Nationwide Mut. Ins. Co. v. Hassinger
| Decision Date | 02 March 1984 |
| Parties | NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER, Judy D. Harvey, Administratrix of the Estate of Richard L. Harvey, Deceased; and Judy D. Harvey, In her own right. Appeal of Judy D. HARVEY. NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER, Judy D. Harvey, Administratrix of the Estate of Richard L. Harvey, Deceased; and Judy D. Harvey, In her own right. Appeal of David Lee HASSINGER. |
| Court | Pennsylvania Superior Court |
Argued Jan. 25, 1983.
Jack E. Feinberg, Philadelphia, for Harvey appellant (at No. 350) and appellee (at No. 358).
David E. Lehman, Harrisburg, for Hassinger, appellant (at No. 358) and appellee (at No. 350).
Before WICKERSHAM, CIRILLO and WATKINS, JJ.
This is an appeal from an order of the Court of Common Pleas of Juniata County declaring that since the death of Richard L. Harvey was the result of intentional conduct on the part of the insured, David L. Hassinger, there was no insurance coverage for claims arising out of that death.
In the early morning hours of November 9, 1975, the decedent Richard L Harvey was struck and killed by a motor vehicle owned and operated by David L. Hassinger. At the time of the incident, the decedent was walking through a parking lot when Hassinger drove his car over the curb, across the sidewalk, and hit the decedent. The decedent was propelled onto the hood of the car, after which he slipped underneath the car and was run over. As a result, the decedent suffered serious injuries which caused his death.
A civil action was commenced in the Huntingdon County Court of Common Pleas by Mrs. Judy Harvey, widow of the decedent. She sought damages against Hassinger in her capacity as administratrix of her husband's estate and in her own right. As the insurance carrier for the vehicle involved, Nationwide Mutual Insurance Company defended Hassinger subject to a reservation of rights. On March 28, 1979, a verdict was returned in favor of Mrs. Harvey in the amount of $305,000.
Nationwide subsequently petitioned the Court of Common Pleas of Juniata County for a declaratory judgment under its insurance policy with Hassinger claiming that it was not responsible for the liability of Hassinger. It was Nationwide's contention that Hassinger acted intentionally in striking the decedent. Therefore, he was excluded from coverage under a provision in his insurance policy.
Since both Hassinger and Mrs. Harvey had an interest in the declaratory judgment, both were named as Respondents. They contended that, at the time of the incident, Hassinger was so intoxicated as to be incapable of forming an intent to cause his vehicle to strike and kill the decedent. In the absence of any intent, they believed that Nationwide was liable under the policy for the verdict against Hassinger.
The Petition for Declaratory Judgment proceeded to trial before a jury on November 25 and 26, 1980. After hearing the evidence, the jury was asked for its finding with respect to one question: Did Mr. Hassinger act intentionally? The jury answered the interrogatory affirmatively. The court entered a judgment in favor of Nationwide and Hassinger and Harvey brought the instant appeal.
Appellant's first contention is that the trial judge erred in admitting a photocopy of the insurance policy which had been issued to Hassinger rather than allowing the jury to decide the existence or non-existence of the policy. Appellants submitted that the copy of the policy indicated that the insurance coverage was applicable to a 1966 vehicle, while the vehicle which struck the decedent was a 1965 vehicle. They also contend that appellee did not sufficiently prove delivery of the policy to Hassinger or that Hassinger intended to be bound by the exclusion for intentional acts. The rationale for making these arguments is difficult to comprehend, since appellants are effectively arguing that there was no insurance at all. If the trial court had agreed with appellants' arguments, Nationwide would not have been responsible for Hassinger's liability even if his actions were found to be unintentional. Nonetheless, the trial court properly held that the evidence was sufficient to establish that the copy admitted was a copy of the policy issued to Hassinger and that it provided insurance coverage for the vehicle involved. It is irrelevant whether or not Hassinger intended to be bound by the exclusion for intentional acts, since it is against the public policy of this Commonwealth to provide insurance coverage for intentional acts. Esmond v. Liscio, 209 Pa.Superior Ct. 200, 224 A.2d 793 (1966).
Appellants' next contention is that the trial judge erred in allowing the prior testimony of a witness from a criminal hearing to be introduced into evidence.
At a hearing before a District Justice which took place six days after the incident, Russell (Jack) Rowles testified that after striking the decedent, Hassinger got out of his car and said: "I told you I would get the son-of-a-bitch." At the hearing on the Petition for Declaratory Judgment, counsel for Nationwide asked Mr. Rowles whether he could recall of anyone getting out of the car after it struck the decedent. Mr. Rowles replied:
At that time, counsel for Nationwide proposed to introduce the prior testimony of Mr. Rowles. Nationwide argued that the prior testimony was admissible under the doctrine of past recollection recorded.
In order for the contents of a writing to be admissible as post recollection recorded, a foundation must be laid showing that four requirements are met: 1) the witness must have had first hand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event; and 4) the witness must vouch for the accuracy of the written memorandum. Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979). In addition, it has been held that before a document may be admitted as a recording of a witness' recollection of a past event, the witness himself must have had an opportunity to review the document. If, after reviewing the document, the witness testifies that this memory has not been refreshed, the document may be admitted into evidence. Commonwealth v. Kendig, 215 Pa.Superior Ct. 139, 257 A.2d 354 (1969).
The requirement that the person must have had first hand knowledge of the event was clearly met since Mr. Rowles was an eyewitness to the incident. Appellants contend that the second requirement was not fulfilled, arguing that testimony recorded at a preliminary hearing held six days after the event does not constitute a memorandum made "at or near the time of the event." Less than a week had passed between the time of the event and the preliminary hearing. Although Mr. Rowles' testimony was not recorded immediately after the incident occurred, it was recorded at a time near enough to the event that he could have had a clear and accurate memory of it. Mr. Rowles himself testified that the events had been fresh in his mind when he testified at the preliminary hearing. Therefore, the...
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Nationwide Mut. Ins. Co. v. Hassinger
...473 A.2d 171 325 Pa.Super. 484 NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER, Judy D. Harvey, Administratrix of the Estate of Richard L. Harvey, Deceased; and Judy D. Harvey, In her own right. Appeal of Judy D. HARVEY. NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER,......