[J-31-2019] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ERIE INSURANCE EXCHANGE, : No. 20 WAP 2018 : Appellant : Appeal from the Order of the : Superior Court entered November : 22, 2017 at No. 869 WDA 2016, v. : vacating the Judgment of the Court : of Common Pleas of Washington : County entered June 15, 2016 at TRACY L. MOORE AND HAROLD E. : No. 2014-4931 and remanding. MCCUTCHEON, III, INDIVIDUALLY AND : AS ADMINISTRATORS OF THE ESTATE : ARGUED: April 11, 2019 OF HAROLD EUGENE MCCUTCHEON, : JR., AND RICHARD A. CARLY, : : Appellees :
OPINION
JUSTICE DOUGHERTY1 DECIDED: APRIL 22, 2020 We consider whether the alleged conduct of an insured, Harold Eugene
McCutcheon, Jr. (McCutcheon), as described in a personal injury lawsuit filed against his
estate by Richard A. Carly (Carly), obligates McCutcheon’s insurer, appellant Erie
Insurance Exchange (Erie) to defend the estate against Carly’s complaint. We hold
Carly’s allegations were sufficient to trigger Erie’s duty to defend and accordingly affirm
the order of the Superior Court.
1 The matter was reassigned to this author. I.
The following material facts are alleged in Carly’s complaint. On the evening of
September 26, 2013, McCutcheon broke into the home of his ex-wife, Terry McCutcheon,
in order to shoot and kill her, and then kill himself. He communicated these intentions in
a note he left for his adult children. McCutcheon succeeded in executing this plan, first
shooting and killing Terry and, eventually, shooting and killing himself. However, after
McCutcheon killed Terry but before he killed himself, Carly arrived on the scene. Carly,
who had been dating Terry, approached the front door of her home, rang the doorbell and
received no answer. Carly became concerned, placed his hand on the doorknob “in order
to enter and the door was suddenly pulled inward by [McCutcheon] who grabbed [Carly]
by his shirt and pulled him into the home.” McCutcheon was “screaming, swearing,
incoherent, and acting ‘crazy.’” Then, “a fight ensued between the two and at the time,
[McCutcheon] continued to have the gun in his hand” which he apparently had used to
kill Terry. During this “struggle” between the two men, McCutcheon was “knocking things
around, and in the process [he] negligently, carelessly, and recklessly caused the weapon
to be fired which struck [Carly] in the face,” causing severe injuries. In addition, “other
shots were carelessly, negligently and recklessly fired” by McCutcheon, “striking various
parts of the interior of the residence and exiting therefrom.” Carly Complaint, 2/20/2014
at ¶¶5-21.
Carly filed suit against McCutcheon’s estate, and the estate — administered by
McCutcheon’s adult children — sought coverage of the lawsuit under two insurance
policies issued by Erie to McCutcheon: the Erie Insurance Home Protector Policy
(homeowner’s policy) and the Erie Insurance Personal Catastrophe Liability Policy
(personal catastrophe policy).
McCutcheon’s homeowner’s policy states, in relevant part:
[J-31-2019] - 2 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. The homeowner’s policy defines an “occurrence” as “an
accident, including continuous or repeated exposure to the same general harmful
conditions.” Id. at 5. Similarly, McCutcheon’s personal catastrophe policy provides
coverage for amounts an insured becomes legally obligated to pay due to personal injury
resulting from an “occurrence,” and defines a covered “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.” Personal Catastrophe
Policy at 3-4. Finally, both policies expressly exclude from coverage “bodily injury,
property damage or personal injury expected or intended by anyone we protect.”
Homeowner’s Policy at 15; Personal Catastrophe Policy at 4 (excluding “personal injury
or property damage expected or intended by anyone we protect”). The homeowner’s
policy further provides expected or intended injury is excluded even if “the degree, kind
or quality of the injury or damage is different than what was expected or intended,” or “a
different person, entity, real or personal property sustained the injury or damage than was
expected or intended.” Homeowners Policy at 15. Based on these provisions, Erie
concluded it owed no coverage to the estate because Carly’s injuries were not caused by
an accidental “occurrence,” but rather were “expected or intended” by McCutcheon. As
a result, Erie filed the present declaratory judgment action.
The parties engaged in discovery and eventually filed cross-motions for summary
judgment. The trial court agreed with Erie and granted summary judgment in its favor,
[J-31-2019] - 3 holding Erie had no duty to defend the estate against Carly’s complaint. The court
reasoned “[t]he shooting of Carly plainly resulted from human agency. Moreover, the
prospect of injury from a gun firing during a physical struggle over that gun was no less
plainly and reasonably anticipated.” Erie Ins. Exch. v. Moore, No. CR 2014 – 4931,
unpublished order at 7 (Wash. Co. filed May 31, 2016), citing United Serv. Auto. Ass’n v.
Elitzky, 517 A.2d 982, 989 (Pa. Super. 1986) (“An insured intends an injury if he desired
to cause the consequences of his act or if he acted knowing that such consequences
were substantially certain to result.”). The court stated the shooting “cannot fall within the
definition of an accident,” and “the deliberate conduct of [McCutcheon] did not constitute
an ‘occurrence’ that would trigger coverage[.]” Id. The court further opined the use of the
terms “negligently, carelessly, and recklessly” in Carly’s complaint did not result in a duty
to defend; instead, the court found “no evidence that the shooting was accidental or
negligent.” Id. at 8. Specifically, the court noted McCutcheon “forcibly pulled Carly
inside,” and after Carly was shot, McCutcheon “did not verbally indicate that he did not
mean to injure Carly nor did he attempt to assist Carly in any way.” Id. The court
concluded McCutcheon thus “intended to cause serious harm to Carly.” Id.2
2 It appears the trial court may have relied at least in part upon additional facts adduced through Carly’s deposition testimony. See, e.g., Erie Ins. Exch. v. Moore, No. CR 2014 – 4931, unpublished order at 3, 8 (Wash. Co. filed May 31, 2016). The Superior Court also referred to some of this additional evidence in its own opinion. See Erie Ins. Exch. v. Moore, 175 A.3d 999, 1006-07, 1012 n.14 (Pa. Super. 2017). However, in deciding the issue before us, i.e., whether Erie has a duty to defend the estate against Carly’s complaint, we focus only on the allegations of the complaint, and compare them to the four corners of the applicable insurance contracts. American & Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 541 (Pa. 2010) (question of coverage depends on “comparing the four corners of the insurance contract to the four corners of the complaint”).
[J-31-2019] - 4 On appeal, the Superior Court reversed in a published opinion. Erie Ins. Exch. v.
Moore, 175 A.3d 999 (Pa. Super. 2017). The panel considered whether the allegations
of the complaint set forth a claim that the shooting was a covered occurrence, i.e., an
accident resulting in injuries that were not expected or intended by the insured. Id. at
1009. The panel observed “gunshot wounds commonly are inflicted deliberately,” but “not
all injuries from gun violence are intentional.” Id. at 1010. The panel eschewed “abstract
notions about the reasonably foreseeable results of gun violence” and focused instead
on “the specific events that gave rise to Carly’s injuries as a result of McCutcheon’s
brandishing of a firearm.” Id., citing, inter alia, Elitzky, 517 A.2d at 987 (“Insurance
coverage is not excluded because the insured’s actions are intentional unless he also
intended the resultant damage. The exclusion is inapplicable even if the insured should
reasonably have foreseen the injury which his actions caused.”).3 The panel recognized
the complaint’s “legal terminology” of negligence and carelessness “cannot control the
outcome,” but nevertheless determined the allegations “fairly portray a situation in which
injury may have been inflicted unintentionally.” Id. at 1012. Distinguishing prior cases
where the allegations of the complaint clearly described intentional conduct by an insured,
3 In Elitzky, the Superior Court determined an insurer had a duty to defend insured defendants in an action alleging damages resulting from the insureds’ defamatory statements, where the insurance policy excluded from coverage damages “expected or intended by the insured.” See Elitzky, 517 A.2d at 985, 992. In reaching this conclusion, the court distinguished between an insured’s intention to merely commit the act resulting in damage, and an intention to cause the actual resulting damage. Id. at 987-88. The court reasoned the latter inquiry was dispositive and required an element of subjective conscious awareness by the insured; the policy’s terms were thus ambiguous “and must be construed against the insurer.” Id. at 989.
[J-31-2019] - 5 the panel concluded Erie had a duty to defend McCutcheon’s estate against Carly’s
lawsuit.4
Erie filed a petition for allowance of appeal and we granted discretionary review of
the following questions:
1. Does the Superior Court's ruling that shooting a person during a fight, in turn, during a planned murder-suicide, constituted an “occurrence” under a liability insurance policy conflict with Pennsylvania law as established by this Court?
2. Does the Superior Court's ruling conflict with its own decision in American National Property and Casualty Co. v. Hearn, 93 A.3d 880 (Pa.Super. 2014), and misconstrue the intentional acts exclusion of a liability insurance policy?
3. Does the Superior Court's ruling conflict with Pennsylvania public policy, as stated in Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 747 ([Pa.] 1999), that liability insurance does not cover damages caused as a result of evil or illegal conduct?
Erie Ins. Exch. v. Moore, 189 A.3d 382 (Pa. 2018) (per curiam). The issues present legal
questions as to which our scope of review is plenary and our standard of review is de
novo. Skotnicki v. Ins. Dep’t, 175 A.3d 239, 247 (Pa. 2017). We consider whether the
Superior Court erred when it reversed the trial court’s grant of summary judgment in favor
of Erie, and more specifically, whether the trial court erroneously determined the “four
corners of the complaint” cannot support a conclusion that Carly’s injuries were caused
4 The panel also discussed certain record-related anomalies, “lament[ing] the state of the record” and noting the parties failed to ensure that deposition transcripts and other discovery materials they attached to their motions for summary judgment were not included in the certified record on appeal. 175 A.3d at 1005-08. In addition, the panel criticized the trial court for improperly basing its decision in part on materials outside the complaint, specifically referring to Carly’s deposition testimony. Id. at 1012. Ultimately, as the panel recognized, these evidentiary detours are not relevant to disposition of the present matter. Id. at 1008, 1011; see also fn.2 supra, citing Jerry’s Sport Ctr., 2 A.3d at 541.
[J-31-2019] - 6 by a covered “occurrence.” See, e.g., American & Foreign Ins. Co. v. Jerry’s Sport Ctr.,
Inc., 2 A.3d 526, 541 (Pa. 2010) (“[W]hether a claim is potentially covered is answered by
comparing the four corners of the insurance contract to the four corners of the
complaint.”).
II.
A.
Erie argues the trial court correctly granted summary judgment in its favor and the
Superior Court erred in reversing that decision. Erie contends it does not have a duty to
defend McCutcheon’s estate against Carly’s lawsuit because the factual allegations in the
Carly complaint do not constitute an insurable “occurrence.” Erie asserts instead the facts
“describe a shooting during the commission of multiple felonies.” Erie’s Brief at 17. Erie
notes the term “occurrence,” in the context of a liability insurance policy, is defined as an
“accident,” and this Court has interpreted “accident” as something that is “unexpected” or
“undesirable.” Id. at 18-19, citing Kvaerner Metals Div. of Kvaerner U.S., Inc. v.
Commercial Union Ins. Co., 908 A.2d 888, 897-98 (Pa. 2006); Donegal Mut. Ins. Co. v.
Baumhammers, 938 A.2d 286, 292 (Pa. 2007). Erie insists “a gunshot injury sustained
at the hands of a perpetrator of a premeditated murder-suicide is not the sort of event that
has the requisite degree of fortuity necessary to constitute an ‘occurrence.’” Id. at 20.
Erie further argues injuries resulting from a physical altercation are not “unexpected,” and
a “willful and malicious assault” is not an accident but an intentional tort that does not
trigger an insurer’s duty to defend. Id., quoting Gene’s Restaurant, Inc. v. Nationwide Ins.
Co., 548 A.2d 246, 247 (Pa. 1988) (“willful and malicious assault” alleged in complaint
seeking recovery for injuries sustained in bar fight was not an accident covered by policy
but rather an intentional tort).
[J-31-2019] - 7 Erie further faults the Superior Court’s reliance on Elitzky to hold there is a covered
“occurrence” because Elitzky had nothing to do with whether a physical assault is an
accident. Id. at 22. Erie argues the court should have viewed the totality of the facts from
McCutcheon’s perspective, and the fact he never made an affirmative statement of his
intention to harm Carly does not rule out a determination he acted intentionally. Id. at 34.
Erie claims McCutcheon shot Carly as part of a “single non-accidental criminal act.” Id.
at 35. Erie contends the Superior Court erred by: (1) creating a narrative of the events
reflecting an erratic and unplanned gunfire, which Erie argues “go[es] beyond the
complaint;” (2) disregarding the allegations in the Carly complaint, which establish
McCutcheon premeditated a murder-suicide; and (3) accepting Carly’s “artful pleading”
to convert intentional actions into insurable occurrences in contravention of Haver —
which held it is against public policy to provide insurance coverage of intentional illegal
conduct — and Hearn — which held an insured’s intentional acts were excluded from
coverage even though the insured did not intend the resulting serious injuries. See id.at
17-48; see also Erie’s Reply Brief at 4 (characterizing the allegations in the complaint “as
a non-accidental shooting in the midst of a pre-meditated murder-suicide plot”). Here,
according to Erie, McCutcheon’s decision to fight with Carly “while brandishing — and
discharging — a firearm was an intentional act,” and there is no duty to defend because
Carly’s injuries “were of the same general type which were expected or intended under
the circumstances.” Erie’s Brief at 52-53.
American Insurance Association; Property Casualty Insurers Association of
America; Insurance Federation of Pennsylvania, Inc.; Pennsylvania Defense Institute;
and Philadelphia Association of Defense Counsel filed an amici curiae brief in support of
Erie. They contend that a fundamental condition of insurance coverage is fortuity. They
argue McCutcheon’s actions were intentional and to hold otherwise would “remove the
[J-31-2019] - 8 required element of fortuity essential to a valid transfer of risk.” Amici for Erie’s Brief at
7, 9-10. They further speculate that “provid[ing] coverage for intentional or criminal
conduct may incentivize policyholders to engage in such conduct[.]” Id. at 12-13.
B.
Carly argues the Superior Court properly evaluated the factual allegations in his
complaint, and correctly determined they made out a duty to defend McCutcheon’s estate.
Carly observes there is a duty to defend unless it is “clear from an examination of the
allegations in the complaint and the language of the policy that the claim does not
potentially come within the coverage of the policy.” Carly’s Brief at 14, citing Gen.
Accident Ins. Co. v. Allen, 692 A.2d 1089, 1093 (Pa. 1997). Carly notes that, in
determining whether the claim “potentially comes” within the policy’s coverage, the factual
allegations of the complaint against the insured must be taken as true, and if doubt or
ambiguity exists, it must be resolved in favor of coverage. Id. at 15, citing, inter alia,
Jerry’s Sport Ctr., 2 A.3d at 540. Moreover, according to Carly, if there are undetermined
facts that might impact on coverage, the insurer has a duty to defend until the “‘claim is
narrowed to one patently outside the policy coverage.’” Id., quoting Stidham v Millvale
Sportsmen’s Club, 618 A.2d 945, 953-54 (Pa. Super. 1992). Carly rejects Erie’s position
that the Superior Court relied on the complaint’s legal characterization of the insured’s
conduct as negligent, careless or reckless — i.e., what Erie considers mere “artful”
pleading. Rather, Carly argues, the Superior Court correctly considered the allegations
as “fairly portray[ing] a situation in which injury may have been inflicted unintentionally.”
Id. at 18, quoting Erie Ins., 175 A.3d at 1012.
Carly further notes the fact McCutcheon intentionally pulled him inside the house
before their physical struggle began is not dispositive, as Carly is not seeking damages
[J-31-2019] - 9 for injuries caused by this particular action by the insured, nor is he seeking damages for
the intentional killings of Terry McCutcheon or McCutcheon himself. Id. at 21-22. Carly
further observes Pennsylvania courts have rejected attempts by insurance carriers to
disclaim coverage solely because a complaint includes allegations of criminal conduct.
Id. at 22-24, citing Eisenman v. Hornberger, 264 A.2d 673, 673-74 (Pa. 1970) (insured
accidentally burned down house he was burglarizing; liability coverage applied as long as
allegations of negligence were separate and distinct from the criminal conduct); Erie Ins.
Exch. v. Muff, 851 A.2d 919, 929-30 (Pa. Super. 2004) (insurer had duty to defend insured
where underlying complaint alleged she negligently caused infant’s death,
notwithstanding her criminal conviction for intentionally killing the child; civil complaint
contained specific and detailed factual averments of negligence).
Carly dismisses the cases Erie relies on to deny coverage as inapposite, because
they involved allegations of intentional acts, not the accidental discharge of a gun.
According to Carly, the allegations of his complaint, when taken as true, indicate the
insured accidentally shot him and, consequently, cases where an insured intentionally
shoots a weapon causing injury, or intentionally commits a tortious act that results in
greater harm than anticipated, do not apply. Carly emphasizes he made no allegation
that McCutcheon pointed the gun at him or threatened him, and Carly does not seek relief
for any intentional acts. For this reason, Carly argues, Haver is inapposite because the
allegations of the underlying complaint clearly described intentional conduct, i.e., the
insured distributed drugs without a prescription, against the express instructions of
decedent’s doctors and family, and the complaint’s characterization of this conduct as
negligent “malpractice” did not affect the coverage analysis. Carly further claims Hearn
is not relevant; although the policy in that case excluded unintended consequences, it
[J-31-2019] - 10 was clear the insured’s alleged conduct in striking his friend was intentional. In this case,
Carly argues, the complaint alleges an accidental, not intentional, shooting.
Finally, Carly argues public policy weighs in favor of coverage in this case. Carly
claims a holding denying the duty to defend under the circumstances would not serve as
a crime deterrent, since providing coverage to Carly “in no way saves the insured from
the consequences of his criminal act.” Id. at 40, quoting Eisenman, 264 A.2d at 675.
Moreover, Carly notes, by denying coverage, Erie presumes the accidental discharge of
the gun was criminal, and suggests its policy excludes all risks associated with gunfire;
Carly emphasizes although Erie could have written its policy to expressly exclude such
risks, it did not. According to Carly, holding there is a duty to defend the allegations in his
complaint serves the important public policy of providing compensation to tort victims.
United Policyholders filed an amicus curiae brief in support of Carly, in which it
highlights that insurers have a broad duty to defend and posits the Superior Court applied
the appropriate standard to reach the correct result. United Policyholders Brief at 4-7.
Amicus notes it is the allegations in the Carly complaint that are determinative of the duty
to defend, and because the complaint alleges an accidental injury, the duty is triggered.
See id. at 7-13.
III.
An insurer’s duty to defend is broader than its duty to indemnify, and the duty to
defend is triggered “if the factual allegations of the complaint on its face encompass an
injury that is actually or potentially within the scope of the policy.” Babcock & Wilcox Co.
v. American Nuclear Insurers, 131 A.3d 445, 456 (Pa. 2015) (internal quotation and
citation omitted) (emphasis added). The truth of the complaint’s allegations is not at issue
when determining whether there is a duty to defend; the allegations are to be “taken as
[J-31-2019] - 11 true and liberally construed in favor of the insured.” Jerry’s Sport Ctr., 2 A.3d at 541
(internal quotation and citation omitted). Whether a claim is “potentially covered is
answered by comparing the four corners of the insurance contract to the four corners of
the complaint.” Id. And, if any doubt or ambiguity exists, it must be resolved in favor of
coverage. Id. at 540. Moreover, to the extent there are undetermined facts that might
impact on coverage, the insurer has a duty to defend until the “claim is narrowed to one
patently outside the policy coverage,” for example through discovery. Mace v. Atlantic
Refining Marketing Corp., 785 A.2d 491, 500 (Pa. 2001) (Saylor, J., dissenting); see also
Stidham, 618 A.2d at 953-54.
Here, the “four corners of the complaint” — when taken as true and liberally
construed — make out an accidental shooting. A fair reading of the complaint reveals the
following. Erie’s insured Harold McCutcheon intentionally shot his ex-wife, and then
himself, as part of a premeditated murder-suicide. Unfortunately, however, before
McCutcheon killed himself, Carly appeared on the scene, knocking on the door of the
victim’s house, and trying the door handle. The complaint then states Carly “was
suddenly pulled inward by [McCutcheon] who grabbed [Carly] by his shirt and pulled him
into the home.” At this point, McCutcheon “was screaming, swearing, incoherent, and
acting ‘crazy,’” and “a fight ensued between the two.” McCutcheon continued to wield his
gun, and the “struggle” resulted in the men “knocking things around.” Next, McCutcheon
“negligently, carelessly and recklessly caused the weapon to be fired,” striking Carly and
“various parts of the interior of the residence.” Carly further alleged his injuries were
“wholly, directly and proximately caused by [McCutcheon’s] negligence, carelessness
and recklessness.” Complaint at ¶¶16-21. These allegations are not mere “artful”
pleading designed to present intentional acts as accidental for purposes of insurance
coverage. See, e.g., Haver, 725 A.2d at 745 (“[T]o allow the manner in which the
[J-31-2019] - 12 complainant frames the request for redress to control . . . would encourage litigation
through the use of artful pleadings designed to avoid exclusions in liability insurance
policies.”). Instead, taken as true, they present a factual scenario that potentially comes
within the definition of a covered “occurrence,” and to which the Erie exclusion for bodily
injury “expected or intended” by the insured does not apply.
Indeed, this case is easily distinguished from the precedent relied on by Erie for
the opposite conclusion. In Haver, for example, the Court determined there was no duty
to defend the insured — a pharmacist who provided controlled substances to the plaintiffs’
decedent without a prescription, and in derogation of express warnings by her parents
and physician. 725 A.2d at 746. The pharmacist-insured may not have intended to cause
the resulting overdose and death, but the alleged facts clearly established he provided
the drugs on purpose. In other words, the plaintiffs’ “artful” pleading that the pharmacist
acted “negligently” could not bring his obviously intentional conduct under the policy. Id.
at 745-46. Haver does not control this case because the allegations of Carly’s complaint
do not make crystal clear that McCutcheon shot Carly on purpose, or that he “expected
or intended” to cause Carly’s bodily injuries. And, under the applicable standards, we
may not provide this inference.
Erie also similarly relies on Hearn to no avail. Although the complaint in that case
referred to “negligent” conduct by the insured, the allegations clearly described intentional
conduct — the insured struck his friend on purpose during a game, resulting in an
unexpectedly serious injury. The language in the Hearn complaint that purported to allege
negligence was thus not dispositive. See Hearn, 93 A.3d at 886 (“Regardless of whether
appellants chose to plead a negligence cause of action, it is clear from the undisputed
facts that Hearn’s assault on Clayton was intentional.”). But, the allegations in the present
complaint are not clear about McCutcheon’s intentions with respect to Carly; taken as
[J-31-2019] - 13 true, the allegations establish he intended to kill his ex-wife and himself, but not that he
intended to shoot Carly. More to the point, the complaint’s allegations — when read in
light of the guiding standards — establish at least a duty to defend the insured’s estate,
and that duty adheres until the claim is “narrowed to one patently outside the policy
coverage.” Stidham, 618 A.2d at 953-54.
Thus, Carly’s complaint establishes the insured intended to kill his wife, and then
later, intended to pull the victim into the house and fight with him while wielding a firearm.
Contrary to Erie’s view, this surprise encounter with Carly was not part of the insured’s
other intentional conduct for purposes of insurance coverage, and in fact, Carly does not
seek damages for a fistfight or shoving match. Carly’s lawsuit seeks damages for being
shot by the insured. Had the policy’s exclusion expressly stated coverage would not apply
to incidents involving firearms, or during the commission of a crime, then perhaps there
would be no duty to defend the underlying claims by Carly. But the policy does not say
this. Instead, it excludes from coverage bodily injury “expected or intended” by the
insured, and to the extent this language is ambiguous in the presently alleged factual
context, it must be construed in favor of coverage. See, e.g., Madison Const. Co. v.
Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999) (“Where a provision of a policy
is ambiguous, the policy provision is to be construed in favor of the insured and against
the insurer[;]” “contractual terms are ambiguous if they are subject to more than one
reasonable interpretation when applied to a particular set of facts.”) (internal citations and
quotation omitted). Erie’s reading ignores this precept, and seems instead to presume
an insured’s mere possession of a firearm precludes coverage of a negligent or accidental
discharge. We reject Erie’s interpretation.
We further reject the argument by Erie and its amici that finding a duty to defend
here ignores the basic principle that “fortuity” is essential to a valid transfer of risk between
[J-31-2019] - 14 an insured and insurer, and providing coverage for criminal conduct like McCutcheon’s
will incentivize insureds to engage in criminal activity. The argument is beside the point
because, as we have seen, the complaint’s allegations do not preclude the possibility
McCutcheon accidentally shot Carly, despite the fact he intentionally shot Terry
McCutcheon, or intentionally pulled Carly into the house before the shooting. Denying a
duty to defend under such circumstances would not serve as a crime deterrent, and would
unnecessarily withhold compensation to tort victims.
For all the foregoing reasons, we hold Erie has a duty to defend McCutcheon’s
estate against Carly’s lawsuit, and therefore affirm the order of the Superior Court.
Justices Baer, Donohue and Wecht join the opinion.
Justice Mundy files a dissenting opinion in which Chief Justice Saylor and Justice
Todd join.
[J-31-2019] - 15