METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY v. SPAYD et al

Filing 14

OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/24/17. 7/25/17 ENTERED AND COPIES MAILED TO UNREP, E-MAILED.(er, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY

:
:
:
Plaintiff,
:
:
v.
:
:
ROBIN C. SPAYD, formerly known as
:
ROBIN C. BAJKOWSKI; and
:
MICHELLE DIGUGLIELMO
:
INIDIVIDUALLY AND AS PARENT AND LEGAL :
GUARDIAN OF V.P., A MINOR CHILD, and
:
J.P., A MINOR CHILD
:
:
Defendants
:
__________________________________________

No. 5:16-cv-04693

OPINION
Plaintiff’s Motion for Summary Judgment, ECF No. 10 – Granted in Part
Joseph F. Leeson, Jr.
United States District Judge
I.

July 24, 2017

INTRODUCTION

Plaintiff Metropolitan Property and Casualty Insurance Company (“MetLife”) filed a
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a) requesting that
this Court find as a matter of law that the homeowners policy it maintained with Defendant
Robin Spayd does not obligate MetLife to defend or indemnify her with regard to separate legal
proceedings instituted by Defendant Michelle DiGuglielmo in the Berks County Court of
Common Pleas. For the reasons set forth herein, because the claims arise out of conduct that is
not covered by the policy, MetLife does not have a duty to defend Spayd.
II.

BACKGROUND 1

From September 14, 2002, until September 14, 2008, Spayd (then Robin Bajkowski) and
her now deceased husband Edward Bajkowski (“the deceased”) maintained a Homeowners
Insurance Policy with MetLife for their residence at 225 Fairway Drive, Reading, Pennsylvania.
DiGuglielmo is the mother of two minor children, V.P. and J.P., and the daughter of Spayd and
the deceased. From 2003 to 2007, V.P. and J.P. lived with Spayd and the deceased at their home
1

Except as otherwise noted, background material is supplied from MetLife’s Complaint.
Compl., ECF No. 1.
1

in Reading, Pennsylvania. Compl. Ex. 1-2, ECF. No. 1. During this time, the deceased sexually
assaulted V.P. and J.P., and, in late 2008, the deceased was convicted of two (2) counts of
involuntary deviate sexual intercourse with a child. 2 His death followed shortly thereafter in
2009.
In September 2015, DiGuglielmo notified MetLife of the sexual assaults on her minor
children and thereafter asserted a claim against Spayd for negligent supervision, for which
coverage is sought under the policy. Following the claim, MetLife issued two Reservation of
Rights letters to Spayd in February and March 2016, stating that her policy may not extend to all
the claims DiGuglielmo asserted against her. In the letters, MetLife stated that it had been
contacted by an attorney for DiGuglielmo. See Exs. 1-1 and 1-2, ECF No. 1. Although Spayd
maintained continuous coverage during the 2002-2008 period, her policy contained slightly
different language at distinct points in time.3 The policy, during all periods, covered Spayd
against “occurrences” of “bodily injury” that occurred on her property. At all times, the policy
disclaimed any coverage for “the actual, alleged, or threatened sexual molestation of a person,”
stating that this conduct does not constitute “bodily injury.”
On October 24, 2016, DiGuglielmo filed a complaint in the Berks County Court of
Common Pleas, followed by an amended complaint on November 1, 2016, which contains two
counts of negligence against Spayd. See DiGuglielmo v. Spayd, No. 16-19541 (Berks Cty. Ct.
Com. Pl. filed Oct. 25, 2016); ECF No. 13. Count I asserts a cause of action for negligence on
behalf of J.P. and Count II asserts a cause of action for negligence on behalf of V.P. The
complaints allege that from September 2003 through September 2007, J.P. and V.P. lived with
Spayd and her now-deceased husband at their home in Reading, Pennsylvania. DiGuglielmo
alleges that during this time, the deceased sexually assaulted J.P. and V.P. at their home. The
complaints further allege that Spayd was aware of the deceased’s sexual perversions, schizoid
tendencies, consumption of alcohol, and use of Viagra, but she nevertheless left the children
alone with him. DiGuglielmo alleges, inter alia, that Spayd was negligent in failing to monitor
the deceased’s behavior and in failing to investigate claims by V.P. and J.P. that they did not
want to be alone with the deceased and sustained physical injuries caused by him. That case
remains pending. 4
III.

PROCEDURAL HISTORY

On August 26, 2016, MetLife filed a complaint for declaratory judgment, requesting that
this Court find that there is no liability coverage under the policy with respect to the claims
raised by DiGuglielmo against Spayd. Compl. 8. Both defendants were properly served, but
Spayd did not respond. Accordingly, default was entered against Spayd on December 2, 2016,
for failure to appear, plead, or otherwise defend. MetLife then filed a motion for summary
judgment in April 2017 seeking a declaration that it is not obligated by the policy to indemnify
or defend Spayd against claims made by DiGuglielmo. DiGuglielmo responded to MetLife’s
2

The offense is listed under 18 Pa. Cons. Stat. Ann. § 3123(b).
In its Complaint and Motion for Summary Judgment, MetLife provides text from three
policies from the periods 9/14/2002-9/14/2003, 9/14/2003-9/14/2006, and 9/14/2006-9/14/2008.
4
MetLife asserts in its summary judgment brief that service has not been perfected in the
underlying state-court action such that the pleading holds no legal significance. However, the
action has not been dismissed and there is nothing to suggest that DiGuglielmo might not seek
additional time to make service or otherwise reinstate a claim.
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2

Motion for Summary Judgment by stating that she did not oppose the Motion. The Court now
considers whether MetLife is entitled to summary judgment.
IV.

JURISDICTION

“The Declaratory Judgment Act provides that, ‘[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be
sought.’” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (quoting 28 U.S.C. §
2201(a)). A case and controversy must exist through all stages of review, including when the
complaint is initially filed, but “a plaintiff need not suffer a completed harm to establish
adversity of interest between the parties” in a declaratory judgment context. See Armstrong
World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d Cir. 1992). Rather, a plaintiff may protect
against a feared future event that “is real and substantial.” Salvation Army v. Dep’t of Cmty.
Affairs, 919 F.2d 183, 192 (3d Cir. 1990).
At the time the instant Complaint was filed, no civil action had been initiated yet in the
state court. Despite this fact, MetLife established that the probability of a suit being filed was
both real and substantial by alleging in the Complaint that it had already been contacted by an
attorney for DiGuglielmo who asserted a claim for negligent supervision “for which liability
coverage is sought under the MetLife Policy.” Compl. ¶¶ 16-18; Exs. 1-2, ECF Nos. 1-1 and 1-2.
Since initiating this action, DiGuglielmo has filed a suit in state court. Accordingly, this Court
has jurisdiction to consider whether MetLife has a duty to defend any claims against its insured.
The question of whether MetLife has a duty to indemnify, however, is “not ripe for
adjudication until the insured is in fact held liable in the underlying suit.” Knightbrook Ins. Co.
v. DNA Ambulance, Inc., No. 13-2961, 2013 U.S. Dist. LEXIS 176592, at *19-20 (E.D. Pa. Dec.
16, 2013) (citing Heffernan & Co. v. Hartford Ins. Co., 614 A.2d 295, 298 (Pa. Super. 1992)).
See also C. H. Heist Caribe Corp. v. Am. Home Assurance Co., 640 F.2d 479, 483 (3d Cir. 1981)
(holding that because “[a]ctual indemnification depends upon the existence or nonexistence of
facts not yet established . . . a decision on [the insurance company’s] obligation to indemnify [the
insured] is premature” when no judgment has been issued). The Court therefore dismisses,
without prejudice, MetLife’s claim for declaratory judgment on indemnity. See Medical Assur.
Co. v. Hellman, 610 F.3d 371, 375 (7th Cir. 2010) (concluding that where a duty-to-indemnify
claim is not ripe, the proper disposition is dismissal rather than a stay). The remainder of this
Opinion is therefore limited to addressing whether MetLife has a duty to defend.
V.

STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute of material fact” such that a reasonable jury could find in favor of the
nonmoving party. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). When, as in this case, the party moving for summary judgment bears
the burden of proof at trial, it must demonstrate “that it has produced enough evidence to support

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findings of fact necessary to win.” El v. Se. Pa. Transp. Auth. (“SEPTA”), 479 F.3d 232, 237 (3d
Cir. 2007) (citing Marzano v. Comput. Sci. Corp., 91 F.3d 497, 502 (3d Cir. 1996)).
Although DiGuglielmo supports, and Spayd has not responded to, MetLife’s motion for
summary judgment, this Court may not automatically grant summary judgment by default on
those bases. See Fed. R. Civ. P. 56(e)(3) advisory committee’s note to 2010 amendment
(recognizing that “summary judgment cannot be granted by default even if there is a complete
failure to respond to the motion”). Rather, the Court must still determine if MetLife’s Motion
and supporting documents demonstrate that MetLife is entitled to summary judgment on the
merits. Fed. R. Civ. P. 56(e)(3). “‘[T]his means that the district court must determine that the
facts specified in or in connection with the motion entitle the moving party to judgment as a
matter of law.’” Zurich Am. Ins. Co. of Illinois v. All Cty. Employment Servs., Inc., No. 5:16-CV01764, 2016 WL 7404519, at *2 (E.D. Pa. Dec. 21, 2016) (quoting Anchorage Assocs. v. V.I. Bd.
of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990)).
VI.

ANALYSIS

Interpreting insurance contracts is undertaken by the court to determine the intent of the
parties as manifested by the written agreement. Gen. Acc. Ins. Co. of Am. v. Allen, 692 A.2d
1089, 1093 (Pa. 1997). In the Commonwealth of Pennsylvania, an insurance company’s
obligation to defend an insured covered by its policy is analyzed under a two-part framework.
Simon Wrecking Co., Inc. v. AIU Ins. Co., 350 F. Supp. 2d 624, 640 (E.D. Pa. 2004). In a
declaratory judgment action, as here, the court is first required to ascertain the scope of the
policy’s coverage. Id. Following that determination, “the court must examine the complaint in
the underlying action to ascertain if it triggers coverage.” Id. (citing Allen, 692 A.2d 1089). The
duty to defend is broad and remains with the insurer until it can isolate the underlying action to a
recovery that is outside the scope of the written instrument. Id. For the reasons explained herein,
MetLife does not have a duty to defend Spayd because the underlying action is outside the scope
of the policy maintained by Spayd.
A.

MetLife does not have a duty to defend because the acts underlying
DiGuglielmo’s claim against Spayd constitute neither an “occurrence” nor
“bodily injury” as defined under the policy.

MetLife maintains that it has no duty to indemnify or defend Spayd with respect to
claims arising out of the deceased’s molestation of V.P. and J.V. from 2003 through 2007. It
points to provisions in its three policies over the relevant time period that state that
“occurrence[s]” of “bodily injury” that it does not cover include “the actual, alleged or
threatened sexual molestation of a person.” Ex. 1, ECF No. 1. As such, MetLife contends that
any bodily injury, if it arose from sexual molestation, does not constitute “bodily injury” as
defined under the policies. This Court agrees.
As previously mentioned, MetLife’s policy covered Spayd against “occurrences” of
“bodily injury” that occurred on her property. However, V.P. and J.P.’s “sexual molestation . . .
does not constitute a ‘bodily injury’. The plain language of the policies exclude coverage for
injury in the form of sexual molestation . . . .” Metro. Cas. Ins. Co. v. Sutherby, No. 3:09-CV05387, 2010 WL 715491, at *3 (W.D. Wash. Feb. 24, 2010). Indeed, the facts of this case are
remarkably similar to those in Sutherby. In Sutherby, a grandfather was alleged to have sexually
abused his granddaughter on multiple occasions between 2003 and 2007. Id. at *1. Her mother
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sued both the grandfather for the abuse itself and the grandmother for failing to protect her
granddaughter from the grandfather’s predatory behavior. Id. The grandparents maintained a
homeowners insurance policy with MetLife, which also excluded “the actual, alleged or
threatened sexual molestation of a person” from its coverage of “bodily injury.” Id. at *2. There,
MetLife asserted that its policy did not cover the allegations against the grandparents because the
underlying action did not seek damages for “bodily injury” as defined in the policy. Id. The court
agreed with MetLife, finding that the policy did not cover the grandparents. Id. at *3.
As in Sutherby, the deceased in the underlying action sexually abused his minor
grandchildren, and the grandmother allegedly failed to protect them from her husband’s abuse.
Spayd, like the grandmother in Sutherby, has maintained a homeowners insurance policy with
MetLife that specifically excluded from the definition of “bodily injury” “the actual, alleged or
threatened sexual molestation of a person.” Therefore, similar to the grandparents in Sutherby,
Spayd is not entitled to a defense by MetLife from injuries arising from her husband’s sexual
abuse of her grandchildren.
Furthermore, even if sexual molestation was not specifically excluded from the definition
of “bodily injury” under the policy, the sexual molestation of V.P. and J.P. does not constitute an
“occurrence.” The policy’s definition of “occurrence” is “an accident.” See Policy 9, Ex. 3, ECF
No. 1-3. An “accident” is an unexpected and undesirable event occurring unintentionally.
Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 291 (Pa. 2007) (holding that a death
caused by another’s criminal conduct is not “accidental”). Stated differently, an intentional act is
not an “accident.” See Terra Nova Ins. Co., Ltd. v. North Carolina Ted, Inc., 715 F.Supp. 688,
692 (E.D. Pa. 1989) (citing Gene’s Rest., Inc. v. Nationwide Ins. Co., 548 A.2d 246, 247 (Pa.
1988)). Thus, determining whether certain conduct was an “occurrence” requires a showing that
the underlying injury was caused by an accident or by intentional conduct. See Britamco
Underwriters, Inc. v. George Giouzelis, Inc., No. CIV.A. 93-4547, 1994 WL 622109, at *2 (E.D.
Pa. Nov. 8, 1994), aff’d, 65 F.3d 161 (3d Cir. 1995).
As to the deceased’s conduct, the sexual assault of DiGuglielmo’s children does not
constitute an “occurrence” because sexual molestation is an intentional criminal act. See
Westfield Ins. Co. v. Holland, No. CIV.A. 07-5496, 2008 WL 5378267, at *7 (E.D. Pa. Dec. 19,
2008) (holding that the defendant’s purportedly mutual sexual conduct with disabled elderly
woman was an intentional criminal act not covered by the insurance policy); see also 12th St.
Gym Inc. v. Phila. Indem. Ins. Co., Civ. A. No. 031931, 2006 WL 1652690, at *3 (Pa. Com. Pl.
June 12, 2006) (holding that gym employee’s sexual assault of a client was excluded from policy
coverage). Additionally, the doctrine of inferred intent applies to cases involving sexual
molestation of children by an insured individual. See Wiley v. State Farm Ins. & Cas. Co., 995
F.2d 457, 464-65 (3d Cir. 1993). This rule creates an irrefutable presumption that “harm to
children in sexual molestation cases is inherent in the very act of sexual assault committed on a
child regardless of the motivation for, or nature of, such assault, and that the resulting injuries as
a matter of law are intentional.” Nationwide Mut. Fire. Ins. Co. v. Deresky, 83 Pa. D. & C.4th 91,
99 (Ct. Com. Pl. 2006) (citing id.). Therefore, the deceased’s conduct with regard to V.P. and
J.P. during the relevant period was intentional and is not an “occurrence” as defined in the
policy.
Spayd’s alleged negligent supervision and failure to protect V.P. and J.P. also does not
constitute an “occurrence” under the MetLife policy. The law of the Commonwealth of
Pennsylvania does not automatically bar insurance recovery because the underlying event

5

involved intentional, criminal activity. Mohn v. Am. Cas. Co., 326 A.2d 346, 348 (Pa.1974).
Nonetheless,
whether or not intended acts are specifically excluded by the policy, Pennsylvania
law does not require an insurer to defend against claims deriving from crimes or
intentional torts when its policy defines a covered ‘occurrence’ as an ‘accident.’
This is true even when an insured is sued for negligently failing to prevent the
harmful intentional acts of another person.
Nationwide Mut. Fire Ins. Co. v. Molitor by Molitor, No. CIV. A. 95-0503, 1995 WL 672397, at
*4 (E.D. Pa. Nov. 9, 1995) (emphasis in original, footnote omitted). Thus, an insurer is under no
duty to defend a policyholder “even when a strong connection existed between the underlying
incident and specifically pleaded acts of negligence.” Id. (citing Britamco Underwriters v.
Grzeskiewicz, 639 A.2d 1208 (Pa. Super. 1994). Ultimately, “‘[i]t is not the negligen[ce] . . . that
caused the harm, but instead the underlying harmful conduct. Consequently, [courts] refuse to
separate these inherently intertwined causes of action.’” Id. (citation and footnote omitted)).
In Molitor, Mr. and Mrs. Craig were sued by another family with two minor children. 5
Mr. Craig had molested one of them and faced criminal proceedings after the children notified
their parents. Ms. Craig was sued for negligence in failing to prevent her husband’s predatory
behavior. Relying on their homeowners insurance policy with Nationwide, the Craigs requested
defense by Nationwide. Nationwide claimed it was not obligated to defend either of the Craigs
and moved for summary judgment. The court found that because Mr. Craig’s sexual acts that
provided the basis for negligence claims against Ms. Craig were not accidental, there was no
“occurrence” per the policy and, hence, no obligation to defend Ms. Craig.
Here, Spayd’s situation mirrors that of the Craigs. As in Molitor, Spayd is being sued for
negligently failing to prevent the sexual abuse of minor children at the hands of her deceased
husband. Because the claims against Spayd spring from intentional acts of her husband, there is
not an “occurrence” as defined by the policy, and she is not entitled to a defense by MetLife.
B.

The policy also contains a provision that excludes coverage for sexual abuse,
which also relieves MetLife of the duty to defend.

The abuse exclusion in MetLife’s policies precludes coverage for the sexual abuse that
occurred during the relevant time. Mot. Summ. J. ¶ 31, ECF No. 10. The policies state that
MetLife does “not cover bodily injury caused by or resulting from the actual, alleged or
threatened sexual molestation or contact, corporal punishment, physical abuse, mental abuse or
emotional abuse of a person.” Policy 33 ¶ 18, Ex. 4, ECF No. 1-4. The plain language of this
provision excludes the injury inflicted herein. See Sutherby, 2010 WL 715491, at *4 (finding
that the abuse exclusion in a similarly-worded policy clearly precluded coverage because the
granddaughter’s injuries were all alleged to have been “caused by or resulting from the . . .
sexual molestation”); see also Allstate Ins. Co. v. Bates, 185 F. Supp. 2d 607, 613 (E.D.N.C.
2000) (holding that the wife of a sexual abuser was not covered by a homeowners insurance
policy for charges arising out of the molestation). Therefore, similar to the grandmother in
Sutherby, Spayd is not entitled to a defense by MetLife. This Court concludes that the abuse

5

The children in this case were the Craigs’ own nieces.
6

exclusion is a separate and additional ground for exclusion of coverage to Spayd, and that
MetLife has no duty to defend her in the underlying action.
VII.

CONCLUSION

For the reasons set forth above, MetLife is entitled to a declaration that it does not have a
duty to defend Spayd for the lawsuit against her. A decision on whether MetLife has a duty to
indemnify would be premature, because no judgment has yet been entered against Spayd.
Therefore, the latter request for relief is denied at this time, without prejudice.
A separate order will follow.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.________
JOSEPH F. LEESON, JR.
United States District Judge

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