Scopel v. Donegal Mutual Insurance

698 A.2d 602, 1997 Pa. Super. LEXIS 2180
CourtSuperior Court of Pennsylvania
DecidedJuly 25, 1997
StatusPublished
Cited by70 cases

This text of 698 A.2d 602 (Scopel v. Donegal Mutual Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scopel v. Donegal Mutual Insurance, 698 A.2d 602, 1997 Pa. Super. LEXIS 2180 (Pa. Ct. App. 1997).

Opinions

OLSZEWSKI, Judge.

In July of 1990, Darren Scopel was accosted and severely beaten by Gregory Shankle and two of his cohorts. This unprovoked attack, which resulted in extensive injuries to Scopel, prompted Scopel and his parents to file a civil lawsuit against the unruly threesome. In the underlying complaint supporting the suit, the Scopels alleged that Shankle willfully, maliciously and intentionally assaulted Darren Scopel; no averment was made that Shankle’s actions were the result of reckless or negligent behavior. Both compensatory and punitive damages were sought.

At the time of this unfortunate attack, Shankle was insured under a homeowners’ insurance policy issued by Donegal Mutual Insurance Company to Shankle’s parents. In addition to protecting against loss or damage to personal property, the policy provided $100,000 in personal liability insurance for, inter alia, bodily injuries to third persons accidentally caused by an insured.

Based upon the averments contained in the Scopels’ complaint, Donegal refused to defend and/or indemnify Shankle. In denying coverage, Donegal issued a reservation of rights letter, in which it justified its refusal to cover Shankle based upon the fact that the beating was intentional and, thus, not within the purview of the policy. Specifically, Done-gal stated that two policy provisions supported its belief that Shankle was not contractually deserving of a defense. First, the insurer claimed that the assault did not constitute an “occurrence” within the meaning of the policy because the incident was not accidental.1 Additionally, because the injuries were intended by the accused insured, Done-gal stated that the policy’s intentional acts [604]*604exclusion precluded coverage.2

Shankle then retained private counsel and proceeded to defend against the Seopels’ suit. In the spring of 1993, the Seopels deposed several witnesses to the beating as well as Shankle’s lawless compatriots of that fateful afternoon. As a whole, the deposition testimony established that Shankle and his friends had been drinking during the hours just prior to the attack and had accosted another man earlier that afternoon.

These depositions, however, were never filed and made a part of the official record. Moreover, although the deposition testimony put the Seopels on notice that they potentially had a cause of action sounding in negligence and/or recklessness, the original complaint was never amended to excise or modify the intentional and malicious flavor of the averments.

Two years thereafter, in June of 1995, the parties reached a settlement whereby, in exchange for a full and final release of the claim against him, Shankle agreed to the entry of a $100,000 consent judgment. Additionally, Shankle executed an assignment of his insurance policy rights in favor of the Seopels.

On October 23, 1995, the Seopels, as assignees of Shankle’s insurance policy, filed a praecipe for a writ of summons against Donegal, thereby commencing the instant action. In their subsequent complaint, the Sco-pels averred that, by virtue of its denial of coverage, Donegal breached its contract with Shankle.

Donegal denied all liability and, in August of 1996, filed a motion for summary judgment in which it contended that its denial of coverage was proper because the complaint in the underlying action solely averred intentional tortious conduct for which the insured was not covered. In their brief in opposition to Donegal’s motion, the Seopels admitted that Donegal did not initially have a duty to defend Shankle because the complaint’s allegations did not fall within the policy’s pur-views. Seopels’ brief in opposition to motion for summary judgment at 7; R.R. at 115.

The Seopels argued, however, that such a duty arose in 1993, two years after commencement of the underlying action, when deposition testimony revealed that Shankle may have been intoxicated during the assault and, thus, have acted without the requisite intent. Id. Further, acknowledging that an insurer’s duty to defend is triggered when a complaint comprehends an injury potentially within the scope of the policy, and that the underlying complaint against Shankle was never amended to negate or modify its intentional character, the Seopels asked the court to extend the existing law to allow an insurer’s duty to be triggered where “evidence gleaned during the course of the action indicates the presence of a viable claim that would be within the scope of the policy.” Id. at 8; 116. In support of its argument that Donegal owed Shankle a duty to defend and indemnify in the underlying action, the Sco-pels attached to their brief in opposition the four unfiled 1993 depositions, all of which contained information relating to Shankle’s intoxicated state on the day of the assault.

On September 25,1996, the Honorable Edwin J. Snyder granted Donegal’s motion for summary judgment. In so doing, the court held that the Seopels’ failure to amend their original, underlying, complaint was fatal to their present claim. Donegal, the court reasoned, was never put on notice that the Sco-pels were pursuing an alternative or additional theory of relief that was potentially within the confines of the policy.

In their instant appeal, the Seopels argue that the lower court erred in finding that the underlying, unamended, complaint did not state a claim potentially within the parameters of the insured’s policy. As an alternative, the Seopels reassert their argument that Donegal’s duty to defend Shankle arose after the discovery evidence revealed the possibili[605]*605ty that Shankle acted negligently or recklessly.

Conversely, Donegal argues that, in determining whether an insurer must defend and/or indemnify a policyholder, the four corners of the complaint control. That is, the depositions relied upon by the Seopels, even if properly filed, were irrelevant because the information contained therein was not utilized to amend the original complaint. Therefore, Donegal contends, it did not have a duty to defend and/or indemnify Shankle.

When reviewing the propriety of a trial court’s order granting summary judgment, we must view the record in the light most favorable to the adverse party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Because an order favorable to the moving party will prematurely end an action, summary judgment is only appropriate in the clearest of cases. See, e.g., Skipworth v. Lead Industries Assoc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997); Kingston Coal Co. v. Felton Mining Co., Inc. 456 Pa.Super. 270, 277, 690 A.2d 284, 287 (1997).

It is well-established that an insurer’s duty to defend is more encompassing than the duty to indemnify. See, e.g., Erie Insurance Co. v. Claypoole, 449 Pa.Super. 142, 154-56, 673 A.2d 348, 355 (1996); Antrim Mining, Inc. v. Pennsylvania Insurance Guaranty Assoc., 436 Pa.Super. 522, 527-29, 648 A.2d 532, 535 (1994).

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Cite This Page — Counsel Stack

Bluebook (online)
698 A.2d 602, 1997 Pa. Super. LEXIS 2180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scopel-v-donegal-mutual-insurance-pasuperct-1997.