J-A19028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ANNA M. CARRASQUILLO,           :              IN THE SUPERIOR COURT OF
 INDIVIDUALLY AND AS             :                   PENNSYLVANIA
 ADMINISTRATRIX OF THE ESTATE OF :
 RAFAEL SANTIAGO, DECEASED       :
                                 :
                                 :
           v.                    :
                                 :
                                 :              No. 2720 EDA 2018
 NANCY KELLY AND NATIONWIDE      :
 MUTUAL FIRE INSURANCE COMPANY :
                                 :
                                 :
 APPEAL OF: NATIONWIDE MUTUAL    :
 FIRE INSURANCE COMPANY          :


               Appeal from the Order Entered, August 8, 2018,
            in the Court of Common Pleas of Philadelphia County,
            Civil Division at No(s): October Term, 2017, No. 563.


BEFORE:     PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                     FILED NOVEMBER 12, 2019

      In this declaratory judgment action, Anna Carrasquillo asked the trial

court to declare that Nationwide Mutual Fire Insurance Company had a duty

to defend and indemnify its insured, Nancy Kelly, in a separate lawsuit

involving the death of Carrasquillo’s son. The trial court denied Nationwide’s

motion    for   summary   judgment   in   the   declaratory   judgment   action.

Nationwide appealed from that order. Upon careful review, based upon the

language of the policy at issue, we reverse.

      On October 5, 2014, Rafael Santiago was staying at the home of Nancy

Kelly, located in Philadelphia, Pennsylvania. James Kelly, who resided with


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19028-19



Nancy Kelly, was also present.1 That night, James Kelly fatally shot Santiago

inside the Philadelphia home. When the shooting occurred, James and Nancy

Kelly were insured under a homeowners’ insurance policy with Nationwide.2

       On May 23, 2016, James Kelly pleaded guilty to the charge of murder in

the third degree and was sentenced to 20 to 40 years in prison.

       On September 29, 2016, Appellee, Anna Carrasquillo, Santiago’s

mother, initiated a wrongful death and survival action, individually and as

executrix of the Estate of Santiago, against Nancy Kelly and James Kelly in

the Philadelphia Court of Common Pleas.3

       Of particular relevance, Paragraph 8 of the Carrasquillo’s wrongful death

complaint alleged the following:

       8.    On or about October 5, 2014, plaintiff’s decedent, Rafael
       Santiago, was attacked by defendant, James Kelly, and fatally
       shot resulting in plaintiff’s decedent’s death.

Carrasquillo's Complaint at ¶ 8 (emphasis added).

____________________________________________


1The Complaint does not indicate the relationship between Nancy and James
Kelly.

2We note that Nationwide does not dispute James or Nancy Kelly’s status as
an insured under the policy.

3 According to this Complaint, Nancy Kelly currently resides in North Fort
Myers, Florida, and James Kelly resides at SCI Camp Hill, Camp Hill,
Pennsylvania. It does not appear that Nancy Kelly participated in the
declaratory judgment action below; counsel for Nancy Kelly did not enter his
appearance with the trial court until after the court entered its order denying
Nationwide’s motion for summary judgment. A brief was filed on Nancy Kelly’s
behalf in this appeal.


                                           -2-
J-A19028-19



      Paragraph 10 of Carrasquillo's wrongful death complaint alleged the

following:

      10. The accident was caused exclusively and solely by the
      defendant's negligence, in that:

             (a) Defendants caused or permitted dangerous conditions to
             exist;

             (b) Defendants failed to have the lethal weapons stored
             safely and securely so that other individuals could not
             access them;

             (c) Defendants failed to give warning that the lethal
             weapons were not stored safely and securely such that
             defendant, James Kelly, could access them and cause
             harm to others;

             (d) Defendants failed to remove the dangerous condition;

             (e) Defendants failed to exercise reasonable prudence and
             due care to keep the household safe for others;

             (f) Defendants failed to prevent a person with known
             dangerous propensities to have access to lethal
             weapons;

             (g) Defendants were negligent in causing injury and death
             to plaintiff’s decedent, Rafael Santiago; and

             (h) Defendants was [sic] otherwise negligent under the
             circumstances.

Id. at ¶ 10 (a)-(h)(emphasis added).

      After filing this complaint, Carrasquillo requested Nationwide to defend

its insured, Nancy Kelly, and indemnify her for the claims in the wrongful death

action. Nationwide refused to provide a defense for Nancy Kelly or indemnify

her based upon exclusions in her homeowners' insurance policy.



                                     -3-
J-A19028-19



      The Nationwide Homeowners' Policy insuring the Kellys provided liability

coverage as follows:

      SECTION II -LIABILITY COVERAGES

      Page GI

      Coverage agreements
      Coverage E -Personal Liability

      We will pay damages an insured is legally obligated to pay due to
      an occurrence resulting from negligent personal acts or negligence
      arising out of the ownership, maintenance or use of real or
      personal property. We will provide a defense at our expense by
      counsel of our choice. We may investigate and settle any claim or
      suit. Our duty to defend a claim or suit ends when the amount we
      pay for damages equals our limit of liability.

      This coverage is excessive over other valid and collectible
      insurance. It does not apply to insurance written as excess over
      the applicable limits of liability.

      SETION II -LIABILITY COVERAGES

      Page G2

      Additional liability coverages
             We will pay the following in addition to the limits of liability.
      These additional coverages are not subject to the Section II
      Liability Exclusions.

      1. Claims Expense. We will pay:
            a) Expenses we incur and costs levied against an insured in
            a legal action we defend, including prejudgment interest on
            that portion of the award which does not exceed the limit of
            this coverage....

Nationwide Policy at G1-G2.

      The liability coverages provided by this policy were subject to the

following exclusions:


                                       -4-
J-A19028-19


        SECTION II -LIABILITY EXCLUSIONS

        1. Coverage E - Personal Liability and Coverage F - Medical
        Payments to Others do not apply to bodily injury or property damage:

             a) by an act intending to cause harm done by or at the
             direction of any insured.

             This exclusion does not apply to corporeal punishment of
             pupils.

             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.

Nationwide Policy at H1 (emphasis added).

        On October 5, 2017, Carrasquillo filed a separate action, which is the

subject of this appeal, seeking a declaratory judgment.             Specifically,

Carrasquillo requested an order from trial court declaring that the allegations

set forth in the wrongful death complaint were covered by the Kelly policy (i.e.

not excluded) from coverage, and therefore Nationwide had a duty to defend

and indemnify its insured, Nancy Kelly. Declaratory Judgment Complaint, at

¶ 11.

        On October 31, 2017, Nationwide attempted to remove the declaratory

judgment action to the United States District Court for the Eastern District of

Pennsylvania pursuant to 28 U.S.C. §§ 1331, 1332, and 2201-2202. However,

on April 17, 2018, the Eastern District Court issued a Memorandum Opinion,

concluding that Carrasquillo had no standing to file a declaratory judgment

action asking the court to declare the rights between an insurance company



                                      -5-
J-A19028-19



(Nationwide) and its insured (Nancy Kelly).4 On that basis, the District Court

determined there was no actual and justiciable controversy sufficient to

provide it with subject matter jurisdiction. Carrasquillo v. Kelly, et al., 17-

4887 at 7-8 (E.D. Pa. April 17, 2018). On May 15, 2018, the District Court

remanded the declaratory judgment action to the Court of Common Pleas of

Philadelphia, pursuant to 28 U.S.C. § 1447(c).

       On July 3, 2018, Nationwide filed a motion for summary judgment in

the state declaratory judgment action. Essentially, Nationwide argued that

the intentional and criminal acts of insured James Kelly triggered the

intentional and criminal act exclusions under the policy and precluded

coverage to Nancy Kelly. In support of its position, Nationwide attached a

copy of the criminal docket, reflecting James Kelly’s guilty plea and term of

imprisonment.       Nationwide requested that the trial court enter an order

granting its motion for summary judgment and a decree declaring that

Nationwide had no duty to defend Nancy Kelly in the underlying wrongful

death action.


____________________________________________


4  The District Court observed that this was not a typical declaratory judgment
action filed by the insurance company, but rather an action filed by an injured
party seeking to declare the rights of third parties.              Under these
circumstances, the court found “[c]learly, Carrasquillo is asserting the legal
interests of a third party (Nancy Kelly) rather than her own and, thus, has no
standing to pursue such a claim. Further, Carrasquillo has not alleged that
she has been assigned any rights of Nancy Kelly under the Nationwide
insurance policy at issue.” Carrasquillo v. Kelly, et al., 17-4887 at 8 (E.D.
Pa. April 17, 2018).


                                           -6-
J-A19028-19



      On July 26, 2018, Carrasquillo filed an answer in opposition to

Nationwide’s motion for summary judgment.       Carrasquillo argued that the

allegations in the wrongful death complaint triggered coverage because

Nancy Kelly's actions sounded in negligence, and were not intentional or

criminal acts, which would support a preclusion of coverage.      Carrasquillo

maintained that Nancy Kelly's actions were independent and separate from

those of James Kelly and, therefore, Nationwide was obligated to provide a

defense for those claims.

     On August 8, 2018, the trial court denied Nationwide’s motion for

summary judgment.      Nationwide filed a timely notice of appeal.          Both

Nationwide and the trial court complied with Pennsylvania Appellate Rule of

Procedure 1925.

     Nationwide raises three questions for our review on appeal:

     1. Did the [trial court] err[] by denying [Nationwide’s] Motion for
     Summary Judgment when the criminal act exclusion contained
     within Nationwide homeowners policy number 58 37 HO 483403
     at SECTION II - LIABILITY EXCLUSIONS 1.(b) applied, based upon
     the clear and undisputed allegations of the Complaint in the
     underlying bodily injury action docketed at Philadelphia CCP No.
     160903564, and the undisputed facts in support of the Motion for
     Summary Judgment including the fact that Mr. Santiago was
     intentionally killed by a resident relative “insured” of the named
     insured Nancy Kelly's household?

     2. Did the [trial court] err by [] denying [Nationwide’s] Motion for
     Summary Judgment when the intentional act exclusion contained
     within Nationwide homeowners policy number 58 37 HO 483403
     at SECTION II - LIABILITY EXCLUSIONS 1.(b) applied, based upon
     the clear and undisputed allegations of the Complaint in the
     underlying bodily injury action docketed at No. 160903564, and
     the undisputed facts in support of the Motion for Summary


                                    -7-
J-A19028-19


      Judgment including the fact that Mr. Santiago was attacked, shot
      and killed by a resident relative “insured” of the named insured
      Nancy Kelly's household?

      3. Did The [trial court] err by misapplying the well-established law
      in the Commonwealth of Pennsylvania that where an applicable
      exclusion such as the present criminal act exclusion precludes
      coverage due to the conduct of "an insured" creating joint
      obligations of the insureds, that there is no coverage for any
      insured [] under the terms of the current Nationwide policy[?]

Nationwide’s Brief at 6-8 (citations omitted).

      Initially, we note that, generally, an appeal from an order denying

summary judgment is not appealable as of right. Good v. Frankie & Eddies

Hanover Inn, LLP, 171 A.3d 792, 794 (Pa. Super. 2017).             As we have

explained, this Court is obligated to “first ascertain whether the [order

appealed from] is properly appealable, because the question of appealability

implicates the jurisdiction of this [C]ourt.” Commonwealth v. Borrero, 692

A.2d 158, 159 (Pa. Super. 1997).       Thus, preliminarily, we must address

whether this appeal is appropriately before this Court. Based upon our review,

we conclude that the trial court’s order constituted a final order under

Pa.R.A.P. 341(b)(2) because it is expressly defined as a final order under

Section 7532 of the Declaratory Judgment Act, 42 Pa.C.S.A. § 7532. That

section provides:

      Courts of record, within their respective jurisdictions, shall have
      the power to declare rights, status, and other legal relations
      whether or not further relief is or could be claimed. No action or
      proceeding shall be open to objection on the ground that a
      declaratory judgment or decree is prayed for. The declaration
      may be either affirmative or negative in form and effect, and such
      declarations shall have the force and effect of a final judgment or
      decree.

                                     -8-
J-A19028-19



42 Pa.C.S.A. § 7532.

       Pursuant to Pa.R.A.P. 341(b)(2), an order is final if it is expressly so

defined by a statute. The Supreme Court has held that Section 7532 defines

any order in a declaratory judgment action that either affirmatively or

negatively declares "rights, status, and other legal relations" as a final order.

See 42 Pa.C.S.A. § 7532; see also Pa.R.A.P. 341(b)(1) (providing that “[a]

final order is ‘any order that disposes of all claims and of all parties[.]’”);

Good, 171 A.3d at 794; National Cas. Co. v. Kinney, 90 A.3d 747, 754

(Pa. Super. 2014).

       Here, by concluding that the exclusions in the policy did not apply and

denying Nationwide’s motion for summary judgment, the trial court's order

effectively declared that Nationwide had a duty to defend, and thus,

potentially indemnify, Nancy Kelly in the underlying action.5 Thus, all of the

claims raised in the declaratory judgment action have been resolved. As such,

this Court has jurisdiction over this appeal pursuant to 42 Pa.C.S.A. § 742.6
____________________________________________


5We note that the duty to defend is broader than the duty to indemnify.
Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins.
Co., 908 A.2d 888, 896 n.7 (Pa. 2006).

6   This section provides:

       The Superior Court shall have exclusive appellate jurisdiction of
       all appeals from final orders of the courts of common pleas,
       regardless of the nature of the controversy or the amount
       involved, except such classes of appeals as are by any provision
       of this chapter within the exclusive jurisdiction of the Supreme
       Court or the Commonwealth Court.



                                           -9-
J-A19028-19



See Kinney, 90 A.3d at 755 (concluding that trial court, by denying motion

for summary judgment in declaratory judgment action, effectively resolved all

issues, and therefore, the order was immediately appealable).

       Nancy Kelly argues, however, that when the trial court merely denied

the motion, as opposed to making a declaration, the order was not a final

appealable order. Kelly’s Brief at 5. We disagree.

       Contrary to Kelly’s argument, in Nationwide Mut. Ins. Co. v. Wickett,

763 A.2d 813, 818 (Pa. 2000), our Supreme Court specifically addressed this

issue and concluded that a court was not required to specifically make a

declaration of rights. Id. “Rather, [Section 7532] affords the courts broad

discretion in crafting declaratory judgment orders by permitting such orders

to be either affirmative or negative in form and effect.” Id. For finality, the

critical question is whether the order fully resolved the claims raised in the

declaratory judgment action, or simply narrowed the scope of the action’s

claims. Modern Equip. Sales & Rental Co. v. Main St. Am. Assurance

Co., 106 A.3d 784 (Pa. Super. 2014 (en banc).           If the order resolved the

claims, it is a final order. As stated above, the trial court’s order fully resolved

the dispute Carrasquillo raised in her declaratory judgment action.

       Additionally, before addressing the merits of Nationwide’s appeal, we

must consider whether this matter is properly before us. Nancy Kelly contends

that this Court lacks subject matter jurisdiction. Specifically, she claims that
____________________________________________


42 Pa.C.S.A. § 742.


                                          - 10 -
J-A19028-19



Carrasquillo lacks standing to bring this action. Nancy Kelly’s Brief at 9. She

argues that the U.S. District Court would not decide the case for this very

reason. Id. at 16. Thus, this Court should dismiss Carrasquillo’s appeal. Id.

We disagree.

      Generally, a plaintiff must have standing to bring a declaratory

judgment action. Additionally, a court must have subject matter jurisdiction

to proceed with a case. However, unlike the federal law, under Pennsylvania

law, standing and subject matter jurisdiction are distinct concepts and are not

interdependent.   We note that in the federal courts, the standing doctrine

emanates from the Constitution.     ASARCO Inc. v. Kadish, 490 U.S. 605

(1989) (the federal courts' standing doctrine springs from the “case or

controversy” requirement contained in Article III of the United States

Constitution). State courts, however, are not governed by Article III and are,

thus, not bound to adhere to the federal definition of standing. Id. at 2045.

Furthermore, the Pennsylvania Constitution has no counterpart to Article III's

“case or controversy” requirement. See, e.g., Appeal of Lansdowne

Borough Board of Adjustment, 170 A. 867 (Pa. 1934).

      Under Pennsylvania jurisprudence, standing relates to a party’s right to

make a legal claim or seek judicial enforcement. Subject matter jurisdiction,

on the other hand, concerns the court’s authority to consider cases of a given

nature and grant the type of relief requested. As such, “[i]t is well-settled

that the question of subject matter jurisdiction may be raised at any time, by

any party, or by the court sua sponte.” B.J.D. v. D.L.C., 19 A.3d 1081, 1082

                                    - 11 -
J-A19028-19



(Pa. Super. 2011) (quoting Grom v. Burgoon, 672 A.2d 823, 824–25 (Pa.

Super. 1996)).

      However, standing is not jurisdictional. Consequently, this Court has

explained that “[i]n Pennsylvania, whether a party has standing to maintain

an action is not a jurisdictional question. Thus, an issue relating to standing

is waivable.” Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016) (internal

quotation marks, brackets, footnote, and citations omitted); see also

Adoption of Z.S.H.G., 34 A.3d at 1289 (clarifying that “standing is not

intertwined with subject matter jurisdiction [even] when a statute designates

who may sue” and is therefore subject to waiver) (emphasis in original).

      Based on our review of the record, no one challenged Carrasquillo’s

standing to bring this declaratory judgment action in the state court below.

Instead, Nancy Kelly only raised it for the first time on appeal. Her standing

challenge is therefore waived. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”);

In re Paulmier, 937 A.2d 364, 368 n. 1 (Pa. 2007) (unlike subject matter

jurisdiction, an issue concerning standing is subject to waiver); In re

Adoption of Z.S.H.G., 34 A.3d 1283, 1289–90 (Pa. Super. 2011). We now

turn to the merits of Nationwide’s issues presented on appeal.

      Nationwide raises three separate issues relating to the trial court’s

denial of its motion for summary judgment. We note that all of these issues

involve the interpretation of an insurance contract, namely whether the policy

covers the claims Carrasquillo alleged in the underlying complaint or whether

                                    - 12 -
J-A19028-19



an exclusion applies. Specifically, at issue are two separate exclusions, the

intentional act exclusion and the criminal act exclusion.       We, therefore,

address Nationwide’s issues together.

     We begin our analysis by noting the applicable scope and standard of

review for appellate review of a motion for summary judgment:

     We view the record 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
     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.

QBE Ins. Corp. v. M & S Landis Corp., 915 A.2d 1222, 1225 (Pa. Super.

2007), appeal denied, 956 A.2d 436 (2008) (quoting Pappas v. Asbel, 768

A.2d 1089, 1095 (Pa. 2001)).

     Furthermore, here, the trial court entered summary judgment on the

basis of its interpretation of an insurance policy as to the existence or non-

existence of coverage.   This Court has summarized the law regarding an

insurer's duty to defend and indemnify as follows:

     The interpretation of an insurance contract regarding the
     existence or non-existence of coverage is generally performed by
     the court. Insurance policies are contracts, and the rules of
     contract interpretation provide that the mutual intention of the
     parties at the time they formed the contract governs its
     interpretation. Such intent is to be inferred from the written
     provisions of the contract. If doubt or ambiguity exists it should
     be resolved in [the] insured's favor.


                                    - 13 -
J-A19028-19


      An insurer's duty to defend and indemnify the insured may be
      resolved via declaratory judgment actions. In such actions, the
      allegations raised in the underlying complaint alone fix the
      insurer's duty to defend. As this Court has summarized: The duty
      to defend is a distinct obligation, separate and apart from the
      insurer's duty to provide coverage.

      Moreover, the insurer agrees to defend the insured against any
      suit arising under the policy even if such suit is groundless, false,
      or fraudulent. . . .

      Pennsylvania recognizes that a duty to defend is broader than the
      duty to indemnify. Accordingly, even if there are multiple causes
      of action and one would potentially constitute a claim within the
      scope of the policy's coverage, the insurer would have a duty to
      defend until it could confine the claim to a recovery excluded from
      the policy. The question of whether a claim against an insured is
      potentially covered is answered by comparing the four corners of
      the insurance contract to the four corners of the complaint. . . .
      Significantly, [i]t is not the actual details of the injury, but the
      nature of the claim which determines whether the insurer is
      required to defend. In making this determination, the factual
      allegations of the underlying complaint against the insured are to
      be taken as true and liberally construed in favor of the insured.

Penn–America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 264–65 (Pa.

Super. 2011) (citations and quotation marks omitted). The interpretation of

an insurance policy is a question of law. Kvaerner, 908 A.2d at 893. Our

standard of review is de novo, and thus, we need not defer to the findings of

the trial court. Id. Our scope of review, to the extent necessary to resolve

the legal question before us, is plenary. Id.

      On appeal, Nationwide contends that the trial court erred when it

concluded that neither the intentional act exclusion nor the criminal act

exclusion applied and denied its motion for summary judgment.            No one

challenged whether these exclusions applied to James Kelly.         The issue is


                                     - 14 -
J-A19028-19



whether the intentional act and/or criminal act exclusion contained in the

homeowners’ policy applies to deny coverage to Nancy Kelly, an innocent co-

insured, since she did not shoot Santiago. Nationwide’s Brief at 31.

      Carrasquillo and Nancy Kelly argue that neither exclusion applies. First,

they claim that the intentional act exclusion does not apply in this case

because the allegations in Carrasquillo’s complaint do not clearly demonstrate

that the shooting was intentional. Since the circumstances surrounding the

shooting are unknown at this time, it is unclear whether James Kelly intended

to harm Santiago. Carrasquillo’s Brief at 16-18.

      Furthermore, the complaint clearly states that the incident resulting in

Santiago’s injuries was caused exclusively and solely by the defendants’

negligence. Thus, considering only the allegations of the complaint, which the

Court is required to do, Carrasquillo’s claims potentially fall within the scope

of the policy and trigger coverage. Carrasquillo’s Brief at 12-14, 18; Kelly’s

Brief at 18-19.

      Similarly, Carrasquillo argues that the criminal act exclusion also does

not apply because the complaint characterizes the shooting as an accident.

Carrasquillo claims Nancy Kelly’s actions were negligent, not criminal.

Carrasquillo’s Brief at 19. Thus, according to Carrasquillo and Kelly, the trial

court correctly denied summary judgment. Carrasquillo’s Brief at 18; Kelly’s

Brief at 19.

      The trial court found that a genuine issue of fact existed regarding the

actions of Nancy Kelly, namely, whether she acted negligently in storing the

                                     - 15 -
J-A19028-19



gun, in allowing James Kelly access to the gun, and/or in failing to inform

Santiago that the gun was accessible. Trial Court Opinion, 3/25/19, at 10.

Thus, the trial court determined that the intentional act and criminal act

exclusions did not apply. Comparing the four corners of the insurance contract

to the four corners of the complaint, there are no allegations that Nancy Kelly

acted criminal or intentionally. Trial Court Opinion, 3/25/19, at 10. The trial

court, therefore, concluded that Nationwide was required to defend, and

potentially indemnify, Nancy Kelly in the underlying action and denied

Nationwide’s request for summary judgment.        Id. at 11.   Based upon our

review of the record and applicable law, we disagree.

      First, we consider whether the trial court erred in determining that the

criminal act exclusion did not apply. That exclusion provides that Nationwide

does not cover payments for bodily injury or property damage “caused by or

resulting from an act or omission which is criminal in nature and committed

by an insured” regardless of whether the insured is actually charged with, or

convicted of a crime.

      Here, it is undisputed that James Kelly pled guilty to third degree murder

for shooting Santiago, which formed the basis of the underlying wrongful

death complaint. Nationwide raised James Kelly’s criminal conviction as an

affirmative defense to the declaratory judgment action. To support its motion

for summary judgment, Nationwide attached a copy of the criminal docket

reflecting James Kelly’s guilty plea and sentence. Carasquillo presented no

evidence to dispute his conviction.

                                      - 16 -
J-A19028-19



       Typically, we are required to consider only the allegations contained in

the underlying complaint to determine whether an insurer has a duty to

defend. In her wrongful death complaint, Carrasquillo alleged the criminal

nature of this incident by alleging that James Kelly, who had “dangerous

propensities”, “attacked” and “fatally shot” Santiago. Carrasquillo's Complaint

¶ 8.

       This Court has stated that coverage determinations should not depend

upon the “use of artful pleadings designed to avoid exclusions in liability

insurance policies.” Steyers v. Bedford Grange Mut. Ins. Co., 900 A.2d

895 (Pa. Super. 2006).     It is evident that Carrasquillo artfully crafted her

complaint, and omitted any reference to James Kelly’s conviction.      We are

compelled to consider the conviction in determining whether the criminal act

exclusion applies in this case.    There is no question that James Kelly’s

conviction for third degree murder triggers the criminal act exclusion and

clearly precludes any coverage for him.       However, whether the criminal

conduct of one insured (here, James Kelly) vitiates coverage for claims of

negligence asserted against another insured (here, Nancy Kelly) depends on

the language in the policy.

       Generally, courts have held that where exclusionary policy language

refers to the conduct of “any insured” and “anyone we protect”, the policy

precludes an innocent insured from coverage. Use of “an insured”, likewise,

equates to “any insured”. General Acc. Ins. Co. of Am. v. Allen, 708 A.2d

828, 832 (Pa. Super. 1998), appeal denied 764 A.2d 1070 (2000). Courts

                                     - 17 -
J-A19028-19



have found this terminology to be unambiguous. Under these policies, courts

apply the exclusion to all persons covered by the policy, including an innocent

co-insured.

      For example, in McAllister v. Millville Mut. Ins. Co., 640 A.2d 1283,

1288 (Pa. Super. 1994), this Court held that “if the language of the policy,

particularly the exclusionary clause, clearly indicates that the insureds'

obligations are joint, then the prohibited acts of one insured bar all others

from recovering.”       McAllister involved three insured brothers.            One

committed arson by burning down the subject property; the other two sought

coverage for the loss. There, we held that, “[t]he use of the terms ‘any’ and

‘an’ in the exclusions clearly indicate that the insureds' obligations under the

policy's neglect and intentional provisions are joint, not several ... [such that]

the intentional actions of [the arsonist brother] bar any recovery by [other

brothers].” Id. at 1289 (emphasis added).

      We      reached   the   same   conclusion   in   Donegal   Mut.   Ins.    v.

Baumhammers, 893 A.2d 797, 818 (Pa. Super. 2006), affirmed in part,

reversed in part, 938 A.2d 286 (2007). In that case, the plaintiffs filed claims

against the parents of a mass shooter, Jeffrey Baumhammers, alleging that

Baumhammers’ parents were negligent by failing to take away his guns or

report his dangerous propensities to authorities. The excess policy at issue

contained a criminal act exclusion, which excluded coverage for bodily injury

or damage arising out of a criminal act of “any insured” whether or not such

insured is convicted of a crime. The parents claimed that the criminal act

                                      - 18 -
J-A19028-19



exclusion barred coverage for their son only, since he committed the

underlying criminal acts. Nonetheless, because the language of the exclusion

was clear and applied to criminal behavior of “any insured,” we concluded

that the criminal act exclusion applied to the parents.7 Id.

       On the other hand, courts have held that where exclusionary language

refers to conduct of “the insured,” coverage is excluded only for the insured

in question, but other insureds are still covered under the policy. See Allen,

708 A.2d at 832; Maravich v. Aetna Life and Casualty Co., 504 A.2d 896

(Pa. Super. 1985) (where coverage was found for an innocent co-insured

under policy language excluding coverage for loss resulting from the neglect

of the insured where her husband had intentionally set their house on fire

and she had not.)

       Here, the exclusionary language in the policy excludes coverage for the

criminal act of “an insured.” Indisputably, James Kelly is “an insured” under

the policy. Additionally, James Kelly committed a criminal act, third degree

murder, which is the harm in Carrasquillo’s underlying wrongful death action.

Based upon the foregoing discussion, we are constrained to conclude that the

policy excludes coverage for Nancy Kelly based on the criminal act of James

Kelly. As a matter of law, Nationwide is not obligated to defend or indemnify


____________________________________________


7We note that although this case was appealed to our Supreme Court, the
applicability of the criminal act exclusion was not addressed.




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Nancy Kelly in the underlying action. We, therefore, conclude that the trial

court erred in denying Nationwide’s motion for summary judgment.8

       Judgment vacated. Order denying Nationwide’s motion for summary

judgment reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/19




____________________________________________


8 Because the applicability of the criminal act exclusion is dispositive of this
matter, it is not necessary for us to address the applicability of the intentional
act exclusion.

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