Opinion

Court: District Court, W.D. Pennsylvania
Filed: Aug 6, 2026
Cited by: 0 cases
Authority: More cited than 44.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEFFER DEVELOPMENT SERVICES,

LLC,

Plaintiff, Civil Action No. 2:25-cv-1114

Vv. Hon. William S. Stickman IV

HARTFORD CASUALTY INSURANCE

COMPANY,

Defendant.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff Keffer Development Services, LLC (“Keffer’’) filed its initial complaint against

Defendant Hartford Casualty Insurance Company (“Hartford”) due to Hartford’s refusal to provide

Keffer with coverage in an underlying multi-district litigation (“MDL”) “now centralized for the

purpose of pretrial proceedings in the Eastern District of Michigan at 2:25-md-03159,” an action

in which Keffer is named as a defendant (“Weiss Lawsuits”). (ECF No. 1); (ECF No. 29, § 67).

Keffer subsequently filed its motion for temporary stay of proceedings pending the resolution of

the Weiss Lawsuits, which the Court denied. (ECF No. 19); (ECF Nos. 22 & 23). In response to

the Court’s decision denying its motion for temporary stay, Keffer requested, and was granted,

leave to amend its initial complaint. (ECF Nos. 25 & 26). Keffer filed its first amended complaint

in which it seeks a declaratory judgment, asking the Court to declare that “Hartford has a duty to

defend and indemnify Keffer” in the Weiss Lawsuits and articulate any “counsel fees associated

with this action” and “such other and further relief as the Court deems just and proper” (Count I).

(ECF No. 29, § 67). Keffer additionally alleges that Hartford breached the insurance policy it

issued to Keffer by denying it coverage and failing to adhere to Hartford’s duties to defend and

indemnify Keffer pursuant to the terms of the policy (Count II). Ud. 4 70, 79-80). Hartford, in

accordance with the Court’s January 29, 2026, Order granting Keffer’s leave to amend, filed its

motion to dismiss Keffer’s first amended complaint, reasserting its initial motion to dismiss

Keffer’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF Nos. 17 & 18) (that which the Court

denied as moot (ECF No. 28)) along with a supplement in support thereof. (ECF Nos. 30 & 30-

1). For the reasons that follow, the Court will grant Hartford’s Reasserted Motion to Dismiss

Plaintiffs [First Amended] Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF

No. 30).

I. FACTUAL BACKGROUND

Keffer is a technology services provider, owning and operating an electronic medical

record software, the Athletic Trainer Software (“ATS”). (ECF No. 29, 7 15). ATS is a program

that athletic trainers use “to store and access electronic health records of athletes, students, and

employees” and the software is utilized by a variety of colleges and universities throughout the

country. (/d. § 16). Hartford is the insurer that issued the general liability insurance policy (“the

Policy”) to Keffer, which serves as the basis for this dispute. (ECF No. 18, p. 7).

The Policy includes Umbrella Liability Coverage, which remained effective from July 2,

2014, to July 2, 2025. (ECF No. 29, § 7). The Policy contains a Business Liability Coverage Form

(“BLCF”), which contains the operative language at issue and obligates Hartford to provide

coverage for, and defend Keffer against, “claims alleging “bodily injury’ caused by an ‘occurrence’

that takes place in the ‘coverage territory.”” (/d. § 8). The Policy additionally contains both a

“Technology Services Extension” endorsement and a “Personal and Advertising Injury Exclusion

Limited” endorsement. (/d. 12, 14). The former amends exclusions relating to “bodily injury”

and “property damage,” while the latter “amends the BLCF to include ‘personal and advertising

injury’ coverage” if certain conditions are met. (/d.).

Keffer seeks coverage for the Weiss Lawsuits.

A. Underlying MDL — Facts Pertaining to the Weiss Lawsuits

The Weiss Lawsuits, initially filed in multiple federal courts, were brought against several

universities, Keffer, and Matthew Weiss, and were consolidated into an MDL and transferred to

the United States District Court for the Eastern District of Michigan. (Ud. 4 20-21). “The

operative complaints in each of the pending [Weiss] Lawsuits have been re-filed at the centralized

docket.” (ECF No. 33, p. 2).

Plaintiffs in the Weiss Lawsuits (“Weiss Plaintiffs”) allege that Weiss, the former

University of Michigan Football coach, “wrongfully accessed the personal and health information

belonging to dozens of female student athletes whose data was stored in ATS and used that

information to obtain access to the students’ social media and cloud accounts for the purpose of

viewing” their “intimate photos and videos.” (ECF No. 18, p. 7). As to Keffer, the Weiss Plaintiffs

allege that it “failed to prevent or detect this data breach by failing to implement reasonable,

industry-standard security measures into the ATS software platform.! (/d.).

Keffer notes that since the claims brought by the Weiss Plaintiffs in the Weiss Lawsuits

“are class actions, they allege damages in a broad and general fashion,” but according to Keffer,

those claims indicate that the “[Weiss] Plaintiffs’ safety was disregarded and that the [Weiss]

' The claims brought against Keffer include those for Violation of the Computer Fraud and Abuse

Act pursuant to 18 U.S.C. § 1030, Violation of Title [IX pursuant to 20 U.S.C. § 1681(A) ef seq.,

Violations of the Stored Communications Act, Violations of the MCL § 600.2919a, and Violation

of the Michigan Identity Theft Protection Act at MCL 445.61 et seg. (ECF No. 29, § 27).

Plaintiffs were humiliated and distressed.” (/d. {] 28). Keffer further asserts that “[m]Jany of the

alleged damages may include damages for physical bodily injury suffered.” (Ud. { 29).

Keffer asserts, and emphasizes, that “there is an ongoing criminal investigation with

respect to the alleged events giving rise to the underlying [Weiss] Lawsuits, where new facts are

coming to light,” thus, “[i]t is impossible to know, at this time, the full extent of the injuries that

could be alleged in the underlying [Weiss] Lawsuits.” CECF No. 33, p. 3).

Further, Keffer alleges that the Weiss Plaintiffs assert that “Weiss gained access to Keffer’s

ATS system and used the passwords obtained from it to mine account users’ information, images

and videos” which constituted an “intrusion by Weiss into Keffer’s servers where student-athlete

account users occupied space” and thus triggers coverage for “personal and advertising injury”

under the Policy. (ECF No. 29, 99 41, 43).

I. LEGAL STANDARD

A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, | F.3d 176, 183 (d Cir. 1993). A plaintiff

must allege sufficient facts that, if accepted as true, state a claim for relief plausible on its face.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Igbal, 556 U.S.

662, 678 (2009). A court must accept all well-pleaded factual allegations as true and view them

in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F.4th 335, 340 Gd Cir.

2022); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although a court

must accept the allegations in the complaint as true, it is “not compelled to accept unsupported

conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.”

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” /gbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. /gbal, 556 U.S. at 678. Even if the

complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not entitle a

plaintiff to relief. Jd. at 682. The complaint must support the inference with facts to plausibly

justify that inferential leap. Id.

lif. ANALYSIS

To determine an insurer’s obligations pursuant to an insurance policy, Pennsylvania law

provides that courts must construe the insurance policy “most strongly against the insurer”;

however, “it is a necessary prerequisite to recovery upon a policy for an insured to show a claim

within the coverage provided by the policy.” Miller v. Boston Ins. Co., 218 A.2d 275, 277 (Pa.

1966) (quoting Warner v. Emps. Liab. Assurance Corp., 133 A.2d 231, 233 (Pa. 1957)).? For

purposes of establishing whether an insurer has a duty to defend and indemnify, the Court looks

first to the duty to defend. Indalex Inc. vy. Nat’! Union Fire Ins. Co. of Pitt, 83 A.3d 418, 421 (Pa.

Super. 2013) (citing Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Com. Union Ins. Co., 908 A.2d

888, 896 n. 7 (Pa. 2006) (““Kvaerner’’)). “The duty to defend is a distinct obligation, different and

* The parties do not dispute whether Pennsylvania law should govern this controversy. As Hartford

states in its motion to dismiss, “the Policy was issued and delivered to Keffer in Pennsylvania, and

thus Pennsylvania governs this action.” (ECF No. 18, p. 15). Moreover, the Policy “includes

Pennsylvania amendatory endorsements and notices.” (/d. at 11). The Court will accordingly

apply Pennsylvania law to this dispute.

broader than the duty to indemnify,” and because it is broader, “there is no duty to indemnify if

there is no duty to defend.” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 225—26 (3d Cir. 2005)

(citing Mut. Benefit Ins. Co. v. Haver, 725 A.2d 743, 746 n.1 (Pa. 1999)).

A. The Weiss Lawsuits do not trigger Hartford’s Duty to Defend or Indemnify

for “Bodily Injury” or “Personal and Advertising Injury.”

When tasked with establishing an insurer’s duty to defend its insured, Pennsylvania law

instructs that a court “make[] its determination by defining the scope of coverage under the

insurance policy on which the insured relies and comparing the scope of coverage to the allegations

of the underlying complaint.” Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 673 (3d Cir. 2016)

(citing Sikirica, 416 F.3d at 226). The law of this state also “adheres to the ‘four corners’ rule ...

under which an insurer’s potential duty to defend is ‘determined solely by the allegations of the

complaint in the [underlying] action.’” Jd. (emphasis in original) (quoting Kvaerner, 908 A.2d at

896). As the Supreme Court of Pennsylvania explained, “if the factual allegations of the complaint

on its face encompass an injury that is actually or potentially within the scope of the policy,” the

insurer has an obligation to defend the insured. American & Foreign Ins. Co. v. Jerry’s Sport Ctr.,

Inc., 2 A.3d 526, 541 (Pa. 2010) (emphasis added) (citing Erie Ins. Exch. v. Transamerica Ins.

Co., 533 A.2d 1363, 1368 (Pa. 1987)). In other words, “[a]s long as the complaint ‘might or might

not’ fall within the policy’s coverage, the insurance company is obliged to defend.” Jd. (quoting

Casper v. Am. Guarantee & Liab. Ins. Co., 184 A.2d 247, 248 (Pa. 1962)).

Keffer asserts two theories that it believes entitle it to coverage under the Policy: (1) that

the Weiss Plaintiffs’ underlying complaints allege damages, many of which “may include damages

for ‘physical bodily injury suffered,’” thus triggering the Policy’s “bodily injury coverage”; and

(2) the underlying complaints contain allegations that trigger the Policy’s “personal and

advertising injury” coverage. (ECF No. 29).

1. Keffer fails to state a claim that the underlying lawsuits allege “bodily injury”

triggering coverage under the terms of the Policy.

For purposes of interpreting insurance contracts, Pennsylvania law requires courts “to

ascertain the intent of the parties as manifested by the language of the written instrument” by

“read[ing] the policy as a whole and constru[ing] [it] according to the plain meaning of its terms.”

Ramara, Inc., 814 F.3d at 676 (first quoting Am. Auto. Ins. Co. v. Murray, 658 F.3d 311, 320 3d

Cir. 2011); and then quoting C.H. Heist Caribe Corp. v. Am. Home Assurance Co., 640 F.2d 479,

481 (3d Cir. 1981)). If there exists any ambiguity in the insurance contract—where the terms are

vulnerable to more than one interpretation—Pennsylvania courts direct the insurance policy to be

“construed against the insurer and in favor of the insured; any reasonable interpretation offered by

the insured, therefore, must control.” Jd. (quoting Med. Protective Co. v. Watkins, 198 F.3d 100,

103 (3d Cir. 1999)).

The Policy, under the BLCF, states:

Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as

damages because of ‘bodily injury’, ‘property damage’ or ‘personal and advertising

injury’ to which this insurance applies. We will have the right and duty to defend

the insured against any ‘suit’ seeking those damages. However, we will have no

duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’,

‘property damage’ or ‘personal and advertising injury’ to which this insurance does

not apply ...

b. This insurance applies:

(1) to ‘bodily injury’ and ‘property damage’ only if:

(a) The ‘bodily injury’ or ‘property damage’ is caused by an

‘occurrence’ that takes place in the ‘coverage territory’;

(b) The ‘bodily injury’ or ‘property damage’ occurs during the

policy period...

(ECF No. 29-1, p. 58). The Policy defines “occurrence” as “an accident, including continuous or

repeated exposure to substantially the same general harmful conditions.” (/d. at 79). “Coverage

territory” is defined as “(1) The United States of America (including its territories and

possessions); (2) Puerto Rico; and (3) Canada.” (/d. at 54).

Keffer contends that the Weiss Plaintiffs, in the underlying Weiss Lawsuits, are seeking

“to recover for damages stemming from ‘bodily injury’ as the result of a digital intrusion of

privacy, namely the breach of students’ intimate and private images and videos, which constitutes

an ‘occurrence’ [that] has occurred within the ‘coverage territory.”” (ECF No. 29, § 60). Hartford

does not dispute that the Weiss Lawsuits allege an “occurrence” within the “coverage territory”

for purposes of asserting a potential “bodily injury” that may trigger coverage. Hartford, however,

argues that “the Weiss Lawsuits do not trigger the Policy’s specified coverage for “bodily injury’

because they allege only mental and emotional damages, not physical harm” and thus do not fall

under the Policy’s definition of “bodily injury.” (ECF No. 18, p. 7).

As provided by the Policy:

‘Bodily injury’ means physical:

(a) Injury;

(b) Sickness; or

sustained by a person and, if arising out of the above, mental anguish or death at

any time.

(ECF No. 29-1, p. 77). Pursuant to Pennsylvania law, the Court must look to the underlying

complaint to determine if the plaintiff “avers facts that would support a recovery covered by the

policy” and if that complaint “makes at least one allegation that falls within the scope of the

policy’s coverage,” the insurer’s duty to defend is triggered. TELA Bio, Inc. v. Fed. Ins. Co., 313

F. Supp. 3d 646, 655 (E.D. Pa. 2018) (first quoting Gen. Accident Ins. Co. of Am. v. Allen, 692

A.2d 1089, 1095 (Pa. 1997); and then quoting Bealer y. Nationwide Mut. Ins. Co., No. 16-cv-3181,

2016 WL 6833014, at *3 (E.D. Pa. Nov. 16, 2016)). Whether coverage has been triggered is

dependent upon the factual allegations asserted in the underlying complaint rather than “[t]he

particular cause of action that [the underlying] complaint pleads.” Jd. (internal citations omitted)

(quoting Mut. Benefit Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999); Frog, Switch & Mfg. Co.,

Inc. v. Travelers Ins. Co., 193 F.3d 742, 746 3d Cir. 1999)).

In its brief opposing Hartford’s motion to dismiss, Keffer cites to several complaints filed

by the Weiss Plaintiffs that it believes state (or potentially allege) claims that qualify as “bodily

injury” under the Policy. Keffer quotes the Weiss Plaintiff from Massachusetts who alleges “After

receiving notice from the federal government ... Jane Doe felt deeply violated, deeply disturbed,

humiliated, embarrassed, and extremely emotionally distressed; and is experiencing physical

manifestations of the stress and anxiety caused by this egregious violation of her privacy.”?

(ECF No. 33, p. 6) (emphasis in original) (quoting ECF No. 33-4, 479). In light of the assertions

Keffer cites for support, it further claims that “Plaintiffs in the [Weiss] Lawsuits ... have suffered

physical manifestations of their emotional distress, which will likely be pled more specifically in

amended iterations of the Complaints, ... or come further to light as discovery proceeds.”* (Id. at

7). Moreover, Keffer cites to W. Bend Mut. Ins. Co. v. CPT Next Gen., Inc., 728 F. Supp. 3d 609

(E.D. Mich. 2024) to support its assertion that a plaintiff that suffers from physical manifestations

of emotional distress may be sufficient to trigger coverage for “bodily injury.” The Court does not

find Keffer’s use of W. Bend to be persuasive.

It is significant that in W. Bend the Eastern District Court of Michigan applied Michigan

law, rather than Pennsylvania law, to analyze the coverage claims. Under Michigan law, showing

3 Keffer additionally introduces excerpts from two other Weiss Plaintiffs’ complaints. Both use

substantially the same language cited above. See ECF No. 33, p. 6.

* The Court notes Keffer’s assertion that “the underlying Lawsuits relevant to the instant matter

are still in their infancy. The pleadings have not closed, and discovery has not begun.” (ECF No.

33, p. 7). However, the Court has already denied Keffer’s motion to stay proceedings pending

development of the Weiss Lawsuits. The Court, in accordance with Pennsylvania law, need not

look to anything more than the underlying complaint filed by the Weiss Plaintiffs to determine if

they trigger coverage under the terms of the Policy.

“some physical manifestation of mental anguish and humiliation” qualifies as “bodily injury” to

trigger an insurer’s duty to defend. W. Bend, 728 F. Supp. 3d at 620; see also Farm Bureau Mut.

Ins. Co. of Mich. v. Hoag, 356 N.W.2d 630, 633 (Mich. Ct. App. 1984) (“As a minimum, we would

require alleged physical manifestation of [underlying plaintiffs] mental suffering to require

[insurer] to defend [insured] in federal court.”). Conversely, Pennsylvania law, which is applicable

to the current controversy, takes an adverse position.

As explained by several Pennsylvania courts, “[i]t is clear that the common and approved

usage of ‘bodily’ injury connotes a physical, and not mental injury.” Jackson v. Travelers Ins.

Co., 606 A.2d 1384, 1386-87 (Pa. Super. 1992); see also Steadfast Ins. Co. v. Tomei, 474 WDA

2015, 2016 WL 2989982, at *4 (Pa. Super. 2016) (“The Pennsylvania Courts have soundly rejected

the contention that policy definitions of injury or bodily injury encompass mental or emotional

harm.”). Even more, Pennsylvania courts have “also determined that physical symptoms that

result from mental and emotional harm do not constitute ‘bodily injury’ for purposes of insurance

law.”° Legion Indem. Co. v. Carestate Ambulance, Inc., 152 F. Supp. 2d 707, 719 (E.D. Pa. 2001)

(citing Zerr v. Erie Ins. Exch., 667 A.2d 237 (Pa. Super. 1995)).

° The Superior Court of Pennsylvania did find that a policy defining “‘bodily injury’ as ‘bodily

harm, sickness, or disease, including death that results from bodily harm, sickness, or disease”

creates four distinct types of “bodily injury,” thus a disease—specifically post-traumatic stress

disorder—-was covered under the policy in that instance. Glikman y. Progressive Cas. Ins. Co.,

917 A.2d 872, 873 (Pa. Super. 2007); but see Nationwide Mut. Ins. Co. y. Garzone, No. 07-CV-

4746, 2009 WL 2996468, at *16-17 (E.D. Pa. Sept. 17, 2009) (distinguishing Glikman from the

facts at issue where the “[u|nderlying [p]laintiffs have not identified any underlying complaint

which alleges that an underlying plaintiff developed post-traumatic stress disorder or a similar

condition as a result of the [underlying defendant’s| conduct.” Further finding that the insurer “in

no way admitted that the emotional harms alleged ... are a ‘disease,’ as the insurer did in

Glikman.”). Like the Nationwide policy, the Policy here explicitly provides a precondition in the

“bodily injury” definition that the qualifying “injury,” “sickness,” or “disease” must be one that is

“physical.” And if one of those physical bodily injuries has been suffered, any mental anguish

that results will be covered. (ECF No. 29-1, p. 77). There are no facts or allegations that a disease

has been suffered by any of the Weiss Plaintiffs.

Keffer asserts that Hartford “does not argue that there is no coverage if “bodily injury’ is

alleged, [it] only argues that ‘bodily injury’ is not alleged. This argument is easily defeated by the

allegations cited herein and in the Proposed Second Amended Complaint [(“SAC”)] attached

hereto as Exhibit ‘5.°” (ECF No. 33, p. 8). The Court finds that neither the Weiss Plaintiffs’

allegations cited in Keffer’s brief opposing Hartford’s motion to dismiss nor the Weiss Plaintiffs’

SAC® reinforce Keffer’s contention that “bodily injury” is alleged in the underlying Weiss

Lawsuits.

The Court has already discussed the allegations made by separate Weiss Plaintiffs who

claim that they suffered “physical manifestations of the stress and anxiety caused by” violations

of their privacy. Those assertions remain insufficient to trigger “bodily injury” coverage under

Pennsylvania Law. (ECF No. 33, p. 6); see Evans v. Travelers Ins. Co., 226 A.3d 96, 102 (Pa.

Super. 2019) (citing Zerr, 667 A.2d at 240) (reiterating that under Pennsylvania law, a “claim for

coverage [that] was based solely on emotional injury without any accompanying physical injury”

cannot be covered under a “bodily injury” provision of an insurance policy).

6 Although Keffer has not updated the Court on the status of the Weiss Plaintiffs’ Motion for Leave

to File Second Amended Complaint, pursuant to Fed. R. Evid. 201, courts within the Third Circuit

are permitted to take judicial notice of filings in the underlying lawsuit’s docket at the motion to

dismiss stage. Courts may take notice in the absence of any request. Smierciak v. City of Pitt.

Police. Dept., No. 2:18-CV-00734, 2018 WL 6790312, at *1 n. 3 (W.D. Pa. Dec. 26, 2018) (citing

In re Congoleum Corp., 426 F.3d 675, 679 (3d Cir. 2005)). The Eastern District of Michigan

granted the Weiss Plaintiffs’ motion to file their second amended complaint, which the Court will

refer to as the second amended complaint (“SAC”) (rather than the proposed SAC, as Keffer calls

it throughout its brief). The SAC can be found at 2:25-md-03159, ECF No. 101. All relevant

language is identical to the proposed amended complaint attached to Keffer’s brief at ECF No. 33-

5. For purposes of consistency, the Court will continue to cite to the version attached to ECF No.

33-5.

As to Keffer’s reliance on the Weiss Plaintiffs’ SAC, the Court finds that it still lacks facts

that may potentially trigger “bodily injury” coverage under the Policy. Initially, the Court notes

the Weiss Plaintiffs’ assertion that “[t]he proposed revised [SAC] advances the litigation

efficiently by incorporating detailed factual allegations that have emerged through ongoing

proceedings and investigation and further specify the theories of liability.” (ECF No. 33-5, p. 8).

Despite their contention, the SAC incorporates no additional facts that allege, or even

potentially allege, “bodily injury” as is necessary for purposes of determining Hartford’s coverage

obligations. Instead, the Weiss Plaintiffs use the same language and broad allegations to describe

their injuries. For example, the Weiss Plaintiffs assert that “Weiss’s actions have caused his

victims severe emotional distress in the form of humiliation, embarrassment, loss of experience,

loss of dignity and a profound sense of vulnerability that accompanies the exposure of deeply

private matters,” (/d. J 434) and “[Weiss] Plaintiffs and Class Members have also suffered and

continue to suffer severe emotional distress, including humiliation, embarrassment, loss of dignity

and the profound sense of vulnerability that accompanies the exposure of deeply private matters.”

(Id. 9 519).7

The Court must look to the SAC as the operative complaint. See Garrett v. Wexford Health,

938 F.3d 69, 82 (3d Cir. 2019) (citing Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017)) (“In

general, an amended pleading supersedes the original pleading and renders the original pleading a

7 The same language is used throughout the proposed Second Amended Complaint at ECF No. 33-

5, 99 520, 538, 539, 556, 561, 562, 583, 584, 605, 606, 628, 629. Keffer refers to the Weiss

Plaintiffs’ “proposed Second Amended Complaint” throughout its pleadings. (ECF No. 33) (citing

ECF No. 33-5). That proposed Second Amended Complaint was adopted by the Eastern District

of Michigan for the Weiss Lawsuits. The Court, taking notice of the filings in the Eastern District

of Michigan’s docket, will accordingly refer to what Keffer calls the “proposed Second Amended

Complaint” as the Second Amended Complaint (“SAC”), but will cite to the exhibit attached to

Keffer’s brief at ECF 33-5 for purposes of consistency. The adopted SAC can be found in the

Eastern District of Michigan’s court docket at 2:25-md-03159, ECF No. 101.

nullity. Thus, the most recently filed amended complaint becomes the operative pleading.”). As

such, it is significant that the SAC does not include allegations that the Weiss Plaintiffs suffer

“physical manifestations of emotional distress” beyond asserting conclusory statements that the

Weiss Plaintiffs suffered from “humiliation,” “loss of dignity,” and the like. See (ECF No. 33, p.

6). In fact, the only assertion in the SAC that speaks to physical injury is the claim that “[t]he

decisions and actions to expose [Weiss] Plaintiffs|’] PII [(personal identifying information and

images)| and PHI [(private health information)] to Weiss constituted affirmative acts that caused

and/or increased the risk of harm, as well as physical and emotional injury, to [Weiss] Plaintiffs

and Class Members.” (/d. 712) (emphasis added).

Keffer acknowledges that “at this stage in the underlying Lawsuits, damages are pled in

broad and non-specific terms,” but argues that the “claims for damages can be amended up until

the time of trial” and “it is not implausible that these claims for damages would be amended to

include ‘bodily injury.’” (ECF No. 33, p. 9). Keffer’s argument is unpersuasive. As explained

by a United States District Court for the Middle District of Pennsylvania:

[T]he general rule of civil procedure that complaints may be amended cannot be

manipulated to essentially require insurers to defend every complaint ever filed

based on the mere possibility that at some point in the future, the underlying

plaintiff may amend his or her complaint to allege a potentially covered claim.

Such a rule would be highly burdensome to insurers, and would quite likely drive

up the costs of insurance for policyholders.

State Farm Fire & Cas. Co. v. Scalia, No. 1:14-cv-00049, 2014 WL 6982926, at *7 (M.D. Pa.

Dec. 9, 2014).

Although Pennsylvania courts have held that “insurers owe a duty to defend in cases where

‘amendment or variance of proof’ might bring a complaint within the coverage of an insurance

policy,” the Supreme Court of Pennsylvania explained that if “the complaint against the insurance

company, incorporating by reference, as it did, the patron’s complaint, revealed that the cause of

action was based upon facts which did not come within the scope of the policy” then neither

“amendment or variance could possibly establish a cause of action which would be cognizable

under the insurance contract ... .”. Cadwallader v. New Amsterdam Cas. Co., 152 A.2d 484, 488—

89 (1959) (citing Wilson v. Md. Cas. Co., 105 A.2d 304, 306 (1954)).

The Weiss Plaintiffs have not pled facts that establish “bodily injury” in their underlying

complaint, and the Court finds that it would be impossible for the Weiss Plaintiffs to amend their

complaint in such a way that it could, potentially, contain sufficient facts to trigger coverage for

“bodily injury” under the Policy. It has been established that “emotional harms” such as

“humiliation, distress, and embarrassment” do not qualify as “bodily injury” under Pennsylvania

law. See Steadfast Ins. Co.,2016 WL 2989982, at *5. And, although Keffer contends that “[s]ome

of the students may have experienced physical bodily injury from discovering that their most

intimate images and moments have been taken from them and exposed, particularly where it is

specifically alleged that Weiss’ conduct rose to the level of sexual harassment, assault and/or

stalking,” those allegations are not supported by any facts that demonstrate, or have the potential

to demonstrate, “bodily injury.” See TELA Bio, Inc., 313 F. Supp. 3d at 655 (quoting Mut. Benefit

Ins. Co. v. Haver, 725 A.2d 743, 745 (1999) (explaining that, under Pennsylvania law, “[t]he

particular cause of action that [the underlying] complaint pleads is not determinative of whether

coverage has been triggered,” rather, the court must focus on the factual allegations in the

underlying complaint to make the determination).

Keffer contends that, upon liberally construing the facts and accepting the Weiss Plaintiffs’

allegations as true, the Court should find that the claims potentially come within the scope of

coverage for “bodily injury.” The Court disagrees. There is no indication that any of the Weiss

Plaintiffs suffered a physical injury, as is required to trigger coverage under the Policy. Even if

discovery and a more developed record reveal that Weiss’s actions caused mental anguish that

manifested through physical symptoms, it cannot qualify as a physical injury per the definition in

the Policy. See Allstate Prop. & Cas. Ins. Co. v. Winslow, 66 F. Supp. 3d 661, 673 (W.D. Pa.

2014) (where a policy “defines the term ‘bodily injury’ as physical harm and any sickness, illness,

or disease that results from that physical harm, allegations that a victim suffered some condition

as the result of mental or emotional distress do not trigger coverage,” thus “a sickness or disease

that results from a mental injury cannot qualify, because a mental injury cannot satisfy

prerequisite that a physical injury be suffered first.”). The underlying operative complaint is

devoid of facts that show any physical impact on the Weiss Plaintiffs, particularly where the

injuries alleged arose from Weiss’s access to, and misuse of, the ATS system. Weiss did not have

any physical contact with any of the Weiss Plaintiffs; instead, his alleged injury-causing conduct

was directed towards the ATS electronic software, where the data possessing the Weiss Plaintiffs’

private information was located. (ECF No. 33-1).

The Court holds that the underlying SAC does not, and cannot possibly, allege facts

demonstrating that any of the Weiss Plaintiffs’ injuries qualify as a “bodily injury” triggering

coverage and Hartford’s duty to defend.

In accordance with the Court’s finding that Hartford does not have a duty to defend Keffer

in the Weiss Lawsuits, the Court finds that Hartford does not have a duty to indemnify Keffer,

either. Pennsylvania courts, along with courts in this circuit, have explicitly held that since “the

duty to defend is broader than the duty to indemnify,” a finding that an insurer does not have a

duty to defend “will also preclude a duty to indemnify.” Kvaerner, 908 A.2d at 896 n. 7 (citing

General Accident Ins. Co. v. Allen, 692 A.2d 1089, 1095 (Pa. 1997); Scopel v. Donegal Mut. Ins.

Co., 698 A.2d 602, 605 (Pa. Super. 1997)). Because Hartford does not have a duty to defend

Keffer in the Weiss Lawsuits, the Court must find that it does not have a duty to indemnify Keffer.

The Court will grant Hartford’s motion to dismiss Keffer’s claim that it has a duty to defend

and indemnify Keffer under the “bodily injury” provision.

2. Keffer’s claim that the Weiss Lawsuits trigger the personal and advertising injury

coverage fails.

Keffer, in its first amended complaint, re-asserted that Weiss’s conduct — “gaining access

to students’ accounts which were stored on Keffer’s servers” at Keffer’s property — triggered

personal and advertising coverage (under the Personal and Advertising Exclusion - Limited

endorsement) since “Weiss is alleged to have made a wrongful entry and/or invasion of the right

of private occupancy of a premises ... .” (ECF No. 29, § 65). Keffer thus asserts that “Hartford

has a duty to defend and indemnify Keffer in the [Weiss Lawsuits].” (Ud. 467). For the reasons

that follow, the Court will dismiss Keffer’s claim that the Weiss Lawsuits allege facts sufficient to

prompt Hartford’s obligations to defend and indemnify it for “personal and advertising injury.”*

The Policy defines “Personal and Advertising Injury,” under § B(1)(p) of the BLCF, but

further amends the definition, only providing coverage for “personal and advertising injury”

resulting from the following offenses:

(a) False arrest, detention or imprisonment;

(b) Malicious prosecution; or

private occupancy of a room, dwelling or premises that the person occupies,

committed by or on behalf of its owner, landlord or lessor.

8 The Court notes Hartford’s argument that “Keffer has waived any assertion that the Weiss

Lawsuits are covered by the Policy’s ‘personal and advertising injury’ coverage by failing to

respond to the arguments set forth in” its motion to dismiss. (ECF No. 34, p. 5). Given the

circumstances of the record and the possibility that the re-asserted motion to dismiss (further

supplemented by Hartford (ECF Nos. 18, 30, 30-1)) caused confusion, the Court will consider

Keffer’s request for the Court to declare that it is afforded coverage under the “personal and

advertising injury” provision of the Policy.

(ECF 29-1, pp. 65, 153). Keffer argues that the Weiss Plaintiffs’ claims allege, or have the

potential to allege, a “personal and advertising injury” under § B(1)(p)(c) above. Specifically,

Keffer asserts that Weiss committed a “wrongful entry into, or invasion of the right of private

occupancy of a room ... premises that the person occupies, committed by or on behalf of its

owner... .” (ECF No. 29, 45); (citing ECF No. 29-1, p. 153). For support, Keffer explains that

“the ATS system occupies Keffer’s premises” and “any intrusion into Keffer’s ATS system where

[Weiss] Plaintiffs’ information was stored” would be one that triggers coverage. (/d.). Keffer

argues that the Weiss Plaintiffs “had an expectation that the space they stored their information at

would be private and that the ‘premises’ where the information was stored would be free from

wrongful entry or invasion of the right of private occupancy.” (/d. 7 46).

In its original motion to dismiss Keffer’s initial complaint (ECF No. 18) which is reasserted

and supplemented in its motion to dismiss Keffer’s first amended complaint (ECF No. 30),

Hartford argues that “[t]he Weiss Lawsuits cannot trigger the Policy’s coverage for ‘personal and

advertising injury.’” (ECF No. 18, p. 22). For support, Hartford makes two separate arguments:

first “[t]he Weiss Lawsuits do not allege ‘personal and advertising injury’ as defined in the Policy”;

and second, “[e]ven if the Weiss Lawsuits did allege “personal and advertising injury,’ coverage

would be barred by the Information Disclosure Exclusion.”? (Jd. at 22 & 14).

Hartford asserts that the Weiss Plaintiffs’ allegations do not trigger coverage under the

Policy’s “personal and advertising injury” “for either of two independent reasons: (1) [ ] Weiss

was not alleged to have entered any ‘room, dwelling, or other premises,’ wrongfully or otherwise,

° Hartford refers to the BLCF, Exclusions, at § (B)(p)(15) of the policy, as amended by the BLCF

Amendatory Endorsement, § A, as the “Information Disclosure Exclusion.”

and (2) [| ] Weiss was not the ‘owner, landlord, or lessor’ of any purported ‘room, dwelling, or

other premises’ at issue.” (/d. at 22) (quoting ECF No. 29-1, pp. 79-80).

In accordance with findings made by other courts in this circuit, the Court finds that the

phrase “invasion of the right of private occupancy” is ambiguous. See New Castle Cnty., DE vy.

Nat’l Union Fire Ins. Co., 243 F.3d 744, 756 (3d Cir. 2001); see also Pellegrino Food Prods. Co.,

Inc. v. Am. Automobile Ins. Co., 655 F. Supp. 2d 569, 579 (W.D. Pa. 2008). Where, as here, a

court finds ambiguity in an insurance contract, it shall be resolved in favor of the insured. Meyer

v. CUNA Mut. Ins. Soc., 648 F.3d 154, 163 (3d Cir. 2011) (citing McMillan v. State Mut. Life

Assur. Co. of Am., 922 F.2d 1073, 1075 (3d Cir. 1990)). Keffer’s amended complaint contends

that the Weiss Plaintiffs have alleged that Weiss “made a wrongful entry and invasion of the right

of private occupancy of a premises,” the premises being Keffer’s property where the ATS system

is located. (ECF No. 29. 76-77). Keffer also indicates that the Weiss Plaintiffs “had a right to

occupy the server space, which is located on Keffer’s premises, and Weiss is alleged to have

hacked into those server spaces by utilizing the ATS system owned by Keffer.” (/d. 44).

In its motion to dismiss, Hartford argues that “the Weiss Lawsuits do not trigger the

Policy’s “personal and advertising injury coverage’ because [ | Weiss’s unauthorized access to

stored data plainly does not constitute a wrongful entry into or invasion of the right of private

occupancy of a room, dwelling, or other premises by an owner, landlord, or lessor.” (ECF No. 18,

p. 8). According to Hartford, the “ordinary meaning” of the words used in the coverage term

implicate a requisite “physical trespass onto real property, not the purely digital intrusion into

electronically stored data lacking any spatial element that is alleged here.” (/d.). The Policy does

not define “room,” “dwelling,” or “other premises.” But Keffer does not seem to argue that the

ATS system, accessed by Weiss, constituted “premises.” Rather, it argues that “the places where

the Weiss Plaintiffs’ passwords are stored are on a server, which Keffer maintains on site at Keffer

Development Services located at 24 Village Park Drive, Grove City, Pennsylvania 16127,” and

that Weiss’s conduct amounted to a “wrongful entry into, or invasion of the right to private

occupancy of” that premises and the ATS server stored therein. (ECF No. 29, { 42, 45).

Hartford further contends that Weiss’s conduct could not, as a matter of law, “constitute a

wrongful entry into or invasion of the right of private occupancy of premises” because “[e]ven if

the data accessed by [ ] Weiss is stored on a physical server, the alleged intrusion is not a physical

one.” (ECF No. 18, p. 23). For support, Keffer cites to two cases. Auto-Owners Ins. Co. v. Stevens

& Ricci, Inc., No. 12-CV-7228, 2015 WL 1456085, at *2 & *9 (E.D. Pa. Mar. 31, 2015); O’Brien

Energy Sys., Inc. vy. Am. Emps. Ins. Co., 629 A.2d 957, 964 (Pa. Super. 1993). The Court neither

finds Stevens & Ricci nor O’Brien persuasive for the purpose of requiring an invasion or wrongful

entry to be a physical one.

The Supreme Court of the United States has explained that “[i]n the computing context,

‘access’ references the act of entering a computer ‘system itself? or a particular “part of a computer

system,’ such as files, folders, or databases.” Van Buren v. United States, 593 U.S. 374, 388 (2021)

(emphasis added) (citing 1 Oxford English Dictionary 72 (2d ed. 1989)). Because the Policy does

not include any requirements specifying that either the “invasion” or “entry” must be through

physical conduct, or that the specific “premises” must be a physical one, the Court will interpret it

in favor of Keffer. The Court finds that Keffer has, at a minimum, alleged that Weiss entered the

ATS system, a server, located on Keffer’s premises.

Although the Court agrees with Keffer that Weiss’s conduct may qualify as an entry into a

“premises,” the Court finds that Keffer fails to argue that the Weiss Plaintiffs alleged facts which

satisfy the requirement that the wrongful entry or invasion of the right of private occupancy was

“committed by or on behalf of its owner, landlord or lessor.” CECF No. 18, p. 23).

Keffer asserts that Weiss committed the wrongful entry or invasion of the right of private

occupancy because he “‘is alleged to have hacked into those server spaces by utilizing the ATS

system owned by Keffer.” (ECF No. 29, 9 44). Keffer maintains that it is the owner of ATS, and

seemingly implies that Weiss committed the wrongful entry or invasion “by or on behalf of” Keffer

or one of Keffer’s landlords or lessors. Ud. 4 45). The Court notes that the Policy does not provide

definitions for “owner,” “landlord,” or “lessor.” Where an insurance policy does not provide a

definition for “[w]ords of common usage,” the Court will interpret those words “according to their

natural, plain, and ordinary sense.” Kvaerner, 908 A.2d at 332-333 (citing Madison Constr. Co.

v. Harleysville Mut. Ins. Co., 735 A.2d 100, 108 (Pa. 1999)). The Court “may consult the

dictionary definition of a word to determine its ordinary usage.” Id.

“Owner” is defined as “a person who owns something: one who has a legal or rightful

claim to ownership” and “{s]omeone who has the right to possess, use, and convey something; a

person in whom one or more interests are vested.” Owner, MERRIAM-WEBSTER.COM DICTIONARY

(July 11, 2026), □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ OWNER, Black’s Law

Dictionary (12th ed. 2024). It is clear from the face of the amended complaint, and Hartford does

not dispute, that Keffer is the owner of the ATS software. Keffer did not, as the owner, commit

the wrongful entry or intrusion into the ATS software. A landlord is defined as “the owner of

property (such as land, houses, or apartments) that is leased or rented to another” or “[s]omeone

who rents a room, building, or piece of land to someone else.” Landlord, MERRIAM-WEBSTER.COM

DICTIONARY; Black’s Law Dictionary. Both definitions clearly imply a rental of real property, but

the ATS software is not real property, thus the term “landlord” is inapplicable in this context.

Finally, a lessor is defined as “one that transfers property (such as a house or a car) by a contract”

or “[s]Jomeone who conveys real or personal property by lease.” Lessor, MERRIAM-WEBSTER.COM

DICTIONARY; Black’s Law Dictionary. The Court finds that Keffer has failed to support its

assertion that Weiss acted on behalf of Keffer ~ the owner of the premises and the ATS server —

when he accessed ATS. Nor has Keffer alleged that Weiss is a lessor or landlord himself or that

he acted on behalf of a lessor or landlord when committing the alleged invasion or wrongful entry.

Thus, Keffer fails to allege that the Weiss Plaintiffs’ claims could possibly trigger coverage for

“personal and advertising injury,” as it is clear that Weiss’s conduct cannot satisfy the coverage

term requirements.

The Court notes that even if Keffer were successful in alleging that Weiss’s conduct

qualified as a “personal and advertising injury,” Hartford has cited an applicable exclusion, further

precluding coverage under the terms of the Policy. Hartford argues that the Policy’s Information

Disclosure Exclusion bars coverage for “personal and advertising injury.” (ECF No. 18, p. 24).

Pennsylvania courts “have established a general rule that ‘it is a necessary prerequisite ... for the

insured to show a claim [falls] within the coverage provided by the policy,” but “when the insurer

relies on a policy exclusion as a basis for its denial of coverage ..., the insurer has asserted an

affirmative defense, and accordingly, bears the burden of proving such defense.” McEwing v.

Lititz Mut. Ins. Co., 77 A.3d 639, 646 (Pa. Super. 2013) (internal citations omitted) (first quoting

Betz Erie Ins. Exch., 957 A.2d 1244, 1256 (Pa. Super. 2008); and then quoting Spece v. Erie Ins.

Grp., 850 A.2d 679, 682 (Pa. Super. 2004)).

Under the applicable BLCF, further amended by the BLCF Amendatory Endorsement, the

Policy provides several exclusions. (ECF No. 29-1, pp. 60, 86). It plainly states that the BLCF

does not apply to “Personal and Advertising Injury ...[a]rising out of any access to or disclosure

of any person’s or organization’s confidential or personal information, including ... health

information or any other type of nonpublic information.” (/d. at 86). Pennsylvania courts have

established that “the phrase ‘arising out of — when used in the context of an insurance exclusion

—[ ] mean[s] casually connected with, not proximately caused by.” Gen. Refractories Co. v. Fire

St. Ins. Co., 855 F.3d 152, 159 Gd Cir. 2017) (quoting McCabe v. Old Republic Ins. Co., 228 A.2d

901, 903 (1967)). Based on the allegations contained in the SAC, the Court agrees with Hartford

that the exclusion bars coverage for personal and advertising injury.

Keffer’s amended complaint asserts that Weiss’s invasion and wrongful entry into the ATS

system was due to his access to account holders’ passwords and information, stored on ATS, which

further allowed him to “mine users’ information, images and videos.” (ECF No. 29, § 41). As

Hartford points out, “[t]he plaintiffs in the Weiss Lawsuits expressly allege that [ ] Weiss

wrongfully accessed confidential and personal information, including their passwords, personal

information commonly used in passwords, and personal health information.” (ECF No. 18, p. 25)

(citing ECF Nos. 18-2—13).'° Moreover, the Weiss Plaintiffs’ SAC asserts that “[a]s a senior

member of the University’s coaching staff, Weiss had privileged access to the ATS databases” and

that access allowed him to “view data belonging to student-athletes across all of the University

athletic programs.” (ECF No. 33-5, { 266-267). The data contained in the ATS system includes

“PII and PHI such as athletes’ contact information, medical details like height, weight, blood type,

and medical history” along with information relating to athletes’ mental health information. (/d.

228-229).

'0 The exhibits attached as support for Hartford’s motion to dismiss may properly be considered

by the Court because they are documents “whose authenticity no party questions” that are “referred

to in [Keffer’s] complaint” and are “central to [Keffer’s] claim.” Pryor v. Nat’l Collegiate Athletic

288 F.3d 548, 560 (3d Cir. 2002).

The Court finds that even if Keffer had otherwise successfully asserted that the Weiss

Plaintiffs’ allegations triggered “personal and advertising injury,” Hartford met its burden of

proving that the exclusion applies. As Hartford states, the information the Weiss Plaintiffs allege

Weiss “wrongfully accessed” “fall squarely within the Policy’s Information Disclosure Exclusion,

which unambiguously bars coverage for injuries arising out of any access to personal information,

including but not limited to health information.”!! (ECF No. 18, pp. 25-26).

The Court will grant Hartford’s motion to dismiss Keffer’s request for the Court’s

declaration that Hartford has a duty to defend or indemnify Keffer for “personal and advertising

injury” under the terms of the Policy.

B. Keffer fails to allege a breach of contract claim against Hartford.

Keffer brings a breach of contract claim against Hartford at Count II, asserting that

“Hartford has breached the [ ] Policy by denying coverage when bodily injury may exist which

provides coverage” and “[b]y denying defense and indemnity to Keffer under the [ ] Policy,

Hartford has breached its respective duties as imposed by the [ ] Policy.” (ECF No. 29, 4 70, 80).

However, because the Court has found that the Weiss Plaintiffs’ underlying SAC does not trigger

coverage under the “bodily injury” or “personal and advertising injury” provisions, Hartford has

no duty to defend or indemnify Keffer under either provision. Accordingly, the breach of contract

claim arising out of Hartford’s denial of defense and indemnity fails. The Court will grant

Hartford’s motion to dismiss Keffer’s breach of contract claim.

Again, the Court finds that where an insurer does not have a duty to defend, it does not have a

duty to indemnify the insured. Hartford thus does not have a duty to indemnify Keffer for the

alleged personal and advertising injuries. See Kvaerner, 908 A.2d at 896 n.7.

IV. CONCLUSION

For the reasons set forth above, the Court will grant Hartford Casualty Insurance

Company’s Reasserted Motion to Dismiss Plaintiffs [First Amended] Complaint Pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 30). An Order of Court will follow.

Dated: ¥j/Gj2¢ BY THE COURT:

DAL & Se

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.