Erie Ins. Exch. v. Moore

• Decision Date: 22 November 2017
• Docket Number: No. 869 WDA 2016,869 WDA 2016
• Citation: 175 A.3d 999
• Parties: ERIE INSURANCE EXCHANGE v. Tracy L. MOORE and Harold E. McCutcheon, III, Individually and as Administrators of the Estate of Harold Eugene McCutcheon, Jr., and Richard A. Carly Appeal of: Richard A. Carly
• Court: Pennsylvania Superior Court

175 A.3d 999

ERIE INSURANCE EXCHANGE

v.Tracy L. MOORE and Harold E. McCutcheon, III, Individually and as Administrators of the Estate of Harold Eugene McCutcheon, Jr., and Richard A. Carly

Appeal of: Richard A. Carly

No. 869 WDA 2016

Superior Court of Pennsylvania.

Argued May 9, 2017

Filed November 22, 2017

Reargument Denied January 24, 2018

Jerome A. Moschetta, Canonsburg, for appellant.

Allan C. Molotsky, Philadelphia for appellee.

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY SOLANO, J.:

Appellant Richard A. Carly appeals from the summary judgment entered on June 15, 2016, in favor of Appellee Erie Insurance Exchange in Erie's action for a declaration that it is not obligated to defend or indemnify the Estate of Harold Eugene McCutcheon, Jr. in a personal injury action filed by Carly. We reverse.

On September 26, 2013, McCutcheon went to the home of his former wife, Terry L. McCutcheon, killed her, and then committed suicide. Before McCutcheon killed himself, Carly arrived unexpectedly at the home, struggled with McCutcheon, and was seriously injured by shots fired from McCutcheon's gun. Erie contends 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 the gun and resulting injuries were unintentional, and Erie therefore is required to provide a defense and indemnity. The trial court agreed with Erie. We reverse because the facts pleaded in Carly's complaint against the Estate allege that Carly's injuries were caused by unintentional conduct.

Carly filed his complaint against McCutcheon's Estate in the Court of Common Pleas of Washington County on February 20, 2014.¹ He named as defendants the administrators of the Estate—McCutcheon's children, Tracy Moore and Harold E. McCutcheon, III. The complaint alleged:

3. All of the events hereinafter complained of occurred on September 26, 2013, at or around 11:45 p.m. at the residence of Terry L. McCutcheon, ... [in Washington, Pa.].

4. [The] residence where the incident hereinafter set forth occurred was owned by Terry L. McCutcheon, the divorced wife of Harold Eugene McCutcheon, Jr.

5. On or about September 26, 2013, Harold Eugene McCutcheon, Jr. (decedent) had notified his children, Tracey L. Moore and Harold E. McCutcheon, III, by a written note that he was going to the home of his former wife, Terry L. McCutcheon, ... to kill her and then commit suicide.

6. ... [P]rior to the incident occurring on September 26, 201[3], at [Terry McCutcheon's residence,] Terry L. McCutcheon had been to the residence of Richard A. Carly ..., since they had been dating at the time.

7. On September 26, 201[3], shortly before 11:00 p.m., Terry L. McCutcheon left the home of ... Richard A. Carly, and proceeded to her residence ....

8. ... [P]rior to Terry L. McCutcheon arriving at her residence, decedent had broken into her home and was waiting in order to shoot and kill Terry L. McCutcheon, and then commit suicide thereafter.

9. ... [A]fter leaving the home of ... Richard A. Carly, Terry L. McCutcheon arrived at her home ... at around 10:55 p.m.

10. On September 26, 2013, around 10:55 p.m., Terry L. McCutcheon made a cell phone call from her residence to ... Richard A. Carly, to express to him that she had arrived at her home, and during the conversation, the call was terminated unexpectedly.

11. ... [Carly] believes that the decedent approached Terry while she was on the phone talking to [Carly] in order to kill her.

12. Sometime during or after the call made by Terry L. McCutcheon to Richard A. Carly on September 26, 2013, decedent physically assaulted Terry L. McCutcheon and then shot her twice in the upper torso causing her death. This occurred on the main floor where her bedroom was located.

13. After said phone call had been disconnected, Richard A. Carly attempted to reach Terry L. McCutcheon by calling her back, but received no answer.

14. ... [A]s a result of not being able to reach Terry L. McCutcheon by telephone, ... Richard A. Carly[ ] drove to [Terry McCutcheon's residence] from his residence to talk to Terry L. McCutcheon. He arrived at Terry's residence at about 11:45 p.m.

15. On September 26, 2013, at approximately 11:45 p.m., ... Richard A. Carly [ ] approached the front door to the residence of Terry L. McCutcheon and rang the door bell a couple times but received no answer.

16. ... [A]s a result of receiving no answer, [Carly] became concerned and put his hand on the doorknob of the front door in order to enter and the door was suddenly pulled inward by decedent who grabbed [Carly] by his shirt and pulled him into the home.

17. At the time that decedent pulled [Carly] into the home, decedent was screaming, swearing, incoherent, and acting "crazy."

18. ... [O]nce [Carly] was inside the home, a fight ensued between the two and at the time, decedent continued to have the gun in his hand, which gun decedent apparently had shot and killed Terry L. McCutcheon, and was going to use to commit suicide.

19. ... [A] struggle ensued between decedent and [Carly] thereby knocking things around, and in the process decedent negligently, carelessly, and recklessly caused the weapon to be fired which struck [Carly] in the face inflicting the injuries and damages as are more fully hereinafter set forth.

20. ... [D]uring the struggle, [Carly] believes that other shots were carelessly, negligently and recklessly fired by decedent striking various parts of the interior of the residence and exiting therefrom.

21. All of the injuries and damages sustained by ... Richard A. Carly[ ] were solely and wholly, directly and proximately caused by the negligence, carelessness and recklessness of the decedent, Harold Eugene McCutcheon, Jr., as follows:

a. In carelessly and recklessly causing a firearm to be discharged thereby striking [Carly].

b. In failing to regard the safety and well being of [Carly] and engaging in reckless conduct.

c. In evidencing a reckless disregard for the safety of [Carly].

d. In recklessly discharging a firearm.

e. In breaching a duty of care decedent owed to [Carly].

f. In failing to appreciate and realize that there was a strong probability of harming [Carly] and using conduct that created an unreasonable risk of physical harm to [Carly].

g. In negligently tossing his arm around in which hand the gun was contained thereby recklessly shooting off various rounds in and about the room where [Carly] and decedent were struggling, one such round striking [Carly].

h. In being mentally disturbed to the extent that decedent needed or was undergoing mental treatment at the time.

i. In possibly being under the influence of alcohol and/or drugs at said time.

Complaint, Carly v. Moore , pp. 2–6. As a result of being shot in the face, Carly suffered "severe, serious and catastrophic injuries." Id. at 6.

On September 26, 2013, the date of the shooting, McCutcheon was an insured under two policies issued by Erie. One, a homeowner's insurance policy ("Homeowner's Policy") stated:

We will pay all sums up to the amount shown on the Declarations which anyone we protect becomes legally obligated to pay as damages because of bodily injury or property damage caused by an occurrence during the policy period. We will pay for only bodily injury or property damage covered by this policy.

Homeowner's Policy at 14 (bold type identifying defined terms deleted). The Homeowner's Policy defined an "occurrence" as "an accident including continuous or repeated exposure to the same general harmful conditions." Id. at 5. The Policy included the following exclusion:

We do not cover under Bodily Injury Liability Coverage, Property Damage Liability Coverage, Personal Injury Liability Coverage and Medical Payments To Others Coverage:

1. Bodily injury, property damage or personal injury expected or intended by anyone we protect even if:

a. the degree, kind or quality of the injury or damage is different than what was expected or intended; or

b. a different person, entity, real or personal property sustained the injury or damage than was expected or intended.

We do cover reasonable acts committed to protect persons and property.

Id. at 15 (bold type identifying defined terms deleted).

The other Erie policy was an excess liability policy ("Excess Policy"). This policy stated:

We pay the ultimate net loss which anyone we protect becomes legally obligated to pay as damages because of personal injury or property damage resulting from an occurrence during this policy period. We will pay for only personal injury or property damage covered by this policy. This applies only to damages in excess of the underlying limit or Self–Insured Retention.

Excess Policy at 4 (bold type identifying defined terms deleted). The Excess Policy defined "occurrence" as "an accident, including continuous or repeated exposure to conditions, which results in personal injury or property damage which is neither expected nor intended." Id. at 3. It included the following exclusion: "We do not cover ... personal injury or property damage expected or intended by anyone we protect. We do cover reasonable acts committed to protect persons or property." Id. at 4 (bold type identifying defined terms deleted).

On August 14, 2014, Erie filed this action for a declaratory judgment to determine whether it was obligated to provide coverage for the claims made against McCutcheon's Estate in Carly's complaint. Trial Ct. Order, 5/31/16, at 3. The declaratory judgment action requested a declaration that Erie "has no duty to provide a defense, indemnity, or other coverage" to Moore, McCutcheon III, or the Estate "for the claims asserted against them in the [Carly's suit], or any other claims arising from the September 26, 2013 incident." Compl., 8/14/14, at 9, ad damnum clause.

On May 13, 2015, after the parties had engaged in discovery, Carly filed a motion for entry of summary judgment in his favor. Mot. for Summ. J., 5/13/...