Opinion
Nos. 1130 WDA 2002, 1133 WDA 2002, 1135 WDA 2002, 1148 WDA 2002, 1149 WDA2002, 1152 WDA 2002, 1182 WDA 2002, 1184 WDA 2002, 1131 WDA 2002, 1132 WDA2002, 1134 WDA 2002, 1136 WDA 2002, 1150 WDA 2002, 1151 WDA 2002, 1181 WDA2002, 1183 WDA 2002.
Filed: October 14, 2004.
Appeal from the Order Dated June 6, 2002, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 01-005671.
Appeal from the Order Dated June 6, 2002, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 00-18199.
Before: JOYCE, TODD and BOWES, JJ.
The Opinion by Judge Bowes and the Concurring Opinion by Judge Todd were withdrawn. The application for reargument was granted on December 17, 2004.
¶ 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"), shot six people, killing five and seriously injuring the other. We conclude that Donegal's policy does not provide coverage because none of the incidents at issue was "an occurrence" as defined in that policy. We also agree with the trial court's conclusion that an exclusion contained in the USAA policy is enforceable and applies to the events at issue. We therefore reverse as to Donegal and affirm as to USAA.
¶ 2 Initially, we set forth the tragic circumstances of April 28, 2000, as acknowledged by the plaintiffs as to their respective victims. On that date, Richard Baumhammers left his home and went to the home of his neighbor, Anita Gordon. While there, he shot and killed Mrs. Gordon and set fire to her home. He then drove to Scott Township, entered an Indian grocery store, and shot and killed Anil Thakur, while seriously wounding Sandip Patel. 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 to death Garry Lee. The entire series of events occurred in the span of less than two hours.
¶ 3 On May 9, 2001, Richard Baumhammers was convicted by a jury of first degree murder in connection with each of the five victims who died and was convicted of attempted homicide and aggravated assault for the shooting of Mr. Patel. The jury rejected Baumhammers's claim that he was not guilty by reason of insanity.
He also was convicted of simple assault, ethnic intimidation, criminal mischief, arson, reckless endangerment, and carrying an unlicensed firearm.
¶ 4 On September 25, 2000, Sanford 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. Mr. Gordon alleged the existence of a special relationship between Baumhammers and Parents. Citing that relationship, the complaint contained various allegations of negligence as to Parents, including averments that they should have taken possession of Baumhammers's 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. See Complaint filed by Sanford Gordon at ¶¶ 21, 25.
¶ 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 that Mr. Gordon did. 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. Mr. Patel's allegations against Parents were identical to those of Mr. 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, and her allegations of negligence against Parents were substantially similar to those in the other three actions. 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 Mr. Gordon. On September 26, 2000, Zetta Renee Lee, administratrix of the Estate of Garry Dewane Lee, deceased, began a wrongful death and survival action against Baumhammers and Parents based on the shooting death of Garry Lee. Her allegations against Parents were identical to those of Mr. Gordon. We refer to the plaintiffs in the described underlying civil actions collectively as "Plaintiffs."
Although Parents were not named initially as defendants in the action filed by Ms. Kung, they were added in an amended complaint, which was permitted by court order.
Although Parents were not initially named as defendants in the action filed by Ms. Lee, she was granted the right to amend her complaint to add Parents as defendants.
¶ 6 The underlying actions filed by Plaintiffs, as noted, were filed between June 19, 2000, and October 3, 2001. By orders dated July 12, 2001, November 1, 2001, and December 19, 2001, the six underlying personal injury cases were consolidated at G.D. 00-10558 in the Court of Common Pleas of Allegheny County, civil division. On March 25, 2002, the trial court in this action granted Plaintiffs leave to amend their complaints to state a claim under the Restatement (Second) of Torts § 319.
The Restatement (Second) of Torts § 319 provides, "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him doing such harm."
¶ 7 Two insurance policies were implicated in this action, a homeowners policy and an umbrella policy, both issued to Parents. The homeowners policy, written 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 . . . which results . . . in bodily injury or property damage." Donegal Insurance Policy at 1. 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 Baumhammers, who resided with Andrejs and Inese, fell within the definition of an insured. The Donegal policy also contained an exclusion for bodily injury that is expected or intended by "the insured."
The Donegal policy was amended to include this language that extended the exclusion to bodily injury that was expected or intended by "one or more `insureds.'" However, Donegal mistakenly communicated to Parents that the exclusion did not reduce coverage, and Donegal does not rely upon the amended exclusion in this case. See Appellant's brief at 6 n. 1; Trial Court Opinion, 8/7/02, at 11.
¶ 8 USAA issued an excess or umbrella insurance policy to Parents. That policy provided coverage for named insured Andrejs Baumhammers and any relative who was a resident of his household; consequently, Inese and Richard Baumhammers met the definition of "insureds." Like the Donegal policy, the USAA policy provided coverage for an "occurrence," which was defined two ways. The term "occurrence" first was defined as an "accident . . . which results in bodily injury." USAA Insurance Agreement at 1. In addition, the USAA policy described an "occurrence" as an "event or series of events . . . caused by an act or omission of any insured, which results . . . in personal injury neither expected nor intended from the standpoint of the insured." Id. However, the USAA policy contained two exclusions. The first one excluded coverage for bodily injury or property damage "caused by the intentional or purposeful acts of any insured." Id. at 3 (emphasis added). The second exclusion provided that the policy did not apply to "[b]odily injury, personal injury or property damage arising out of a malicious or criminal act or omission by, or with either the knowledge or consent of, any insured regardless of whether such insured is actually charged with, or convicted of, a crime." Id. (emphasis added).
The parties herein do not dispute the definition of "occurrence" contained in the USAA policy. However, the trial court indicated that the USAA umbrella policy was purchased in 1988 and applied to occurrences covered by the primary policy. In 1997, that policy was revised. The revisions were sent with a conspicuous notice that some of the changes resulted in a reduction in coverage. The above two definitions of occurrence were added at that time.
¶ 9 On October 30, 2000, USAA instituted a declaratory judgment action at No. G.D. 00-18199. Donegal filed a separate declaratory judgment action at No. G.D. 01-005671 on March 22, 2001. The insurers sought a ruling that they had no duty to defend or indemnify Parents or Baumhammers in the actions filed by Plaintiffs. The declaratory judgment actions were consolidated by order of July 12, 2001.
Nevertheless, Donegal undertook the defense of Baumhammers and Parents in the underlying actions instituted by Plaintiffs, subject to a reservation of rights.
¶ 10 Following discovery, all parties moved for summary judgment. After oral argument, the trial court entered a December 19, 2001 order: 1) granting USAA's motion and declaring that it had no duty either to defend or indemnify any of its insureds under an exclusion; 2) granting Donegal's motion as to Baumhammers, declaring that Donegal had no duty to defend or indemnify him; 3) denying Donegal's motion as to Parents; and 4) stating that Donegal has a duty to defend and indemnify Parents and that there were six occurrences under the policy, exposing Donegal to $1.8 million in coverage. As the trial court noted in its opinion, the declaration as to the duty to indemnify will have no effect unless Parents are found liable to Plaintiffs in the underlying civil actions. The trial court then granted reconsideration and considered additional evidence. On June 6, 2002, the court reinstated its December 19, 2001 order, and these appeals and cross-appeals followed.
The Donegal Policy
¶ 11 We first consider whether the Donegal policy provides coverage for Baumhammers's conduct. We conclude that there is no coverage because the policy defined an "occurrence" as an accident, and the allegations in the underlying complaints fail to indicate Baumhammers's actions were accidental. We therefore reverse as to Donegal and remand with directions that judgment be entered in its favor.
¶ 12 Preliminarily, we note that our standard of review in a declaratory judgment action is plenary because we are reviewing the trial court's legal interpretation of an insurance policy in light of claims raised in the underlying complaints. Kvaerner Metals v. Commercial Union Insurance Co., 825 A.2d 641 (Pa.Super. 2003).
¶ 13 When construing the language of an insurance policy, our goal is to ascertain the intent of the parties as manifested by the language of the written instrument. Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 735 A.2d 100 (1999). If the language is not clear, it is construed in favor of the insured, but where the language of the contract is clear and unambiguous, a court is required to give effect to that language. Id.; Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). "Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Madison Construction Co., supra at 606, 735 A.2d at 106 (citation omitted).
¶ 14 In the present case, Donegal's policy provided coverage for an occurrence, which is clearly and unambiguously defined as an "accident." There are three cases that examine the precise insurance language at issue in this case: Gene's Restaurant, Inc. v. Nationwide Insurance Co., 519 Pa. 306, 548 A.2d 246 (1988), Britamco Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994), and Britamco Underwriters, Inc. v. Weiner, 636 A.2d 649 (Pa.Super. 1994). In order to avoid confusion, we refer to the latter two cases as Grzeskiewicz and Weiner, respectively.
¶ 15 The first decision that we examine is our Supreme Court's pronouncement in Gene's Restaurant. In that case, the insurance contract provided coverage for bodily injury resulting from an occurrence, and the term occurrence was defined as an accident. The insured, a restaurant, was sued for an employee's intentional assault and beating of a patron. The insurer refused to defend, and the insured initiated an action to recover the costs of defending the underlying action. The Supreme Court held that coverage under the policy was not triggered because the "assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend." Id. at 309 n. 1, 548 A.2d at 247 n. 1. The insured argued that it neither expected nor intended the plaintiff's injuries, and therefore, the insurer did have a duty to defend. The Court rejected that argument, stating, "Such a reading ignores the policy requisite that the `occurrence' must be an accident which a malicious, willful assault and beating could never be." Id. at 309, 548 A.2d at 247.
¶ 16 In Grzeskiewicz, this Court examined a policy that provided coverage for bodily injury resulting from an occurrence, likewise defined as an accident. The underlying action involved an insured doing business as a bar, which the insurer had defended under a reservation of rights. In that case, a patron of the bar alleged that she had been attacked intentionally with a broken beer bottle by another patron of the bar. The victim's complaint against the bar alleged that her injuries were caused by the bar's careless, reckless, or negligent disregard of her welfare by its employees. Although the allegations against the bar sounded in negligence, we concluded that there was no coverage, noting that the patron's injuries, as alleged in the complaint, resulted from an intentional act. Since the incident was not an accident, as established by the factual averments in the complaint, we concluded that there was no occurrence. See also Philadelphia Contributionship Insurance Co. v. Shapiro, 798 A.2d 781 (Pa.Super. 2002) (where policy provided coverage for occurrence defined as accident, policy did not cover lawsuit brought for intentional firing and discrimination); Sclabassi v. Nationwide Mutual Fire Insurance Co., 789 A.2d 699 (Pa.Super. 2001) (fraud perpetrated in connection with sale of real estate was not accidental occurrence).
¶ 17 In Weiner, the insurance contract in question provided coverage for occurrences defined as accidents. As in Grzeskiewicz, a bar patron was assaulted and sued the bar. The patron alleged that she suffered injuries as a result of an altercation; however, unlike the patron in Grzeskiewicz, she claimed that her injuries were inflicted either negligently or intentionally. Since there was a possibility, under the factual averments of the complaint, that the patron was struck accidentally and was not the intended victim of the assault, the Weiner Court concluded that coverage might exist, and the insurer had a duty to defend.
¶ 18 Since the contractual language at issue in Gene's Restaurant, Grzeskiewicz, and Weiner is identical to the language in the contracts herein, we hold that those cases are controlling. Thus, we must examine the allegations contained in the underlying complaints filed by Plaintiffs in order to determine whether coverage is triggered under Donegal's policy. See Mutual Benefit Insurance Co. v. Haver, 555 Pa. 534, 538-39, 725 A.2d 743, 745 (1999) ("A carrier's duties to defend and indemnify an insured in a suit brought by a third party depend upon a determination of whether the third party's complaint triggers coverage."). In examining the factual allegations in those complaints, we find our Supreme Court's decision in Mutual Benefit Insurance Co. v. Haver, id., to be particularly instructive. In that case, which involved a malpractice action instituted against a pharmacist, the factual averments in the underlying complaint established that the pharmacist acted intentionally rather than negligently. In holding that a malpractice insurance policy did not apply to the underlying lawsuit, our Supreme Court ruled that the facts contained in the underlying complaints must be examined to determine the existence of coverage and that averments of negligence which ring hollow under the recited facts cannot create coverage where none exists. The Court stated specifically that "the particular cause of action that a complainant pleads is not determinative of whether coverage has been triggered. Instead, it is necessary to look at the factual allegations contained in the complaint." Id. at 539, 725 A.2d at 745. Our Supreme Court aptly observed, "[T]o allow the manner in which the complainant frames the request for redress to control in a case such as this one would encourage litigation through the use of artful pleadings designed to avoid exclusions in liability insurance policies." Id.; see also Kvaerner Metals, supra.
¶ 19 Keeping in mind that the particular cause of action pled in the complaint is not determinative of whether coverage exists, it is clear that coverage was not triggered in the present case. The plaintiffs averred that Baumhammers shot his victims negligently rather than intentionally, but they did not allege any facts to support those averments. Indeed, the complaints merely stated that Baumhammers "shot" his victims; there were no specific factual assertions that demonstrated how the shootings were accidental. For example, none of the plaintiffs alleged that Baumhammers did not intend to fire the gun or that the gun malfunctioned. As a result, we find, consistent with Gene's Restaurant and Grzeskiewicz, that the plaintiffs failed to allege sufficient facts to trigger coverage. Clearly, this case is distinguishable from Weiner, where there was a possibility that the underlying plaintiff was the victim of an accident.
¶ 20 The allegations in the underlying complaint in our recent decision in Erie Insurance Exchange v. Muff, 2004 PA Super 177, provide such a striking contrast to the allegations in this case that the decision therein supports our conclusion herein. In Muff, the insured was convicted of first degree murder in connection with the death of an infant entrusted to her care. The parents of the infant then instituted an action against the insured in which they supplied detailed factual allegations indicating that the actions of the insured were not intentional. The parents averred specifically that the insured had dropped the infant accidentally and that her negligence contributed to the infant's death. We stated that the parents had "articulated a negligence action based on specific, detailed, and clearly pled acts and omissions of [the insured]." Id. at ¶ 25. We ruled that the insurer had a duty to defend the insured in the parent's action because the policy provided coverage for accidents and the allegations in the underlying complaint established how the death was accidental. By comparison, the complaints herein contain such a dearth of detail as to be implicit admissions of the intentional nature of Baumhammers acts.
¶ 21 Plaintiffs, Parents, and the trial court contend that coverage exists under General Accident Insurance Co. v. Allen, 708 A.2d 828 (Pa.Super. 1998), and Board of Public Education of the School District of Pittsburgh v. National Union Fire Insurance Co., 709 A.2d 910 (Pa.Super. 1998) (hereafter Board of Public Education). They maintain that, under these cases, we are required to evaluate the allegations made as to each insured to determine if coverage applies, and since the allegations as to Parents indicated that their inaction was unintentional, whether coverage was triggered.
¶ 22 We find this argument unpersuasive because these two cases did not involve the same contractual language at issue herein. Allen concerned child abuse perpetrated by a grandfather while his grandchildren were under his and his wife's care. The grandchildren instituted an action against both grandparents and sought coverage under the grandparents' general liability policy. As to their grandmother, the grandchildren alleged that she negligently failed to protect them against her husband's actions when she knew or should have known that he was likely to molest them. A jury found her negligent.
¶ 23 Of key importance is the fact that the insurance policy in Allen provided coverage for any claim or suit brought against any insured for damages because of bodily injury. The policy did not provide that the bodily injury had to be caused by an occurrence defined as an accident. The Allen court expressly concluded that based on the absence of language limiting coverage to an accidental occurrence, Gene's Restaurant and Grzeskiewicz had no application.
¶ 24 Allen dealt with the application of an exclusion which provided that the policy did not cover bodily injury intended or expected by "the insured." As mandated by the clear language of that policy, we looked at the allegations in the grandchildren's complaint against the grandmother to determine whether their harm was expected or intended by her as "the insured" under scrutiny. Since the grandmother did not participate in the abuse and the allegations against her sounded in negligent supervision, we concluded that she did not intend or expect the harm. Accordingly, we held that the exclusion did not apply to her.
¶ 25 In Board of Public Education, the school board was provided coverage under the relevant policy for "wrongful acts," which included breaches of duty, neglect, error, or omissions. The school board was sued by a child who had been abused by the president of the school's parent-teacher organization, a volunteer who was insured under the policy. The child alleged that the school board negligently failed to train its employees not to permit unsupervised contact between a child and an unscreened volunteer. We concluded that the allegations of negligence constituted "wrongful acts" as defined in the policy. However, the policy contained an exclusion for claims involving criminal acts and claims arising out of assault or battery. We observed that coverage had been triggered, and the exclusion was ambiguous because it did not indicate whether criminal acts committed by a separate insured, the volunteer, voided the coverage owed to the school board. Since the exclusionary language was unclear and the school board was not implicated in any criminal or assaultive behavior, we concluded that the exclusion did not apply.
¶ 26 In the present case, we are not compelled to examine Parents' conduct to determine if the conduct was intended or expected under the policy. Instead, we are analyzing language which unequivocally states that there is no coverage unless the bodily injury resulted from an occurrence, which is defined as an accident. We need not consider whether Parents' inaction was unintentional because the underlying incident must be an accident in order to trigger coverage. The underlying complaints failed to establish how the shootings were accidental by setting forth detailed and clearly pled acts that articulated a negligence action.
¶ 27 In essence, Plaintiffs and Parents maintain that under Pennsylvania law, we are required to took at the incident from the perspective of the insured in order to determine whether it was an accident. This argument is inconsistent with Gene's Restaurant, which examined the precise language at issue herein; the cases upon which plaintiffs rely, Allen and Board of Public Education, are inapplicable.
¶ 28 Additionally, Plaintiffs and Parents direct our attention to other cases that are equally unavailing because they do not involve general liability policies. Most notably, those parties rely upon Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974), and Roque v. Nationwide Mutual Insurance Co., 502 Pa. 615, 467 A.2d 1128 (1983). In those cases, the Supreme Court opined, "Where . . . an insured's injury is caused by the intentional act of a third party, `[T]he test of whether injury is a result of an accident is to be determined from the viewpoint of the insured and not from the viewpoint of the one who committed the act causing the injury.'" Id. at 618, 467 A.2d at 1129 (quoting Mohn, supra at 578, 326 A.2d at 348 (emphasis added)).
¶ 29 These cases are not instructive because they examined health and life insurance policies rather than a general liability policy containing the precise language interpreted in Gene's Restaurant. Moreover, those precedents discuss how "an accident" was determined from the perspective of the injured insured and not the person who caused the harm. In the instant case, we must look to the nature of the harm caused to a third person to determine whether coverage was triggered.
¶ 30 Maravich v. Aetna Life Casualty Co., 504 A.2d 896 (Pa.Super. 1986), and McAllister v. Millville Mutual Insurance Co., 640 A.2d 1283 (Pa.Super. 1994), are also readily distinguishable from the case at bar. Those cases discuss fire insurance policies and whether arson by one insured can preclude recovery by another; hence, they have no application in this case.
¶ 31 Significantly, we have acknowledged that general liability insurance policies are not written to cover criminal acts, and we have routinely upheld language that operated to deny coverage for those acts. Erie Insurance Exchange v. Fidler, 808 A.2d 587 (Pa.Super. 2002); Minnesota Fire and Casualty Co. v. Greenfield, 805 A.2d 622 (Pa.Super. 2002), appeal granted, 573 Pa. 659, 820 A.2d 162 (2003); Germantown Insurance Co. v. Martin, 595 A.2d 1172 (Pa.Super. 1991). Pursuant to this authority, public policy is not offended by the notion that an insurance policy does not cover acts of murder.
¶ 32 Despite our reliance on Gene's Restaurant and Grzeskiewicz, we find the reasoning contained in Farmers Alliance Mutual Insurance Co. v. Salazar, 77 F.3d 1291 (10th Cir. 1996), to be particularly instructive. In that case, the policy provided coverage for an occurrence, which was defined as an accident. A mother gave her minor son a gun, which he gave to another youth, who used it to kill someone during a fight. The shooter was convicted of first degree murder, and the victim's parents instituted an action against the mother and her son, who were both insureds, alleging that they were negligent in transferring the gun to the shooter.
¶ 33 The Tenth Circuit Court of Appeals concluded that there was no coverage under the policy because the murder was not an accident. The Court viewed the question as centering on when an occurrence transpired under the policy. It held that the question of whether there was an occurrence should be resolved by focusing on the injury and its immediate attendant causative circumstances rather than the precipitating events. Thus, although the mother and her son both committed negligent acts, the Court concluded that the shooter's intentional act precluded coverage under the policy. In reaching this conclusion, the Court reasoned as follows:
Though the cases establishing the time and place of an "occurrence" as the time and place of the claimed injury do not address our issue directly, we find them dispositive. We find that when determining whether a bodily injury was "caused by an occurrence" the question of whether there was an "occurrence" should be resolved by focusing on the injury and its immediately attendant causative circumstances. We reach this conclusion by means of simple deduction. If the time and place of an "occurrence" are determined by the time and place of the injury, then the acts which are said to constitute the "occurrence" must necessarily fall within the same temporal and spatial parameters. Looking at the facts of this case, we know that as a matter of firmly established law the supposed "occurrence" at issue in this case happened when and where [the shooter] murdered [the victim]. If we want to know which acts or omissions constituted this supposed "occurrence" we must focus our attention to the same time and place — to the murder itself. Though myriad other events of an earlier time and different place may have contributed to the claimed injury, to determine whether there was an "occurrence" within the meaning of the policy we must focus on those events directly responsible for the injury.
Id. at 1296-97 (emphasis added). This reasoning contains a forceful logic.
¶ 34 Under Pennsylvania law, as under the law considered in Farmers Alliance, "the determination of when an occurrence happens must be made by reference to the time when the injurious effects of the occurrence took place." D'Auria v. Zurich Insurance Co., 507 A.2d 857, 861 (Pa.Super. 1986). Thus, the occurrence should not be determined by analyzing Parents' failure to confiscate the gun and warn legal authorities or health care providers, but rather by reference to the acts which caused the injuries, i.e., the intentional shootings committed by Baumhammers.
¶ 35 Finally, we reject the suggestion that Donegal's unsuccessful effort to expand its exclusionary language impacts on the meaning of the term "occurrence." See Brief for Andrejs and Inese Baumhammers at 22-23. This contention concerns a letter that was sent by Donegal in an attempt to include broader exclusionary language in its policy after the policy had been issued. Specifically, Donegal stated that the exclusion applied to injury expected or intended by one or more insured, but the exclusion did not apply to an insured not involved in the incident. The letter interpreted the exclusion and not the definition of "occurrence," which clearly provided coverage only for an accident. As the letter did not involve the interpretation of occurrence, which is the pertinent issue herein, it does not bind Donegal in the manner suggested by the Parents.
See footnote 5, supra.
¶ 36 In summary, we conclude that the language defining an occurrence is unambiguous and that the insurance policy issued by Donegal covered only accidents. Despite Plaintiffs' disingenuous attempt to invoke coverage with a cursory allegation that Baumhammers negligently and unintentionally "shot" his victims, it is clear beyond cavil that Baumhammers murdered five of his victims and attempted to murder the sixth. The underlying actions do not contain a single definite factual averment suggesting how Baumhammer's actions were accidental or negligent. The insureds could have no reasonable expectation that these criminal actions would be covered in light of the unambiguous language providing coverage only for accidents.
¶ 37 Since we have concluded that Baumhammers's actions were not accidental and thus not an "occurrence" under the Donegal policy, we do not need to decide the propriety of the trial court's determination that there were six occurrences rather than one occurrence.
The USAA Policy
¶ 38 We now consider the propriety of the trial court's decision to uphold one of the exclusions contained in the USAA policy. These facts are relevant to our resolution of that question. The USAA umbrella policy purchased by Parents in 1988 provided that the policy applied to occurrences covered by the primary policy and contained no exclusions for that excess coverage. In the event that occurrences were not covered by the primary insurance, the 1988 policy provided basic coverage subject to several exclusions including injuries that were expected or intended by "an insured." In 1997, USAA issued a new policy to Parents that did not distinguish between basic and excess coverage. It no longer provided coverage for all occurrences covered by the primary policy and instead contained its own definition of an occurrence. In addition, the policy also contained two separate exclusions. The first excluded coverage for bodily injury or damage caused by the intentional or purposeful act of "any insured," and the second excluded coverage for bodily injury or damage arising out of a criminal act of "any insured" whether or not such insured is convicted of a crime.
We note that while the trial court analyzed only the criminal acts exclusion, we examine both the criminal acts and intentional acts exclusions and conclude that both apply.
¶ 39 The first page of the 1997 umbrella policy package that USAA sent to Parents contained the conspicuous heading "IMPORTANT MESSAGES." Under that heading, the policy stated, "Your Personal Umbrella Policy contract has been revised. Please refer to the attached `Notice of Policy Changes' for more information about how the revision affects your coverage." The attached "Notice of Policy Changes" stated in relevant part: "THIS NOTICE DESCRIBES CHANGES IN YOUR PERSONAL UMBRELLA POLICY. PLEASE READ IT CAREFULLY. SOME OF THESE CHANGES INVOLVE REDUCTION IN COVERAGE." The "Notice of Policy Changes" also listed coverage changes and the page of the policy where the changed language was located. Among the coverage changes listed specifically in the "Notice of Policy Changes" was that the definition of "occurrence" was different and that "liability arising out of malicious and/or criminal acts is now specifically excluded."
In light of these facts, we do not understand the basis for Plaintiffs' assertion that "USAA did not tell or explain" to Parents that the 1997 policy "changed their coverage." Brief of Underlying Plaintiffs as Appellants and as Appellees to Appeal filed by USAA at 12. Since this notice also specifically instructed Parents to read the exclusion and told them that the changed policy excluded liability arising from criminal acts, we reject the position that USAA "took no affirmative steps to ensure that the Baumhammers understood the unilateral changes." Id. (emphasis in original).
¶ 40 We first address Parents' challenges to enforcement of the exclusion pertaining to "[b]odily injury, personal injury or property damage arising out of a malicious or criminal act or omission by, or with either the knowledge or consent of, any insured regardless of whether such insured is actually charged with, or convicted of, a crime." USAA Insurance Agreement at 3 (emphasis added).
¶ 41 "When interpreting an insurance contract, words that are clear and unambiguous must be given their plain and ordinary meaning. An ambiguity exists only when a policy provision is reasonably susceptible of more than one meaning. Generally, courts should try to read policy provisions to avoid ambiguities, if possible, and not torture language to create them." Brosovic v. Nationwide Mutual Insurance Co., 2004 PA Super 12, 9. When the wording of an exclusion is clear, we will enforce it. Id. See also Donegal Mutual Insurance Co. v. Fackler, 835 A.2d 712 (Pa.Super. 2003).
¶ 42 Parents claim that the exclusion only bars coverage for Baumhammers since he alone committed the underlying criminal acts. In support of this argument, Parents rely upon Board of Public Education. As noted, the school board in that case was sued under a negligence theory by a child who had been abused by a volunteer in a school organization. We concluded that the allegations of negligence triggered coverage under the relevant policy, but then we had to determine whether an exclusion for claims involving criminal acts or assault or battery applied.
¶ 43 Upon review, we determined that the exclusion was ambiguous in that it did not indicate whether the insurer had a duty to defend the school board when the claim involved a criminal act perpetrated by another party insured under the same policy. Since the policy was not clear on this point, and because the school board's actions were not alleged to be criminal or assaultive, we concluded that the exclusion did not apply.
¶ 44 Parents' reliance on Board of Public Education is misplaced because the exclusion in this case is crystal clear. The fact that Parents did not engage in criminal behavior is immaterial because the USAA policy exclusion applies to criminal behavior of any insured. Since Baumhammers is an insured and the underlying claims do not contain sufficient, exact averments establishing how Baumhammers's actions were not intentional and were not criminal, the exclusion applies. In light of the clear and unambiguous wording of the present exclusion, which bears no resemblance to the exclusion considered in Board of Public Education, we will not hesitate to enforce it. Accord McAllister v. Millville Mutual Insurance Co., supra (exclusion in fire insurance policy indicating that no coverage was provided when fire was set intentionally by "any" insured prevented recovery by insured who did not set fire because another insured intentionally set fire). Hence, Parents' argument is unavailing.
¶ 45 Parents further note that the intentional and criminal acts exclusions deny coverage that would otherwise be available by the language defining an occurrence as bodily injury caused by "any" insured as long as the injury was not intended from the standpoint of "the insured" under consideration. Parents suggest that the definition of occurrence renders the exclusionary language ambiguous because the exclusions deny coverage when a criminal act or intentional act of "any insured" is involved, while coverage is provided as long as the bodily injury is caused by "any insured" and is not intended from the standpoint of the "the insured" being considered.
Parents raise this argument in a rather vague manner; however, in their brief, Plaintiffs elaborate upon their contention that the language defining an occurrence, when read in conjunction with the exclusion, renders the policy ambiguous.
¶ 46 We simply disagree. The fact that the exclusion applies to behavior that may otherwise be covered as an occurrence does not render the provisions of the exclusion ambiguous. Exclusions, by their very nature, are designed to operate to deny coverage that otherwise would be provided under the definition of an occurrence.
¶ 47 In the present case, the criminal act exclusion clearly states that the insurance policy does not apply to bodily or personal injury arising out of a malicious or criminal act of any insured whether or not such insured is convicted of a crime. Similarly, coverage is excluded for bodily or personal injury caused by the intentional or purposeful act of any insured. The bodily and personal injuries suffered by the Plaintiffs arose from the intentional, malicious, and criminal acts of an insured, Richard Baumhammers. The underlying complaints do not contain any in-depth factual assertions establishing that Baumhammers acted otherwise. As such, the exclusions apply.
¶ 48 Next, Parents complain that their reasonable expectation that non-criminal, negligent behavior on their part would be covered by the USAA policy is defeated by the enforcement of the exclusions. We find the following language dispositive of this contention:
The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous.
Id. at 1288 (citations omitted); see also Kundahl v. Erie Insurance Group, 703 A.2d 542 (Pa.Super. 1997).
¶ 49 Herein, Parents cannot claim they reasonably expected that criminal conduct and intentional conduct would be covered because the exclusions clearly and unambiguously state that criminal conduct and intentional conduct by any insured is not covered under the policy.
Parents also argue that since the umbrella policy was purchased to provide excess coverage to the Donegal policy, in order to satisfy their reasonable expectations, the USAA policy must be construed to provide excess coverage in any situation where the Donegal policy provides basic coverage. However, since we have determined that the Donegal policy does not provide coverage in this case, this argument is moot.
¶ 50 Parents also contend that the exclusions are void because USAA failed to show both that it advised Parents of the changes it made to the policy in 1997 and that Parents understood the changes. Parents rely upon Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987). In Tonkovic, the issue was whether a jury's conclusion that an insured was not notified of an exclusion was based on sufficient evidence. Therein, the insured purchased disability insurance from an insurance agent, but was never informed that he would not receive disability insurance if he was injured at work and received workmens' compensation benefits. When the insured was denied disability coverage upon receipt of workmens' compensation benefits, he instituted an action against the insurer for disability benefits. He contended that he had purchased disability insurance specifically for mortgage coverage, which the agent acknowledged, and that he expected disability benefits in the event of a work-related injury. When the policy was issued, the insurer unilaterally and without notice inserted an exclusion for workplace injuries that were covered by workmens' compensation. The insured claimed that the exclusion was neither shown nor explained to him.
¶ 51 The Tonkovic Court held that the jury's verdict was supported by sufficient evidence. It ruled that when an insured purchases specific coverage, that coverage may not be changed unilaterally by the insurer "without an affirmative showing that the insured was notified of, and understood, the change. . . ." Id. at 455, 521 A.2d at 925.
¶ 52 In the present case, Parents were informed of the insertion of the criminal act and intentional act exclusions in a written notice in the policy itself. Specifically, Parents were told in conspicuous, capital lettering that there were changes in the 1997 policy involving a reduction in coverage. Parents were instructed to read the changes carefully. A separate sheet, entitled "Notice of Policy Changes," informed Parents that one of the changes was that "liability arising out of malicious and/or criminal acts is now specifically excluded." They were directed to where the relevant exclusion appeared in the policy, and the exclusions were clearly phrased.
¶ 53 In light of the facts herein, we conclude that the seminal decision in Standard Venetian Blind Co. v. American Empire Insurance Co., supra, is controlling. The issue in Standard Venetian Blind Co. was whether the insured under a liability policy could avoid a clear and unambiguous exclusionary clause because the insured alleged that it was not made aware of and did not understand the effect of the exclusion. Our Supreme Court held that the insured's purported lack of knowledge or understanding of the clear exclusionary clause did not render the clause unenforceable. The Court stated:
The principles governing our interpretation of a contract of insurance are familiar and well settled. The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. In the absence of proof of fraud, failure to read the contract is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.
Id. at 304-05, 469 A.2d at 566 (citations omitted). The Court held when "the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it." Id. at 307, 469 A.2d at 566.
¶ 54 In this case, Parents were notified in conspicuous lettering that their policy had been changed, that the changes should be read carefully, and that the changes involved a reduction in coverage. Thus, Parents were instructed to read the language of the exclusionary clauses at issue. In addition to being told to read the exclusionary clauses, Parents were informed separately in the "Notice of Policy Changes" that "liability arising out of malicious and/or criminal acts is now specifically excluded." USAA has established that Parents were notified of the changes and that the changes reduced coverage; hence Tonkovic does not afford Parents any relief.
¶ 55 We also disagree with the assertion that the 1997 language notifying Parents of the changes in the USAA policy was ambiguous or unclear. Brief of Underlying Plaintiffs as Appellants and as Appellees to Appeal filed by USAA at 17. The language was not technical, did not involve any obscure insurance terms, and was capable of being understood by the average person. Thus, Parents cannot claim to have misunderstood its language. Standard Venetian Blind Co., supra. ¶ 56 Parents' final argument is that the exclusions are void as against public policy. We disagree. As noted above, we have acknowledged that general liability insurance policies are not written to cover criminal acts, and we have routinely upheld language that operated to deny coverage for those acts. Erie Insurance Exchange v. Fidler, supra; Minnesota Fire and Casualty Co. v. Greenfield, supra; Germantown Insurance Co. v. Martin, supra. ¶ 57 Plaintiffs raise some of the same challenges to the trial court's ruling that we have already rejected. Specifically, they contend that Parents did not understand the exclusions, that the exclusions are ambiguous, that the clauses cannot be enforced because they defeat Parents' reasonable expectations, that the exclusions conflict with the definition of occurrence, and that public policy requires that coverage be upheld. All of these arguments have been considered and dismissed.
¶ 58 However, Plaintiffs raise two additional claims. They first suggest that Parents and Plaintiffs should not be precluded "from raising the issue of [Baumhammers's lack of] the mental capacity to commit intentional harm as it applies to insurance coverage and subsequent civil proceedings." Brief of Underlying Plaintiffs as Appellants and as Appellees to Appeal filed by USAA at 38.
¶ 59 We reject this contention and conclude that our decision in Germantown Insurance Co. v. Martin, supra, is controlling. In that case, the insured shot three people, killing two and seriously wounding the third, and then shot himself. The victims instituted an action against the shooter's estate, alleging that the shooter negligently or unintentionally shot his three victims. Coverage was sought under a homeowner's policy that excluded coverage for intentional acts. The trial court determined that the shooter was insane at the time and therefore committed the shootings unintentionally.
¶ 60 We reversed and ruled specifically that the question of "insanity" was not relevant to the application of an intentional acts exclusion. Looking at the events that transpired on the day in question, we concluded that the shooter's actions were intentional. We stated that the fact that the shooter's
acts were senseless, irrational and incomprehensible to the trial court or anyone else has no bearing on determining coverage under the policy. The record before us discloses [the shooter] brought about the harm he intended. Obviously, no rational person would go on a shooting spree, but this in no way lessens the intentional character of the conduct, if such intent is evidenced.
Id. at 1176. We also agreed with the insurer's position that any "psychiatric testimony in this case appears to be irrelevant to the issue of coverage. . . ." Id.
¶ 61 Plaintiffs' reliance upon Stidham v. Millvale Sportsmen's Club, 618 A.2d 945 (Pa.Super. 1992), is unavailing as that case is distinguishable. Therein, the shooter was in an alcoholic stupor when he shot his victim and had no conscious awareness of his actions and no memory of the tragic events. In connection with his criminal prosecution for the shooting, he pleaded guilty to third degree murder, but denied on the record that he had intended to kill the victim.
¶ 62 In the subsequent declaratory judgment action where the victim sought coverage from the shooter's homeowner's policy, the trial court ruled that the shooter was collaterally estopped from denying the intentional nature of his acts due to the entry of his guilty plea. The trial court granted summary judgment to the insured based on an insurance clause excluding coverage for harm intended or expected by the insured. We reversed and ruled that in light of the shooter's denial of intentional conduct at the guilty plea and in light of the fact that the shooter's consumption of alcohol resulted in a total lack of consciousness regarding the events, collateral estoppel did not apply and summary judgment was inappropriate.
¶ 63 In the present case, the USAA insurance policy contains both an intentional act exclusion, excluding coverage for the intentional act of any insured, and a criminal act exclusion. The underlying complaints fail to contain any indication that Baumhammers's actions did not involve a lack of consciousness regarding events; unlike the insured in Stidham, Baumhammers did not consume alcohol to the point that he suffered an alcoholic blackout. Moreover, Baumhammers's acts were unarguably criminal in nature.
¶ 64 When we are applying the language of an exclusion, the allegations in the underlying complaint determine whether coverage is triggered. Aetna Casualty and Surety Co. v. Roe, 650 A.2d 94 (Pa.Super. 1994); United Services Automobile Ass'n v. Elitzky, 517 A.2d 982 (Pa.Super. 1986). In determining whether an actor intends his harm, we utilize the definition set forth in Restatement (Second) of Torts § 8A. Id. That provision states, "The word `intent' is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Thus, an insured intends an injury if he wanted to cause the consequences of his act or acted knowing that those consequences were substantially certain to result. Aetna Casualty and Surety Co. v. Roe, supra.
¶ 65 In this case, the complaints contain averments that Baumhammers's actions were unintentional. However, as stated above, we do not look at legal conclusions to determine coverage but must look at the specific factual allegations. Mutual Beneficial Insurance Co. v. Haver, supra; Minnesota Fire and Casualty Co. v. Greenfield, supra. The only averments contained in the underlying complaints are that each individual plaintiff was shot by Baumhammers. There are no specific facts set forth in those complaints supporting the allegation that each shooting was unintentional. In the absence of such facts, the shooting of a victim will be viewed in the normal and ordinary context of human experience as a volitional act. The shootings, thus standing undisputed, indicate that Baumhammers sought to cause the harm that he inflicted and, therefore, acted intentionally. "[A]n actor is presumed to intend the natural and probable consequences of his actions." Commonwealth v. Sirianni, 428 A.2d 629, 633 n. 7 (Pa.Super. 1981) (citing Restatement (Second) of Torts § 8A). Serious bodily injury or death is the "natural and probable result" of pointing a loaded gun at a person and firing that weapon. Id. Thus, coverage was not triggered and an evidentiary hearing is not warranted. See Minnesota Fire and Casualty Co. v. Greenfield, supra (insured acted intentionally with regard to harm, death of victim, when he supplied heroin to her and based on intentional act exclusion, insurer had no duty to defend or indemnify insured in underlying action for wrongful death of heroin user); Aetna Casualty and Surety Co. v. Roe, supra (where underlying complaints indicated that insureds sexually and physically abused plaintiffs, exclusion for intended or expected harm applied and insurer had no duty to defend insureds in underlying action). Moreover, as discussed earlier, under Germantown Insurance Co. v. Martin, supra, psychiatric testimony may not be used to suggest that Baumhammers's acts were unintentional.
¶ 66 Plaintiffs raise a secondary argument. They suggest that the trial court improperly employed a collateral estoppel analysis against Parents relating to Baumhammers's criminal convictions because Parents were not parties to the criminal proceeding. However, we find that the use of such an analysis is unnecessary to a proper resolution of the question raised. We do not need to give collateral estoppel effect to the criminal convictions in order to establish that these exclusions apply. The exclusions state that insurance is not provided for criminal acts or intentional acts of "any insured," whether or not criminal convictions result. Baumhammers, an insured, committed intentional and criminal acts, and those acts form the basis for the requested coverage. Hence, the exclusions apply. Our decision flows from the language of the policy itself as well as the facts surrounding the shootings and not from a collateral estoppel application of Baumhammers's criminal convictions.
¶ 67 In addition, Plaintiffs contend that since the umbrella policy was purchased to provide excess coverage to the Donegal policy, the policy must be construed to apply excess coverage in any situation where the Donegal policy provides coverage. However, since we have determined that the Donegal policy does not provide coverage in this case, this argument lacks merit.
In its cross-appeal, USAA contends that the trial court improperly determined the number of occurrences presented by the events. Since we have concluded that there were no occurrences, we need not address this argument.
¶ 68 In light of the foregoing, we affirm the order as to United Services Automobile Association. We reverse the order as to Donegal Mutual Insurance Company and direct, on remand, that the trial court enter judgment in its favor based on our determination that it has no duty to defend or indemnify Richard Baumhammers, Andrejs Baumhammers, or Inese Baumhammers for the events occurring on April 28, 2000.
¶ 69 Order reversed. Case remanded with instructions. Jurisdiction relinquished.
¶ 70 Judge Todd files a Concurring Opinion. Judge Joyce joins both the Majority and the Concurring Opinion.
¶ 1 Although I join the Majority's excellent and well-reasoned analysis with respect to the issue of coverage under the USAA policy, I write separately to express my concern about its disposition with respect to the Donegal policy. I recognize that this Court's decision in Britamco Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994) (Opinion by Cirillo, J.; Beck, J. concurring in the result), in particular, dictates our interpretation of the Donegal policy with respect to coverage for Baumhammers' parents' alleged negligent conduct: namely, that despite their alleged negligence, Richard Baumhammers' intentional acts were not an "accident", and thus there was not an "occurrence" under the policy. I question, however, the soundness of this analysis in view of my belief that the panel opinion in Grzeskiewicz incorrectly applied our Supreme Court's decision in Gene's Restaurant, Inc. v. Nationwide Ins. Co., 519 Pa. 306, 548 A.2d 246 (1988).
¶ 2 As the Majority notes, the suit in Gene's Restaurant alleged only the intentional acts of a restaurant employee on a patron of the restaurant. The Supreme Court determined that such intentional acts could not constitute an "accident" under the policy covering the restaurant. Id. at 309-10, 548 A.2d at 247. Unlike in Grzeskiewicz and in the instant case, however, it was not alleged in Gene's Restaurant that the insured also acted negligently in causing the harm. Nevertheless, in Grzeskiewicz, although the insured was alleged to have acted negligently (which conduct allegedly led to an intentional assault), this Court interpreted the holding in Gene's Restaurant to mean that whenever the underlying act is intentional, the act cannot be an "accident" from the point of view of the insured. Grzeskiewicz, 639 A.2d at 1210-11. As a result, the Court in Grzeskiewicz, in my view, erroneously, found that there was no coverage for the insured's negligent conduct even though such conduct was not intentional and thus arguably was an "accident" under the policy.
¶ 3 I do not read Gene's Restaurant to command such a holding. In this regard, I note as persuasive the analysis in Nationwide Mut. Fire Ins. Co. of Columbus v. Pipher, 140 F.3d 222 (3d Cir. 1998). In that case, an apartment owner, inter alia, removed and negligently failed to reinstall the doors to a tenant's apartment, which negligence allegedly led to the tenant's murder by a workman hired by the owner. In the suit by the tenant's husband, the insurance carrier for the owner denied coverage, citing occurrence language similar to that in the instant case. In reviewing the carrier's declaratory judgment action, the Third Circuit distinguished Gene's Restaurant, finding to be critical the fact that in Gene's Restaurant there were no allegations of negligence:
Because the complaint alleged solely an intentional act and contained no allegations of negligence on the part of its insured, the Gene's Restaurant court came to the unremarkable conclusion that an intentional tort was not an accident and thus not a covered occurrence under the policy.
Id. at 225 (emphasis original). By contrast, the court in Pipher noted that there were numerous allegations of negligence on the part of the apartment owner, concluding:
Although [the tenant's] death was the direct result of a third party's intentional conduct, the complaint alleges that the insured's own negligence also played a significant part in her death. In the absence of any Pennsylvania Supreme Court precedent directly on point, we believe that if confronted with this question, that court would find this distinction alone to be sufficient to hold that an insurance company has a duty to defend its insured against complaints alleging negligent conduct on the part of the insured as well as a third party's intentional conduct. Id. It added that its holding — "it is the intentional conduct of the insured which precludes coverage, not the acts of third parties" — was well-settled in other jurisdictions. Id. at 226 (citing cases) (emphasis original).
In further support of its disposition, the Pipher court cited Mohn v. American Cas. Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974), for the proposition "the fact that the event causing the injury may be traceable to an intentional act of a third party does not preclude the occurrence from being an `accident.'" Id. at 578, 326 A.2d at 348. The Majority in the instant case distinguishes Mohn and other similar cases by, inter alia, asserting that "they examined health and life insurance policies rather than a general liability policy containing the precise language interpreted in Gene's Restaurant." Majority Op. at 16. This attempt to distinguish Mohn, however, is undercut if, as I opine, Gene's Restaurant is not properly viewed as controlling in the instant case.
¶ 4 Employing this same analysis, I view this Court's decision in Grzeskiewicz to be based on a misreading of Gene's Restaurant. Cf. Pipher, 140 F.3d at 229 (Alito, J., concurring) (noting that although Grzeskiewicz was otherwise dispositive, it was not properly followed in light of our Supreme Court decisions). Moreover, the rule expressed by our Court in Grzeskiewicz produces an anomalous result: it allows for coverage under policies such as the Donegal policy where the insured himself negligently causes injury, but not where the insured negligently enables another actor to intentionally cause injury. See generally Board of Public Educ. v. National Union Fire Ins., 709 A.2d 910, 915 (Pa.Super. 1998) ( en banc) (discussing this anomaly and noting that, as a result, "the exact same allegations of the [insured's] negligence could result in coverage, or not, dependent solely on the degree of culpability alleged on the part of [the party most directly causing the harm]"). For example, an allegation that an insured gun owner negligently secured his gun collection could result in coverage where the insured's minor child retrieved a gun and accidentally killed a playmate, but could result in the denial of coverage where the insured's adult child retrieved a gun and intentionally killed an acquaintance.
¶ 5 I believe both the main thrust of our Pennsylvania caselaw and sound policy construction warrant finding coverage under the Donegal policy for the allegations of negligence against the parents in this case. That is, I would conclude that the alleged negligence of Baumhammers' parents, no less negligent because it is alleged to have led to intentional killings, reasonably could be considered an "accident" triggering an occurrence under the Donegal policy.
¶ 6 Thus, in light of my reading of Gene's Restaurant and the other relevant caselaw, I question the viability of Grzeskiewicz and the propriety of our reliance on it. However, absent en banc review which would enable this Court to revisit our 1994 holding in Grzeskiewicz , or Supreme Court examination of the viability of this precedent, I recognize that this Court is bound by our prior decision in Grzeskiewicz , and that it requires the result reached by the Majority.