Gene's Restaurant, Inc. v. Nationwide Insurance

In this case we consider an insurer’s duty to defend under a comprehensive general liability policy.

The question arises out of the refusal of Nationwide Insurance Company to defend its insured, Gene’s Restaurant, Inc., against a complaint in trespass alleging the willful and malicious assault and beating of one of its patrons, Patricia A. Aschenback. Nationwide refused to defend on the ground of noncoverage. Gene’s Restaurant then filed an action in assumpsit against Nationwide seeking to recover the amount it had expended for costs and fees incurred in defending the trespass action. An arbitration panel found in favor of Gene’s Restaurant. In the de novo, non-jury trial which followed upon appeal, the Court of Common Pleas found in favor of Nationwide and held, as a matter of law, that an insurer may base its decision to defend solely on the allegations of the Complaint. The Superior Court affirmed, 362 Pa.Superior Ct. 642, 520 A.2d 1219, and so do we.

An insurer’s duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiff’s pleadings ...

[I]n determining the duty to defend, the complaint claiming damages must be compared to the policy and a determination made as to whether, if the allegations are sustained, the insurer would be required to pay resulting judgment____the language of the policy and the allegations of the complaint must be construed together to determine the insurer’s obligation.

7C J. Appleman, Insurance Law and Practice § 4683, at 42, 50 (W. Berdel ed. 1979) (footnotes omitted). See also Cadwallader v. New Amsterdam, Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); 14A G. Couch, Insurance § 51:44, at 458-69 (M. Rhodes 2d rev. ed. 1982); 1A H. Long, The Law of Liability Insurance § 5.02, at 5-19 to -39, § 5.04, at 5-41 to -42 (1987).

Following these principles, we make the requisite comparison. Paragraph four of the Complaint in Trespass reads:

On or about January 6, 1976, at or about 1:30 a.m., the defendant ... willfully and maliciously assaulted and beat the wife plaintiff, PATRICIA A. ASCHENBACK, striking her with fists and with great force and violence repeatedly shook, cast and threw the said plaintiff to the ground causing plaintiffs to sustain the injuries and damages hereinafter set forth.

The policy provided comprehensive general liability insurance, including “bodily injury liability,” for “each occurrence.” The definition section of the policy stated that:

“bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom

“occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured ...

Under this definition an “occurrence” is an accident. The willful and malicious assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend. Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954). See also Annotation, Allegations in Third Person’s Action Against Insured as Determining Liability Insurer’s Duty to Defend, 50 A.L.R.2d 458 (1956).

The order of the Superior Court is affirmed.

ZAPPALA, J.', concurs in the result.

PAPADAKOS, J., files a' dissenting opinion.

. Gene’s Restaurant argues that because it neither "expected” nor "intended” Ms. Aschenback’s injuries, Nationwide had a duty to defend. Such a reading ignores the policy requisite that the "occurrence” must be an accident which a malicious, willful assault and beating could never be. In this regard, Gene’s Restaurant's reliance on United Services Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986), allocaturs denied, 515 Pa. 600, 528 A.2d 957, 515 Pa. 601, 528 A.2d 957 (1987), is also misplaced. Elitzky first found the conduct alleged, namely malicious defamation and the intentional infliction of emotional distress, could have been "reckless” as opposed to intentional, and then defined synonymously the exclusionary terms "intentional” and "expected” as encompassing a "desired consequence," “substantially certain to result,” Id. 358 Pa.Super. at 375, 380, 517 A.2d at 989, 991, as would certainly be the case with Ms. Aschenback’s allegations.

. Courts of other jurisdictions have had occasion to consider the question of the duty to defend in assault and battery cases in which the liability insurance policy defined "occurrence" in the exact words as the policy in this case. They too have decided that the intentional torts of assault and battery are excluded from coverage and the insurer has no duty to defend. See Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 44 Ill.Dec. 791, 411 N.E.2d 1157 (1980); Briscoe v. Travelers Indent. Co., 18 Wash.App. 662, 571 P.2d 226 (1977); Hartford Fire Ins. Co. v. Spreen, 343 So.2d 649 (Fla.App.1977); Hebert v. Burton, 432 So.2d 1109 (La.App.1983) (duty to indemnify). See also Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured, 31 A.L.R.4th 957 (1984).