By Ben Seal, From The Legal Intelligencer

A Westmoreland County tanning salon that was the site of a man’s surreptitious recording of undressed patrons is not entitled to insurance coverage for a negligence lawsuit brought by 37 plaintiffs who were victims of his actions, the state Superior Court has ruled.

In a pair of consolidated appeals, a ­unanimous three-judge panel issued memorandum opinions May 24 finding that ­neither Steadfast Insurance Co. nor Nationwide Property & Casualty Insurance Co. must indemnify Toni Tomei, doing business as Sunkissed Tanning & Spa, for videotapes created by Jesse Macklin and published on the Internet. The court ruled that the facts at issue did not implicate the salon’s coverage for either “bodily injury” or “personal and advertising injury.”

“Coverage A does not apply because the underlying plaintiffs do not allege a ‘bodily injury’ as defined in the policies, but only allege emotional distress and mental ­anguish,” Judge Kate Ford Elliott wrote for the court in Steadfast Insurance v. Tomei. “Coverage B does not apply because the underlying plaintiffs do not allege any ‘personal and advertising injury’ caused by appellants; rather, they allege ­appellants’ negligence in failing to secure the premises.”

In a companion ruling in Penn-America Insurance v. Tomei, Ford Elliott found that because the claims against Sunkissed “sound solely in negligence” and no claims for invasion of privacy are pending, the trial court correctly ruled that the “personal and advertising injury” coverage did not apply to the case at issue.

The underlying negligence lawsuit stems from Macklin, a third party, recording women in various stages of undress from a position in the drop ceiling at the salon. The videos were then posted to the Internet, leading a group of plaintiffs to sue Sunkissed for failing to ensure their safety and secure the premises from Macklin’s misdeeds. They claim injuries including humiliation, embarrassment, shame, mental anguish and mental trauma, Ford Elliott said. Sunkissed sought insurance coverage from Nationwide and Steadfast, but the trial court granted the insurers’ motions for summary judgment.

On appeal, Sunkissed argued that “bodily injury” encompasses emotional distress, but Ford Elliott agreed with the lower court’s ruling that a policy covering bodily injuries does not apply to claims of humiliation and embarrassment. Some of the women alleged “vague physical symptoms” brought on by their distress at learning of the taping and publication of the videos, but even those who did so did not allege any antecedent physical injury or impact, the opinion said.

Regarding the coverage for “personal and advertising injury,” Ford Elliott said both insurers’ policies excluded coverage for distribution of material in violation of the law. The policies extend coverage only for specific enumerated torts, such as ­invasion of privacy, but negligent security is not one of the defined risks specified and no claim for invasion of privacy was advanced by the underlying plaintiffs, the opinion said. The trial court was therefore correct to deny coverage based on the underlying negligence claim’s inapplicability, and the statute excluding coverage for statutory violations would also have sufficed to deny coverage under Nationwide’s policy, Ford Elliott said, as Macklin’s actions were “clearly in violation of a number of state and federal criminal statutes.” She also noted that general liability policies do not cover intentional torts and criminal acts ­unless unambiguously written to provide such coverage.

In Penn-America, Sunkissed contended it should receive coverage from Steadfast because the criminality exclusion only ­applies if a crime is allegedly committed “by any insured or on behalf of any insured,” and Macklin was not an insured under the policy. Ford Elliott agreed with Sunkissed that the criminal acts exclusion does not apply to bar coverage, but she said the lack of an allegation of “personal and advertising injury” nonetheless barred coverage, so the trial court was correct to find that Coverage B did not apply.

Krista Kochosky and Michael Oliverio of The Lynch Law Group in Cranberry Township represent Nationwide.

“We’re certainly gratified that the Superior Court reached what we believe is the appropriate decision in affirming the trial court’s determination that there were no coverage obligations here,” Oliverio said.

Neither Nancy Harris of Galloway Monzo in Greensburg, representing Sunkissed, nor Louis Bove of Bodell Bove in Philadelphia, representing Steadfast, returned calls for comment.

For more on this story go to: http://www.thelegalintelligencer.com/id=1202758800296/Tanning-Salon-Gets-No-Coverage-in-Peeping-Tom-Case#ixzz4AAmQkrUM