                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2004

Nance v. Phoenix Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4688




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Recommended Citation
"Nance v. Phoenix Ins Co" (2004). 2004 Decisions. Paper 33.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/33


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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      ___________

                      No. 03-4688
                      ___________

                  JEFFREY NANCE;
                 KAREN NANCE, H/W,

                            Appellants


                              v.

       *THE PHOENIX INSURANCE COMPANY

      *(Amended per Clerk's Order of April 23, 2004)

                      ___________


      On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                 (D.C. Civil No. 03-cv-03951)
     District Judge: The Honorable Thomas N. O’Neill

                      ___________

        Submitted Under Third Circuit LAR 34.1(a)
                   December 13, 2004


Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.




               (Filed: December 27, 2004)
                                        ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Jeffrey Nance and Karen Nance appeal from the District Court’s order

granting Phoenix Insurance Company’s Motion for Summary Judgment. Roman Glikman

sued the Nances in the Court of Common Pleas of Philadelphia County. The Glikman

Complaint alleged (1) that Jeffrey Nance shot Glikman’s dog in front of Glikman; (2) that

Karen Nance attacked Glikman and physically restrained him from interfering with her

husband’s effort to shoot Glikman’s dog; (3) that Jeffrey Nance caused Glikman to be

falsely arrested; and (4) that no charges were filed against Glikman as a result of the

incident. Phoenix held the Nances’ homeowners insurance policy. The Nances sued

Phoenix in Philadelphia County seeking a declaratory judgment that they are entitled to a

defense and indemnification from Phoenix with respect to the Glikman action. Pursuant

to diversity of citizenship, the action was removed to the United States District Court for

the Eastern District of Pennsylvania.

              The parties filed cross-motions for Summary Judgment. The District Court

granted Phoenix’s Motion for Summary Judgment. We will affirm.

              An insurer is obligated to provide a defense only when a claim is alleged,

which if proven, would require the insurer to indemnify the insured. See Acceptance Ins.



                                             2
Co. v. Seybert, 757 A.2d 380, 384 (Pa. Super. 2000); D’Auria v. Zurich Ins. Co., 507

A.2d 857 (Pa. Super. 1986). The homeowner’s policy provides for coverage “[i]f . . . a

suit is brought against any insured for damages because of ‘bodily injury’. . . caused by an

occurrence to which this coverage applies . . . .” Further, the policy covers an insured’s

liability for damages because of “bodily injury,” which it defines as “bodily harm,

sickness, or disease.” Under Pennsylvania law, emotional distress does not constitute

bodily injury under a policy definition such as is contained in the Nances’ policy. Zerr v.

Erie Ins. Exchange, 667 A.2d 237, 239 (Pa. Super. 1995); Legion Indemnity Co. v.

Carestate Ambulance, Inc., 152 F. Supp.2d 707, 719 (E.D. Pa. 2001).

              Glikman’s allegations do not plead a claim that falls within the coverage of

the Phoenix policy, and therefore, the District Court correctly declared that Phoenix had

no duty to defend or indemnify the Nances.

              We will affirm the District Court’s order granting Appellee’s Motion for

Summary Judgment.




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