IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

SPENCER MILL, 

 Plaintiff, 

 v. 

NATIONWIDE PROPERTY AND 

CASUALTY INSURANCE CO., 

 Defendant. 

 No. 4:23-CV-00905 

 (Chief Judge Brann) 

 

MEMORANDUM OPINION 

NOVEMBER 26, 2024 

I. BACKGROUND 

At the end of an evening of heavy drinking, Brandon Peddigree smashed a 

beer bottle over Spencer Mill’s head. Mill’s eye was seriously damaged. Peddigree 

turned himself in to the authorities and eventually pled guilty to simple assault and 

reckless endangerment of another person. When Mill brought a civil suit against 

Peddigree, Peddigree turned to his insurer, Nationwide, for a defense. But 

Nationwide denied his claim and withdrew its attorney from the litigation. Facing 

personal liability, Peddigree settled the case with Mill, agreeing to a judgment of 

$650,000 in exchange for assignment of the right to pursue recovery from 

Nationwide and Mill’s promise not to execute the judgment against him 

personally. Now, Mill is suing Nationwide, seeking a declaratory judgment that it 

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was wrong to refuse to defend Peddigree and contending that it has a duty to 

indemnify him for the claim value pursuant to the settlement. 

Currently pending before the Court are cross-motions for summary 

judgment.1

 They are ripe for resolution. For the reasons below, Mill’s Motion for 

Summary Judgment is granted in part and denied in part, and Nationwide’s Motion 

for Summary Judgment is denied. 

II. DISCUSSION 

A. Standard of Review 

 Under Federal Rule of Civil Procedure 56, summary judgment is 

appropriate where “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.”2

 Material 

facts are those “that could alter the outcome” of the litigation, “and disputes are 

‘genuine’ if evidence exists from which a rational person could conclude that the 

position of the person with the burden of proof on the disputed issue is correct.”3

 A 

defendant “meets this standard when there is an absence of evidence that rationally 

supports the plaintiff’s case.”4

 Conversely, to survive summary judgment, a 

1

 Docs. 15, 21. 

2

 Fed. R. Civ. P. 56(a). 

3

 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010). 

4

 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993). 

Case 4:23-cv-00905-MWB Document 34 Filed 11/26/24 Page 2 of 46
3 

plaintiff must “point to admissible evidence that would be sufficient to show all 

elements of a prima facie case under applicable substantive law.”5

 

In assessing “whether there is evidence upon which a jury can properly 

proceed to find a verdict for the [nonmoving] party,”6

 the Court “must view the 

facts and evidence presented on the motion in the light most favorable to the 

nonmoving party.”7

 Moreover, “[i]f a party fails to properly support an assertion of 

fact or fails to properly address another party’s assertion of fact as required by 

Rule 56(c),” the Court may “consider the fact undisputed for purposes of the 

motion.”8

 Finally, although “the court need consider only the cited materials, . . . it 

may consider other materials in the record.”9

“This standard does not change when the issue is presented in the context of 

cross-motions for summary judgment.’”10 “When both parties move for summary 

judgment, ‘the court must rule on each party’s motion on an individual and 

separate basis, determining, for each side, whether a judgment may be entered in 

accordance with the Rule 56 standard.’”11

5

 Id. 6

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin 

Imp. Co. v. Munson, 81 U.S. 442, 448 (1871)). 

7

 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020). 

8

 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d 

Cir. 2018). 

9

 Fed. R. Civ. P. 56(c)(3). 

10 Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016) (quoting 

Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987)). 

11 Id. (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure § 2720 (3d ed. 

2016)). 

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B. Admissible Evidence 

Before turning to the facts, the Court must resolve the parties’ dispute 

regarding the admissibility of testimony from the earlier litigation arising from this 

incident. Mill offers Peddigree’s sworn interview testimony, Jordan Dauberman’s 

voluntary police statement, general affidavit, and deposition testimony, and an 

investigator’s interview notes for John Rickert and Courtney Quiggle.12

Nationwide objects to this evidence as inadmissible hearsay.13

“[H]earsay statements can be considered on a motion for summary judgment 

if they are capable of admission at trial.”14 To justify Court consideration of 

hearsay on a motion for summary judgment “[t]he proponent need only ‘explain 

the admissible form that is anticipated.’”15 In Fraternal Order of Police, Lodge 1 v. 

City of Camden, the United States Court of Appeals for the Third Circuit held that 

the district court should have considered hearsay statements relayed through 

depositions taken from other witnesses on a motion for summary judgment when 

the plaintiff “identified the out-of-court declarants . . . and noted their ability to 

12 Docs. 23-12, 23-13, 23-15, 23-16, 23-17, 23-18, & 23-19. 

13 Doc. 17 (Nationwide Brief) at 18-20. 

14 Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223 n.2 (3d Cir. 2000) (citing 

Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995)). 

15 Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) 

(quoting Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment). 

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testify.”16 Here, Mill has not offered any explanation as to how the evidence he is 

submitting might be admissible at trial. Nevertheless, the Court is satisfied that, 

given the parties’ knowledge of the out-of-court declarants’ identities, Mill could 

call them to testify, and their out-of-court statements can therefore be considered 

on this motion for summary judgment.17

With these standards outlining the Court’s framework for review, I now turn 

to the facts. 

C. Background 

1. Assault at the Saloon 

On the evening of May 12, 2018, Brandon Peddigree and his girlfriend, 

Jordan Daubermen, went with some friends to shoot pool and socialize at the 

Riverside Saloon in Lock Haven, Pennsylvania.18 Spencer Mill had the same idea, 

16 Id. at 238-39; see Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 600 (M.D. Pa. 2014) 

(potential admissibility may be “demonstrated by the proponent showing some likelihood 

that the declarant will appear and testify at trial.” (quoting Howley v. Experian Info. Sols., 

Inc., 813 F. Supp. 2d 629, 637 (D.N.J. 2011)). 

17 If the declarants proved unavailable at trial, Mill would bear the burden of demonstrating the 

admissibility of their depositions. James v. Tri-Way Metalworkers, Inc., 189 F. Supp. 3d 422, 

432-33 (M.D. Pa. 2016) (quoting Pittsburgh Press Club v. United States, 579 F.2d 751, 758 

(3d Cir. 1978)). The Court further notes that the reliability of Dauberman’s voluntary 

statement and the statements attributed to Rickert and Quiggle is questionable given that 

none of these statements was sworn, cf. United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 

308, 315-16 (3d Cir. 2019) (holding that unsworn statement submitted in litigation was 

insufficient to create an issue of fact on summary judgment), and the Rickert and Quiggle 

statements additionally come to the Court as double hearsay. Nevertheless, because the 

hearsay statements of the out-of-court declarants in Fraternal Order of Police should have 

been considered despite being unsworn by the original declarant, the Court concludes that all 

of these statements can be considered. Ultimately, none of the unsworn hearsay statements 

independently creates a genuine dispute of material fact that would change the outcome of 

this opinion. 

18 Doc. 22-4 (Peddigree Dep.) at 17:10-18:11. 

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as did Courtney Quiggle.19 Although the latter two were friendly, they did not 

come to the Saloon together.20 Quiggle was also friends with Dauberman and 

Peddigree, but neither Dauberman nor Peddigree was familiar with Mill.21

Quiggle arrived at the Saloon around 9:30 p.m.,22 Peddigree and Daubermen 

followed at around 10:00 p.m.,23 and Mill came last at around 11:00 p.m.24

Peddigree was drinking, and estimated that over the course of six hours he 

consumed “close to ten beers,” “close to ten shots[,] and a mixed drink or two in 

between.”25 As a result, he “do[es]n’t remember a whole lot of the night.”26 The 

others were not drinking as heavily: Mill was “slightly buzzed,”27 and Quiggle had 

“a total of four drinks throughout the entire evening.”28

As closing time neared, Mill approached Quiggle at the bar, sat down to her 

right, and asked if she would be interested in joining him and his friends at his 

apartment.29 According to Mill, his intent was purely friendly and entirely 

19 Doc. 22-3 (Mill Dep.) at 17:5-14, 18:6-9. 

20 Id. at 12:15-13:6. 

21 Id. at 15:8-17, 16:19-23; Doc. 22-4 at 11:22-25, 12:12-21. 

22 Doc. 23-19 (Quiggle Interview Notes) ¶ 3. 

23 Doc. 22-4 at 18:3-5. 

24 Doc. 22-3 at 17:23-24. 

25 Doc. 23-12 (Earlier Action Peddigree Examination) at 22:1-7. 

26 Id. at 22:10-14. 

27 Doc. 22-3 at 30:18-21. 

28 Doc. 23-19 ¶ 7. 

29 Doc. 22-3 at 18:10-20:4, 21:6-25. 

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aromantic.30 Their conversation lasted for around 20-30 minutes,31 and, by the end, 

Quiggle was “open to coming back” with Mill.32

Dauberman was also at the bar, and was seated on Quiggle’s left.33 She 

remembers the conversation differently. According to Dauberman, Quiggle 

repeatedly refused Mill’s requests to go to his apartment.34 When Mill persisted, 

Dauberman interjected and told him to leave Quiggle alone.35 In Dauberman’s 

recollection, Mill did not take kindly to her interference and grabbed her thigh so 

hard that it bruised.36 Dauberman cried out in pain, alerting her boyfriend, 

Peddigree, that Mill was hurting her.37 Peddigree was sitting at the bar to Mill’s 

right throughout the entire interaction.38 When Dauberman called out, Peddigree 

told Mill to stop and—practically simultaneously—took the beer bottle that he was 

holding and used it to strike Mill in the head.39 In the moment that he struck Mill, 

30 Id. at 20:5-12. 

31 Id. at 18:16-22. 

32 Id. at 24:8-9. 

33 Id. at 21:9-11. 

34 Doc. 23-17 (Earlier Action Dauberman Dep.) at 21:19-22, 22:9-13; Doc. 23-16 (Criminal 

Action Dauberman Aff.) at 1. 

35 Doc. 23-17 at 21:19-23. 

36 Id. at 22:15-23:12; Doc. 23-16 at 1; Doc. 23-15 (Criminal Action Dauberman Voluntary 

Statement) at 1. 

37 Doc. 23-17 at 21:23-22:1; Doc. 23-16 at 1; Doc. 23-15 at 1; Doc. 23-12 at 17:9-11, 19:4-7; 

Doc. 22-4 at 22:10-13, 23:6-9. 

38 Doc. 23-12 at 19:19-22. 

39 Doc. 23-12 at 17:9-18:4; Doc. 22-4 at 23:10-13, 30:8-23; Doc. 23-17 at 22:1-2. 

Case 4:23-cv-00905-MWB Document 34 Filed 11/26/24 Page 7 of 46
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Peddigree “blacked out.”40 Although he recalls Dauberman saying something, his 

only recollection of the attack is “hearing the glass break.”41

Mill does not recall any precipitating event.42 He denies touching, grabbing, 

threatening, or intimidating Dauberman.43 He does not recall Dauberman 

intervening in his conversation with Quiggle and, in fact, believes that it may have 

been Dauberman’s “intention . . . to join [Quiggle] if [she and Mill] were to leave 

together.”44 In Mill’s words, he is “one hundred percent” certain that he does now 

and has always believed that “Mr. Peddigree did not strike [him] accidentally [and] 

40 Doc. 22-4 at 22:10-13. 

41 Doc. 23-12 at 18:22-24; see id. at 17:5-19:7; Doc. 22-4 at 23:6-25:6 (“Q. So you remember 

being at the bar; you remember dealing with the bartender, and you remember Jordan saying 

something? A. Yes. Q. What’s the next thing you remember? A. They were throwing me out 

the door, telling me to leave. Q. Do you remember going to the floor with Spencer Mill? . . . 

A. No, I don’t remember.”); Doc. 23-13 (Earlier Action Peddigree Dep.) at 28:8-15 (“I 

remember sitting at the bar, and I think Jordan was trying to pay her tab, and I was just sitting 

there. I believe I was speaking to someone on my right but I don’t recall who and that’s when 

I like heard her yell out to me that he was hurting her and stuff and then I guess I picked the 

bottle up and that’s when I hit him I guess to try to get him to stop.”). 

42 Doc. 22-3 at 27:25-28:3 (“Q. Was there any warning or indication that something might 

happen, such as the assault that occurred? A. No.”); id. at 30:6-9 (“Q. Did you hear Jordan 

Dauberman saying anything out loud prior to being struck with the bottle? A. No.”). 

43 Id. at 24:25-25:24 (“Q. If someone said that you grabbed [Dauberman], that would be true or 

would that be false? A. That would be false. Q. If someone said that you were hurting her, 

would that be true or would that be false? A. No, that would be false.”); id. at 29:4-21 (“A. 

After the accusation came out, that I had grabbed [Dauberman]’s leg, [Quiggle] had said she 

doesn’t remember that ever happening. . . . Q. Okay. You were certain it did not happen, is 

that true? A. I am myself, yes, certain, it did not happen. Q. Okay. So if we were in a 

courtroom right now, in front of a judge at a trial, you would absolutely testify you did 

absolutely nothing to touch, approach, threaten, or intim[id]ate Jordan Dauberman prior to 

your being struck by Mr. Peddigree? A. Yes.”). 

44 Id. at 23:4-18. 

Case 4:23-cv-00905-MWB Document 34 Filed 11/26/24 Page 8 of 46
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. . . that there was absolutely no reason for [Peddigree] to strike [him], [and] that he 

w[as]n’t doing anything to anybody.”45

After Peddigree hit Mill with the bottle, the two ended up on the floor.46

When Mill regained consciousness, Peddigree was holding him around the neck, 

“choking” him.47 Peddigree was eventually pulled off of Mill and thrown out of the 

Saloon.48 According to Peddigree, his friends told him what he had done once they 

were outside.49 Shortly thereafter, Peddigree got a ride to the police station and 

turned himself in.50

Peddigree was charged in the Court of Common Pleas of Clinton County, 

Pennsylvania with aggravated assault,51 simple assault,52 recklessly endangering 

another person,53 harassment by physical contact,54 and disorderly conduct for 

45 Id. at 34:19-35:8; see id. at 26:21-28:9 (“Q. Was there any need for anybody to intervene, in 

any way, to provide assistance to protect anyone from you? A. No.” . . . “Q. Do you believe 

there was any reason for anyone to strike or hit you? A. No. Q. Do you believe there was any 

reason at all for anyone to even confront you verbally about what was going on between 

yourself, Courtney Quiggle and/or Jordan Dauberman? A. No.”). 

 As the Court’s analysis will make clear, a jury that believed Mill’s testimony would likely 

have a difficult time ruling in his favor. Nationwide did not argue that Mill’s statements 

should be considered binding admissions of fact, so the Court does not treat them as such. 

See Coleman v. Wyeth Pharms., Inc., 6 A.3d 502, 524-26 (Pa. Super. Ct. 2010) (discussing 

rule of judicial admissions). At trial, Nationwide will be free to confront Mill with his selfsabotaging assertions. Id. at 526. 

46 Doc. 22-3 at 31:20-23. 

47 Id.; see id. at 32:1-3 (“Q. So he continued to assault you even though you were unconscious? 

A. Yes.”). 

48 Doc. 22-4 at 23:18-20; Doc. 22-3 at 31:20-23. 

49 Doc. 22-4 at 27:2-14. 

50 Id. at 26:18-28:9. 

51 18 Pa. Cons. Stat. § 2702(a)(4). 

52 18 Pa. Cons. Stat. § 2701(a)(2). 

53 18 Pa. Cons. Stat. § 2705. 

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fighting.55 He eventually pled guilty to simple assault and reckless endangerment, 

and the other charges against him were dismissed.56 He was sentenced to 1-2 years 

in prison, 2 years of probation, and fines.57 Mill came away from the assault with a 

large corneal laceration to his right eye, resulting in prolapsed uveal tissue, a 

prolapsed lens, and prolapsed vitreous.58

2. Civil Suit and Nationwide Insurance Policy 

At the time of the assault, Peddigree’s parents held homeowners and 

umbrella insurance policies with Nationwide, under which Peddigree was 

insured.59 So when Mill sued Peddigree to recover damages for his injuries,60

Peddigree filed claims pursuant to both policies for a defense and, if necessary, 

indemnity. Nationwide denied his claim under the homeowners policy, reasoning 

that its coverage exclusion for liability for bodily injury “caused by or resulting 

from an act or omission which is criminal in nature and committed by an insured” 

operated to bar coverage.61 Mill does not challenge this denial. Nationwide initially 

provided Peddigree with a defense pursuant to the umbrella policy, but reserved its 

54 18 Pa. Cons. Stat. § 2709(a)(1). 

55 18 Pa. Cons. Stat. § 5503(a)(1); see Doc. 23-6 (Criminal Docket Sheet) at 3. 

56 Doc. 23-6 at 3. 

57 Id. at 3-4. 

58 See Doc. 1-1 (Compl.) ¶¶ 11-13. 

59 Doc. 22-2 (Nationwide Umbrella Policy) at D1 (defining “insured” as “any of the following 

who live in your household: (1) your relatives”). 

60 See Mill v. Peddigree, No. 548-2020 (Pa. Ct. C.P. Clinton Cnty. 2020). 

61 Doc. 28-7 (Nationwide Homeowners Denial Letter). 

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rights “not to indemnify” and “to withdraw the defense being provided.”62 And a 

few months later, Nationwide exercised its rights, ordered its attorney to withdraw, 

and denied coverage under the umbrella policy. 

The umbrella policy (“the policy”) provides, in relevant part, that 

Nationwide “will pay for damages an insured is legally obligated to pay due to an 

occurrence in excess of: a) the retained limit; plus, b) any other liability insurance 

available to an insured which applies to an occurrence.”63 An “occurrence” is 

defined as “an accident including continuous or repeated exposure to the same 

general conditions . . . [that] result[s] in bodily injury, property damages, or 

personal injury caused by an insured.”64 The policy includes a coverage exclusion 

for “[b]odily injury, property damage and personal injury caused intentionally by 

or at the direction of an insured, including willful acts the result of which the 

insured knows or ought to know will follow from the insured’s conduct” (the 

“intentional-acts exclusion”).65 However, that exclusion contains an exception for 

“bodily injury or property damages caused by an insured trying to protect person or 

property” (the “self-defense exception”).66

62 Doc. 23-7 (Nationwide Umbrella Tentative Coverage Letter) at 3. 

63 Doc. 22-2 at C1 (some original bolding omitted). 

64 Id. at D1. 

65 Id. at E1. 

66 Id.

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Neither Peddigree nor Mill was particularly happy about Nationwide’s exit 

from the case.67 Notably, however, no party attempted to have the coverage 

question definitively decided during the pendency of the state civil litigation. 

Nationwide did not pursue a declaratory judgment that Peddigree’s acts were not 

covered, and Peddigree did not bring claims for duty to defend or indemnify. 

Instead, everyone appears to have taken the easiest way out in the moment. 

Nationwide simply walked away, daring its insured to sue for coverage. Peddigree 

and Mill, apparently acknowledging that without insurance Peddigree would be 

unable to pay what was likely to be a substantial damages award, settled with the 

stipulation that Mill would only attempt to recover the judgment to which they 

agreed—$650,000—from Nationwide in exchange for the assignment of 

Peddigree’s right to seek coverage.68 The Clinton County Court of Common Pleas 

approved the settlement and entered judgment on April 13, 2023.69

3. Present Case 

Mill exercised his newly acquired rights immediately. He sued Nationwide 

in the Clinton County Court of Common Pleas on April 18, 2023, seeking a 

67 See Doc. 23-10 (Settlement Agreement) (“Mill and Peddigree believe that the conduct of 

Nationwide is wrongful and violates the principles of good faith and fair dealing under 

Pennsylvania law and breaches the umbrella policy.”). 

68 Id. 69 Doc. 23-11 (Order Approving Settlement). 

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declaratory judgment that Nationwide owed a duty of indemnity to Peddigree—

and, through the settlement, to him—under the umbrella policy.70

Nationwide removed the case to this Court on June 1, 2023, invoking federal 

diversity jurisdiction71 and contending that the amount-in-controversy requirement 

of $75,000 was constructively met by the existence of the $650,000 judgment.72

The parties conducted discovery and their cross-motions for summary judgment 

are currently pending. 

D. Conduct of Litigation 

Before turning to the legal analysis, the Court must note that this litigation is 

something of a mess. When an insurance company believes that it has no duty to 

defend or indemnify an insured for a particular claim that is the subject of litigation 

between the insured and a third party, the insurer should use Pennsylvania’s 

declaratory judgment procedure “to resolve the question of coverage to eliminate 

uncertainty.”73 “[A]n insurer’s duty to defend is triggered, if at all, by the factual 

70 Doc. 1-1. 

71 28 U.S.C. § 1332(a). 

72 Doc. 1 (Notice of Removal). The Court agrees that the amount-in-controversy requirement is 

satisfied. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 347 (1977) (“In actions 

seeking declaratory judgment . . . the amount in controversy is measured by the value of the 

object of the litigation.”). 

73 Am. & Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 2 A.3d 526, 542 (Pa. 2010) (“Jerry’s 

Sport Center II”); Selective Way Ins. Co. v. Hosp. Grp. Servs., Inc., 119 A.3d 1035, 1048 (Pa. 

Super. Ct. 2015) (en banc) (“[A]ccording to our Supreme Court, if an insurance company is 

uncertain about its duty to defend an insured in a third party’s action, it is expected and 

anticipated that the insurance company will bring a declaratory judgment action concerning 

its duty to defend prior to denying coverage to an insured.” (citing Jerry’s Sport Center II, 2 

A.3d at 542)); see Stidham v. Millvale Sportsmen’s Club, 618 A.2d 945, 954 (Pa. Super. Ct. 

1992) (“Aetna did not, however, pursue the available declaratory judgment procedure at the 

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averments contained in the complaint [against the insured] itself.”74 “[T]he 

obligation to defend arises whenever the complaint filed by the injured party may 

potentially come within the coverage of the policy.”75 “An insurer’s duty to 

indemnify is narrower than its duty to defend,”76 and “arises only when the insured 

is determined to be liable for damages within the coverage of the policy.”77

Thus, in the normal case, a declaratory judgment action will clarify at the 

outset whether insurance coverage may be possible for the injuries alleged in a 

lawsuit against an insured. If there is any chance that the harm could be covered, 

the insurer must provide a defense in the underlying suit. The underlying suit 

progresses, and, if it results in a verdict against the insured on claims that are 

covered under the policy, the insurer has a duty to indemnify and must pay the 

damages (to the extent the policy provides). If the harm could not be covered, the 

insurer is free to deny coverage. This framework optimizes the litigation process. 

The injured party will have a general idea of whether the suit is worthwhile—if 

outset in order to definitively determine its duty to defend McLaughlin. A declaratory 

judgment action, though not specifically required by law, might have resolved at the outset 

the question of Aetna’s duty to defend.”). 

74 Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Com. Union Ins. Co., 908 A.2d 888, 896 (Pa. 

2006). 

75 Am. & Foreign Ins. Co. v. Jerry’s Sport Center, 948 A.2d 834, 845 (Pa. Super. Ct. 2008) 

(“Jerry’s Sport Center I”), aff’d 2 A.3d 526 (Pa. 2010) (quoting Wilcha v. Nationwide Mut. 

Fire Ins. Co., 887 A.2d 1254, 1258 (Pa. Super. Ct. 2005)) (original emphasis omitted and 

new emphasis added). 

76 Main St. Am. Assurance Co. v. Howard Lynch Plastering, Inc., 585 F. Supp. 3d 737, 743 

(E.D. Pa. 2022) (citing Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 673 (3d Cir. 2016)). 

77 QBE Ins. Corp. v. Walters, 148 A.3d 785, 788 (Pa. Super. Ct. 2016) (quoting Selective Way, 

119 A.3d at 1046). 

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there is no coverage and the insured is judgment-proof, it is not. The insurer will 

know whether it may be required to indemnify and can choose between litigation 

or settlement, and if seeking settlement, can negotiate on reasonable terms. And, if 

the case proceeds to trial, a jury can gauge the insured’s actions on the well-worn 

ground of tort law, render a verdict, and determine a fair amount of damages. 

This case, on the other hand, has gone backwards. When Nationwide 

“cavalier[ly]” exited the underlying litigation,78 the parties’ incentives changed and 

Peddigree agreed to a pricey settlement knowing that he would never have to pay 

it. Peddigree’s actual liability was never litigated in that suit.79 Now, with a sum 

certain hanging like an anvil overhead, the parties are finally reaching the question 

of whether Nationwide might have an obligation to its insured more than six years

after Peddigree hit Mill. A jury considering Peddigree’s liability will have to sift 

through an evidentiary record obscured by the fog of intoxication and then eroded 

by years of time to determine what was in Peddigree’s mind in the moment he 

acted. That is not how cases like this should proceed, and Nationwide must bear 

the consequences of its actions.80

78 Stidham, 618 A.2d at 955. 

79 See Doc. 22-5 (Underlying Complaint) ¶¶ 21-31; Doc. 23-10 ¶ 1 (stating generally that 

settlement was “based upon facts set forth in Mill’s amended complaint”). 

80 See Stidham, 618 A.2d at 955 (“Aetna’s cavalier approach to the legal proceedings, based on 

its independent decision not to participate, was risky. Aetna had the opportunity to litigate the 

issue of McLaughlin’s intent and must, therefore, be bound by the findings that those actions 

were both negligent and the legal cause of Brett Stidham’s death.”). 

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E. Analysis 

In his motion for summary judgment, Mill argues that Peddigree’s actions 

should be covered by the umbrella policy because he was acting in defense of 

Dauberman when he struck Mill.81 Thus, according to Mill, the self-defense 

exception to the intentional-acts exclusion applies, and Peddigree’s acts are 

covered.82 Mill additionally argues that Peddigree’s actions were not intentional 

because he was intoxicated at the time.83

In its motion for summary judgment, Nationwide argues that Peddigree’s 

actions are not covered by the umbrella policy for two primary reasons. First, it 

contends that, because he intentionally swung the bottle at Mill, his actions were 

not an “accident” and thus there was no “occurrence” to trigger coverage in the 

first place.84 Second, if the assault could be considered an “occurrence,” the 

intentional acts exclusion applies to bar coverage because Peddigree intended to 

injure Mill.85 Nationwide argues that the self-defense exception is inapplicable for 

two reasons: (1) Peddigree’s guilty plea in the criminal action estops him from 

claiming defense of another; and (2) the facts in the record demonstrate beyond 

dispute that Peddigree was not acting in defense of another.86

81 Doc. 25 at 14-18. 

82 Id.

83 Id. at 18-22. 

84 Doc. 17 at 4-8. 

85 Id. at 8-11. 

86 Id. at 12-18. 

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In analyzing Nationwide’s duties to defend and to indemnify, the Court must 

determine whether Peddigree’s actions could fall within the scope of the umbrella 

policy’s coverage.87

1. The Umbrella Policy 

The parties agree that Pennsylvania law governs the umbrella policy. “When 

interpreting insurance policies, ‘[a court] must apply general principles of contract 

interpretation, as, at base, an insurance policy is nothing more than a contract 

between an insurer and an insured.’”88 A court’s duty is to “ascertain the intent of 

the parties as manifested by the terms used in the written insurance policy. Just as 

in statutory construction, when the language of the policy is clear and 

unambiguous, a court is required to give effect to that language.”89 “When terms in 

a contract are not defined, [a court] must construe the words in accordance with 

their natural, plain, and ordinary meaning,” which can be determined by reference 

to “statutes, regulations or the dictionary.”90

 Whether Peddigree may enjoy insurance coverage in this case of intoxicated 

defense of another raises questions that implicate the central purposes of insurance. 

87 Ramara, 814 F.3d at 673 (citing Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 226 (3d Cir. 

2005)); Selective Way, 119 A.3d at 1046 (quoting Regis Ins. Co. v. All. Am. Rathskeller, Inc., 

976 A.2d 1157, 1161 (Pa. Super. Ct. 2009)). 

88 Erie Ins. Exch. v. Backmeier, 287 A.3d 931, 946 (Pa. Super. Ct. 2022) (quoting Gallagher v. 

Geico Indem. Co., 201 A.3d 131, 137 (Pa. 2019)). 

89 Id. (quoting Gallagher, 201 A.3d at 137). 

90 Nazareth Mut. Ins. Co. v. Pa. Ins. Dep’t, 298 A.3d 140, 151 (Pa. Commw. Ct. 2023) (quoting 

Cordero v. Potomac Ins. Co. of Ill., 794 A.2d 897, 900 (Pa. Super. Ct. 2002) and Atiyeh v. 

Bd. of Comm’rs of Twp. of Bethlehem, 41 A.3d 232, 236-37 (Pa. Commw. Ct. 2012)). 

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“One of the fundamental assumptions deeply embedded in insurance law is the 

principle that an insurer will not pay for a loss unless the loss is ‘fortuitous,’ 

meaning that the loss must be accidental in some sense.”91 From this core tenet 

stem the contractual provisions in this contract: “occurrence” is explicitly defined 

as an “accident”;92 the intentional-acts exclusion is designed to prevent the insured 

from recovering for losses that he deliberately brought about (i.e., that were not 

fortuitous);93 and the self-defense exception provides solace for an insured who 

acts intentionally, but does so innocently and in response to an unexpected (i.e. 

fortuitous) situation.94 Intoxication affects the insured’s mental state, and therefore 

may bear on whether events are fortuitous from his perspective.95 Pennsylvania 

courts’ existing interpretations of these standard terms and concepts bear out the 

central role of the principle of fortuity. 

91 1 Robert H. Jerry, II, New Appleman on Insurance Law Library Edition § 1.05(2)(a) (2024); 

see Auto-Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 405-06 (3d Cir. 2016) 

(quoting United Servs. Auto. Ass’n v. Elitzky. 517 A.2d 982, 986 (3d Cir. 2016)). 

92 Doc. 22-2 at D1; see 1 Appleman § 1.05(2)(a); Kvaerner, 908 A.2d at 899. 

93 1 Appleman § 1.05(2)(a); see State Farm Fire & Cas. Co. v. DeCoster, 67 A.3d 40, 49-50 

(Pa. Super. Ct. 2013). 

94 DeCoster, 67 A.3d at 49-50 (Insurance’s purposes “[are] not served by interpreting [an 

intentional-acts exclusion] to exclude coverage in self-defense situations where the insured is 

not acting by conscious design but is attempting to avoid a ‘calamity’ which has befallen 

him.” (quoting Transamerica Ins. Grp. v. Meere, 694 P.2d 181, 186 (Ariz. 1984) (in banc))). 

95 See Stidham, 618 A.2d at 563; State Farm Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 

105, 112 (3d Cir. 2009).

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a. Occurrence 

The policy defines an “occurrence” as “an accident including continuous or 

repeated exposure to the same general conditions . . . [that] result[s] in bodily 

injury, property damages, or personal injury caused by an insured.”96

The Pennsylvania Supreme Court interpreted an insurance policy containing 

an essentially identical definition of “occurrence” in Donegal Mutual Insurance 

Company v. Baumhammers.

97 The Baumhammers court explained that: 

[T]he term “accident” within insurance policies refers to an 

unexpected or undesirable event occurring unintentionally, and . . . the 

key term in the definition of the “accident” is “unexpected,” which 

implies a degree of fortuity. An injury therefore is not “accidental” if 

the injury was the natural and expected result of the insured’s 

actions.98

The court explained that whether a situation is an “accident” is to be determined 

“from the perspective of the insured.”99 It then went on to conclude that the injuries 

resulting from the insureds’ son going on a shooting spree (which was 

undisputedly intentional) could be considered “accidental” under the policy 

because, from the insureds’ perspective, the massacre was “extraordinary” and “so 

96 Doc. 22-2 at D1. 

97 938 A.2d 286, 289 (Pa. 2007) (“The policy defines an ‘occurrence’ as an ‘accident, including 

continuous or repeated exposure to substantially the same general harmful conditions, which 

results, during the policy period in ... [b]odily injury or [p]roperty damage.’”). 

98 Id. at 292 (emphasis added). 

99 Id. at 293; see id. at 291-92 (citing Mohn v. Am. Cas. Co. of Reading, 326 A.2d 346, 348 (Pa. 

1974)). 

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unexpected, undesigned, and fortuitous,” that it “[could not] be said to be the 

natural and expected result of Parents [sic] alleged acts of negligence.”100

 Because the definition of “occurrence” in Baumhammers matches the same 

in this present contract, the Baumhammers interpretation controls, and requires the 

Court to determine whether Peddigree could have understood and expected the 

injury he caused. 

b. Intentional Acts Exclusion 

The policy states that “bodily injury, property damage and personal injury 

caused intentionally or at the direction of an insured, including willful acts the 

result of which the insured knows or ought to know will follow from the insured’s 

conduct” are excluded from coverage.101

 The Pennsylvania Superior Court provided an oft-cited interpretation of an 

intentional-acts exclusion in United Services Automobile Association v. Elitzky.

102

The Elitzky court explored other states’ approaches to exclusionary clauses like the 

one at issue and found them divergent.103 Despite differing interpretations, 

however, “[t]he vast majority of courts hold that the clause precludes coverage if 

the insured acted with the specific intent to cause some kind of bodily injury or 

100 Id. at 293. 

101 Doc. 22-2 at E1. 

102 517 A.2d 982, 985 (Pa. Super. Ct. 1986) (“Medical Payments to others do not apply to bodily 

injury or property damage . . . [w]hich is expected or intended by the insured.”); see, e.g.,

Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 460-61 (3d Cir. 1993) (discussing 

Elitzky, 517 A.2d 982). 

103 Elitzky, 517 A.2d at 986. 

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21 

damage.”104 But analyses further split within the specific intent camp,105 and the 

court therefore concluded “as a matter of law” that intentional-acts exclusionary 

clauses “are ambiguous and must be construed against the insurer.”106

 Having found the exclusion ambiguous, the Elitzky court proceeded to 

interpretation. It began from the understanding that: 

Pennsylvania law is clear on at least one of the issues involved. In our 

state, the exclusionary clause only applies when the insured intends to 

cause a harm. Insurance coverage is not excluded because the 

insured’s actions are intentional unless he also intended the resultant 

damage. The exclusion is inapplicable even if the insured should 

reasonably have foreseen the injury which his actions caused.107

After reviewing several cases developing this “specific intent” principle, the 

Elitzky court settled on a “same general type” approach to covered harms: 

[W]e hold that an intended harm exclusionary clause in an insurance 

contract is ambiguous as a matter of law and must be construed 

against the insurer. We hold that such a clause excludes only injury 

and damage of the same general type which the insured intended to 

cause. An insured intends an injury if he desired to cause the 

consequences of his act or if he acted knowing that such consequences 

were substantially certain to result.108

104 Id. (citing Pachucki v. Republic Ins. Co., 278 N.W.2d 898 (Wis. 1979)). The minority view 

takes a “general intent” approach, holding that “when an intentional act results in injury 

which is a natural and probable consequence of that act, the injuries are excluded from 

coverage.” Id. (citing Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633 (Tex. 1973)).

105 Id. at 986-87 (describing three theories for what type of harm will be covered: (1) any that 

resulted when some harm was intended; (2) only that which was specifically intended; or (3) 

resultant harm “of the same general type” as that which was intended). 

106 Id. at 987 (citing Erie Ins. Exch. v. Transamerica Ins. Co., 507 A.2d 389, 392 (Pa. Super Ct. 

1986)). 

107 Id. (citing Mohn, 326 A.2d 346). 

108 Id. at 989 (citing Nationwide Mut. Ins. Co. v. Hassinger, 473 A.2d 171, 175 (Pa. Super. Ct. 

1984)). 

Case 4:23-cv-00905-MWB Document 34 Filed 11/26/24 Page 21 of 46
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As a corollary, an intentional-acts exclusion will not preclude coverage when the 

insured has acted recklessly or negligently.109 Reasoning further, the Elitzky Court 

also determined that the use of the term “expected” in the exclusionary clause was 

ambiguous, and that it should be interpreted as “synonymous [with the term 

‘intentional’] for purposes of insurance exclusionary clauses.”110

 Nationwide agrees that the Elitzky definition of an intentional-acts exclusion 

controls the analysis in this case,111 so the Court will apply it.112 The Court will 

determine whether Peddigree acted with the intent to cause an injury of the same 

general type that resulted. 

109 Id. at 989-90 (distinguishing intent from recklessness); Erie Ins. Exch. v. Moore, 228 A.3d 

258, 266 (Pa. 2020) (holding that conduct pled as “negligence, carelessness and 

recklessness” was beyond the scope of intentional-acts exclusion); Erie Ins. Exch. v. Fidler, 

808 A.2d 587, 590 (Pa. Super. Ct. 2002) (“Simple negligence or even recklessness would not 

be excluded under [an intentional-acts exclusion].” (citing Elitzky, 517 A.2d at 991)). 

110 Elitzky, 517 A.2d at 990-92. 

111 Doc. 17 at 8-9. 

112 The Court notes that the intentional-acts exclusion in Elitzky did not include the instant 

policy’s language excluding “willful acts the result of which the insured knows or ought to 

know will follow from the insured’s conduct.” See Doc. 22-2 at E1. Nationwide affirmatively 

relies on Elitzky and offers no argument that this additional clause alters the Elitzky

interpretation, so any argument to that effect is waived. Hayes v. Silvers, Langsam & 

Weitzman, P.C., 441 F. Supp. 3d 62, 66 n.4 (E.D. Pa. 2020) (declining to consider arguments 

not raised in primary briefing (citing Laborers’ Int’l Union of N. Am. v. Foster Wheeler 

Corp., 26 F.3d 375, 398 (3d Cir. 1994))). This issue may be an important one. See Tanner v. 

Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009) (interpreting “willful” clause); 

Nationwide Mut. Ins. Co. v. Finkley, 679 N.E.2d 1189 (Ohio Ct. App. 1996) (same). But it is 

not well-suited for a federal court to determine in the first instance with no briefing.

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c. Self-Defense Exception 

The policy states that its intentional-acts exclusion “does not include bodily 

injury or property damage caused by an insured trying to protect person or 

property.”113

Unlike the prior provisions, there does not appear to be a definitive 

interpretation of a self-defense exception to an intentional-acts exclusion under 

Pennsylvania law. Therefore, the Court must predict how the Pennsylvania 

Supreme Court would resolve the issue, considering “(1) what that court has said 

in related areas; (2) the decisional law of the state intermediate courts; (3) federal 

cases interpreting state law; and (4) decisions from other jurisdictions that have 

discussed the issue.”114 Given the exception’s inclusion in the intentional-acts 

exclusion that Pennsylvania courts have held is ambiguous as a matter of law, the 

Court concludes that this phrase is also ambiguous, and therefore should be 

“construed in favor of the insured and against the insurer.”115 Proceeding from this 

ambiguity, the Court’s interpretation is guided by Pennsylvania courts’ 

understanding of the impact of self-defense on insurance coverage in the public 

policy context. 

113 Doc. 22-2 at E-1. 

114 Ill. Nat’l Ins. Co. v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 2011) 

(citing Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 436 (3d Cir. 2006)). 

115 Wolfe v. Ross, 115 A.3d 880, 884 (Pa. Super. Ct. 2015) (citing Penn-America Ins. Co. v. 

Peccadillos, Inc., 27 A.3d 259, 265 (Pa. Super. Ct. 2011) (en banc)). 

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In State Farm Fire and Casualty Co. v. DeCoster, the Pennsylvania Superior 

Court considered whether an insured should be covered when he intended to harm 

the injured party, but did so in what he believed was self-defense.116 There, the 

insured (DeCoster), after consuming alcohol and not wearing his glasses, 

mistakenly believed that his guest was an intruder when she came back inside from 

smoking a cigarette.117 DeCoster chased her through the house and eventually shot 

her.118 Because the evidence showed that DeCoster “intended to shoot who he 

believed to be a small male intruder,” the policy’s intentional-acts exclusion did 

not automatically preclude coverage.119 The court explained that, because “the 

critical inquiry is whether the conduct which led to the act was intentionally 

wrongful from the viewpoint of the law of torts,” “if the insured produces facts that 

can establish privilege (as in a sports injury case) or under a claim of right 

recognized by law (as in self-defense), the insured’s subjective intent can be 

explained, and it is then within the realm of the fact finder to determine whether 

the insured intended to wrongfully injure.”120

Based on the discussed case law interpreting the “occurrence” and 

intentional-acts exclusion provisions, along with DeCoster and the contractual 

structure and language, the Court concludes that the Pennsylvania courts would 

116 67 A.3d 40 (Pa. Super. Ct. 2013). 

117 Id. at 42. 

118 Id.

119 Id. at 42-43, 49-50. 

120 Id. at 49 (citing Meere, 694 P.2d at 189) (emphasis added). 

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interpret the self-defense exception to apply in any case where the insured’s 

overriding intent in causing an injury was defense of himself, another, or 

property.121 When such a situation arises, the insured lacks the requisite intent to 

cause harm that would bar coverage under Elitzky. This interpretation is necessary 

to give effect to the self-defense exception’s inclusion within the intentional-acts 

exclusion (which, as explained, focuses solely on specific intent to cause harm). 

Moreover, this focus on intent gives effect to the language covering an insured 

“trying to protect person or property.”122

Importantly, because the self-defense exception, like the intentional-acts 

exclusion, focuses on the insured’s subjective intent,123 whether the insured’s use 

of force is objectively necessary or disproportionate cannot automatically be 

dispositive of coverage. Although mistaken or disproportionate use of force may 

be strong evidence that the insured’s intent was not to defend, those facts must be 

considered along with all other evidence of intent to determine whether the insured 

had a subjective belief that defense was necessary and, thus, innocent intent.124

121 See Meere, 694 P.2d at 189 (explaining that an insured acting in self-defense does not 

“necessarily have a primary desire to injure the victim”). 

122 Doc. 22-2 at E1 (emphasis added). 

123 Minnesota Fire & Cas. Co. v. Greenfield, 855 A.2d 854, 863 (Pa. 2004) (quoting Wiley v. 

State Farm Fire & Cas. Co., 995 F.2d 457, 461 (3d Cir. 1993)); Aetna Life & Cas. Co. v. 

Barthelemy, 33 F.3d 189, 191 (3d Cir. 1994) (“Elitzky mandates a ‘subjective intent’ analysis 

for determining coverage under an exclusionary clause in most Pennsylvania insurance cases 

. . . .” (citing Wiley, 995 F.2d at 460). 

124 See DeCoster, 67 A.3d at 49; Meere, 694 P.2d at 189 (“If the jury finds that Meere acted in 

self-defense with no basic desire or intent to harm Pruitt, but negligently used force greater 

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Putting the issue in fortuity terms further confirms the Court’s interpretation. 

An insured who acts in self-defense will not have controlled the circumstances in 

order to bring about the situation requiring such conduct.125 In that sense, the injury 

resulting from the insured’s self-defense is fortuitous and accidental: the insured 

did not expect or consciously create the threat that forced him to act.126

* * * 

Zooming back out to fortuity, the preceding discussion elucidates the 

conclusion that the contract’s occurrence provision introduces the general concept 

of fortuity, while the intentional-acts exclusion and the self-defense exception help 

to clarify its contours and act as helpful shortcuts for established situations in 

which an injury is or is not fortuitous.127 Because of the interplay between the 

than necessary in self-defense, Meere may be liable for damages to Pruitt. In such an event, 

the true situation is one of negligence.”). 

125 See Vermont Mut. Ins. Co v. Walukiewicz, 966 A.2d 672, 679-80 (Conn. 2009) (“[I]t seems 

equally plausible to characterize actions taken in self-defense as, by their very nature, 

instinctive or reactive and, accordingly, unplanned and unintentional.” (citing State Farm 

Fire & Cas. Co. v. Poomaihealani, 667 F. Supp. 705, 708 (D. Haw. 1987))); id. at 678-79 

(collecting cases regarding split of authority on the issue). 

126 DeCoster, 67 A.3d at 49 (“[I]n self-defense situations . . . the insured is not acting by 

conscious design but is attempting to avoid a ‘calamity’ which has befallen him.” (quoting 

Meere, 694 P.2d at 189)); see Stevens & Ricci, 835 F.3d at 406 n.23 (discussing Meere); 5 

Appleman § 53.06(2)(b)(i); State Farm Fire & Cas. Co. v. McAnany, No. 87-CV-2069, 1988 

U.S. Dist. LEXIS 7239, at *8 (D. Kan. June 13, 1988) (“When an insured acts in selfdefense, he is not consciously controlling the risks covered by the policy.”); Stoebner v. S. 

Dakota Farm Bureau Mut. Ins. Co., 598 N.W.2d 557, 559-60 (S.D. 1999) (“A genuine claim 

of self-defense is consistent with ‘accident’ in that it is an event which must be by definition 

‘an undesigned, sudden, and unexpected event . . . and often accompanied by a manifestation 

of force.’” (quoting Taylor v. Imp. Cas. & Indem. Co., 144 N.W.2d 856, 858 (1966))). 

127 See Estate of Mehlman, 589 F.3d at 111 (“Courts interpreting ‘occurrence’ policies have split 

on whether they should analyze the insured’s intent as part of the insured’s prima facie case 

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27 

contractual provisions, the Court concludes that, in this case, the specific analytical 

approaches for each are not particularly useful.128 When considering a complicated 

scenario, attempting to fit the interwoven facts of a single momentary incident into 

different and specific legal frameworks risks losing sight of their synergistic 

import. Each fact must inform every other to correctly determine whether the 

injury was fortuitous, and, therefore, should be covered. So the Court will 

approach the question considering the totality of the circumstances and keeping the 

above principles in mind to determine whether a jury could find that Mill’s injury 

was expected or intended (i.e. fortuitous) from Peddigree’s perspective. 

d. Intoxication 

 One more legal issue is at play in this case, because here, Peddigree was 

drunk. Pennsylvania law counsels that “imbibed intoxicants must be considered in 

determining if the actor has the ability to formulate an intent.”129 There is no firm 

guiding principle to determine what level of intoxication is sufficient to render an 

of demonstrating that there was an accident, or as part of the insurer’s burden to demonstrate 

that the exclusion for intentional conduct is applicable.”); Walukiewicz, 966 A.2d at 680 

(holding that “the term ‘accident,’ and, hence, the term ‘occurrence,’ encompasses actions 

taken by an insured in legitimate self-defense”); Stoebner, 598 N.W.2d at 559-60 (reasoning 

that self-defense may be covered as an “occurrence”) (quoting Taylor, 144 N.W.2d at 858)). 

128 The Court is not abandoning the legal approaches: I am merely recognizing that they are 

closely interrelated such that separate analyses may not be helpful in a particular case. 

129 Stidham, 618 A.2d at 953 (citing Hassinger, 473 A.2d at 176). 

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insured unable to form intent. The Third Circuit has instructed that it is high.130 But 

ultimately, the issue of intoxication simply becomes another factor to be 

considered, along with other “indicia of intent,” in the totality of the circumstances 

bearing on whether the insured acted intentionally,131 and, by necessary extension, 

whether the injury at issue was an “occurrence.”132

 With these principles in mind, the Court turns to Nationwide’s duties to 

defend and indemnify. 

2. Duty to Defend 

As stated, an insurer has a duty to defend its insured when, “accept[ing] all 

of the allegations contained in the third party’s complaint as true[,] . . . there is a 

chance that the injury alleged could potentially fall within the scope of the 

130 Mehlman, 589 F.3d at 114-15 (“Pennsylvania courts will not lightly allow an insured to avoid 

the financial repercussions of an act of violence by drinking himself 

into insurance coverage.” (citing State Farm Mut. Auto. Ins. Co. v. Martin, 660 A.2d 66 (Pa. 

Super. Ct. 1995))). 

131 See id. at 112-14, 115 (discussing the evidence surrounding drunken incidents in several 

cases and stating that “indicia of intent—including an insured’s intoxication—[are] merely 

. . . factor[s] that a court should consider in determining whether the insured intended to 

cause the results of his or her actions”). 

132 See Mehlman, 589 F.3d at 111-15 (performing an “occurrence” analysis but only considering 

the question of whether the insured’s act was intentional); Homesite Ins. Co. ex rel. Ins. 

Couns. Inc. v. Neary, 341 F. Supp. 3d 468, 473-74 (E.D. Pa. 2018) (performing an 

“occurrence” analysis but considering intoxication and its effect on insured’s intent); cf. Am. 

Nat. Prop. & Cas. Co. v. Hearn, 93 A.3d 880, 886-87 (Pa. Super. Ct. 2014) (holding that 

intentional act was, by necessary implication, not an “occurrence”). 

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29 

policy.”133 The duty is thus very broad and “persists until an insurer can limit the 

claims such that coverage is impossible.”134

Here, Nationwide had a duty to defend. Looking to Mill’s amended 

complaint,135 he clearly alleges that “Peddigree was . . . negligent, careless, and 

reckless . . . [in] using a glass bottle to strike Plaintiff on the forehead.”136 Mill also 

pointed out additional facts that could bring Peddigree’s act within the scope of the 

umbrella policy’s occurrence provision and outside the intentional-acts exclusion, 

including that “Peddigree may assert defense of himself or defense of others,” and 

that “alcohol consumption affected his actions/judgment.”137 Given the above 

discussion of the umbrella policy’s provisions, if a jury found these assertions to be 

true and returned a negligence verdict in Mill’s favor, it is at least reasonably likely 

that a court would determine that the finding of liability came within the scope of 

the umbrella policy.138 Accordingly, Nationwide had a duty to defend Peddigree. 

133 Selective Way, 119 A.3d at 1046 (citing Jerry’s Sport Center II, 2 A.3d at 541) (emphasis 

added). 

134 Id. (quoting Lexington Ins. Co. v. Charter Oak Fire Ins. Co., 81 A.3d 903, 911 (Pa. Super. 

Ct. 2013)) (emphasis added). 

135 Kvaerner, 908 A.2d at 896. 

136 Doc. 22-5 ¶¶ 28-28.1; see id. ¶¶ 29-30 (also pleading “negligence, carelessness and 

recklessness”). 

137 Id. ¶¶ 28.3-28.4.

138 If this analysis seems cursory, rest assured that the Court will shortly explain the potential for 

coverage in great detail. Here, focusing on the allegations in the underlying complaint, it is 

enough that Mill pled a negligence claim and noted the potential for defensive intent and that 

Peddigree’s intoxication may have affected his “actions/judgment.” 

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3. Duty to Indemnify 

In a normal declaratory judgment case, the court’s finding that Nationwide 

had a duty to defend would also trigger a conditional duty to indemnify,139 and this 

litigation would then await a determination of the insured’s liability in the 

underlying action to ultimately resolve whether the “damages [are] within the 

coverage of the policy.”140 But the underlying action is over, and the basis of 

Peddigree’s liability was never determined.141 Therefore, it falls to this Court to 

consider the question of Peddigree’s actions on the merits to determine whether he 

is liable for damages that fall within the scope of the umbrella policy. Because 

intoxication may significantly alter the insured’s state of mind,142 the cases dealing 

with intoxicated insureds are the most apt comparators for the present case. 

 In Stidham v. Millvale Sportsman’s Club, the leading insurance intoxication 

case, the Pennsylvania Superior Court held that an intentional-acts exclusion did 

not necessarily bar insurance coverage when the insured, Robert McLaughlin, shot 

and killed Brett Stidham in a bar.143 The relevant facts showed that McLaughlin 

139 Selective Way, 119 A.3d at 1050 (citing Gen. Accident Ins. Co. of Am. v. Allen, 692 A.2d 

1089, 1095 (Pa. 1997)). 

140 QBE, 148 A.3d at 788 (citing Selective Way, 119 A.3d at 1046). 

141 Doc. 23-10 ¶ 1 (stating generally that settlement was “based upon facts set forth in Mill’s 

amended complaint”). 

142 Mehlman, 589 F.3d at 112 (Intoxication can negate intent or “can contribute to the loosening 

of a person’s inhibitions without eliminating his ability to intend to engage in harmful 

conduct. Indeed, the effect of the use of alcoholic beverages may contribute to a party 

formulating an intent to engage in anti-social conduct.”). 

143 Stidham, 618 A.2d 945. 

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31 

was not violent, had never been arrested, and rarely drank.144 On a few occasions, 

however, he drank to excess and experienced alcoholic blackouts.145 On the day of 

the shooting, McLaughlin went to the Millvale Sportsman’s Club, where he was a 

member, to shoot skeet.146 While there, “[h]e consumed a substantial amount of 

alcohol and began to lose awareness of his actions.”147 After leaving the Club, his 

recollection of events became “limited,” but he recalled stopping at the Plane View 

Inn.148 At the Inn, McLaughlin drank two shots of bourbon and two draft beers.149

He did not speak to anyone, nor did he appear agitated.150 Eventually, 

“McLaughlin left the bar and went to his truck. He reentered the bar with his shot 

gun. He does not remember using the gun. He remembers leaving the bar when he 

heard shattering glass. He proceeded to drive home.”151 Upon arriving at home, 

McLaughlin passed out in his car and later vomited.152 The next morning, he read 

about the shooting in the paper and “[a]lthough he had no awareness of 

participating in such a shooting, he felt that he was in the bar and that he might 

have had some connection with it.”153 McLaughlin eventually turned himself in 

144 Id. at 948. 

145 Id.

146 Id. at 948-49. 

147 Id. at 949. 

148 Id.

149 Id.

150 Id.

151 Id.

152 Id.

153 Id.

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and pled guilty to third degree murder, aggravated assault, recklessly endangering 

another person, and criminal mischief.154

 In considering how McLaughin’s intoxication affected insurance coverage, 

the Superior Court explained that McLaughlin’s “fragmentary memories,” failure 

to recall “getting his gun and reentering the tavern,” and the fact that the attack on 

Stidham appeared entirely random, all indicated that McLaughlin may not have 

been “conscious[ly] aware[]” of his actions.155 Applying this reasoning to the 

Elitzky interpretation of an intentional-acts exclusion, the court concluded that 

summary judgment was inappropriate because intent “connote[s] an element of 

conscious awareness on the part of the insured.”156

 In perhaps the closest analogue to the present case, in State Farm Fire & 

Casualty v. Dunlavey, the Honorable Petrese B. Tucker of the United States 

District Court for the Eastern District of Pennsylvania, analyzing an “occurrence” 

policy provision, found that summary judgment was inappropriate on the issue of 

intent when the insured struck another bar patron in the head with his motorcycle 

helmet.157 The evidence confirmed that the insured was intoxicated, and also 

showed that he was “being generally obnoxious, harassing bar patrons and spewing 

154 Id. at 948, 949. 

155 Id. at 951. 

156 Id. at 953 (quoting Elitzky, 517 A.2d at 991) (emphasis added in Stidham). 

157 197 F. Supp. 2d 183, 192 (E.D. Pa. 2001). 

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obscenities.”158 Additionally, he was blind in one eye.159 When bar staff tried to 

eject him, the insured continued to argue with employees and patrons, including 

the victim, until, for one reason or another (the facts were in dispute), the victim 

struck him in the face.160 The insured then, either in retaliation or defense, swung 

his motorcycle helmet and struck the victim in the head.161 Judge Tucker reviewed 

the totality of the circumstances and concluded that the applicable legal standards 

regarding intoxication and specific intent, “coupled with the evidence of the 

insured’s intoxication, physical infirmity in his left eye, temporary injury to his 

right eye, and the conflicting testimony as to intent,” created a dispute of fact that 

precluded summary judgment to the insurer.162 Thus, Dunlavey suggests that 

intoxication less extreme than that in Stidham, when paired with indicia of 

innocent intent, can create a question of fact. 

 In several other cases, courts applying Pennsylvania law have allowed cases 

to proceed on the basis of evidence or allegations that an insured was too 

intoxicated to form the necessary intent for an intentional-acts exclusion or an 

158 Id. at 188-89. 

159 Id. at 189. 

160 Id. at 189. The potential precipitating events included: (1) the insured was sexually harassing 

the victim and she slapped him, so he struck her in retaliation; (2) the victim struck the 

insured “out of the blue,” so he struck her in retaliation; (3) the two pushed each other before 

the victim struck the insured and he struck her back; (4) the victim struck the insured 

“without warning, temporarily blinding him” and breaking his glasses, so the insured swung 

the helmet at her “simply to defend his eye until he could ‘figure out what was going on’”; 

and (5) after being struck and blinded, the insured heard a “commotion” and swung his 

helmet to defend himself from general threats. Id. at 189-90. 

161 Id. at 189-90. 

162 Id. at 192. 

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“occurrence” provision to apply. For example, in DeCoster, the Superior Court 

concluded that DeCoster’s intoxication, paired with the other circumstances 

indicating an innocent intent, precluded summary judgment.163 And in IDS 

Property Casualty Insurance Co. v. Schonewolf, the Honorable Gerald A. 

McHugh, Jr., writing for the Eastern District of Pennsylvania, denied the insurer’s 

motion to dismiss a duty to defend claim when the underlying complaint included 

allegations that the insureds, who were under 21, “consum[ed] alcoholic beverages 

. . . knowing that it would cause significant impairment and lapse of judgment and 

control.”164 

 On the other hand, some Pennsylvania courts have rejected intoxication 

arguments where the insured was not extremely inebriated or where indicia of 

intent to harm were present. In Nationwide Mutual Insurance Co. v. Hassinger, the 

Superior Court affirmed a jury verdict that an insured acted intentionally in hitting 

a victim with his car despite his intoxication when the intoxication instruction was 

correctly given and the record contained evidence that the insured got out of his car 

and said “I told you I would get the son-of-a-bitch.”165 In State Farm Mutual 

Automotive Insurance Co. v. Martin, the Superior Court held that intoxication did 

163 DeCoster, 67 A.3d at 50. 

164 111 F. Supp. 3d 618, 625-26 (E.D. Pa. 2015); cf. Charter Oak Fire Ins. Co. v. Lazenby, No. 

10-CV-138, 2012 WL 2958246, at *6-7 (W.D. Pa. July 18, 2012) (denying summary 

judgment on duty to defend claim when complaint in the underlying litigation included 

allegations that the insured was intoxicated and insurer conceded that allegations were 

sufficient to support negligence).

165 473 A.2d 171, 173, 176 (Pa. Super. Ct. 1984). 

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not negate intent when the record showed that the insured had a blood alcohol level 

of .26 percent, his speech was slurred, and he smelled of alcohol.166 The record 

further reflected that the insured had driven to his estranged wife’s house at around 

midnight, where he twice rammed his truck into the back of his wife’s car, then 

drove into the lawn and hit his wife, then hit a wall of the house and slammed it 

three additional times, and finally struck his wife’s boyfriend’s vehicle.167 When 

questioned by police, the insured “told them he had aimed for his wife but hoped 

she was alright.”168 Hassinger and Martin therefore teach that indicia of intent to 

harm can override the effects of intoxication, even when severe. 

 Federal courts applying Pennsylvania law have also rejected arguments that 

an insured’s intoxication negated his intent. In Mehlman, the Third Circuit held 

that the insured acted intentionally as a matter of law notwithstanding his 

intoxication when the evidence showed that the insured “consum[ed] a number of 

alcoholic drinks within a short time [and] became visibly intoxicated and 

cognitively impaired.”169 Once inebriated, the insured walked 1.5 miles to his 

estranged girlfriend’s house, where he encountered the victim, his girlfriend’s 

tenant.170 The insured asked for his girlfriend and, when the victim told him she 

166 660 A.2d 66, 67-68 (Pa. Super. Ct. 1995). 

167 Id. at 67. 

168 Id.

169 589 F.3d at 108 (a toxicology report later showed that a few hours after he may have stopped 

drinking he still had a blood alcohol content of 0.21 percent). 

170 Id.

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was out of town, became agitated and began threatening the victim.171 When the 

victim attempted to leave, the insured drew a handgun, pointed it at the victim’s 

head, and pulled the trigger—the gun misfired.172 The victim continued her attempt 

to flee, crashing her car before managing to escape; while she tried to get away, the 

insured pointed the gun at her twice more at extremely close range, but it again 

misfired each time.173

 The Third Circuit explained that the “indicia of intent” proved intentional 

conduct: the insured had walked “one and one-half miles,” to his girlfriend’s 

residence, showing that he “knew the route to take and he had the ability to walk 

the considerable distance to get there,” and had attempted to shoot the victim 

repeatedly, demonstrating that “he knew what he was doing and . . . that his 

intoxication had a limited impact on his use of his faculties.”174

 And finally, in Homesite Insurance Co. ex rel. Insurance Counselors, Inc. v. 

Neary, the Honorable Harvey Bartle III, writing for the Eastern District of 

Pennsylvania, held that summary judgment for the insurer was proper when the 

allegations in the underlying complaint only described unprovoked, unjustified, 

and intentional assaults by the insured.175 The underlying complaint “merely 

171 Id.

172 Id.

173 Id.

174 Id. at 114-15. 

175 Homesite Ins. Co. ex rel. Ins. Couns. Inc. v. Neary, 341 F. Supp. 3d 468, 471-73 (E.D. Pa. 

2018) (describing multiple attacks “without provocation”). 

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allege[d] that [the insured] ‘consumed alcohol’ on the night of the assault,” with 

“no allegation that [the insured] was in the midst of an alcoholic blackout or that he 

completely lost awareness of his actions when he attacked [the victim].”176 Judge 

Bartle held that such allegations were insufficient to create a factual dispute about 

the intoxication’s impact on the insured’s ability to form intent.177

 In sum, precedent suggests that intoxication affects an insured’s ability to 

form an intent and to properly appreciate his situation. Extreme intoxication 

negating conscious awareness can create a question of fact regarding intent even 

when indicia of innocent intent are lacking,178 while lesser but still severe 

drunkenness can do the same when paired with a plausible innocent explanation 

from the perspective of the intoxicated insured.179 But drunkenness alone does not 

create a dispute of fact,180 nor will heavy intoxication overcome clear 

manifestations of malicious intent.181

 This case is closer to Stidham and Dunlavey than Mehlman, Hassinger, and 

Martin, and the Court therefore concludes that there is a genuine dispute of fact as 

to Peddigree’s intent. There is no dispute that Peddigree was intoxicated, and the 

176 Id. at 473-74. 

177 Id. at 474 (“[T]he conclusory allegation that Neary consumed alcohol, without more, is 

insufficient to trigger Homesite’s duty to defend.”). 

178 Stidham, 618 A.2d at 951. 

179 Dunlavey, 197 F. Supp. 2d at 192; DeCoster, 67 A.3d at 50. 

180 See Mehlman, 589 F.3d at 112 (citing Martin, 660 A.2d at 68). 

181 Mehlman, 589 F.3d at 115; Martin, 660 A.2d at 67; Hassinger, 473 A.2d at 173, 176. 

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record reflects that his intoxication was likely severe.182 As a result, Peddigree was 

weaving in and out of alcoholic blackouts throughout the evening.183 From 

Peddigree’s perspective of the incident,184 he heard his girlfriend cry out for help 

and then everything went black, except for the sound of glass breaking.185 He 

testified that he “didn’t even realize what [he] was doing [with the bottle] . . . it 

was already in [his] hand.”186 Critically, when asked directly whether “when you 

hit him with your bottle was it your intention to cause the injuries you caused to 

that extent,” Peddigree responded “[n]o, I never meant to hurt him. I still feel 

terrible about it.”187 Peddigree’s statement is supported by indicia of an innocent 

intent to defend: witnesses, including Peddigree, described Peddigree telling Mill 

to stop touching Dauberman as he attacked,188 and everyone but Mill agrees that 

182 See Doc. 23-12 at 22:1-7 (describing consumption of more than twenty drinks in six hours); 

see also Doc. 28-14 (Expert Report of Michael Greenberg) at 4 (estimating that Peddigree’s 

blood alcohol content was approximately 0.23%). 

183 Doc. 23-12 at 22:10-14. 

184 Baumhammers, 938 A.2d at 293. 

185 Doc. 23-12 at 18:22-24; see id. at 17:5-19:7; Doc. 22-4 at 23:6-25:6; see Stidham, 618 A.2d 

at 949 (recalling only the sound of glass breaking). Nationwide states that “Mr. Peddigree 

conceded under oath that he was aware of the assault,” Doc. 33 at 10, but only cites 

statements that prove his recollection of some of the events following the assault. 

186 Doc. 23-12 at 18:2-4. 

187 Id. at 18:5-9 (emphasis added). 

188 Id. at 17:11-12; Doc. 28-20 (Investigative Note of John Rickert Statement) at 2 (“He heard 

Peddigree yell ‘Dude, stop touching her.’”). 

 

 The Court notes that Peddigree’s recollection that he said something at almost the same time 

that he claims he cannot recall striking Mill appears inconsistent. This tension is not 

sufficient to negate the disputes of material fact. Intoxicated recollections are rarely a model 

of clarity, and fragments of a single event may drift in and out of focus in the drinker’s mind. 

A jury is best positioned to draw on their own experiences to interpret all of the facts and 

decide what was in Peddigree’s mind when he struck Mill. 

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Dauberman called out for help.189 Finally, Peddigree stated that he did not 

remember the attack just moments after it occurred, and turned himself in to the 

police as soon as he was told what he had done.190

 On the other hand, there are no true indicia of an intent to harm other than 

the attack itself. Nationwide tries to argue that Peddigree continued to attack Mill 

once the two went to the floor and that that should be evidence of an intent to 

harm, but Peddigree has no recollection of that part of the incident either. Although 

viewing these facts in the light most favorable to Nationwide would suggest that 

Peddigree was out to do damage, viewed in the light most favorable to Mill, in 

Peddigree’s drunken state, he may have thought that the threat from Mill 

continued. 

 Considering the totality of the circumstances, including Peddigree’s 

intoxication and inability to remember the attack, the existence of a precipitating 

event, Peddigree’s statement suggesting innocent intent, and the lack of compelling 

indicia of intent to harm on the one hand, and the severity and length of 

Peddigree’s attack on the other, the Court concludes that there is a genuine dispute 

of material fact regarding Peddigree’s intent to harm Mill, which is sufficient to 

bar summary judgment on every contractual provision. The above factors could be 

189 Doc. 23-17 at 21:23-22:1; Doc. 23-16 at 1; Doc. 23-15 at 1; Doc. 23-12 at 17:9-11, 19:4-7; 

Doc. 22-4 at 22:10-13, 23:6-9; but see Doc. 22-3 at 30:6-9. 

190 Doc. 22-4 at 26:21-27:14 (“Q. You decided right then to go to the police station? A. Yeah. Q. 

Why? A. Just to turn myself in. Q. Why? A. Because they told me I struck someone with a 

beer bottle. Q. Who told you that? A. My friend, John Riccard [sic].”). 

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understood as evidence that an extremely intoxicated Peddigree was confronted 

with an unexpected threat, causing him to innocently and impulsively react in 

defense of his girlfriend. On that understanding, Peddigree’s actions could be 

considered accidental and unintentional under Pennsylvania insurance law, and the 

resulting harm therefore may be covered under the umbrella policy.191

Accordingly, neither party is entitled to summary judgment on the merits. 

4. Estoppel 

The possible merits notwithstanding, Nationwide argues that Peddigree’s 

criminal guilty plea ends this case because “public policy precludes a finding that a 

criminal act is an ‘occurrence,’” and Mill is estopped from arguing that Peddigree 

acted in defense of another.192 Neither contention is correct. 

Tellingly, in its public policy argument, Nationwide cites law for the 

proposition that “[i]t is against the public policy of this Commonwealth to provide 

insurance coverage for intentional acts,” a point that is true but adds nothing to the 

above discussion about intent, especially given that “an ‘intended’ harm clause 

should be coterminous with the public policy exclusion” of coverage for 

191 This reasoning also applies to deny summary judgment on Nationwide’s argument that the 

facts establish that Peddigree was not acting in defense of another and Mill’s argument that 

Peddigree was doing so, because the self-defense exception is solely concerned with the 

insured’s intent, which is uncertain. 

192 Doc. 17 at 8. 

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intentional acts.193 Nationwide’s resort to this inapposite citation makes sense 

when considering the actual law regarding the impact of criminal convictions on 

insurance coverage, a discussion that Nationwide eschews, presumably because the 

law is settled against it. 

“[A] conviction in prior criminal proceedings cannot preclude a victim from 

litigating the issue of the insured actor’s intent where a determination of intent was 

not essential to the conviction.”194 A court should look to the elements of the 

criminal conviction to determine whether proof of intent was required.195

Neither of the charges to which Peddigree pled guilty—simple assault and 

reckless endangerment—requires proof of intent as defined in the insurance 

context under Pennsylvania law. Among other things, a person is guilty of simple 

assault if he “negligently causes bodily injury to another with a deadly weapon.”196

Negligent conduct does not meet the standard of intent in an insurance contract,197

and Peddigree’s guilty plea to the simple assault charge therefore does not estop 

Mill from arguing intent here. A person is guilty of reckless endangerment if “he 

recklessly engages in conduct which places or may place another person in danger 

193 Elitzky, 517 A.2d at 989; see Martin, 660 A.2d at 67-68 (accepting that insured’s acts were 

criminal but analyzing whether they were intentional); see Stidham, 618 A.2d at 951-54 

(same). 

194 Dunlavey, 197 F. Supp. 2d at 88 (citing Stidham, 618 A.2d at 954). 

195 Stidham, 618 A.2d at 951-52 (listing elements of third degree murder). 

196 18 Pa. Cons. Stat. § 2701(a)(2). 

197 Elitzky, 517 A.2d at 989-90. 

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of death or serious injury.”198 A person acts “recklessly” when he “consciously 

disregards a substantial and unjustifiable risk that the material element exists or 

will result from his conduct.”199 Although a closer question, a “substantial . . . risk

that [harm] . . . will result” is a somewhat lower level of culpability than the 

insurance intent standard that harm is “substantially certain to result.”200

Accordingly, Peddigree’s guilty plea to reckless endangerment does not prove that 

he acted intentionally, and neither public policy nor the contract prohibits coverage 

on that basis. 

Similarly, Nationwide’s contention that Mill is estopped from arguing that 

Peddigree acted in in defense of another fails because the defense issue, as it 

pertains to insurance, was not determined in Peddigree’s criminal proceeding. 

Nationwide is correct that “a plea of guilty amounts to a waiver of all nonjurisdictional defects and defenses.”201 But, when used as evidence in a civil case, a 

guilty plea only serves to prove the guilty party’s commission of the elements of 

198 18 Pa. Cons. Stat. § 2705. 

199 18 Pa. Cons. Stat. § 302(b)(3). 

200 See Elitzky, 517 A.2d at 989 (emphases added); id. (explaining that “it is essential to 

distinguish intent from recklessness”); Stidham, 618 A.2d at 948, 951, 953 (reasoning that 

argument on intent was not precluded by guilty pleas to third degree murder, which can be 

proved by showing that “the principle act[ed] in gross deviation from the standard of 

reasonable care, failing to perceive that such actions might create a substantial and 

unjustifiable risk of death or serious bodily injury,” (citing In Interest of Smith, 579 A.2d 

889, 895 (Pa. Super. Ct. 1990)), and reckless endangerment (citing Commonwealth v. 

McLaughlin, 574 A.2d 610, 612 (Pa. Super. Ct. 1990) (in turn citing 18 Pa. Cons. Stat. § 

2705))); Dunlavey, 197 F. Supp. 2d at 187-88 (finding that conviction for “recklessly 

endangering another person” did not estop intent argument because conviction may be 

“predicated on reckless conduct”). 

201 Commonwealth v. Brown, 240 A.3d 970, 972 (Pa. Super. Ct. 2020) (citing Commonwealth v. 

Morrison, 173 A.3d 286, 290 (Pa. Super. Ct. 2017)). 

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the crime charged.202 And where there is ambiguity about how the elements may 

have been satisfied, such that they might not prove a fact at issue in the civil case, 

summary judgment based on a guilty plea is improper.203 Applying this narrow 

view of the utility of a guilty plea to the potential defense of another argument, 

Peddigree has only admitted that he did not satisfy all of the defense’s elements. 

Under Pennsylvania law, the criminal defense of defense of another is 

strictly defined. To raise an argument of defense of another, a criminal defendant 

must introduce evidence that he used force against a perceived attacker because he 

“[reasonably] believe[d] that such force [wa]s immediately necessary for the 

purpose of protecting [a third person] against the use of unlawful force by [the 

perceived attacker] on the present occasion.”204 The putative defender’s belief must 

be both subjectively and objectively reasonable.205 Furthermore, force used in selfdefense or defense of others is not justified when the harm done in defense is 

greater than the harm sought to be avoided.206 In other words, force used in defense 

202 Stidham, 618 A.2d at 952. 

203 Id. at 951-53. 

204 18 Pa. Cons. Stat. § 505(a); see 18 Pa. Cons. Stat. § 501 (defining “believes” as “reasonably 

believes”); Commonwealth v. Mayfield, 585 A.2d 1069, 1074 (Pa. Super. Ct. 1991) (en 

banc). 

205 Commonwealth v. Mouzon, 53 A.3d 738, 751-52 (Pa. 2012) (citing Commonwealth v. Light, 

326 A.2d 288, 292 (Pa. 1974)). 

206 18 Pa. Cons. Stat. § 503(a). 

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of others may not be “excessive,” especially when an actor is confronted with nondeadly force.207

Even if Peddigree’s guilty plea establishes that he did not act in defense of 

another under the above definition, Mill is not precluded from arguing the 

substantially different version of self-defense as defined in the umbrella policy. As 

the Court has interpreted the contract, the self-defense exception is concerned 

solely with the insured’s intent in acting. Thus, although the “reasonable belief” 

element of criminal self-defense may be similar to the issue at hand (although the 

Court is not convinced that it is a perfect analogue, given the high standard of 

proving an intentional act in the insurance context), the requirement of 

proportionality cannot be dispositive of the question of coverage. And that means 

that Peddigree’s guilty plea proves nothing with respect to whether he acted with 

the primary intent of defending another: indeed, it is likely that he waived the 

criminal defense because of the proportionality requirement, rather than conceding 

that he did not reasonably believe that defense was necessary. 

Finally, it appears that Mill may be arguing that Nationwide should be 

estopped from challenging the judgment approving his settlement with 

Peddigree.208 In Stidham, the Pennsylvania Superior Court ultimately held that 

207 Commonwealth v. Cutts, 421 A.2d 1172, 1173-74 (Pa. Super. Ct. 1980) (citing 

Commonwealth v. Jones, 332 A.2d 464, 465-66 (Pa. Super. Ct. 1974)); Restatement (Second) 

of Torts § 70 (Am. L. Inst. 1965). 

208 Doc. 25 at 22-23 (citing Stidham, 618 A.2d at 955). 

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Aetna was estopped from disputing the issue of Stidham’s intent because of the 

jury’s verdict of negligence in the underlying action.209 That conclusion does not 

apply here because the issue of negligence was never determined in this underlying 

civil action.210 True, Mill’s complaint asserted a claim of negligence.211 But he also 

brought a claim for “civil assault and battery” based on the same facts,212 and both 

claims feature a paragraph alleging that Peddigree’s actions were “not only 

negligent, but also reckless, willful, wanton, outrageous, intentional and indifferent 

to the rights of [Mill].”213 The settlement that resolved that litigation, was “based 

upon facts set forth in Mill’s amended complaint.”214 It did not specify that it was 

predicated upon the negligence claim nor profess to resolve the issue of intent,215

and, even if it did, the Court would not be inclined to credit findings of fact in the 

potentially “collusive[]” settlement agreement that is shot through with Mill and 

209 Stidham, 618 A.2d at 955. 

210 See Skotnicki v. Insurance Department, 175 A.3d 239, 247 (Pa. 2017) (“It is well-settled that 

the doctrine of collateral estoppel precludes relitigation of an issue settled in a previous 

action if: (1) the issue decided in the prior case is identical to the one presented in the later 

action . . .” (quoting Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa. 

2005)). 

211 Doc. 22-5 ¶¶ 21-31. 

212 Id. ¶¶ 32-38. 

213 Id. ¶¶ 31, 38 (emphasis added). 

214 Doc. 23-10 ¶ 1. 

215 See Stidham, 618 A.2d at 954 (explaining that collateral estoppel requires the identical issue 

to have been decided in the prior case (citing City of Pittsburgh v. Zoning Bd. of Adj., 559 

A.2d 896, 901 (1989)); Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 64 (3d 

Cir. 2023) (“Settlements ‘ordinarily occasion no issue preclusion,’ unless the parties clearly 

‘intend their agreement to have such an effect.’” (quoting Arizona v. California, 530 U.S. 

392, 414 (2000)); 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal 

Practice and Procedure § 4443, pp. 384–385 (1981). 

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Peddigree’s joint desire for Nationwide to provide indemnification.216 Accordingly, 

Nationwide is not estopped from arguing intent. 

III. CONCLUSION 

Peddigree’s intoxication and the circumstances surrounding his attack on 

Mill create a genuine issue of material fact as to his intent and whether his actions 

may be covered under the umbrella policy as an “occurrence” and an unintentional 

act. Neither party is estopped from litigating this case based on the earlier related 

litigation. Mill’s motion for summary judgment is granted as to Nationwide’s duty 

to defend and denied as to its duty to indemnify. Nationwide’s motion for 

summary judgment is denied. 

An appropriate Order follows. 

 BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

216 See Stidham, 618 A.2d at 955. 

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