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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATIONWIDE PROPERTY AND CASUALTY : IN THE SUPERIOR COURT OF
INSURANCE COMPANY, : PENNSYLVANIA
:
v. :
:
JOHN S. SCHLICK, JON R. SCHLICK, :
DENISE L. SCHLICK, AND TAMMY :
BULGER, ADMINISTRATRIX OF THE :
ESTATE OF MARSHALL D. CURL :
:
APPEAL OF: TAMMY BULGER, :
ADMINISTRATRIX OF THE ESTATE OF :
MARSHALL D. CURL : No. 1909 WDA 2013
Appeal from the Judgment Entered November 22, 2013
In the Court of Common Pleas of Erie County
Civil Division No(s).: 10553-2013
BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2014
Appellant, Tammy Bulger, administratrix of the estate of Marshall D.
Curl (“decedent”), appeals from the order of the Erie County Court of
Common Pleas entering summary judgment in favor of Appellee, Nationwide
Property Casualty Insurance Company. Appellant asserts the trial court
erred in concluding that a “criminal acts” exclusion in Appellee’s
homeowner’s policy barred coverage for her potential claims against John S.,
*
Former Justice specially assigned to the Superior Court.
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Jon R., and Denise L. Schlick (“John S.,” “Jon R.,” and “Denise L.,”
respectively, “Schlicks,” collectively).1 We affirm.
At the times relevant to this appeal, Appellee issued a homeowners
policy (“Policy”) to Jon R., under which Jon R.’s wife, Denise L., and their
son, John S. were also insured. On September 18, 2012, John S., shot and
killed the decedent, who was a visiting the Schlick’s home.2 The firearm
involved in that incident belonged to Jon R. The Commonwealth charged
John S. with, inter alia, involuntary manslaughter. On February 4, 2013,
John S. pleaded guilty to that charge and was sentenced to a term of
incarceration.
Meanwhile, Appellant was appointed administratrix of the decedent’s
estate and submitted a claim under the Policy. The Schlicks also requested
coverage under the Policy if Appellant filed an action against them.
1
The Schlicks, who were named as codefendants in Appellee’s action for
declaratory judgment, submitted a letter advising this Court that they intend
to join in the brief filed by Appellant. However, there is no record evidence
that the Schlicks filed a notice of appeal.
2
In their motion for summary judgment, Appellee referred to John S. as an
adult who resided with his parents. Appellant did not challenge that
characterization of John S.
We also note we have gleaned the above summary of the events from
the pleadings in this case. None of the parties described the specific
relationship between the decedent and the Schlicks.
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On March 4, 2013, Appellee filed a complaint for declaratory judgment
against Appellant and the Schlicks. According to Appellee, all possible claims
for the incident would fall under Coverage E or F of the Policy, which stated:
COVERAGE E — PERSONAL LIABILITY
We will pay damages an insured is legally obligated to
pay due to an occurrence resulting from negligent personal
acts . . . .
* * *
COVERAGE F — MEDICAL PAYMENTS TO OTHERS
We will pay the necessary medical and funeral
expenses incurred within three years after an accident
causing bodily injury. . . . This coverage applies as
follows:
1. to a person on the insured location with consent
of an insured
Appellee’s Compl., 3/4/13, ¶¶ 20, 22 (quoting Policy at G1-G2). However,
Appellee asserted all potential claims were barred by the Policy’s “criminal
acts” exclusion, which stated:
1. Coverage E — Personal Liability and Coverage F —
Medical Payments to Others do not apply to bodily injury
or property damage:
* * *
b) caused by or resulting from an act or omission
which is criminal in nature and committed by an
insured
This exclusion 1.b) applies regardless of whether the
insured is actually charged with, or convicted of a
crime.
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Id. at ¶ 23 (quoting Policy at H1) (bold in original, bold and italics added for
emphasis).
Appellant filed an answer and new matter admitting “John S. Schlick
engaged in negligent and reckless conduct” that constituted a crime.
Appellant’s Answer & New Matter, 4/15/13, at ¶ 27. Nevertheless, she
asserted the Policy provided coverage. Id. at ¶¶ 29, 33.
The parties subsequently filed the following motions: Appellant’s July
25, 2013 motion for judgment on the pleadings; Appellee’s July 31st motion
for summary judgment; and the Schlicks’ August 12th motion for judgment
on the pleadings.3 The trial court, on November 22, 2013, granted
Appellant’s motion for summary judgment and denied Appellant’s and the
Schlicks’ motions for judgment on the pleadings. In its accompanying
opinion, the court concluded that the criminal acts exclusion applied to each
of the Schlicks and that Appellee had no duty to indemnify or defend claims
based on the shooting of the decedent. Trial Court Op., 11/22/13, at 5, 8.
Appellant filed a timely notice of appeal. The trial court did not order
the filing of a Pa.R.A.P. 1925(b) statement.
Appellant presents the following questions on appeal:
Whether the accidental shooting of [the decedent] by John
S. Schlick constituted an occurrence as defined by
[Appellee’s] Homeowner’s Policy?
3
The Schlicks filed their answer to the complaint on July 29, 2013, denying
Appellee’s claim that no coverage was due.
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Whether the crimes to which John S. Schlick pled guilty fall
within the criminal acts exclusion of [Appellee’s]
Homeowner’s Policy?
Whether the criminal acts exclusion of [Appellee’s]
Homeowner’s Policy bars coverage under the policy of Jon
R. Schlick and Denise L. Schlick?
Appellant’s Brief at 5.4
Our review of an order granting a motion for summary judgment is as
follows.
We view the record[5] in the light most favorable to the
nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered. Our scope of review of a trial
court’s order granting or denying summary judgment is
4
In the trial court, Appellant also argued that Appellee’s declaratory
judgment action was “premature” because she had yet to file a complaint
against the Schlicks. See Appellant’s Answer & New Matter at ¶ 38. In this
Court, Appellant has not argued that the present action was premature or
that the trial court erred in failing to consider whether Appellee had a duty to
defend.
5
Pennsylvania Rule of Civil Procedure 1035.2 permits a party to move for
summary judgment “[a]fter relevant pleadings are closed ” and “whenever
there is no genuine issue of any material fact as to a necessary element of
the cause of action or defense which could be established by additional
discovery or expert report[.]” Pa.R.C.P. 1035.2(1).
Because Appellee filed its motion for summary judgment after the
close of pleadings, but before the taking of discovery, the record before this
Court consists of the pleadings only. See Pa.R.C.P. 1035.1 (defining
“record” for purposes of summary judgment as including any pleadings,
depositions, answers to interrogatories, admissions, and affidavits, and
signed expert reports).
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plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established
that the court committed an error of law or abused its
discretion.
State Farm Fire & Cas. Co. v. DeCoster, 67 A.3d 40, 45 (Pa. Super.
2013) (citation omitted).
[T]he interpretation of an insurance contract regarding the
existence or non-existence of coverage is generally
performed by the court. The interpretation of an insurance
contract is a question of law, our standard of review is de
novo, thus, we need not defer to the findings of the lower
tribunals. . . . Our purpose in interpreting insurance
contracts is to ascertain the intent of the parties as
manifested by the terms used in the written insurance
policy. When the language of the policy is clear and
unambiguous, we must give effect to that language.
However, when a provision in the policy is ambiguous, the
policy is to be construed in favor of the insured to further
the contracts prime purpose of indemnification and against
the insurer, as the insurer drafts the policy and controls
coverage.
Donegal Mut. Ins. Co. v Baumhammers, 938 A.2d 286, 290-91 (Pa.
2007) (citations and quotation marks omitted).
“Words of ‘common usage’ in an insurance policy are to be construed
in their natural, plain, and ordinary sense, and a court may inform its
understanding of these terms by considering their dictionary definitions.”
Allstate Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1172 (Pa. Super.
2011). “[C]ontractual terms are ambiguous if they are subject to more than
one reasonable interpretation when applied to a particular set of facts.”
Spece v. Erie Ins. Group, 850 A.2d 679, 682 (Pa. Super. 2004) (citation
omitted). However, “[a] court cannot torture the [policy] language to create
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ambiguities where none exist.” Swarner v. Mut. Benefit Group, 72 A.3d
641, 645 (Pa. Super. 2013) (citations and quotation marks omitted), appeal
denied, 85 A.3d 484 (Pa. 2013).
“Exclusionary clauses generally are strictly construed against the
insurer and in favor of the insured.” Id. “[A]n exclusion from liability must
be clear and exact in order to be given effect.” Prudential Prop. & Cas.
Ins. Co. v. Sartno, 903 A.2d 1170, 1177 (Pa. 2006). The insurer bears
the burden of establishing an exclusion applies. Spece, 850 A.2d at 682.
In the instant case, there is no dispute in this appeal that John S., Jon
R., and Denise L. were insured under the Policy.6 Additionally, the
decedent’s death constituted “bodily injury” that occurred on the covered
premises within the meaning of the Policy. See Policy at G1. We also
presume the decedent was on the premises with the consent of the Schlicks.
Appellant first argues the shooting of the decedent constituted an
accident or occurrence under the Policy. Appellee does not dispute this
contention, but asserts that even if coverage was triggered by an accident or
occurrence, the criminal acts exclusion barred recovery under the Policy.
Accordingly, we will presume, without deciding, that the events leading to
the decedent’s death constituted an accident or occurrence triggering the
possibility of coverage.
6
The Policy stated “INSURED” means “you [the named insured, Jon R.
Schlick] and the following persons if residents of your household at the
residence premises: . . . a) your relatives[.]” Policy at G1.
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Appellant next argues John S.’s actions did not trigger the criminal
acts exception. She acknowledges the Policy bars coverage for bodily injury
“caused by or resulting from an act or omission which is criminal in nature
and committed by an insured.” See Policy at H1. Nevertheless, she
suggests the phrase, “an act . . . which is criminal in nature,” only applies to
intentional acts. In support, she asks this Court to adopt the reasoning and
policy considerations in Swift v. Fitchburg Mut. Ins. Co., 700 N.E.2d 288
(Mass. App. Ct., 1998), and Tower Ins. Co. v. Judge, 840 F.Supp. 679 (D.
Minn. 1993). No relief is due.
Instantly, the criminal acts exclusion employs the phrase “an act. . .
which is criminal in nature.” Webster’s Dictionary defines “criminal” as:
1 : relating to, involving, or being a crime . . . 2 :
relating to crime or to the prosecution of crime . . . 3 :
guilty of a crime; also : of or befitting a criminal . . . 4.
DISGRACEFUL[.]”
Webster’s Ninth New Collegiate Dictionary (1987) at 307. Under the Policy,
the nature of the act triggering the exclusion is not otherwise qualified.
Additionally, the Policy contained a separate intentional acts exclusion, which
bars coverage for bodily injury “by an act intending to cause harm done by
or at the direction of any insured.”7 Policy at H1.
Following our review, we discern no support in the language of the
exclusion or the Policy for Appellant’s contention that an “act . . . which is
7
The intentional acts exclusion was listed on the same page of the Policy,
immediately before the criminal acts exclusion.
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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. Under the circumstances of this case—i.e., where John S. admitted he
caused the decedent’s death by “recklessly”8 pointing a loaded firearm at the
decedent and having the firearm discharge—we conclude John S.’s acts were
criminal in nature, even if he did not intend to cause bodily injury.
Moreover, because we agree with the trial court that the language of the
exclusion is unambiguous, we discern no basis to read ambiguity into the
Policy by relying on the foreign law cited by Appellant. See Swarner, 72
A.3d at 645. Thus, we detect no error in the trial court’s determination that
the criminal acts exclusion barred coverage for John S.
Appellant, in her third argument, asserts the trial court erred in
concluding that Appellee’s policy excluded coverage for John S.’s parents,
Jon R. and Denise L. In support, Appellant suggests the term “an insured,”
8
“Recklessly,” for the purposes of involuntary manslaughter, is defined as
follows:
A person acts recklessly with respect to a material element
of an offense when he consciously disregards a substantial
and unjustifiable risk that the material element exists or
will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and intent
of the actor’s conduct and the circumstances known to
him, its disregard involves a gross deviation from the
standard of conduct that a reasonable person would
observe in the actor’s situation.
Commonwealth v. Huggins, 839 A.2d 862, 868-69 (Pa. 2003) (quoting 18
Pa.C.S. § 302).
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as used in the criminal acts exclusion, is ambiguous because Appellee more
clearly excluded coverage for “all insureds” in other sections of the Policy.9
She thus argues the criminal acts exclusion does not clearly exclude
coverage for Jon R. and Denise L. based on their son’s acts.
Appellee responds that the criminal acts exclusion is clear and bars
coverage for Jon R. and Denise L. Appellee emphasizes that the exclusion is
triggered by an act committed by “an insured.” It observes that the use of
the article “an” has been construed by this Court as permitting joint
application of an exclusion to “any” insured. Thus, Appellee argues, the
term “an insured” creates a joint insurable interest, such that the acts of a
culpable co-insured bars coverage for innocent co-insureds.
“A(n)” is an indefinite article “used as a function word before a singular
noun when the referent is unspecified . . . .” Webster’s
Ninth New Collegiate Dictionary at 43. In common usage, it is also
synonymous with “any,” the latter of which means “one or some
indiscriminately of whatever kind.” Id. at 43, 93. The plain meaning of “an
insured” is not restricted to a single, definite individual, but rather one or
more of a set.
9
For example, the Policy contains a separate exclusion for coverage from
“perils insured against” that states: “Intentional Acts, meaning loss resulting
from an act committed by or at the direction of an insured that may
reasonably be expected to result from such acts, or is the intended result
from such acts. Intentional acts include criminal acts. Such acts exclude
coverage for all insureds.” Policy at D1.
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Decisional law supports Appellee’s position that the use of the
indefinite article “an” and the adjective “any” are interchangeable and create
joint obligations under an exclusion. See McAllister v. Millville Mut. Ins.
Co., 640 A.2d 1283, 1289 (Pa. Super. 1994) (holding innocent co-insured
barred from recovery under fire insurance by intentional act, i.e. arson, of
another co-insured where policy excluded coverage for loss resulting from
neglect by “any insured” or intentional acts of “an insured”); see generally
Allen, 708 A.2d at 833 (discussing non-Pennsylvania cases regarding uses
of “an” or “any,” but finding use of “the insured” in insurance policy’s
exclusion did not bar innocent co-insured from seeking coverage where the
culpable co-insured intentionally abused children). But see Allen, 708 A.2d
at 832 (noting use of “an insured” is “less clear” when creating joint
obligations than terms such as “any insured.”)
Although we agree with Appellant that the Policy contains language
that more clearly expresses that an exclusion will apply jointly to all co-
insureds, our case law and the language of the exclusion here support the
trial court’s legal determination that Jon R. and Denise L. are not covered for
the harms caused by John S.’s criminal act. Accordingly, Appellant has not
demonstrated that the trial court erred in its interpretation that Jon R. and
Denise L. were not entitled to coverage under the Policy.
Judgment affirmed.
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President Judge Emeritus Bender joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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