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USAA CAS. INS. CO. v. SCHNEIDER

September 11, 1985

USAA CASUALTY INSURANCE COMPANY, Plaintiff,
v.
CHRISTOPHER SCHNEIDER and JOHN P. McENROE, JR., Defendants



The opinion of the court was delivered by: GLASSER

AND ORDER

GLASSER, United States District Judge.

 USAA Casualty Insurance Company ("USAA") brings this action seeking a declaration that it is not obligated to insure John P. McEnroe, Jr. ("McEnroe") for damages that may arise from an incident during a match at the 1983 United States Open Tennis Championship. Specifically, USAA wishes to be absolved from responsibility with regard to a suit brought by Christopher Schneider ("Schneider"), a spectator at that match. McEnroe, in return, argues that ne is covered by a homeowner's policy issued to him by USAA in April, 1983, to be effective for one year. This case is before me on cross motions for summary judgment. *fn1" Because "there is no genuine issue as to any material fact," Fed. R. Civ. P. 56(c), summary judgment will be granted in favor of the plaintiff.

 The pertinent facts of this case are set forth adequately by McEnroe: *fn2"

 
2. On August 30, 1983, McEnroe competed in a first round match of the men's singles against Trey Waltke. Throughout the match Schneider was pulling for McEnroe's opponent, Waltke. In the third set, the score stood at one set apiece and each had two games in the third set. Waltke had service in the fifth game. They played the first point which was won by Waltke so that the score stood at 15-0.
 
3. After play on the point had been concluded and in response to Schneider's repeated heckling, McEnroe departed from the playing court and approached the box in which Schneider was sitting. The two exchanged words. At the time of his departure, McEnroe's hand waved in the air and some grains of rosin *fn3" (a material used by athletes to absorb perspiration), flew in Schneider's general direction. Schneider asserts he was touched by them. The altercation between the two men lasted several moments.
 
4. After conclusion of the incident, McEnroe returned to the playing court. The match resumed where it had left off in the fifth game of the third set, with Waltke leading McEnroe 15-0. Play continued for some time and McEnroe ultimately defeated Waltke in the five set match, by a margin of three sets to two.

 Having bested Waltke on the tennis court that day, McEnroe was soon faced with two new court battles. In October, 1983 Schneider served McEnroe with a summons and complaint in a New York state court action, recounting the incident described above and seeking damages of $6,000,000.00. In November, 1983, USAA, having been notified by McEnroe of his upcoming match with Schneider for the purpose of having USAA defend and indemnify him, brought this action.

 The sole legal issue presented is whether the facts just described entitle McEnroe to protection under the homeowner's policy mentioned earlier. The relevant portions of that policy are as follows:

 SECTION II - LIABILITY COVERAGES

 COVERAGE E PERSONAL LIABILITY

 
If a claim is made or a suit is brought against any insured for damages because of bodily injury. . . to which this coverage applies, [USAA] will:
 
a. pay up to [its] limit of liability for the damages for which the insured is ...

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