Pennsylvania Court Holds That Violent Acts Are Not Lethal To The Duty To Defend
Pennsylvania’s highest court recently rejected Erie Insurance Exchange’s argument that it had no duty to defend a claim arising out of a shooting because it did not involve an accident, and therefore, there was no “occurrence” under the policy. The court held that the duty to defend was triggered because the underlying allegations were not “patently outside the policy coverage.” This decision can have far reaching effects on other kinds of claims involving intentional conduct.
In his complaint, Richard Carly alleged that he had gone to see his girlfriend, Terry McCutcheon, on the evening of September 26, 2013 after she unexpectedly hung up on him. Harold McCutcheon, her ex-husband, had left a note for his children saying that he intended to kill his ex-wife and then himself. When Carly arrived at the house, McCutcheon had already fatally shot his ex-wife. McCutcheon then began a physical altercation with Carly and McCutcheon’s gun went off several times, wounding Carly in the face, before McCutcheon killed himself. In February 2014, Carly sued McCutcheon’s estate, alleging that McCutcheon had “negligently, carelessly, and recklessly” shot him.
In the resulting coverage action, Erie argued that Carly’s injuries were not covered by McCutcheon’s homeowner’s and personal catastrophe policies because the incident did not constitute an occurrence and because the policies contained exclusions for injury that was “expected or intended” by the insured. The trial court sided with Erie, finding that McCutcheon clearly intended to injure Carly during the encounter. In November 2017, the Pennsylvania Superior Court reversed the lower court’s decision and rejected Erie’s arguments that Carly was trying to make the shooting sound like an accident through an “artful pleading” describing his injuries as “wholly, directly and proximately caused by [McCutcheon’s] negligence, carelessness and recklessness.” In April 2020, the Pennsylvania Supreme Court affirmed the Superior Court’s ruling, finding that if Carly’s allegations were taken as true, they presented 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.”
In its 4-3 majority opinion, Pennsylvania’s highest court noted that although it was clear that McCutcheon intended to kill his ex-wife and himself, the allegations of the complaint were “not clear about McCutcheon’s intentions with respect to Carly.” Based on this lack of clarity, the court held that it was possible the shooting was accidental and this possibility was sufficient to trigger Erie’s duty to defend.
As Hunton Andrews Kurth partner Syed Ahmad commented to Law360, the ruling “illustrates that when determining if there is a duty to defend, the allegations matter. And they matter a great deal. The complaint made clear that the shooting and the resulting injuries could have been accidental. While that may not have been very likely, likelihood is not the test.” Going forward, the McCutcheon decision can provide additional support for the duty to defend in cases where intentional conduct is alleged but the conduct leads to an arguably unforeseen outcome.