                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2002

Ohio Cslty Ins Co v. Schuler
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3541




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Ohio Cslty Ins Co v. Schuler" (2002). 2002 Decisions. Paper 745.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/745


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                         IN THE UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT

                                            No. 01-3541
                                           _____________

                          OHIO CASUALTY INSURANCE COMPANY,
                                    an Ohio corporation

                                                    v.

                                   CHRISTOPHER N. SCHULER;
                                   GARY CHARLES ZUPON, JR.

                                 Gary Charles Zupon, Jr., Appellant
                            ____________________________________

                           On Appeal From the United States District Court
                                      For the District of Delaware
                                       (D.C. No. 99-cv-00126)
                             District Judge: Honorable Gregory M. Sleet
                          _______________________________________

                                      Argued: November 5, 2002

                         Before: BECKER, Chief Judge, McKEE and HILL, *
                                         Circuit Judges.

                                      (Filed: November 18, 2002)

STEPHEN P. CASARINO, ESQUIRE
THOMAS P. LEFF, ESQUIRE (ARGUED)
Cararino, Christman & Shalk, P.A.
800 N. King Street, Suite 200
P.O. Box 1276
Wilmington, DE 19899-1276



  *
   Honorable James C. Hill, United States Circuit Judge for the Eleventh Circuit, sitting by
designation.
Counsel for Appellant

ANDREW J. GALLOGLY, ESQUIRE (ARGUED)
Margolis, Edelstein
The Curtis Center - 4th Floor
6th & Walnut Streets
Philadelphia, PA 19106

Counsel for Appellee

            Transcribed by:     Tracey J. Williams, CET

            (Proceedings recorded by electronic sound recording;
            transcript provided by AAERT-certified transcriber.)
                                    _______________________

                                          BENCH OPINION
                                      _______________________

BECKER, Chief Judge.

(The following is the bench opinion of the Court in the above-captioned matter:)

THE HONORABLE JUDGE BECKER:

        This panel is a very busy panel. I have projected, I think out of two days we may have

as many as 11 precedential, what we used to call published opinions. And we've conferred

on this case and, frankly, we are prepared to dispose of this case at this juncture, and I will

announce the opinion and judgment of the Court.

        The panel has reviewed the record carefully and sympathetically to Mr. Zupon, who

sustained grievous injury, and what we say we say with admiration for Mr. Leff, who very

zealously, very diligently and in the highest traditions of the bar attempted to make

recovery for his client, but we are satisfied that the exclusion in the policy that medical



                                                      2
payments to others do not apply to bodily injury or property damage which is expected or

intended by the insured is fatal to the plaintiff's claim. The very facts that were described at

argument this morning make it clear that this was an intended injury. Mr. Schuler

approached Mr. Zupon, menacing him with a baseball bat, and the claim of self-defense is

not even colorable here because there is no evidence that Mr. Schuler was threatened,

menaced, or was in any kind of danger at the hands of Mr. Zupon. There may have been a

lug wrench or a small wrench that was swung at him but no self-defense claim was ever

made by Mr. Schuler, who pleaded guilty. Indeed, we believe that the guilty plea to assault

under Delaware law is sufficient to -- was it aggravated assault? What was the --

COUNSEL: First-degree assault.

JUDGE BECKER:

        First-degree assault under Delaware law is sufficient to dispose of the matter and, of

course, perforce there was no self-defense claim at that time. So, based upon the facts and

upon the plea, it is clear that there was intentional causing of serious physical injury to

Gary Zupon by means of hitting him in the head with a baseball bat. And, while Mr. Leff has

made a clever argument that there was no intention to inflict such severe emotional distress

as Mr. Zupon sustained, it is a basic principle of law that one is liable for the foreseeable

consequences of his actions and in this case emotional distress was clearly foreseeable.

These comments are consistent with those made by Judge Sleet in his order of August 21st

in granting Ohio Casualty's motion for summary judgment. For the reasons set forth by

Judge Sleet and for the reasons that I have set forth in this bench opinion, the judgment will

                                                      3
be affirmed. And that is the opinion and judgment of the Court. Judge McKee, is there

anything you want to add, any corrections?




THE HONORABLE JUDGE McKEE: No.

JUDGE BECKER: Judge Hill?

THE HONORABLE JUDGE HILL: I would say that I'm not at all positive that self-defense

is involved, but I think it well that the opinion covers that should it be necessary.

JUDGE BECKER: Very well. Thank you, gentlemen.

COUNSEL: Thank you.

JUDGE BECKER: And the Clerk will arrange to have this transcribed and sent to you.




(Bench opinion concluded).

                                 _______________________________

TO THE CLERK:

         Please file the foregoing Bench Opinion.

                                                    BY THE COURT:




                                                    /s/ Edward R. Becker
                                                    Chief Judge




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