In
the case of Kiely v. Phila. Contrib. Ins.
Co., 2019 Pa. Super. 90 (Pa. Super. March 26, 2019 Ott, J., Dubow, J. Stevens, P.J.E.)(Op. by Dubow, J.), the Pennsylvania
Superior Court affirmed a trial court’s entry of compulsory non-suit in favor
of the carrier on a coverage question arising out of a homeowner’s policy
and/or an umbrella policy.
According
to the Opinion, an insured who was covered a homeowner’s policy and an umbrella policy
issued by the same carrier was sued in an underlying litigation by a former
domestic employee, who asserted claims of assault and intentional infliction of
emotional distress. The insured had
tendered the lawsuit to the carrier for a defense. The carrier denied coverage, asserting
that the intentional torts alleged in the underlying Complaint were not
“occurrences.”
The
insured then commenced this coverage litigation against the carrier seeking a
declaration that the carrier was obligated to defend and indemnify the insured
on the claims presented. The insured
also sought damages for bad faith.
The
coverage litigation proceeded to a trial.
At trial, the trial court permitted the insured to introduce evidence
that evidence that he (the insured) lacked the mental capacity sufficient to
intentionally assault the Plaintiff in the underlying matter.
The
trial court entered a nonsuit in favor of the carrier after finding that the
insured failed to introduce evidence of an “accident” which was required in
order to trigger coverage under the policy for an “occurrence.”
On
appeal, the Superior Court affirmed the trial court’s entry of a compulsory
nonsuit. The court held that the
insured’s alleged assault upon the underlying Plaintiff was not an “accident;
rather, it was an intentional tort.”
Accordingly, given that the policy defined an “occurrence” as an
“accident,” and given that the no accident or occurrence was alleged in the
underlying personal injury Complaint, the Superior Court agreed that the
carrier did not owe any duty to defend or indemnify under the policy.
In addition to upholding the trial court’s entry of a compulsory nonsuit, the Superior Court
additionally held that it was improper for the trial court to have permitted
the insured to introduce evidence that the insured lacked the mental capacity
to commit intentional torts.
The
Superior Court noted that in a declaratory judgment action concerning insurance
coverage issues, the allegations in the underlying personal injury Complaint
control the analysis and that extrinsic evidence could not be admitted while
the underlying lawsuit was still pending. Simply put, in a coverage action, the essential analysis required involved comparing the allegations of the underlying Complaint to the insurance policy to determine if the coverage provisions were triggered.
Anyone
wishing to review a copy of this decision may click this LINK.
I send
thanks to Attorney Benjamin P. Novak, Esquire of the Lancaster, Pennsylvania
office of Fowler, Hirtzel, McNulty & Spaulding, LLP, for bringing this case
to my attention.
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