Court Applies Criminal Acts Exclusion in Homeowner's Policy to Deny Coverage to Insured After an Altercation

In the case of Safeco Ins. Co. of Illinois v. Gasiorowski, No. 2:20-CV-03877-GAM (E.D. Pa. July 5, 2022 McHugh, J.), the court granted a homeowners insurance carrier’s Motion for Summary Judgment in this action in which the carrier sought a judicial declaration that it had no duty to defend or indemnify a Defendant in a personal injury action.

According to the Opinion, the underlying claim arose from a physical altercation with the Plaintiff that led to a criminal assault charge against the insured Defendant. The Defendant pled nolo contendere to the criminal charges.

The court found that the criminal acts exclusion in the policy barred coverage.

The court noted that, although a plea of nolo contendere to the criminal charges was not conclusive in this context, the court also found that a video of the incident showed that no reasonable juror could have found that the Defendant’s actions in assaulting the Plaintiff were justified or were in self-defense as alleged by the Defendant.

As such, the Motion for Summary Judgment was granted in favor of the carrier on the denial of coverage.

Anyone wishing to review a copy of this decision may click this LINK


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 28, 2022).

Source of Image:  Photo by Kindel Media on www.pexels.com.

Doctrine of In Pari Delicto Reviewed by Pennsylvania Supreme Court

In the case of Albert v. Sheeley’s Drug Store, Inc., No. 5 MAP 2021 (Pa. Dec. 22, 2021) (Maj. Op. by Wecht, J.)(Dissenting Op. by Dougherty, J.), the Pennsylvania Supreme Court addressed the issue of whether claims brought against a pharmacy on behalf of a decedent who overdosed on illegally obtained prescription drugs are barred by the doctrine of in pari delicto.

The Pennsylvania Supreme Court ruled that the trial court in Lackawanna County correctly applied the in pari delicto doctrine and, as such, the lower court’s decision was affirmed.

According to the Opinion, the Plaintiff’s decedent was struggling with substance abuse issues.  The decedent had a friend who had a mother who was suffering from blood cancer. The friend’s mother had been prescribed several opioid pain medications which she filled at a particular pharmacy. Family members called the drug store and placed a restriction on who could pick up the mother’s prescriptions.

The decedent and/or his friend allegedly were allowed by the pharmacy to pick up the sick mother's medication.  The decedent then allegedly ingested some of that medication and allegedly passed away as a result.

The Pennsylvania Supreme Court noted that the doctrine of in pari delicto is an equitable doctrine that precludes plaintiffs from recovering damages if their cause of action is based, at least partially, on their own illegal conduct. Other jurisdictions call this doctrine the wrongful conduct rule. The Latin phrase translates to English to “in equal fault.”

The rule of the doctrine is rooted in the theory that the court should not lend their aid to a Plaintiff whose cause of action stems from his or her own illegal conduct.

The trial court below in this matter entered judgment for the pharmacy concluding that the in pari delicto doctrine barred recovery given that the decedent’s death was caused, at least partially, by his own criminal conduct, i.e., possessing and consuming a controlled substance that was not prescribed to him.

After reviewing the case before it, the Pennsylvania Supreme Court found that the lower courts had correctly applied the in pari delicto on the facts presented.

Anyone wishing to review a copy of the Majority Opinion by Justice Wecht may click this LINK.  The Dissenting Opinion by Justice Dougherty may be viewed HERE.


I send thanks to Attorney James M. Beck for bringing this case to my attention.

Source of image:  Photo by Markus Winkler on Unsplash.com.

Court Rules That Artful Pleading Cannot Defeat Exclusions Applicable Under Homeowner's Policy

In the case of Carrasquillo v. Kelly and Nationwide Mut. Fire Ins. Co., No. 2720 EDA 2018 (Pa. Super. Nov. 12, 2019 Panella, P.J., Kunselman, J., and Stevens, J.E.) (Op. by Kunselman, J.)(Non-precedential decision), the court addressed issues pertaining to a declaratory judgment action under a homeowner’s policy.

According to the Opinion, the Nationwide insured fatally shot and killed the Plaintiff’s decedent in the insured’s home. The insured later pled guilty to a charge of murder in the third degree. Thereafter, the decedent’s family pursued a wrongful death and survival action.

In response, Nationwide, the carrier who provided homeowner’s coverage on the home where the incident occurred, denied coverage under the intentional acts exclusion and the criminal acts exclusion. A declaratory judgment action was filed to address these issues.

In this declaratory judgment action, the Plaintiff attempted to argue that it had pled negligence allegations in the underlying Complaint such that the exclusions were not applicable. The court disagreed and noted that artful pleading did not serve to avoid the exclusions in this matter.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA law firm of Fowler, Hirtzel, McNulty & Spaulding for bringing this case to my attention.

Entrustment Clause of Property Damage Policy Upheld To Preclude Coverage For Acts of Vandalism To Rental Property

In the case of KA Together, Inc. v. Aspen Specialty Ins. Co., No. 18-CV-142 (E.D. Pa. Jan. 24, 2019 Slomsky, J.), the court granted a Defendant carrier’s Motion for Summary Judgment on a property damage insurance claim presented by the Plaintiff for water damages.  

According to the Opinion, the Plaintiff alleged claims for breach of contract and bad faith stemming from a Defendant’s denial of an insurance claim made by the Plaintiff for losses at the Plaintiff’s property.   The Plaintiff had filed the insurance claim for water damage caused by two (2) individuals who had been residing in a third floor apartment on the property.  

The Defendant carrier filed a Motion for Summary Judgment asserting that the Plaintiff’s claims were barred by the “entrustment exclusion” of the insurance policy at issue, which expressly excluded coverage for all losses resulting from dishonest or criminal acts by person to whom the Plaintiff entrusted the property.  

The Plaintiff opposed the Motion for Summary Judgment by arguing that the entrustment exclusion did not apply because the Plaintiff never entrusted the property to the two (2) individuals responsible for causing the water damages.  

By way of further background, the property at issue was a mixed commercial residential building.   There was a rental apartment of the third floor.   The carrier insured the property with a commercial property policy which, as noted, included an “entrustment exclusion” which allowed the carrier to deny coverage for any losses resulting from dishonest or criminal acts by the insureds or anyone to whom the insured entrusted the property for any purpose.  

According to the Opinion, at some point, the person who had signed a Lease for the third floor apartment had his girlfriend move into the apartment.  Thereafter, the tenant and his girlfriend were arrested on separate criminal charges and removed from the property.   

The manager of the property was then made aware that another person claimed that he had signed a sublease for the apartment with the girlfriend.   That person was told that the Lease Agreement with the girlfriend would not be accepted by the landowner as the girlfriend had no authority to sublease the property to that person.  

After that person was asked to leave the premises, the landowner received a phone call the day after the person vacated the premises from the business that operated in the same building at the first and second floor, claiming that there is water flowing and flooding down into the office and store.   

When the manager went to the property, he found that there were three (3) sources of running water with the drains purposefully blocked in the third floor apartment.   The manager called the police and filed an incident report.   Thereafter, the insurance claim was submitted to the carrier.  

The landowner believed that the damage was covered under the policy as an act of vandalism. However, as noted above, the carrier relied upon the entrustment exclusion to deny coverage.   

The court found that the entrustment exclusion was not ambiguous and must be enforced.   The court emphasized that the entrustment exclusion broadly applies to dishonest or criminal acts by “anyone to whom [the landowner] entrust[s] the property for any purpose.”   The court ruled that, under the plain meaning of the policy, the carrier is entitled to summary judgment under the exclusion at issue.  

Anyone wishing to review a copy of this decision may click this LINK

Judge Burke of Luzerne County Finds No Homeowner's Coverage for Insured Who Injured Cops Arresting Him During Domestic Dispute

And then there's the other side of LOVE that can give rise to litigation.......

In his recent decision in the case of Nationwide Mutual Fire Ins. Co. v. Norton, No. 6557 of 2013 (C.P. Luz. Co. Oct. 24, 2014 Burke, P.J.), Judge Thomas F. Burke, Jr. granted Nationwide’s Motion for Summary Judgment in a declaratory judgment action on the issue of coverage under a homeowner’s policy.  

Judge Thomas F. Burke, Jr.
Luzerne County

Judge Burke framed the issue before him as involving a question of whether, under the subject Nationwide Insurance policy covering the real estate and residents own by Christopher and Rose Norton, Nationwide has a duty to defend or indemnify them for injuries sustained by police officers while arresting Christopher Norton on the property due to an alleged domestic dispute.  

After a review of the policy language at issue and the relevant case law, Judge Burke ruled that Nationwide did not have a duty to defend or indemnify the insured Defendants in the underlying claim pursued by the injured police officers.  

According to the Opinion, the police officers had responded to a call placed by Norton’s wife with regards to a potential domestic dispute.  During the course of responding to the call, the police officers were injured while arresting Christopher Norton.  

The subject Nationwide policy had an Intentional Acts Exclusion as well as a Criminal Acts Exclusion.

The Criminal Acts Exclusion expressly provided that the Exclusion applied regardless of whether the insured was actually charged with, or convicted of, a crime.  

Judge Burke set forth the relevant case law for coverage declaratory judgment actions which requires that the allegations of the underlying Complaint be reviewed against the language of the insurance contract.  Moreover, where the language of the insurance contract is clear and unambiguous, the court is required to give effect to that language. 

The records before the court confirmed that the insured, Christopher Norton, was arrested, charged criminally, and pled guilty to several counts of simple assault and a single count of resisting arrest.   It was equally clear to the court that the insured  had admitted to acting with a mens rea of conduct other than negligence when he committed these criminal acts by virtue of his guilty plea to the criminal charges.  

Judge Burke also ruled that the alleged injuries sustained by the police officers were indeed a result of the insured’s criminal acts as opposed to any negligent personal acts or negligence arising out of the ownership, maintenance, or use of the real or personal property covered by the policy.  

Ultimately, Judge Burke ruled that the allegations of the Plaintiff’s Complaint failed to invoke the personal liability coverage provisions of the policy and also fell under the liability exclusions listed elsewhere within the policy.  

As such, the court granted the Motion for Summary Judgment filed by the carrier and ruled that Nationwide was not legally obligated to defend or indemnify Defendant, Christopher Norton, in the underlying action arising out of the insured's criminal assaults that resulted in injuries to police officer(s) during a domestic abuse situation that occurred in the insured's home.  


Anyone desiring a copy of this Opinion, which contains a thorough recitation of the duty to defend/indemnify analysis for insurance coverage actions under a homeowner’s policy, may contact me at dancummins@comcast.net.