Mr. Zatyko sought a defense and indemnification for Mr. Fiocchi's action from Nationwide Property & Casualty Insurance Company under a homeowners' insurance policy that Nationwide had issued to Mr. Zatyko's parents, Janine and Ron Zatyko.

Nationwide provided Mr. Zatyko a defense under a reservation of rights. It also filed a federal action seeking a declaration that it owed no further duty to defend or indemnify Mr. Zatyko in Mr. Fiocchi's action. Nationwide relied on the definition of a covered “occurrence” and the application of various exclusions in its policy. In particular, it relied on exclusions for damages caused by an insured's intentional conduct.

The insurer moved for summary judgment, arguing that the facts alleged in Mr. Fiocchi's complaint:

(1) did not plead a claim that met the policy definition of a covered “occurrence” and

(2) pleaded a claim that fell within the policy exclusion for intentional conduct by an insured.

Specifically, Nationwide contended that the facts pleaded in Mr. Fiocchi's complaint supported an intentional assault by Mr. Zatyko of Mr. Fiocchi, an incident that did not fall within the policy definition of a covered “occurrence” and that was expressly excluded by the policy's exclusions.

The Nationwide Policy

The Nationwide policy provided:

“OCCURRENCE” means bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general condition. The occurrence must be during the policy period.

(Emphasis in original.)

The policy also provided:

Liability Exclusions

(Section II)

Coverage E – Personal Liability and Coverage F – Medical Payments to Others do not apply to bodily injury or property damage:

a) by an act intending to cause harm done by or at the direction of any insured. 

This exclusion does not apply to corporal punishment of pupils. 

b) caused by or resulting from an act or omission which is criminal in nature and committed by an insured. 

This exclusion 1.b) applies regardless of whether the insured is actually charged with, or convicted of a crime.

(Emphasis in original.)

The District Court's Decision

The district court granted Nationwide's motion.

In its decision, the district court explained that in his complaint, Mr. Fiocchi “baldly” alleged that he had been “negligently” assaulted by Mr. Zatyko. The district court found, however, that Mr. Fiocchi's complaint was “conspicuously void of any facts” underlying the alleged “negligent assault,” other than an averment that the assault had occurred sometime after Mr. Zatyko had had a verbal argument with Mr. Fiocchi earlier that evening inside a bar. The district court reasoned that, in the absence of such facts, Mr. Fiocchi's complaint “merely allege[d] an assault which, under Pennsylvania law, [was] an intentional tort.”

The district court observed that an intentional tort of assault was not an “accident” and, therefore, was excluded from available insurance coverage. The district court held that:

[T]he artful and vague pleading of [Mr. Fiocchi's complaint], which attempt[ed] to characterize an intentional assault as a claim sounding in negligence, [was] insufficient to trigger Nationwide's duty to defend.

The district court rejected Mr. Zatyko's contention that resolution of the coverage issue had to await final resolution of Mr. Fiocchi's action because that “might reveal” that Mr. Zatyko's conduct was not intentional but was “due to his potential intoxication at the time of the incident.” The district court emphasized that Mr. Fiocchi's complaint did “not contain any allegations of [Mr. Zatyko's] alleged intoxication” or that he “was in the midst of an alcoholic blackout, or lost awareness of his actions.”

It said that “a fair reading” of Mr. Fiocchi's complaint in fact revealed that it contained no allegations that Mr. Zatyko had “consumed any alcohol, was intoxicated, or that he was in any way cognitively impaired by any alcohol consumption or lacked awareness of his actions in any way.”

The district court said that Mr. Zatyko's actions, as alleged in Mr. Fiocchi's complaint, could “not be reasonably characterized as anything other than intentional conduct.” Despite Mr. Fiocchi's “artful pleading” of a claim sounding in “negligence,” the few factual allegations in his complaint established an intentional assault for which there was no coverage under the policy, the district court concluded.

The case is Nationwide Property & Cas. Ins. Co. v. Zatyko, No. 16-1010 (E.D. Penn. Dec. 20, 2016).