Insurance Coverage; Gunshot Injuries During Scuffle – Accidental and Covered or Intentional and Excluded?

Erie Ins. v. Moore, 175 A.3d 999 (Pa. Super. 2017), allocatur granted July 10, 2018, appeal docket 20 WAP 2018

On September 26, 2013, McCutcheon went to the home of his former wife, Terry, killed her, and then committed suicide. Before McCutcheon killed himself, Carly Moore arrived unexpectedly at the home, struggled with McCutcheon, and was seriously injured by shots fired from McCutcheon’s gun.  Carly sued McCutcheon’s estate.

Erie filed a declaratory judgment action contending that policies that it issued to insure McCutcheon do not cover Carly’s injuries because McCutcheon inflicted them intentionally. Carly contends that, as alleged in his complaint against McCutcheon’s estate, the discharge of McCutcheon’s gun and resulting injuries to Carly were unintentional negligence on the part of McCutcheon, and Erie therefore is required to provide a defense and indemnity.  The trial court granted summary judgment for Erie; Superior Court reversed.

The Erie policies at issue are McCutcheon’s homeowners’ and excess coverage policies, both of which cover as “occurrences” injuries from “accidents,” but not injuries that are “expected or intended.” Based on the allegations of Carly’s complaint against McCutcheon’s estate, the Superior Court concluded that the McCutcheon’s shooting of Carly was accidental:

[C]ontrary to Erie’s argument, the facts Carly pleads fairly portray a situation in which injury may have been inflicted unintentionally. As the trial court observed, it is impossible to “know with certainty what McCutcheon, Jr.’s state of mind was that night,” Order, 5/31/16, at 7, and it may be that McCutcheon actually intended to shoot Carly in the face. But Carly’s complaint alleges otherwise, and we are bound to accept Carly’s factual allegations as true. We have no reason to do otherwise. The allegations make clear that McCutcheon went to his former wife’s home to kill her and himself — not Carly; indeed, they make clear that Carly’s arrival at the home was totally unplanned and unexpected. Moreover, there is nothing in the complaint to suggest that McCutcheon knew that Carly was his ex-wife’s boyfriend and would therefore have had that motivation to deliberately shoot him. The trial court’s labeling of McCutcheon’s shooting of Carly as “deliberate conduct,” Tr. Ct. Op. at 5, does not match the allegations of the complaint.

….

Because the complaint alleges that the shooting of Carly was accidental, the shooting must be considered an “event occurring unintentionally” that is within the coverage of the Policies.  … And because, under the allegations, McCutcheon did not “intend[] the resultant damage,” the exclusions do not apply. … We therefore hold that Erie has a duty to defend the defendants in Carly’s tort action. Accordingly, we vacate the judgment declaring that Erie has a duty neither to defend nor indemnify the defendants, reverse the order granting summary judgment in favor of Erie, and remand to the trial court for entry of a summary judgment in favor of Carly.

Slip Op. at 22; 26 (citations and footnotes omitted).

Erie sought and was granted allocatur, relying on arguments that the Superior Court’s decision is inconsistent with previous decisions of the Superior Court and the Supreme Court and misconstrues the “intentional act” exclusion.  The issues, as stated by Petitioner, are:

  1. Does the Superior Court’s ruling that shooting a person during a fight, in turn, during a planned murder -suicide, constituted an “occurrence” under a liability insurance policy conflict with Pennsylvania law as established by this Court?
  2. Does the Superior Court’s ruling conflict with its own decision in American National Property and Casualty Co. v. Hearn, 93 A.3d 880 (Pa. Super. 2014), and misconstrue the intentional acts exclusion of a liability insurance policy?
  3. Does the Superior Court’s ruling conflict with Pennsylvania public policy, as stated in Mutual Benefit Ins. Co. v. Haver, 725 A.2d 743, 747 (Pa. 1999), that liability insurance does not cover damages caused as a result of evil or illegal conduct?

The Hearn case cited in the second issue is not discussed in the Superior Court opinion.  It involved a situation in which Hearn, the defendant teenage boy, intended to give Clayton, his friend the plaintiff, a momentarily painful but innocuous “ball tap” because “in our little group, if you were doing something, like, kind of stupid, that’s what you—you would get a ball tap.”  93 A. 3d at 885. The Superior Court panel in that case affirmed summary judgment for the insurer because Hearn’s act was intentional, even though its consequence was far more severe than the actor intended, and thus fell within the policy exclusion:

Hearn’s act of hitting Clayton in the groin was clearly intentional. Hearn snuck up behind Clayton while his back was turned and hit him in the groin area with his forearm. Hearn testified that he only meant to cause Clayton momentary discomfort; however, the policy excludes coverage of bodily injuries resulting from intentional acts “even if the actual injury or damage is different than expected or intended.” Although the complaint includes counts sounding in negligence, the question of coverage is decided by the factual allegations in the complaint. Here, it is alleged that Hearn intentionally and maliciously struck Clayton in the groin.

Hearn, 93 A. 3d at 885-886.

The Haver case cited in the third issue is discussed in the Superior Court’s opinion, but not for the proposition as to which allocatur is granted.  In that case, a pharmacist was sued for injuries suffered by a woman to whom he distributed opioid medications without prescriptions.  The Supreme Court rejected the insured’s argument that the policy was ambiguous because it contained, in conjunction with the intentional act exclusionary language, an endorsement providing coverage for “professional liability,” defined in the policy to include “malpractice.” The court reasoned that it would be against public policy to offer liability insurance for damages caused by an illegal or evil act:

Finally, any ambiguity arising from the use of the term malpractice in the endorsement, as a result of the potentially evil or illegal connotation that might be attributable to that term, is illusory, since it would be against the public policy of this Commonwealth to permit a carrier to offer insurance for damages assessed as a result of evil or illegal conduct.

Haver, 725 A.2d at 747.

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.