Donegal Mutual Insurance Company v. Baumhammers, 2006 PA Super 32 (PA 2/17/2006), 1130 WDA 2002.
| Decision Date | 17 February 2006 |
| Docket Number | No. 1182 WDA 2002.,No. 1135 WDA 2002.,No. 1130 WDA 2002.,No. 1148 WDA 2002.,No. 1136 WDA 2002.,No. 1183 WDA 2002.,No. 1150 WDA 2002.,No. 1151 WDA 2002.,No. 1133 WDA 2002.,No. 1181 WDA 2002.,No. 1152 WDA 2002.,No. 1134 WDA 2002.,No. 1184 WDA 2002.,No. 1132 WDA 2002.,No. 1149 WDA 2002.,No. 1131 WDA 2002.,1130 WDA 2002.,1133 WDA 2002.,1135 WDA 2002.,1148 WDA 2002.,1149 WDA 2002.,1152 WDA 2002.,1184 WDA 2002.,1182 WDA 2002.,1131 WDA 2002.,1132 WDA 2002.,1134 WDA 2002.,1181 WDA 2002.,1136 WDA 2002.,1150 WDA 2002.,1183 WDA 2002.,1151 WDA 2002. |
| Citation | 2006 PA Super 32 |
| Parties | DONEGAL MUTUAL INSURANCE COMPANY, v. RICHARD BAUMHAMMERS; ANDREJS BAUMHAMMERS; INESE BAUMHAMMERS; MAY-LING KUNG, Administratrix of the Estate of JI-YE SUN, and MAY-LING KUNG, in her own right; SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANDFORD GORDON in his own right; ZETTA RENEE LEE, Administratrix of the Estate of GARRY LEE, JANE/JOHN DOE, ADMINISTRATOR OF THE Estate of ANIL THAKUR; BANG NGOC NGO, Administrator of the Estate of THAO Q. PHAM; SANDIP PATEL, and UNITED SERVICES AUTOMOBILE ASSOCIATION APPEAL OF: SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANFORD GORDON in his own right, Appellant APPEAL OF: ANDREJS BAUMHAMMERS and INESE BAUMHAMMERS, Appellants APPEAL OF: SANDIP PATEL, Appellant APPEAL OF UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant APPEAL OF: ZETTA RENEE LEE, Administratrix of the ESTATE OF GARRY LEE, Appellant APPEAL OF: MAY-LING KUNG, Administratrix of the ESTATE OF JI-YE SUN, and MAY-LING KUNG in her own right, Appellant APPEAL OF BANG NGOC NGO, Administratrix of the ESTATE OF THAO Q. PHAM, DECEASED: BANG NGOC NGO, Guardian of CHRIS PHAM; and BANG NGOC NGO; and CATHLEEN CAWOOD BUBASH, Administratrix of the ESTATE OF ANIL KUMAR THAKUR, DECEASED; SHABHA THAKUR, Guardian of NOOPAR KUMAR AND VIKAS KUMAR THAKUR, Appellants DONEGAL MUTUAL INSURANCE COMPANY, Appellant v. RICHARD BAUMHAMMERS; ANDREJS BAUMHAMMERS; INESE BAUMHAMMERS; MAY-LING KUNG, Administratrix of the Estate of JI-YE SUN, and MAY-LING KUNG, in her own right; SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANDFORD GORDON in his own right; ZETTA RENEE LEE, Administratrix of the Estate of GARRY LEE, JANE/JOHN DOE, ADMINISTRATOR OF THE Estate of ANIL THAKUR; BANG NGOC NGO, Administrator of the Estate of THAO Q. PHAM; SANDIP PATEL, and UNITED SERVICES AUTOMOBILE ASSOCIATION Appellees UNITED SERVICES AUTOMOBILE ASSOCIATION v. RICHARD BAUMHAMMERS; MAY-LING KUNG, Administratrix of the Estate of JI-YE SUN, and MAY-LING KUNG, in her own right; SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANDFORD GORDON in his own right; ZETTA RENEE LEE, Administratrix of the Estate of GARRY LEE, SANDIP PATEL; ANDREJS BAUMHAMMERS; INESE BAUMHAMMERS; and DONEGAL MUTUAL INSURANCE COMPANY APPEAL OF: SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANDFORD GORDON in his own right, Appellant APPEAL OF ANDREJS BAUMHAMMERS and INESE BAUMHAMMERS, Appellants APPEAL OF MAY-LING KUNG, Administratrix of the ESTATE OF JI-YE SUN, and MAY-LING KUNG, in her own right, Appellant APPEAL OF: DONEGAL MUTUAL INSURANCE COMPANY, Appellant APPEAL OF: SANDIP PATEL, Appellant APPEAL OF: ZETTA RENEE LEE, Administratrix of the ESTATE OF GARRY LEE, Appellant APPEAL OF BANG NGOC NGO, Administratrix of the ESTATE OF THAO Q. PHAM, DECEASED: BANG NGOC NGO, Guardian of CHRIS PHAM; and BANG NGOC NGO; and CATHLEEN CAWOOD BUBASH, Administratrix of the ESTATE OF ANIL KUMAR THAKUR, DECEASED; SHABHA THAKUR, Guardian of NOOPAR KUMAR AND VIKAS KUMAR THAKUR, Appellants UNITED SERVICES AUTOMOBILE ASSOCIATION Appellant v. RICHARD BAUMHAMMERS; MAY-LING KUNG, Administratrix of the Estate of JI-YE SUN, and MAY-LING KUNG, in her own right; SANFORD GORDON, Administrator of the Estate of ANITA GORDON, and SANDFORD GORDON in his own right; ZETTA RENEE LEE, Administratrix of the Estate of GARRY LEE, SANDIP PATEL; ANDREJS BAUMHAMMERS; INESE BAUMHAMMERS; and DONEGAL MUTUAL INSURANCE COMPANY, Appellees. |
| Court | Pennsylvania Supreme Court |
Appeal from the Order Dated June 6, 2002, In the Court of Common Pleas, Civil Division, Allegheny County, No. G.D. 01-005671, No. G.D. 00-18199.
¶ 1 In these consolidated declaratory judgment actions, we decide whether two insurers, Donegal Mutual Insurance Company ("Donegal") and United Services Automobile Association ("USAA"), have a duty to defend or indemnify their insureds for events that occurred on April 28, 2000. On that date, Richard Baumhammers ("Baumhammers"), the son of Andrejs and Inese Baumhammers ("Parents"), went on a shooting spree, killing five people and seriously injuring another. As we discuss below, we agree with the trial court that Donegal is obligated to defend and, if necessary, indemnify Parents because the alleged negligence of parents constitutes an occurrence under that policy, and that the shooting of each victim was a separate occurrence. We also conclude that the USAA policy contains an enforceable exclusion, precluding coverage under that policy for the events at issue. We therefore affirm.
¶ 2 Initially, we set forth the tragic circumstances of April 28, 2000. On that date, Baumhammers left his home and went to the home of his
neighbor, Anita Gordon. While there, he shot and killed Gordon and set fire to her home. He then drove to Scott Township, entered an Indian grocery store, and shot and killed Anil Thakur, seriously wounding Sandip Patel in the process. Next, Baumhammers drove to the Robinson Town Center in Robinson Township, entered a Chinese restaurant, and shot and killed both Ji-Ye Sun and Thao Qak Pham. Proceeding to Center Township, Baumhammers entered the C.S. Kim Karate School and shot and killed Garry Lee. The entire series of events occurred in a span of less than two hours, with crimes occurring across four separate municipalities and two counties.
¶ 3 On May 9, 2001, Baumhammers was convicted by a jury of first-degree murder in connection with each of the five victims who died and attempted homicide and aggravated assault for the shooting of Patel.1 The jury rejected Baumhammers' claim that he was not guilty by reason of insanity.
¶ 4 On September 25, 2000, Sanford Gordon ("Gordon"), individually and as executor of the estate of his wife, Anita Gordon, instituted a wrongful death and survival action against Baumhammers and Parents. As to Baumhammers, it was alleged that he negligently, recklessly, or intentionally shot the victim and that he suffered from a mental illness at the time. (Complaint filed by Sanford Gordon (Exhibit 2 to Donegal's Amended
Complaint) at ¶¶ 14-18 (R.R. 37a-38a).) Gordon further alleged the existence of a special relationship between Baumhammers and Parents. (Id. at ¶¶ 20 (R.R. 38a).) Citing that relationship, the complaint contained various allegations of negligence as to Parents, including averments that they should have taken possession of Baumhammers' gun or alerted authorities or mental health care providers about Baumhammers because they knew or should have known of his dangerous propensities and his possession of the gun. (Id. at ¶¶ 21, 25 (R.R. 39a-40a).)
¶ 5 On October 3, 2001, Cathleen Cawood Bubash, as administratrix of the estate of Anil Kumar Thakur, deceased, and Shabha Thakur, individually and as guardian of Noopar Kumar and Vikas Kumar Thakur, instituted a wrongful death and survival action against Baumhammers and Parents based on the shooting death of Anil Thakur; they raised the same allegations of negligence as to Parents as did Gordon. Sandip Patel, who was rendered a quadriplegic as a result of the shooting, commenced a personal injury action against Baumhammers and Parents on February 20, 2001. Patel's allegations against Parents were identical to those of Gordon. On June 19, 2000, May-Ling Kung, individually and as administratrix of the Estate of Ji-Ye Sun, deceased, filed a wrongful death and survival action against Baumhammers and Parents,2 and her allegations of negligence against Parents were substantially similar to those in the other three actions. On
August 9, 2001, Bang Ngoc Ngo, individually and as administratrix of the Estate of Thao Q. Pham, deceased, and as guardian of Chris Pham, initiated a wrongful death and survival action against Baumhammers and Parents based on the shooting death of Thao Pham. That complaint contained identical allegations of negligence against Parents as those pled in the action filed by Gordon. On September 26, 2000, Zetta Renee Lee, administratrix of the Estate of Garry Dewane Lee, deceased, instituted a wrongful death and survival action against Baumhammers and Parents based on the shooting death of Garry Lee.3 Her allegations against Parents were identical to those of Gordon. We refer to the plaintiffs in the described underlying civil actions collectively as "Plaintiffs."
¶ 6 The underlying actions filed by Plaintiffs, as noted, were filed between June 19, 2000, and October 3, 2001, and later consolidated. On March 25, 2002, the trial court granted Plaintiffs leave to amend their complaints to state a claim under the Restatement (Second) of Torts § 319.4
¶ 7 Two insurance policies were implicated in these actions, a homeowner's policy and an umbrella policy, both issued to Parents. The homeowner's policy, issued by Donegal Insurance, provided defense and indemnity coverage for a claim or suit brought against an insured for bodily
injury "caused by `an occurrence.'" An "occurrence" was defined in relevant part as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in: Bodily injury or Property damage." (Donegal Insurance Policy (Exhibit 6 to Donegal's Amended Complaint) at 1 (R.R. 81a).) The liability limits of the Donegal policy were $300,000 for each occurrence. The policy covered the two named insureds, Andrejs and Inese Baumhammers, and any relative who was a resident of their household. Thus, Richard...
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