Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co.

704 A.2d 665, 1997 Pa. Super. LEXIS 4019
CourtSuperior Court of Pennsylvania
DecidedDecember 31, 1997
DocketNo. 3138
StatusPublished
Cited by42 cases

This text of 704 A.2d 665 (Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co., 704 A.2d 665, 1997 Pa. Super. LEXIS 4019 (Pa. Ct. App. 1997).

Opinion

CAVANAUGH, Judge.

The issue presented in this appeal is one of first impression in Pennsylvania and requires us to determine whether an insurer has the duty to defend and indemnify an insured against claims of sexual harassment and gender discrimination in the workplace under a “personal injury” provision contained in the insured’s comprehensive general liability policy which provides coverage for injuries arising out of the offenses of false imprisonment, invasion of privacy, and defamation. For the reasons that follow, we find no duty to defend or , indemnify and we affirm the trial court’s order which granted summary judgment to the insurers.

The genesis of the present case is a lawsuit filed in the United States District Court for the Eastern District of Pennsylvania against appellant Roman Mosaic and Tile Company (Roman Mosaic) by Constance Je-siolowska, a former Roman Mosaic employee.1 Ms. Jesiolowska’s complaint against Roman Mosaic contained six separate counts. Count I alleged violations of Title Seven of the Civil Rights Act of 1964. Count II alleged violations of the Pennsylvania Human Relations Act. Counts III through VI, respectively, alleged breach of employment contract, constructive discharge and wrongful termination, intentional infliction of emotional distress and outrageous conduct. In [667]*667support of these claims the complaint contained the following factual allegations:

Factual Allegations
1. Plaintiff was an employee of Defendant Roman Mosaic and Tile Company since 1980 and through June 1989, and was reinstated to her employment in July 1990 and continued her employment through February 1991.
2. Plaintiff was under the direct supervision of Blase Primo, Supervisor for Defendant.
3. During her employment, Plaintiff was subjected to sexual harassment and discrimination on the basis of her gender, female, unlawful and in violation of Sections 703(a) and 703(k) of Title VII, 42 U.S.C. Section 2000E-2(a); Defendant employer has permitted employees to urinate in her work shoes, to make derogatory remarks based on Ms. Jesiolowska’s gender, such as referring to her as a “slut”, “fat pig” and “whore”. Further, Defendant has permitted employees to physically harass Plaintiff by throwing a wheelbarrow at her, by placing her in a wire cage and dragging it around the job site, and placing her in a metal drum and rolling it around the work site. These and other instances have occurred since at least 1982 and continued to the present.
4. Since at least June 1989, and for years previously, Defendant employer has selected Constance I. Jesiolowska, the only female Tile Mechanic in its employ for layoff from her position of Tile Mechanic because of her sex “female”, and by refusing to recall her to work, while at the same time, [sie] Defendant employer retained and/or recalled similarly situated males, and Tile Mechanics after discharging Ms. Jesio-lowska[.][F]urther, Ms. Jesiolowska was selected for layoff on a more frequent basis than any other employee on the basis of her gender.
5. The above conduct resulted in the wrongful termination of Plaintiff’s position with Defendant employer.
6. The above conduct constituted breach of the Plaintiff’s employment contract with Defendant employer, particularly as it concerns Plaintiff’s medical benefits and pension rights as well as opportunities for future employment.
7.Plaintiff has sustained severe and permanent psychological injury by reason of Defendant’s conduct, and permanent loss of earning capacity, as Plaintiff!,] a skilled Tile Mechanic, cannot return to work in a male-oriented environment, and Defendant has encouraged and permitted the maintenance of a hostile work environment so as to prevent Plaintiff from earning a living in the skilled trade for which she has trained.

Roman Mosaic contacted the three insurers with which it had comprehensive general liability policies in effect at the times plaintiff’s alleged injuries occurred, seeking defense and indemnity to the claims raised in plaintiff’s Complaint. The Aetna Casualty and Surety Company (Aetna) and the Pennsylvania Manufacturer’s Association Insurance Company (PMA) each declined to defend or indemnify on the ground that the plaintiff’s injuries were not covered under the terms of their respective policies. The Northern Insurance Company of New York (Northern), however, agreed to defend and indemnify subject to a reservation of rights.

Ultimately, the case settled prior to trial for $150,000, with Roman Mosaic contributing $30,000 and Northern contributing $120,-000. Aetna and PMA declined all requests for contribution. Subsequently, Northern and Roman Mosaic brought suit against Aet-na and PMA in the Delaware County Court of Common Pleas, alleging bad faith, breach of contract, and unjust enrichment, and seeking equitable contribution and reimbursement for the failure of Aetna and PMA to provide a defense or indemnity to the underlying action.

All parties filed motions for Summary Judgment. The underlying facts of the case were undisputed and the only issue to be decided by the court in disposing of the opposing summary judgment motions was whether the policies should be read to either include or exclude the claims presented in the underlying lawsuit. Appellants contended that Ms. Jesiolowska’s injuries, as pled in paragraph three of her complaint, fell under the “personal injury” provisions contained within the [668]*668Aetna and PMA policies, the pertinent portions of which are identical and provide that:2

(A) The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies ...
“Personal injury” means injury arising out of one or more of the following offenses committed during the policy period:
(1) false arrest, detention, imprisonment, or malicious prosecution;
(2) wrongful entry or eviction or other invasion of the right of private occupancy;
(3) a publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual’s right of privacy;

Specifically, appellants argued that Roman Mosaic’s employee’s references to Ms. Jesio-lowska as a “slut,” “whore” and “fat pig,” as pled in paragraph three of the complaint, raised a claim for slander or defamation; that the conduct of Roman Mosaic’s employees in placing Ms. Jesiolowska in a cage and metal drum raised a false imprisonment claim; and that the allegations that Roman Mosaic’s employees urinated in Ms. Jesio-lowska’s shoes and threw a wheelbarrow at her raised a claim for invasion of privacy.

The court heard argument on the motions and by order dated July 31, 1996, it denied the joint motion for summary judgment of Northern and Roman Mosaic and granted the summary judgment motions of Aetna and PMA, finding that “[pjaragraph three of [Ms. Jesiolowska’s] Complaint against Roman Mosaic ...

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Cite This Page — Counsel Stack

Bluebook (online)
704 A.2d 665, 1997 Pa. Super. LEXIS 4019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-mosaic-tile-co-v-aetna-casualty-surety-co-pasuperct-1997.