                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2003

Essex Ins Co v. Kennedy
Precedential or Non-Precedential: Non-Precedential

Docket 01-2327




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Recommended Citation
"Essex Ins Co v. Kennedy" (2003). 2003 Decisions. Paper 758.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/758


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                                                                              NOT-PRECEDENTIAL


                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                           No. 01-2327




                                ESSEX INSURANCE COMPANY

                                                    v.

                                   BRIAN KENNEDY, ET AL.,

                                                         Caroline E. Carino, Appellant




       ON APPEAL FROM THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
                              PENNSYLVANIA

                                   (Dist. Court No. 99-cv-05634)
                         District Court Judge: Honorable John P. Fullam


                          Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        February 10, 2003

       Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, Senior District Judge*

                                  (Opinion Filed: March 5, 2003)




       *
          Honorable William W Schwarzer, Senior District Judge, Northern District of
California sitting by designation.
                                       OPINION OF THE COURT




PER CURIAM:

                  Because we write for the benefit of the parties, the background of the appeal

is not set out.

                  Appellant Caroline E. Carino (“Carino”) contests an order declaring that the

Essex Insurance Company (“EIC”) is not required to defend or indemnify its insured, Jay S.,

Inc. (“JSI”), in a civil action filed in state court by Carino. The District Court granted EIC’s

motion for summary judgment on the basis that Carino’s claim fell within a policy

exclusion entitled Assault and Battery. Carino argues that the exclusion does not apply

because it was not signed and that her complaint presents triable issues that preclude the

granting of a motion for summary judgment. We affirm.

                  Our review of a grant of summary judgment is de novo. Goosby v. Johnson &

Johnson Medical, Inc., 228 F.3d 313, 318 (3d Cir. 2000). Summary judgment is

appropriate if there are no genuine issues of material fact, and the moving party is entitled

to judgment as a matter of law. Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d

Cir.2001). Under Pennsylvania law, “[a]n insurer has a duty to indemnify its insured only if

it is established that the insured's damages are actually within the policy coverage.” Lucker

Mfg. v. The Home Ins. Co., 23 F.3d 808, 821 (3d Cir. 1994). Similarly, an insurer’s

obligation to defend its insured ends once it learns of facts sufficient to exclude the claims


                                                      2
of liability from the policy's coverage. Id. at 813. Interpretation of an insurance contract is

a question of law for the court. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.

1997) (citing Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469

A.2d 563, 566 (Pa. 1983)). Accordingly, if there are no facts in the complaint that would

support the inclusion of a claim within the policy’s coverage, summary judgment is

appropriate.

                Carino’s contention that the Assault and Battery exclusion does not apply

because it appears in an unsigned addendum is unfounded. The declaration pages, which are

signed, incorporate by reference the endorsement containing the Assault and Battery

exclusion. App. 39.

                Carino's second argument, that her complaint in state court seeks redress for

injuries other than those she received as a result of an assault and battery, is not borne out

by the language of her complaint. The complaint alleges that "[a]s a direct and proximate

result of Defendant's negligence, Plaintiff was savagely assaulted and battered, causing

serious bodily injury, which damages are in excess of Fifty Thousand ($50,000) Dollars.”

App. 15, 19. This language supports no reasonable interpretation other than the conclusion

that Carino's claims for redress arose from an assault and battery.

                For the foregoing reasons, we will affirm the order of the District Court

dated April 24, 2001.




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