Essex Insurance Company v. BRIAN KENNEDY, ET AL., Caroline E. Carino

* Honorable William W Schwarzer, Senior District Judge, Northern District of
California sitting by designation.
NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2327
ESSEX INSURANCE COMPANY
v.
BRIAN KENNEDY, ET AL.,
Caroline E. Carino, Appellant
ON APPEAL FROM THE DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
(Dist. Court No. 99-cv-05634)
District Court Judge: Honorable John P. Fullam
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 10, 2003
Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, Senior District Judge*
(Opinion Filed: March 5, 2003)

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OPINION OF THE COURT
PER CURIAM:
Because we write for the benefit of the parties, the background of the appeal
is not set out.
Appellant Caroline E. Carino (“Carino”) contests an order declaring that the
Essex Insurance Company (“EIC”) is not required to defend or indemnify its insured, Jay S.,
Inc. (“JSI”), in a civil action filed in state court by Carino. The District Court granted EIC’s
motion for summary judgment on the basis that Carino’s claim fell within a policy
exclusion entitled Assault and Battery. Carino argues that the exclusion does not apply
because it was not signed and that her complaint presents triable issues that preclude the
granting of a motion for summary judgment. We affirm.
Our review of a grant of summary judgment is de novo. Goosby v. Johnson &
Johnson Medical, Inc., 228 F.3d 313, 318 (3d Cir. 2000). Summary judgment is
appropriate if there are no genuine issues of material fact, and the moving party is entitled
to judgment as a matter of law. Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir.2001). Under Pennsylvania law, “[a]n insurer has a duty to indemnify its insured only if
it is established that the insured's damages are actually within the policy coverage.” Lucker
Mfg. v. The Home Ins. Co., 23 F.3d 808, 821 (3d Cir. 1994). Similarly, an insurer’s
obligation to defend its insured ends once it learns of facts sufficient to exclude the claims

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of liability from the policy's coverage. Id. at 813. Interpretation of an insurance contract is
a question of law for the court. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997) (citing Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469
A.2d 563, 566 (Pa. 1983)). Accordingly, if there are no facts in the complaint that would
support the inclusion of a claim within the policy’s coverage, summary judgment is
appropriate.
Carino’s contention that the Assault and Battery exclusion does not apply
because it appears in an unsigned addendum is unfounded. The declaration pages, which are
signed, incorporate by reference the endorsement containing the Assault and Battery
exclusion. App. 39.
Carino's second argument, that her complaint in state court seeks redress for
injuries other than those she received as a result of an assault and battery, is not borne out
by the language of her complaint. The complaint alleges that "[a]s a direct and proximate
result of Defendant's negligence, Plaintiff was savagely assaulted and battered, causing
serious bodily injury, which damages are in excess of Fifty Thousand ($50,000) Dollars.”
App. 15, 19. This language supports no reasonable interpretation other than the conclusion
that Carino's claims for redress arose from an assault and battery.
For the foregoing reasons, we will affirm the order of the District Court
dated April 24, 2001.

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