Filed: Mar. 31, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-31-2005 Allstate Ins Co v. Lombardi Precedential or Non-Precedential: Non-Precedential Docket No. 03-3206 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Allstate Ins Co v. Lombardi" (2005). 2005 Decisions. Paper 1403. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1403 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-31-2005 Allstate Ins Co v. Lombardi Precedential or Non-Precedential: Non-Precedential Docket No. 03-3206 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Allstate Ins Co v. Lombardi" (2005). 2005 Decisions. Paper 1403. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1403 This decision is brought to you for free and open access by the ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-31-2005
Allstate Ins Co v. Lombardi
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3206
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Allstate Ins Co v. Lombardi" (2005). 2005 Decisions. Paper 1403.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1403
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3206
ALLSTATE INSURANCE COMPANY
v.
SABRINA LOMBARDI;
MICHAEL P. PICARD; RAYMOND;
KATHERINE PICARD
Sabrina Lombardi,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-CV-1250)
District Judge: The Honorable Legrome D. Davis
Argued: March 10, 2005
Before: SCIRICA, Chief Judge, ROTH and ALDISERT, Circuit Judges
(Filed March 31, 2005)
Steven M. Mezrow (Argued)
Michael O. Pansini
Pansini & Mezrow
1
1525 Locust Street, 15th Floor
Philadelphia, PA 19102
Attorney for Appellant
Michael T. McDonnell, III (Argued)
Ryan, Brown, McDonnell, Berger & Gibbons, P.C.
1600 Market Street, Suite 1416
Philadelphia, PA 19103-7240
Attorney for Appellee
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Appellant Sabrina Lombardi appeals from the district court’s order granting
summary judgment in favor of Plaintiff/Appellee Allstate Insurance Company. The
United States District Court for the Eastern District of Pennsylvania held that Allstate did
not have a duty to defend Michael Picard (“Michael”) in an action brought by Sabrina
Lombardi. We must determine whether the district court correctly granted summary
judgment by deciding: (1) whether the event of September 10, 1998 (the “Event”)
constituted an “occurrence” within the meaning of Allstate’s homeowner’s liability
insurance policy (the “Policy”); (2) if the Event constituted an “occurrence,” whether the
Policy’s Exclusionary Clause precludes coverage; and (3) whether the Policy’s
Exclusionary Clause is against public policy. We have jurisdiction to review the district
court’s decision pursuant to 28 U.S.C. § 1291. We will affirm.
2
I.
Because we write only for the parties, who are familiar with the facts, procedural
history and contentions presented, we will not recite them except as necessary to the
discussion. Pennsylvania substantive law controls this diversity case.
II.
In cases involving both the duty to defend and the duty to indemnify, it is only
necessary to examine the insurer’s duty to defend because it arises whenever an
underlying complaint may “potentially” come within the insurance coverage. Frog,
Switch & Mfg. Co., Inc. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d Cir. 1999). To
determine whether a complaint may “potentially” come within the insurance coverage, a
court must: (1) determine the scope of the insurance coverage; and (2) analyze the
allegations in the complaint. Britamco Underwriters, Inc. v. Weiner,
636 A.2d 649, 651
(Pa. Super. 1994).
In determining the scope of insurance coverage, Pennsylvania law is well settled.
A court should ascertain the intent of the parties as manifested by the language of the
policy. See Allstate Ins. Co. v. Brown, 834 F. Supp. 854, 857 (E.D. Pa. 1993). When the
language is clear and unambiguous, it should be given its plain and ordinary meaning. If it
is ambiguous, it should be construed in favor of the insured.
Id.
Here, we review the district court’s order granting summary judgment de novo,
applying the same test as the district court under Federal Rule of Civil Procedure 56(c).
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See Morton Int’l Inc. v. A.E. Staley Man. Co., 343 F.3d 669, 679 (3d Cir. 2003). The
court correctly held that Allstate is not required to defend or indemnify Michael in an
action brought by Lombardi because the Event did not constitute an “occurrence” within
the meaning of the policy. If the Event did constitute an “occurrence,”Allstate would still
not be obligated to defend or indemnify Michael because the Exclusionary Policy applies.
The Exclusionary Policy is not contrary to public policy. Because we conclude that
Allstate had no duty to defend Michael, it necessarily follows that Allstate had no duty to
indemnify Michael. See Frog, Switch & Mfg. Co.,
Inc., 193 F.3d at 746. Accordingly, we
affirm the district court’s order granting Allstate’s motion for summary judgment.
A.
The Policy defines “occurrence” as “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions during the policy period,
resulting in bodily injury or property damage.” (Dist. Ct. Op. at 6.) The question of
whether something constitutes an “occurrence” must be determined from the perspective
of the insured. See Nationwide Mut. Fire Ins. Co. of Columbus v. Pipher, 140 F.3d 222,
226 (3d Cir. 1998).
For example, in Pipher, an insured, the owner of an apartment building, removed
the doors to a second floor apartment to install carpeting. Id. at 223. She leased the
second floor apartment to a husband and wife while the doors were still removed. A
painter hired by the insured killed the wife.
Id. at 223-224. The husband brought a
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wrongful death action against the insured and others. Nationwide sought a declaratory
judgment that it had no duty to defend or indemnify the insured because the wife’s death
was the result of an intentional murder and did not constitute an “occurrence” as defined
in the policy. Id. at 224. This Court concluded that it is the intentional conduct of the
insured which precludes coverage under an insurance policy, not the acts of third parties.
Id. at 226. Applying that principle to the facts of the case, we concluded that:
[f]rom Pipher’s standpoint, Bernine McFadden’s assault and
death was unexpected, entirely fortuitous, and, therefore, an
accident. Thus, in this case, from Pipher (the insured’s)
perspective, her alleged negligence—the failure to re-hang the
doors to the leased apartment and the hiring of Wood, a
known troubled person—resulted in a tragic accident (i.e., the
unintended and unexpected murder of her tenant Bernine
McFadden).
Id. Accordingly, we held that the murder constituted an “occurrence” within the meaning
of the policy and Nationwide had a duty to defend the insured in the wrongful death
action.
Id.
To determine the insured’s perspective, it is necessary to look to the underlying
complaint.
Id. at 225. Specifically, it is necessary to look at the factual allegations
contained in the complaint. Mutual Ben. Ins. Co. v. Haver,
725 A.2d 743, 745 (Pa. 1999).
Here, Allstate is not required to defend or indemnify Michael because the Event
did not constitute an “occurrence” within the meaning of the Policy. We must determine
whether the Event was an “occurrence” from the perspective of Michael, the insured.
Unlike the situation in Pipher, Michael is both the insured and the tortfeasor and it is
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necessary to look at the Event from his perspective.
B.
Therefore, to determine Michael’s perspective in this case, we must look to the
factual allegations in Lombardi’s underlying complaint. See Haver, 725 A.2d at 745. The
factual allegations of the complaint stated, inter alia, that: (1) the Picards knew or should
have known that Michael had psychological issues and posed a threat; (2) Lombardi was
savagely “attacked, assaulted and battered” by Michael “without any provocation;” and
(3) Michael proceeded to “punch and kick her in the head and face and about the body,
even after she was unconscious, and did inflict severe and permanent injuries to
[Lombardi].” The factual allegations do not aver that Michael behaved “negligently” or
“recklessly.” The factual allegations make it plain that the Event was the result of
Michael’s intentional conduct as defined by the Policy.
Lombardi contends that pleading negligence in the alternative requires Allstate to
defend and indemnify Michael. Although Lombardi brought a negligence action against
Michael in Count II, the direct cause of Lombardi’s injuries was the intentional assault by
Michael. By the express terms of the Allstate policy, Michael’s potential lack of mental
capacity is irrelevant. Lombardi should not be permitted to circumvent the insurance
policy because of the negligence claim, which was an “attenuated, albeit potentially
proximate cause” of Lombardi’s injury. Further, there is no evidence in the record to
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support the negligence claim. There is no indication that Michael: (1) was prescribed or
taking medication before the accident; (2) failed to comply with any counseling
recommendations; or (3) was high on alcohol or drugs at the time of the Event.
Accordingly, Allstate is not required to defend or indemnify Michael. The Event
did not constitute an “occurrence” within the meaning of the Policy because the factual
allegations of Lombardi’s complaint indicate that Michael’s actions were intentional.
C.
Even if the Event constituted an “occurrence,” Allstate would still not be obligated
to defend or indemnify Michael because the Exclusionary Clause applies. The Policy
contains the following Exclusionary Clause:
We do not cover any bodily injury or property damage
intended by, or which may reasonably be expected to result
from the intentional or criminal acts or omissions of, any
insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to
govern his or her conduct . . . .
(Dist. Ct. Op. at 6.)
In United Services Automobile Association v. Elitzky, 517 A.2d 982 (Pa. Super.
1986), the Superior Court of Pennsylvania interpreted a similar clause excluding payment
for bodily injury or property damage “which is expected or intended by the insured” and
concluded that because the terms “expected” and “intended” are susceptible to several
reasonable interpretations, such exclusionary clauses are ambiguous as a matter of law
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and must be construed against the insurer. Id. at 987. As the district court pointed out,
“the holding in Elitzky continues to be the law in Pennsylvania. See Aetna Life and Cas.
Co. v. Barthelemy,
33 F.3d 189, 191 (3d Cir. 1994).” (Dist. Ct. Op. at 7 n. 6.)
Here, even if we interpret the clause in favor of Michael because the terms
“expected” or “intended” are ambiguous as a matter of law, Michael is still precluded
from coverage. The only way Michael can argue that his action was not intentional is by
claiming that he lacked the mental capacity to form intent. This type of justification is
specifically excluded by section (a) of the Policy.
III.
The Exclusionary Clause is not against public policy. Coverage under an insurance
contract may be excluded if it is violative of the public policy of Pennsylvania.
Nationwide Mutual Ins. Co. v. Hassinger, 473 A.2d 171, 173 (Pa. Super. 1984). The
Pennsylvania Superior Court has held that because a person should not profit from his
wrongful acts, it is against the public policy of the state to provide insurance for certain
intentional acts.
Id. Additionally, an insurer may not enforce overly-subtle or technical
interpretations in an unfair attempt to defeat the reasonable coverage expectations of an
insured. Hartford Mut. Ins. Co. v. Moorehead,
578 A.2d 492, 495 (Pa. Super. 1990).
Exclusionary clauses such as the one at issue are common among insurance
companies, and other courts have not found this provision contrary to public policy. See
e.g., Elitzky, 362 A.2d at 367 (interpreting a similar clause without discussing public
8
policy). Indeed, the Policy does not raise the concerns articulated in Hassinger because if
a fact-finder determined that Michael’s conduct was intentional then he should not be
indemnified or defended for the assault.
*****
We have considered the arguments advanced by the parties and conclude that no
further discussion is necessary. The district court correctly granted summary judgment
for Allstate because the Event did not constitute an “occurrence” within the meaning of
the Policy. The factual allegations of Lombardi’s complaint describe an intentional
assault. Furthermore, even if the Event constituted an “occurrence,” Allstate would still
not be obligated to defend or indemnify Michael because the Exclusionary Clause applies
and is not contrary to public policy. The judgment of the district court will be affirmed.
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