, Plaintiff asserts that it has no duty to defend or Indemnify Zinno
J2lsouslkm
Motions for summary judgment are governed by Pa. R. Clv. P. 1035.2. The
rule states:
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment In whole or in part as a
matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause of
action or defense which could be established by
additional discovery or expert report, or
(2) If, after the completion of discovery relevant to
the mOlion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the Issues to be submitted to a jury.
3
98-1756 CIVIL
Pa. R. Clv. P. 1035.2. In deciding a motion for summary judgment, the Court will
.vlew the record In the light most favorable to the non moving party, and all doubts
as to the existence of a genuine Issue of material fact must be resolved against the
moving party.. .~Il. Patriot News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041
(1996).
It is well settled that the proper focus in Interpreting Insurance contracts Is
the reasonable expectation of the insured. Brltamco Underwriters. Inc. J{,J.
~~, 433 Pa. Super. 55, 59, 639 A.2d 1208,1210 (1994). "Where a
provision of an Insurance polley is ambiguous, the provision Is construed In favor
of the Insured and against the insurer." Id. at 60, 639 A.2d at 1210.
The use of a declaratory judgment action is a proper method by which a
court may interpret an insurance contract. General Ace. ~~
A~, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). A two step process Is used
In a declaratory judgment action to determine the obligations of the parties to an
insurance contract: (1) determine the scope of the polley's coverage and (2)
examine the complaint in the underlying action to ascertain if coverage is required.
lit
As a matter of law, "an insurer may base Its decision to defend solely on the
allegations of the complaint." Gene's Restaurant v. ~atlonwlctUns. Co., 519 Pa.
306, 308, 548 A.2d 246 (1988). It is Important to note that it Is not the details of
4
98.1756 CIVIL
the injury but the nature of the claim Itself which determines whether an Insured
must be given a defense. ~.lD~.....Jl....Ferrara, 380 Pa. Super. 588,
593, 552 A.2d 699, 701 (1989). "In Pennsylvania, whether bodily Injury or damage
to property Is caused by accident must be determined from the perspective of the
Insured." S~arm M!.iI. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442,444,660
A.2d 66, 67 (1995).
The scope of the Zlnn policy Is as follows: it provides coverage for bodily
injuries resulting from an occurrence. An occurrence Is defined as an accident.
The policy contains an exclusion from coverage for any bodily injury expected or
Intended by the insured.
The allegations in the underlying complaint assert that, while Zlnn only
Intended to humiliate and embarrass Brymesser, he did kick Brymesser
Intentionally and without provocation, committing a battery. To be liable for battery
one must act Intending to cause a harmful or offensive contact with another person
and the contact must result directly or indirectly. Restatement (Second) of Torts
~13 (1965). The Intent necessary to be liable for battery Is stated as:
(1) If an act is done with the Intention of Inflicting upon
another an offensive but not a harmful bodily contact, or
of putting another in apprehension of either a harmful or
offensive bOdily contact, and such act causes a bodily
contact to the other, the actor Is liable to the other for a
battery although the act was not done with the intention
of bringing about the resulting bOdliy harm.
5
At Issue In this case Is whether the Incident between Zlnn and Brymesser
can be defined as an occurrence, or accident. If not, the Inquiry ends. And even
If the Incident was an occurrence for purposes of the polley, It stili may be
precluded from coverage because the results of the kick were expected or Intended
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98-1756 CIVIL
Restatement (Second) of Torts ~16 (1977).
by Zlnn.
In Gene's Restaurant, Plaintiff flied an action In assumpsit to recover costs
and fees It paid In defending Itself In a trespass action. ~.1.Restaurant V.
Matlonwl~ Ins. Co., 519 Pa. 306, 308, 548 A.2d 246 (1988). The underlying
action In that case Involved a husband beating a wife on the restaurant's premises:
the wife sued the restaurant in trespass, alleging that the malicious assault by the
husband was not stopped by the restaurant. kL. The restaurant's liability policy
covered bodily Injury for each occurrence during the polley period. Gene's
~estaurant at 309, 548 A.2d at 247. "Occurrence" was defined in the policy as
an accident. kL. The court held that a willful and malicious assault Is not an
accident but an Intentional tort. kL. "As such, it is not covered by the policy and,
therefore, the Insurer owed no duty to defend."
.Ins. Co., 519 Pa. 306, 309, 548 A.2d 246, 247 (1988).
Defendants In the case at bar cite
,358
6
98.1756 CIVIL
Pa, Super. 362, 517 A.2d 982 (1986), to support their claim that Zlnn Is owed a
defense under the homeowner's policy Issued by the Plaintiff. Defendant's reliance
Is misplaced. Ell.tID dealt with the Interpretation of an exclusionary clause,
Identical to the clause in the Zlnn policy, in holding that the Insurer had a duty to
defend Its Insureds. .IJ1 Given the holding In Gene's Restaurant. it is clear that we
should not reach any interpretation of the Zlnn exclusionary clause. An intentional
tort, as pled In Brymesser v. Zinn, cannot be characterized as an occurrence under
the policy. A battery is not an accident.
Our application of Elltz~ is supported by the holding in ~
~S!, 380 Pa. Super. 588, 552 A.2d 699 (1989). In Ferrara. the court
held that an insurer had no duty 10 defend an Insured who intentionally kicked
another and the kick resulted in unexpectedly serious Injuries. kt. The ferrara
court did not look past the allegations In the complaint to determine the damage
Intended by the kick. J..d...
In the case~, we cannot look beyond the allegations In Brymesser's
complaint. Brymesser alleges that Zinn committed a battery against him. An
intentional tort, such as a battery, cannot be considered accidental. Zlnn's actions,
as pled by Brymesser, fall outside the scope of the homeowner's policy Issued by
the Plaintiff. Therefore, Plaintiff has no duty to defend Zlnn in the underlying
action, Brymesser v. Zlnn, and Plaintiff's Motion for Summary Judgment Is granted.
WHEREFORE, PlaintHf, Erie .Insurance Company, requests that
the Cross Motion for SUlnmary JUdgment filed by Defendant, Craig
Brymesser, be dJ.smissed.
Respectfully SUbmitted,
Date: ~/3~/'l'-
GOLDBERG, -KA~ZMAN & SHIPMAN, P.C.
~ I ("'/)
By: h,"'.c.'I"" ~"~L"'i^______'
Thomas E. Brenner, Esquire
Attorney I. D. No. 32085
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Plaintiff, Erie
Insurance Company
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Exhibit A
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CRAIG L. BRYMESSER
Plaintiff
IN THE COUAT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
.
.
.
.
v.
CIVIL ACTION - LAW
LARRY ZlNN
NO. 97- 5//9
CIVIL TERM
Defendant
NOTICE
yOU HAVE BEEN SUeD IN COURT. If you wish to defend against the
claims set forth In the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served, by entering a written appearance personally or by
attomey and filing In writing with the Court your defenses or objecllons to the claims set
forth against you. You are warned that If you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint or for &rr/ other claim or relief requested by the
Plaintiff. You may lose money or property or other rights Important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO AND OUT WHERE YQU CAN
GET LEGAL HELP.
, Cumberland County Court Administrator
. c'u~b~ria~~~~~6~~rt' House
Carlisle, Pa. 17013
(717) 240-6200
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PETER J. Russel, ESQUIRE
PA Supreme Court ID: 72697
81 West Louther Street
Carlisle, PA 17013
(717) 249-2721
Attomey for Plaintiff
CRAIG L. BRYMESSER . ...-.,.,.. ...., , . "INTHECOURTOF COMMON PLEAS
.
. OF CUMBERLAND COUNTY, PA
.
Plalntl" .
.
.
.
v. . CIVIL ACTION - LAW
.
.
.
LARRY ZlNN .
.
. NO. 97- CIVIL TERM
.
Defendant .
.
gJyJL ACTION COMPLAINT
AND NOW, comes the Plaintiff, Cralg L Brymesser, by and through his attomey,
Peter J. Russo, and avers the following in support of his Civil Complalnt:
fAB.D5
1. Plaintiff, Craig L Brymesser, is an adult Individual residing at 127 a.M.E.,
Shippensburg, Pennsylvania, 17257.
2. Defendant, Larry Zinn. Is an adult IndMdual residing at 180 Goodyear Road,
Carlisle, Pennsylvania; 17018." "'" '." "'" 1 .
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3. At all times relevant, both parties were emplcYtld as mechanics for
Roadway Express, located at 100 Roadway Drive, Carlisle, Pennsylvania, 17013.
.'. "
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4. On Aprll2, 1997, Plalntlff was lawfully on the premises 0' his employer as
a part 0' his regular work shift from 11:00 p.m. until 7:00 am.
6. While engaged In his work. duties for Roadway Express, particularly
completing some paperwork, Plalntlff was bending over a desk writing.
6. As PlaJntIff was bending over the desk, and In the' presence of John
Horoschak, the Defendant kicked the Plalntlff In the buttocks.
7. While only Intending to humiliate and embarrass the Plalntlff, the Defendant
. kicked the Plalntiff with such great force as to cause the Plalntiff physical damage.
8. Defendant's kick caused such paln so as to cause Plalntlff to leave work
early that day and to seek medical attention.
BRST COUNI
.IWIm
9. Plalntlff, Craig L Brymesser, hereby Incorporates by referen~ paragraphs
1 through 8 as though more fully set forth herein.
10. On the aforesaid date, time and place, Plaintiff, Cralg L Brymesser, was
Intentionally touched and struck by the Defendant upon his person without provocatlon
or jl.lStiflcatlon intending to cause Plalntiff humiliation and embarrasslTfent.
11. As a result of the ~orementloned incident, plalntlffwas causeq, to suffer
extensive Injuries which were not ~e intended result of De'endant Zlnn's aollon but Were
a foreseeable consequence 0' Defendant Zlnn's actions.
Cvhl....lt a
CRAIG L. BRYMESSER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LARRY ZINN NO. 97-5119 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTr.ONS
BEFCRE HESS. J., GUIDO. J~
OPINr.ON AND O~DER OF COUR~
On September 19, 1997, Plaintiff filed the instantac;ti.ofl"
claiming damages for injuries he sustained at wor.k. The
oomplaint claims compensatory and punitive damages based upon the
intentional tort of battery and a claim of negligence. On
October IS, 1997, Defendant filed Preliminary Objections in the
nature of a d~urrer asking that the complaint be disndssed, or,
in the alternative, that the claim for punitive damages be
stricken. Both parties filed briefs and this matter was argued
before the Court on January 28, 1998.' It is now ready for
disposition.
FACTS
While engaged at his duties as a mechanic at Roadway
Express, Plaintiff was kicked in the buttocks by the Defendant
who was a co-worker.' Although Defendant delivered the kick "only
intending to humiliate and embarrass. the plaintiff,' the
'In his brief, and at argument in this matter,
agreed to withdraw, tjle" claim,f9z: ,punitive damages.
therefore, be stricken. ":', --, ",-.1.1.'. :..:..1.....: " ,
, "... ,.........,; .
.n, .
'Complaint paragraphs 3; 5 & 6.
'Complaint paragraph 7.
the Plaintiff
It will,
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NO. 97-5119 CIVIL TERM
unforeseen (albeit foreseeable) oonsequences were serious bodily
injuries to Plaintiff.'
m;SCUSSION
A demurrer oan only be sustained where, after aooepting as
true all well pleaded material and relevant facts, the oomplaint
clearly fails to establish the pleader's right to relief. Lumax
Industries. Inc. v. AultlpAll, 543 Pa. 38/ 669 A.2d 893 (1995).
Using that standard, the negligence claim set forth in Count II
of the complaint is clearly barred by Section 205 of the
Pennsylvania Worker's Compensation Act. 77 P.S. S72. Section
205 provides:
If disability o~ death is compensable under this act/ a
person shall not be liable to anyone at common law,or
otherwise ,on aocount of such disability or death for any ac:t
or omission occurring while suoh person was in the same
employ as the person disable or killed, exoept for
intentional wrong. 77 P.S. 5 72
'The aot further provides that all work related injuries are
compensable if sustained while the employee is "engaged in the
furtherance of the business or affairs of the employer."' 77
P.S. S 411(1). Sinoe paragr.aph 5 of the com~laint specifically
alleges that Plaintiff was "Engaged in his work duties" at the
time the injury was sustained, he would be entitled to
.Complaint paragraphs 7 & 12.
'Admittedly, 77 P.S. 5411(1) provides an exception for an
"injury caused by an act of a third person intended to iniure the
emolov7e bec,a,.~~e. o,f ,r~.as.o,n~,.p. ersona~ to him...." ,However, s.i;Q,r_!l"c,~'~)
plaint~ff haa spe\:l~iC?a1:ly al~eged ~n paragraph' 7 of the . ' <*" "
compla~nt that the ~~Juries w~re not intended, this except~on~~'
cannot apply; ,..,.,,,,,,, ,'. c;'" ,~
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NO. 97-5119 CIVIL TEllM
compensation under the act. Therefore, a negligence claim
against his co-worker would be barred by Section 205. 81pright
v. Faaan, 44B Pa. Super. 395,671 A.2d 760 (1996).
Just as clearly as section 205 of the act would bar the
Plaintiff's negligence claim, i~ does not operate as a bar to
the claim for battery. Co-employees are immunhed from liability
"for any act or omission... except for J.ntentional wronq'!." 77
P.S. S 72. Not only is battery an intentional tort, it is
exactly the kind of conduct which the act intended to exclude
from the umbrella of co-employee immunity. See McGinn v.
Valloti, 363 Pa. Super. BB, 525 A.2d 732,735, (19B7), Vosbur~~
Connoll~, 405 Pa. Super. 121,591 A.2d 112B (1991). Therefore,
defendant's preliminary objections to Count I of the complaint
are denied.
AND NOW, this
ORDER OF COURT
/ ;:-..ft..
day of FEBRUARY, 199B, after
argument the Defendant's Preliminal~ Objections are granted in
part and denied in part. Plaintiff's claim for punitive damages
. (Paragraph 14) and Count II of the complaint are STRICKEN.
Defendant's Preliminary Objections to Count I of the complaint
are DENIED and he is directed to 'file an answer thereto.
By the Court,
Peter J. Russo, Esquire
For t,he Plaintiff,"
.
Drew P. Gannon, E'quire
for the Defendant'
/s/ Edward E. GUidO'~
Edward E. Guido, Jud '
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ERIE INSURANCE GROUP
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WHERE TO LOOK IN YOUR POLICY
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PAGE
Addltlonal Losses We Will Pay-Section I
Automatic Garage 0001' Op<lnar """""""", """"",,1\
Collapse "".""...." ,...., ..., ,....,..' "........ ,..."...."",,,,,, "" R
Credit Card, Chargo Plate.
Check Forgery and Counterfeit
Money PI'otection ",............"",..,..""......"",...."..9
Debris Remol/al After Loss ..",.....,........,............,...., 9
Emergency Removal of Property ......,.......",...,..."..,9
Fire Department Service Charges ...,.....................,9
Fire Extinguisher Recharge .............................,.,...,9
Lock Replacement After Loss ..................................9
Loss Assessment (Sections 1& 11)..............,...........,9
Mechanical Servant and Robot Pretection .....,...., 10
Necessary Repairs After Loss ............................." 10
Non-Owned Residences .........................................10
Refrigerated Preducts ."...,..."..,.....,.......................10
Temperature Change ,...................................."..,...10
Trees. Shrubs, Plants and Lawns ........................, 10
Agreement ,....,..' ...."""",.. ............,.. .........,.... ....... "...... 3
Amounts 01 Insurance-Section II ...........................13
Coverages-Sections I & II
Dwelling Ceverage .........",....,......".,..."""..,."",....,,5
Loss of Use Ceverage ............,...........,...........,.....,.",6
Medical Payments To Others Coverage ...............13
Other Structures Coverage ...................................,,5
Personal Liability Coverage ........................"........13
Personal Property Coverage......................,.............5
Deductlble-Sectlon I ...,.........................."..".......,..,' 10
Description of Insured ProperlY .....,.......Declarntions
Perils We Insure Against-Section I .........,......"....".,6
Polley Dellnltlons-Sectlons I & II ..,..........................3
Rights and Duties-Conditions
General Polley Condltlons-Sectlon III
Accounting, ....' ,.".,...... ,.....' ,.."....,....", ,.."" ....,... ",.,17
Assignment ,.....".".."...,,,,.........,.,..........,"',,..,.....,' 17
Cancellat.ion ..,..".....,.."...........,..,.,,,..,,.,..,...,.....,,.., 17
Concealment, Fraud. or Misrepresentation .."."..17
Cooperation .,....,...",.,....,.......,,,....,,,...........,..,,.,,....17
How Your Policy May Be Changed..........,.....,...",l..,.
PAGE
No ()<lntingant Linbillty ""..,..,..,,,,,,,,,,........,,,,,,,,,,, 17
Our Hight To n('Cllvor 1.'rom Oth(ll's """....",,,..,..,, 18
('blicy Accaptanco allll Cooporation ...",,,....,,,,,,....18
Polley Period .......""......"..........".""...."..".."........18
Priority,..,....,....,......,.."""",..""",..",..,....,,",..,..,," 18
Time of Inc<lption ,.........."....,...""""......,.""".."..., 18
Home and Family Liability Prolecllon-
Conditions-Section II
Bankruptcy 01' Anyone We Protect ...................."" 16
Duties of An Injured Person-
Medical Payments 'fo Others Coverage ..."...", 16
Limits of Protection ........"........,...................".......16
Other Insurance-Personal Liability Coverage ,..16
Suit Against Us ..""....,...".......................""...........16
Your Duties After a Loss ............",........................16
Property Protectlon-ConditicJf1s.-Secllon I
Abandonment of Property ..........................,........., 10
Appraisal............,..........................,...................,..., 10
Automatic Adjustment of Coverage Amounts ...... 10
Erie Option ............"."...."...........,.......................,,' 11
Glass Replacement ";"...""..........".."".........."..,,..11
Increase of Hazard "".................."..""....".".".,,"" 11
Loss Payment ..."..."""""...,..."...."".."".""""".....11
Loss Settlement ""'~"."."."..."....."."."."".."""...,, 11
Loss To a Pair or Set""."."...""...".".."..".".".""" 12
Mortgage Clause .",....""",.,....."......."."",."."".....12
No Benefit to Bailee """".",...""...."".""."."...,,"" 12
Other Insurance ....".".""."...."."".""...""....".".,,' 12
Permission Granted To You ..."",.".....""..."".."", 12
Reeovered Property"""""."...""""""...""".."..."" 12
Suit Against Us "...."....""....."."...""".""........."".12
Your Duties After a Loss ......."""..."...."...""......" 12
What We Also Pay--Sectlon II
Claim Expenses """.".""."..""""""".."."",,",..,," 15
Damage To Property of Others """."""."."."""".15
First Aid Expenses """""......"""""......."."..."".".15
Loss Assessment,.-Personal Liability Coverage" 15
What We DoNot covll~-::-!'i~CJ.I~!j19~,';7."," ".
Sections I & II
Home and Family Liability Protoction,,;,,;::;,,;;~,:""l:r
Property Protection ,.............,...,,,,,,.,.....,,,,..,.,.,,., ,.... 8
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Jm"l~ INSUHANCl\ GHOUl' III pl'lllld to 1"'''''''''1, 'I'11Il
l~nm'lI 1';KlI'IICOV'lr I'ollcy, Thill illlpOl'tllll1. "olltl'ad h".
tWtJIlll YOU IIl1d 'I'h" I';HII': """l1ll1tll or thlll pl>lky with
COVOl'lIgo ugl'lltlmontll,lhnltlltl"nll, oxellllllollll IIl1d "ondi.
tions, u De(1ll1rlltions. plllll .IIIY O'1l10I""'1lI0ntll, It III
writtell ill pluin, IIlmple tm'lIl11 110 thllt It COli ho ollllily
undol'lItood, Weurgo YOU to I'olld It,
'I'his policy contulnR IIlllny gX'I'ltA PltO'l'IW'!'ION 1"!';A.
TUnmSdovolopod by'l'he 1~IUK W/WI'''VOI'OIl "X"UPP'"11'H
In I.hllllllll'Hin "nhlll p"Hcy. YOU !'Heolv.. gX'I'ItA PHO.
'1'1':( :'1'1 ( IN. "Itlwl' '''' IIddltlOllll1 eovllI'ugo 01' 1111 U COVel'UllO
lhllt IH 1101, III IllOlll. hOllllll,WI'"'1I polldoll,
TIll! pl'ot,":t1olllllvOII hy thlll polh:y III in keeping with tho
IIlnlll" P'"'JIOIIO or 11111' 1"Olllldel'lI: "'1'0 provido YOU with
1111 ""11I' I'lml"/,:C'l' I'IlO'I'I':f)'nON, liS nOM pgHli'mc'!'
SlmVICI':, 1111 III hUIIHlllly pl>lIl1lhhl, nlld W do so at tho
I.OWI':S'I' I'OSSIBI,I': COS'!',"
AGREEMENT
HRIE INSURANCE EXCHANGE ONLY
In return for your timely Pl'emlum pllyment, your
compliance with all of the provisions of thlll policy. IInd
YOUI' signing of a Subsorlber's Agreement with El'io
Indemnity Compal)Y and othol' Subsorlbers, we IIgl'oe
to provide the coverages you have purchased, Your
coverages alld (amoullts ofillsul'anco) 01'0 shown on the
Deolaratlons, which ore pnl't of this policy.
YOllr sib'lling the Subs(1rlber's Agreement, which
includes a limited powel'-of-nttorney. permits Erie In.
demnity Company. as Attorney.in-Fact, to make I'ccip.
rocal insurance contracts between you and other Sub.
scribers and othorwise manage t,he business ofthc Eric
Insurance Exchango, This power-of-attorney appllcs
only to your insurance business at the Exchange and is
limited W the purposes described in the Subsorlber's
.. Agreement.
Your respollsihility as a Subscriber is determined by
this policy and the Subscriber's Agreement, You ore
liable for just tho policy premiums charged and nre not
subject W any other premium lisbility under the policy,
This agreement is made in reliance on th~ informntion
you have given liS. and is subject to all the terms ofthi"
policy,
This policy. 011 endorsements to it, and the Subscriber's
Agreement constitute the entire agrcement between
you and us,
ERIE INSURANCE COMPANY ONLY
I n return for your timely premium payment and your
compliance with nil of the provisions of this policy, we
agmo to pl'ovido the covOI'llges YOll hove purchnsed.
Your covernges nnd (nmounts of Insurance) ore shown
on tho lleelaratiol1s. which are port of this policy.
Thill agl'comont is made In reliance on the infomlation
you hnve given us, and is subject to all the terms of this
policy,
Thill policy and ull endOl'scmonts to it constitute the
entire agreement bctween you and us.
APPLICABLE TO ERIE INSURANCE EXCHANGE
and RRIE INSURANCE COMPANY
We prom iso, upon timely payment of the premium and
compliance with the provisions of this policy and its
endorsemonts:
(I) '1'0 cover you from 12:01 A.M" Stsndard Time, at
the location of the insured property, on the date
shown on the Declarations as the first day of the
policy period, Coverage will continue in force until
terminated,
(2) 'fo protect you up to the amounts specified in the
policy.
You may not, transfer this policy without our consent.
This policy is made and accepted subject to these and
following provisions, including those which may be added
by oll'lorsemont,
POLICY DEFINITIONS
~
Thl'OUllhout YOllr polley and its endorsements the fol.
lowing \Vords hnvl> a special menning when they npponl'
in beld type, . ' . .. , .
"aircraft" mean. any machine or devico capable ~r"'.",
atmospheric night oxcopt modolllirplnnos,
"anyone- we protect" mean. YOII nnd the following
residents of YOllr hou.chold:
X (1) relnti"es and wards;
(2) other persons in the carc of anyone we proteot, X
U ~l,der Home "lid FQmi/;x, LiH/li~i!l,f.t:I/I~fli(m""1,IXOM,,,
Wc,protect.alsomeans: .. '.' ""., ,....... .....+.
(3) any person 01' organization /ega'uytespoIl81blefor i
nnimal. or wntercraft which ore owned by'you. or
any perllon included In (1 )0r(2). and covered by this
policy, Any person 01' organization using or having
custodyefthese animals orwatorr.raft in the course
3
of uuy bIl8hlll"". 01' without JlI"'lIllfl"ltlll of th"
OWIll'I' Is not IInyono Wo III'oto<lt;
(4) IIny IIorson with I'usllm,t to uuy vohiel" <loVel'",1 by
this IIolilly. Any porllon ullin/( Ill' huvh'lt <lusl",ly of
this vohlclo in tho courllu of nny hll81n088 US". or
without pOl'mlslllun of tho oWIll'" ill not IInYOJ\ll WII
PI'otect.
"bodily Injury"mollns physicul hurm. IlleklHlIlS 0" dill-
X eIlSO, Including montal anglllsh, and includo" CUl'<l, laSH
of SOrvIC09, or rOHulting douth.
Bodily Injury doos not includl':
(1) any communicublo disellse or condition t,'onsmittod
by nny insured to any other parson through u
parusite, viruII, bactorin or any other ol'gonlsm.
(2) the expeaure to or tronamisslon of any dlsoose,
parnslte. virus. bacteria or othor orgonism by IIny
insured to nny other person.
"business" menon any activity engugod in lis II trlldu.
pl'ofession or oCI,upation, including fOl'lning.
"Declarations" means tho form which shows your
coverages.nmounts ofinsul'Once. IIromlum chlll'gesund
other informntion, This form is partofyollr policy. Your
policy is not complote without this lorm, Tlw Oocllll'll-
t10ns mny be revised and updnted by a form cnlled tho
Amended Declarations which then becomes the appli-
cable covernge.
"Insured location" menns:
(1) the residence premises;
(2) the pnrt of nny other premises, other structures,
1,IIId grounds acquired by you during the policy
period which you Intend to use >IS a residence
premlsos;
(3) any premises used by anyone we protect in
connection with premises included in (1) or (2);
(4) any part of a non-owned promises:
(a) where anyono we protcot Is temporarily re-
siding; or
(b) occasionally rented to anyone WI' protect for
non-business purposes;
(5) vacant land, other than farmland. owned bv or
rented te anyone we protect; .
(6) land owned by or rented to anyonc wo protoct on
which a one or two family J'esldence is being built
for occupancy by anyone wc protcct;
(7) cemntery plots or burial vaults of anyone we
protect.
"medical expense" mcans reusonE.blcch8l:ges for nec-
essary medical, surgical, x-ray lindWn\tli1' kcrvlcriJ;'in.
X c1uding prosthetic devices, eyeglasscs,contacts; hearing
aids and phnrmaceuticals; and also includes ambulance.
X hospital. licensed nursing and funeral services.
"occurrence" means an accident, including continuous
or repeated exposure to the same general harmful con-
ditions,
UIU'OIJorty d.unllll.'" IIWIlIIH dUlIlllgC' to U1'llIHH of lltHl of
tllll!:ihloI1rollurty,
"rt!sldenoc elllllloy"o" 1Il0llnSllll ulIlpl"YI'U of anyono
WII Ill'ot(,ct whu perfow,s dutiml in cUIIl\lletlon with the
lIluint/mon"e or uso ufUw rosldmlClllll'mnlsos, includ.
ing similar dntlell olsowlwro, nut in cunlll",t1un with tho
buslncss of anyon(, Wll I'rotoct.
"I'osldllnce premlsos" mellnll thu dwolling whore you
rosidl" Including the otI'lWt.UI'Ofj und grounds, or thnt
port of any othor building where you reside and which
is shuwn as "residence promis"s" on the Deelaratlons.
o
ADDITIONAL ERIE INSURANCE
EXCHANGE DEFINITIONS
The following words have a special meaning in policies
iHsued by Erie Insurance Exchange when they appear in
bold type.
"Subscriber" menns the person(s) who signed the
Subscriber's A'.....eomont.
"Subseriber's Agrcement" means the agreement,ln-
eluding a limited power-of-attorney, amOng the Sub.
scrlbers and the Erie Indemnity Compony. as At.tor-
ney,in-Fact.
IlWe/' l'US" or "our" means the Subscribers at Erie
Inslll'OllCe Exchange as represented by their common
Attorney-in-Fact, Erie Indemnity Company,
"You," "your" 01' "Named Insured" means the Sub.
sc..iber and others named in Item 1 on the Declara-
tions. Except in the GENERAL POLICY CONDITIONS,
these words include the spouse of the Subse"lber if a
resident of the some household.
C-\
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ADDITIONAL ERIE INSURANCE COMPANY
DEFINITIONS
The following words have 0 special meaning in policies
issued by Erie In8Urartce Company when they appear in
bold type,
"We." .'us" or "our" means Erie Insurance Company.
"You." "your" or "Named Insured" means the porson(s)
named In Item 1 on the Declarations. Except in t.he
GENERAL POLICY CONOI'rIONS. these words in-
clude your spouse jf a resident ofthe same household,
WHEN AND WHERE TillS POLICY APPLIES
This policy applies to losses that occur during the policy
pedod. The policy period is shown on the Oecltlrations
OJ' AfllC'nded Declarations.
Section I-Property Protection. This policy applies to
propel'ty loss~s as designated in the specific coverage
.' anll, ~\, !Jlq!qpation(s) insured,und.,.. this policy, In
addition, Personal Property"is 'co\fe\t!d' while' 'located"
anywhere in tile worl!l. "" ',' '" i "
See/ion /I-Home and Family Liability Protection, This
policy applies to bodily Injury and prope..ty damage
lossos occurring anywhere In the world.
.
I
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SECTION I-PROPERTY PROTECTION
"
_IIJ
DWELLING COVERAGE.-OUR PROMISE
We will puy for loss to:
(1) YO\l1' dwollingl,t tho r(,sldem", 11I'","isf'S shown
on tho Deolarntlolls. Dwolling includmluttuchod
.tructures, und bulldingllquipnll1nt und fhturos
sOl'vicing the premises.
(2) Construction Muterialut tlll1 resldenoe promises
for use in connoction with yo\(r dwolling.
This covorage doos not apply to land.
OTHER STRUCTURES COVERAGE-
OUR PROMISE
We wlll pay for loss to:
(1) Other structurosat tho r<lsidell('o premises sepa-
rated from the dwelling. including garages, fencos,
shelters. tool' sheds or carportll.
Structures connected to tho dwelling by only a
fence, utility line. or similar connection nro consid-
ered to be other structures.
(2) Construction matorlal at the rosidenco promises
for use in connection with YOUI' other structures.
We do not pay for loss to structures uscd in wholo or in
part for busilless purposes (except rental or holding for
rental of structures used for private garage purposes).
This coverage does not apply to land.
PERSONAL PROPERTY COVERAGE-
OUR PROMISE
We will pay for loss to:
(1) Personal property owned or used hy allyone we
protect anywhere in the world.
(2) At YOllr cption, personal property owned by others
while the property is on your rcsidencc pre.
mises.
(3) At your option. personal property of:
(a) guests and residence employees while the
property is in a residence occupied by anyone
we protect;
(b) resldenee employees away from the resi.
denee premises while IIctuully engaged in
the service of anyone we protect.
X (4) At your option. building additions. alterations,
fixtures. improvements or installations made. 01'
acquired at your expense, by you to rosidonces
occupied by but not owned by yO\(. for an amount
not exceeding 10% of the amountc6f'il\'#urance
under this coverage. Payment will not increase the
applicable amount of Insurance under this'policy.' .. - - .
(5) Cemetery property, including monuments. heud.
slones. gravemarkers, and UI'llS.
X
((j) Animuls, hints und nflh, hut only while on the X
rosld(lne(, I)rmnlsus, for the following perils cov.
Ill'Od undm'l'm'ils W" b,s"/',, Agaillst: /<'i/'e or Light-
lIill/!. Willrl.,tm'fII o/' lIail, J<:x/llosillll, SO/lie Boom,
/liot Of' Civil COfllfllotlon, Airoraft, Velaides, Sflloke
((nd Valll/allsfll o/' Mlllido"s Mischief.
(7) modronic apparat.us while In or upon a molor X
vohicle or othllr motorized land conveyanC(l, if the
electronic appllrlltullls equiplled lo"be operatod by
power from the electdclIl system of the vehicle or
conveyance while retaining its eapability of being
operalod by other sources of power. Electronic ap-
paratus includlls cellular phones, fax machines,
radios, tapo players and accessories used in con.
junction with Buch apparatus Including antennas,
lapes, wires, records, discs or other media.
Wo do not pay for lOBS to:
(\j Land motor vehicllls Ilnd purts. We do covel' ve-
hicles designed to assist the handicapped, and
vehicles used to service the residence premises,
not subject to motor vohicle registration.
(2) Aircraft and parts.
(3.1 Property rented or held for rentallo others away
from the residence premises.
(4) Property of roomers. boarders or tenants not re-
lated lo anyone we protect.
(5) (a) Books of account. drawings, or other paper
records; or
(b) electronic data processing tapes, wires, records,
disks, or othor software media; containing.
business data. However. we do cover the cost
of unexposed or blank records or media.
(6) Radios, tape players and other equipment or de-
vices for the recording. reproduction, receiVing or
t.ransmitting of sound or pictures which may be
operuted by power from the electrical system of a
land molor vehicle and permanently mounted while
in or upon that. vehicle. Accessorieslo these devices,
including antennas, tapes and records are not cov-
ered while in or upon a land motor vehicle.
(7) Radar detectors.
(8) Property specifically Insured by this or auy other
insurance.
X
(9) Except as provided under Per.,onal Property Limi.
taUoTls. property pertaining to a business con-
ducted away from the residence premises unles8
at the t.ime of loss such property is on the resi.
dence pre,\llses.However. .",e.~o".\Qt cover..uch .
pl'operty onfthe residence . premises \vliilfi 'ftIS'"
stored, held !Ill samples, or held for sale or delivery
.. ';dftljrlrale. ' . .
5
Limitation. npply to t.Iw following l)(lI'.olwl proporty, l'u'ylllolll .hulll", for tilll .hortHHllllllo l'IllIUit'I'd to !'Opuir
Tho.e limit. do I\olinm'ea.o tilll nU\(lulIl of iIl811l'11I"''' HI' I'''pluo,., tilll pl'OlIliHH. or. If you "'\(IUilO, for you 10
undor l'el'lumal P,'oJJ(!f.t'y COU(!I'U,llf': 1""'ulllll,,nll,Y ,..,locntH,
'I'otal Amount llosorll.t1ol1 or l'er.onRI 'l'h08l! pnymont. willllut (,KCO('.\ n 12 ll10llth porlod,
of In.uranco I'rol'lerty Subject 10 Wt, willul.o pay fill' your 10.. ofnurmnlronl. rtl.ulting 0
III Any One 1.088 (.hnlt.lIons f'rolll lhtl 10HH. IlJHH chnrgoH nnd tlXptln.OH which do nol
$ 250 . Animnl.. birds and fi.h continuo whilo tho ronttld purt of' tho re.ldolloe 1)1''''
X $ 250 . Monoy. bonk now., bullion.numl.. miso. I. uninhnbltnbh" W" will pny thi. 108. of normal
matic property, gold ether than ronts only until tho rontml part i. habitable,
gold wore or gold.plated wnre, sil. If' a 10.. from a peril covered undor Perils We IIlsure
VOl' other than sllvel'ware 01' .ilvor. Agaillsl occurs at a neighboring promi.o.. we will pay
plntod wore, and plntinum addltioallllivlng expen.e. and lOBS of normal rents for
X $2000 . Accountn, bills. deeds, evidences of up to lwo week. should civil autilllrities prohibit you
debt, letters of credit, nOWB othor f'rolll occupying your premineH,
than bank notes. passportB, .ecuri. 'rhese periods ofUme ore not limiled by the expiration of
ties, ticket., stamps lInd philatelic thi. policy,
property No deductible applies to tbis coverage.
X $2000 . Trailers and campers not othm',
wise Insured, whether licon.ed or We will not pay for loss 01' expense due to.the cllncella.
not tion ef any lease or IIgreemenl.
X $2000 . Watercraft.includingtheirtrailers Thi. coverage also applies to 0 10sBat II covered second.
(whether licensed 01' not). furnish- ary lecation,
IngB, equipment IInd cutbo[lI'Cl mo' PERILS WE INSURE AGAINST
tors
X $2000 . Manuscripts DWELLING AND OTHER STRUCTURES
$2500 . Property pcrtaining to 0 business COVERAGES
actually conducted on tbe resl- We pay for risks of dh'ect physical loss to property
dence premises, including prop. insured under the Dwellillg and Other Structures Cover.
erty in storage, held as samples, or ages except as excluded or limited herein,
held for sale or delivery after sale, We do not pay for loss: 0
X A $500 limitation applies to any
business property away fl'Om the (1 l lnval ving collapse, other than os provided in Addi.
residence premises, regardless tiOllat umes We Will Pay, (2) Collapse;
of whether the business is con. (2) Caused by freezing by temperature reduction ora
ducted on or away from the resi. plumbing. heating. air conditioning. or fire protec.
dence premises, ti ve system. or of a houeehold appliance, or by
X $3000 . Theft of guns discharge. leakage or overflow from within the
X $3000 . Theft of jewelry. watches, furB, pre- system or appliance caused by freezing, while the
clous and semi-precious stones dwelling is vacant, unoccupied or being constructed,
X $3000 . Theft of silverware. silver'plated 'fhere;s coverage if you have used reasonable care
ware, gold ware. gold-plated ware lo:
and pewterware (a) mlllntain heat In the building; 01'
10% of Personal' Personal property usually siluattlll (bl shut otTthe water supply and drain the system
Property at any residence owned or occupied or appliances of water,
Coverage- by anyone we protect other than (3) By freezing. thawing. pressure or weight of water
(but not lsss a residence premises. PerBonal or icc, whether driven by wind or not, to a fence,
X than $2000) property in a newly.acquired prin. pavement.. PlltiO. swimming pool. foundation, reo
cipal residence is not subject lo lhi. lllining wall, bulkhead, pier, wharf 01' dock,
limitnt.ion for the 30 days immedi. (4) Caused by:
. ately lifter you begin to move prop.
ertYfthbl'U,""" ",. ....'1. I (II) termites. insects. vel'min or rodents;
LOSS OF USE COVERAGE-OUR PROMISE (b) mechanical breakdown. deterioration, wear and
tear, mnrring, inherent vice. latent defect. rust,
If an insllred property loss makes YO\ll' resldenoe slllog, wet or dry rot -and mold;
premises uninhabitable, we will pay all rOllsonable (c) contamination; C
additional living expenses while you and members of
your household reside elsewhcre, (d) .make from agricultural smudging or indus.
tda'l operation.;
6
')
(0) hulging,crllckin!:, oxplInHlon, HottlinHol'llhl'lnk.
hlHin coilingl1.lhundntionl1, n"""II, IlllllulI, IlllVO'
montH. roofll or wllIIH,
If(lI) through (e)t,nuno wnlor dlllllugonotulhtll'willll
excludod, from a plulllbinll, huntinll, nil' cunditiun.
lng, or flre protective sYl1tOI1\, hOllllUh"ld nppllllnl!ll,
woterhed er aqunriulll, wo l!UVllr IOOll cnull"'! by Ihll
wnter, Covernge includeo thecolltoftonl'lnlluut IInd
.'eplacing any partofll building neclloon.'y tn ropnh'
the system or nppllance, 'I'hls dOll8 not Includll 10119
to the dofective system or appllanco (~thor IIl11n II
waterood or aqualium) from which tflO wnler tIS'
caped,
(5) Caused by weather conditio no if any pol'll oxcluded
by this policy contributes to thlllos" in nny wny,
(6) Caueed by acto ordecilliens, including the failure to
act or decide, of any person. group. orgnnization, or
governmental body if any peril excluded by this
pollcy contributes to the loss in Llny way,
(7) Cnused by, resulting from, contributed to or nggl'll'
vnted by fnulty or inndequnto
(a) planning. zoning, development;
(h) design, development ef Ilpeeifications, wurk,
manship. construction;
(c) materials IIsed in construction; or
(d) maintenance; of property whether on or off the
residence premises by any person, group,
organization, or governmental oody ifany peril
excluded by this policy contributes to the loss
in any way,
(8) Caused by animals or birds kept by anyone we
protect or kept by a residence employee of
anyone we protect,
(9) By theft of property from within a dwelling under
construction unless that property has become a
partofthe building, orofmatorials and 8upplies fOI'
use in the construction until the dwelling is com.
pleted and occupied,
Under items (1) through (9) any ensuing loss not ex,
cluded is covered,
See Scclio'l!.-Whal We Do Nol Couer-Exclusio/l,' for
additionallossos exduded,
x
"
PERSONAL PROPERTY COVERAGE
~
We pay for direct physical loss to property insul'ed under
Per'ClInI Properly Couerage caused by any of the follow.
ing perils, unless the loss is excludcd clsewhel'e under
this polil~Y'
(l) Fire or Llgh~ning,
(2) Windstorm or Hail,
This doos not include:
I ,
(a) loss caused by frost..cold weather. Ice. snow,
-sleet, sllnd or dust;
(h) loss to property contained in a building, unless
the building is flrstdmnagod by the direct force
of wind or hail;
'..-1
(c) los!! to WIlIOl'".'uft (oxl'ol'lrowbollts uud canoos
ul. UII hlsUI'ud luoutlon) und their lrllilOl'8.
f\lrulllhillHS, tl(Juil'lI\t!nt ulld 1II0tOl'8 ulllc8!! in.
sidl' 11 I\llly ",wlllfllld h\lilllhlfl,
(:I) l~xllluHI"n,
(4) Sonll, 110011I, X
(U) lUut or Civil COlli motion,
(0) Aircraft. iucludilllllllissllcs und spacecraft,
(7) Vchioles,
(8) Smoke, If tht, loss is sudden and accidental.
'1'hls doos not Indudc 1088 caused by smoke from
1I!(ril'ultur1l1 smudlliu!: or industrial operatioll8,
(!)) Vandalism ur Malicious Mi_chlef,
(10) Then, including attompted theft and loss of prop' X
erty from a known location wholl it iolikely that the
property has been stolou, WfJ also cover direct losll
of covered porsonal proparty by the(\. while it is
unnttendl,d in or on a motor vehicle. trailer. or
watorcraft.
This does not Include:
(a) theft committed by anyone we protect;
(b) theflofpl'Oporty from within a dwelling under
construction unless that property has oocome
a part of tho building. or of materials and
supplies for use in the construction until the
dwell in!: is completed and occupied;
(c) theft of property while at another dwelling or
adjacent structures ownod by, rented to, or
occupied by anyone we protect unless any-
one we Ilrotect is temporarily residing there,
Property of ostudont we protect is Covered X
while at a residence away from home. XX
Then 108ses must he promptly reported to U8 and to
the police,
(11) FaIling Object8,
This does not include:
(a) loss to property;:ontained in a building, unless
the failing object first damages the building
exterior;
(b) damage to the falling object,
(12) Wcight of Ice, Snow or Sleet.
'1'hls does not, include loss to personal property
outsido the building.
(13) Sudden and accidental tearing apart, crack-
Ing, burning or bulging oC a steam or hot
water heating system, an all' conditioning
s)'st,cm, or fire protective. ,yljtem, or on appU-, , . ,..
. anee Cor heating water. . . ..
'I'his does not cover loss caused by or resulting from
f!'eozing,
(14) Freezlngby temperature reduction oCa plumb-
Ing, heating, all' conditioning, or fire protee-
tlve system, or of a household appllanoe.
7
x
'I'hls dous not indud(, IOHs on till' 1'''Hlclllnco 1'1'("
mlses whllo tho dwolllllK iH ulIocllupiod unll,ss you
hUv(1 uHod rllllHllnabl(. CflI'() lo:
(u) muintuin hout in tllll buildin,~. nI'
(b) shut olTthe wat.ul' Hupply IInd elmin till! syslml\
or appllancus of wolt,.',
(6) AC(lldental discharge or overflow of water 01'
steam from within a plumbing, huating, all'
conditioning, or nre protective system, house-
hold appllaJlce, waterbed or aquarium,
Thi8 does net include:
(a) 1088 to the defective oystom or appliance (other
than a waterbod or aquarium);
(b) 108s caused by 01' resulting from fl'eozing;
(c) loss on the resldencc premises' couHed by
accidental discharge or everflow whillh OCCUI'S
ofl'the reaidence premises,
(16) Damage due to a sudden and acchhmtalsul'ge
of electrical current,
This dees not includc loss to tubes. transislors 01'
similar electronic component.s,
(17\ Volcanic Eruption,
This dees not include loss caused hy earthquake.
land shock waves or tremors,
Volcanic erupt,ions occurring within a 72 hour pe~
ried will be considered one volcanic eruption,
WHAT WE DO NOT COVER-EXCLUSIONS
(Also see specific Exclusiolls ullder Dwelling alld Other
Structures Coverages-Perils We Insure Agaill,qt)
We de not pay for loss resulting directly er indirectly
from any of the following, even ifother events or happen-
ings contributed concurrently, or in sequence. to the
loss:
(1) by earth movement, due to natural or manmade
events, meaning earthquake including land shock
waves, or tremel's before, during er after a volcanic
eruptiell; mine subsidence; landslide; mudslide;
mud flow; earth sinking. rising 01' shifUng, Direct
loss by /i'ire. Explosioll, SOllie Boom, Theft or B,'eah.
age of Glass resulting from earth movement, mine
subsidence, landslide. mudslide, mud flow. earth
sinking, rising or shifting is covered.
(2) by water dnmage. meaning:
(a) flood. surface water. waves. (ides, tidal waves
or overflow ofa body of water. WIl do nel covel'
spray from any of thoso, whether 01' nol driven
hy wind; ,
(b) water or sewag~ which hacks \ip through sew"
el'S or drail\~;. Pi .
(c) water below the surface of the grouad, This
includes water which exerts pressure on. 01'
flews, seeps 01' leaks through IIny part of a
building or other structure, sid"wlllk, drive-
way. foundation, 01' swimming pool.
w(, dll PIlY !III' dll'(lellll"" lhlll IIIIIIIWH, "lIuHml hy 111'0,
"Kpl".'"I1. SOllie: boom m' t1wfl.
(:1) hy p(lwm' Inlm'I'uptioll If llw illt(ll'l'upti(ln tllkllH
placo IIWIlY fr(lmlho r"sldenco Ill'mnls08, lflllosR
from II pol'il covul'lld undm'l'""ils We IIIS/I,'(, Allaillst
hIlPP(lIlH 011 tho rosldonco IIrolll18118 aH al'llsult of
IIpOWll1' illtllrruption, wo will COVIll' only loss cllused
hy thllt fllll'il.
(4) by Will'. wlHlthor declared or undeclared. dischargo
of a nuclear wOllpon (evI," if lI"cldenlaD, hostile OJ'
warlike actien in time of peace 01' war. insurrectien,
I'ebellien, I'evolution, civil war. usurpod power, In-
cluding action taken by governmontal a\lthority In
defending ogainst such an occnnence,
(5)' hy nuclellr action 01' radiation el' radioactive con-
tamination, howevcr ('II used. Nuclear actien in-
cludes nuclear reaction. discharge, radintion er
I'udionctive centumination. whether man-made or
o9cUl'ring naturally,
Loss caused by nuclear action is notconsidel'eel less
by fire, explosion, sonic boom or smeke.
!floss by lire results, we will pay fer that resulting
loss,
(6) by radon gas centamination,
(7) by the enforcement of an erdinance er law regulat-
ing the construction, repair or demolitien ofa build-
ing or other structure, unless specillcally provided
under this policy. We do cover loss caused by
actions of civil authorities to prevent the spread of
a fire caused by a peril covered under Perils We
IlIsure AgClinst.
(B) by neglect of anyone we protect touse all reason-
able means to protect covered property at and after
the time ofless er when property is threatened by
a peril covered under Perils We Insure Agaillst,
(9) by intentional loss, meaning any less arising from
an act committed byeI' at the direction of anyone
we protect with thc intent to cause a loss,
o
o
ADDITIONAL LOSSES WE WILL PAY
(1) AUTOMATIC GARAGE DOOR OPENER
We will pay up te $500 for los~ to persenal property,
including the garage door, at the residence premises
resulting from the use or malfunction of an automatic
garage door opener,
(2) COLLAPSE
We will pay for direct physical loss to insured property
involvingcellapse 01'0 building, or any part ofa building,
c!lused only by one or more of the follewing:
(II) lire er Iightning;windstorrn orhail;'exploaion,:
sonic boom, riot or civil commetion, aircraft,
vehicles, vandalism er malicious mischief,
breakage ef ghlSS, falling objects, or weight of
ice. snow or sleet;
(b) hidden decay, or hidden insect or vermin
dumage;
x
c
8
,";:,
, (~:) 1Y"Il{ht of POOpll'. IIl1illllll", COlltnntu lII' "'1"ip.
moot;
(d) w"ll{ht of I'Uln whleh COlllld/l 01111"001';
((,) llllO of d(,fectlvolllllhll'inln m' 1II0UlInl/l ill COli-
ntr\lctlon, I'emodllllllg, or rllllOvlltion if tho eol.
IlIpRO oCClll'n durllll{ UItl (:ourno ofl.lltl CUlllltl'lW'
tion. rOlllodolinll m' rllllllvlltioll,
Wo willnotbo liahlefol'lunn undor(b), (t:),(d)or((,) nhove
to tho followln" property \loll,nn the lonn ill /l (\ired ,'eHlllt
of tho COllllpRO 111'11 building:
X Cloth awnlngR, fencoR. pnvomontR. pntion. nwim.
ming pools, \lndorgl'ound plpos, O\lon, d.'nlnll, conn.
pools. ooptic tonks, foundotionn, rotoilling wolin,
bulkhoads. plol's, wharves or dockn,
(Jollapse does not includo settling, cmcking, nhrlnkogo,
bulging or expansion,
Poymont will not incl'oooe tho amount of lnnul'onco
applying to tho loss,
(3) CREDIT CARD, CHARGE PLATE. CHECK.FORG.
ERY & COUNTERFEIT MONEY PROTECTION
X We will pay up to $2500 for the logal obllgotion of
anyone we protect to pay bocouse of theft, forgory 01'
unauthorized use of any c.'onit or fUlld tl'onsfor cord,
chargo plate, checkol'negotiablo instrumellt issuod to 01'
registered in the name of anyone we proteet. We will
also pay for loss each time anyone we protect unknow-
X ingly accepts counterfeit money. No deductible applies,
We require evidence ofloss,
We will not pay for:
(a) losn arising from any business:
(b) loss arising from anyone we protect,
When loss is dlscoverod anyone we proteet must give
us immediate notice, If the loss involves a credit or fund
transfercsrd or charge plate, anyone we protect must
also give immediate notice to the issuer of the card or
plate, Failure to comply with the terms and conditions of
the card or plate voids this protection,
X If a loss occurring during the policy period is discovered
within s year after tho policy has been canceled, we will
pay for the loss, If a prior loss is discovered during the
policy period and 1I00therinsurance applie.. we will pay
for the loss, We havc the right to investigate nnd sottlo
any claim or suit before making payment. Full payment
of the amount of insurance ends our ohligation under
esch claim or suit,
Repeoted losses caused by 01' illvolvingone person arc to
be considered one loss,
11'0 claim is made or Buit is brought ngainst anyone we
protect for liability under the Credit Card or Charge
Plale Prolectioll:we will provide n defense, Tho defenBe
will ~c at Ollr elepenBe-. with a lawyor we choose; ... ; , ...
We ~8ve the option under the Checl/ Porgery Proleclioll
to defend at our exponse anyone we protect or their
hank sgainst a suit for the enforcement of payment,
G
o
(4) DEBRIS FlEMOVAL AFTER LOSS
Wo willl'oy Uw llXI'''IlS(' I'M "ol1\ovul of:
(01 dohl'is ofcovol'od propm'ly followlug 10sII undor
/'e,.;I" We IlIsUI'e AI/nillst:
(hl ush. dust UI' pUl'tielos from volmlllic eruption
t.hut hus cuusod dirm:t loss to II huilding or
I'I'ol'm'ly wlthillu building: or
(e) full'lII troos which c!luse damage to covel'od
propm'ly, I"'ovldcd covoruge is not afforded
olsowhol'll hy thiR policy,
If tlw umount of inRUl'once applying to tho 108S is ex"
hnllRt.nd, we will puy up to un additional 5% of the
umount ofinsurnnce applying to tho damaged property
for romoval of dobrls,
We will also pny up to $500 pOI' occurrence for the
,'emoval of fallen treos 011 tho residence premises if
loss is cauRed by wind.torm, hail 01' weight of ice, snow
or s\oot even when covel'cd property is not dsmaged,
(51 EMERGENCY REMOVAL OF PROPERTY
We will pay for property domngod in any way while
rcmovod from your residence premises because of
danger fl'Om nn insured peril. Coverage is limited to a 30-
dny period from date of removal. Payment will not
illc"ellse the amount ofinsurnnce applying to the loss,
(6) FIRE DEPARTMENT SERVICE CHARGES X
We will pay all reasonable fire department service
chargos to save 01' protect insured property, Payment is
in addition to tho umeunt of insurance applying to the
loss, No deductible .llpplies,
(7) FIRE EXTINGUISHER RECHARGE
We \yiIl pay expenses incurred to reoharge portable fire X
extinguishers after thoy are used to fight a fire,
No deductible applies,
(8) LOCK REPLACEMENT AFTER LOSS X
At your request, we will puy up to $250 to replace keys
and locks to the exterior doors of the residence pre-
mises, as well as keys and locks to your other property
(autos, boats. etc,), if the keys are stolen during atheR
loss, This ceverage docs not apply to keys and locks
pel'taining to business property, No deductible applies,
We will pay for replacement of automatic garsge door X
transmittel's when a transmitter has been stolen, Cover-
al{e is also provided for the cost to reprogram the fre-
quoncy on additional transmittors and/ol' the control
unit bOK.
No deductible applies to the replacement of automatic
gal'age door tl'Onsmittel's,
(9) LOSS ASSESSMENT
'(A)Jpliciible 10 Section 1 & 8ecWj,11I . Personal Liability.
Coverage Only)
We will reimburse you for an assessmentchargedagainst
you as owner or tenant of the residence premises by
a n association or corporation of property ownor" minus
any otlll1r valid and collectible insurance available to the
9
U8Hucilltlon ur tlOl'JUU'utiull (~uvurin~~ thn HlUnH IHlHllHH4
"llmt, 'I'IWuHH('llalllollt Illllat"IlHIIIt IhllllUII o(wurr(llu",
c/)vOl'(l(lulld(lI' I,hla policy,
UIIIIlIIH UtlIOl'lvlllO HhOWII 011 thll J)(wlnrnt!oIlH, CIlII'
X nlllollllt of InHlIl'uncll for thlH PI'otllction iH $fi()(J() pll"
OHIIOHHlllont,
Ifyouuro IlHHOIIHOd for U COVIll'IIlI wlltllr IOHII, WIl will poy
your alllll'o of thll COHt of toul'illll out nlld rllplllclllgllllY
port of all Insured loontlon ll(,cI'lIllllry to ,'elHllr tho
syatem or appliance,
1'ho policy deductlblo applll'lI ulldm' 8/wtiOlII only,
We will not pay If tho 101111 III causod hy oOl'thquake 01'
land ahock wnvea or tremorH which occur bofore, durillg
or aner 0 volcanic eruption,
We also will not pay for any loss aSllessmonts charged by
a governmental body,
X (10) MECHANICAL SERVANT AND ROBOT
PROTECTION
We will pay up to $500 for loss to pOl'sonal property at tho
rflsldence premises causod by malfunction of a mo-
chanical servant or robot.
(11) NECESSARY REPAIRS AFTER LOSS
We will pay the reasonable expense for necessary re-
pairs to protect covered property from further damage
nfter loss by a peril covered undcr Perils We Insure
Against, Payment will not Increase the amount ofinsur-
ance applying to the lass,
X (12) NON-OWNED RESIDENCES
We will pay up to $1000 for loss by theft and vandalism
or malicious mischief to residences occupied by but not
owned by anyone we protect, .
X (3) REFRIGERATED PRODUCTS
We will pay for loss to tho contents of refrigel'8tor or
freezer ulllts on the residence premises from either
power or mechanical failure,
Coverage will be void if the contents are on the resl.
dence premises for business purposes.
X (14) TEMPERATURE CHANGE
We will pay for loss to insured personal property result-
Ing from chango of temperature, There must first be
damage done by a peril eovored under Perils We Insure
Against occurring at the residence premises, Pay-
ment will not increase the amount of insurance applying
to tho loss.
(15) TREES, SHRUBS, PLANTS AND LAWNS
We will pay up to an additional 5% of the amount of
insurance under Dlhel/iflg Coverage for loss to trees.
shrubs, plants and lawns at the residence premises,
Coverage appllos only to loss caused by the following
p-3rils covered under Perils We Iflsure Against: firo or
lightning, explosion, sonic boom, riot or civil commotion.
X aircraft. \'ehicles, smoko, vandalism or malicious mis-
chief and theft.
WI' will nol. pay 11>..:
(II) 1lI""ll thall $nO()lIn any"'", t"'Hl.sh,'ublll'J,llInt;
(b) till III n !:ll 1.0 IIIWIIS hy vllhlclllsOWIIOd ",'oJlCl'ntlld
by II rllsitlllllt of tho reHldence IlremlHes;
(e) t"llIlB. shruhB. Jllnnts or Inwns grown for bUHI. 0
nUHH )llll'IUHHIH.
DEDUCTIBLE
We will pny for loss minus tho deductible shown on t,he
Del,lnrntlons, In tho evont oftotnll08s to the Dwelliflg X
from n covered peril, tho deduetiblo will not npply,
Tho d(,ductihle do08 not apply to:
(II) [,oss o( Use Coverage,
(b) Cr"dit Cord, Charge Plate, Clwck Forgery &
Couflter("it MOlley Protectiofl,
(c) Fire Departmeflt Service Charges,
(d) Pire Extiflguisher Reehargl!
(c) I,ock /leplaeemellt A(ter Los"
RIGHTS AND DUTIES-CONDITIONS
(I) ABANDONMENT OF PROPERTY
We will not accept abandoned property,
(2) APPRAISAL
If you and \Ye fall to agree on the amount ofloas, either
party may mako written demand for an appraisal. Each
party wlllsolect an appraiser and notify the other of the
appraiser's identity within 20 days after the demand is 0
received, The appraisers will select a competent and '
Impartial umpire, If the appraisers are unable to agree
upon an umpire within 15 days after both appraisers
have been identified. you or we can ask aJudge ofa court
of record in tho stato whore your residence premises
is locatod to solect an umpiro,
The appraisers shall then set the amount of loss, If the
appraisers sllbmit a written report of an agreement to
us, the amount agrood upon shall be the amount ofloss,
If they cannot agree. they will submit their differences to
tho umpiro, A written award by two will detennine the
amount of loss,
Each party will pay the appraisor Itchoosos. and equally
bear exponses for the umplrll and all other expenses of
tho appraisal. However, if tho written demand for ap.
praisal is mllde by us, we will pay for the reasonable cost
of your appraiser and your share of the cost of the
umpire,
We will not bo hold to have waivod any rights by any act
rdnted to apPI'aisal.
(a) AUTOMATIC ADJUSTMENT OF COVERAGE X
AMOUNTS
This policy provides you with a guard against the eITect
of inOation in const,'uetion costs, 'rho amount of cover.
age you have today muy notlJo onough to rebuild your I'
home at a later datdn tho evont of sorious loss, ~
10
'~J
WIl will kilOI' tmck of costs und lit tho nod polley IlIl,'lod
wo willlldjust tho alllount of your huildltlH ""vorIlK" if
ilocossal'y, AdjuHtmontsin otlwr cOV/ll'lIllos (Oil,,'/' SI,'/le.
IUI'IlB, ['O"BOflllll'rO[)I!/'ly IInd I","s <>/' Us!') wllllllso ho
Illlldo pl'ollOrtionlltely, YO\lr prollllulll will 110 lI(\jlltltfJ(1
lit oaoh polloy pllriml te roOod IIny ohanllo In t1l1llllllount
of Insul'Unco,
During tho policy pol'iod. If thoro is un Incrollso in
construction cOdts and a loss occurs, wo will l'OOoCt till!
Incl'OaHo In tho ameunt. of InHurunco hoforo mllklnH
payment, 'rhere will be no chargo for thiH IIdditional
covorago,
Howovel'. If for any reason the amount of laflurance on
your home becomes inadequate or if yo \I made suhstan-
tial improvementa to YO\lr homo and failed to notify \IS
te increase the amount of your insurance. the amount of
insurance shown on the Deolaratlons will bo the full
amount available should a loss OCCUI',
(4) ERIE OPTION
If wo givo' you written notice within 30 dllYs lifter we
receive your aigned, SWOI'll statement of loss, wo mllY
repair or replace any part of the property damaged with
equivalent property,
(5) GLASS REPL.ACEMENT
Loss to glass caused by a peril covered under Pedis IVe
Insure Against will be settled en the basis o I' repla cement
with safety glazing materials when required by law,
(6) INCREASE OF HAZARD
Unless we agree beforehand, coverage is suspended if
the hazard Is substantially increased by any means
within the control or knowledge of anyone we protect,
(7) LOSS PAYMENT
We will settle any claim for loss with you or anyone who
has a legal interest in the property, We will pay within
30 days afWr we receive your proof of loss and the
amount of loss is finally determined by:
(a) agreement between YO\land \IS;
(b) an appraisal award; or
(c) a court judgment,
(8) LOSS SETTLEMENT
(a) The following types of losses will be settled on
anactual cash vslue basis, This means that we
will deduct for depreciation,
Losses to:
. property insured under Personal Prope/'ty Cov.
erage
. structures that are not buildings or carports
. carpeting
. domestic appliances
X . cloth awnings
. outdoor antennas and outdoor equipment,
whether or not attached to buildings
.,.
)
. InHu1'l1C1 huildlulls und Htruetll!'llS whioh do not
nWllt thlll'llCIUh'I!Ill(lIItH (m' IIrllpluct'll\(lIlt cost
sllttlonltlnt r11llwl'ihtlrlln HuhHI!d.ilms (8)(b) !lnd
(8)(0),
Tho l\\'tUIIII:IlHh vullltl will be dotol'l1l1110d at the
tinwol'tho 10HH, Puymont willnotl!xccod the umount
nOCeHHl\ry to ropulr or I'oplaco tho dalllulled prop-
CIty,
(b) (AlHS to bulldingH und curportH insured under
[)wldU,lg Couemge 01' Olher Slruclures Couer-
agc (except as included In (a) above) will be
sottlcd by ono of the following methods:
I, Replaeeme'll co,.t settlement (meaning that
we will not deduct 1'01' depreciationi:
a. provided the Declarations show that X
the Auto/llalie No-Depreciation Sellle-
/IIent applies; or
b. lfat the time of the loss. the amount of
Insurance applying tothe insured build.
Ing is 80% or more of the full replace-
mont cost of tho building immediately
prior to the 10sH; or
c, If the cost to repair or replace the dam- X
age to an insured bllilding is both:
1) less than $2500; and
2) less than 5% of the amount of jn-
surance on the building,
In making a replacement cost settlement,
we wl11 pay you the cost of repair or
replacement, without deduction for depre-
ciation, Payment wl11 not exceed the small-
est of the following amounta:
. the amount of insurance applying to
the building;
. the replacement cost of that part oCthe
building damaged for equivalent con-
struction and use on the same pre-
mises;
. the amount actually and necessarily
spent to repair or replace the damaged
building,
III determining 80% of the full roplace-
ment cost of the building, the value of the
following will be disregarded:
. excavations
. foundations below the basement 0001'
. piers and other supporLq below the base-
ment 0001'
. ifthere Is no basement. the value of sll
itoms below the surface of t.he ground
inside the foundation walls,
2, Less Ihan full reR((leem~1I1 e()~~~el.tlem~'v:"..,
" " If full replacement cost settle merit docs '
llot apply. we will pay ~he larger oCthe
following amounts, but not exceeding the'
amount of Insurance under this policy
npplying to the building:
a, the actual cash value oft.hat part of the
building damagod; or
11
!>,thllt lll'Opol'liollol'tlw li.1I cost to I'opllil'
01' ,'oplne() tlltl dlllllllitO whl"', tllIl totlll
1l1ll0Ullt 01' illHlIl'lIl1eo IlIthiH polley 011 till!
dllmullod hulldllll: hOllr'H to HO% of till!
"oplllcom(lIll eOllt of tlw hulldlnll,
((1) We will puy no 1ll00'O tlmn tho IIctulll ('"Mh vnlull
of tho dnlllllll" UlltII th" lI(:tual ,'opnir OJ' 1'0'
plncolllellt Is cOlllpleted, lIowovlll', wlwn till!
10118 ill both 108M thnn $2500 nnd leMM thnn 5% "I'
the olllount of Insurnncll on the Imllrllng. we
wlllpoy the full replacement COHl hefo,'o netulll
repair or roplacelllent is completed,
(d) You may disregard the replucement cost pro.
vision and make claim 1'01' 10SB or dllllloge to
, buildings on on uctual coah value basis, How.
ever, you st.iII have the right to milk" claim.
within 180 days ufter the loss. for any addi.
tlonal amounts we will be required to pay
under' this 1..0S8 Selt/etlwllt provision.
(9) lOSS TO A PAIR OR SET
10 cnse of a loss to a pall' or set we may:
(a) repair or replllce any part to restore tho pull' 01'
sot to its value before the 10sH; or
(b) puy the difference bot ween actual eush valuo of
the property before und oft.er the less,
(10) MORTGAGE CLAUSE
Less under Dwellillg Coverage or Other Structure,. Cov.
erage sholl be payable to mortgagees named on t.he
Declarations. to the extent oflheir interest and in the
order of precedence,
Our Duties
We will:
(n) protect the mortgagee's interests in an insured
building, This protection will nol, be invali.
dated by any oct or neglect 01' anyone we
protect. any breach of warranty, increase in
hazard, change of ownership, or foreclosure if
the mortgagee has no knowledge of these
conditions;
X (b) give mortgagee 30 days notice before cancella-
tion 0" ,'efusal to continue this policy,
Morlgagee's Duties
The mortgagee will:
(a) furnish ')roofofloss within 60 days If you fail
to do so;'
(b) pay upon demand any pmmitlm due if you fuil
to do so;
(c) notify us of any change of ownership or OCCtl-
pancy or any increase in hazardofwhlchtlw.
mortgagee hilS knowledge;
(d) give us the right of recovery against any party
liable for loss;
Ie) anel' a loss. permit us to satisfy the mortgnge
requirements Ilnd receive full t.ransfer of the
IIlOl'lH"IW uud "II H"n,dUrlH twld nH culluh",,,1
to 1IH\ mOI'tHHHn dnht.
I'olio-y c'o,ullt.itlllH l'ol"Unit tn AI'I'f'{ljsul, I,"H' l'nYIlWlI1
u",1 ,~IIi1 A/luillNI IfN upply t.n t.hn Illortllulleo,
'I'hlll mu,'llluHo" intrll'l,..t pl'Ovlslnn shllll III)Plly to nny 0
tl'ltfltr", Ill' hlllH puyr..' IIllnHHI on Ow [)oolllrat ons,
(II) NO BENEFIT TO BAilEE
'I'hill inlllll'uur:H will not tnllny WilY honof1t any porson or
H"llunlz"tion who IIIUY be elll'ing for or bandling your
pl'opnl'ty for .. fm"
(l~,) OTHER INSURANCE
If both thiH instll'llneo und nth",' insurance upply te /I
loss. we will pay our shuro, Our shal'o will be the
proportionate IImount that this insurance bears te the
totul amount of all applicable insurance, except insur-
anco in the nllme of un association or corporatloll of
pt'Opertyowners,
If thoI''' is other insul'uneo in th" name of an association
0" cOl'porution of I"'opol'ty owners eovering the same
property lOverod by this policy, the other insurnnce
applies lil'st,
(13) PERMISSION GRANTED TO YOU
Covernge applies even.when your descl'ibed dwelllng is
vacant or unoccupied, except where limited under Perils
We Inslll'e Agaill,.t,
You muy muke alterations, additions and repairs 10
YOUI' building. and complete structures under' con-
struction,
You Illay wllive your rights to recovery against another
involvinll the in"tlred property, This must be. done in.
wl'iting priOl' 10 a loss,
(14) RECOVERED PROPERTY
If we have made paymeat on property which has later
been recovered by you or us, you or we will notify the
other of the recovery , You have Il right to the recovered
p,'operty, If you elect to have the property, you will
I'epay UB the amount of our payment to you,
(15) SUIT AGAINST US
Wo may not be sued unloss there is full compliance with
all the tOl'ms ofthis policy, Suit must be brought within
one year (V A-2 years, MD-3 yoars) after the loss or
dllln'tlgo oceurs,
o
061 YOUR DUTIES AFTER A lOSS
I n cas" of a covered loss. you must perform the following
duties:
(a) give us 01' our Agent immodlute notice, If a
theft loss,also notify. tn,g,p\ll,iel\;,; ",;",,, ,..";",, .'.'
(h) p,'otectthe propol'ty from further damage, 'If
necessary for' property .protection; make rea.
sOllable ,'epuirs nod keep a record 01'011 ropalr
cOlitB;
(c) fUl'Ilishllcomplotninventoryofdamagedprop- C
"I'ty including quantity, actuul cash value ond
allloullt ofloRs e1aimed;
12
"
. y
'(d) pl'OdllCll for exumlllutioll, with plll'millllioll 1(,
copY. ull hookM of' nccollntll, hillH, iuvoj('''H. ,.".
coiptM nnd othor vOlwhel'fj UH Wll IIlUY ""ItHOII.
nbly IWllIi!'e;
(c) Hhow u. 01' our l'epl'''H(lIltntivl' t.ho dnlllnged
pl'opel'ty, nH 00.011 nil mny he l'ouHonubly ,.e.
qulrod:
(f) submit to oxnmiuutlollH lIndlll' out.h ulld Higll u
transcript eHhe Home;
(II) Hond UD. within 00 dnys nft(ll' tho loss, YOIll'
slgnod and sworn to proof of IOMs stutonlOnt
which Includes:
1. time and cause of loss;
2, your intor(,st In the proporty nnd the
IntoreHt fff all others involved;
3, any encumbrances on the property;
4, oUwr polidm, whil:h muy I:OVI'" t.he lOllS;
0, ullY dllllll(OH ill titlo, UHn, ')(l"lIPlllWY 0"
POHIlOHlllolI ofUllI proplll'ly which Occurrl,d
dul'illl( Uw I'oli<:y (o,'m;
0, Whllll rllqllirlld hy U., UllY plunll. Hp,'cificu.
UffnH and eHtima(oM fhr tho !'epair of' the
dumulllld bulldlll/(;
,/, tbo Invontory ofda'"Ulllld 1'1'01'1lI'ty us pro.
!lurod in (10) (e);
fl, rocoip!.q fhr all,Y uddltionallivingcoHtH usa
- !'eHult oftlwloHH. und records ofportinent
rentulloss;
9, incusoofclahllullderCrcdit Card, Charge
Plotc, Check /t'orgery & COlltlterreit Motley
Prote"liotl. un uffidavlt stating umount,
time and cause of loss,
SECTION II-HOME AND FAMILY LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE-
OUR PROMISE
We will pay all sums up to the amount shown on the
Declarations, which anyone we protect becomes
legally oblll:ated to pay 8S damages because ef bodily
Injury or property damage resulting from an oocur.
rence during the policy period, We will pay for only
bodily Injury or property damage covered by this
policy,
We may Investigate or setUe any cluim or suit for
damages against anyonc we protect, at our expense,
If anyone we protect is sued for damages because of'
bodily Injury or property damage covercd by this
policy. we will provide a defense with a luwyer we
choose, even If the allegations are not true, We are not
obligated to pay any claim or judgment or defend any
suit if we have already used up the amount of insurance
by paying a judgment or settloment,
MEDICAL PAYMENTS TO OTHERS
COVERAGE-OUR PROMISE
We will pay tho necessary mlldlcal expllnSllS incurred
or medically detormined within t.hroc ycars from the
date ofnn accident causing bodily Injury, This threc-
year limitation does not apply to funeral expenses,
This coverage docs not apply to you or reguJar residents
of your household, othor than rcsldencc emploYlll's,
To ethers. we will p'oy only in the f?U?Yiingsit.ul!tions:
(1) To a pcrson on an Insured location' with the ",,'
permissien of anyone we protect; er
(2) To a person ofTan Insured location If the bodily
Injury:
fo) arises eut of a condition on an Insured loca.
tion or adjoinin/{ ways;
(b) is caused by the activitieH of' anyone we pro.
tect;
(c) iM caused by a residence employee in the
course of employment by anyone we protect;
(d) is caused by an animal anyone we protect
owns or Is caring fer,
Payment under this coveruge is not an admission of
liability by us or anyone we protect,
WHAT WE DO NOT COVER-EXCLUSIONS
PERSONAL LIABILITY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not cover under Persorlal Liability Coverage and
Medical Poyments To Other,. Coverage:
(1) Bodily Injury or property damage expected or
intended by anyone we protcct,
(2) Bodily Injury or property damagc arising outof
business 1IIlI'suits ef anyone we protect,
We do cover:
(a) activities normally considered non-busincss;
(bl business pursuits of salespersons. collectors. X
messengers and clerical effice workers em.
ployed by others, We do not cover installation,
demoastration and servicing oJlerations;
(c) busincss p~lrsuit~ of'odu,~?tor~ ~~i'~ernRI~yed .X
',,.. ,..I by others, mcludmg corpOi'al ~ulllslinie'ht or-x
pupils;
(d) incidoatal business activities of anyone we X
proteet, The,qe include babysitting. caddying,
lawn core, newspaper delivery and other aiml.
1m' activities;
13
x
(0) tho ownorHhlp of' nowIY-IIl''1l1ir(J(1 OIl<! 0" two
tinnily dwolllnllH, bllt only fill' /l pori",1 of' ao
(:onH\Wntlvo d/lYH nft'II' 1H:<Il1iH1l!on 1I11loHH do-
Hcr/hod Oil tho J)\'CIIl"lItlonH.
1:11 Ilodily Injuryol'llI'ollcrty dlllllllgl'III'IHill!:out of
tho rontlll or holding I'm' I'Illltlll of tho rt'Hldun\,u
IIromls08 by IlIlyono wu 11I'otell,t,
We do covor if' thol'o8idenoo IlrmnlHoH iH:
(II) ocellHionally I'llntod or hold f'm'rolltlll to OtlWI'R
IIR IIrellidonee;
(b) rented or held for rentlll In pllrt OR /ll'olddonce,
un loss fer the accommodntion of more thun
throe momerll 01' boarders;
(cl ronted or held for rental in part OR un officn,
school, studio or private garage.
11, Bodily injury or proporty damagoarising out of
thol'llndering or failing to render profosllional ReI'-
vices (other than professional services I'Onderod by
tlllncaters).
1(,' Ilodily injury or property damage ariRin!: out of'
IIny premises owned by or rented to anyone we
protect which is not an insured loclltion, This
llx<'lusion does not apply to bodily injury to u
I'osidonee employee arising out ef and in the
course ef employment by anyone WI' protect.
tfi, 1J0dlly injury or property damllge arislllg out of
thc ownership. maintenance or use of':
(III llircraft;
(b) any land motor vehicle owned eroperated by or
rented or loaned to anyone we protect.
Wo de cover motor vehicles if:
1. used exclusively at an insurcd loclltion
and not subject to motor vehicle registra-
tion;
2. kept in dead storuge lit an insured 10Cll-
tion;
3, a recreational land motor vehicle not de-
signed for use on public roads while at IIn
insured loclltion;
4. a golf cart, wherever used or located;
5. alawn or farm type vehicle orsnowblowcr,
wherever used or located. ifnot subject to
motor vehicle registration.
lei watorcraft:
1, owned by or frequently rented to IInyone
we protect if it has inboard or inboard-
outdrive motor power of more than 75
horse po we I':
2. owned by or frequently rented to IInyono
We proteet ifitis n' ~aillng Vo~"el'26 foet'" :',
or more in lenl,'th; or '
3. powered by one 01' more outboard mo'tors
. with more than 75 llital lioJ'scpo'werowned
by anyone we protect lit the beginning
oftlie policy period,
x
X
x
. X
X
14
I 10WllV"", ifnllyclllo WOllrotoot uOllull'OS X
WUltll'CI'Uft. l'uf(/mlll,fI/lofhUl'/IUlloWllI', cov'-
(lI'IIIlO UppliUR c1ul'lnll t1w Ilollcy pm'lod, If'
tho wutorlll'ull is uClluirod within 60 duys
of tho und of' tho IllIlIcy ,Ioriod, we will
III'0vlrlo (:uvol'nllu for u IlIl1xlmu!ll of 00 .
dnys, We huvo t1Ul right to cliurlle You un
udditlonul prollllUIlI.
/<:xdl/siwl ((;)(,,) douH notupply while the water-
<:I'uft iH stol'lld on shore.
Rxcll/sirJ/( (Ii) does not upply to bodily Injury to any
l'esidenoCl omplllYClonrislnll out of and in the COllrse of
omployment by auyollO wo proteet.
Wo do not pny for liability urislnl,' out of the negligent
entrustUUlIlt of un uircl'llft, motol' vehicle or wlltercran
cov(l)'uclunder this policy.
WCl IIlso do not cover statutorily imposed vicarious pa-
I'entulllabillty forthe nctions ofa ehild or minor using an
IIlrcrllft. motor vehicle 0,. wntercran excluded above.
(7) Bodily injuryor proporty damllge arising out of
wur (dcclared or undeclured). civil VIaI', Insurrec-
tion, rebellion or revolution.
Discharlle of u nuclear weapon is considered a
wurliko act even if IIccid"ntal.
(8) Bodily lnjllryand property damllgewhich arises
out of or result.'! from a communicable disease or
condition transmitted by anyone we pl.'otect to
any other person through a parasite, virus, bacte-
ria or any other organism.
(9) Except as provided in paragraph 2(c) under "What .
Wc Do Not Covel' - Personal Liability and Medical
Payments To Othe.... Coverage. bodily injury or
property damage which arises out of the sexual
molestation, corporal punishment or physical or
mental abuse by llllyone wo protect.
(10) Ilodlly injury and property damage which arises
out ofthe use. sale, manufacture. delivery, transfer
or possession by any person of a Controlled
Substance(s) as defined by the Federal Food and
Drug Law at 21 U.S.C.A. Sections 811 and 812.
Contr'olled Substnnces include but are not limited
to cocaine. LSD, marijuana and all narcotic drugs.
However, this exclusion dees not apply to the legiti-
mate Use of prescription drugs by a person follow-
ing the erders of a licensed physician.
(11) Bodily injury and property damllge which arises
out of the discharge, disposal. release or escape of:
(II) vapors, fumes. acids, toxic chemicals, toxic
liquids or toxic gasses;
(b) waste materials 0" other irritants. contaml-
" , ',.. nants er poll~Jallt~':M;F 1
We do nOl,cover under Pef'soflal Liability Coverage:
',' '111.'11;-,.
(1) Liability IIssumo(i under any oral contractor agree:
ment, er by contract or agreement in connection .
with any business of anyonCl we protect.
,
(2) J.illhility fi,,' YOIll' Ilhlll'o of IlIlY 101111 1l/lll0HIlIIIUIlt (<I) I'OIlHOllllblu OXI)(lIlSUIlIIll1ul'rud by unyone we
l1hlll'gud IIgulllllt /III 1Il01llbOl'/I of 1111 III1Hocllltioll lII' prol.tmt lit 0\11' I'!lqU('Hl. 'I'hls indudoH al1tulll
l1ol'porutiollllfYI'IlPllI'tY OWlllll'/I, 'I'hiH I,xdu/lioll doml IOHIl of lllu'nillgH (hut not IOHs of OUIllI' 11ll10me)
not Ilpply toAt di/i'>fIall,(lIl,.e,. WI' Will J'ay, (Ii) I,(I,," Illld VIlCIlUOIl Umo 01' othor bOllefit loss up te
"-') Assesllfllent, Sel1tiO/ll of this poll(IY, $ 100 Pllrduy fOl'hlllplllgllsl1l the InvllHtigatioll X
:,1.'.": (3) Property damugo to pl'Oplll'ty oWllod by nnyono or dufllllSU of any dlllm 01' Hult;
we protect. (0) Illllllturestllll the 1'1111 alllount ofuny judgment
(4) Property dumnge to propurty rUllu,d to, ocwpiod on n Hult wu defendlllltil we ofTer or depoHlt in
or uHed by. or In the cllre of /Anyone WU Ilrotect, ('OUI't thulllllllunt 1'01' which we are liable;
ThlH exclllslon does not.llpply U) p,'oporty dumage (f) prejudgment I,,:terest awarded en the amount
caused by fire, explosion, sonic boom or Hmoke. or by of the judgment we pay, [fwe ofTer to pay the
X accidental discharge of water from a waterbed or appllellblo IImollnt of insurance, we will not
aquarium, PllY uny prejudgment interest for tho period of
(6) Bodily Injury te any pel'son eligible to receive IIny time nfter the olTer,
benefitH reqlllred to he provided or voluntaril,Y (2) DAMAGE TO PROPERTY OF OTHERS
provided by anyone we protect undor uny work. We pay, on a replacemont cost basis. lip to $1000 per X
ers' compensation or occupational disoa8e law. occurrence for property damage to property ef others
(6) Bodily Injury or property damage for which caused by anyone we proteot. This coverage also X
anyone we (,rotcet is coverod under any nuclear appl i08 to propllrty of othors in the p08Hossion of anyone
energy liability policy. or would Iw covored if its we proteet.
amounts of ins Ill' once had not bcon oxhausted. We will not pay for property damage:
Under Medical Payments To Others Cooerage we do not (a) to thc extent of any amount recoveruble under
cover: Sce/ionl of this policy;
(1) Bodily Injury to a residence employee if it (b) caused intentionally by anyone we protect
occurs ofT an Insured location and docs not ariso who has attained the age of 13;
outofor In the course of employment by anyone We (c) to property owned by anyone we protect;
prot0et.
(2) Bodily injury to any person eligible to receive any (d) to property owned by or rented to a tenant of
benefits reqllired to 00 provided or veluntarily anyone we protect or a resident of your
provided under any workers' compensation orocclI- household;
pational disease law, (e) arising out of:
(3) Bodily Injury from any nllclear reaction, radia- L an act or omission in connection with a
tion or radioactive contamination. or any.conse- premiscs (other than an insured [oca..
quence of any of these. tlon) owned. rented or controlled byany.
one we protect;
WHAT WE ALSO PAY 2. business pursuits; or
Payment for the following is in adcl;Uon to the amounts 3. ownership, maintenance or use of a motor
ofinHurance shown on the Declarations. vehicle, alreraft or watercraft. We will
(1) CLAIM EXPENSES pay for property damage to aland motel'
vehicle designed for recreational use ofT
We pay: public roads while in the possession of or
(a) all expenses we incur and all costs against caused by anyone we protect if:
anyone we protect in a suit We defend; a. not subject to motor vehicle reglHtro-
(b) premiums on bonds in a slIit wedefend, but not tion, and
for bond amounts greater than the limit for b. not owned by anyone we proteet.
Personal Liability Cooeragc, We will also pay (3) FIRST AID EXPENSES
X up to $600 for each bail bond requirod of any. We pay reasonable expenso" for lirst aid to other persons
one we protect because of an accident or
traffic violation arising out of the use of a nnd animnls ut the time of an accident involving anyone X
vehicle covered hy this policy. We have no we protect.
obligation to apply for or furnish honds; (4) LOSS ASSESSMENT.....,PERSONAL LIABILITY
X (c) reasonable lawyers' fees lip to $60 that any. COVERAGE. 1 .
one We proteet incurs becauHc of arrest re- Seo 1.08,' As..es8mmt. pal'agrllph (9). Sfctioll I, Addi.
suiting from an accident involving a vehicle lional Losse,. We Will Pay. .
covered by this policy;
16
RIGHTS AND DUTIES-CONDITIONS
. ,
'(I) BANKRUPTCy OF ANYONE WE PROTECT
Illlnkruptcy 0\' insolv(lllCY of 1I1lYOllll W<l ..ruted
or ''"yone we protect'. os tate wUlnllt roliovl! UH
of any of our obligations undor this "olicy,
(2) DUTIES OF AN INJURED PERSON-MEDICAL
PAYMENTS TO OTHERS COVERAGE
The injured person or someOM IICUllg on bohlllf of
that person will:
(a) give U8 written proof of clllim, us sexm as
possible. under oath if roquirod;
(b) sign pafers atourrequest to allow us toobtain
medica reports and copies of rllcords,
The injured person will submit te mentuland physl.
call1JCaminatlon by doctors selected by us us often
as reasonably required, We lIIay puy the injured
person or the provider of the services,
(3) LIMITS OF PROTECTION
This insurunte applies separately to anyone we pro.
teet, Regardless of the number of people we protect.
claims IIIl1de or persons injured. our total liability under
Personal Liability Coverage for dalllages resulting from
one occurrence will not exceed the alllount shown on the
Declarations, AIl bodily hliury and property dam.
age resulting from one accident or from continuous or
repeated exposure to the same general conditions is
considered the result of one occurrence.
Our tetalliability under Medical Paymellts To Others
Coverage for all medical expense payable for bodily
lrijury te anyone person will not exceod the "Each
Person" amount shown on tho Declarations.
(4) OTHER INSURANCE-PERSONAL l.IABllITY
COVERAGE
This insurance is excess over any other valid and collect.
iblllinsurance. However. ifthe other insurance is specifi.
cally written as 6xceS8 Insurance over this policy. the
limits of this policy apply first.
Ifst the time ofloss there is othor insurance in the nOllle
of an association or corporation of property owners
covering the sallie property covored by this policy, the
insurance afforded by this policy shall be excoss over the
amount recoverable under such other insurance.
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(0) SLlIT AGAINST US
'1'1", t"rllls of this p"li"y IIlIlSt h" ""Illpli"d with before
HIIH. IllUY ho h"OUllht ulluillst, IIH,
'I'he leglll Iiuhility of nllyolle Wll protect must be
detel'lnilled boforo Huit under Hwsoflal Liability Covor. C
1111" mflY be brought 1I1l1l;nst liS. 'I'his det,errninatlon may
ho hy a c/JUrtof'law or hy writtoll agroolllentofall purtle8,
including us.
No one hll8 tho right to make U8 a party to a suit te
detormine th'lliabUity of anyone we protellt.
(6) YOUR DUTIES AFTER A lOSS
When there is an aecident or occurrence anyone
we protect will:
(a) notify us or our Agent, in writing, as 800n as
possible. stating:
1. your name and polley number:
2. the time, place, and circumstllnces of the
accident or occurrence:
3. names and addressos of injured porsons
and witnessos:
(b) send us promptly any papers that relate te the
accident or occurrence:
(e) at our requost:
1. assist in making sottlelllent;
2. help us enforce any right of recovery
against any party liable to anyone we
protect;
3. assist in the conduct of suits; l
4. attend hearings and trials; .~~
5. secure and give evidence and obtain the
attendanco of witnesses.
(d) under the coverage Damage To Property Of
Others, selld us, within 60 days ef the loss,
sworn proof ofloss. Anyono we proteot shall
0100 exhibit tho damaged property if within
their control.
Anyone we proteot will not. except at one's own cost.
make payments, IISSUllle obligation8 or incur expenses,
other than for first aid to other persens and animals at
the tillle of the bodily Injury.
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16
SECTION III-RIGHTS AND DUTIES-GENERAL POLICY CONDITIONS
We, youund unYOllfl 01110 pl'lltnctod hy thill policy IIIUllt
do cortnln thingn in ordor f,"' the tormn of tho policy to
apply.
(I) ACCOUNTING (Nf'ic Ifl.wl'llflw Exchaflge Only)
X Erlo Indolllnity (Jompuny muy keep up to 25% of 1I111
premium written or 118l1umed by Erie Inllurllnce Ex-
change aB compensation for (A) bocoming nnd ucllng UB
Attorney-in-Fuct, (H)rnunllgingthe businoBBand uffuirll
ofErio Inaurnnco Exchange, itll affiliates lInd Bubsldiar.
ioa, and (e) paying general IIdminiatrative expanses,
including lIales commisllionB. IIl1luries lInd omployee
benofits, taxes, rent, depreciatlen. supplies lInd data
preceaaing.
The reatoftho premium will be placed en tho books of the
Erie Inaurancll Exchange. We will deposit or invest this
amount a8 pcrmitted by law. 'I'his amount will be used
to pay losses, loss 'udjustment expenses. investment
expenses. damugos. legal expenses, court costs. tuxes.
assea8ments, licenses. fces, und other governmentul
fines and chsrges. estllblishment of reserves and Sur-
plus, und reinsurunce, and mllY be used for dividends
and other purposes Eric Indemnity Company decides
arc to the advantage of the Subscribers.
(2) ASSIGNMENT
Interest in this policy may be transferred only with OUl'
written consent.
If you die, the pellcy will cover:
(a) anyone we proteet who is a member of your
household at the time of your death, but enly
while fl resident of the residence premises;
(b) anyone having lawful possession of insured
property until a representative is appointed,
but only until the end of the policy period
during which your death occurs;
(c) your logal representative, but only while per-
forming duties ns your representative and
only until the end of the policy period during
which your death occurs.
(3) CANCELLATION
Your Right to Canoel
You may cancel this pulicy by mailinr. 01' delivering to
our Agent or us written notice stating at what future
daw you want the cancellation to take effect. We mllY
waive these requirements by confirming the dute of
cancellation to you in writing.
Our Right to Cancel or Re'use to Continue
We may cancel or refuse to continue this policy by
mailing you written notice stating the effective date of
our action. Our action will comply with the laws oft.he
state in whi~h your residenoe premises is located. We
reserve the right to cancel for your noncompli~nce with
our premium payment plans. Wedo not waiveourright
to cancel. e\'en if we have accepted prior late payments.
OUl' euncellutien or refllllalto continue this/)olicy will
nottukeolr""t nntilut Itl/lst aOduys (Marylanr -..45 daya
"xe"l't for non.puymont of pt'emium) aner W(l lIend it.
Method 0' Giving Notice
Muiling notice to the uddress shown on the Declara-
tiOIlS will be sufficient proof of notice. The polley period
will ond on tho dnte nnd time stated in the notice.
Return 0' Premium
I I' your policy is canceled by you or U8. we will return
the pi'll I'lIta unused share of your premium, Cancolla-
tion will be effective oven if we have not given or uffered
nny return premium.
(4) CONCEALMENT, FRAUD OR
MISREPRESENT A TION
This entire policy is void if, before or aner a loss, anyone
\Ve protect hns intontionally concealed, or misrepre-
sented, uny material fact or circumstance concerning
this inslIl'Unce.
In the event of a fl'lludulent claim, we will not. make
pnyment for the loss.
(5) COOPERATION
You ogren to COopemte with us by:
(a) truthfnlly completing and promptly roturning
questionnnires and audit forms about this in-
suranco;
(b) per'mitting nnd helping with inspections and
audits; and
(c) complying with specific recommendntions to
improve your risk.
(6) HOW YOUR POLICY MAY BE CHANGED
This policy conforms to the laws of the state in which
YOUl' residenoe premises is located. If the laws of the
state chnnge, this polley will comply with those changes.
You mny chnnge your policy by askingu8. Your re-
quest must contain enough information to identify you.
Asking our Agent is the same us asking us.lfwe agree
with your request, we will then issue un Amended
Declamtions.
We will give you the bt'nefit of nny ehange in coverage
made by us, if it does not require additional premium.
This chnnge will be effective us of the date we implement
the change for you in your stnte.
If the information we use to determine the premium for
your covernge(s) changes during the polley period, we
may a<1.just your premium. Premium adjustments will
be made using rules and rates in effect for our use.
(7) N6 CONTINGENT LIABILITY
(Erie l"slIrallee Exchallge Only)
You will not be assessed for the losses of Subscribers.
17
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OOU)\\I\I~O. v:rl.MJ\N &. S~\~~~~" 0' 1301/. \16%
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,,1'\0.9S.1156
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Defendants
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nonco'Jerage for intentional acts,
d. d . art T\<' ",,\\<'1 ,I"'" "",,,,,"'. """ 'ho ,,,."" I,",,"""
\2, 1\ \l\\tte In \l' r
nonco'Jerage for intentional acts,
\3,
1\d\1\itted,
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Denied as stated. w,r, ,Inn In e
1\o,\\1\itted,
14.
,ho I""n" "",'ho. " ,.' "",."". ""'"''''"',
n this Court enter an Order and
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deeree that
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Thomas B. Brenner, lisquire
GOLDBERG, KATZMAN & SHIPMAN,I'C.
320 Market Street, SlllIwbcrry Square. 1'.0. lJo, 1268
Harrisburg. PA 17108.1268
(717)2344161
Allomeyl.D. N32085
Allomeys for I'laiutilT
ERIE INSURANCE COMPANY,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNA.
v.
: NO. 98-1756
LARRY L. liNN and
CRAIG L. BRYMESSER,
Defendants
:CIVIL ACTION - LAW
PLAINTlFF'S REPLY TO NEW MATTER OF
DEFENDANT CRAIG L. BRYMESSER
AND NOW. comes the PlaintilT. Erie Insurance Company, by its allorneys. Goldberg,
Katzman & Shipman. P.C., who states:
11. Admilled.
12, Admilled,
13, Admitted.
14, Denied as stated.
IS, Admitted.
16, Admitted.
17. Denied as stated.
Occurrence is defined on Pages 4 and 13 of the Erie policy,
The applicability of this policy to the actions ofMr, linn is
110t based on an insured location but, rather, the scope of the home ltlld family liability
protection. which is defined on Page 4 of the policy.
18. Denied as stated. The applicability of this policy to the actions ofMr. linn is
not based on an insured location but, rather, the scope of the home and family liability
protection, which is defined on Page 4 of the policy.
PE'TER J. RUSSO, ESQUIRE
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
Attorney for Defendant
ERIE INSURANCE COMPANY,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-1756
CIVIL ACTION. LAW
LARRY L. ZINN and
CRAIG L. BRYMESSER,
Defendants
AND NOW, COMES the Defendant, Craig L.. Brymesser, by and through his
attorney Peter J. Russo and states in support of his answer to Plaintiff's Complaint for
Declaratory Judgment as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied as stated.
The remaining portion of Plaintiff's Complaint in the
underlying matter is only a claim for battery.
7. Admitted in part and denied in part. It is admitted that Defendant,
Larry L Zinn maintains a homeowner's insurance policy with Erie Insurance.
It is believed based on documents provided by the Plaintiff in this action and
documents provided by the Defendant In the underlying matter, that Defendant Zlnn's
polley number is 057..5106224. The remainder of the averment set forth in paragraph
7 Is denied as it states conclusions of law to which no response Is required. In the
event that any portion of that averment contains a factual assertions, it is denied as the
polley language speaks for itself and any interpretational gloss applied thereto by
Plaintiff is denied.
8. Denied. The Erie policy attached to Plaintiff's complaint in the Declaratory
Judgment speaks for Itself and any interpretational gloss applied thereto by the Plaintiff
Is denied. The remainder of the averment set forth in paragraph 8 of Plaintiff's
complaint for Declaratory Judgment Is also denied as Plaintiff's Complaint sets forth
facts which constitute an intenUonal tort yet also set forth a resultant injury which was
accidental and not intended.
g. Denied. Exhibit D sets forth a letter from Erie Insurance Group to Defendant
Zinn and any interpretational gloss applied thereto is denied.
10. Denied. The averment in paragraph 10 constitutes conclusions of law to which
no response is required.
WHEREFORE, Defendant, Craig L. Brymesser, request that this Honorable
Court enter an Order and Decree that ;
A. Erie Insurance Company has coverage for the remaining claim of Craig L
Brymesser as asserted against Larry L. Zlnn under the homeowner's policy Issued by
Erie Insurance Company to Mr. Zinn;
B. Erie Insurance Company has a conUnulng obligation to defend the claims of
Craig L. Brymesser as asserted against Larry L. Zinn under the homeowner's polley
Issued by Erie Insurance Company to Mr. Zlnn; and
C. This Court grant attorney's fees to counsel for Craig L. Brymesser for his
defense of this Complaint, as weli tlS such other relief as this Honorable Court may
deem proper and Just under the circumstances.
~EW MATJER
11. The insurance polley which is controlling in this matter covers bodily
injuries,
12. The insurance policy which is controlling in this matter defines "bodily
inJuries" on page 4 of Exhibit C of Plaintiff's Complaint for Declaratory Judgment.
13, The definition of "bodily injury" as set forth on page 4 of Exhibit C of
Plaintiffs Complaint for Declaratory Judgment does not specificaliy exclude the type of
Injuries sustained by Craig Brymesser and set forth in his Complaint in the underlying
matter.
14. The definition of "occurrence" as set forth on page 4 of Exhibit C of
Plaintiff's Complaint for Declaratory Judgment.
15. The Insurance policy which Is controlling in this matter does not define
"accident."
16. The word "Insured location" is defined on page 4 of Exhibit C of Plaintiffs
Complaint for Declaratory Judgment.
17. 100 Roadway Drive, Carlisle, Pennsylvania is not an "insured location" as
per the insurance polley which is controlling in this matter,
18. Larry L. Zinn, an Erlf;l insured, was off an "insured location" at the time of
the alleged events as set forth In Craig l.. Brymesser's underlying Complaint.
19. Craig L. Brymesser's underlying Complaint alleges that Larry L. Zlnn, an
Erie Insured, suffered a bcdlly injury caused by the activities of Larry L. Zinn.
20. Larry L. Zinn did not intend to break Craig Brymesser's coccyx, cause a
lumbar strain, as well as the other damages set forth in Mr, Brymesser's underlying
Complaint.
WHEREFORE, Defendant, Craig L. Brymesser, request that this Honorable
Court enter an Order and Decree that;
A, Erie Insurance Company has coverage for the remaining claim of Craig L.
Brymesser as asserted against Larry L. Zinn under the homeowner's policy issued by
Erie Insurance Company to Mr. Zlnn;
B. Erie Insurance Company has a continuing obligation to defend the claims of
Craig L. Brymesser as asserted against Larry L. Zlnn under the homeowner's policy
issued by Erie Insurance Company to Mr. Zinn; and
C. This Court grant attorney's fees to counsel for Craig L. Brymesser for his
defense of this Complaint, as well as such other relief as this Honorable Court may
deem proper and just under the circumstances.
Respectfully submitted,
(~_,).L_ (/,)
'".~ )\l.}'0x'__C~:-.~ (...v":"'-,J
Peter J. Russo
61 West Louther Street
Carlisle, PA 17013
(717) 249-2721
Dated:_ II II II Ie,
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5. Llllllatlon has been comnu.mced In Ihls Connty at J)oeket No.
97-5119 wherein C"lIlgllrylllesser seeks dalllages fl'OlII LaiTY Zlnn resultlug Ih"" this
Incident (Exhlbll "A"), A Ilorllon of the COllllllalnl has been dismissed by ruling oflhis
COUl.t on Preliminary Objections as set forth in tbe Olllnlon of the 1I0nornble t:dwal'd
E. Guido dilled September 18, 1998 (Io:xhibll "B").
6. The remaining IlOrtioru of the Complaint make c1ailll for battery
(Complaint, ~IO) and wlllfulllnd malic ions conduct of MI'. Zinn clluslng Injur'y
(Complaint, ~12).
7. Defendant LIII'I')' L. Zinn mlllntains a homeowner's insurance policy with
Erie with a policy number ofQ59.1506224 (Exhibit "C"), The policy does not provide
coverage for intentional acts snch as batter')' or willful and mallclons acts Intended by
Mr. Zinn (El'le Policy, p.13).
8. The Erie policy provides protection for an occurrence which is defined as
an accident (Erie Policy, pp. 4, 13). The facts of the Complaint describe IInlntentional
act and not an accident.
9. Erie Issued a letter' dllted March 18, 1988, to Mr. Zinn advising him that
there Is no coverage for the remaining claims in the Complaint (See Exhibit "D").
10. An actual controversy now exists between Erie and Defendant Larry L.
Zlnn as to whether Erie's policy affords coverage for the remaining claims in the
Complaint. Eric seeks a declaration of rights by this Court.
2
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4. On Aprll2, 1997, Plalntlff was lawfully on the prarnlses of his employer as
a. part of his regular work shift from 11 :00 p.m. until 7:00 a.m.
5. ~ihlle engaged In his work. duties for Roadway Express, partlcularly
completing some paperwork, Plaintiff was bending over a desk writing.
6. As PlaIntiff was bending over the desk, and In the presenca of John
Horoschak, the Defendant kicked the Plaintiff In the buttocks.
7. While only intending to humiliate and embarrass the Plalntlff, the Defendant
. kicked the Plaintiff with such great force as to cause the Plalntlff physical damage.
8. Defendant's kick caused such pain so as to cause Plalntiff to leave work
early that day and to seek medical attention.
BRST COUNT
BAlTERY
9. Plaintiff, Craig L. Brymesser, hereby incorporates by referenc~ paragraphs
, through 8 as though more fully set forth herein.
10. On the aforesaid date, time and place, Plaintiff, Craig L. Brymesser, was
Intentionally touched and struck by the Defendant upon his person without provocation
or Justification Intending to cause Plaintiff humiliation and embarrasslTfent.
, , . As a result of the aforementioned Incident, Plalntlff was caused to suffer
extensive injuries wt1lch Were not the Intended result of Defendant Zlnn's action but were
a foreseeable consequence of Defendant Zlnn's actions.
ExhIbitS
. . '. ..
NO, 97-5119 CIVIL TERM
unforeseen (albeit foreseeable) oonsequenoes were serious bodily
injuries to Plaintiff,'
DISCUSSION
A demurrer oan only be sustained where, after aocepting as
true all well pleaded material and relevant faots, the complaint
clea:dy fails to establish the pleader's right to relief. Luma:>s.
Industries. Inc. v. A4ltman, 543 Pa. 38, 669 A.2d 893 (1995).
Using that atandard, the negligenoe claim set forth in Count II
of the oomplaint is olearly barred by Section 205 of the
Pennsylvania Worker's Compensation Act. 77 P.S. S72. Section
205 provides:
If disability or death is compensable under this act, a
person shall not be liable to anyone at oommon law. or
otherwise ,on account of snoh disability or death for any act
or omission oocurring while such person was in the same
employ as the person disable or killed, exoept for
intentional wrong. 77 P.S. S 72
The act further provides that all work related injuries are
compensable if sustained while the employee is "engaged in the
furtheranoe of the business or affairs of the employer..5 77
P.S. 5 411(1). since paragraph 5 of the complaint specifically
alleges that Plaintiff was "Engaged in his work duties. at the
time the injury was sustained, he would be entitled to
'Complai.nt paragraphs 7 & 12.
5Admittedly, 77 P.S. S4ll(1) provides an exoeption for an
"injury oaused by an aot of a third person ~ntended' to in1ure the
employee because of reasons personal to him."." However, since
plaint~ff has specifioal~y alleged in paragraph 7 of the ,l~:'
compla~nt that the injur~es were not intended, this exception ~~' ~
cannot apply. c:>'-' ~
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NO. 97-5119 CIVIL TERM
compensation under the act. Therefore, a negligence claim
against his co-worker would be barred by Section 205. Albriaht
y. Faaan, 448 Pa, Super. 395, 671 A.2d 760 (1996).
Just as clearly as section 205 of the act would bar the
Plaintiff' 6 negligence claim, ij::. doeJL.!1Q.t. operate as a bar to
the claim for battery. Co-employees are immunized from liability
.. for any act or omission... except for intentional wro_lJ.9.,,!." 77
P. S. S 72. Not only is battery an intentional tort, it is
exaotly the kind of conduct which the act intended to exclude
f.rom the umbrella of co-employee immunity. See McGinn.-'W.
Valloti, 363 Pa, Super. 88, 525 A.2d 732,735, (1987), yosbura v.
ConnollY, 405 Pa, Super. 121, 591 A.2d 1128 (1991). Therefore,
defendant's pre1Uainary objections to Count I of the complaint
are denied.
AND NOW, this .
ORDER OF COURT
/.f~
day of FEBRUARY, 1998, after
argument the Defendant's Preliminary Objections are granted in
part and denied in part. Plaintiff's clai.m for punitive damages
(Paragraph 14) and Count II of the complaint are STRICKEN.
Defendant's preliminary Objections to Count I of the complaint
are DENIED and he is directed tcfile an answer thereto.
By the Court,
Peter J. Russo, Esquire
For the Plaintiff
ard E. Guido J.~
E. Guido, Jud
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For the Defendant
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EXTRACOVER
EDITION
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ERIE.
ERIE INSURANCE GROUP
The Pioneer In The Insurance World.
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WHERE TO LOOK IN YOUR POLICY
PAGE
Additional Losses We Will PaY--Soctlon I
Automatic Gnrllllo Door Opollor """"""""""""""" Ii
Collapso ''''''''"",,,,,,.,,,,,,,,,,,,,,, """"""""" """'''''''''' II
Crodit Card, Chargo Plaw,
Chock I"orllory und Countorroit
Monoy I'rott,ctlon """"""""""""""""""""""",,0
nobris ROllloval Anor I","s """""""""""""""""",,!I
I~morlloncy I\olllovul of Prnporty """""""""""""," f)
1~i1'o Dopartmont Sorvico Chargos """"""""""""" f)
1.'11'0 gxtingulshor Hechargo ".""""""""""""""",,, 9
Lock Roplucnuwnt Aftlll' Loss """""""""""""""",,!)
Loss Assull!lIIwnt (Suctions I & II)"""""".""""""" 0
Muchanical Sorvunt and Hohot PJ'Otcclion ,.".""" 10
Necussul'y Hopuir's Aftor Loss """."""""""""""" 10
Non-Owned Residencos """""""""""""""""""",.to
Hefl'igeratud Product" """"""'''''''''''''''",."."""",.10
'r(Hllperaturo Change '''''''' ""........"..""...."""....., 10
1'reeo, Shrubs, Plunts and Lawns """""""""""'" 10
Agroemont '"'''''''''''''''' ""'''''''''''' "''''''''""""".,,,,,,,,, ", 3
Amounts of Insurance-Section II """""".""""""" 13
Coverages-Sections' & II
Dwelling Coverage """"""""""""""""",,,,,,,,,,,,,,,,,5
Loss of Use CoverullO """""""""""""""",."",,,,,,,,,6
Medical l'uyments To Others Coverugo """"""",13
Other Structures Covemge .""""""""""""""""",, 5
Personal Lillbility Coverllge """"""""""..",."""" 13
PerBonul Property Coverage """".""""",,,,,,,,,,,,,,,,, 5
Deductlble--Sectlon' """""""""""""""""""""""" 10
Description of Insured Property."""""" Dcclumtlons
Perils We Insure Against-Section I """"""""."""".6
Polley Deflnltlons-Secllons I & 1/ """"""""""""",,(J
Rights and DUlles-Condlllons
General Polley Condltlons-Secl/on IIi
Accountiug """""""""""""""" """"""""" """""" 17
Assignlllent """"'"'''''''''''''''''' """"""",,""""""'" 17
Cancellution "'" " " " " """""""'''''''''''''''''''''''''''''''' 17
Coucealuwut, ~'l'IIuel, 01' Misrepr'uHeul.allou """ " , 17
Cooper'uUon '''''''''''''''''''''''''''' """"'"'''''''' """""'" 17
11011' YOUI' Policy May Be Chung/,eI """"""""""'" 17
2
PAGE
Nu COlltingont LiuhUlty """""""""""""""""""",17
Our Hight '1'0 Hllcove,' 1"1'O1ll Otlwrs """"""""""" 18
Polley AccuptIUlC/' anel Cooplll'lltlon "'" """""". "" 18
Policy Purio(J """""""""'''''''''''''''''.""""""""."",18
Priority """"""""'''''''''''' """"""""""""""""""'" 18
'I'iu", of [ncuplion """"""""""""""""""""""""",18
o
Home and Family L1ablllly Prolocllon_
Condltlons-Secllon tI
Bunkruptcy of Anyono Wo I'l'lItoot """""""""""" 16
Dulios of An Injul'oel l'eI'Hon..-
Mcdi(~ul PnyrnunlH To OthorH COvol'llgn ......."..10
LilllitH of I'l'lItoetinn "''''''''''''''''''""""""""""""",16
Othor Insu,'ono"._.l'u,'sonul Lillhility Covlll'alro '" 16
Buit Aguinsl. LJH "'''''''''''''''''''''''''''''''"""""""""",16
Your Dutio" An/)I' u LOBS """""""""""."""""""" 16
Proporly Prolectlon ",COflctilioflS,,-,SoClirJllI
Ahllndon""'nt o{' Prol'O,ty """"""".""""""""."",10
ApPl'nisal """"'"'''' "'''''''', "',' """"""",." """"'"'''' 10
Automatic Adjustment o{'Covel'age Amounts """ 10
Et'io Option """""""""".."""."""""".."."""".""" 11
Gluss Replacomont ";""""""""""..".."...."""."..,, 11
Incroaso of Hazard """"".""""""""""...."""""",, 11
LOHs Pnymont ""..""""""""""""""""."""""""",, 11
LosH Sott/oment """""'" """""""""...."""""..""" 11
LosH '1'0 II I'nir 01' Sol.."""""""""""""""""""""" 12
Mo,'tgalro ClnnHe """"""""""""""".."".""""""", 12
No Benolitto Bailet' """"""""""""....".""""..""" 12
Other InHUl'llUCO """""""""""""""."",.."""",,,,,,, 12
Permission {lr'antoel To You """""""""""""",,,,,,12
Rocovol'ed Pl'lIpllrty "''''''''''''''''''''''"",..""",,,,,,,,,,,12
Suit Allninst UH """"""".""""""""......""""""",,, 12
Your DulloH Aflor a LOHs """""""""""""".""""..12
What We Also Pay-Soctlon II
Claim I';xponHos """""""'''''''''''''''''...""""".",;;,.,15
Darnalrc '('0 I'ropurty ofOthol'H "".."..."..""""""" 15
1"h'Ht Aid ExponHos """"....""""""""".."""..""",,, 15
Loss ASSOSHnlOllt..--l'eI'Honul Liability Covcl'llllo " 15
Whal Wo Do Not Covcr-Exclllslons_
Soctlons I & "
Homo llnd I"arnily Liuhility Pl'otoctlon """..."".." 13
Property Protection """""""""""""""'"",,,,,,,,,,..,,.8
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,
ERI'iol INSURANCE GROUP is pl'Oud to present Tho
ERIE's EKtrocov(,r Policy, This important contract boo
,. tween YOU and 'I'he ERIE conalsts of this policy with
coverage ugreemunts.limitntlons, excluslens and con(lI.
... t1ons, a Declarations, plus any endorsements, It is
, ":, written in plain, simple terms so that It can bo eusily
understood, WI> urge YOU to read it,
This polley contains lIIany EXTRA I'HOT~JC'I'ION I?EA.
'lURES developed by '\'he ERIK Wherover' on "X. uppeurs
in tholllarl(ln of this policy, YOU I'eceive I~X'I'RA I'HO.
'1'1~CTION, either as uddltlonul (,ovel'Uge or as a coveralle
that Is not in most homeowners poll<:les,
'I'lw protection given by this polley is in keeping with the
sinllle purpose of our Founders: "To provide YOU with
us near PlmFECT PROTEC'I'JON, os near l'EIU'EC'I'
SlmVICI~, as Is humunly posslhle, and to do so at, the
LOWI~ST POSSIB['I~ COST:
AGREEMENT
ERIE INSURANCE EXCHANGE ONLY
In return for your timely pl'Cmlum puyment, your
compliance with all of thc pl'Ovlsions of this poliey, and
your signing of u Subs()rlber's Agroelllont with Eric
Indemnity Company and other SubsCl'ibers, wougroe
to provide the cov'erages you havo purchased, Vour
covor-ages Hnd (amounts of in sur nile e) um shown on the
Declarations, which al'e part of this policy,
Vour signing the Subsel'iher's Agl'/lement, which
includes a limited powOl'.of'attol'l1ey, permits Ede In-
demnity Company, as Attol'lley-ln.Faet, to makel'(H:ip-
rocal insurance contracts between you and othM Sub.
ilcribe~s and otherwise munage the business of the I~rie
Insurance Exchange, This power.of:attol'lley applies
only to your insurance business at the Exchange and Is
limited to the purposes described in the Subscriber's
,.. Agreement.
Vour responsibility as a Subscriher Is dotermined by
this policy and the Subscriber's Agl'ecmcnt, Vou are
liable for just the policy premiums charged Hnd are not
subject to any other premium liability under the policy,
This agreement Is made in reliance on the information
yon have given us, and is subject to all the terms ofthi.
policy,
This policy, all endorsements to it, and the Subscriber's
Agreement constitute tho entire al(rcenlOnt betwmm
you and us,
ERIE INSURA.NCE COMPANY ONLY
In retul'll for your timely p/'Omium payment and your
compliance with all of the provisions of this policy, we
agree to provide tho covel'agml you have purchased.
Your (~()v(Jrngm; and (amount:; ofinAuJ'a(H~o) are Hhown
on the I>ecllll'uUons, which !\I'O pnrt. of this policy,
This agreement if! made in relianco on tho information
you have given uS,anrl is subject to all the tel'lns of this
policy,
This policy and ull endorsoments to It constitute tho
entim agreement botween you and us,
APPL[CABLl~ '1'0 ElITE INSURANCE EXCHANGE
und ERIE INSURANCE COMPANY
We promise, upon timely payment of the premium und
compliance with the provisions of t.his policy and its
cndOrS(lments:
(I) To COVOl' you from 12:01 A,M" Standurd '1'ime, at
the location of the Insured property, on the date
shown on tho Declarations os the Iil'st day of the
policy period, Cov1lrage will continue in force until
tUI'minnted.
(2) '1'0 protect you up to the amounts specllied in the
policy,
Vou may not transfer thin policy without our consent.
This policy IS made and accepted 8ubject to these and
f()lIowing provisions, including those which may be added
by endOl'sement.
POLICY DEFINITIONS
l'hl'Oughout your policy and Its eudorsements the fol-
lowing wOl'(ls havi}a special nwanlnll when they appeHr
in bold type,
"aircraft" means any machine or' device l~apHbl(l of
atmosphl'ric flIl(ht except model airplanes,
"anyone we prof,ect- meuns you nnrl the followlnl(
,.. resideuts of your household:
X (II ,'elati"es nnrl wards;
121 ot!w,' persons in the CHre of anyone we protect, X
Undm' flomc alld Family Uability Protcoti"'l, anyone
\Ye protect also means:
(:0 any pel'son or organizution legally responsible for
nnimals or watercrnft which ore owned by you, or
any person Included in (1) 01'(2), and covered hy this
policy, Any person 01' ol'ganlzulion using or having
custody of those animuls or wntercraft in !.he course
3
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of uny business. or without pOl'mission of tho
ownor is not anyone we protect;
(4) any pOl'80n with respect to any vohlclo eovol'Od by
this pollcy, Any porson using or hllVhlJl cuutody of
this vehiole in the course of ony huslmlHH UH(1, 01'
without permission oBho own"r iH not unyono we
protect,
"bodily Injury" Illeuns physlcul hllrlll, s"'knoss or dis-
X oose, Including 1Il0ntol angulHh, und inclndlls (:aI'O, IOHH
ef services, or resulting deatll.
Bodily Injury does not, includo:
(I) any COllllllunlcuble disllllSO or condition tl'llnsmlUed
by any insured to any othM 1ll!"Hlln th,'ouJ{h a
pnrnsito, virus, bact.orin OJ' any othm' OI'gllllhun.
(2) the exposuro to or tranHmission of /lny ,lisl1l,se.
pal'usltc, viruH, bactorln nr othm' ol'ganiHIll by Hny
insured to any otlwr pOl'SOIl,
ubusincss" IlHlllllH 1.1ny activity eugnglHl in as 11 lI'udo.
pl'ofm;sion 01' oceupation, ineluding f'ul'llling.
"Declarlllions" monns tho I'ol'ln which showH YOUl'
(;ovurugos, nmounts ofinsllt'nlll~(!, P)'(!ll1iUIll chul'gns Ilncl
olhor informlllion, 'I'hiH fMmls part ol'you,. polic)'. YoUI'
policy is nol complete without this "U'IlI, Tho nodum-
lions may bo rllVisod und updated by u f01'1Il called the
Amellded Dcc/nrn/iolls which then [)(lcomes the appli-
coble coverage,
"insured location" meuns;
(1) the resldcne(' premlsos;
(2) the part of ony other promises, other structuI'es,
()nd grounds aequired hy you dlll'ing the policy
poriod which you intcnd to use as a reHidenco
premlsos;
(:n any premises used by onyonl' we protect, in
connection with promlso" included in (1) 01' (2);
(4) any part of 0 non-owned premises:
(n) whol'o anyone WlI protect is lompol'fl,'i1y "0-
siding; 01'
(b) occasionolly mntod 10 IIllyono wo protect 1(",
non. business purpoHos;
(51 vncant land, othor than fonnlond, ownnd by 01'
mnted to "nyone wo protect;
(6) Innd ownod by 0" I'lllltod to onyonc we protect on
which a Olll' 01' two fomily ,'esidencc is being built
for occupancy by /lnyo/lo we protect;
17' (,l"notery plots or burial vaulls of anyone WI'
protot,t,
<tmcdi<~al oxplHlse" means l'cuHonnhle chargoR for noe.
('s~nry medicnl, Hurg-lenl, x.rllY nnd dental services, in..
X eluding prosthetic devicoH, eynglHHsml, contacts, hOHt'in,{
aids ancl pharmaceu! Ical.; nnd als" includos nmhulance,
X hn~pit.'ll, licolHwd nllrStng and funeral sOl'vices.
"occurrence" moans nn accident, incllldin~ continuous
or repl'ated exposure to tho samo general hannflll con-
ditions,
"proplIrty d/lmlll{o" 1ll"'''lH damaHll to or lous of use of
tllnJ{ible proporty,
"roHldence cmploycc" Illouns un lIInployoo of unyono
wCllrotect who performs dutios in connoction with the
nwlntononce or u.e of the rOHldelllle I,romlsos,lnclud-
ing similar duties ols/Jwhoro, not in connect.ion with tho
bUHlneHH of allYI,no we proteet.
"roHldonoc pi'emIHe." IIl1Jans tho dwelling whero you
rosiclo, including tho struetures and ground., or that
pa,'! of any other buildlnJ{ Wlllll'O you rosldo ond which
is shown liS "rosldoncl! p"(!Inlows" on tho Declarulions,
ADDITIONAL ERIE INSURANCE
EXCHANGE DEFINITIONS
Tho following words havo a spocial meaning in policil)s
issued by le,.;c 1t,sumllee J<:XclUlIlIi<' wlwn they "ppear in
bold tYPI"
HSuhscribol,1I nwanH the IWI'HOIl(H) who signod the
Sub!owrihtu"s Ag.'comont.
lISuh~wribor's Agr(!olllont" 1l1OlHlH tho agl'eement, in-
cluding a limill,d powel'-of-atlol'lloy, among the Sub.,
scdlll"'s and II", El'i<' Indemnity Company, as AUol"
Ill~y-ill.lt'ncl.
H\VC/' HUH" or llour" IlWntlH tho Subscribers ut Erie
lllsw'fllleo E.,c!ulIIgc as 1'0pl'esonlod by theil' common
Atlol'rw,V-in-11uct, Erie Indemnity Compllny,
"You/' uyour" 01' "No.nod Insured" means the Sub.
sorlber und others nomQd in Item 1 on the Deelara-
tiOJls. Excupt in the GENERAL POLlCY CONDITIONS,
these wOl'ds include till) spouse of tho SubsCl'lbcr if 0
,'esident of tho somo housohold,
ADDITIONAL ERIE INSURANCE COMPANY
DEFINITIONS
'I'he following words havo a spocial moaning in policies
issuod by Erie ItISltrallee Comp(lIIY when they appear in
bold typo,
ltWc/' HUS" or "our" means Erie insurance Company,
I
"Y()U," "your" orUNantcd Insurod"monns the person(s)
nnmed in Item 1 on the Dor;llIrallons, Except in the
GENlmAL POLICY CONDl'I'IONS, these words in-
cludo your spOU[1e if 0 resident of tho .ame bou.ehold,
Wm;N AND WHEltE TIllS POLICY APPLIES
This policy applies to lossos that occur during I,he p!tlicy
period, The policy period is shown on the Declarations
01' Amcllded Dl'claraliolls,
Seetio/l l---P/'Opert)' Protedioll, This policy upplies to
PI'OIll\''!y lossos liS desiJ{nlltod in tho specific coverage
und at the IOl'ation(s) insured under this policy. In
addition, Pel'sonal Pl'OpOl'ty is covo!'ud while loeatod
anywhel'l! in the world.
Seetio/l 1/-...lIome fllld Family Liability Protcetioll, This
policy applies to bodily Injury IInd property damagc
lossus occu!'rinJ{ anywhol'e in the wodd,
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, SECTION I~PROPERTY PROTECTION
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DWELLING COVERAGE-OUR PROMISE W) Animals, birds and fish, but only whilo on the X
.., We will pay for loss to: resldenoe premlsos, for tho following pedis cov-
....,:~ ored under PorUs WI1 Insure Against: Fire or Light.
" (1) Your dwelling at tho I'esldonoo premlsor. shown ning, Wind,.torm or Hail, Explo.ion, SOllic BOOIll,
on the Deolaratlons, Dwolling Includos at.taclwd lliot ""Civil COllllllotion, Alroraft, Vchiclc,., Smoke
struotures, and huilding e,]uipmont IInd fixtul'es and Vandalism or Malicious Mischief,
servicing the premisos, (7) Electronic IIppuratus while in or upon a motor X
(2) COlllitructlon material at the rosld,mc(l prcmls(ls vehicle or ether motorizod land convoyance, if the
for use in connection with your dwelling, elect,ronic nppllratus is eqnipped to-he operated by
This coverage does not apply to land, powor from the olectrical syst,em of the vohicle or
conv"yanco whilo f'otaining its capability of being
OTHER STRUCTURES COVERAGE- oporatml by othor sources of power, Electronic ap-
pnl'lltus inclllll"s cellulor phon"s, fax machines,
OUR PROMISE radios, tapc players and nccossorios used in con-
Wo will pay for 108s to: junction with such apparntufJ including antonnafJ,
(I) Other structures aI, tho I'(lsldonee premis(ls sopn. tapes, wires, I'Hcords, discs or other media.
rated fl'om the dwelling, including gal'agos, fences, W" do not pay for loss to: X
sholt.rrs, tool. stwd. 01' cllrports, (11 Land motor v"hiclos and pm't", W" do cove,' ve.
Structures connoded to tho dwelling hy only a hicles dOHigned to assist the handicapped, and
fmlce, utility line, OJ' similar conllection 01'0 consid- vohicles Hsed to scrviee the residence premises,
el'ed to be other stI'UctUJ'OH, not Hubjnet to motor vehicle t'egiRtI'Htion.
(2) Constnlction matorlalut tho residene" Jlremises (~) Air'cf'llft and parts.
I' OJ' US" in connection with your oUwJ' stl'uctUI'''S, (3) Propel'ty r"nt"d or held for rental to othars away
We do not pay for los8 to structuros used in wholo 01' in from the residence premises,
part for buslnoss purposes ("xc"pt I'ontlll "" holding 1'01' (4) Prop"rty of roomers, bOlll'd"r" or tenants not re-
I'ental of stmctures used for privat.e garage pUJ'pos"s), la t"d to anyono wo prot""t,
This coverage does not apply to land, (5) (a) Books of account, drowings, or other paper
~._, records; or
PERSONAL PROPERTY COVERAGE- (1)) d"ctronicdata pl'oces.ingtap"8, wires, I'ecords,
OUR PROMISE disks, or other software m"dia; containing
We will pay for loss to: business data, Howover, wo do covel' Uw cost
(1) P"rsonal property oWll"d or lIs"d by unyone we of unexpos"d or blank records or m"dia,
protect anywhm'e in the wol'ld, (6) Radios, tap" play"rs and othor equlpm"nt OJ' de-
(2) At your option, perAonal property own"d by ol.h"l'" vices for the recording, reproduction, receiving OJ'
transmitting of sound or pictures which may be
while the prop"rty is on your rosiden"e pre. operat"d by power from t1w electrical system of a
mlsos, land motor vehicle and permanently mounted while
(3) At YOUI' option, pOl'sonal propOl'ty of: in or upon that v"hicle, Accessorie8 to the8e devices,
(a) guests and residence "mploy"es while Ow including ant"nnas, tapo. and records llI'e not cov.
prop"rty is in a residence occupi",' by nnyone ered while in or upon alond motor v"hicle,
wo protect; ('I) Radar detcctors,
X (b) rosldenoe "mployees away fl'om Uw resi. (8) Property spodficlllly insuJ'ed by this or any oth"r
donoe premis08 while actually "ngagod in insurance,
the servic" or anyone WI' protect. (9) gxcept as provided under Persollal Property Limi-
X (4) At your option, building additions, nltorntionB, tatiolls, property pertaining to a business con.
fixhfr"s, improvements or inAtallations mad", 01' dueted away from the residonce premlsos unless
acquired at. YO\ll' expens", hy you to I'osidenc{,. at the tim" of loss such prop"rty is on the 1'001-
occupied hy but not ownod by yon, fOJ' an anlllunt de nee premises, Howevel', we do not cover suoh
not exc""ding 10% of the amount of insul'anco propm'ty on tho resldenee premises while it is
und"r this covel'nge, Puymont will not inCI'llase the stored, hold as samples, 01' held ror 8ale or delivery
applicable amount of insUl'anc" undm' thiA policy, after sal",
(5) Cemetery propol'ty, including mOUUl11{mtH, Iwad.
.J stones, grnvcll).flrkm'sl and 1I1'1lA.
5
Limitations apply to tho following pOl'sonnl pI'OpOl'ly,
Those limits do not incrouso tho nmount of insul'llnce
undol' Personal Properly Coverage:
Total Amount llo8orlptlon of I'ersonll(
of In.uraneo Property Subjeet to
In Any One Loss Lhnltntlons
$ 250 . Animnls, birds nnd fish
$ 250 . Monoy, bnnk notos, bullion, numis.
mntie pl'Oplll'ty, gold othlll' thnn
goldwul'o 01' gold.plnt<l<l wnl'e, sil..
VOl' othM HHm silvel'wlll'O 01' silvol'-
plnted ware, IInd platinum
$2000 . Aecounts, bills, deeds, ovideneos of
debt, lettol's of e.'edit, notes othOl'
thlln bank notes, passports, seelll'i-
tios, tickels, stnmps IInd philatelic
pl'opel'ty
$2000 . TI'IIi1cl's and eampol's not othol'-
wise inslll'od, whethOl' Iicensod 01'
not
$2000 . Wnto,'cl'llft, includingthoil'tl'Hilol's
(whethel' Iiconsod 01' not), I'ul'llish.
iUg-H, equipment and outbo!lnl mo-
tors
. Malluscripts
. Pl'Opel'ty pCl'tnining 1.0 n business
actually conducted on the I'osi-
dence premises, including prop-
erty in storage, held as samples, 01'
held for sale 01' delivel'Y aftcl' sale,
A $500 limitntion applies to any
business pl'Opel'ty away f!'Om the
reside nee premises, I'egal'dless
of whethel' the business is con.
ducted on 01' away from the resi-
dence premises.
x
x
x
x
x
$2000
$2500
x
x
X
$3000
$3000
X
$3000
x
JO'7c of Per"ollal .
Propt'rty
Covemee-
tbut not less
than $2000)
. Theft of guns
. Theft of jewelry, watches, furs, pre-
cious and semi-pl'ecious stones
. Theft of silverware, silvel"plated
waro, goldwal'e, gold-plated ware
and pcwtcrWHI'O
Personal propel'ty usually situated
at !lny residonce owned 01' occupied
by anyone we protect other than
n ,'esldenee premises, Personal
property in a newly-acquil.ed prin.
cip!llresidence is not subject to this
limitation for the 30 days immedi,
, ately allel' you begin to movo prop-
elty thel'e,
LOSS OF USE COVERAGE--OUR PROMISE
If an insuwd I"'ol",rty loss makes your I'csid",we
promises uninhahitable, we will pay all ,'easonable
additional living expl1nses whilo you and nwmhe,'s of
your hOllsehold reside t!lsewhol'o,
PaYlllOllt shall be fOl'l.IlO shortost timol'oqulrod to roplill'
01' replace tho pl'olllisos 01', if you ohooso, for you to
pOl'lllllnontly rclocat("
Those paymonts will not excood II 12 month period,
W" will also pay 1'01' your loss ofnol'lllall'ents I'esulting
from the loss, loss Chal'l:es !lnd expensos which do not
coatinue while the I'onted pnrl, of the residenee pro-
mises is uninhllbitablo, We will puy this loss of nOl'm,,1
I'onts only until tho I'ellted part is hnbitable,
If a loss f!'Olll a poril covlII'od under Perils WI! Insure
Agaillst occurs at 1\ noighbol'ing pl'emisl,", we wlll puy
additionallivinf( expensos and loss of nOl'lllnll'ents for
up to two weeks shoul<l civil "uthor.itios p!'Ohiblt you
froln oecllpying your pl'cmiscH.
These poriods oftime 111'0 1101. limited hy the expil'lltion of
this policy,
No deductiblo applios to this eovel'l\ge,
We will not pay 1'01' loss 01' expon"e duo to tho cancella-
Lion of nny lease OJ' agreement.
'l'hig coveI'age also npplicB to IIlmHi at II covered Bocond~
IlI'Y location.
o
PERILS WE INSURE AGAINST
DWELLING AND OTHER STRUCTURES
COVERAGES
We puy for risks of dil'ect physical loss to property
insu,'od under the Dwclling and OtherStructurcs Cover'
ages except as excluded OI'limited herein,
We do not pay for loss:
(I) Involving eollapse, other than liS provided in Adeli-
lional Losses We Will Pay, (2) Collapse;
(2) Caused by f!'Oezing by temperatul'o reduction of a
plumbing, hoating, ail' conditioning, 01' fil'o protec-
tive system, 01' of a housohold IIpplianco, Or by
discharge, leakage 01' overflow from within tho
system 01' appliance caased by freezing, while the
dwelling is vacant, unoccupied 01' beingconstrueted,
There is covemge if you have used I'easanable cnm
to:
(a) maintain hoat in the building; 01'
(h) shut off the watel' supply find drain the system
01' appliances of watol',
(:3) By freezing, thawing, pre.sul'e 01' weight ofwawl'
01' ieo, whether driven by wind 01' aot, to a fence,
pavement, patio, swimming pool, foundation, re-
taining wall, bulkhead, piol', wharf 01' doek,
(;I) Caused hy:
(n) lOl'mit.os, inHl1cts, vermin or rodents;
(h) Illochnnical bl'ellkdowa,detel'iorntion, wenl'and
teal', marring, inhel'eat vke, latent defect, rust,
smog, wet 01' dry rot and mold;
(c) contaminntion;
Id) smoke from agricultural smudging 01' indus-
trialopol'ations:
()
L
(i
')
..
(0) bulging, ornoklng', oxpun.iun, .ottling (II' shl'lr;k,
ingln ceilings, foundution., nO(ll'll, IllItiUB, pll'/O-
montH, roofs or WIIIlB,
If(lI) through(o) OIlUSO water dllmuge nututherwlse
exoluded, from a plumbing, hOlltlng, all' condition-
ing, or 01'0 protective sy"tem, household up"lIl1nco,
wlltorbed or a'lUUrlull', we covor IUBS COUS(l(! hy tho
wator, Covorage Includes the custoftourlnl(out und
roplucing uny PUl't ufu bulldlnl( nocossur'y to ropnlo'
the systom or IIppliunco, 'I'hls dooa not Include 10sB
to the defedivo systolll HI' IIppliunce ('!thol' thnn u
wntorbod or o!luariulll) f\'Om whieh tho wotOI' lla'
caped,
(5) Cllulled by woatlU!r cenditions if uny pllril oxclud"d
by this policy contrilHltl's to Uw lOBs in ony woy,
(6) Caused by IIcts 01' dllciaion., including tho fnilur" III
net. or docidu, of nny pOI'ROIl, group, organization, 01'
governmental body if lIny p"l'il I'xeludl'd by thiN
policy l:ontrihutm, III th" 10H. in/lny WllY,
(7) Couacd by, rcsulting from, wntl'ibut"d lo 01' nggl'/l'
'luted by fllulty 01' inudequ/lt"
(u) plunning, zoning, developmllnt;
(h), dtlsign, devcloPllwnt of spoeilicntiollH, wOl'k-
mElnship, constl'uction;
(e) mutol'll\ls used in eonstruction; 01'
(d) maintenance; ofpl'Operty wh"thel' on 01' o!Tthe
residence III'emi!ws by lIny pOl'son, gmup,
organization, 01' govcrnmentul body Ifuny peril
excluded hy thiN policy contributml to the loss
in any wuy,
(fJ) Caused by animnls "" bird. kllpt by nnyone we
proteet 01' kept, by a I'esidlmel' employee of
anyone we l,rotec1.
(9) By theft of property f!'Om withinn dwelling under
construction unless that property has bocome a
part of the building, 01' ofmnterials and supplies for
use in the construction until the dwolling is com-
pleted and occupied,
Under items (I) through ([I) IIny ensuing loss not ox-
eluded is covered,
See Scctioll I-What We Do Not COI"'r-..[.;xdIlSioIlS for
ndditionallosses excludod,
x
....
PERSONAL PROPERTY COVERAGE
We puy for direct physiealloss to property insul'Od under
l'ersolwll'roperty COllerafle caused hy any of the follow-
ing perils, unloss the 'loss is oxcluded olBewhCl'1l under
this polic~':
(1) Fire or Llgh,tning,
(21 Windstorlll or Hull,
This dews not ineludll:
(a) IOSH cnwwd hy f-..cmt., cold wnathm\ icu, snow,
sleet, sand (II'du.t;
(hi 10SB to property contained in a building, unle,..
the huilding i. first darnUf("d hy th" dil'"et f(lI'l:e
of wind Ill' hoil;
(I:) loss 1,0 wlltlll'crntl (oxeept I'OWbontH IInd cnnoes
nt un hIHUI,.,d loclltl<",) nnd thoir trnilors,
fUl'flishings, 1111uipnlllnt nnd motol's ullloss In-
Bidon fully l'ncloll",1 hulldlllll'
(:I) gxploHlon,
(~l Sonill BOOIll, X
(5) Itlt,t or Civil Commotion,
((I) Airllrltft, including missiloB nnd SpIlCOCl'llft,
(/) Vllhh,lllS,
(H) Smokll, i!'thelosll is sudden nnd accidental.
This dews nol Inelude loss cllused by smoke from
ngl'icultlll'nl smudging or industl'lnlol,orntions,
(!l) VIIlldllllsm or Mlllillious Mischief,
(10) 'I'hdt, ineluding nttornptod theft nnd loss of pl'Op- X
llI't,y fromn knownlocntion when it is likely thut the
propelty hnB I",on slolen, WI' nlso eovl!I' dirllct 10SH
of covered l"ll'sonnl properly hy theft while it is
Ilnlllhmdud ill OJ' Oil 11 nUltOl' v(lhiclo. trailel', or
wnlul'{:raft.
This does nol includ,,:
Inl t.heft commilted hy nnyone wo proteet;
(hI t.hoft ofprop",ty from within a dwolling und",'
construction unless thllt property has become
a pnrt of the huilding, 01' of mlltedllls and
"ul'plies for UHe in the constructiou until the
dwelling is completed and occupied;
(c) theft of property while ut unother dwelling or
adjucent stmctures owned by, rented to, or
occupied by allyone we pro teet unless IIny-
one we protect is telllporurily l'l,siding there,
Property of II studcnt we protect i. covered X
while ut u residenco llWUY fl'(lm home, XX
Theft losses lIIUSt bo promptly reported to us und to
lhe police,
(11) Falling Objects,
This does not Include:
(0) loss to property eontained in a building, unless
the fulling obje,ct firBt domuges tho huilding
exteriol';
(h) damage to the falling object,
(12) Weight of Ice, Snow 01' Sleet,
This doos not include loss to personal property
outoido the building,
(1:1) SlIdden IInd ~Iecldentul tellrlllg apart, crnck-
ing, burning or bulging of II steam or hot
wllter heating system, all all' conditioning
system, or fire prot,eetive system, or IIn app1l-
unOl' for hentlllg wlltel',
This does not covel' lOBS cllused by 01' I'osulting from
freezing,
( 1 ~) Prllllzlnllby temperature reduction of a plumb-
ing, heating, all' eondltionlnll, Ill' fire proteo-
tlVt' system, or of u household allpllllnee,
7
'I'his doos not Includ(,loss on tho rtlsldonllO 11I'("
" mlslls whilo tho dwelliog is unec<lllpioel unlo">I you
havo usod I'oasonahle Clll'(' to:
(II) maintnln htlat, In tho building, or
(1)) shutolTtho wntersupply und drllin Uw system
'}r IIpplillnCOS of WUIOl',
(16) Accldontal dl80hlll'IIo or ovtlrnow of Wilt",. or
stoanl from within a plumbing, h(,IlUng. IIII'
oondltlonlng, ornro protoctlvo systom, hOUSI"
X hold appliance, wlltorhod 01' IIl(UlIl'hulI,
'l'his doos not include:
(II) less to tho elefectlvo systom or upplillnel' (othor
than a waterbod or IIqlllll'ium);
(b) los>l cuused by or rosultin!( from freezing;
(c) lo"s on tho roslelence 11I'(,"llsI's enus"d by
nccidonlnl di8charge or oVOl'now which occurs
oIT tho I'esidonoo preml8tls,
(Hi) Ullmage dl'" tn II slldelon Illlelllccddmltlll SUl'!{e
of electrlolll cUl'l'ont.
1'hifl does not indude logs to tllhml, tl'nnsistOl's Of'
gimilal' electronic compononts,
(17) Volollnlc Eruption,
'I'hls doos not include los" enusod by mnthqunke,
land shock waves or tremors,
Volcanic oruptions occurring within a 72 hour pc'
riod will be considored ono volt:anic eruption,
WHAT WE DO NOT COVER-EXCLUSIONS
(Also 80e specific Exclusiolls undcr Dwelling al/d Othcr
Structul'cs CO(lcrnges-l'cril8 We [I/sure Against)
We do not pay 1'01' loss resulting direetly 0" indirectly
from IInyorthe following, even ifother events 01' happen-
ings eontributed concurrently, or in sequence, to tlw
loss:
(I) by ellrth mOl'ement, clue to natuJ'll1 01' manmade
events, meuning ellrthquake including land shock
wnves, or tremors berol"', during or oftm' n lIo/conic
cruptioll; mine subsidence; landslide; mudsllde;
mud now; earth sinkin!~, l'isin!( or shiftin!(, Dirnet
loss by Firc, Explosioll, SOIlic Boom, The/lor Breal"
agc ofGla"" resulting from em'lh movement, mine
subsidence, landslide, mudsllde, mud now, elll'th
sinking, rising or shifting in covel'(,d,
(2) by wlltel' damllge. 111[1l1nin[(:
(n) Oood, surface wnW", waveR, tidos, tidal waves
or overnow ofu body ofwut.er, We do not cove,'
spray from Hny oftl;mHl, wh(lther 01' not dl'iven
by wind; ,
(hl wate,' or sewuge which baeks up tbrough S('W-
ors 01' drains; or
(e) water helow the surfnee of thn ground, This
includos wate)' which excrtA J)I'C.!iSllJ'{~ on, 01'
nows, seeps 01' leaks through any part of a
buildin!( 01' othor structlll'e, sidnwlllk, ,h'ive'
Wll}'t foundatioll, OJ' Hwimmin,~ pool.
W" do pay 1\11' dh'ect 108s that follows, cauHlHl by fil'o,
explo>lion, sonic hoom or t1lllft,
(~) hy powm' interruption if the inlll1'l'uptlon tllkes
pluce away rl'OIll the resldenee premises, IfalOlls
fl'OllI a pm'i1 covowel under Pt".ils lVe lI,s"re Agaillst ""'"
huppens on Uw rllshlonee premlHeH us a I'osult of V
u pOWlll' int.m'rllption, we will eoveronly luss "lIused
hI' thllt. pm'il,
(~) by war, wlwthm' dlJolnl'ed 01' undeclared, dischul'go
of anucloal' woapon (evan If ueddonta!), host.ile or
wurllke uctionln tlnw of pall co or Will', Insul'I'ectlon,
rebellion, rnvolutlan, oivil Will', usurpod power, in.
eluding action tllkon hy govcl'l1l1llllltalullthority In
doflHHling ngnillHt. H\wh un occurrenoe.
(f)) hy nuclelll' ndioll or radiation or l'lHlioactivtl con-
f,uminfltiol\, h()WllVOr cnwmcl, Nuelnnl' fHJtiol\ in-
cludeH I\udnfll' I'Oflct1oll, dhwhnrgc, I'ndint.ion 01'
l'odillUGtiv!l (~tHllal1linntion, wlwthol' mAn~made ot'
O(~c\ll'rin(.{ nutul'ully.
fj(JHH CH\lHml hv Iluclonl' action iH not COIlHidol'ed IOHH
by fifO, oxp)o~ion, Honie hoom 01' AlTloIUl,
Ifl08s by Ii I'll results, we will pay for that resulting
108s,
(()) by I'adon gUH contmninntion,
(7) by the enfol'coment of IIn ordinance or hlw rogulat-
ing theconRtl'uction, I'epah'ordomolitlonofa huild-
ing m' other structure, unless specifically provided
under this policy, We do cover loss clluged by
actions of civillluthol'ities to prevent, the spl'eud of
a fire caused by II peril covered under Perils We 0,
[nsurc Against,
(8) by neglect ofaflyone we protect to use ullrouson.
able meuns to protect covered property lit and ufter
the time of loss 01' when property is threlltened by
a peril covered under Pcril" We In,,ure .Against,
(9) by intontionlllloss, meaning any loss arising from
IIn act committ.ed by 01' lit the direction of anyolle
we proteet with the intent to eause II loss,
ADDITIONAL LOSSES WE WILL PAY X
(I ) AUTOMATIC GARAGE DOOR OPENER
Wo will pay up to $600 I'm' loss to personul pl'Opelty,
including the glll'age door, at t.he re81denoe premises
I'esultln!( rrom the use or mill function of an uutomlltic
gu "ago door oponor.
(2) COLLAPSE
We will P"y for direct physiculloss to in9uI'ed property
involvingcollapseofa building,or any pgl'tofll building,
e",,,,ed only by one or more ofthe following:
(a) lire or Ii!(htning, windstorm or hail, explosion,
Honic I>oam, riot lJl' civil commotion, alrernft,
vehicles, vnndlllism or malicious mischier,
brOllkuge of glllss, fulling object8, or weight of
kn, 8n(JW 01' sleet; l -
(b) hidden decny, or hidden insect or vermin ""
dn mugu;
B
."
'j
. (c) woight of Ill)OI)I." llnimals, contuntll (II' uquip'
lIIont:
(d) woight of rain which collocts on a roof:
(0) uso of dofocllvo matedals or methods in con-
struction, remodeling, or ronovation IHho col-
lapse oeeurll dUl'inli tho courlle of the con.truc-
lion, remodollng or ,'ollOvation,
Wo will not ho lIahle for lasll undCl'(h), (c), (d) or (,,) ahov"
to tho following prop"rty Un1"Sll t.Il1llos11 is II dlr"ctl'o.ult
of tho collapse of II huilding:
Cloth awnings, fonc('8, pavom"nts, patios, swim-
ming pool., undm'g)'ound pipes, nu"s, drains, coss-
pool8, septic tanks, foundations, I'utaining wHII.,
hulkhoad8, piors, WharV(1S [))' docks,
Collapse doos not includo settling, cracking, shl'inkal:'"
bulging or oxpan8ion,
Payment wiIJ not intTCHHO thn amount of inHlll'nncp
applying to tho loss,
(:11 CREDIT CARD, CHARGE Pl.ATE, CHECK FORG,
ERY & COUNTERFEIT MONEY PROTECTION
X We will pay up to $2500 1'01' tho I"gul oblil{lltiou of
nnyone WI' prohl"t to PHY h"CHUSC of th"ft, forgery or
unHuthodzcd uso of nay crodit 0" fund trHnsfer cllrd,
chnl'ge pInt!.', check 01' negotiable instrument iHHlWd to 01'
registered in tho name of anyollo we protoot, Wo will
also pay for loss "ach time nnyono WI' proteot unknow-
X ingly accepts counterf"it money, No deductiblo applios,
We require evidonce ofl08s,
Wo will not pay for:
(a) loss lII'ining 1'\'010 any bU8lness;
(b) loss arising 1')'010 nnyono we protect,
When los. is discovered anyolle WI' IIroteet must give
us immediate notice, If the loss involves a eredit er fund
transrereard 01' charge plate, allyone we protoet must
also give immediate notice to the issuer of tho card 01'
plato, ~'ailure to comply with the terms and conditions of
the card or plato voids this protection,
X If a loss occurring during the policy p"riod is discovered
withil, a year after the policy hUB he,m canceled, we will
pay for the loss, If a pdor loss is discevered during the
policy period and no etho)' insurance applies, we will pay
for the loss, We have the right to investigate and settle
any claim 01' suit be foro making payment. Full payment
of the amo""t of Inslll'anco onds our obligation under
oach r1aim 01' suit,
.'
X
Ropealed losses eausod by or involving ono person are to
be conside)'ed ono 10SB,
Ifn claim is made 0)' AlIit iR hl'ought against nny()n(~ we
protoct 1'01' liability undor the C,."dit Card 01' Chl/rge
Plale I'ruleclion,'we will p!'Ovide n defense, The del'en.e
will be al our oxpensc, with a lawyor we choose,
We have the option uader tho CI"",', For!i'''Y I'mieel;on
te defend at 0\11' OXI)(ms" anyone we proted (II' their
bank against a suit 1'01' the enforcmnent of payment.
('I) DEBAIS REMOVAL AFTER LO~S
W(, will pay thn nxpnnHu fn.' romovlll or:
(a) dnhrin of "ovored p,'ollOrty follOWing 1088 undor
['aUs Wc It,.ure Against:
(b) ash, dunt III' pa.'tIcloH f!'Om volcanic oru'plion
that han cuusnd dirod 1089 to a building or
pl'OpOlty within a building: or
(r) fall(1I\ t,'(",n which IJUUSO dumoge to covered
proplllty, IJI'ovidnd coverago i8 not affOl'ded
nlnl'whlll'n by this policy,
If the umount of hwul'llncn applying to tho lens is ex-
hm,"ted, W(, will puy up to un nddltionsl 5% of the
umount of insul'llncoapplyiall to tho damagod property
till' rmnovnl of dnlll'in,
W(, will alno puy up to $500 per occurronce for the
relTlovnl of falinn lI'ees on the l'CHldonee proml8e8 if
losB is caused by windstOl'm, hail or weight ofieo, snow
01' ,..;JNlt (wnn when cflv(!l'ml pl'OpOl'ty is not damagod.
If,) EMERGENCY REMOVAl. OF PROPERTY
Wo will pay f(Il' p)'nperty dumaged in any wuy while
I'emovod frolll your ,'esldmlCe premlse8 because of
danger from nn insured po I'i I. Coverage is limited toa ao,
day period fl'llm date of )'cmoval. Payment will not
iacrea." the alllount of insumnce applying to the loss,
((i) FIRE DEPARTMENT SERVICE CHARGES X
We will pny nil rensonable fire department service
ch\ll'gns to snve 01' preteet insnred property, Payment is
in addit.ion ta the nmount orinsurance applying to the
loss, No dedllctibh, ,applies,
(7) FIRE EXTINGUISHER RECHARGE
We will pay exp"nsll" incurred to reeharge portablo fire X
extinl:llishers after thllY me used to fight a firo,
No dllductible npplios,
X
(8) LOCK REPLACEMENT AFTER LOSS
At your request, we will pay up to $250 to replace keys
and locks to the exterior doors of the residence 111'0-
mises, HS well as keys and locks to your other property
(nutos, hoats, etc.>, ifthe keys 01'0 stolen during a then.
los", Thi.. covera!:" does not apply to keys nnd locks
portnininr, to business propOl'l.y, Nododuetible applies,
We will pny 1'01' ,'eplacement of automatic garage door X
transmitters when a transmitter has beon stolen, Cover-
ago is also provided for the cost b reprogram t.he fre-
,!uoncy on additienal transmitters andlol' the contl'Ol
unit hux,
No deduct.iblc upplins t.o the replacement or automatic
gnragt' floO!' tranRmilterH,
W) LOSS ASSESSMENT
(Apl'/icah/c 10 See/ioll [ & S"dillllll ' Pe/','OIwll,iability
Cou"/,(I!i" Ollly)
We willreimhurso you for aa nssessmentcharged against
you as owner or tenant of the resldenee premises by
nn associatioa 01' cOl'porntion of property owners. minus
nny "tlw)' vnlid nnd collocUblo insurnnco availnble to the
9
9sooclation or COl'pOl'lltion covl,rir,g tho 80me 08HO"S-
'lIent, 'fho 08sossmont mUHt rOllult fro III on oeeUrrllnlltl
covered under this policy,
Unless otherwi~o shown on tho J)eclaratlons, our
X omount of insuranc(, for this protection iH $5000 por
ossessment,
If you 01'0 aHs(!8sod for Il covorod Wlltor 10sH, wo will JlIl,Y
YOllr shore of tho cost oftooring out and roplllcing any
port of an Insured loeatlon nocesHory to repair the
systolll 01' appliance,
Tho policy deductiblu opplil's undur Se"ti'I/lI ollly,
Wc will nut pay if thu IUHs is C/!llBud by ulu'thquoko 01'
lond shock wov(,s or tremor'" which oeel\l' Iwfuro, durillg
or artor l\ vulcanic lH'upliun,
We also will not pay fot, OilY IOHS ussoHsnwnls chargod h,Y
II guvol'l1lllontal body,
X (10) MECHANICAL SERVANT AND ROBOT
PROTECTION
We will pay up to$500 for loss topc/'sullul pI'opcrty at the
I'esidence premises causcd by malfunction of u mo-
chanicul servunt 01' robot.
(11) NECESSARY REPAIRS AFTER LOSS
We will pay thu ruasollablc cxpcusc 1'01' uocussary rc-
pairs to p,'otect covered property from further damag('
arter loss hy 0 peril covered under Perils We Ills"re
Agaillst, Paymeat will not increase thu amount ofiusul'-
once opplying to the loss,
X (12) NON-OWNED RESIDENCES
We will pay up to $1000 for loss hy thert and vandalism
or malicious mischief to residences occupicd by hut not
OWJl(,d by IInyone we protect. '
X (13) REFRIGERATED PRODUCTS
We will pay for loss to the contents of l'eli'igerator 01'
freezer units on the residence premiscs from either
power or mechaniclIl failure,
Coverage will be void if the contonts arc on the resi-
dence premises for business purposes,
X (14) TEMPERATURE CHANGE
Wc \\'ill pay for loss to insurod personal property .'esult-
ing from change of temperature, There must lirst be
damage done by 0 peril covered under Peril" We IIIslll'e
Agaillst occurring at the residence premlsllS, Pay-
ment will not increase the alllount ofinsurance applying
to the loss,
(15) TREES, SHRUBS, PLANTS AND LAWNS
We \\'ill pay up to an additional 5% of the Ilmount of
insul'Once under DI~dlillg Cou""agc for loss to treos,
sh.'ubs, plants and Illwns at the rcsidcllCll premises,
Coverage applies only to 108s caused by the following
perils covered undor Pel'ils We 11I,"'l'e Agaillst: lire or
lightning, explosion, sonic hoom, dotal' civil commotion,
X aircraft, vehicles, smolw, vandalism 01' mlllicious mis,
chief and thert,
Wo will not pay for:
(11) 1ll1ll'0 than $500 on ~nyene tree, shl'Uborplant;
(h) dllmage to lown8 hyvohiclesownodoroperated
hy /I resident of the residence premises;
(e) tt'IHIS, shrubs, !Jlants or lowns b'l'own for hllsl. 0
IUINS plU'pOSCH.
DEDUCTIBLE
We will puy for loss millllS the deductible shown on the
J)olllnrlltlons, In t1w evont oftotall08s to tlw Dwellillg X
fml1J u covered poril, the deductible will not upply,
Tho doduetible docs net npply to:
(a) I,oss of Use Cooerage,
(il) Cl'edit Curd, Chal'ge /'I'lt", Clwcll FOI'II'!I'Y &
CrJ/lIlt,'rfdt MOlley Pmteelioll,
(c) Fil'e /)"I'al'tmellt SI!/'uiee Charges,
(<I) Fire ICxlillguish,,"lIeehltl'l!c
Ie) [,01'11 l/e,,[aecm,mt Aftel' /'OS8
RIGHTS AND DUTIES-CONDITIONS
III ABANDONMENT OF PHOPERTY
We will not Ilcccpt abandoned proporty,
(2) APPRAISAL
If you and we fail to agree on the amount 01'l0S8, either
party may make written demand for an appraisal. Elich
party will select an appraiser and notify the other of the
appraiser's identity within 20 days arter the demand is C
received, The appraisers will select 0 competent and .I
impartial umpire, Irthe appraisers are unable to agroe
upon an umpire within 15 days after both appraisers
have been ideatified, you or we can ask ajudge of a court
ofrecOl'd in the state where your resldelleo premises
is located to select an umpire,
The appraisers shall then set the amount of loss, If the
appraisers submit a written report of IIn ab"'eement to
us, the alllount agreed upon sholl be the amount afloss,
If they cannotogree, they will submit theirditTerences to
the umpire, A written IIwllrd by two will detO/mine the
alllount of less,
~:ach party will pay the apPl'llisel'itehooses, and equally
bear expell!les for the umpire and 1111 other expenses of
the apprnisnl. However, if tho written demand for ap-
praisal is made by us, we will pay for the reosonable cost
of YOUI' appraiser and your share of the cost of the
umpil'll,
Wo will not be held to have waived any rights by any act
relat(Jd to appraisal.
(:II AUTOMATIC ADJUSTMENT OF COVERAGE X
AMOUNTS
'I'his poliey provides you with 0 guard lIgainst the effect
of inflation in construetion costs, The amount of cover.
age you have today may not be enough to rebuild your
Iwnwat a later date.in the event of serious loss, C
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Wo will keop tl'llllk ofconto'und ut tho Ill,xt policy podod
wo will allju8t the mllouut of your bulldhl11 eovUl'ul:O If
lieocs8al'Y, ^djustmellt8ln othercovora/les (Ollwr .'111'/11"
1/1""8, PerRO/wi Pl'opcrly and LOB,' of lIBc) willuloo be
made proportionately, Your premium will be mljuoted
at euch policy period to mOect any chanlle In t1l1lllmoullt
of insuranoe,
Dul'iug the flolillY period, If therl' 10 UII lucr,,"oo ill
constl'Udiou costs and a loss occU"S, wo will r"Oect till!
Inerellse III the amouut of Influroucll IlIlforo IIlllkln/(
payment, Thoro will 1,0 no chlll'lle I'm' this nddit.lollal
covorago.
HowllVer, If for any rellSOIl tho 1l1ll0Ullt pI' iIlSUI'IlIlCI' ""
your homo hocomes inadequute or If you mllde oulmtall'
tial improvl"nents to your home and flliled to uotify liS
to incro",,,, tho amountofyourinolll'IIIH:", the IlIlll/lIlIt"f
Insul'Onco shown on the I>oolaratlons will he Uw full
ameunt available sh"uld a loss OCCUI',
~,
jo'
(4) ERIE OPTION
If we give YOII writtell notice within an daYB 1l11el' wo
I'(:cdvc your Higned, sworn slatement or Imw, wo mllY
mpn;r or replnce any pa.t of'l.he property dnmaged wit.h
equivnlent pl'Oporty,
(fi) GLASS REPLACEMENT
Loss to /(Iass callsed by a peril covered unch,,' I'ail" We
blsllI'eAgaill,,1 will beseltled on the basisofl'Cplacement
with safet,y glazing materials when required hy law,
(6) INCREASE OF HAZARD
Unless we agree beforehand, coverage is suspended if
the hazard is substantially Increaslld by any means
within the control or knowledge of anyone we Ill'Otod,
(7) LOSS PAYMENT
Wo will settle any claim for loss with you or anyone who
has a legal inlorost hI the property, We will pay within
30 days after wo receive your proof of loss and the
amount of loss is finally determined by:
(n) agreement between you and us;
(b) an appraiBal award; or
(c) f\ court judgment,
(8) LOSS SETTLEMENT
(a) The following types oflesses will he settled on
an actual cash valllo basis, This means that we
will deduct for depreciation,
Losses to:
. property insured under PI'/'sollall'/'operly Cou-
crag(!
. structllres that lire not huildin/(s or eal'polts
. carpoting
. domestic nppliancos
X . clolh awnin!(s
. outdoor antonnns nnd outdoor equipment,
whether or notatt.ached to hulldings
~
11
. insured bulldln/lH at;d et,'uctures which do not
lIleet the n'qulrlllnents for II replacoment cost
settlement dl,acrlhed In Subseetions (8)(b) and
(8)(c),
'I'he actual cllllh valu{, will bo detormined Ilt the
tlmeoftllllloss, I'lIymontwill notoKcood the alll ount
necI'sslll'y to ropulr 01' ,'{'plllcO the damaged prop.
orly,
(h) Loss to bulldln/(s and CIII'[lll.'ls Insured undor
Dwellillll Coveralle (1I' Olhcl' St"llclu/,es COVCI"
aile ("XCI,pt liS Inc:luclod In (a) nbove) will bo
s('tth,d by ono of tho followhlg mothuds:
\, Ileplacemw/ I'(/HI 811111,,,/11'111 (mellninglhat
we will not doduct for depl'Ocilltion):
u, providllll Uwlloolllratlons show that X
the Auto/llnt;!' No,De"rednlltm Sdtle,
menl npplitm; 01'
1" if nt the timo of the loos, t.I111llllluuntnf
inSllrlll"'I' npplyin!l'-otl", insul'lJd huild.
inll is HO% III' 11I01'(1 of tho full replllce.
me"t. cesl of tho huildin!( immedintoly
pl'iol' to t1w Inss; or
G, if tho Gosl t.n repuil' 01' repluce t1w dam. X
ago 1.0 an iasul'od huildinll Is hoth:
1) loss thun $2fiOO; und
2) less UlIIn r,% of the amount of In-
suranco on tho huildlnll,
In lIlukinllureplucement Gost seWoment,
we will PIlY you tho cosl of I'eplllr or
I'Oplacoment, without deduction fordcpre.
ciation, Pnyment will not exceed tho smnll.
est of the follnwing ameunts:
. lhe amount ef insuranc,e applying tn
Uw huilcling;
. the I'eplacenwnt cost oft.hat pnl't of the
building dnmllged for equivalent Gon.
stl'llction and URe on the same pre.
misos;
. the amount Ilctunlly and nCGesflarily
Bpent to repair 01' replace the damnged
building,
In detel'mining 80% of ,lhe full replace'
mOllt GOllt, ofthc building, the value of the
fnllowinll will he disre/(UI'ded:
. excl\Vatiomi
. founclntions below the hnsement 0001'
. piers nnd othe"lluPPol'ts below the baso.
ment 0001'
. if thel'e III no basoment, tho vnlue of all
items helow the surfaoe of the ground
inside the fnunclation wnllll,
2, l,e8,' thall fulll'cplrwcmcllt ('osl sCU/l!IIWIII,
11' full l'l:plnGumenl cust sottlenwnt does
nntapply, we will pay t,hl' Inl'ller of t1w
followinllnmuunt.s, but nut ex(,eudin/( the
amount, of insurllnco uncle.' thin policy
applyin/( to Uw buildin!(:
n, the Iletunl cash vnluc of that. pal'l oflhe
huilding dnmngml; 01'
b, t,hat 11I'o(l0l'l.Ion of tho full coat t.o I'o(luh'
" or' I'flplueo t.ho dUIUUllo which t.ho t.ot.ul
umount of II1HlIl'UOm, In t.hlH policy on Uw
damugod building houl'H to 80% of' Uw
l'oplacl1lnont. coat. ol't.ho bulldlnll,
(c) Wll will (lay no 11I0"0 t.huu tho /lct.unl eUHh vnh",
or tho dumullo Ulltll tho ncWul I'o(luh' 01' "",
(llncomellt la "ulllplotod, Huwover, whon Uw
loaR iR both lOR a thlln $2500 und 10RR thnll 5% of
tho umount or InHu,'nn"ooll t.Iw building, Wo
will PllY Uw roll n~plue(JIuunt COHt. bofol'flllctuul
ropulr "" l'oplu('OIl\Ollt is !:OlI1plut.ud,
(d) You mny dlsrolllll'd thol'llpln"tlInont <:OHt 1"'0,
viHIoo IInd IUuko elnim fill' loss Ill' dnmngn to
huildlngs ou un nduul "ush vnlun husls, How,
nvnr you stili hllvn U'" l'ight to lIlukn dullll,
'v'ithln 180 duys nft,,,,' UW 10HH, fvl' nllY nddi.
tionlll nll10uuts WO will hn 1'0lJuil'ml tu puy
llndtlr thiR l.mm Sl'tt'(~m(,llt pl'ovhJion.
(9) LOSS TO A PAIR OR SET
x
In cmw of n 1098 to n piliI' 0)' Hot W(~ may:
(n) I'opail' 01' l'eplllCn any purL 10 "oslol'O Uw pnil'ol'
i-iel to itH vulue before tlw los!-l; 0"
Ihl puy Uw dil1'o"ellc" hetweelludulIl ,,"sh vuh",uf
the pl'uporl,y bel'vl'e nlld ul'tor tho 10"',
(10) MORTGAGE CLAUSE
Loss undol' Dwcllillll COllcm!:e Ul' Oth"I' Stl'llcluI'c,< COli'
crage shall be paYllble tu 1ll0rtgugooH numod Oil tho
Declarutions, t.u thu oxtent ol'theh' interest and In t.ho
order of precodonee,
Our Duties
We will:
(a) pl'Otoct t.he mOl'tgl1go,,'s intor,,"ts in lIn insured
huilding, This protection will not h" invali,
dated by any lICt. 01' nogloct of lInyone, we
pl"Otect, lIny bl'onch of wlllTanty, inel'nasn in
hll7.0rd, chlln~~o of oWllerflhipI 01' fm'(wlmnll'o if
the mortgagee hlls no knowledgo of th"se
conditions;
(hi give 100ltl:ngee 30 days notien b"l'ol'O "nn"ellu,
tion 01' I'ofusnl t.o eontinu" this polley,
Mortgagee's Duties
The mo.'tgagoe will:
(n) I'ul'llish pl'ool'ofluss within GO dnYH il'you fi.il
10 do so;
(b) pay upon demand any PI'''llIiUIll duo il'YllU filii
to do so;
lei notify us 61' nny chungo 01' oWI\el'ship or oeeu..
pancy 0" any Incl'Onse in hll'l1l'(l or which th"
mOl'tgageo hilS knowledge;
(d) gil'n us the !'ight ofrecov"I'Y agninst lIny pa.'ty
I'ablo 1'01' loss;
Ie) ullcl' a loss, permit us to sHtisfY tb" mOltgago
requil'el1lcmts and I'c{~oiv(l full tnlllHfel' of the
mo,'tgnge lInd 011 sacudUos hold as collatoml
to the llIol'tgago daht,
Policy conditions I'olllting to Appraiscll, /..oss I'IIYIIWIII
111111 8,cit Agaillst Ifs apply to t.ho Inort.glllleo,
'I'hhl mOl'llllllltlO IlItol'OSt. p.'ovision ahall apply to IIny
l.t'IIf1t<'tl 01' loss poyoo IIllnUld on the ()llolllratlona,
(II) NO BENEFIT TO BAILEE
'I'his inslIl'lIIW" will not. In Ilny wuY IwnelH IIny person or
(lI'![III1I'1ltion who IIlIlY ho enl'ing fill' or bllndllng your
Pl'op'"'ly 1'0" nlilO,
(12) OTHER INSURANCE
If hoth this insnl'IIlWIl nnd Ot.lUlI' InH\ll'nnco apply to a
lOllS, Wtl will PllY 0\11' Sh'Il'O, Our slulI'" will hll the
Ill'opol'lionllto nnwllnt thnt this illHUl'lIIWIl hOOI'H to thn
totnlHlIloullt of 1I1111pplh:nhle inH\lI'a1WIl, "xeopt. Insul"
IIl1eo ill the !lame of un lIHHoeint.ion 01' (~OI'l)(Jt'Ilf,j()n uf'
PI'UPPlty OWIWI'fl,
If' thtlJ't! i~i Ol.l\uI' illHlIl'ltllcO ill thpl1111ll0 of' an UHHocilll!hll
01' COI'pOI'Ut\OIl of' pt'oporly OWlHlI'R eovnl'ing t1Hl Hunw
pl'ol""'ly '''l\''"'IHI hy this policy, Uw othor insul'une"
lIpplioH fi,'"'"
(1:0 PERMISSION GRANTED TO YOU
o
Covol'ug(J applios eVon whon your doscrihud dwolling is
vueu"t 0" unoeeupllld, ex"ept whel'o limited under Pm';/"
W" IIISIl/,(' A{iaillsl,
You may mllke oltol'ations, additionH und I'tlPllirs to
yom building, nnd cOlOplllte stmeturos undol' eOIl'
nt.l'lwtion,
You mny wnivo youI' r'i,.{hts to l'{!COVOI'Y against nnothm'
involving tllll insul'ed pl'Opol'ty. 'J'hiH mu~t bo dOll(! in
writing prior to n ImH!.
(14) RECOVERED PROPERTY
If we' hllve mncle paymont. on propel't.y whl"h has IlItol'
hoon .'eeovel'od hy you 01' us, you ur we willllotil'y tho
other of'thu I'HCOVOI'Y. You havo n l'ig'ht to tho I'ocovm'ed
I"'op'"'ly, If you oloct t.u huve tlw pl'OpOlty, YOII will
I'epay 119 t1lllllll111unt 01' 0111' puyment to YOII,
(Ifi I SUIT AGAINST US
Wellluv not Iw nuod ullloss there is I'ull compliane(, with
all th" [""Ill" ol'thiB poliey, Suit must. be hl'Ought within
olle yeul' (V ^~,2 yelll'n, MD-~ yelll'H) unel' the lOBS 0"
dnlllflg'o oceu,'H,
(Hi) YOUR DUTIES AFTER A LOSS
III '''Ise ol'lI eovol'od 10sH, you must p"dill'ln tho I'ollowiu!(
duti(lH:
(n) !(ivo liS 01' 0111' ^genllmlOediute notle,!. II' a
theft IOSB, 111"0 notify the pulieo;
(hi pl'oled tho pl'llpmty fl'fllll fUl'l.hOl' domo!(e, If
1ll11,ossllry 1"11' pl'opo,ty p,'otnetion, muke 1'(lU,
HOllahllll'llplll"H und keop u I'lleOl'd or 1I11.'epoil'
costs;
(el I"II'niHh 1I "olOploto illvontol'Y ol'dllllluglHl pl'Op'
"I'l.y illeludiul: q\ltmtily, IIdUlI1 ellsh vllluu IInd
amuunt of Iw.m clnimod;
c
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12
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I I' . , '
(d) Pl'()( UCI! 101' oXllrillnaUolI, with porllllsHlO1I to
(:opy, 1IIIII(loks of necoUlltIt. bills, IlIvolells, 1'(,.
colpts IIlId othor vouehors liS WOIIIIIY reaHOII-
ably I'oqulI'o:
(0) show UN or our roprosont,ntlvo tho dUlIIlIgod
propOl'ty, UH onoll us IllIlY bo fllusollubly 1'0-
qulr(,,):
(I) Hublllit to IlxlUlIlllntlolls undOl'outh olld sll(n II
trulIRcl'ipt of tho 1I1l1ll0;
(g) Hond UN, wlthill 60 dllYH 1I1l.0I' tho 101lH, YOUI'
RII(1I0d Ilnd Hworll to proof of 10Hs HtUtOlllollt
whleh illdlldllS:
I, tllllO IIl1d e/lURO of loss;
2, YOIII' IntoroHt III tho property unfl the
Intorollt of ull others Involvllll:
3, IlIlY '"lcumhrllnces 011 tho proporty;
,.)
4, othor polleioR ~hieh nuiy COVOI' tho 10Rs;
0, /lny chollgon III tiUI', USIl, oeeupaney or
possoRRion ol'tho proporty which oecUl'rod
durlllg tho polley tOI'Ill;
6, whon roqulrod by U8, Ilny plnns, Rpocllieo.
UonR Illld ostlllllltos for tho 1'01'1111' of tho
d/lmllllod hUlldlng;
7, tho illvontory ofdllll1lll(od pl'llporty UH pro.
pored III (16) (c):
R, receipts for uny /lddltionlllllvlng costs us a
. rosult of tho loss, alld rocords of portlnont
rOlltulloss;
{J, III casoofclullll undOl'Cl'editCol'd, Charge
I'late, Checlll"fJ/:jf"''Y & COUI/lclji,it MOlley
1'1'011'1'11011, IIn Iltlidllvit stnlinl( 1l1ll0unt,
tilllo Ilnd cmlSe of loss,
SECTION II-HOME AND FAMILY LIABILITY PROTECTION
PERSONAL LIABILITY COVERAGE_
OUR PROMISE
We will puy 1111 Hums up to the alllount showlI Oil the
Declllrations, whieh unyone wo p,'oteet hocolllos
I"gally obllguted to PIlY liS dllllllll(es because of I:odily
Injury or property dlllllogo resulting fl'Ollllln ocem'.
I'cneo durinl( the policy period, We will PIlY for enly
bodily Injury 01' PI'o"erty dnlllnge eoverod by t.his
policy,
We mllY investigatt, or set.t,lc any e1uilll or suit fOJ'
danUll(es against nnyone We proteel, at our expenso,
I I' nnyolle we pl'oteclls sued for dnmllges because of
bodily injury Or "roperty dnmnge eovered by this
policy, Wl1 will provide a defonso with a Jllwyer Wl1
choose, even if the Illleglltlons lire not true, We llI'e not
ohlil(atod to PIlY Ilny dalm or judgment 01' defend any
suit if we hllve Illready used up t.he alllount ofinsul'Onee
by paylnl( a judl(ment or sel.l.loment.
MEDICAL PAYMENTS TO OTHERS
COVERAGE-OUR PROMISE
We will pay t.he neeessOl'y medil1nl expensos ineurl'ed
or mcdiclllly dotl1I'llIino(1 within t.hroe Y'"I1'S fl'Om the
dllle of an Ilceident eausing bodily injury, This three-
yelll' limitlltion does not apply to funer'al expenses,
This eovol'/lgc doos not apply to you Ill' .'egullll' msidents
of ~'Olll' household, othOl' lIllln resldenl,e mllJlloY'll1s,
To oth,"'s, Wl1 will pity only in the folloWinl( situntions:
(II To a person on lIn insurod locution with the
pfll'lnission of nnymw we Jlrotect; or'
(21 1'0 a person ofT lIn insured location Ift.he bodily
injury:
flll fll'isos out ofa condition on nn instlr"d )()cn~
lion or' ndjoinilllr wnYH;
(b) is (In used hy the lIctivities of allyone we pro.
tnct;
(c) is l'llused hy a residence employel1 in the
eOUl'se ofempleymont by unyollc we 1)I'ot(let;
(ci) is cllus"d hy nn Ilnimalanyolle we protect
owns or is caring fOI',
Pllyment undor this covel'/lge is not on admission of
lIahility by us or nn,yono wo p,'otect,
WHAT WE DO NOT COVER-EXCLUSIONS
PERSONAL LIABILITY COVERAGE
MEDICAL PAYMENTS TO OTHERS COVERAGE
We do not. cover under PasO/lal Liabilily Covcrage and
MI'dical Payments 1'0 Otl",l's Covl!/'agc:
(1) Bodily injury or property domnge expeeted or
intended by anyone we "rotect,
(2) Bodily Injury Or properly damage llrising out of
business pursuits of unyone we "I'otoct,
We do cover:
(0) aetivit.ios normally considered non-businoss;
(b) bushwsH pursuits ofslllespcl'sons, colloetors, X
nlOssengel'8 and e10rieal otliee workers em.
ployed hy others, Wo do not eo vel' installation,
dplllonstl'lllion and HUI'vicing OPDl'utions;
(c) bllsln(\ss pUI'suits of(iducators whiloelllployod X
hy 0111("'8, including cOl'poral punishment of X
pupils:
(d) incid(Jntal busin"sH activitios of Ilnyone WO X
proleet, Theso inelude bahysit.ting, cllddying,
Illwn CHf'C, newspapel'(lelivef'Y and othel' siml.
Inl' netivitios;
13
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x (0) tho ownorshlp of nowlY'lIcqulrod ono 01' two
. family dwellings, but only for II period of 30
.' connflcutlvc dayn IIftor IIcqulsitlon unlo,," de.
scribed oil thc Doolllratlons,
(:J I Bodily Il\Iury or propcrty dlllna/l'cllri"ing out of
tho rental or holdlnl! for r(mtlll of tho rcsidentlO
Ilromises by anyollC we )lroteet,
Wo do C/lVor if tho I'osldenoo promises i":
(II) occllaionlllly rontod or hold for rontlll to other"
as a rosldenco;
(h) ronted or hold for rontal in pnrt n" n ro"idonco,
unlos" for tho rwcommodntion of moro than
throe 1'000101'801' bonrdor";
(cl I'Ontod or hold for rontnl ill part a9 nn oi1ico,
"chool, atudio 01' privato g!ll'ago,
(~, Bodily injury or property damnge nl'ising out of
lIwl'ondering or foiling to rondoI' profes9ionnl "01'.
vices (otllllr thnn p!'Ofe"sionnl ",,,'vi CO" l'ondol'Od hy
odllontors),
(r" Bculily injury or p.'operty dumugo mi"ing Ollt of
lIny pl'emises ownod hy or rented to anyone we
protect which is not an insured location, 'I'his
<'xelllsion doml not apply to bodily injury to II
o'"sjdenoe employce al'ising Ollt of and in the
O"'lI'se of employment by anyone we protect.
iii J Bodily injury or propel.ty damage arising out of
tho ownership, maintennnoe or uso of:
(nl uireraft;
(hi nny land motor vohicle owned or operated hy 01'
I'ented or loaned to anyone we protect.
We do covor motor vehicles if:
I. used exclusively at an insurod location
and not subject to motor vehicle registra-
tion;
2, kept in dond stol'Oge at an insured locu-
tion;
3, a recreational land motor vehicle not de.
signed for Use on publie roads while at an
insured location;
X 4, a golf cart, wherever usod 01' looated;
X 5, a lawn or fmm type vehicle 01' snowblowor,
wherever used or located, if not subject to
motor vehicle registration,
(cl watercruft:
X I. ownod by (\1' frequently I'ented to anyone
we protect if it has inhoard 01' inhoard-
outdrive motor po\\'er of more than 75
horsepowel';
X 2, owned by 01' f,'equently rented to anyone
We protect ifit is a sailinll vessel 26 feet
or more in length; 01'
3, powered by one or Illore outboard motors
X with mOl'e than 75 total horsepower owned
by anyone wo pl-oteet nt the beginning
of the policy period,
-I
However, ifunyone we proteet ncquires X
watercrllft, regardless ofho.'sepower, cov-
erage uppUes during tho policy period, Jr
the watercraft is acquired within 60 days
of the end of the policy pOriod, We will
provide covorage for a maximum or 60 .
days, We have the right to eharge 3'ou un
additional premium,
Exclusioll (6)( c) doos not apply while the water-
craft Is stored on shore,
Exclu,.ioll (6) does not apply to bodily injury te any
residenee employee arisi ng out of and in the course of
employment by anyone we protect,
We do not pay for' Iinbility adsing out of the negligent
IJIltrustment of an aircrnft, motor vehicle or wntel'cl'Oll.
coverod undor this policy,
We also do not covel' statutodly imposed vicarious pa-
I'cntn/liability fOI' t.he nctionsofa child ol'lninor using an
nircraft, motor vohicle 01' watercraft excluded above,
(7) Bodily injury 01' propel'ty damage nl'ising out of
war (declfll'ed or undeolarod), civil war, insul'I'ee.
tion, reboil ion 01' revollltion,
Discharge of a nuclear woapon is considel'ed a
warlike "01. even if accidental.
(8) Bodily injury and proporty damage which arises
out of 01' results from a oommunicable disease 01'
condition tl'flnsmitted by anyone We proteet to
flny other person through n parasite, virus, ba~te.
ria or any othor org~nism,
(9) Exoept as pl'Ovided in pfll'agraph 2(c) under "What .
We Do Not Cover. Personal Liability alld Medical
Payments To Others Coverage. bodily injury or
propel.ty damngc which arises out of the sexual
molestation, corporal punishment 01' physical 01'
mental abuse by anyone we protect,
(10) Bodily injury and property damagewhioh arises
out of the use, snle, manufacture, delivery, transfer
or possession by nny pel'son of 0 Controlled
Substanee(s) as defined by the Federal Food and
Drug Law u/. 21 U,S,C.A. Soetions 811 and 812,
Controlled Substnnoes include but are not limited
to cocaine, LSD, marijunna and aU narcotic drugs,
However, this exclusion does not apply to the legiti.
mate use of prescription drugs by a person follow.
ing the orders of a licensed physician,
(Ill Bodily injury nnd property damage which arises
out of the discharge, disposal, ,'elease or escape of:
(n) vapors, fumes, acids, toxic chemicals, t.oxic
liquids 01' toxic f(nsses;
(b) waste materials or othel' irritants, contami.
nants 01' pollutant,s,
We do not covel' under Persollal Liability Coverage:
(I) Liability assumod under any oral contractorngr~e.
mont, 01' by contract or agmement in connectIOn .
with any business of anyone we protllet,
14
(l!) I.lnblllty 11II' YIIIII' Ilburll ul' ony IUHH OHH08smont . ,
(d) rO/lsunablo oxponses incurred by anyone we
chorgod 1~"'linHt II11111tllllborH Ill' /In /lHlKlClation 01' protoct lit our requost. This Includes actual
~. COI'puratiulIlIl)"'IIII1I1't.,V IIWllorH, 'l'hlH OXcluHlun does loss of oarnlngs (but not loss of othor incomo)
nllt /lpJlly (IIA, diU''''"II..,~o,'o W" Will Pay. (I)) I,(),.,~ /lnd vacation time or other benefit loss \.1'1' to
:A AO'I"Ollll"'I, oS"ot/"'11 ul'thJH polit,y, $100 pOl' day for helping us in the investigation X
(:1) fJI'()lllll'ty daUIIIII(" tllll'up"rl"Y uWllod by IIlIyol\e IIr dofense of any claim 01' suit;
',..'
wo IW()to.,t, (0) all Intel'ost un the full amount of any judgment
(4) f'rollOl'ty d'UIIIIII'" tlllll'lIpm'ty runtod tll, uccuplod on a suit we defend until we oITerordeposit in
ut' nOlld by, "" In th.. C/lI'O uf Ilnyolle we Pl'otoct, court thc amount fur which we aro liable;
"'hiH IlXOhlHllI1I dUllH nut IIpply to Pl'op..rty dumllge (0 prejudgment Interest owa,rded on the amount
(l/lUHtld hy nrtl, tlXplllHltln, Huni(l blllllllllrRmoktl, 01' by ofthejudglllent we pay, ffwe oITer to poy the
l( 'I""'dllntlll dhl/!hlll'l{llllr wntor frulll a waterl",d III' /lpplicable amount of insurance, we will not
IIq 11I11'1 II III , pny any prejudgment interest for the period of
In) Illlellly I nJIII'y to any pllrtllln eligible to recolve any time aft"r tho offor,
bll'lHlHs I'Il(lult'ed to ho pl'Ovid"d or Yoluntul'ily (2) DAMAGE TO PROPERTY OF OTHERS
III'ovld",' hy IInyone W(J proteet undor uny wlll'k- We puy, on II l'Ilplaconwnt cost busis, up to $1000 per X
;11'11' "Ompt!lllllltlon 01' o"onpational dlsoaso law, oCCOJ I'I'0nee for property c1alllnge to IH'operty of oth"rs
(III /leI/illy IIlJIlI';\' 0" 11I'opl'rty dalllng" for whieh '''"'Rod hy Unyollo w" proteet, This coyel'uge alRo X
"..yuno w.'IH;oh'l~t is COVl!f'ud under any nudunr appli"s to prop"''!yofotherR in the P03sosslonofanyone
1I/1H1'IlY IInbillty polley, ",' would he (love rod if Its Wl' protoot,
IInulIllIl" of irIHII"anCI! had not.l",,,n oxhausted, W" will not puy 'hI' I',"ol""'ty dumnge:
I 'lId"r M,'di"oll'uYIIWlIls '/;, Olhe/'s Couerag" we do not (u) to thl! oxt"nt of !lny nmount l'e(lovol'able undor
t~OYflt': Seelioll I of thiN polley;
(I) lI;ullly InJIlI'y to U reslclen"o employee if it (h) "auNerl illtl!ntiol1tllly hy nnyone w" I"'oteet
OC!""'" oil' IInlnslII'ed loeation and doos not nris" who hns attained the age of 13;
out ,,1',,1' in t1wuoul'se of employment hy nnyone We (c) to pl'Oporty owned by anyone we proteet;
,.roh,.,t,
(m 1I0dlly Injury to uny person eligiblo to rocelve any (d) to property ownod hy 01' rent"d to a tenant of
""nonts requlrod to be provided or voluntarily anyone we proteet or a resident of YUlll'
pl'ovldlHlundor any workers' compensation or occu- household;
prltllllllll diseMe luw, (e) arising out of:
(:I) 1I1.c1l1y injury from any aucl"ar reaction, radia- l. an act 01' omission in connection with a
(.inn 01' l'udlOtlCtivo contamination, or any consc- pr"mises (othor than an insured loca-
'1UIl/teo of any of these, !lon) owned, rented or controlled byany.
one We protect;
WHAT WE ALSO PAY 2, business pursuits; or
I'IIYlllollt lilr the following is In addition to the amounts 3, ownership, maintenance or IIse ofa motel'
nf 1 nSIII'1In"(I shown on the Declal'lltions, vohlcle, aircraft or watercraft, We will
(1) CLAIM EXPENSES puy for property dutnage to a land motor
vehicl" designed for recreational IIse oIT
WOpIIY: public roods while In the possessien of or
(1111111 /!xp"nsos we incur and all cests ngainst caus"d by anyone we protect if:
nny""., WIl proteet In a sllit we defond; a, not slIbjoct to motor vehicle registra-
(hi p"llInlllll1S Oil honds in n suit We d"folld, but not lion, and
""' hond Ulllounts grl'lItel' than the limit fllr b, not owned by anyone we protect,
I'''/'s'''wl UII/Jilily CoveN/go, We will also pay (31 FIRST AID EXPENSES
X up I,ll $f;oo for ench bail bond required of any. We pay reasonable "xp"nses 1'01' Iirst aid to other persons
onCl w., 11I'oh'et beclluse of nn a(lcident 01' and animals nt. the time of an IIceident involving anyone X
t"/llli!, viollllilln nrisinl( out of tho u"" of /I
I'/!hielu (,ov(lI'"d by this policy, W" have no we pro teet,
ohlilllltiOll to IIpply lill' 01' fUI'niRh bonds; (4) LOSS ASSESSMENT-,PERSONAL LIABILITY
X ((" 1'/!lIsonabl(, lllwy"rs' foos up to $50 that any. COVERAGE
U1U' we Ilrotoet Incurs be"/luse or arrest I'e- See Loss Asse,.smclll, plII'agraph (9), Section I, Addi.
Rlalling f,'olll an accident Involving n vohicle lio"ol Lo....".. We Will Pay,
CllVe,'Il(! by this polley;
15
RIGHTS AND DUTIES-CONDITIONS
" '11) BANKRUPTCY OF ANYONE WE PROTECr
Bankruptcy or insolvoncy of anyollc we protcct
or anyone we protect's estate will not relieve us
of lIny of oW' obligations under this policy,
(2) DUTIES OF AN INJURED PERSON.-MEDICAL
PAYMENTS TO OTHERS COVERAGE
The injured person or someone nctinl~ on bohalf of
that person will:
(8) give U8 written proof of claim, liB BOOII liB
possible, under oath if required;
(b) sign papers at 0\11' request to allow us to obtain
medical reports and copics of records,
The injured person will submit tomontal and physi-
cal examination by doctors selected by us liS often
as rellsonably required, We may pay the injured
porson or the provider of the services,
(:n LIMITS OF PROTECTION
This insurance applies separately to anyonc we pro-
teot, Regardless of the number or people we protect,
claims made 01' persons injured, our total liability undOl'
Personal Liability Covcl'Clge for damages resulting from
one occurrence will not exceed the amount shown on the
Deelllrations, All bodily injury and property dam-
age resulting from one accident or from continuous 01'
repeated exposure to the same general conditions is
considered the result of one OCCUl'l'ence,
Our total liability under Medical Payments 7'0 Others
Coverage for all medical expense payable for bodily
injury to anyone person will not exceed the "Each
Person" amount shown on the Declarations,
(4) OTHER INSURANCE-PERSONAL LIABILITY
COVERAGE
This insuranco is excese over any other vlllid and collect-
ible insurllnce, However, ift.he other insurance is specifi-
cally written as excess insurance over this policy, the
limits of t.his policy apply first.
Ifat t.hetime ofloss t.here is other insurance in the name
of an association or corpOl'ation of property owners
covering the same pl'Operty covered by this policy, the
insurance afforded by this policy shall be excess ove,' the
amount recoverable under such other insumnce,
(5) SUIT AGAINST US
'fhe terms of this policy must be complied with before
suit may be brought against. us,
'fhe legal liability of anyone 'We protect must be
determined beforo Juit under Personal Liability Covel'-
Clge may be brought against us, This determination may
be by a court oflaw or by written agreement of all parties,
including us,
No one has the right to make us a party to a suit to
det.ermine the liability of anyone we protect,
(6) YOUR DUTIES AFTER A LOSS
When there is an accident or occurrence anyone
we protect will:
(n) notify us or our Agent., in writing, as soon as
possible, stating:
1. ,YOUI' name and policy number;
2, tho time, place, and circumstances of the
accident 01' oeclllTcnce;
3, names and nddrosso" of injlll'ed persons
and witnessos;
(b) send us promptly nny papers that relate tu the
accident 01' occul'I'once;
(c) at onr ,'equest:
1. assist in making settlement;
2, help us enfOl'ce any right of recovery
against. any party liable to anyone we
protect;
3, assist in the conduct of suits;
4, attend hearings and trials;
5, secure and give evidence and obt.llin the
attendance of witnesses.
(d) under the coverage Damage 7'0 Property Of
Others, senu us, within 60 days of the loss,
s\Vorn proof of loss, Anyone we protect shall
also exhibit the damaged property if within
their control.
Anyone we protect will not, except at one's own cost,
make payments, assume obligations 01' incur expenses,
other than for first aid to other persons and animals at
the time of the bodily injury,
("
'II,.'
c
L
16
, "
SECTION III-RIGHTS AND DUTIES-GENERAL POLICY CONDITIONS
.'
"I
Wa, YOII nlld nllyono also pl'Otoetod by this policy must
do cm'tnln thlnus Inlll'dol' f(lI' tho torms of tho policy to
Illlply,
(l) ACCOUNTING (R,.;c /rIHUI'WICC Exehallge Only)
)( 1'11'10 Indolllnlty COlli pliny muy koop up to 25% of tho
Ilromlulll wl'itUlII 01' llUSUIlUld by I';!'io Insurunco Ex-
ehullflo us llcompllllsution fill' (A) Illl(iOmlng und ucting us
AUlII'llOy-ln-I"uct, (II) Illlllllluinlll,ho businoss ulld II ffui I'S
orI\l'lo Inllul'unco lixchllnuo, it,llllffiliutos und subsidial'-
108, nlld (C) puylnll gmltll'nl udmlnistrlltivo oxponslls,
lndndhlll sulus (:omllllssions, sulurius und employee
huuoOts, tuxus, l'IJ"t, dupl'oclntion, supplios Ilnd duta
prm:ossl,,!'.,
'l'lwl'ollt ofthu pl'luniulll will be placod on the books oftlw
Jo;!'io Insul'Ilnee )':Kehanlle, WI' will doposit 01' i"vost this
IlInount as p",'mitt.od hy law, 'I'hi" amount will be us",1
to pny IO!iSeH, IOHR "adjuHlllHlnt OXpOllSOS, invm~tmont
llXPOIHIUS, dHma~~ofi, logal (lXpenHCS, COlll'l cOHl~i. taxml,
IHIHt!HHIlUmls, IitlmHOH, f{l(!H, und oUwr govol'nnwntal
nnOli lint! ChUl'gUH, l!stahlishrmmt of' rmwrVOH ond SUI'-
plus, und I'elnsul'llnco, and may be used fOI' dividends
unet ntlwr pUrpCJHOH 11~l'io Indemnity Company docides
llI'O to Uw nclvantngo of the Subscl'ibors,
(2) ASSIGNMENT
)
Int'lrest in this poliey may be transferred only with our
writton consent.
If you die, Uw policy will covel':
(0) Rnyono we pt'oteet who isumember of yo III'
housohold at the time ofyollr death, but only
while a resident. of the resldenee promises;
(bl anyono hoving lawful possession of insured
pl'opelty until 1I I'epl'eselltative is appointed,
but only until the end of the poliey pm'iod
during which your death occurs;
((0) .1'0111' ler,all'ep,'esentative, but only while pel'-
forlllinr, duties as your representative and
only until the end of the policy period dUl'inn
which your death occlll's,
(3) CANCELLATION
Your Right to Cancel
Vou may cancol this policy by mailinll 01' delivl!I'ing to
our Allen! or us written notice statillg at what futul'e
dale you want tho cllneellotion to take offect, We may
\l'aive these requirements hy eonfinning tbo date of
canl:ollation to yau in writinr"
Our RighI to Caneei or Refuse to Continue
We nla.l' cancel or mfllHo to continue this policy by
mailinll you wl'itton notico stnting the eOective date or
our nction, 0111' nction will comply with the laws of the
fita!e in which your resldonee premises is locntcd, Wo
"'SOI'\'" till' rillht to cancel fOl' your noncompliance with
our premium payment plans, We do not waive our rillht
to !'luwcl, ""en ifw(, have aceeptod prior' lale pnyn",n!s,
Ollr eancellation 01' I'ofusal to continue this policy 11'111
not take effoct until at least 30 daYB (Maryland-45 days
exeept fOI' non-pllymont of premium) lIftor we send it,
Melhod of Giving Nollee
Mnilin[( llotiee to tho address shown on the Deelara-
tions will 1m sufficient proof of notice, The policy period
will end on tho dat.e and tillle stat.od in the notice,
Retllf'll of Premium
If' your policy is ellncoled by you 01' 118, we wl1l return
the 1"'0 I'I\taunused share of your pl'Olnlum, Cancella-
tion will he olfective even if we have not givon 01' offered
any wtul'n premium.
(4) CONCEALMENT, FRAUD OR
MISREPRESENTATION
This entire policy is void if, before or after aloss, a11yollo
we pl'Oteet has intentionally concealed, or misl'epl'e-
sonlt.dl any material fuet or circumstanco concerning
this insurance,
In U", event or a fmudu!ent claim, wo will not make
paymenl flU' the loss.
(5) COOPERATION
You p.gl'oe to cooperate with us by:
(a) truthfully completing and promptly returning
quostionnail'es and audit fOl'llls about this in-
HlIl'anCe;
(h) pel'lIlitting and helpinll with inspections and
audits; and
(c) complying with spocifie recolllmondations to
impl'ove YOUI' risk,
((i) HOW YOUR POLICY MAY BE CHANGED
'l'his policy conforllls to the laws of tho stato in which
your "Ilsidenee premises is located, If'the laws o!'the
statll ehnnge, this policy will comply with those chllnges,
You may change YOUI' policy by asking UB, Your re-
quest must contain onouuh information to identify .1'011,
Asking our A!:ent is the sallie as asking us, Ifwe agl'eo
with YOlll' \'llquest, Wll wiJI then issue an Amended
Declal'ations,
We will give you the bonofit of lIny change in covel'l!ge
made by us, if it does not require additional pl'omium,
This chango will bo offective as of the date we imploment
the change for YOII in your state,
Iftlw infol'lnlltion wo use to determine the premium for
your covel'ago(s) ehullr,os during tho policy period, we
may adjust your premium, Premium lIdjustments will
I", mad" using rules and I'Iltes in effect fOl' 0111' use,
(7) NO CONTINGENT LIABILITY
(Erie IlIsurallce Excha'lge Only)
You will not he'assessed for t.he losses ofSubscl'ibors,
17
I-=-'
"1',itfH (t)
Exhibit 0
8, The Plaintiff's interpretation of the Erie policy constitutes a conclusion of law to
which no response is necessary, Furthermore, the facts of the underlying complaint are not
limited .to Intentional acts but rather unintended injuries are also alleged against the Defendant,
Larry ZIM,
9, It is admitted,
10, Denied, The averement in paragraph 10 is a conclusion at law to which no
response is required,
WHEREFORE, the Defendant, Larry liM, respectfully requests This Honorable Court to
issue an Order requiring:
(a) The Erie Insurance Company continues to cover the remaining claims of Mr,
Brymesser against Larry Zinn under the aforementioned insurance policy
(b) Erie Insurance Company has a continuing obligation to defend Larry ZIM against
the claims asserted by Mr, Brymesser,
(c) Such other relief as This Honorable Court sees fitting and just,
t-/EW MATTE.!!
1 1, The above-mentioned Erie Insurance policy covers and indemnifies the insured,
Larry Zinn, from liability resulting from bodily injury 10 another (page 3 of policy),
12, The same policy provides the insured, Larry Zinn, with a defense by an attorney to
defend a suit for damages due to bodily injury (page 13 of the policy),
13, The Defendant, Larry Zinn, is the subject of Craig Brymesser's civil suit referenced
by No, 98-51 19 of the Cumberland County Court of Common Pleas, .
8, The Plaintiffs interpretation of the Erie polley constitutes a conclusion of law to
which no response is necessary, Furthennore, the facts of the underlying complaint are not
limited to intentional acts but rather unintended injuries are also alleged against the Defendant,
LarTY Zinn,
9, It is admitted,
10, Denied, The averement in paragraph 10 is a conclusion at law to which no
response is required,
WHEREFORE, the Defendant, Larry Zinn, respectfully requests This Honorable Court to
issue an Order requiring:
(a) The Erie Insurance Company continues to cover the remaining claims of Mr.
Brymesser against Larry Zinn under the aforementioned insurance policy
(1'>) Erie Insurance Company has a continuing obligation to defend Larry Zinn against
the claims asserted by Mr, Brymesser,
(c) Such other relief as This Honorable Court sees titting and just.
NEW MATTER
11, The above-mentioned Erie Insurance policy covers and indemnifies the insured,
Larry Zinn, from liability resulting from bodily injury to another (page 3 of policy),
12, The same policy provides the insured, Larry Zinn, with a defense by an attorney to
defend a suit for damages due to bodily injury (page 13 of the policy),
13, The Defendant, Larry Zinn, is the subject of Craig Brymesser's civil suit referenced
by No, 98.5119 of the Cumberland County Court ofCornmon Pleas,
"
" ,
<.
"
4.
On April 2, 1997, Plaintiff was lawfully on the premises of his employer as
a part of his regular worl< shift from 11 :00 p.m. until 7:00 a.m.
5. While engaged In his work. dutles for Roadway Express, particularly
completing some paperworl<, PlaJntiff was bending OV\3r a desk writing.
6. As PlaJntiff was bending over the desk, and In the' presence of John
Horoschak, the Defendant kicked the Plaintiff In the buttocks.
7. While only Intending to humiliate and embarrass tho PlaJntlff, the Defendant
, kicked the PlaJntiff with such great force as to cause the PlaJntlff physical damage.
8. Defendant's kick caus9cf such paln so as to cause Plalntiff to leave work
early that day and to seek medical attention.
FIRST COUNT
BA TTERY
9. Plaintiff, Craig L. Brymesser, hereby incorporates by referen~ paragraphs
1 through 8 as though more fully set forth herein.
10. On the aforesaid date, time and place, Plaintiff, Craig L. Brymesser, was
intentionally touched and struck by the Defendant upon his person without provocation
or justification Intending to cause Plaintiff humiliation and embarrassment.
11. As a result of the <forementioned Incident, plalntlff,was causecj ,to suffer
.
extensive Injuries which were n()t~he Intended result of Defendant Zinn's aotJon but were
a foreseeable consequenco of Defendant Zlnn's actions,
'.
,
...-
"
\..
'.
'.
16. In the alternative, PlaJntlff avers the Defendant was negligent l~ his duties
to Plaintiff, by failing to use reasonable care In his acllons toward PlaJntlff.
17. In the alternative, PlaJntlff avers the negligence of the Defendant was such
that he should have refrained himself from kicking Plaintiff.
18. In the alternative, Plaintiff avers the negligence of the Defendant consisted
of his klcklng Plaintiff hard enough to cause extensive Injuries.
19. In the alternative, PlaJntiff avers Defendant was negligent In falling to act as
a prudent person would act to a fellow employee.
20. In the' alternative, Plaintiff avers the negligence, carelessness and
recklessness of the Defendant resulted In the following injuries:
a. Lost wages;
b. Some discomfort walking;
c. Difficulty standing for more than 60 consecutive minutes;
d. Difficulty sitting for more than 60 consecutive minutes; '.
.....
e. Tingling in his leg and foot;
f. Fractured coccyx;
g. Strain of lumbar spine;
h. Required to take medication: Cyclobenzaprlne and
Ibuprofen
21. The full extent of Plaintiffs Injuries are unknown at this time.
"
. " ,
v.
1 IN 'ruE COllR'l' m' COMMON PLEAS OF
I ClIMBERLAND COUNTY, PENNSYLVANIA
I
I
I NO. 97-51.19 CIVII. 'l'EHM
I
CRAIG L. BRYMIlSSER
LARRY ZINN
IN REI DEFENDANT'S PRELIMINARX-QBJECTIONS
BEFORE HESS. J.. GUIDO._lL..
QPIN!ON AND ,fffiQER OF COURT
On September 19, 1997, Plaintiff filed the .instant ,~c:;t.i..qn,..
claiming damages for injuries he sustained at work. The
oomplaint claims compensatol~ and punitive damages based upon the
intentional tort of battery and a claim of negligence. On
October 15, 1997, Defendant filed Preliminary Objeotions in the
nature of a dell\urrer asking that the complaint be dismissed, or,
in the alternative, that the claim for punitive damages be
stricken. Both parties filed briefs and this matter was argued
before the Court on January 28, 1998.1 It is now ready for
disposition.
FACTS,
While engaged at his duties as a mechanic: at Roadway
Express, Plaintiff was kicked in the buttocks by the Defendant
who was a co-worker.' Although Defendant delivered the kick "only
intending to humiliatu and embarrass" the plaintiff,' the
. ~
....
IIn his brief, and at argument in this matter,
agreed to with9raW.tbc, cla,im ,f9r,punitive damages.
therefore, be lltri.cken;" ',' ';IJ',U',' c,ll... : :, ..
. t... ..,..".... _,
,. ,~
'Complaint paragraphs 3, 5 & 6.
'Complaint paragraph 7.
the Plaintiff
It will,
, ~,
~
('flJ .A..
rl-"J "
;' ~CV
~
4 . ". ~.
" ,
NO. 97-5119 CIVIL TgUM
unforeseen (albeit foreaeeablo) aonsequenceo wero sodoua bOdily
injuries to Plaintiff..
!2!.pCUSSION
A demun:er can only be austained where, after accepting as
true all \lell pleaded material and rolevant facta, the complaint
clearly fai.1a to establish the pleadoI:" s right to relief. 1!!.m!!X
Industries, IllQ., v. Aultman, 543 Pa. 38, 669 A.2d 693 (1995).
Using that standard, the negligence claj.m oot forth in Count .11
of the complaint is clearly barred by SecHon 205 of the
Pennsylvania Worker's Compenoation Act. 77 P.S. 572. Section
205 provides:
If disability or death is compensable under this act, a
person shall not be liable to anyone at common law-or
otherwise,on account of suoh disability or death for any act
or omission ocourring while such person was in the same
employ as the person disable or killed, except for
intentional wrong. 77 P.S. S 72
'The act further provides that all work related injuries are
compensable if sustained while the employee is "engaged in the
furtherance of the business or affairs of the employer..s 77
P. S. 5 411 ( 1) . Since pa,t'agraph 5 of the complaint specifically
alleges that Plaintiff was "Engaged in his work duties" at the
...
time the injury was sustained, he would be entitled to
.Complaint paragraphs 7 & 12.
'Admittedly, 77 P.S. 5411(1) provides an exception for an
"injury caused by an act of a third person intended' to injure the
employee bec"!-use of reasons personal to him...." . HQWo;lYer" Siil:V;:~, ".. _ J _ ,',
plaintiff ha's"'spe~1.flbany' 'id~eged in paragraph 7 of the . .'~-;-:-~"
complaint that the i~juries ~~re not intended, this exception ~~. ~
cannot apply..' ,." ,-..""", ,'. ,c'} ~
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NO. 97~5119 CIVn, TBHM
aompensat.ion under: the acL Therefore, a negligence claim
agalnst hin co-work<ll: would be barred by Section 205. J\lbrlqll!;;
:!W Faqan, 440 Pa. Super. 395, 671 J\.2d 760 (1996).
Just as clearly aa sectlon 205 of the act would bar the
Plaintiff's negligence c.:lain1, i1:, goes not operate as a bar to
the claim for battery. Co-employees are iuununized from liability
"for any act or omission... except for j,ntention1!,l wrQillm.'" 77
P. S. S 72. Not only is battery an intentional tort, it is
exactly the kind of conduct which the act intended to exclude
from the umbrella of co~employee immunity. See McGinn v.
YAlloti, 363 Pa. Super. 08, 525 A.2d 732, 735, (1987), Vosburq v.
ConnollY, 405 Pa, Super. 121,591 A.2d 1120 (1991). Therefore,
defendant's preliminary objections to Count I of the complaint
are denied.
AND NOW, this
ORDER OF COURT
/j-:.fl.,.
day of FEBRUARY, 1990, after
argument the Defendant's preliminary Objections are granted in
part and denied in part. Plaintiff's claim for punitive daJllages
, (Paragraph 14) and Count II of the complaint are STRICKEN.
Defendant's Preliminary Objections to Count I of the complaint
....
are DENIED and he is directed to 'file an answer thereto.
By the Court,
Peter J. Russo, Esquire
For the Plaintiffl
s Edward E. Guido J.~
Edward E. Guido, Judg
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Drew P. Gannon, E'quire
~'C)r the Defendant.
3
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8, The Plaintiffs interpretation of the Erie policy constitutes ~ conclusion of law to
which no response is necessary, Furrhennore, the facts of the underlying complaint are not
Umited to intentional acts but rather unintended injuries are also alleged against the Defendant,
Larry Zlnn.
9, It is admitted,
10, Denied, The averement in paragraph 10 is a conclusion at law to which no
response is required,
WHEREFORE. the Defendant, Larry Zinn, respectfully requests This Honorable Court to
issue an Order requiring:
(a) The Erie Insurance Company continues to cover the remaining claims of Mr,
Brymesser against Larry Zinn under the aforementioned insurance policy
(b) Erie Insurance Company has a continuing obligatiorl to defend Larry Zinn against
the claims asserted by Mr, Brymesser,
(c) Such other relief as This Honorable COUrt sees fitting andjusl.
~EW MA ITER
I 1, The above-mentioned Erie Insurance policy covers and indemnifies the insured,
Larry Zinn, tram liability resulting from bodily injury to another (page 3 of policy),
12. The same policy provides the insured, Larry Zinn, with a defense by an attorney to
defend a suit tor damages due to bodily injury (page 13 of the policy),
13, The Defendant, Larry Zinn, is the subject of Craig Brymesser's civil suit referenced
by No, 98-5119 of the Cumberland County Court of Common Pleas.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
- -
(Must be typewritten ard subnitted .in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent Court.
.,.-- ----- ------ --- --. - -- - - - - - - - --...... - -- -- - - - - - - - - - - - - - - -- -... - - -- ------ - -- - ----..--...-- --..,......_-
CAPTION OF CASE
(entire caption must be stated in full)
ERIE INSURANCE COMPANY
VB.
( Plaintiff)
LARRY L. ZINN and
CRAIG L. BRYMESSER
( Defendant)
No. 17"6
Civil TERM
19 .JI
1. State matter to be argued (i.e., plaintiff's mtion for new trial. defendant's
demurrer to complaint, etc.):
MOTION FOR SUMMARY JUDGMENT
2. Iclentify counsel who will argue case:
( a) for plaintiff:
I\ddress:
PETER J. RUSSO
61 WEST LOUTHER STREET
CARLISLE, PA 17013
(hI far defendant:
Address:
SEE ATTACHED
3. I will notify all parties in writing within h<<l days that this case has
bee.n listed for ilrgUnent.
4. Argunent Court Date:
APRIL 7, 1998
~ted: 31~Slq'l
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