Allstate Prop. & Cas. Ins. Co. v. Winslow

Decision Date15 December 2014
Docket NumberCivil Action No. 13–1193.
Citation66 F.Supp.3d 661
PartiesALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff, v. Charlene WINSLOW, Thomas E. Winslow and Thomas M. Winslow, Defendants.
CourtU.S. District Court — Western District of Pennsylvania

R. Sean O'Connell, Robb Leonard Mulvihill LLP, Pittsburgh, PA, for Plaintiff.

Holly M. Whalen, Grogan Graffam, Pittsburgh, PA, for Defendants.


CONTI, Chief Judge.

In this action, Allstate Property and Casualty Insurance Company (Allstate) asks this court to enter an order, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, finding that it does not owe a duty to defend or a duty to indemnify to Charlene Winslow (Mrs. Winslow), Thomas E. Winslow (Mr. Winslow), or Thomas M. Winslow (Tommy Winslow) (collectively, the “Winslows”) with respect to any legal claims asserted against them by Paul Kahan (“Kahan”) in two underlying actions. Allstate and the Winslows filed cross-motions for summary judgment in which each party argues that Pennsylvania law dictates that judgment be entered in its favor. (ECF Nos. 18, 22.) Allstate filed a motion to strike the request made by the Winslows in their summary judgment papers for reimbursement of previously-incurred defense costs. (ECF No. 29.)

For the reasons that follow in this memorandum opinion, the court will enter an order declaring that Allstate has a duty to defend the Winslows, and must reimburse the Winslows for their defense costs, whether incurred prior to the issuance of this decision, or after. Allstate's motion to strike is, therefore, denied. The court declines to enter a final declaration with respect to Allstate's duty to indemnify at this time because such a declaration would be premature under the circumstances of this case, but notes that a conditional duty to indemnify arises from the duty to defend under Pennsylvania law.


All material facts set forth herein are undisputed unless otherwise indicated. Additional material facts may be discussed elsewhere in this memorandum opinion, in context.

Allstate issued Deluxe Plus Homeowners Policy Number 9 08 797437 to Mr. and Mrs. Winslow with a policy period of October 12, 2009 to October 12, 2010 (the “Policy”). (ECF No. 40 ¶ 3; ECF No. 41 ¶ 16.) The Policy defines “bodily injury” as:

bodily injury ”—means physical harm to the body, including sickness or disease, and resulting death, except that bodily injury does not include:
a) any venereal disease


b) Herpes;
c) Acquired Immune Deficiency

Syndrome (AIDS);

d) AIDS Related Complex;
e) Human Immunodeficiency

Virus (HIV);

or any resulting symptom, effect, condition, disease or illness related to (a) through (e) listed above.

(ECF No. 40 ¶ 4; ECF No. 41 ¶ 18.) Coverage X of the Policy, entitled Family Liability Protection, provides that:

Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies.

(ECF Nos. 1 & 8 ¶ 28.) Insured person is defined as you, and if a resident of your household: a) any relative; and b) any dependent person in your care.” (Id. ¶ 27.) Mr. and Mrs. Winslow are named insureds on the policy. (ECF No. 1–2 at 5.) There is no factual dispute that Tommy Winslow lived at the insured property with his parents at all times relevant to this dispute.

Kahan, with whom Mrs. Winslow worked at Slippery Rock University (“SRU”) and who taught Tommy Winslow while he was a student at SRU, filed two lawsuits against the Winslows. First, Kahan sued SRU, various SRU administrators, and the Winslows in this court, asserting, in seventeen separate counts, numerous violations of state and federal law (the “Federal Court Action”). (Id. ECF No. 40 ¶ 5; ECF No. 41 ¶¶ 1–2, 4–6; ECF No. 27–2). Second, Kahan filed suit in the Court of Common Pleas of Butler County, Pennsylvania, asserting a defamation claim against Mr. Winslow (the Butler County Action). (ECF No. 40 ¶¶ 14–15; ECF No. 41 ¶¶ 1, 13–15; ECF No. 27–3.) Kahan's claims in both the Federal Court Action and the Butler County Action (collectively, the “Kahan Actions”) arise out of SRU's decision not to renew his one-year teaching contract in March 2010, and the Winslows' conduct, occurring between December 2009 and May 2010, that purportedly lead to that decision and to criminal charges being filed against Kahan for allegedly assaulting Mrs. Winslow. There is no dispute that the claims asserted in the Kahan Actions arose during the Policy period. (ECF Nos. 1 & 8 ¶ 26.)

While both Kahan Actions were pending, Allstate filed the instant lawsuit seeking a declaration that the Policy does not impose a duty on Allstate to defend or indemnify the Winslows against either the Federal Court Action or the Butler County Action because Kahan does not assert claims that fall within the definitions of “bodily injury” or “property damage” under the Policy. (ECF No. 1 ¶¶ 33, 37; ECF No. 40 ¶¶ 1–2, 7, 16; ECF No. 41 ¶¶ 21–23.) The parties agree that Kahan asserts no claims in either Kahan Action that could possibly fall within the Policy's definition of “property damage.” (ECF No. 33 at 2 n. 2.) The parties disagree, however, with respect to whether Kahan asserts claims that fall within the Policy's definition of the term “bodily injury.” This question is the subject of the parties' cross-motions for summary judgment.

In the Federal Court Action, Kahan avers, in factual allegations applicable to all counts, that, as a result of the stress associated with his termination, the circumstances surrounding his termination, and the filing of baseless criminal charges against him, a) a preexisting migraine headache condition was exacerbated to the point that he was required, for the first time in his life, to take medication, b) he suffered severe abdominal pains, and c) he developed irritable bowel

syndrome. (ECF No. 27–2 ¶¶ 104–06; ECF No. 40 ¶¶ 8–9; ECF No. 41 ¶ 8.) In Count XII of the Federal Court Action, a defamation claim asserted under Pennsylvania statutory law against Mrs. Winslow and Tommy Winslow, Kahan repeats these factual allegations. (ECF No. 27–2 ¶ 250.) In his prayer for relief to Count XII, Kahan seeks to recover damages for, among other things, his “bodily injuries.” (ECF No. 27–2 ¶ 254; ECF No. 41 ¶¶ 8–9.) In Count XIV of the Federal Court Action, Kahan accuses Mrs. Winslow and Mr. Winslow of intentionally interfering with his SRU teaching contract, in violation of Pennsylvania common law. (ECF No. 27–2 ¶ 262–79.) Although Kahan does not explicitly repeat the allegations about his migraine condition, abdominal pains, and irritable bowel syndrome, he incorporates by reference all prior factual allegations into Count XIV. (ECF No. 27–2 ¶¶ 104–06, 262.) Kahan does specifically aver in Count XIV that he suffered “bodily injuries” as a result of the Winslows' interference, and seeks damages for, among other things, these “bodily injuries.” (ECF No. 27–2 ¶ 278–79; ECF No. 41 ¶¶ 10–11.) This court entered judgment as a matter of law against Kahan on each of the claims he asserted under federal law, and dismissed his state claims, including Counts XII and XIV, without prejudice to his right to refile then in state court. Kahan v. SRU, et al., 50 F.Supp.3d 667, 715–16, No. 12–407, 2014 WL 4792170, at *40–41 (W.D.Pa. Sept. 24, 2014).

In the Butler County Action, Kahan alleges that, as a result of Mr. Winslow's defamation, his migraine headache condition was exacerbated, requiring medication, and that he suffered severe abdominal pains and irritable bowel

syndrome. (ECF No. 27–3 ¶¶ 63–66, 82–84; ECF No. 41 ¶ 14.) He seeks to recover all damages permitted under the law. (ECF No. 27–3 ¶¶ 67, 86; ECF No. 41 ¶ 15.)


“The standard for granting summary judgment in a declaratory judgment action is the same as for any other type of relief.” Transguard Ins. Co. of Am. v. Hinchey, 464 F.Supp.2d 425, 429 (M.D.Pa.2006) (citing Cloverland–Green Spring Dairies, Inc. v. Pa. Milk Marketing Board, 298 F.3d 201, 210 n. 12 (3d Cir.2002) ). Summary judgment is appropriate if the record shows that there is no genuine dispute with respect to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The mere existence of a factual dispute, however, will not necessarily defeat a motion for summary judgment. Only a dispute over a material fact—that is, a fact that would affect the outcome of the suit under the governing substantive law—will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even then, the dispute over the material fact must be genuine, such that a reasonable fact-finder could resolve it in the nonmoving party's favor. Id. at 248–49, 106 S.Ct. 2505.

In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505 ; Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007) ; Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir.2001) ; Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir.2001) ; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir.1999). A court must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir.1998).

One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The summary judgment inquiry asks whether there is a need for trial—“whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of...

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