Court Upholds Assault and Battery Exclusion in Liability Policy Related To Shooting Incident

In the case of The Farmers Fire Ins. Co. v. S.W. Krauss, LLC, No. 2023-CV-5087 (C.P. Lacka. Co. May 12, 2025 Gibbons, J.), the court granted a liability carrier’s Motion for Judgment on the Pleadings based upon an assault battery exclusion contained in the subject policy relative to a shooting incident that occurred on the insured’s premises.

According to the Opinion, this matter involved an injured party who suffered a gunshot wound after gunfire was exchanged between unidentified individuals who were engaged in an dispute.

President Judge James A. Gibbons
Lackawanna County

The carrier for the landowner filed a declaratory judgment action and asserted that coverage was barred under the assault and battery exclusion contained in the policy. After reviewing the policy as compared to the facts alleged in the underlying civil litigation Complaint, the trial court here agreed and granted the carrier’s Motion for Judgment on the Pleadings.

The trial court also rejected the injured party’s efforts to create issues of fact based upon affirmative defenses raised in the injured party’s New Matter responses to the declaratory judgment Complaint. In this regard, the trial court noted that there were boilerplate allegations in the New Matter pleadings and no factual allegations in support of the same.

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

Court Finds No Duty Owed By Landowner Where Person Hit By Wayward Target Shooting Shot Coming From the Land

In the case of Folcomer v. Craft, No. 2018-SU-0025278 (C.P. York. Co. Jan. 8, 2025 Menges, J.), the court granted a Motion for Summary Judgment filed by certain Defendants in a tragic shooting accident matter.

According to the Opinion, one of the Defendants in this case lived on the moving Defendant’s property. On the day of the incident, certain Co-Defendants were target shooting on the property.

Nearby, the Plaintiff and the Plaintiff’s decedent left their home and began a drive.

A bullet from the shooting target area of the nearby home traveled through the target, into the nearby woods, ricochet off a roadway and struck the decedent who was a passenger in the Plaintiff’s vehicle.

The Defendants who filed the summary judgment motion in this case were the owners of the property on which the target shooting was taking place.

In this decision, the court ruled that no duty exists to control the acts of third parties unless a “special relationship exists with either the actor the victim."

In this decision, the court also addressed the Nanty-Glo rule and found that this rule did not bar summary judgment in this case as the testimony relied upon by the moving the Defendant was from adversarial Co-Defendants.

The court also referred to §318 of the Restatement (Second) of Torts and found that the moving Defendant landowners had no duty to control the conduct of the shooting Defendants as there was no evidence that the moving Defendants were aware of any continuous or dangerous use of the land that would have allowed them an opportunity to intervene. In this case, it appeared that the act of target shooting on the property was not an ordinary event.

In the end, the court granted the Motion for Summary Judgment filed by the moving Defendants who were the owners of the land in question.

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


I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Court Allows Claim To Proceed Against Gun Owner Where Plaintiff Shot By Mentally Unstable Person Who Had Access to Guns

In the case of Blank v. Combs, No. 10122 of 2020, C.A. (C.P. Lawr. Co. Aug. 5, 2020 Motto, J.), the court overruled a Defendant’s Preliminary Objections in the nature of a demurrer in a case involving claims that the Defendants knew about their stepfather’s mental health issues and failed to take any precautionary measures to prevent injury to the Plaintiff, even after discovering that their stepfather was distressed and had left their residence with a firearm. The stepfather ended up shooting the Plaintiff. 

According to the Opinion, the shooter was the stepfather of the Defendant gun owner and the stepfather resided with his stepson.

It was alleged in the Plaintiff's Complaint that the stepson kept a firearm in an unlocked desk draw at the residence. It was additionally alleged that the stepfather knew the location of the gun and was able to access it. 

It was further alleged that the Defendant stepson was aware that the stepfather had a history of mental illness, including a bipolar disorder, paranoia, and schizophrenia. It was also noted that the stepfather’s mental health issues had led to his hospitalization in the past. 

On the date of the incident, the stepfather was having an episode of paranoia. It was known to the Defendants that the stepfather had taken the firearm and left the house. However, neither of the Defendants took any action to notify law enforcement. The stepfather later shot the Plaintiff on the same day. 

The Plaintiff filed suit alleging negligence on the part of the gun owners. The Defendants filed Preliminary Objections asserting that they cannot be liable for the Plaintiffs’ injuries based upon the criminal conduct of a third party in the absence of a pre-existing relationship imposing a duty of care upon the Defendants. 

The court ruled that, under Pennsylvania law, the Plaintiff had alleged sufficient facts to support a cause of action. The Plaintiff had alleged that the Defendants were aware of the stepfather’s mental health issues and, even though the stepfather had exhibited signs of distress, neither of the Defendants took any steps to secure the firearm or prevent the stepfather from gaining access to it. The Plaintiff had also alleged that, even after it was discovered that the stepfather had left the home with the weapon, the gun owners did not attempt to contact law enforcement. 

The court overruled the Defendants’ Preliminary Objections finding that these facts were sufficient to support the Plaintiffs’ claims for negligence and loss of consortium. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 29, 2020).

Artful Pleading Allowed To Trigger Liability Coverage

In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, J.), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to trigger a carrier’s duty to defend the matter.

In this case, the liability carrier sought a declaration that it did not have to defend or indemnify the estate of Harold McCutcheon Jr., who was the alleged shooter in an underlying tragic string of events involving a murder-suicide and injuries to a third person.

With regards to the previous decisions by the lower courts in this matter, a three-judge Superior Court panel had reversed a Washington County trial judge’s decision and had unanimously ruled that, because the injured third person alleged in the Complaint filed in the underlying matter that the shooting was "accidental," the events fit the definition of “occurrence” in the homeowner’s policy that the alleged shooter had with the liability carrier. 

The language in the policy at issue defined an 'occurrence' as “an accident including continuous or repeated exposure to the same general harmful conditions.”

According to the Opinion, the injured Plaintiff alleged in his Complaint that the alleged shooter had left a note outlining his intention to kill his ex-wife and then commit suicide. 

The Plaintiff further alleged that, after the alleged shooter allegedly shot his ex-wife at her house, there was a knock at the front door. The Plaintiff was that person who was knocking on the door.

The Opinion also notes that the Plaintiff had been dating the ex-wife in the time leading up to the incident.

The ex-husband, who was the alleged shooter, pulled the Plaintiff into the house where a fight ensued during which the Plaintiff was shot in the face by the ex-husband. The alleged shooter then shot himself.

In his lawsuit against the shooter, the Plaintiff alleged that the alleged shooter had "negligently, carelessly, and recklessly caused the weapon to be fired." 

Justice Kevin Dougherty, writing for the majority, compared the allegations in the Plaintiff’s Complaint against the policy language and rejected Erie’s contention that McCutcheon’s conduct was deliberate and therefore not covered by the policy. As such, the Court’s ruling resulted in a finding that the carrier had a duty to defend the claims against the alleged shooter and, therefore, possibly a duty to indemnify the Plaintiff for his injuries from this shooting event.

Justice Dougherty wrote, “Contrary to Erie’s view, this surprise encounter with [the Plaintiff] was not part of the insured’s other intentional conduct for purposes of insurance coverage, and in fact, [the Plaintiff] does not seek damages for a fistfight or shoving match,” 

Justice Dougherty also wrote that “[The Plaintiff’s] lawsuit seeks damages for being shot by the insured. Had the policy’s exclusion expressly stated coverage would not apply to incidents involving firearms, or during the commission of a crime, then perhaps there would be no duty to defend the underlying claims by [the Plaintiff]. But the policy does not say this. Instead, it excludes from coverage bodily injury ‘expected or intended’ by the insured, and to the extent this language is ambiguous in the presently alleged factual context, it must be construed in favor of coverage.”

Dougherty was joined by Justices Max Baer, Christine Donohue and David Wecht.

The three Justices on the Supreme Court that could not agree with the Majority’s decision included Chief Justice Thomas Saylor, Justice Debra Todd, and Justice Sallie Updyke Mundy.

In her Dissenting Opinion, Justice Mundy, joined by Chief Justice Saylor and Justice Todd, contended that “the discharge of a weapon during a physical altercation initiated by the insured, while the insured is holding a firearm, is the type of harm specifically excluded under the policy.”

“In my view, artful pleadings cannot form the basis of imposing a duty to defend,” Mundy said. “As the discharge of the firearm under the circumstances alleged in the [Plaintiff’s] complaint does not carry with it the degree of fortuity or unexpectedness necessary to constitute an accidental occurrence, I cannot agree Erie is obligated to afford coverage under the terms of the insurance policies.”

Anyone wishing to review the Majority Opinion in this case may click this LINK.

The Dissenting Opinion can be viewed HERE.

Source: Article - “Deeply Split High Court Says Insurer Must Cover Accidental Shooting During Murder-Suicide” by Zack Needles of the Pennsylvania Law Weekly (April 23, 2020)

Scope of Civil Liability Under the Mental Health Procedures Act

In the case of Leight v. Univ. of Pittsburgh Physicians, No. 2018 Pa. Super. 359 (Pa. Super. Dec. 31, 2018 Bender, P.J.E., Lazarus, J., and Musmanno, J.) (Op. by Musmanno, J.), the Plaintiffs appealed from a dismissal of their personal injury claims under the Mental Health Procedures Act against the University of Pittsburgh Medical Center and other physicians who had treated a mentally ill person that had injured the Plaintiff in a shooting incident.  

The Plaintiffs filed suit against the medical providers alleging a failure to warn and negligence of their treatment of the shooter.   The Plaintiffs alleged that, although the shooter had increasingly violent encounters and had been treated for both schizophrenia and medication non-compliance, the medical providers allegedly failed to file commitment papers and had, instead, terminated their relationship with that mentally ill patient.  
 The Defendants filed Preliminary Objections asserting that there was no duty to warn or to protect the Plaintiff from the shooter under the Mental Health Procedures Act.  

The Superior Court affirmed the trial court's dismissal of the claims based upon a ruling that the Mental Health Procedures Act did not apply to voluntary outpatient treatment.  

More specifically, the Superior Court noted that the physicians’ mere consideration, during voluntary outpatient treatment of a patient, of  possibly initiating an involuntary examination of a suspected mentally ill person was insufficient to trigger the scope and provisions of the Mental Health Procedures Act.  

The court further specified that a plain reading of the Act showed that it only applied to involuntary treatment and voluntary inpatient treatment of mental ill persons.   Accordingly, the court held that the cause of action provision of the Act did not apply to the voluntary outpatient treatment that the shooter had received from the physicians in this case.   

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

Source: “Digests of Recent Opinions.” Pennsylvania Law Weekly (Jan. 22, 2019).  
 

Pennsylvania Superior Court Rules Jury Cannot Award Damages That Were Neither Sought or Proven

In the case of Stapas v. Giant Eagle, Inc., 2016 Pa. Super. 303 (Pa. Super. Dec. 23, 2016 Stabile, J. Bowes, J. Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed, in part, the trial court’s denial of post-trial motions in a personal injury matter arising out of a shooting incident. 

Of note was the fact that the court found that the amount of $1.3 million dollars awarded the Plaintiff for future income loss was not supported by the evidence and was not even sought by the Plaintiff.  As such, the court ruled, under the rationale that a verdict must bear a reasonable resemblance to the proven damages, that a jury cannot award damages that were neither sought nor proven.   In so ruling, the court also stated that, even though the jury was not required to itemize its award of damages, it chose to do so, and those findings revealed the unsupported award.   

This decision is also notable in the Superior Court’s decision that the brief mention of the Plaintiff’s lack of health insurance did not require a new trial.  The court noted that this testimony was immediately stricken by the trial court.   The Superior Court also reasoned that the prohibition against the mentioning of insurance in civil litigation matters under Pa. R.E. 411 generally applies to a Defendant’s possession of liability insurance.  

The Stapas court also addressed the assumption of risk defense raised in this matter and stated that getting into a fight should not be considered the assumption of the risk of being shot.   The court emphasized that, in the case before it, the Plaintiff did not know that his attacker was armed.  

 The court returned the case to the trial court for a new trial on damages only.  

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.