September 30, 2020 Adventures in the Law

Bad Time for a Visit

Richard Carly picked a bad time to visit his girlfriend, Terry. It wasn’t just that her former husband, Harold, was in the house. It’s what Harold was doing.

By Norm Tabler

He was in the process of carrying out the plan he outlined in a note to his children: first kill Terry, then kill himself. He was halfway through the plan, having fatally shot Terry, when Richard knocked on the door.

Holding his loaded gun in one hand, Harold used the other to pull Richard into the house by the shirtfront, screaming and swearing all the while.

During the ensuing fight Harold fired several rounds, one of which hit Richard in the face. Harold then completed his plan by killing himself.

When Richard sued Harold’s estate, the estate sought coverage under Harold’s homeowner’s and personal catastrophe policies issued by Erie Insurance. Both policies covered liability for bodily injury caused by an “occurrence,” defined as an “accident.”

Erie refused to defend, citing an exclusion for injury that was “expected or intended” by the insured, Harold in this case. Erie’s position was that Harold’s shooting of Richard was no accident because Harold had intended to shoot him.

When both parties moved for summary judgment, the court sided with Erie, noting that Harold had forcibly pulled Richard inside Terry’s home and after shooting him hadn’t indicated that the shooting was accidental or tried to assist Richard. Ergo, Harold had “intended to cause serious harm” to Richard.

The Superior Court reversed, holding that the allegations in Richard’s complaint “portray a situation in which injury may have been inflicted unintentionally.” Therefore, Erie must defend the suit.

Erie appealed to the Pennsylvania Supreme Court, emphasizing that the complaint painted a picture of a shooting that occurred during the commission of multiple, planned felonies. Harold, armed with a loaded gun, had initiated a physical fight with Richard. How could shooting Richard be unintentional?

The American Insurance Association and a raft of other insurance trade associations filed amicus briefs in support of Erie, warning of the dire consequences of expanding the definition of “accident” to cover a situation like the one at hand.

Richard countered that the issue was Erie’s duty to defend, not the narrower issue of indemnity. The duty to defend applies whenever a claim may “potentially come within the coverage of the policy.”

Richard also noted that the case should be decided on the pleadings. Here, the “four corners of the complaint,” when taken as true and liberally construed, allege an act of negligence. After all, the complaint expressly alleges that Harold “negligently, carelessly and recklessly caused the weapon to be fired [emphasis added].”

A four-justice majority sided with Richard. The three-judge dissent blasted the majority’s reliance on the artful “legal characterizations” of the complaint, insisting that the court should rely on the facts and acts that are alleged, not the plaintiff’s subjective characterization of them.

The lesson? If you want your insurance company to defend you for shooting your ex-spouse’s paramour, consider doing it in Pennsylvania.

The case is Erie Insurance v. Moore, Penn. Sup. Ct.



Norm Tabler is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyerwrites a monthly column for the Indiana Bar Association’s Res Gestae and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.