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HomeMy WebLinkAbout98-1756 civil ERIE INSURANCE COMPANY, · IN THE COURT OF COMMON PLEAS OF Plaintiff ' CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 98-1756 CIVIL LARRY L. ZINN and CRAIG L. · BRYMESSER, . Defendants · IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT .Before HOFFER, P.J., OI-ER, J. and GUIDO, J A ORD~ER OF COURT AND NOW, _ - -~~~'- ~ ~ , 199~, after careful consideration of the parties' briefs and oral argument, and pursuant to the opinion filed on this date, Plaintiff's Motion for Summary Judgment is granted. By the Court, Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 For the Plaintiff Thomas S. Diehl, Esquire Peter J. Russo, Esquire Griffie & Associates 61 West Louther Street 200 North Hanover Street Carlisle, PA 17013 Carlisle, PA 17013 For Defendant, Craig L. Brymesser For Defendant, Larry L. Zinn ERIE INSURANCE COMPANY, · IN THE COURT OF COMMON PLEAS OF Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA V. ' · NO. 98-1756 CIVIL LARRY L. ZINN and CRAIG L. · BRYMESSER, · Defendants · IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ,Before HOFFER, P.J., OLER, J. and GUIDO, J OPINION HOFFER, P.J.: In this opinion, we address Plaintiff's Motion for Summary Judgment. Plaintiff, Erie Insurance Company, insures Defendant, Larry L. Zinn, under a homeowner's policy. Zinn was involved in an incident with a co-worker, Defendant Craig L. Brymesser, which resulted in a lawsuit, Brymesser v. Zinn, Number 97- 5119, filed in this Court on September 19, 1997. Zinn requested a defense and indemnification under his homeowner's policy. Plaintiff advised Zinn that, given the nature of the claims against him, no defense or coverage would be provided. On March 31, 1998, Plaintiff filed the action, addressed sub judice, requesting a declaratory judgment stating that it has no duty to defend or indemnify its insured, Zinn, in the underlying action, Brymesser v. Zinn. The facts of the underlying action are as follows: Larry Zinn and Craig Brymesser were both employed as mechanics at Roadway Express, Carlisle, 98-1756 CIVIL Cumberland County, Pennsylvania, in April of 1997. On April 2, 1997, Zinn approached Brymesser and kicked him in the buttocks. As a result of the kick, Brymesser suffered injuries, including a fractured coccyx. Brymesser filed 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. While only intending to humiliate and embarrass the Plaintiff, 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. 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. (Plaintiff's Complaint, Brymesser v. Zinn, No. 97-5119). Zinn's homeowner's policy, issued by the Plaintiff, contains the following promise: "[w]e will pay all sums up to the amount shown on the Declarations, 2 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 policy period." Plaintiff's Complaint, Exhibit C. "Occurrence" is defined in the policy as, "an accident, including continuous or repeated exposure to the same general harmful 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." Id. Given the language of the policy and the facts, as pled in the underlying action, Plaintiff asserts that it has no duty to defend or indemnify Zinn. Discussion Motions for summary judgment are governed by Pa. R. Civ. 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 motion, 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. Civ. P. 1035.2. In deciding a motion for summary judgment, the Court will "view 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." Ertel v. 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. Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 59, 639 A.2d 1208, 1210 (1994). "Where a provision of an insurance policy 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 Acc. Ins. Co. of America v. Allen, 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. Id. As a matter of law, "an insurer may base its decision to defend solely on the allegations of the complaint." Gene's Restaurant v. Nationwide 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 nature of the claim itself which determines whether an insured must be given a defense. Donegal Mut. Ins. Co. v. Ferram~ 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." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 444, 660 A.2d 66, 67 (1995). The scope of the Zinn 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 Zinn 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 bodily harm. 5 98-1756 CIVIL Restatement (Second) of Torts §16 (1977). At issue in this case is whether the incident between Zinn 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 policy, it still may be precluded from coverage because the results of the kick were expected or intended by Zinn. In Gene's Restaurant, Plaintiff filed an action in assumpsit to recover costs and fees it paid in defending itself in a trespass action. Gene's Restaurant v. Nationwide 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. Id. The restaurant's liability policy covered bodily injury for each occurrence during the policy period. Gene's Restaurant at 309, 548 A.2d at 247. "Occurrence" was defined in the policy as an accident. Id. The court held that a willful and malicious assault is not an accident but an intentional tort. Id._:. "As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend." Gene's Restaurant v. Nationwide Ins. Co., 519 Pa. 306, 309, 548 A.2d 246, 247 (1988). Defendants in the case at bar cite United States Auto Ass'n v. Elitzky, 358 6 98-1756 CIVIL Pa. Super. 362, 517 A.2d 982 (1986), to support their claim that Zinn is owed a defense under the homeowner's policy issued by the Plaintiff. Defendant's reliance is misplaced. Elitzky dealt with the interpretation of an exclusionary clause, identical to the clause in the Zinn policy, in holding that the insurer had a duty to defend its insureds. Id. Given the holding in Gene's Restaurant, it is clear that we should not reach any interpretation of the Zinn 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 Elitzky is supported by the holding in Donegal Mut. Ins. Co. v. Ferrara, 380 Pa. Super. 588, 552 A.2d 699 (1989). In Ferrara, 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. Id. The Ferrara court did not look past the allegations in the complaint to determine the damage intended by the kick. Id. In the case sub judice, 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. 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. Zinn, and Plaintiff's Motion for Summary Judgment is granted.