Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-18-2002
Ohio Cslty Ins Co v. Schuler
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3541
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Recommended Citation
"Ohio Cslty Ins Co v. Schuler" (2002). 2002 Decisions. Paper 745.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/745
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IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3541
_____________
OHIO CASUALTY INSURANCE COMPANY,
an Ohio corporation
v.
CHRISTOPHER N. SCHULER;
GARY CHARLES ZUPON, JR.
Gary Charles Zupon, Jr., Appellant
____________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. No. 99-cv-00126)
District Judge: Honorable Gregory M. Sleet
_______________________________________
Argued: November 5, 2002
Before: BECKER, Chief Judge, McKEE and HILL, *
Circuit Judges.
(Filed: November 18, 2002)
STEPHEN P. CASARINO, ESQUIRE
THOMAS P. LEFF, ESQUIRE (ARGUED)
Cararino, Christman & Shalk, P.A.
800 N. King Street, Suite 200
P.O. Box 1276
Wilmington, DE 19899-1276
*
Honorable James C. Hill, United States Circuit Judge for the Eleventh Circuit, sitting by
designation.
Counsel for Appellant
ANDREW J. GALLOGLY, ESQUIRE (ARGUED)
Margolis, Edelstein
The Curtis Center - 4th Floor
6th & Walnut Streets
Philadelphia, PA 19106
Counsel for Appellee
Transcribed by: Tracey J. Williams, CET
(Proceedings recorded by electronic sound recording;
transcript provided by AAERT-certified transcriber.)
_______________________
BENCH OPINION
_______________________
BECKER, Chief Judge.
(The following is the bench opinion of the Court in the above-captioned matter:)
THE HONORABLE JUDGE BECKER:
This panel is a very busy panel. I have projected, I think out of two days we may have
as many as 11 precedential, what we used to call published opinions. And we've conferred
on this case and, frankly, we are prepared to dispose of this case at this juncture, and I will
announce the opinion and judgment of the Court.
The panel has reviewed the record carefully and sympathetically to Mr. Zupon, who
sustained grievous injury, and what we say we say with admiration for Mr. Leff, who very
zealously, very diligently and in the highest traditions of the bar attempted to make
recovery for his client, but we are satisfied that the exclusion in the policy that medical
2
payments to others do not apply to bodily injury or property damage which is expected or
intended by the insured is fatal to the plaintiff's claim. The very facts that were described at
argument this morning make it clear that this was an intended injury. Mr. Schuler
approached Mr. Zupon, menacing him with a baseball bat, and the claim of self-defense is
not even colorable here because there is no evidence that Mr. Schuler was threatened,
menaced, or was in any kind of danger at the hands of Mr. Zupon. There may have been a
lug wrench or a small wrench that was swung at him but no self-defense claim was ever
made by Mr. Schuler, who pleaded guilty. Indeed, we believe that the guilty plea to assault
under Delaware law is sufficient to -- was it aggravated assault? What was the --
COUNSEL: First-degree assault.
JUDGE BECKER:
First-degree assault under Delaware law is sufficient to dispose of the matter and, of
course, perforce there was no self-defense claim at that time. So, based upon the facts and
upon the plea, it is clear that there was intentional causing of serious physical injury to
Gary Zupon by means of hitting him in the head with a baseball bat. And, while Mr. Leff has
made a clever argument that there was no intention to inflict such severe emotional distress
as Mr. Zupon sustained, it is a basic principle of law that one is liable for the foreseeable
consequences of his actions and in this case emotional distress was clearly foreseeable.
These comments are consistent with those made by Judge Sleet in his order of August 21st
in granting Ohio Casualty's motion for summary judgment. For the reasons set forth by
Judge Sleet and for the reasons that I have set forth in this bench opinion, the judgment will
3
be affirmed. And that is the opinion and judgment of the Court. Judge McKee, is there
anything you want to add, any corrections?
THE HONORABLE JUDGE McKEE: No.
JUDGE BECKER: Judge Hill?
THE HONORABLE JUDGE HILL: I would say that I'm not at all positive that self-defense
is involved, but I think it well that the opinion covers that should it be necessary.
JUDGE BECKER: Very well. Thank you, gentlemen.
COUNSEL: Thank you.
JUDGE BECKER: And the Clerk will arrange to have this transcribed and sent to you.
(Bench opinion concluded).
_______________________________
TO THE CLERK:
Please file the foregoing Bench Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge
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