PA Supreme Court Holds a Potentially Negligent Shooting Triggers the Duty to Defend Despite Preceding and Subsequent Intentional Shootings
May 6, 2020
In a recent 4-3 ruling, the Pennsylvania Supreme Court found that a duty to defend arose under homeowner’s and personal catastrophe policies issued by Erie Insurance Exchange because an allegedly negligent shooting took place between two intentional and fatal shootings. In Erie Ins. Exch. v. Moore et al., 2020 Pa. LEXIS 2239, at *19 (Pa. Apr. 22, 2020), authored by Justice Kevin M. Dougherty, the Supreme Court rejected Erie’s argument that three separate shootings carried out by its insured, Harold Eugene McCutcheon, were part of a planned murder-suicide. Erie urged the Court to find that three separate shootings carried out back to back by McCutcheon made up one single criminal act and that the resulting damages were barred by its expected or intended injury exclusions. In taking as true the “four corners of the Complaint,” it was held that the Complaint did not preclude the possibility that McCutcheon accidentally shot his ex-wife’s boyfriend, after first shooting and killing his ex-wife and subsequently shooting and killing himself.
The underlying complaint was filed against McCutcheon’s Estate by the boyfriend of McCutcheon’s ex-wife, Richard Carly. Carly alleged that McCutcheon broke into the home of McCutcheon’s ex-wife in order to kill his ex-wife and himself. His intentions were communicated in a note to McCutcheon’s adult children. McCutcheon did in fact kill his ex-wife, and, eventually, himself. However, after fatally shooting his ex-wife, and before killing himself, McCutcheon shot Carly.
Carly rang the doorbell of the home of McCutcheon’s ex-wife but received no answer. While Carly’s hand was placed on the doorknob, McCutcheon pulled Carly into the home while holding the gun he had used to kill. McCutcheon was “screaming, swearing, incoherent and acting ‘crazy.’” A fight ensued between the two during which McCutcheon was “knocking things around” and “negligently, carelessly and recklessly” caused his weapon to fire a shot which struck Carly in the face.
In response to Carly’s allegations, McCutcheon’s Estate sought coverage under two policies issued by Erie to McCutcheon — a homeowner’s policy and a personal catastrophe policy. Both policies restricted covered damages to those caused by an “occurrence.” The definition of “occurrence” under both policies required the events to have been accidental in nature. The personal catastrophe policy went one step further to define an “occurrence” to include personal injury which was neither expected nor intended from the standpoint of the insured. Both policies contained exclusions with respect to bodily injury expected or intended by “anyone we protect.” Erie’s homeowner’s policy also excluded expected or intended injury even if “the degree kind or quality of the injury or damage is different than what was expected or intended or a “different person, entity, real or personal property sustained the injury or damage than was expected or intended.” In light of these provisions, Erie determined Carly’s injuries were not caused by an accidental “occurrence,” but rather were “expected or intended.”
Erie filed a declaratory judgment action in the Court of Common Pleas of Washington County. The Court of Common Pleas ruled in Erie’s favor finding that McCutcheon intended to cause serious harm to Carly and the shooting could not fall within the definition of an accident, or qualify as an “occurrence.” It rejected the notion that the terms “negligently, carelessly, and recklessly,” conferred coverage because McCutcheon allegedly “forcibly pulled Carly inside.” The Superior Court, reversed, however on the basis that McCutcheon’s brandishing of a firearm did not necessarily mean he intended the result of shooting Carly. The Superior Court recognized that artful pleading and use of the terms negligence and carelessness do not, alone, trigger a duty to defend, but that the Complaint alleged a situation in which injury may have been inflicted unintentionally.
The Supreme Court affirmed. Although McCutcheon’s alleged intentions to kill with respect to his ex-wife and himself were clear, his intentions with respect to Carly were less clear. Thus, there was a duty to defend McCutcheon’s Estate until the claim could be narrowed to one outside of coverage. However, the Court acknowledged that if there had been exclusions in place, either for incidents involving firearms or incidents carried out during the commission of a crime, no defense obligation would have been triggered. The allegations did not preclude the possibility of an accidental shooting. Therefore, denying a defense would not serve as a crime deterrent and would unnecessarily withhold compensation for tort victims. In her Dissenting Opinion, Justice Sallie Updyke Mundy disagreed with the Majority that the Complaint alleged an accidental “occurrence.” In her view, the discharge of the gun causing injury to Carly was intentionally tortious conduct that could not be interpreted as having been unexpected or fortuitous so as to trigger a defense obligation.
This decision highlights the fine line between artful pleading and the broad construction of allegations of the complaint under Pennsylvania’s Four Corners Rule. It also demonstrates that, when in doubt, insurers are best served in defending, under reservation of rights, and simultaneously seeking declaratory relief (as Erie did here) to ensure that withdrawals of a defense are appropriately carried out. However, the pursuit of declaratory relief can be a time consuming and costly endeavor that insurers will want to seriously contemplate with coverage counsel prior to filing.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Marni S. Berger is a Principal in the Firm's Insurance Law Department. In this capacity, she represents insurers in all facets of complex commercial litigation and coverage disputes involving the interpretation and meaning of critical language under contractual liability agreements, as well as commercial general liability, motor vehicle, disability, employers’ liability, disability/health, and other policies of insurance. Learn More.