NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY v. ZATYKO
MEMORANDUM AND OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 12/20/16. 12/20/16 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NATIONWIDE PROPERTY & CASUALTY
NITZA I. QUIÑONES ALEJANDRO, J.
DECEMBER 20, 2016
Presently before this Court is a motion for summary judgment, filed by Plaintiff
Nationwide Property & Casualty Insurance Company (“Plaintiff” or “Nationwide”) pursuant to
Federal Rule of Civil Procedure (“Rule”) 56, requesting the entry of judgment in its favor and
the issuance of a declaration that it does not owe a further duty to defend or a duty to indemnify
Defendant Ronald Zatyko (“Defendant” or “Zatyko”) in an underlying court action pending in
the Superior Court of New Jersey. [ECF 13]. Defendant opposes the motion. [ECF 14]. The
issues raised in the motion for summary judgment have been fully briefed by the parties and are
now ripe for disposition.
For the reasons stated herein, Plaintiff’s motion is granted, and
summary judgment is entered in favor of Plaintiff.
Nationwide filed a complaint against Defendant in which it seeks a declaratory judgment
Because an insurer’s duty to defend an action against its insured is generally determined on the
basis of the allegations contained in the complaint against the insured, the facts set forth in this section are
primarily drawn from the state court complaint filed against Zatyko. See State Farm Fire & Cas. Co. v.
under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and a determination of the rights
and duties, if any, owed Defendant with respect to insurance coverage for the defense and/or
indemnification of Defendant in an underlying state court action pending in a New Jersey (the
“State Court Action”). 2 [ECF 1; Compl.]. In the underlying State Court Action, Nicholas
Fiocchi (“Fiocchi”) alleged that Ronald Zatyko, following a verbal argument that occurred
earlier that evening, assaulted him. (Id. at Ex. B; State Court Compl.). Fiocchi’s complaint (the
“State Court Complaint”) couched the claim against Defendant as one sounding in negligence; to
wit: “Defendant Ronald Zatyko did then negligently and without provocation assault Plaintiff
Nicholas Fiocchi causing Plaintiff to sustain serious injuries.” (Id. at ¶2). Notably, the State
Court Complaint contains very little by way of factual allegations, and is limited to just four
numbered paragraphs. (See generally id., Ex. B). Significantly, for reasons described more fully
below, a fair reading of the State Court Complaint reveals that it contains no allegations that
Defendant consumed any alcohol, was intoxicated, or that he was in any way cognitively
impaired by any alcohol consumption or lacked awareness of his actions in any way. (Id.).
Defendant sought a defense and indemnification from Nationwide for the State Court
Action under a homeowner insurance policy that Nationwide had issued to Defendant’s parents,
Janine and Ron Zatyko.
The policy provides insurance coverage for certain occurrences
involving the “insureds.” The parties concede that Defendant is an insured under the policy.
Nationwide is currently providing Zatyko a defense under a reservation of rights.
Estate of Mehlman, 589 F.3d 105, 108 n.3 (3d Cir. 2009) (citing Donegal Mut. Ins. Co. v. Baumhammers,
938 A.2d 286, 290-92 (Pa. 2007)).
The underlying State Court Action, Cumberland County, Law Division, Case No. Cum-L-810-15
605-P.1, was filed on November 5, 2015, by Nicholas Fiocchi (“Fiocchi”) against Ronald Zatyko, the
Defendant in this matter.
In this federal action and through its underlying motion for summary judgment,
Nationwide seeks judgment and a declaration that it owes no further duty to defend and/or
indemnify Zatyko in the State Court Action. Nationwide relies on the definition of a covered
“occurrence” and the application of various exclusions in the homeowner insurance policy; in
particular, exclusions for damages caused by an insured’s intentional conduct.
Specifically, the Nationwide insurance policy defines an occurrence as follows:
“OCCURRENCE” means bodily injury or property damage
resulting from an accident, including continuous or repeated
exposure to the same general condition. The occurrence must be
during the policy period.
(See Homeowner Insurance Policy, attached to the Complaint as Exhibit A, at p. G1) (emphasis
in original). The insurance policy also contains two relevant exclusions which read as follows:
Coverage E – Personal Liability and Coverage F –
Medical Payments to Others do not apply to bodily injury or
a) by an act intending to cause harm done by or at the direction
of any insured.
This exclusion does not apply to corporal punishment of pupils.
b) caused by or resulting from an act or omission which is
criminal in nature and committed by an insured.
This exclusion 1.b) applies regardless of whether the insured is
actually charged with, or convicted of a crime.
(Id. at p. H1) (emphasis in original).
Rule 56 governs the summary judgment motion practice.
Fed. R. Civ. P. 56.
Specifically, this rule provides that summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Id. A fact is “material” if proof of its existence or non-existence might affect the
outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Under Rule 56, the court must view the evidence in the light most favorable to
the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011).3
Here, though Nationwide’s underlying motion is one for summary judgment, it relies
upon a legal interpretation of the underlying insurance policy, rather than an analysis of facts or
evidence. As set forth more fully below, whether an insurer owes a duty to defend an insured in
litigation brought against the insured is generally determined from a review of the allegations
contained in the complaint against the insured and the language of the insurance policy at issue.
Generally, Rule 56(c) provides that the movant bears the initial burden of informing the court of
the basis for the motion and identifying those portions of the record which the movant “believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). This burden can be met by showing that the nonmoving party has “fail[ed] to make a showing
sufficient to establish the existence of an element essential to that party’s case.” Id. at 322. After the
moving party has met its initial burden, summary judgment is appropriate if the nonmoving party fails to
rebut the moving party’s claim by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials” that show a genuine issue of material fact or by
“showing that the materials cited do not establish the absence or presence of a genuine dispute.” See Rule
56(c)(1)(A-B). The nonmoving party must “do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The nonmoving party may not rely on bare assertions, conclusory allegations or suspicions,
Fireman’s Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations
in the pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must “go beyond the pleadings”
and either by affidavits, depositions, answers to interrogatories, or admissions on file, “designate ‘specific
facts showing that there is a genuine issue for trial.’” Id.
See Mehlman, 589 F.3d at 110 (citing Donegal, 938 A.2d at 290)). As such, neither the parties’
respective arguments, nor this Court’s opinion is reliant upon any disputed facts or evidence.4
Under Pennsylvania law, 5 an insurer’s duty to defend is broader than its duty to
indemnify. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 225 (3d Cir. 2005). However, “there
is no duty to indemnify if there is no duty to defend.” Id. To determine whether Nationwide
owes a duty to defend and/or indemnify Zatyko in the underlying State Court Action, the
allegations in the State Court Complaint and the language of the insurance policy issued to
Zatyko (his parents) must be examined; to wit:
[A]n insurer’s duty to defend an action against the insured is
measured, in the first instance, by the allegations in the
plaintiff’s pleadings . . . In determining the duty to defend, the
complaint claiming damages must be compared to the policy
and a determination made as to whether, if the allegations are
sustained, the insurer would be required to pay [the] resulting
judgment . . . [T]he language of the policy and the allegations
of the complaint must be construed together to determine the
Donegal, 938 A.2d at 290 (quotations omitted).
If the underlying state court complaint alleges an injury “which may be within the scope
of the policy, the company must defend the insured until the insurer can confine the claim to a
In its motion for summary judgment, Nationwide argues, inter alia, that it is entitled to the
requested declaratory judgment in its favor because of various admissions Defendant arguably made
when failing to respond to requests for admission that were served on Defendant. Pursuant to the parties’
stipulation, however, which this Court approved, [see ECF 21], Nationwide no longer seeks judgment
premised upon these alleged admissions. As such, this argument will not be addressed.
In their respective briefs, both parties rely upon and, therefore, appear to agree that Pennsylvania
law applies to this action. Because the homeowner insurance policy at issue was issued to residents of
Pennsylvania (Zatyko’s parents), this Court agrees that Pennsylvania law applies to this case. See Cat
Internet Servs., Inc. v. Providence Washington Ins. Co., 333 F.3d 138, 141 (3d Cir. 2003) (holding that
“Pennsylvania conflict of laws principles dictate that an insurance contract is guided by the law of the
state in which it is delivered.”)
recovery that the policy does not cover.” United Servs. Auto. Ass’n v. Elitzky, 517 A.2d 982, 985
(Pa. Super. Ct. 1986).
However, “[t]o prevent artful pleading designed to avoid policy
exclusions, it is necessary to look at the factual allegations in the complaint, and not how the
underlying plaintiff frames the request for relief.” Mut. Benefit Ins. Co. v. Haver, 725 A.2d 743,
745 (Pa. 1999). The mere allegation of “negligence” in a complaint is insufficient to trigger an
insurer’s duty to defend. See id. (“[T]he particular cause of action that a complainant pleads is
not determinative of whether coverage has been triggered. Instead it is necessary to look at the
factual allegations contained in the complaint.”); Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602,
605 (Pa. Super. Ct. 1997) (“[I]n focusing attention upon the cause of action pled, [claimants] run
afoul of our case law, which dictates that the factual averments contained in a complaint
determine whether an insurer must defend.”) (emphasis in original). The duty to defend is
properly denied where the allegations fall within a clear and unambiguous exclusion of coverage.
Harrison v. Aetna Life & Casualty, 473 A.2d 636, 636 (Pa. Super. Ct. 1984).
Here, in its motion for summary judgment, Nationwide argues that it does not owe a duty
to defend Zatyko in the State Court Action because the facts alleged in the State Court Complaint
(1) do not plead a claim that meets the policy definition of a covered “occurrence,” and (2) plead
a claim that falls within the clear policy exclusion for intentional conduct by an insured.
Specifically, Nationwide contends that the facts pled in the State Court Complaint support an
intentional assault by Zatyko of Fiocchi, an incident that does not fall within the policy definition
of a covered “occurrence,” and which is expressly excluded by the clear language of the policy’s
As stated, the policy at issue provides coverage only for “bodily injury” resulting from an
In addition, expressly excluded from the policy’s definition of a covered
“occurrence” are injuries caused by the intentional acts of an insured.
Supreme Court has held that the term “accident” within an insurance policy means “an
unexpected and undesirable event occurring unintentionally, and that the key term in the
definition of the ‘accident’ is ‘unexpected’ which implies a degree of fortuity.” Donegal, 938
A.2d at 292. An injury, therefore, is not “accidental” if it was the natural and expected result of
the insured’s actions. Lower Paxton Twp. V. U.S. Fidelity and Guar. Co., 557 A.2d 393, 398
(Pa. Super. Ct. 1989). Under Pennsylvania law, an insured is not entitled to coverage for
damages caused by his intentional assault on another person. State Farm & Cas. Co. v. Estate of
Mehlman, 589 F.3d 105, 112 (3d Cir. 2009); Gene’s Restaurant, Inc. v. Nationwide Ins. Co., 548
A.2d 246, 247 (Pa. 1988) (holding that existence of accident was a “policy requisite,” and insurer
owed no duty to defend where alleged injuries were not caused by an accident).
Nationwide argues that it has no duty to defend Zatyko in the underlying State Court
Action because the facts pled in the underlying State Court Complaint do not allege an injury
that was the result of a covered accident/occurrence, but rather plead an intentional assault, an
event which is expressly excluded by applicable policy exclusions. Based upon a fair reading of
the underlying State Court Complaint, this Court agrees.
In the State Court Complaint, Fiocchi baldly alleges that he was “negligently” assaulted
by Zatyko. (State Court Compl. ¶2). The State Court Complaint, however, is conspicuously
void of any facts underlying the alleged “negligent assault,” other than an averment that the
assault occurred sometime after Zatyko had had a verbal argument with Fiocchi earlier that
evening inside a bar. (State Court Compl. ¶1). In the absence of such facts, the State Court
Complaint merely alleges an assault which, under Pennsylvania law, is an intentional tort. See
Britamco Underwriters, Inc. v. Stokes, 881 F. Supp. 196, 200 (E.D. Pa. 1994); Minyard v. City of
Philadelphia, 2012 WL 3090973, at *6 (E.D. Pa. July 31, 2012). An intentional tort of assault is
not considered an “accident” and, therefore, is excluded from available insurance coverage.
Gene’s Restaurant, 548 A.2d at 247. Thus, in this Court’s opinion, the artful and vague pleading
of the State Court Complaint, which attempts to characterize an intentional assault as a claim
sounding in negligence, is insufficient to trigger Nationwide’s duty to defend.
Notwithstanding, in his response to Nationwide’s motion, Zatyko argues that resolution
of the coverage issues, including the duty to defend, must await final resolution of the underlying
State Court Action which might reveal that Zatyko’s conduct was not intentional but due to his
potential intoxication at the time of the incident. In his argument, Zatyko relies on various court
decisions which provide that an insured’s apparent intentional conduct may be overcome by an
allegation of intoxication. 6 Zatyko’s reliance on these cases is, however, misplaced as the
underlying State Court Complaint does not contain any allegations of his alleged intoxication.
In addition, a similar argument was addressed by the Third Circuit Court of Appeals in
State Farm Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 105 (3d Cir. 2009). In Mehlman,
the Estate of Thomas W. Mehlman, an insured, sought defense and indemnification under his
homeowner’s insurance policy issued by State Farm, for a state court action brought against the
Estate for injuries suffered by a plaintiff as a result of the insured’s actions. Id. at 109. State
Farm provided the insured a defense under a reservation of rights, but filed a declaratory
judgment action seeking a declaration that it did not have a duty to defend the insured because
the allegations in the underlying complaint against the insured did not assert a claim for a
covered occurrence or accident, but rather asserted a claim for intentional conduct, which was
not covered. Id. at 109-10. In the underlying action against the insured, the plaintiff alleged that
For this argument, Zatyko primarily relies upon IDS Property Cas. Ins. Co. v. Schonewolf, 11 F.
Supp.3d 618 (E.D. Pa. 2015), and the state court cases cited therein.
the insured consumed numerous alcoholic beverages within a short period of time, became
visibly intoxicated, and cognitively impaired. Id. at 108. In that physical state, the insured, inter
alia, pointed a loaded gun at the plaintiff several times and pulled the trigger, but the gun
misfired each time. Id. After an unsuccessful attempt by the police to negotiate the insured’s
surrender, the insured took his own life with the gun. Id. At the time, the insured had a blood
alcohol level of 0.21 percent. Id. Based on these alleged facts, the plaintiff asserted claims
against the Estate for intentional infliction of emotional distress, negligent infliction of emotional
distress, assault with a firearm and negligence. Id. at 109.
In its ruling, the Third Circuit held that the insurer had no duty to defend its insured. Id.
at 116. In reaching its decision with respect to the legal effect of a plaintiff’s allegation that an
insured was intoxicated at the time of the insured’s challenged conduct, the Third Circuit held:
“[w]e believe the Pennsylvania Supreme Court would agree with the Superior Court’s
observation in Martin that voluntary intoxication ordinarily will not prevent the formation of the
general intent necessary for the commission of an assault of the kind Iacono alleges to have
suffered.” Id. at 115. The Court also noted that the underlying complaint did not contain any
allegations that the insured had suffered from an alcoholic blackout or had lost awareness of his
actions at the time of the assault. Id. at 114. In the absence of such allegations, the Court held
that “[w]here as here, the injured party does not make allegations indicating that an insured’s
intoxication prevented him from intending the consequences of his violent behavior, we are
satisfied that Pennsylvania law does not permit an insured or his representative . . . to shift
responsibility for the damages from his behavior to his insurer.” Id. at 115.
As in Mehlman, the State Court Complaint in this case does not contain any allegation
that Zatyko was in the midst of an alcoholic blackout, or lost awareness of his actions. In fact,
unlike the underlying complaint in Mehlman, which actually averred the insured’s consumption
of alcohol and a resultant blood alcohol level over the legal limit, the State Court Complaint is
completely silent with respect to alcohol use and/or intoxication. Indeed, there are no allegations
that Zatyko was intoxicated or even consumed any alcohol at all. In the absence of any such
allegations with respect to intoxication, the underlying State Court Complaint contains no facts
from which one could infer that Zatyko lacked awareness of his actions. As such, the factual
allegations in the State Court Complaint do not trigger Nationwide’s duty to defend.
Defendant’s reliance on IDS Property Cas. Ins. Co. v. Schonewolf, 11 F. Supp.3d 618
(E.D. Pa. 2015) is also misplaced.
In IDS, the underlying complaint against the insured
contained several factual allegations to the extent that the insured had consumed alcohol and was
intoxicated at the time of the assault. Id. at 621-22. In light of these allegations as to the
intoxication of the insured, the court found that the underlying complaint contained sufficient
facts to undermine the insured’s intent, thereby triggering the insurer’s duty to defend. Id. at
625-26. As discussed above, however, there are no such allegations of alcohol consumption or
intoxication by Zatyko that could similarly convert the apparent assault into a negligent act and
trigger Nationwide’s duty to defend.
Here, Zatyko’s actions, as alleged in the underlying State Court Complaint, cannot be
reasonably characterized as anything other than intentional conduct. Despite the plaintiff’s
“artful pleading” of a claim sounding in “negligence,” the few factual allegations in the State
Court Complaint establish an intentional assault for which there is no coverage under the policy,
and make no reference whatsoever of Zatyko’s consumption of alcohol or intoxication. As such,
the State Court Complaint does not come close to alleging facts that could establish Zatyko’s
loss of mental control such that his assault of Fiocchi could be deemed an unintentional act, an
accident, or the result of Zatyko’s negligence. Accordingly, the pleadings in the State Court
Complaint are insufficient to trigger Nationwide’s duty to defend. Under these circumstances,
Nationwide’s motion for summary judgment is granted.
For the reasons stated herein, Plaintiff’s motion for summary judgment is granted. An
Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.
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