2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-2010

Alea London Ltd v. Woodlake Mgmt

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1429

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"Alea London Ltd v. Woodlake Mgmt" (2010). 2010 Decisions. Paper 1878.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-1429

ALEA LONDON LIMITED

v.

WOODLAKE MANAGEMENT;

CLIVEDEN REALTY CORP.; CLIVEDEN 2002, L.P.,

d/b/a CLIVEDEN APARTMENTS; CLIVEDEN, L.P.;

KHAR ABDULAH; MIRTA NIEVES-ABDULAH

Woodlake Management, Cliveden Realty Corp.,

Cliveden 2002, L.P., d/b/a Cliveden Apartments,

Cliveden, L.P.,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No.2-08-cv-4093

(Honorable Anita B. Brody)

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 15, 2010

Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges.

(Filed February 17, 2010 )

OPINION OF THE COURT
 Abdulah’s additional allegations of negligence all related to the inadequate security 1

lock. For example, he alleged Woodlake negligently failed to warn him of the condition

and negligently failed to train its employees to repair the lock.

2

SCIRICA, Chief Judge.

Khar Abdulah and his wife brought suit in the Philadelphia Court of Common

Pleas against Appellants Woodlake Management, Cliveden Realty Corp., Cliveden 2002,

L.P. d/b/a Cliveden Apartments, and Cliveden, L.P. (collectively “Woodlake”) for

personal injuries sustained in a shooting at the Cliveden Apartments. Appellee Alea

London Ltd. (“Alea”), Woodlake’s insurer, sought a declaratory judgment in federal court

to establish that an assault and battery exclusion in the insurance policy discharged its

duty to defend or indemnify Woodlake. The United States District Court for the Eastern

District of Pennsylvania granted Alea’s motion for judgment on the pleadings. We will

affirm.

I.

On July 13, 2005, Abdulah was shot multiple times by an unknown assailant at the

Cliveden Apartments, a property owned or maintained at all times by Woodlake. 

Abdulah and his wife filed suit asserting multiple counts of negligence against Woodlake. 

In particular, Abdulah claimed Woodlake failed to provide or repair a working security

lock, creating a dangerous and defective condition on the premises and enabling the

assailant to enter the apartment building. Alea brought a declaratory judgment action in 1

federal court arguing an exclusion in the policy for claims arising out of or related to an
 The District Court had jurisdiction under 28 U.S.C. § 1332(a)(2). We have 2

jurisdiction over the appeal under 28 U.S.C. § 1291.

3

assault or battery, including a failure to prevent or suppress an assault or battery,

exempted it from its duty to defend Woodlake in Abdulah’s suit. The exclusion provides:

This insurance does not apply to any claim arising out of an assault and/or

battery regardless of culpability or intent or out of a physical altercation or

out of any act or failure to act to prevent or suppress such assault and/or

battery or a physical altercation whether caused by the insured, an

employee, a patron, or any other person . . . . The company is under no duty

to defend or to indemnify an insured in any action or proceeding alleging

such damages arising out of an assault and/or battery or physical altercation. 

This exclusion applies as well to any claims by any other person, firm or

organization, asserting rights derived from, or contingent upon, any person

asserting a claim arising out of an assault and/or battery or a physical

altercation, and specifically excludes from coverage claims for: emotional

distress, or for loss of . . . consortium . . . .

This exclusion applies to all causes of action arising out of an assault and/or

battery regardless of culpability or intent or out of a physical altercation

including, but not limited to, allegations of negligent hiring, placement,

training, or supervision, or to any act, error, or omission relating to such an

assault and/or battery or a physical altercation.

Woodlake argued the exclusion did not apply because Abdulah alleged Woodlake’s

negligence caused his injuries. The District Court granted Alea’s motion for judgment on

the pleadings under Fed. R. Civ. P. 12(c), concluding that because Abdulah’s injuries

arose from the assault and not directly from Woodlake’s alleged negligence, the exclusion

applied. Woodlake now appeals.2
 Alea does not argue Abdulah’s injuries do not fall under the policy’s grant of 3

coverage, see Baumhammers, 938 A.2d at 293 (holding an intentional act by a third party

still constituted an “occurrence” under an insurance contract), but rather claims only that

the assault and battery exclusion bars coverage.

4

II.

Our review of a Rule 12(c) motion is plenary. Rosenau v. Unifund Corp., 539 F.3d

218, 221 (3d Cir. 2008). Judgment on the pleadings “will not be granted unless the

movant clearly establishes that no material issue of fact remains to be resolved and that he

is entitled to judgment as a matter of law.” Id. (quoting Jablonski v. Pan Am. World

Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988)). We must view all facts and draw all

inferences in the light most favorable to the non-moving party. Id.

When interpreting an insurance contract under Pennsylvania law, which all parties

agree governs the dispute, the court must ascertain and give effect to the parties’ intent as

manifested in the terms of the policy. Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d

286, 290 (Pa. 2007). Where the contract language is ambiguous, we must construe that

provision in favor of the insured. Minn. Fire & Cas. Co. v. Greenfield, 855 A.2d 854,

861 (Pa. 2004). But, where the language is clear and unambiguous, we must give effect

to it. Id. If an insurer relies on a policy exclusion as an affirmative defense to deny

coverage, it bears the burden of proving the exclusion applies. Madison Constr. Co. v. 3

Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999). The duty of an insurer to

defend the insured applies to any suit in which the complaint alleges injuries that may
5

potentially fall within the grant of coverage. Baumhammers, 938 A.2d at 290-91. The

court must look beyond the cause of action pled to the factual allegations included in the

complaint. Id. at 291.

The exclusion denies coverage for claims “arising out of” an assault or battery. 

The term “arising out of” is interpreted in terms of “but for” causation. See Madison

Constr., 735 A.2d at 109-10. Therefore, if an assault or battery was a “but for” cause of

the plaintiff’s injuries, an assault and battery exclusion will apply to allegations that the

insured’s negligence contributed to the injuries. See Acceptance Ins. Co. v. Seybert, 757

A.2d 380, 383 (Pa. Super. Ct. 2000). The insurer only owes a duty to defend if the

complaint alleges the insured’s negligence itself directly led to the injuries. See QBE Ins.

Corp. v. M&S Landis Corp., 915 A.2d 1222, 1229 (Pa. Super. Ct. 2007). 

The parties’ dispute on appeal centers on the application of two Pennsylvania

Superior Court cases: Seybert and QBE. In Seybert, the plaintiff brought suit against

Belmont Bar, alleging it negligently served alcohol to five visibly intoxicated men who

subsequently attacked him. 757 A.2d at 381. Belmont argued an assault and battery

exclusion did not apply because the claims were based on Belmont’s negligence. Id. at

383. The court disagreed, holding that because the plaintiff’s injuries resulted solely from

the assault and battery, Belmont’s negligence was merely a contributing factor and not a

direct cause of the injuries. Id. 
 The shooting constituted an assault under Pennsylvania law. See 18 Pa. Const. Stat. § 4

2701 (defining assault as “negligently caus[ing] bodily injury to another with a deadly

weapon”).

6

In QBE, the underlying complaint alleged employees of defendant Fat Daddy’s

Nightclub forcibly ejected a patron and improperly restrained him, eventually smothering

him to death. 915 A.2d at 1224. The complaint alleged Fat Daddy’s negligently

restrained the patron and negligently trained and hired its staff, causing the patron’s

death. Id. The court held the exclusion did not apply because the complaint alleged the

injuries “arose from the alleged negligence,” not from an assault or battery. Id. at 1229. 

Accordingly, the alleged negligence was a direct cause of the injuries, triggering the duty

to defend. Id.

All injuries alleged in this complaint are the result of the shooting itself, and 4

accordingly, the assault was a “but for” cause of Abdulah’s injuries. There was no

allegation in the complaint that Woodlake’s negligence directly caused his injuries or

caused any independent harm, as there was in QBE. Rather, Woodlake’s failure to

provide a working security lock contributed to the shooting in much the same way as

Belmont’s negligent selling of alcohol to visibly intoxicated individuals contributed to the

plaintiff’s injuries in Seybert. Moreover, Woodlake’s alleged negligence only relates to

its failure to prevent or suppress the assault. The assault and battery exclusion

encompasses claims arising both from an assault or battery and from a failure to prevent
 Abdulah’s wife also brought a claim against Woodlake for loss of consortium. This 5

claim derives from the assault, and coverage for it is explicitly barred by the language of

the exclusion.

7

or suppress an assault or battery. This language unambiguously bars coverage for

Abdulah’s claims, and accordingly, Alea has no duty to defend or indemnify Woodlake.5

III.

For the foregoing reasons, we will affirm the District Court’s grant of Judgment on

the Pleadings.