Make Sure You Allege Mental Incomptency When Seeking a Defense in an Assault Case for There to Be a Defense Obligation

Recently, the Superior Court of Pennsylvania found that an insurer had properly denied a defense to its insured who had been sued for assault. See Kiely on Behalf of Feinstein v. Philadelphia Contributionship Ins. Co., 2019 PA Super 90 (Mar. 26, 2019). The facts before the court indicated that Christine Feinstein had hired Nydia Parkin as a domestic employee in her residence. Inexplicably, Feinstein physically attacked Parkin during her employment. Parkin sued for assault. Feinstein tendered the claim for a defense to her homeowner insurance company. The claim was denied on the ground that the assault was not an occurrence. In the ensuing coverage trial, Feinstein’s attorney argued that Feinstein had suffered from a stroke and bipolar disorder and may even have had dementia at the time of the assault. The court nonsuited the case, finding that the attorney’s testimony did not prove Feinstein’s mental capacity was diminished to a point where she could not appreciate the nature of her conduct. The case was affirmed on appeal. The Superior Court held that Feinstein’s reported mental incapacity, irrespective of whether it was real or imagined, was irrelevant because the underlying complaint did not mention mental incapacity. Instead, the complaint alleged that Feinstein had attacked Parkin, including choking and punching her, while uttering racial epithets, and that Parkin did not provoke the attack or fight back. Under those circumstances, the Superior Court found that Feinstein’s mental health was not in question and that it was error for the trial court to even consider Feinstein’s health in assessing the insurer’s duty to defend.