12th Street Gym, Inc., Robert Guzzardi, at No. 95-1864 v. General Star Indemnity Company, at No. 96-1845

ROTH, Circuit Judge,

dissenting:

The issue in this appeal is the proper interpretation of a Sexually Transmitted Disease Exclusion (“STDE”) included in a liability insurance policy. As I read the broadly-worded STDE, it unambiguously excludes from coverage all of the claims in Irving Silverman’s Complaint for which the insured, 12th Street Gym (“Gym”), could possibly have been indemnified. I therefore believe that the Gym is not entitled to indemnity for the settlement of any of Silverman’s claims. Accordingly, I dissent. I would reverse the district court’s entry, of summary judgment for the Gym and its co-owner and president, Robert Guzzardi, and enter summary judgment for the insurer, General Star Indemnity Company.

As the majority has explained, Silverman’s complaint is based on an incident that took place in the Gym lobby in 1994. After Sil-verman finished exercising, he nicked his finger on a gym locker. He bandaged his cut with a band-aid, showered, and dressed in the locker room. Silverman alleges that as he was leaving the Gym, he was confronted by Guzzardi. In front of other Gym patrons, Guzzardi demanded to know whether Silver-man had AIDS, and Silverman affirmed that he did. Noticing the bandage on Silverman’s finger, Guzzardi allegedly shouted, “We don’t want your kind in here. You’re careless! You could infect everybody!” Silverman was thereafter banned from the Gym.

The majority notes that under the insurance policy the Gym would be entitled to indemnity in this case only to the extent that Silverman’s claims could be characterized as “personal injury.”1 Thus, the Gym is enti-*1168tied to indemnity from General Star only to the extent that Silverman suffered damages as a result of the Gym’s slander or the Gym’s publication of material that violated Silver-man’s right to privacy. I therefore agree with the majority that one of the district court’s alternative holdings is flawed.

The district court held that the STDE did not preclude indemnity for Silverman’s claims because “[t]he underlying Complaint is based on Irving Silverman’s alleged exclusion from the 12th Street Gym — not on his purportedly having a sexually transmissible disease.” 12th Street Gym, Inc. v. General Star Indem. Co., No. 94-5757 (E.D.Pa. Sept. 5, 1995). If Silverman’s claims were based on his exclusion from the 12th Street Gym alone, however, those claims would not be covered under the insurance policy at all. As the majority demonstrates, the only potentially relevant coverage is for “personal injury,” and personal injury, by definition, involves defamation or invasion of privacy, not physical exclusion from the Gym. Given the relevant insurance coverage, General Star could not possibly be required to indemnify the Gym for claims based only on Silver-man’s exclusion from the Gym. Because such a claim would not be covered by the insurance policy to begin with, we need not consider whether it is excluded from coverage by the STDE.

It is in our consideration of the district court’s alternative holding that the majority and I part ways. The district court held that the STDE does not preclude coverage in this ease because Silverman’s complaint was not based on his “purportedly having a sexually transmitted disease.” The assumption underlying this holding is that the STDE can be read narrowly to exclude from coverage only those claims that allege transmission of a disease through actual sexual conduct, as opposed to excluding from coverage all claims involving the genre of diseases known generally as sexually transmitted diseases (no matter how the disease was transmitted in a particular instance). I believe that this reading of the STDE is insupportably narrow when read against the exclusion’s broad language.

The majority divides its support for this holding into three separate but closely related arguments. First, the majority makes a textual argument. In essence, the majority argues that the term “sexually transmitted disease” is inherently ambiguous because it is unclear whether it refers generally to the genre of diseases that may be sexually transmitted or only to diseases that were transmitted by sexual conduct in the particular case at hand. Second, the majority argues that the STDE fails to indicate the intended scope of the exclusion. Third, the majority argues that the STDE does not reveal the required nexus between a claim and a sexually transmitted disease. I will address these arguments in turn.

Before specifically addressing the majority’s arguments, however, I believe that the broad language of the STDE bears repeating in its entirety:

This insurance does not apply to “bodily injury,” “property damage,” “personal injury,” “professional liability” or “advertising injury” with respect to any claim, suit or cause of action arising directly or indirectly out of instances, occurrences or allegations involving sexually transmitted diseases, including Acquired Immune Deficiency Syndrome (AIDS). This exclusion shall apply regardless of the legal form any claim may take. As an example, this insurance shall provide no coverage for a claim alleging that any Insured was negligent or in breach of contract by maintaining premises where the Insured knew, or should have known diseases might be sexually transmitted.

App. at 166a. Thus this extremely broad exclusion precludes indemnification for any claim for “personal injury,” even if the injury arose only indirectly from an occurrence or allegation involving sexually transmitted diseases, such as AIDS.

*1169The majority relies heavily on a narrowly-focused textual argument in order to avoid the broad sweep of the STDE. According to the majority, this ease may not “involve” a sexually transmitted disease at all because:

[cjareful review of the complaint reveals that Silverman’s allegations were based on the allegation that he had AIDS, without reference to the manner in which he contracted the disease. Since AIDS can be transmitted in a number of ways, only one of which is sexual, it is not accurate to say Silverman’s complaint was based on his having a “sexually transmitted” disease. Thus ... we adopt the [district] court’s alternative determination that “to the extent AIDS was implicated, it was not as a sexually transmissible disease.”

Op. at 1163-64 (quoting district court opinion). The majority reemphasizes this argument later by stating that the term “sexually transmitted disease” could be understood to “encompass all diseases that could conceivably be sexually transmitted, or it could be limited to diseases that have actually been transmitted through sexual conduct.” Id. at 1165.

The majority’s reading of the term “sexually transmitted disease” is unconvincing, given the common usage of that term. Words of common usage in an insurance policy must be construed in their natural, plain and ordinary sense, Slate Construction Corp. v. Bituminous Casualty Corp., 228 Pa.Super. 1, 323 A.2d 141, 145 (1974) (citing Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 385 Pa. 394, 123 A.2d 413 (1956)), and we should not torture the plain meaning of a writing merely to find an ambiguity. Monti v. Rockwood Ins. Co., 303 Pa.Super. 473, 450 A.2d 24 (1982); see Techalloy Co., Inc. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984).

In common usage, the term “sexually transmitted disease” refers to a genre of communicable diseases, no matter how they are actually transmitted in an individual ease {e.g., AIDS is a “sexually transmitted disease,” even though it may be transmitted through blood transfusions or the use of contaminated hypodermic needles).2 Nothing in the context of the STDE indicates that the designation “sexually transmitted disease” should be read to require the occurrence of actual sexual transmission or sexual conduct in each individual case.

An interpretation of the term “sexually transmitted disease” as referring to a genre of diseases as opposed to a singular mode of transmission in an individual ease is reinforced by the inclusion of an example of such sexually transmitted diseases at the end of the relevant sentence in the STDE: “involving sexually transmitted diseases, including Acquired Immune Deficiency Syndrome (AIDS) ” (emphasis added). In other words, the STDE excludes from coverage any claim arising out of instances or allegations involving the genre of diseases known as sexually transmitted diseases, which includes the disease known as AIDS.

Contrary to the majority’s emphasis on actual sexual conduct, the STDE uses sweeping language to exclude from coverage a broad swath of claims “arising directly or indirectly out of instances, occurrences or allegations involving sexually transmitted diseases_” There is no reference to conduct or sexual conduct anywhere in the STDE. The majority’s reading of the term “sexually transmitted disease” to emphasize transmission by sexual conduct is strained on its face, given the accepted meaning of that term. In the context of the entire STDE, the majority’s reading is untenable.

The majority also argues that the scope of the STDE is unclear. According to the majority it would be reasonable to limit the STDE “to claims alleging transmission, or fear of transmission, of disease through sexual conduct. Thus ‘personal’ injury may be *1170limited to allegations of actual sexual conduct in an oral or written publication.” Op. at 1166 (emphasis added). This argument merely restates in the “personal injury” context the majority’s unfounded emphasis on sexual conduct. There is no express mention whatsoever in the STDE of “conduct” or “sexual conduct” in any context.

A -straightforward comparison of the STDE and the claim in this case is instructive on this point. The STDE excludes claims for personal injury (ie., defamation or defamation leading to invasion of privacy) “arising directly or indirectly out of instances, occurrences or allegations involving sexually transmitted diseases, including Acquired Immune Deficiency Syndrome (AIDS).” In this case, Silverman nicked his finger on a gym locker and was wearing a band-aid when he was confronted by Guzzardi. Guzzardi allegedly exclaimed that Silverman was careless and “could infect everybody.” Based upon Guzzardi’s outburst, Silverman alleges a number of causes of action that could be characterized as personal injury under the policy. Silverman’s claims for personal injury arise directly from Guzzardi’s allegation that Silverman might transmit AIDS in the Gym.

Under any reasonable interpretation of the word “involving,” Guzzardi’s allegation involves a sexually transmitted disease and fear of its possible transmission. Silverman’s claim arises directly from Guzzardi’s utterance, which makes explicit reference to Sil-verman’s AIDS and the possibility that he could infect others. Under the majority’s interpretation, Guzzardi’s exclamation would apparently have to include some additional reference to sexual conduct. Given the broad language of the STDE, I find that such a narrow reading of its coverage is implausible.

Finally, the majority argues that the language of the STDE “does not reveal a clear nexus between a claim and a sexually transmitted disease.” Op. at 1166. The majority is troubled by the STDE’s purported failure to define an appropriate nexus because “the distinction between a ‘remote’ connection and an ‘incidental’ connection to a sexually transmitted disease may be significant in this case.” I disagree. The broadly-worded STDE excludes personal injury from coverage even if the injury arose only “indirectly” from an occurrence or allegation “involving” sexually transmitted diseases, such as AIDS. In this case, the entire sum and substance of Guzzardi’s allegedly injurious remarks involved AIDS, Silverman’s status as an individuals with AIDS, and the potential that Silverman could infect others in the Gym with AIDS. We could, perhaps, imagine a claim on the margin of coverage where the alleged ambiguity surrounding the word “involving” might come into play. Nevertheless, if the exclusion applies to “personal injury” at all (which it clearly does), this case is in the heartland of those cases that the STDE excludes from coverage.

In the course of its opinion, the majority acknowledges that its interpretation of the STDE is motivated to some extent by a reluctance to carry the STDE to its logical extension. The majority correctly states that the STDE might potentially eliminate coverage “for an extremely broad set of claims.” Op. at 1166. There is no reason to assume, however, that the parties did not appreciate the full import of their agreement when they signed it. In fact, it is highly unlikely that General Star and the Gym agreed to the STDE without considering just the sort of claim presented in this case. Before the parties agreed to the STDE, a number of courts had awarded damages and/or non-monetary relief to HIV-positive or AIDS-infected individuals who were illegally excluded from public accommodations or employment. Some of these cases awarded damages for associated emotional pain and mental anguish.3 *1171The issue presented in this case was of obvious importance to both parties. The Gym estimates that approximately sixty percent of its members, both male and female, are gay, and that “of the gay population, approximately ten to twelve percent (10— 12%) of the membership were either HIV positive or had AIDS in March of 1994.” Appellees’ Brief at 11. Given the existing ease law on the topic and the importance of the issue for the Gym and for General Star, I see no reason to suppose that the parties did not consider the implications of the broad language employed in the STDE. We should feel no compunction about holding the Gym to the bargain that it struck.

The majority’s identification of an ambiguity in the STDE relies heavily on a tortured construction of the term “sexually transmitted disease” to'require actual sexual conduct. This narrow interpretation of a key term ignores the normal usage of the words as well as the context in which they are used in the STDE. The underlying claims that give rise to the Gym’s only valid claim for indemnification hinge on remarks permeated with references to Silverman’s AIDS. Therefore, I would reverse the district court’s decision in favor of the Gym, and I would remand this case to the district court for entry of judgment in favor of General Star.

. Personal injury is defined in pertinent part as injury, other than "bodily injury,” arising out of one or more of the following offenses:

d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization's goods, products or services; or
*1168e. Oral or written publication of material that violates a person's right of privacy.

App. at 163a. The body of the policy states that b. [t]his insurance applies to:

(1) "Personal injury” caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you....

App. at 156a.

. See, e.g., Merck Research Laboratories, The Merck Manual of Diagnosis and Therapy at 254-72 (16th ed.1992) (listing several types of diseases under the classification “sexually transmitted diseases” even though they are not necessarily transmitted through sexual conduct); Richard Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary at 185-86 (Supp.1992) (noting in reference to sexually transmitted diseases that "sexual transmission is the only important mode of spread of some of the diseases in the group ..., while others ... can also be acquired by nonsexual means").

. See, e.g., Support Ministries v. Village of Waterford, 808 F.Supp. 120 (N.D.N.Y.1992), (enjoining community from barring residence for homeless individuals with AIDS and requiring payments of counsel fees and interest); Doe v. District of Columbia, 796 F.Supp. 559 (D.D.C.1992) (reversing exclusion of HIV-positive firefighter from fire department and awarding compensatory damages for emotional pain and suffering); Harris v. Thigpen, 941 F.2d 1495 (11th Cir.1991) (remanding separation of HIV-positive prison inmates from other inmates for more careful consideration of necessity of separation for each prison activity); Cain v. Hyatt, 734 F.Supp. 671 (E.D.Pa.*11711990) (awarding back pay, interest, damages for mental anguish and humiliation, and punitive damages to attorney who was dismissed for having AIDS); Doe v. Dolton Elementary School, 694 F.Supp. 440 (N.D.Ill.1988) (enjoining decision to exclude grammar school student with AIDS from classes).