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Volume X, Number 190

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Pennsylvania Supreme Court Finds Insurer Must Defend Against Allegations of ‘Accidental’ Altercation During Murder-Suicide

In an exception to the COVID-19-related news that has dominated recent headlines, the Pennsylvania Supreme Court recently ruled in favor of an insured contending that its insurance carrier must provide defense and potential indemnification against claims of a man who was shot while intervening in a murder-suicide. The underlying case, Erie Insurance Exchange v. Moore, was filed in Washington County. The insurer sought a declaration that it owed no duty to defend or indemnify the estate of Harold McCutcheon. McCutcheon, the homeowner insured, shot his ex-wife, her boyfriend, and himself in September of 2013, killing himself and his former spouse during an altercation at her home. The boyfriend, Richard Carly, then filed a complaint against the insured’s estate, alleging that the insured had shot the boyfriend accidentally while they were struggling over control of the weapon in the ex-wife’s home. The insured’s estate sought defense and indemnity under the insured’s homeowners insurance policy. 

The homeowners policy defined a covered occurrence as “an accident including continuous or repeated exposure to the same general harmful conditions.” The trial court initially ruled in favor of the insurer, finding that the shooting did not fit the definition of accidental and therefore the shooting could not be covered under the policy and the insurer owed no duty to defend the estate against the boyfriend’s claims. 

However, the Superior Court reversed the trial court’s decision in November 2017, holding that the facts alleged in the boyfriend’s complaint would fit the definition of an accident laid out in the policy, and therefore coverage was not clearly precluded and the insurer did owe the insured’s estate a duty of defense. The Supreme Court affirmed the Superior Court’s decision 4-3. 

The majority opinion, written by Justice Dougherty, found the insurer’s argument that the shooting was intentional and therefore could not be an accident to be disingenuous, noting that such a shooting is distinguishable from damages incurred through a fistfight. Along those lines, the court noted that the insured intended to kill his ex-wife and himself, but did not expect the boyfriend to arrive at the house and interrupt the attack. The policy’s exclusion for bodily injury “expected or intended” by the insured is sufficiently ambiguous, according to the opinion, to be construed in favor of the insured.

The case was heavily briefed by a number of amici curiae, who argued that finding a duty to defend in this instance would encourage criminal behavior. The court specifically rejected this argument as “beside the point,” because the boyfriend’s complaint alleges that the shooting was an accident. This allegation, if proven, could trigger coverage and therefore the insurer owed a duty to defend the insured’s estate against the claims of the boyfriend. 

The dissent, written by Justice Mundy, disagreed with the majority and argued that this type of harm is exactly that which should be excluded under homeowners policies, stating that “artful pleadings cannot form the basis of imposing a duty to defend.” Although only time can ultimately reveal the full implications of this decision, the Court may have opened the door to similar claims under other homeowners policies with similar language.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 150


About this Author

Nicole Wixted, Drinker Biddle Law Firm, Philadelphia, Insurance and Litigation Law Attorney

Nicole C. Wixted represents clients in litigation matters in state and federal trial courts nationwide. Nicole advises and represents life insurers, property & casualty insurers, and brokerage general agencies on a broad range of issues including the secondary market for life insurance, stranger-originated life insurance (STOLI), premium financing, fraud, coverage, claims handling practices, market conduct and compliance, construction defects, product liability and premises liability. Nicole also evaluates issues relating to the issuance of insurance...

Erin M. Turner Counsel general liability, professional liability and D&O

Erin Turner helps insurance companies weather complex coverage litigation and disputes involving general liability, professional liability and D&O insurance policies. She protects them against claims of bad faith and extra-contractual liability under primary, umbrella and excess general liability policies, and she steers clients through rough waters in court at both the trial and appellate levels.

Erin recognizes that litigation is often the ripple effect of existing vulnerabilities, and she counsels insurance companies on how to avoid it. She advises on the terms and limits of liability under general liability, professional liability and D&O insurance policies for a variety of matters, including:

  • Claims of sexual abuse
  • Construction defects
  • Securities claims
  • Copyright and trademark infringement
  • Telephone Consumer Protection Act (TCPA) violations
  • U.S. Securities and Exchange Commission (SEC) investigations

She also serves as monitoring counsel in such matters, analyzing underlying claims and advising on aspects of defense and settlement.


General Litigation

In addition to her insurance coverage practice, Erin defends clients in litigation involving personal injuries at theme parks, allegations of defective consumer products and copyright infringement.

Afton J. Paris Associate Philadelphia life insurance litigation

Afton Paris advises insurance industry clients in the area of life insurance litigation.