J-A22023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNSYLVANIA INTEGRATED RISK : IN THE SUPERIOR COURT MANAGEMENT ASSOCIATION : OF PENNSYLVANIA : v. : : STEVEN HOMANKO, BOROUGH OF : NESQUEHONING, SEAN SMITH AND : MICHAEL SAUERS, INDIVIDUALLY : AND AS ADMINISTRATOR OF THE : ESTATE OF CAROLA R. SAUERS : : APPEAL OF: STEVEN HOMANKO : No. 337 EDA 2019
Appeal from the Order Entered December 31, 2018 in the Court of Common Pleas of Carbon County Civil Division at No(s): 17-2151
BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 15, 2019
Steven Homanko appeals from the order entered December 31, 2018,
which granted judgment on the pleadings in favor of Pennsylvania Integrated
Risk Management Association (PIRMA), concluding PIRMA had no duty to
defend or indemnify Homanko in an underlying civil action in which Homanko
is a defendant. We affirm.
The trial court provided the relevant factual and procedural history of
this matter.
In the underlying action, Michael Sauers, individually and as the administrator of the Estate of Carola R. Sauers, brought suit against [] Homanko, Sean Smith, and the Borough of Nesquehoning [(the Borough)] [in the United States District Court for the Middle District of Pennsylvania.] That action arises out of a motor vehicle collision wherein [] Homanko, while acting within
* Retired Senior Judge assigned to the Superior Court. J-A22023-19
the scope of his employment as a police officer for the Borough [], was traveling in excess of one hundred (100) miles per hour in pursuit of a vehicle which [] Homanko had observed committing a summary traffic offense. [] Homanko’s collision with the Sauers[es’] vehicle resulted in the death of Carola Sauers and multiple personal injuries to Michael Sauers. Based upon his actions which resulted in the collision, [] Homanko was charged criminally and subsequently pleaded guilty to homicide by vehicle, recklessly endangering another person [(REAP)], failure to keep right, and careless driving.
Prior to the collision, the Borough [] entered into a “Legal Defense and Claim Payment Agreement” with [PIRMA]. This agreement provide[d] that [PIRMA] [would] defend and indemnify the Borough, including employees acting within the scope of their employment, against any suit seeking damages, unless an act is not covered by the agreement. The agreement explicitly excludes criminal acts, which are defined as injury arising out of any criminal act or violation of a penal statute. This exclusion does not apply until it has been judicially determined that the employee did commit such criminal act or violation.
Trial Court Opinion, 3/27/2019, at 2-3 (capitalization altered, citations
omitted).
On September 21, 2017, PIRMA filed the instant action against, inter
alia, Homanko, asserting it was entitled to declaratory judgment pursuant to
42 Pa.C.S. §§ 7531-41 (Declaratory Judgments Act). According to PIRMA, the
claims set forth in the underlying action are not covered under the agreement
between PIRMA and the Borough. Thus, PIRMA requested a declaration that
it owed no duty to defend or indemnify Homanko in the underlying action.
After the close of pleadings, on January 8, 2018, PIRMA filed a motion
for judgment on the pleadings. Argument was held on April 26, 2018, and on
December 31, 2018, the trial court granted judgment on the pleadings in favor
-2- J-A22023-19
of PIRMA and against Homanko. Homanko timely filed a notice of appeal, and
both Homanko and the trial court complied with Pa.R.A.P. 1925.
On appeal, Homanko sets forth two issues for our review.
I. Whether the trial judge erred in granting [PIRMA’s] motion for judgment on the pleadings where the policy itself states that the exclusion shall not apply until it has been judicially determined that the member did commit such criminal act or violation, the words “judicially determined” are not defined in the policy, and the policy does not define if the exclusion applies to a plea agreement or whether the member must be adjudicated as guilty[.]
II. Whether the trial judge erred in granting [PIRMA’s] motion for judgment on the pleadings where the facts alleged in the underlying complaint, that the acts to be committed by [] Homanko sound in negligence and not any criminal act, as defined under the policy, would trigger an exclusion[.]
Homanko’s Brief at 4 (capitalization altered).
“Our scope and standard of review of the granting of a motion for
judgment on the pleadings is well-settled.” Rubin v. CBS Broad. Inc., 170
A.3d 560, 564 (Pa. Super. 2017).
Our scope of review on an appeal from the grant of judgment on the pleadings is plenary. Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that “after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. On appeal, we accept as true all well-pleaded allegations in the complaint.
-3- J-A22023-19
On appeal, our task is to determine whether the trial court’s ruling was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly be tried before a jury or by a judge sitting without a jury.
Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Moreover, in conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached to them. It may not consider inadmissible evidence in determining a motion for judgment on the pleadings. Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings.
Id. (internal citations omitted).
Following a review of the record and the briefs for the parties, we
conclude that the opinion of the Honorable Steven R. Serfass thoroughly
addresses Homanko’s issues. Specifically, we adopt the portions of the trial
court opinion setting forth the rule of law regarding contract interpretation,
see Trial Court Opinion, 3/27/2019, at 6-7, and the two issues set forth by
Homanko, see id. at 12 (concluding that judicially determined criminal acts
apply to both jury convictions and guilty pleas), and id. at 15-16 (concluding
that the criminal acts exclusion applies even where the underlying action
asserts a negligence claim). We discern no error of law on those issues. Nor
do we conclude that there are facts disclosed by the pleadings which should
be tried by a judge or jury. Therefore, we adopt the aforementioned portions
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of the trial court’s opinion of March 27, 2019, as our own, and affirm the order
of the trial court.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/19
____________________________________________ 1 The parties shall attach a copy of the trial court’s March 27, 2019 opinion to this memorandum in the event of further proceedings.
-5- Circulated 10/08/2019 10:24 AM
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CIVIL DIVISION
PENNSYLVANIA INTEGRATED RISK MANAGEMENT ASSOCIATION,
Plaintiff . .., ·,::�. v. No. 17-2151
STEVEN HOMANKO, BOROUGH OF NESQUEHONING, SEAN SMITH, and MICHAEL SAUERS, Individually and as the Administrator of the ESTATE OF CAROLA R. SAUERS,
Defendants
Brian J. Madden, Esquire Counsel for Plaintiff
Donald G. Karpowich, Esquire Counsel for Steven Homanko
Michael B. ·Kaspszyk, Esquire Counsel for Michael Sauers, Individually and as the Administrator of the Estate of Carola R. Sauers
MEMORANDUM OPINION
Serfass, J. - March 27, 2019
Steven Homanko (hereinafter "Homanko") and Michael Sauers
(hereinafter "Sauers") have taken this appeal from our order of
December 31, 2018, granting Pennsylvania Integrated Risk
Management Association (hereinafter "Plaintiff") a Declaration
that it has no duty to defend or indenmify Homanko in the
underlying matter of Michael Sauers & the Estate of Carola R.
Sauers v. Steven Homanko, et al., United States District Court for FS-6-19 1 the Middle District of Pennsylvania; Docket No. 3:16-CV-00811. We
file the following memorandum opinion pursuant to Pennsylvania
Rule of Appellate Procedure 192S(a) and recommend that the
aforesaid order be affirmed for the reasons set forth hereinafter.
FACTUAL AND PROCEDURAL HISTORY
On September 21, 2017, Plaintiff, Pennsylvania Integrated
Risk Management Association, filed a complaint against Defendants,
Steven Homanko, the Borough of Nesquehoning, Nesquehoning Chief of
Police Sean Smith, and Michael Sauers, individually and as the
administrator of the Estate of Carola R. Sauers, seeking a
declaratory judgment that Plaintiff need not defend or indemnify
Officer Homanko in the underlying action before the United States
District Court for the Middle District of Pennsylvania.
In the underlying action, Michael Sauers, individually and as
the administrator of the Estate of Carola R. Sauers, brought suit
against st even Homanko, Sean Smith, and the Borough of
Nesquehoning. That action arises out of a motor vehicle collision
wherein Officer Homanko, while acting within the scope of his
employment as a police officer for the Borough of Nesquehoning,
was traveling in excess of one hundred {100) miles per hour in
pursuit of a vehicle which Officer Homanko had observed committing
a summary traffic offense. Officer Homanko's collision with the
Sauers vehicle resulted in the death of Carola Sauers and multiple
personal injuries to Michael Sauers. Based upon his actions which FS-6-19 2 resulted in the collision, Officer Homanko was charged criminally
and subsequently pleaded guilty to Homicide by Vehicle, 75 Pa.
c.s.A. § 3732, Recklessly Endangering Another Person, 18 Pa. C.S.A.
§ 2705, Failure to Keep Right, 75 Pa. C.S.A. § 3301, and Careless
Driving, 75 Pa. C.S.A. § 3714.
Prior to the collision, the Borough of Nesquehoning entered
into a "Legal Defense and Claim Payment Agreement" with Plaintiff.
This agreement provides that Plaintiff will defend and indemnify
the Borough, including employees acting within the scope of their
employment, against any suit seeking damages, unless an act is not
covered by the agreement. The agreement explicitly excludes
criminal acts, which are defined as injury arising out of any
criminal act or violation of a penal statute. This exclusion does
not apply until it has been judicially determined that the employee
did commit such criminal act or violation.
On January 8, 2018, Plaintiff filed a motion for judgment on
the pleadings arguing that Plaintiff has no duty to defend or
indemnify Homanko under the agreement because Pennsylvania courts
have consistently upheld criminal act exclusion clauses, the
criminal acts need not be intentional for the exclusion to apply,
and it would be against well-established public policy to require
Plaintiff to defend Homanko for what has been deemed criminal
conduct.
FS-6-19 3 on February 12, 2018, counsel for Defendants Sauers and
Homanko filed briefs in response to Plaintiff's motion. Mr. Sauers
argued that Officer Homanko did not intentionally commit the
criminal acts, that the criminal acts exclusion is overly broad
such that it renders the agreement illusory, that the agreement is
ambiguous because the term "criminal acts" is not specifically
defined, and that the exclusion is against public policy. Officer
Homanko argued that the underlying litigation complaint sounds in
negligence and that the language "judicial determination" is
ambiguous. On March 19, 2018, Plaintiff filed replies to
Defendants' briefs. Thereafter, this Court heard argument on
Plaintiff's motion for judgment on the pleadings.
On December 31, 2018, this court granted Plaintiff's motion ! for judgment on the pleadings and entered a judgment that Plaintiff
has no duty to defend or indemnify Homanko in the underlying
litigation before the United States District Court for the Middle
District of Pennsylvania.
On January 21, 2019, Sauers filed a notice of appeal to the
Superior Court. On January 22, 2019, this Court entered an order
directing Sauers to file of record, within twenty-one (21) days,
a concise statement of the matters complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b). On January
28, 2019, Homanko also filed a notice of appeal to the Superior
Court. That same date, this Court entered an order directing FS-6-19 4 Homanko to file of record, within twenty-one (21) days, a concise
statement of the matters complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Sauers and
Homanko each filed a concise statement in accordance with our
orders on February 4, 2019, and February 14, 2019, respectively.
DISCUSSION
Sauers' concise statement is general as he avers that the
basis for our decision cannot be readily discerned. Sauers appears
to raise the following issues for review: (1) whether criminal
acts must be intentional to be excluded under the insurance policy;
(2) whether the criminal acts exclusion is ambiguous and overly
broad such that it renders the insurance policy illusory; {3)
whether the criminal acts exclusion is contrary to public policy;
and {4) whether the criminal acts exclusion is a violation of the
Pennsylvania Motor Vehicle Financial Responsibility Law.
Homanko raises the following issues for review: (1) whether
the phrase "judicially determined" is sufficiently clear on its
face without explicit definition in the contract; and (2) whether
the underlying negligence complaint triggers the criminal acts
exclusion in the contract. We will address each issue below.
First, we note the standard upon which this Court decided
Plaintiff's motion. Defendants challenge this Court1s order
granting a motion for judgment on the pleadings. A motion for
judgment on the pleadings is proper where the pleadings evidence FS-6-19 5 that there are no material facts in dispute such that a trial would
be unnecessary. Pennsylvania Financial Responsibility Assigned
Claims Plan v. English, 664 A.2d 84, 86 (Pa. 1995). In reviewing
such a motion, the trial court looks only to the pleadings and any
documents properly attached thereto. Id.
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.
Standard Venetian Blind Co. v. American Empire Insurance Co., 469
A.2d 563, 566 (Pa. 1983) (internal citations omitted). "When an
insurer seeks to deny coverage based upon an exclusion in the
policy, it is the insurer's burden to demonstrate that the
exclusion applies." Allstate Ins. Co. v. Brown, 834 F. Supp. 854,
857 (E.D. Pa. 1993). "The burden is on the insured, not the
insurer, to introduce evidence to show that the exclusion which
appears to be triggered does not apply after all. 11 Air Prod. &
Chemicals, Inc. v. Hartford Acc. & Indern. Co., 25 F.3d 177, 180
(3d Cir. 1994). In determining whether an insurer has a duty to
defend, the complaint claiming damages must be compared to the
policy and a determination made as to whether the insurer would be
FS-6-19 6 required to pay the resulting judgment if the allegations are
sustained. Gene1s Restaurant, Inc. v. Nationwide Insurance Co.,
548 A.2d 246, 246 (Pa. 1988). The particular cause of action that
a complainant pleads against an insured is not determinative of
whether the insurer's duties to defend and to indemnify have been
triggered, but rather it is necessary to look at the factual
allegations contained in the complaint. Mutual Benefit Insurance
Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999).
This Court found that Plaintiff demonstrated that the
exclusion applies and that Plaintiff has no duty to defend Homanko
in the underlying litigation. Having failed the more lenient duty-
to-defend test, Defendants cannot prove Plaintiff has a duty to
indemnify Officer Homanko. See Erie Insurance Exchange v.
Claypoole, 158, 673 A.2d 348, 356 n.3 (Pa.Super. 1996) ("As the
duty to defend is broader than the duty to indemnify, [plaintiff)
could not be required to indemnify [defendant] without also being
obligated to defend him.").
Further, after Plaintiff demonstrated that the criminal acts
exclusion contained in the insurance policy applies to Homanko,
the burden shifted to Defendants to introduce evidence to show
that the exclusion which appears to be triggered does not apply
after all. This Court found that Defendants failed to prove that
the exclusion is inapplicable. The commission of the criminal acts
to which Homanko pleaded guilty precludes coverage under the FS-6-19 7 criminal acts exclusion of the policy regardless of whether he
acted negligently or intentionally. Moreover, there is no dispute
as to any material fact regarding whether Officer Homanko's acts
were negligent or intentional because that fact is immaterial based
on the terms of the exclusion itself. Thus, we were constrained to
grant the Plaintiff's motion and find that Plaintiff has no duty
to defend or indemnify Homanko in the underlying litigation now
pending in federal court.
I. The insurance policy does not require that criminal acts
be intentional to be excluded from coverage
Sauers argues that criminal acts committed by Homanko must be
intentional to be excluded from coverage under the insurance
policy. The insurance policy specifically provides that criminal
acts will be excluded from coverage and defines criminal acts as
follows:
D. CRIMINAL ACTS meaning injury arising out of any criminal act or violation of a penal statute or ordinance committed by the member or with the member's consent or knowledge. The exclusion shall not apply until it has been judicially determined that the member did commit such criminal act or violation.
There is no indication within the language of the policy that the
criminal acts must be intentional. The language "criminal act" is
sufficiently clear on its face. See Nationwide Property & Casualty
Insurance Co. v. Schlick, No. 1909 WDA 2013, 2014 WL 10750738, at
FS-6-19 8 *4 (Pa. Super. Dec. 18, 2 o 14) (" [W] e discern no support in the
language of the exclusion or the Policy for Appellant's contention
that an 'act ... which is criminal in nature' should be limited to
acts intending to cause harm. The phrase 'an act which is
criminal in nature' is sufficiently clear on its face."). Further,
Pennsylvania courts have upheld criminal acts exclusions without
"intentional", "purposeful", or "willful" requirements. See
Allstate Ins. Co. v. Williams, No. CIV.A. 13-3048, 2014 WL 4682022
(E.D. Pa. Sept. 22, 2014).
In this case, Homanko pleaded guilty to the criminal offenses
of Homicide by Vehicle 75 Pa. C.S.A. § 3732, Recklessly Endangering
Another Person 18 Pa. C.S.A. § 2705, Failure to Keep Right 75 Pa.
C.S.A. § 3301, and Careless Driving 75 Pa. C.S.A. § 3714. His
criminal actions resulted in the death of Mrs. Sauers and the
injuries sustained by Mr. Sauers. "Tautological as it sounds, acts
that violate the Commonwealth's Criminal Code are by definition
criminal acts." Id. at *4 (internal citations omitted).
Therefore, criminal acts need not be intentional to be
excluded from coverage under the insurance policy.
II. The criminal acts exclusion is not overly broad or
ambiguous
Next, Sauers argues that the criminal acts exclusion is overly
broad and ambiguous such that it renders the insurance policy
illusory. We disagree. FS-6-19 9 Sauers' argument that "criminal acts" is not defined within
the definition section of the insurance policy is without merit as
the policy clearly and conspicuously defines "criminal acts" as
provided above.
Sauers argues that the criminal acts exclusion is overly broad
such that any criminal conduct, no matter how minor, would trigger
the exclusion. In support of his position, Sauers cites Board of
Public Education v. National Union Fire Insurance Co. of
Pittsburgh, 709 A.2d 910 (Pa.Super. 1998), where the Superior Court
found that a criminal acts exclusion was overly broad. However,
Sauers fails to note that the insurance company in that case was
seeking to exclude coverage not for the criminal actor, who was a
volunteer not covered by the insurance policy, but for the school
district and supervising employees. That is not the case here.
Plaintiff does not dispute its duty to defend and indemnify the
Borough of Nesquehoning and Chief Sean Smith. Plaintiff only seeks
to exclude the employee who committed the criminal act which
resulted in the injuries to Mr. and Mrs. Sauers as provided in the
agreement. Further, the language of the criminal acts exclusion in
this case is far less broad. Compare id. at 912 ("This policy does
not apply . to any claim involving allegations of . . . criminal
acts") .
FS-6-19 10 Sauers also argues that the policy covers injuries for acts
that are criminal in nature while also excluding coverage for those
same criminal acts resulting in an internally inconsistent and
illusory policy. The policy defines "injury" as follows:
Injury means: A. harm, including sickness or disease, to the physical health of any person, including resulting death; B. harm arising out of libel, slander, defamation of character, mental injury, anguish, shock or humiliation, including sexual abuse, harassment, molestation, corporal punishment or an invasion of an individual's right of privacy or control over their physical or mental properties. C. harm arising out of assault and battery, improper detention, false arrest, false imprisonment, malicious prosecution, false or improper service of process; D. harm arising out of wrongful entry, eviction or other invasion of the right of privacy or public occupancy; E. violation of rights as protected by civil rights statutes; F. unauthorized use of any advertising idea, material slogan, style, or title of others in your advertising; or G. property damage.
While "injury" does include coverage for numerous acts which
are criminal in nature, the "criminal acts" exclusion only applies
when an insured has been convicted of a crime and that crime
resulted in the injury for which a third party is seeking damages.
Thus, coverage would not be excluded if there were merely an
allegation of one of the crimes listed under the injury definition,
if an insured had been found not guilty, or if the crime was
unrelated to the injury.
FS-6-19 11 Finally, Homanko argues that the phrase "judicially
determined" within the "criminal acts" definition is not defined
and, thus, makes it unclear whether the exclusion includes guilty
pleas or just guilty verdicts. Under Pennsylvania law, a conviction
from a guilty plea is equivalent to a conviction from a trial-by-
jury because a guilty plea constitutes an admission to all facts
alleged in the indictment. M.B. ex rel. T.B. v. City of
Philadelphia, 128 F. App•x 217, 225-26 (3d Cir. 2005) (citing
Commonwealth, Department of Transportation v. Mitchell, 535 A.2d
581, 585 (Pa. 1987)). Thus, the language "judicially determined"
is sufficiently clear on its face and includes both guilty pleas
and guilty verdicts.
The criminal acts exclusion is neither overly broad nor
ambiguous. It is not overly broad because it limits the exclusion
to only those instances where the criminal act results in the
injury for which the actor has been sued. Additionally, the plain
meaning of the language "until it has been judicially determined
that the member did commit such criminal act or violation" is that
the actor must have been convicted of that criminal act in a court
of law, which further limits the scope of the exclusion. As stated
above, a plea of guilty and a verdict of guilty are both judicial
determinations that a person has committed a crime. When read as
a whole, the insurance policy is consistent, unambiguous, and
neither illusory nor overly broad. FS-6-19 12 III. Criminal. acts excl.usions are in accordance with public
policy
Sauers also argues that the criminal acts exclusion in this
insurance policy violates Pennsylvania public policy. We disagree.
Criminal acts exclusions seek to prevent an insurer from defending
a person for what has already been deemed criminal conduct in
violation of Pennsylvania public policy. See Federal Insurance Co.
v. Potamkin, 961 F. Supp. 109, 113 (E.D. Pa. 1997); Germantown
Insurance Company v. Martin, 595 A.2d 1172, 1175 (Pa.Super. 1991)
("The courts of Pennsylvania have refused to require an insurer to
defend an insured for his own intentional torts and/or criminal
acts."). Thus, it would be against Pennsylvania public policy to
require Plaintiff to defend Homanko for what has already been
deemed criminal conduct by virtue of his guilty plea.
IV. The criminal acts exclusion is not in violation of the
Pennsylvania Motor Vehicl.e Financial. Responsibil.ity Law
Finally, Sauers argues that the criminal acts exclusion
violates the Motor Vehicle Financial Responsibility Law ("MVFRL").
75 Pa. C.S.A. § 1701 et seq.
Under the MVFRL, the vehicle's owner is responsible for
maintaining financial responsibility for the vehicle. 75 Pa.
C. S .A. § 1786. "It is the vehicle that is covered by the automobile
policy, while an individual is covered only by nature of his
function as the driver of that vehicle." Lebanon Coach Co. v. FS-6-19 13 Carolina Cas. Ins. Co., 675 A.2d 279, 284 (Pa.Super. 1996). The
MVFRL does not provide that an insurer must defend and indemnify
a driver even if that driver commits a crime while driving. An
insurer's duty to defend is a distinct obligation, different from
and broader than its duty to provide coverage. Id. at 286. Indeed,
the MVFRL itself excludes benefits for any insured who is injured
during the commission of a felony. 75 Pa. C.S.A. § 1718(a) (2).
Sauers argues that the criminal acts exclusion violates
public policy and the purpose of the MVFRL as stated in Donegal
Mutual Insurance Company v. Long,
The purpose of the Motor Vehicle Responsibility Law is to require owners of registered vehicles to be financially responsible .... Victims of accidents with rental vehicles might [as a result of the coverage exclusion] find themselves without recourse to compensation for their injuries, or perhaps only to the extent of their own uninsured motorist coverage, absent the fortuity that the driver of the rental vehicle is covered by other insurance or possesses sufficient assets for compensation. The public policy enunciated by the Motor Vehicle Financial Responsibility Law, pursuant to its 1985 provisions, is to foster financial responsibility for damages caused to individuals on the roadways, not to promote uninsurance.
564 A.2d 937, 943-44 (Pa.Super. 1989).
Here, there is no risk that the subject insurance agreement
will leave an injured third party without recourse. The insured is
the Borough of Nesquehoning, and it maintains financial
responsibility for its vehicles through the subject insurance
policy in compliance with the MVFRL. Nesquehoning itself cannot be
FS-6-19 14 excluded from coverage under the criminal acts exclusion as a
municipality cannot be convicted of a crime.
Therefore, the criminal acts exclusion does not violate the
purpose or the text of the MVFRL.
v. Though the underlying complaint lies in negligence, it has
been judicially determined that Homanko' s actions were
cri.mina1 acts as defined in the insurance policy contract
Homanko argues that, because the underlying action sounds in
negligence, the criminal acts exclusion would not trigger.
However, as stated above, the particular cause of action that
a complainant pleads against an insured is not determinative of
whether the insurer's duties to defend and to indemnify have been
allegations contained in the complaint. Mutual Benefit Insurance
Co. v. Haver, 725 A.2d at 745. The complaint provides that Homanko
pleaded guilty to the criminal offenses of Homicide by Vehicle 75
Pa. C.S.A. § 3732, Recklessly Endangering Another Person 18 Pa.
C.S.A. s 2705, Failure to Keep Right 75 Pa. C.S.A. § 3301, and
Careless Driving 75 Pa. c.s.A. § 3714. Those criminal actions
resulted in the injury to Mr. and Mrs. Sauers, including the death
of Mrs. Sauers, for which the underlying complaint was brought.
Therefore, the criminal acts exclusion as provided in the insurance
policy applies, and Plaintiff need not defend or indenmify Homanko
FS-6-19 15 in the action before the United States District Court for the
Middle District of Pennsylvania.
CONCLUSION
For the reasons set forth hereinabove, we respectfully
recommend that the instant appeal be denied and that our order of
December 31, 2018, be affirmed accordingly.
BY THE COURT:
Steven R. Serfass, J.
FS-6-19 16