                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                    No. 17-3810
                                   ____________

                  UNITRIN DIRECT INSURANCE COMPANY,
                                            Appellant

                                        v.

                              MICHAEL ESPOSITO
                                 ____________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                             (D.C. No. 2-16-cv-05239)
                   District Judge: Honorable Timothy J. Savage
                                   ____________

                          Argued September 7, 2018
            Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.

                             (Filed: October 17, 2018)

Andrew J. Gallogly [Argued]
Margolis Edelstein
The Curtis Center, Suite 400E
170 South Independence Mall West
Philadelphia, PA 19106
       Counsel for Appellant

Stephen A. Durham [Argued]
Durham & James
320 West Front Street
Media, PA 19063
      Counsel for Appellee
                                      ____________

                                        OPINION *
                                      ____________

HARDIMAN, Circuit Judge.

       Unitrin Direct Insurance Company appeals an order of the District Court declaring

that it has a duty to defend Michael Esposito in a state-court personal injury action and a

second order denying reconsideration. We agree with Unitrin that Esposito’s insurance

policy does not provide coverage for the allegations made against him in the underlying

complaint. Accordingly, we will reverse.

                                              I

       In August 2014, Esposito and Mark Anderson were involved in a bar fight.

Anderson later sued Esposito in state court, alleging negligence and assault and battery.

The complaint avers that Esposito, “without provocation, punched, kicked and injured the

plaintiff[,] causing permanent, significant and disfiguring facial injuries.” App. 72. At the

time of Anderson’s suit, Esposito was covered by a homeowners insurance policy (the

Policy) issued by Unitrin.

       After initially defending Esposito subject to a reservation of rights, Unitrin sought

a declaration from the District Court that it had no duty to defend and indemnify Esposito

in the state court action. Esposito filed an answer, denying he assaulted another patron



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                              2
but asserting that there had been an altercation at the bar in which he “was required to

defend himself and his wife against an attack.” App. 89.

       Unitrin moved for judgment on the pleadings, arguing it had no duty to defend

Esposito because the events described in the state court complaint did not constitute an

“occurrence,” which the Policy defines as “an accident, including continuous or repeated

exposure to substantially the same general harmful conditions, which results, during the

policy period, in . . . ‘Bodily injury’; or . . . ‘Property damage.’” App. 43. In the

alternative, Unitrin argued that coverage was barred by two separate exclusions—the

“expected or intended injury” exclusion, and the “physical or mental abuse” exclusion.

       In response to Unitrin’s motion, Esposito argued he was entitled to a defense

because he was defending his wife, who also is insured under the Policy. Esposito did not

address whether the altercation was a covered “occurrence” but instead claimed that his

conduct fell within the self-defense exception to the “expected or intended injury”

exclusion.

       The District Court denied Unitrin’s motion for judgment on the pleadings and

entered a declaratory judgment that Unitrin had a duty to defend Esposito in the

underlying suit. The Court found that the conduct alleged in the state court complaint was

not an “occurrence” under the Policy. It nevertheless held that Esposito was entitled to

coverage because the conduct fell within the self-defense exception to the “expected or

intended injury” exclusion. In the District Court’s view: “Although the injury-producing

conduct alleged in the underlying action does not fall within the policy definition of an
                                               3
occurrence triggering coverage, the policy exclusion for intentional conduct expressly

provides coverage when the insured acts in self-defense or in the defense of others.” App.

9.

       Unitrin moved for reconsideration, arguing that the District Court had erred by

looking beyond the factual allegations of the complaint to consider Esposito’s self-

defense claim. Unitrin also contended that once the District Court determined there was

no “occurrence,” its work was done and it should not have addressed the self-defense

exception. The Court denied the motion for reconsideration, and this appeal followed.

                                            II 1

       The Policy states that Unitrin will indemnify and defend a claim made or suit

“brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property

damage’ caused by an ‘occurrence’ to which this coverage applies.” App. 58. And it

defines an “occurrence” as an “accident” resulting in bodily injury or property damage.

App. 43. “Accident” is not defined in the Policy, but the District Court defined it as “an

unexpected happening causing loss or injury which is not due to any fault or misconduct

on the part of the person injured but for which legal relief may be sought.” App. 13–14

(quoting Webster’s Third New International Dictionary, Unabridged (2017)). The Court



       1
         The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291. “We review the District Court’s interpretation of the insurance
policies de novo.” Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214, 219 n.4 (3d Cir.
2006) (citing N. Ins. Co. of N.Y. v. Aardvark Assoc., Inc., 942 F.2d 189, 191 n.2 (3d Cir.
1991)). The parties agree that Pennsylvania law applies to this case.
                                             4
concluded that because the conduct alleged in the state court complaint was not

accidental, it did not fall within the Policy definition of an “occurrence.” App. 15. As the

Court explained, “because [the plaintiff] alleges in his complaint that Esposito acted

intentionally and not accidentally, there is no occurrence triggering personal liability

coverage.” Id. (emphasis added). Esposito has not challenged that conclusion on appeal.

       After finding no coverage under the Policy, the District Court should not have

considered whether any of the Policy’s exclusions (or exceptions thereto) applied. Simply

put, exceptions to policy exclusions cannot create or expand insurance coverage. See

Bryan Bros. Inc. v. Cont’l Cas. Co., 660 F.3d 827, 831 (4th Cir. 2011) (“[I]t is elemental

that exclusions and exceptions in an insurance policy cannot expand the scope of agreed

coverage.” (citations omitted)); Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 627

(9th Cir. 1996) (“If coverage does not exist under the insuring agreement, the inquiry is at

an end. There is no need to look to the exclusions because they cannot expand the basic

coverage granted in the insuring agreement.” (citation omitted)). So once the District

Court found no coverage under the Policy, it had no need to consider whether any

exclusions to coverage applied. See, e.g., Kvaerner Metals Div. of Kvaerner U.S., Inc. v.

Commercial Union Ins. Co., 908 A.2d 888, 900 (Pa. 2006) (stating, after finding no

“occurrence,” that “it is not necessary for us to consider whether the business risk/work

product exclusions also preclude coverage”).

       Likewise, we have no need to consider whether the self-defense exception applies


                                             5
here. 2 Nevertheless, given the District Court’s analysis and the parties’ extensive

arguments on the question, we note that the allegations in the state court complaint

against Esposito do not support a claim of self-defense. Under Pennsylvania law, “[i]t is

well established that an insurer’s duties under an insurance policy are triggered by the

language of the complaint against the insured.” Kvaerner, 908 A.2d at 896; see Lupu v.

Loan City, LLC, 903 F.3d 382, 389–92 (3d Cir. 2018). “The obligation of an insurer to

defend an action against the insured is fixed solely by the allegations in the underlying

complaint.” Am. Nat’l Prop. & Cas. Cos. v. Hearn, 93 A.3d 880, 884 (Pa. Super. Ct.

2014) (emphasis added) (quoting Erie Ins. Exch. v. Fidler, 808 A.2d 587, 590 (Pa. Super.

Ct. 2002)); see also Kvaerner, 908 A.2d at 896 (“We find no reason to expand upon the

well-reasoned and long-standing rule that an insurer’s duty to defend is triggered, if at all,

by the factual averments contained in the complaint itself.”). The District Court therefore

erred by looking beyond the allegations of the underlying complaint to consider

Esposito’s claim that he acted in self-defense. 3


       2
         Judge Bibas declines to join the analysis in this paragraph and footnote 3,
preferring instead to await a case in which the outcome turns on the resolution of this
issue.
       3
         The District Court relied primarily on this Court’s decision in Air Products &
Chemicals, Inc. v. Hartford Accident & Indemnity Co., 25 F.3d 177 (3d Cir. 1994), to
support its consideration of the self-defense claim raised in Esposito’s answer. In Air
Products, we recognized an insurer’s duty to defend under Pennsylvania law is
“generally” determined by the allegations of the underlying complaint, but cited three
cases that appeared to allow the use of extrinsic evidence to resolve the duty-to-defend
issue in cases involving exceptions to exclusions. Id. at 179–80. In Air Products,
“ʻpotential’ . . . coverage” was a given and extrinsic evidence was considered only in
connection with proffered exceptions to exclusions, not the threshold question of whether
                                              6
       Here, the state court complaint alleges that Esposito “without provocation,

punched, kicked and injured the plaintiff.” App. 72. The complaint also alleges that

“Esposito was charged with assault and pleaded guilty.” Id. These allegations of an

unprovoked and “unjustified assault,” App. 74, do not support a claim of self-defense.

Based on the allegations in the complaint, the District Court correctly found that there

was no “occurrence,” and thus no coverage, under the Policy. Accordingly, Unitrin does

not have a duty to defend Esposito in the underlying state court case.

                                      *      *       *

       For the foregoing reasons, we will reverse the District Court’s orders.




there was coverage in the first place. Id. at 180. Moreover, the cases cited in Air Products
considered extrinsic evidence in determining an insurer’s duty to indemnify, not the duty
to defend. See N. Ins. Co. of N.Y. v. Aardvark Assocs., Inc., 942 F.2d 189, 191, 195–96
(3d Cir. 1991); Lower Paxton Twp. v. U.S. Fid. & Guar. Co., 557 A.2d 393, 403 n.6 (Pa.
Super. Ct. 1989); Fischer & Porter Co. v. Liberty Mut. Ins. Co., 656 F. Supp. 132, 134,
140 (E.D. Pa. 1986). And, in any event, the Court in Air Products did not rely on
extrinsic evidence itself to resolve the duty to defend. Rather, it relied on the allegations
of the underlying complaint and concluded that the insurer had a duty to defend because
the allegations could potentially fall within the policy’s coverage. Air Prods., 25 F.3d at
179–80.
                                              7
