Eisenman v. Hornberger
| Decision Date | 22 April 1970 |
| Citation | 438 Pa. 46,264 A.2d 673 |
| Parties | Richard S. EISENMAN and Sally Ann Eisenman v. Alton Raymond HORNBERGER, John Gillespie, Frank Scarfo, Royal Insurance Company, Ltd. Garnishee, and Patrick H. Fierro, Garnishee. Appeal of ROYAL INSURANCE COMPANY, Ltd. |
| Court | Pennsylvania Supreme Court |
H. Clay McCormick, Furst, McCormick, Lynn, Reeder & Nichols, Williamsport, for appellant.
John C. Youngman, Sr., Candor, Youngman, Gibson & Gault Williamsport, for appellees.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS, and POMEROY, JJ.
This is an appeal from the judgment entered below on the pleadings in an attachment execution proceeding. The issue is one of first impression in Pennsylvania, although courts in several other jurisdictions have ruled on the question presented.
The material facts are not in dispute.
On the might of February 4, 1960, Alton Raymond Hornberger, then seventeen years of age, and Frank Scarfo broke into the home of Mr. and Mrs. Eisenman and stole a quantity of liquor. The owners were out of town at the time. To minimize possible detection, the felons lit matches to find their way around the house, rather than turn on the lights. As each match burned down, it was dropped or thrown to the floor. A head of one of the matches lodged in between the cushion and overstuffing of a chair. When the felons departed from the premises, there was no sign of fire, but the match head which landed in the chair, as before related, ignited the material, which, after smoldering for hours, finally resulted in a fire which completely destroyed the house and personal property therein.
The Eisenmans instituted suit for damages against Hornberger, Scarfo, and three other juveniles who waited outside and served as lookouts during the burglary. A jury trial resulted in a verdict against all defendants and in favor of the plaintiffs in the amount of $70.375.99. Samuel Harrison, one of the defendants, was covered against liability by a homeowner's policy with a $25,000 policy limit. His insurer settled the claim against him for $24,000 and secured a release.
At the pertinent time, Alton Raymond Hornberger's father was also the named insured in a homeowner's policy issued by the Royal Insurance Company, LTD. (Royal). And it is undisputed that the son himself was equally an 'insured' within the terms of the policy. [1]
The Eisenmans issued a writ of execution against Hornberger, which was returned Nulla Bona. Attachment execution proceedings then followed against Royal which ultimately ended with the entry of judgment on the pleadings agaisnt Royal for $25,000 [2] and interest. Royal appeals. We affirm.
Under the terms of the policy (Section II Coverage E,), Royal agreed 'to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * property damage * * *.' Property damage is defined in the policy as 'injury to or destruction of property,' and it is in no way limited to property of the Insured. There was an exclusion in the policy which provided that 'Section II of this Policy does not Apply: * * * (c) under Coverage E and F, to * * * property damage caused intentionally by or at the direction of the Insured.'
Royal's contentions on appeal are two-fold. It first alleges that the acts committed by Hornberger were intentional and therefore excluded from coverage under the policy. However, the question is not whether the dropping of the matches was an 'intentional act,' but rather whether the resulting property damage was 'intentionally caused' by the insured. The insurance policy does not exclude damage resulting from intentional acts of the insured but only damage intentionally caused by him. There is no basis on which to conclude that that the insured in this case intended to cause any property damage in dropping the matches as they burned down to the end of the steam.
As noted before, while there are no Pennsylvania cases dealing with such an exclusionary clause in a homeowner's policy, the vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may validly disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot. 2 A.L.R.3d 1238 (1965). We subscribe to such a view. There is a very real distinction between intending an act an intending a result and the policy exclusion addresses itself quite clearly to the latter. Cf. State Farm Mutual Automobile Insurance Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968) (identical exclusionary clause); American Insurance Co. v. Saulnier, 242 F.Supp. 257 (D.C.Conn. 1965) (identical policy provision); City of Burns v. Northwestern Mutual Insurance Co., 248 Or. 364, 434 A.2d 465 (1967) (virtually identical exclusionary clause); Connecticut Indemnity Co. v. Nestor, 4 Mich.App. 578, 145 N.W.2d 399 (1966) (identical policy provisions); Smith v. Moran, 61 Ill.App.2d 157, 209 N.E.2d 18 (1965) (identical policy provisions). [3]
Royal's second allegation is that it would be against public policy to allow recovery on the insurance contract since the property damage occurred as a result of acts performed by the insured in the course of the commission of a crime. We are not so persuaded.
We note initially that the insurance contract itself does not contain a 'violation of law' clause. Royal is thus placed in the position of asserting that we should rewrite the policy to provide for a contingency which it could have provided for itself....
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