                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-1998

Nationwide Mutl Fire v. Pipher
Precedential or Non-Precedential:

Docket 97-1282




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Filed March 17, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1282

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
OF COLUMBUS, OHIO

v.

LINDA PIPHER; FRANCIS MCFADDEN; FRANCIS
MCFADDEN, AS TRUSTEE AD LITEM FOR VIRGINIA
ELIZONDO, MICHAEL DARIO AND KRISTEN DARIO;
VIRGINIA ELIZONDO; MICHAEL DARIO; KRISTINE DARIO;
ERNEST SCHAFER; ROSE SCHAFER; IAN S. WOOD,
Philadelphia Phot #724409 Prisoner #9608644

       Linda Pipher,

       Appellant

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 96-cv-07462

Submitted Under Third Circuit LAR 34.1(a)
October 15, 1997

Before: STAPLETON, ALITO, and ROSENN, Circuit Judges.

(Opinion Filed March 17, 1998)
       Thomas M. Going
       German, Gallagher & Murtagh
       200 South Broad Street
       5th Floor
       Philadelphia, PA 19102
       Counsel for Appellee

       Robert H. Nemeroff
       Jaffe, Friedman, Schuman,
        Schilla, Nemeroff & Applebaum
       7848 Old York Road
       Suite 200
       Elkins Park, PA 19027
       Counsel for Appellant

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents an important question pertaining to
the meaning of the term "occurrence" as used in a liability
insurance policy. Specifically, it raises the issue whether a
plaintiff's bodily injury or death, directly caused by the
intentional act of a third party but also attributable to the
negligence of the policyholder-insured, constitutes an
"occurrence," and thus obligates an insurer to defend, and
potentially indemnify, its insured for the insured's alleged
negligence. The insurer in this case, Nationwide Mutual
Fire Insurance Company of Columbus, Ohio (Nationwide),
filed a declaratory judgment action in the United States
District Court for the Eastern District of Pennsylvania
seeking a declaration that because an intentional act of a
third party caused the plaintiff's death, there was no
accident or "occurrence" and thus Nationwide has no duty
to defend and indemnify its insured. The district court
granted summary judgment for the insurance company.
The insured appealed. We reverse.

I.

The facts pertaining to this appeal are uncomplicated
and, for the most part, undisputed. The insured, Linda

                               2
Pipher (Pipher), is the owner of a multi-unit dwelling
located in Philadelphia, Pennsylvania, previously owned by
her parents, Ernest and Rose Schafer. Prior to December
1994, the Schafers and/or Pipher removed the doors to the
second floor apartment of the property in order to install
new carpeting. These doors were never reinstalled. At all
relevant times, Nationwide insured Pipher's property under
a "Tenant's Policy."

In December 1994, Pipher leased the second floor
apartment to Francis McFadden and his wife, Bernine. On
February 3, 1995, Ian S. Wood, whom Pipher hired to paint
the apartment, killed Bernine McFadden while she occupied
the second floor apartment. As a result of Bernine
McFadden's death, her husband, Francis, filed a state
survival action for wrongful death against Pipher, Wood, the
Schafers, and others in Philadelphia Court of Common
Pleas. McFadden v. Pipher, No. 865, May Term 1996.
Nationwide undertook Pipher's defense subject to a
reservation of rights.

Nationwide then filed a declaratory judgment action in
the United States District Court for the Eastern District of
Pennsylvania. Nationwide sought a declaration that it has
no duty to defend and indemnify Pipher because Bernine
McFadden's death was caused by an intentional assault
and murder committed by Wood, and thus her death was
not an insured "occurrence" as defined in the policy.
Because there was no factual dispute, Nationwidefiled a
motion for summary judgment. The district court granted
Nationwide's motion, thereby relieving Nationwide of its
duty to defend and potentially indemnify Pipher. Pipher
timely appealed.1
_________________________________________________________________

1. The district court had diversity jurisdiction pursuant to 28 U.S.C.
S 1332, as the parties are citizens of different states and the amount in
controversy exceeded the then applicable amount of $50,000. This Court
has appellate jurisdiction of the district court'sfinal order pursuant to
28 U.S.C. S1291.

It is undisputed that Pennsylvania law applies. The district court
applied Pennsylvania law, as do we.

                                3
II.

This appeal presents solely a legal issue. Thus, this
court's review of the district court's grant of summary
judgment is plenary. See Robertson v. Central Jersey Bank
& Trust Co., 47 F.3d 1268, 1273 (3d Cir. 1995); see also
Fed. R. Civ. P. 56(c); Pacific Indem. Co. v. Linn, 766 F.2d
754, 760 (3d Cir. 1985) (determination of the proper
coverage of an insurance contract when the facts are not in
dispute is a question of law subject to plenary review).

A.

Pipher's Tenant's Policy with Nationwide provides her
with liability coverage for all "damages [she] is legally
obligated to pay due to an occurrence." (Tenant's Policy)
(emphasis added). The policy, in relevant part, defines
occurrence as "bodily injury . . . resulting from: a. one
accident." On appeal, Nationwide relies principally upon
Gene's Restaurant, Inc. v. Nationwide Ins. Co., 548 A.2d
246 (Pa. 1988), and a progeny of cases in the United States
District Court for the Eastern District of Pennsylvania.
These cases hold that to constitute an accident, and thus
a covered occurrence, the court must focus on the nature
of the act which inflicted the injury or directly caused the
death, and that act must be unintentional, even when an
insured is sued for negligently failing to prevent or for
contributing to the harmful intentional acts of the person
who directly inflicted the injury or caused the death.2
_________________________________________________________________

2. E.g., Britamco Underwriters, Inc. v. George Giouzelis, Inc., No. CIV.
A.
93-4547, 1994 WL 622109 (E.D. Pa. Nov. 8, 1994), aff'd without opinion,
65 F.3d 161 (3d Cir. 1995), cert. denied, 116 S. Ct. 1029 (1996);
Britamco Underwriters, Inc. v. Logue's Tavern, Inc. , No. CIV. A. 95-2997,
1995 WL 710570 (E.D. Pa. Dec. 1, 1995); Britamco Underwriters, Inc. v.
Stone, No. CIV. A. 91-4691, 1992 WL 195378 (E.D. Pa. Aug. 3, 1992);
Terra Nova Ins. Co., Ltd. v. Thee Kandy Store, Inc., 679 F. Supp. 476
(E.D. Pa. 1988); see also Britamco Underwriters, Inc. v. Grzeskiewicz, 639
A.2d 1208 (Pa. Super. Ct. 1994). But see Britamco Underwriters, Inc. v.
Weiner, 636 A.2d 649 (Pa. Super. Ct. 1994) (distinguishing Gene's
Restaurant and holding that the insurer owed its insured a duty to
defend because the plaintiff 's complaint alleged alternate theories of
recovery (i.e., intentional and negligent conduct), which may potentially
come within the scope of the liability insurance policy).

                               4
In Gene's Restaurant, the complaint merely alleged that
while she was a patron in the defendant insured's
restaurant, the defendant assaulted and violently beat her,
causing injuries and damages. The complaint contained no
allegations of negligence on the part of the insured. The
insurer (Nationwide) refused to defend its insured against
the complaint sounding solely in trespass which alleged
only a willful and malicious assault and beating. The
liability policy at issue in that case similarly defined an
"occurrence" as an accident. Accordingly, the Pennsylvania
Supreme Court summarily affirmed the Superior Court's
holding that the insurer owed no duty to defend its insured
based on these facts. That holding is sound, but it in no
way dictates that an insurer owes no duty to defend its
insured when the complaint also alleges that the assault
was made possible by the negligence of the insured.

We believe the holding in Gene's Restaurant was narrow
and predicated on the well-established rule of insurance
law that an insurer's duty to defend an action brought
against its insured is to be determined solely by the
allegations contained in the plaintiff 's pleadings. E.g.,
General Accident Ins. Co. of America v. Allen, 692 A.2d
1089, 1094 (Pa. 1997); Gene's Restaurant, 548 A.2d at 246;
Wilson v. Maryland Cas. Co., 105 A.2d 304, 307 (Pa. 1954).
Because the complaint alleged solely an intentional act and
contained no allegations of negligence on the part of its
insured, the Gene's Restaurant court came to the
unremarkable conclusion that an intentional tort was not
an accident and thus not a covered occurrence under the
policy.

Nationwide contends that under Gene's Restaurant, the
intentional murder of Bernine McFadden by Wood is not an
occurrence (i.e., an accident) but rather an intentional tort
which is not covered by the policy. Thus it claims that it is
therefore relieved of its duty to defend and potentially
indemnify Pipher, notwithstanding in this case there are
distinct allegations of negligence that the insured's conduct
made possible the assault and murder. Nationwide's
argument, however, is premised on a misreading of Gene's
Restaurant by it, by the district court in this case, and by
the district courts in the cases cited in Nationwide's brief.

                               5
This has resulted in an unwarranted extension of the
import of that case. The case against Pipher is clearly
distinguishable from Gene's Restaurant. Here, the
plaintiff's complaint raises numerous allegations of
negligence on the part of Pipher, which allegedly
contributed to Bernine McFadden's death. In this case, the
plaintiff alleges that, among other things, Pipher
"negligently fail[ed] to re-install the apartment doors
necessary for the tenant's security;" "negligently failed to
provide a reasonably safe premises for the tenants;" and
"negligently hired Ian S. Wood to paint the second floor
apartment." Although Bernine McFadden's death was the
direct result of a third party's intentional conduct, the
complaint alleges that the insured's own negligence also
played a significant part in her death. In the absence of any
Pennsylvania Supreme Court precedent directly on point,
we believe that if confronted with this question, that court
would find this distinction alone to be sufficient to hold
that an insurance company has a duty to defend its
insured against complaints alleging negligent conduct on
the part of the insured as well as a third party's intentional
conduct. See, e.g., Polselli v. Nationwide Mutual Fire Ins.
Co., 126 F.3d 524, 528 n.3 (3d Cir. 1997) (federal courts
sitting in diversity must predict how state high court would
decide issue); Surace v. Caterpillar, Inc., 111 F.3d 1039,
1044 (3d Cir. 1997) (same).

B.

Numerous cases support the conclusion we reach. Under
Pennsylvania law, "the fact that the event causing [bodily
injury or damage to property] may be traceable to an
intentional act of a third party does not preclude the
occurrence from being an `accident.' " Mohn v. American
Cas. Co. of Reading, 326 A.2d 346, 348 (Pa. 1974); accord
Wetzel v. Westinghouse Elec. Corp., 393 A.2d 470, 472-73
(Pa. Super. Ct. 1978) (citing Mohn with approval). In Mohn,
the insured's son was fatally wounded by a police officer
while attempting to flee from the scene of a burglary he was
committing. The insured brought an action under two
medical insurance policies for reimbursement of expenses
he incurred as a result of his son's hospitalization. The

                               6
pertinent provisions of the policies obligated the insurance
company to provide coverage "for eligible expense incurred
as a result of injury." Id at 347. "Injury" as used in the
policy was defined as "accidental bodily injury which
causes the loss directly and independently of all other
causes." Id. The trial court found that there was no
"accidental" bodily injury when an escaping felon is shot,
and the Superior Court affirmed. The Pennsylvania
Supreme Court viewed the terms of the policy differently. It
noted that "[i]n health and accident policies the law is now
reasonably clear that the fact that the event causing the
injury may be traceable to an intentional act of a third
party does not preclude the occurrence from being an
`accident.' . . . [T]he test of whether injury is a result of an
accident is to be determined from the viewpoint of the
insured and not from the viewpoint of the one that
committed the act causing the injury." Id. at 348. The court
held that the "accidental bodily injury" language of the
policy encompassed the injuries sustained by the insured's
son during his flight from the police. Id. at 352.

As the Mohn court notes, it is well established that the
test of whether the injury or damage is caused by an
accident must be determined from the perspective of the
insured and not from the viewpoint of the person who
committed the injurious act. See, e.g., Roque v. Nationwide
Mutual Ins. Co., 467 A.2d 1128, 1129 (Pa. 1983); Mohn, 326
A.2d at 348; State Farm Mut. Auto Ins. Co. v. Martin, 660
A.2d 66, 67 (Pa. Super. Ct. 1995). From the Pipher's
standpoint, Bernadine 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).

The rule seems to be well-settled in other jurisdictions
that it is the intentional conduct of the insured which
precludes coverage, not the acts of third parties. Although
a third party may have intentionally injured or killed the
plaintiff, the death or injury may still be deemed to be an

                               7
accident under the terms of the policy. See Ferdinand S.
Tinio, Accident Insurance: Death or Injury Intentionally
Inflicted by Another as Due to Accident or Accidental Means,
49 A.L.R. 3d 673, 679, at S3 (1973 & 1983) (collecting
cases from 37 states). Furthermore, there are various types
of situations in which individuals are held to be vicariously
liable for an intentional tort of another person. See Robert
F. Keeton & Alan I. Widiss, Insurance Law S 5.4(d)(5)
(student ed. 1988). Finally, many courts have expressly
held in favor of the insured in coverage disputes involving
the intentional conduct of third parties. See, e.g., Aetna Ins.
Co. v. Webb, 251 So.2d 321 (Fla. Dist. Ct. App. 1971) ("it is
reasonable to imply that the insurance company intended
to cover losses caused by the acts, intentional or otherwise,
of third parties"); Jones v. Doe, 673 So.2d 1163 (La. Ct.
App. 1996) ("the intentional act exception . . . only operates
to keep an insured from seeking indemnification for his
own intentional acts[; t]he exception does not operate
simply because an intentional tort has occurred; it operates
only when an intentional tort is committed by the insured");
Nalea Realty Corp. v. Public Svc. Mut. Ins. Co., 656 N.Y.S.2d
613 (N.Y. App. Div. 1997) (affirming award of settlement
amount to insured landlord from liability insurer for
damages paid in underlying suit involving intentional
criminal act of third party (shooting tenant), and citing with
approval Beach Haven Apts., infra); Beach Haven Apts., No.
6, Inc. v. Allcity Ins. Co., 182 A.D.2d 658 (N.Y. App. Div.
1992) (insurance company obligated to defend and
indemnify the insured apartment building owner in tort suit
for criminal rape and assault of third-party tenant which
occurred in the building's basement); Farmers Ins. Of
Columbus, Inc. v. Sotak, Nos. 94APE01-127, 94APE01-128,
1994 WL 383723 (Ohio Ct. App. July 19, 1994)
(unpublished opinion) ("when a case of insurance coverage
is viewed from the perspective of the insured . . . the
consequence of a third-party's criminal agency would be
accidental to the victim whether such harm was through an
intentional act or criminal negligence") (emphasis added).

C.

Nationwide's argument, that confining our review to the
allegations against the insured to determine whether there

                                8
has been an occurrence (i.e., accident) would render the
policy's exclusion of bodily injury "expected or intended by
the insured" redundant and meaningless, is also
unconvincing. This exclusion, included in standard-form
comprehensive general liability policies since the mid-
1960s, is not simply another definition of accident. Instead,
its express purpose is to clarify the vantage point from
which the fortuity of the occurrence should be viewed: the
insured's, and not that of the person who is injured or the
insurer. See, e.g., Koppers Co., Inc. v. Aetna Cas. and Sur.
Co., 98 F.3d 1440, 1447 n.6 (3d Cir. 1996); Elitzky, 517
A.2d at 986; Sam P. Rynearson, Exclusion of Expected or
Intended Personal Injury or Property Damage Under the
Occurrence Definition of the Standard Comprehensive
General Liability Policy, 19 Forum 513, 521-23 (1984);
James L. Rigelhaupt, Construction and Application of
Provision of Liability Insurance Policy Expressly Excluding
Injuries Intended or Expected by Insured, 31 A.L.R. 4th 957,
971-72, at S2[a] (1984); cf. Hanover Ins. Co. v. Crocker, 688
A.2d 928 (Me. 1997) ("provisions excluding from coverage
injuries intentionally caused by `the insured' refer to a
definite, specific insured, who is directly involved in the
occurrence that causes the injury").

Without the exclusionary clause, it could be argued that
an intentional injury producing act by the insured was an
accident because the actual injury sustained by the
plaintiff might have been unintended or unexpected or
might even have been unintended but expected. And,
obviously, from the standpoint of the injured party, the
injury almost always would be accidental because it was
unintended or expected by that party. Thus, the clause
precludes these arguments and eliminates this ambiguity
by clarifying that the relevant focus is upon the injury itself
as viewed from the perspective of the insured, and not upon
the act which produced the injury or the injury as viewed
from the perspective injured party. Accordingly, the
exclusionary clause applies only when the insured intends
to cause a harm. See Elitzky, 517 A.2d at 987.

                               9
D.

Finally, in light of the above, it is obvious that the term
"occurrence" is ambiguous in this context and thus should
be construed against Nationwide so as to provide coverage
to its insured, Pipher. See, e.g., Mohn , 326 A.2d at 351
("[W]here the contract is one of insurance any ambiguity in
the language of the document is to be read in a light most
strongly supporting the insured.") (citations omitted).
Insurance companies have known for over 30 years how to
draft a provision that excludes coverage for damages or
injuries caused by the intentional conduct of third parties.
See, e.g., Colonial Life & Accident Ins. Co. v. Wagner, 380
S.W.2d 224, 225 (Ky. 1964) (policy "shall not cover death or
other loss caused or contributed to . . . by injuries
intentionally inflicted upon the insured by any other
person") (emphasis added); Butler v. Peninsular Life Ins. Co.,
115 So.2d 608 (Fla. Dist. Ct. App. 1959) (policy"shall be
null and void if the insured's death or other loss .. . results
directly or indirectly from . . . intentional act or acts of any
person or persons") (emphasis added).3 Thus, if Nationwide
intended to exclude from coverage the intentional conduct
of third parties that is fortuitous when viewed from the
standpoint of the insured, they apparently have known how
to do so for many years. We conclude, therefore, that the
term "occurrence," as used in Pipher's Tenant's Policy,
includes bodily injury or death which is directly caused by
the intentional act of a third party, but which is also
attributable to the negligence of the insured.
_________________________________________________________________

3. See also Terra Nova Ins. Co., Ltd. v. 900 Bar, Inc., 887 F.2d 1213,
1217 (3d Cir. 1989) ("no coverage shall apply under the policy for any
claim . . . based on assault and battery, and assault and battery shall
not be deemed an accident, whether or not committed by or at the
direction of the insured"); Britamco Underwriters, Inc. v. Logue's Tavern,
No. CIV. A. 95-2997, 1995 WL 710570, at *3 (E.D. Pa. Dec. 1, 1995) (the
insurer "is under no duty to defend or to indemnify an insured in any
action or proceeding alleging [intentional torts] [r]egardless of degree
of
culpability or intent and without regard to . . .[w]hether the acts are
alleged to be by or at the instruction or at the direction of the insured,
his . . . employees, agents, servants; or by any other person lawfully or
otherwise on . . . premises owned or occupied by the insured; or by any
other person").

                               10
III.

In summary, we believe that the Pennsylvania Supreme
Court would hold that an occurrence, as used in a liability
insurance policy, includes a plaintiff 's bodily injury or
death that is the direct result of the intentional act of a
third party when the injury or death is also attributable to
the negligence of the insured. Thus, the court would hold
that the insurer is obligated to defend under such policy
and potentially indemnify its insured when the complaint
alleges the insured's negligence. Accordingly, the district
court's grant of summary judgment will be reversed and the
case remanded to the district court with directions to enter
a declaratory judgment consistent with this opinion. Costs
taxed against the appellee.

                               11
ALITO, Circuit Judge, concurring.

I concur in the result reached by the majority, but I write
separately to provide a brief supplementary explanation. In
this case, the insured, Linda Pipher, was sued for damages
resulting from the death of Bernine McFadden. That suit
alleged that McFadden was intentionally killed in an
apartment that she and her husband had rented from
Pipher; that the assailant, Ian S. Wood, was hired by Pipher
to paint the apartment; and that McFadden's death
resulted from Pipher's negligence. Among other things, the
complaint asserted that Pipher was negligent in failing to
re-install doors necessary for the safety of the tenants and
in hiring Wood, who was allegedly known to be a drug
abuser. App. 116. Pipher's insurance policy with
Nationwide provides coverage for "damages the insured is
legally obligated to pay due to an occurrence." App. 91. The
term "occurrence" is defined as including"bodily injury or
property damage resulting from . . .[an] accident." Id. at 84.
The critical question in this appeal, therefore, is whether
McFadden's death was an "accident" within the meaning of
the policy.

An "accident" is generally understood to be an event that
is "unintentionally caused." Random House Dictionary of the
English Language 9 (1967). Here, the complaint in the tort
suit against Pipher did not allege that Wood
"unintentionally caused" McFadden's death; on the
contrary, that complaint alleged that he intentionally killed
her. At the same time, however, that complaint, by alleging
that Pipher's acts of negligence proximately caused Bernine
McFadden's death, did in essence allege that Pipher
"unintentionally caused" her death. Therefore, according to
the complaint, McFadden's death was not an accident from
Wood's perspective but was an accident from Pipher's
perspective.

Under Pennsylvania law, if a term in an insurance policy
is ambiguous "and if the insurer wrote the policy or is in a
stronger bargaining position than the insured, the
ambiguity is generally resolved in favor of the insured and
against the insurer." Eastern Associated Coal Corp. v. Aetna
Cas. & Sur. Co., 632 F.2d 1068, 1075 (3d Cir. 1980). Here,
the policy provision providing coverage for damages

                               12
resulting from an "accident" is ambiguous because the
provision does not specify the perspective from which the
accidental or non-accidental nature of the result is to be
judged. Therefore, if I were free to exercise my independent
judgment as to how the policy provision should be
interpreted in light of the Pennsylvania rule that
ambiguities in insurance policies should generally be
construed against the insurer, I would hold that the
damages sought in the tort suit against Pipher resulted
from an "accident" as that term is used in her policy.

Because this is a diversity action, however, we are not
free to exercise our independent judgment but must instead
predict how the Supreme Court of Pennsylvania would rule.
The district court in this case viewed Gene's Restaurant,
Inc. v. Nationwide Ins. Co., 548 A.2d 246 (Pa. 1988), as
controlling, but I believe that that interpretation is probably
erroneous. In Gene's Restaurant, Patricia Aschenback and
her husband sued the restaurant, alleging that a
restaurant employee, acting within the scope of his
employment, had committed an assault and battery upon
her and that the restaurant was liable for her resulting
injuries.1 The restaurant's insurance policy contained
language similar to that in the policy at issue in this case.
Holding, in a tersely worded opinion, that the insurer was
not obligated to defend the suit against the restaurant, the
Supreme Court of Pennsylvania wrote:

       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.

548 A.2d at 247.

It seems best to interpret the decision in Gene's
Restaurant as taking the view that, according to the
allegations in the Aschenbacks' complaint, the restaurant,
acting through its employee, did not accidentally cause
Patricia Aschenback's injuries but rather intentionally
_________________________________________________________________

1. See Gene's Restaurant Inc. v. Nationwide Insurance Co., 95 E.D.
Appeal Docket 1987, Record at 14a, PP3 & 4 (reproducing plaintiff 's
Complaint in Trespass).

                               13
caused them by committing an assault and battery. Thus,
Gene's Restaurant, contrary to the majority's
understanding, is not a case in which an insured was sued
for damages resulting from a third party's intentional acts.
Instead, Gene's Restaurant is a case in which an insured
was sued for damages resulting from what were, in legal
effect, its own intentional acts. Interpreted in this way,
Gene's Restaurant does not decide the question presented
in this appeal.

By contrast, the Superior Court's decision in Britamco
Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.
Super. Ct. 1994), involved a situation materially
indistinguishable from the one presented here. Donna Lee
Smith sued Dagwood's Pub and its proprietors, alleging
that another pub patron, William Hopania, had "violently
attacked Smith with a broken beer bottle, striking her in
the face." 639 A.2d at 1209. "Smith's complaint also
asserted that her injuries were caused by Dagwood's Pub's
carelessness, recklessness, negligence and/or gross and
wanton disregard." Id. Holding that Smith's complaint did
not seek to recover for an "accident" within the meaning of
the pub's insurance policy, the Superior Court wrote:

       Smith avers that "the injuries and damages she
       sustained . . . occurred as [a result of] the intentional,
       willful and purposeful acts of William Hopania." Smith
       does not allege that the incident in question amounted
       to an "accident," nor does she claim that her injuries
       were incurred as a result of any negligence by Hopania.
       In light of these allegations and the Supreme Court's
       decision in Gene's Restaurant, . . . wefind that Smith's
       claims against Dagwood's Pub arising out of Hopania's
       assault, do not constitute an "occurrence" as defined
       by the instant policy.

Id. at 1210-11.

If we followed this decision, we would be compelled to
affirm here, and in diversity cases we are instructed to heed
the decisions of a state's intermediate appellate court
unless we are convinced by "other persuasive data" that the
state's highest court would reach a different result. West v.
American Telephone & Telegraph Co., 311 U.S. 243 (1940).

                               14
But although the question is debatable, I conclude in the
end that the Supreme Court of Pennsylvania would not
follow the Superior Court's holding. For the reasons already
explained, I do not think that the state supreme court
would view Gene's Restaurant as dispositive, and I believe
that the state supreme court would find the term"accident"
as used in the policy to be ambiguous and would thus
construe it against the insurer.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
