Alea London Limited v. Woodlake Management

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1429
ALEA LONDON LIMITED
v.
WOODLAKE MANAGEMENT;
CLIVEDEN REALTY CORP.; CLIVEDEN 2002, L.P.,
d/b/a CLIVEDEN APARTMENTS; CLIVEDEN, L.P.;
KHAR ABDULAH; MIRTA NIEVES-ABDULAH
Woodlake Management, Cliveden Realty Corp.,
Cliveden 2002, L.P., d/b/a Cliveden Apartments,
Cliveden, L.P.,
Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No.2-08-cv-4093
(Honorable Anita B. Brody)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 15, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges.
(Filed February 17, 2010 )
OPINION OF THE COURT

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Abdulah’s additional allegations of negligence all related to the inadequate security1
lock. For example, he alleged Woodlake negligently failed to warn him of the condition
and negligently failed to train its employees to repair the lock.
2
SCIRICA, Chief Judge.
Khar Abdulah and his wife brought suit in the Philadelphia Court of Common
Pleas against Appellants Woodlake Management, Cliveden Realty Corp., Cliveden 2002,
L.P. d/b/a Cliveden Apartments, and Cliveden, L.P. (collectively “Woodlake”) for
personal injuries sustained in a shooting at the Cliveden Apartments. Appellee Alea
London Ltd. (“Alea”), Woodlake’s insurer, sought a declaratory judgment in federal court
to establish that an assault and battery exclusion in the insurance policy discharged its
duty to defend or indemnify Woodlake. The United States District Court for the Eastern
District of Pennsylvania granted Alea’s motion for judgment on the pleadings. We will
affirm.
I.
On July 13, 2005, Abdulah was shot multiple times by an unknown assailant at the
Cliveden Apartments, a property owned or maintained at all times by Woodlake.
Abdulah and his wife filed suit asserting multiple counts of negligence against Woodlake.
In particular, Abdulah claimed Woodlake failed to provide or repair a working security
lock, creating a dangerous and defective condition on the premises and enabling the
assailant to enter the apartment building. Alea brought a declaratory judgment action in1
federal court arguing an exclusion in the policy for claims arising out of or related to an

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The District Court had jurisdiction under 28 U.S.C. § 1332(a)(2). We have2
jurisdiction over the appeal under 28 U.S.C. § 1291.
3
assault or battery, including a failure to prevent or suppress an assault or battery,
exempted it from its duty to defend Woodlake in Abdulah’s suit. The exclusion provides:
This insurance does not apply to any claim arising out of an assault and/or
battery regardless of culpability or intent or out of a physical altercation or
out of any act or failure to act to prevent or suppress such assault and/or
battery or a physical altercation whether caused by the insured, an
employee, a patron, or any other person . . . . The company is under no duty
to defend or to indemnify an insured in any action or proceeding alleging
such damages arising out of an assault and/or battery or physical altercation.
This exclusion applies as well to any claims by any other person, firm or
organization, asserting rights derived from, or contingent upon, any person
asserting a claim arising out of an assault and/or battery or a physical
altercation, and specifically excludes from coverage claims for: emotional
distress, or for loss of . . . consortium . . . .
This exclusion applies to all causes of action arising out of an assault and/or
battery regardless of culpability or intent or out of a physical altercation
including, but not limited to, allegations of negligent hiring, placement,
training, or supervision, or to any act, error, or omission relating to such an
assault and/or battery or a physical altercation.
Woodlake argued the exclusion did not apply because Abdulah alleged Woodlake’s
negligence caused his injuries. The District Court granted Alea’s motion for judgment on
the pleadings under Fed. R. Civ. P. 12(c), concluding that because Abdulah’s injuries
arose from the assault and not directly from Woodlake’s alleged negligence, the exclusion
applied. Woodlake now appeals.2

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Alea does not argue Abdulah’s injuries do not fall under the policy’s grant of3
coverage, see Baumhammers, 938 A.2d at 293 (holding an intentional act by a third party
still constituted an “occurrence” under an insurance contract), but rather claims only that
the assault and battery exclusion bars coverage.
4
II.
Our review of a Rule 12(c) motion is plenary. Rosenau v. Unifund Corp., 539 F.3d
218, 221 (3d Cir. 2008). Judgment on the pleadings “will not be granted unless the
movant clearly establishes that no material issue of fact remains to be resolved and that he
is entitled to judgment as a matter of law.” Id. (quoting Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)). We must view all facts and draw all
inferences in the light most favorable to the non-moving party. Id.
When interpreting an insurance contract under Pennsylvania law, which all parties
agree governs the dispute, the court must ascertain and give effect to the parties’ intent as
manifested in the terms of the policy. Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d
286, 290 (Pa. 2007). Where the contract language is ambiguous, we must construe that
provision in favor of the insured. Minn. Fire & Cas. Co. v. Greenfield, 855 A.2d 854,
861 (Pa. 2004). But, where the language is clear and unambiguous, we must give effect
to it. Id. If an insurer relies on a policy exclusion as an affirmative defense to deny
coverage, it bears the burden of proving the exclusion applies. Madison Constr. Co. v.3
Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999). The duty of an insurer to
defend the insured applies to any suit in which the complaint alleges injuries that may

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potentially fall within the grant of coverage. Baumhammers, 938 A.2d at 290-91. The
court must look beyond the cause of action pled to the factual allegations included in the
complaint. Id. at 291.
The exclusion denies coverage for claims “arising out of” an assault or battery.
The term “arising out of” is interpreted in terms of “but for” causation. See Madison
Constr., 735 A.2d at 109-10. Therefore, if an assault or battery was a “but for” cause of
the plaintiff’s injuries, an assault and battery exclusion will apply to allegations that the
insured’s negligence contributed to the injuries. See Acceptance Ins. Co. v. Seybert, 757
A.2d 380, 383 (Pa. Super. Ct. 2000). The insurer only owes a duty to defend if the
complaint alleges the insured’s negligence itself directly led to the injuries. See QBE Ins.
Corp. v. M&S Landis Corp., 915 A.2d 1222, 1229 (Pa. Super. Ct. 2007).
The parties’ dispute on appeal centers on the application of two Pennsylvania
Superior Court cases: Seybert and QBE. In Seybert, the plaintiff brought suit against
Belmont Bar, alleging it negligently served alcohol to five visibly intoxicated men who
subsequently attacked him. 757 A.2d at 381. Belmont argued an assault and battery
exclusion did not apply because the claims were based on Belmont’s negligence. Id. at
383. The court disagreed, holding that because the plaintiff’s injuries resulted solely from
the assault and battery, Belmont’s negligence was merely a contributing factor and not a
direct cause of the injuries. Id.

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The shooting constituted an assault under Pennsylvania law. See 18 Pa. Const. Stat. §4
2701 (defining assault as “negligently caus[ing] bodily injury to another with a deadly
weapon”).
6
In QBE, the underlying complaint alleged employees of defendant Fat Daddy’s
Nightclub forcibly ejected a patron and improperly restrained him, eventually smothering
him to death. 915 A.2d at 1224. The complaint alleged Fat Daddy’s negligently
restrained the patron and negligently trained and hired its staff, causing the patron’s
death. Id. The court held the exclusion did not apply because the complaint alleged the
injuries “arose from the alleged negligence,” not from an assault or battery. Id. at 1229.
Accordingly, the alleged negligence was a direct cause of the injuries, triggering the duty
to defend. Id.
All injuries alleged in this complaint are the result of the shooting itself, and4
accordingly, the assault was a “but for” cause of Abdulah’s injuries. There was no
allegation in the complaint that Woodlake’s negligence directly caused his injuries or
caused any independent harm, as there was in QBE. Rather, Woodlake’s failure to
provide a working security lock contributed to the shooting in much the same way as
Belmont’s negligent selling of alcohol to visibly intoxicated individuals contributed to the
plaintiff’s injuries in Seybert. Moreover, Woodlake’s alleged negligence only relates to
its failure to prevent or suppress the assault. The assault and battery exclusion
encompasses claims arising both from an assault or battery and from a failure to prevent

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Abdulah’s wife also brought a claim against Woodlake for loss of consortium. This5
claim derives from the assault, and coverage for it is explicitly barred by the language of
the exclusion.
7
or suppress an assault or battery. This language unambiguously bars coverage for
Abdulah’s claims, and accordingly, Alea has no duty to defend or indemnify Woodlake.5
III.
For the foregoing reasons, we will affirm the District Court’s grant of Judgment on
the Pleadings.

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