Mill v. Nationwide Property and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SPENCER MILL, No. 4:23-CV-00905

Plaintiff, (Chief Judge Brann)

v.

NATIONWIDE PROPERTY AND

CASUALTY INSURANCE CO.,

Defendant.

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

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).

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)).

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).

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.

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.

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.

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.

. . . 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 self-

sabotaging 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.

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).

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.

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).

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

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).

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.”).

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.

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)).

“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).

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)).

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.

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)).

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.

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)).

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).

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

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 self-

defense, 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

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).

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”).

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.”

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.

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.

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).

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.

“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).

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.

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”).

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.

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.

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].”).

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.

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.

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 non-

jurisdictional 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)).

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 self-

defense 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).

of others may not be “excessive,” especially when an actor is confronted with non-

deadly 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).

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).

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.