                           [J-31-2019] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 ERIE INSURANCE EXCHANGE,                        :   No. 20 WAP 2018
                                                 :
                      Appellant                  :   Appeal from the Order of the
                                                 :   Superior Court entered November
                                                 :   22, 2017 at No. 869 WDA 2016,
               v.                                :   vacating the Judgment of the Court
                                                 :   of Common Pleas of Washington
                                                 :   County entered June 15, 2016 at
 TRACY L. MOORE AND HAROLD E.                    :   No. 2014-4931 and remanding.
 MCCUTCHEON, III, INDIVIDUALLY AND               :
 AS ADMINISTRATORS OF THE ESTATE                 :   ARGUED: April 11, 2019
 OF HAROLD EUGENE MCCUTCHEON,                    :
 JR., AND RICHARD A. CARLY,                      :
                                                 :
                      Appellees                  :


                                    DISSENTING OPINION


JUSTICE MUNDY                                    DECIDED: APRIL 22, 2020
       In this case, we are called upon to determine whether the allegations in a civil

complaint filed by Richard A. Carly (the Carly complaint) against the estate of Harold E.

McCutcheon, Jr. constitute an “occurrence” as contemplated by the relevant insurance

policies and, if so, whether the exclusionary provisions of the policies preclude coverage.

In my view, the factual allegations of the complaint, fairly read, cannot be reasonably

interpreted as an occurrence so to qualify for coverage under the terms of the insurance

policies. Accordingly, I dissent.

       At the relevant time, Erie Insurance Exchange (Erie) insured McCutcheon, under

two policies, the HomeProtector Ultracover Insurance Policy (Homeowner’s Policy) and

the Personal Catastrophe Liability Policy Mastercover (Personal Catastrophe Policy).

Each policy provides coverage for bodily injury or property damage resulting from an
“occurrence.” The policies each define an “occurrence” primarily, as “an accident.” See

Homeowner’s Policy at 5; Personal Catastrophe Policy at 3. The Personal Catastrophe

Policy continues that in order to qualify as an “occurrence” the harm resulting from the

“accident” must be “neither expected nor intended.” Personal Catastrophe Policy at 3.

Both policies contain exclusionary provisions that exclude from coverage injury or

damages “expected or intended” by the insured.1          See Homeowner’s Policy at 15;

Personal Catastrophe Policy at 4.

       It is undisputed that “the obligation of a casualty insurance company to defend an

action brought against the insured is to be determined solely by the allegations of the

complaint in the action . . . .” Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial

Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006) (citing Wilson v. Maryland Casualty Co.,

105 A.2d 304, 307 (Pa. 1954)). Accordingly, “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.”    American and Foreign Ins. Co. v. Jerry’s Sport

Center, Inc., 2 A.3d 526, 541 (Pa. 2010).         Thus, it is necessary to undertake an

examination of the Carly complaint and the policies to determine whether the Carly

complaint states a claim that may potentially be covered under the terms of the policies.

        The Carly complaint included the following allegations:

              5. On or about September 26, 2013, Harold Eugene
              McCutcheon, Jr. (decedent) notified his children, Tracy L.
              Moore, and Harold E. McCutcheon, III, by a written note that
              he was going to the home of his former wife, Terry L.
              McCutcheon . . . to kill her and then commit suicide.

1The Homeowner’s Policy further provides coverage is excluded for damages “expected
or intended by anyone we protect even if: a. the degree, kind or quality of the injury or
damage is different than what is expected or intended; or b. a different person, entity, real
or personal property sustained the injury or damage than was expected or intended.”
Homeowner’s Policy at 15.



                            [J-31-2019] [MO: Dougherty, J.] - 2
6. That prior to the incident occurring on September 26,
201[3], . . . Terry L. McCutcheon had been to the residence of
Richard A. Carly . . . since they had been dating.

7. On September 26, 201[3], shortly before 11:00 p.m., Terry
L. McCutcheon left the home of the Plaintiff, Richard A. Carly,
and proceeded to her residence . . . .

8. That prior to Terry L. McCutcheon arriving at her residence,
decedent had broken into her home and was waiting for her
in order to shoot and kill Terry L. McCutcheon, and then
commit suicide thereafter.

9. That after leaving the home of the Plaintiff, Richard A. Carly,
Terry L. McCutcheon arrived at her home . . . at around 10:55
p.m.

10. On September 26, 2013, around 10:55 p.m., Terry L.
McCutcheon made a cell phone call from her residence to
Plaintiff, Richard A. Carly, to express to him that she had
arrived at her home, and during the conversation, the call was
terminated unexpectedly.

11. That [Carly] believes that the decedent approached Terry
while she was on the phone talking to [Carly] in order to kill
her.

12. Sometime during or after the call made by Terry L.
McCutcheon to Richard A. Carly on September 26, 2013,
decedent physically assaulted Terry L. McCutcheon and then
shot her twice in the upper torso causing her death. This
occurred on the main floor where her bedroom was located.

13. After said phone call had been discontinued, Richard A.
Carly attempted to reach Terry L. McCutcheon by calling her
back, but received no answer.

14. That as a result of not being able to reach Terry L.
McCutcheon by telephone, Plaintiff, Richard A. Carly, drove
to [Terry’s residence] from his residence to talk to Terry L.
McCutcheon. He arrived at Terry’s residence at about 11:45
p.m.

15. On September 26, 2013, at approximately 11:45 p.m., the
Plaintiff, Richard A. Carly, approached the front door to the



              [J-31-2019] [MO: Dougherty, J.] - 3
residence of Terry L. McCutcheon and rang the doorbell a
couple times but received no answer.

16. That as a result of receiving no answer, [Carly] became
concerned and put his hand on the doorknob of the front door
in order to enter and the door was suddenly pulled inward by
decedent who grabbed the Plaintiff by his shirt and pulled him
into the home.

17. At the time that decedent pulled [Carly] into the home,
decedent was screaming, swearing, incoherent, and acting
“crazy.”

18. That once [Carly] was inside the home, a fight ensued
between the two and at the time, decedent continued to have
the gun in his hand, which gun decedent apparently had shot
and killed Terry L. McCutcheon, and was going to use to
commit suicide.

19. That a struggle ensued between decedent and [Carly]
thereby knocking things around, and in the process decedent
negligently, carelessly, and recklessly caused the weapon to
be fired which struck [Carly] in the face inflicting the injuries
and damages as are more fully hereinafter set forth.

20. That during the struggle, [Carly] believes that other shots
were carelessly, negligently and recklessly fired by the
decedent striking various parts of the interior of the residence
and exiting therefrom.

21. All of the injuries and damages sustained by the Plaintiff,
Richard A. Carly, were solely and wholly, directly and
proximately caused by the negligence, carelessness and
recklessness of the decedent, Harold Eugene McCutcheon,
Jr., as follows:

      a. In carelessly and recklessly causing a firearm to
discharge thereby striking [Carly].

      b. In failing to regard the safety and well being of [Carly]
and engaging in reckless conduct.

       c. In evidencing a reckless disregard for the safety of
[Carly].

       d. In recklessly discharging a firearm.



              [J-31-2019] [MO: Dougherty, J.] - 4
                     e. In breaching a duty of care decedent owed to [Carly].

                     f. In failing to appreciate and realize that there was a
              strong probability of harming [Carly] and using conduct that
              created an unreasonable risk of physical harm to [Carly].

                    g. In negligently tossing his arm around in which hand
              the gun was contained thereby recklessly shooting off various
              rounds in and about the room where [Carly] and decedent
              were struggling, one such round striking [Carly].

                    h. In being mentally disturbed to the extent that
              decedent needed or was undergoing mental treatment at the
              time.

                     i. In possibly being under the influence of alcohol
              and/or drugs at said time.

                                             …


Carly Lawsuit Compl., 2/20/14, at 2-6.

       I cannot agree with the Majority that the “‘four corners of the complaint’” — when

taken as true and liberally construed — make out an accidental shooting.” Majority

Opinion at 12. An “occurrence” in the context of insurance policies is defined relevantly

as “accident.”   In clarifying the term “accident” under insurance policies, this Court has

referred to the common usage of the word. We explained, “Webster’s II New College

Dictionary 6 (2001) defines ‘accident’ as ‘[a]n unexpected and undesirable event,’ or

‘something that occurs unexpectedly or unintentionally.’ The key term in the ordinary

definition of ‘accident’ is ‘unexpected.’ This implies a degree of fortuity[.]” Kvaerner, 908

A.2d at 897-98. See also Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 292

(Pa. 2007) (explaining “the term ‘accident’ within insurance policies refers to an

unexpected and undesirable event occurring unintentionally, and that the key term in the

definition of ‘accident’ is ‘unexpected’ which implies a degree of fortuity.”). Likewise,

Black’s Law Dictionary defines “accident,” in part, as “[a]n unintended and unforeseen


                            [J-31-2019] [MO: Dougherty, J.] - 5
injurious occurrence; something that does not occur in the usual course of events or that

could not be reasonably anticipated[.]” Black’s Law Dictionary (11th ed. 2011), available

at Westlaw BLACKS. Accordingly, for an event to constitute an insurable “occurrence” it

must be unintended and occur unexpectedly. Moreover, the event must carry with it some

degree of fortuity. Conversely, an event is not an occurrence if the result was expected

by the insured, even if the specific injury was unintended.

       Applying those principles, the allegations in the Carly complaint, plainly fail to

allege an “occurrence,” which would compel Erie to defend McCutcheon’s estate against

Carly’s lawsuit. Indeed, and specifically, the Carly complaint alleged that Carly arrived at

Ms. McCutcheon’s home and proceeded to “put his hand on the doorknob of the front

door” at which time he “was suddenly pulled inward by [McCutcheon] who grabbed [Carly]

by his shirt and pulled him into the home.” Id. at ¶ 16. Once McCutcheon pulled Carly

into the home, a struggle ensued between McCutcheon and Carly during which the

weapon was fired causing the injury to Carly. Id. at ¶ 19. Reading the Carly complaint,

as a whole, the discharge of the gun under the circumstances causing injury to Carly

cannot reasonably be interpreted as an unexpected or fortuitous event that would trigger

Erie’s duty to defend.

       It is true that Carly alleges that McCutcheon, “negligently, carelessly, and

recklessly caused the weapon to be fired[,]” and other shots were “carelessly, negligently

and recklessly fired by” McCutcheon “striking various parts of the interior of the

residence[.]”    Carly Lawsuit Compl., 2/20/14, at ¶¶         19-20.   However, the legal

characterizations of conduct in a complaint are not determinative, and cannot be

employed to compel an insurer to defend where the factual allegations otherwise would




                           [J-31-2019] [MO: Dougherty, J.] - 6
not trigger coverage. See Mutual Ben. Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999)2

(concluding, “the particular cause of action that a complainant pleads is not determinative

of whether coverage has been triggered. Instead, it is necessary to look at the factual

allegations contained in the complaint.”). We are tasked with looking at the facts, not

speculating about scenarios that are inconsistent with common sense or experience.

       The facts are clear: while in the process of effecting a murder-suicide, McCutcheon

physically pulled Carly into the home, engaged in a physical struggle with Carly, while he,

the aggressor, held and discharged a firearm. As this Court has recognized, an insurer

is not obligated to defend against such intentional tortious conduct.         See Gene’s

Restaurant, Inc. v. Nationwide Mut. Ins. Co., 548 A.2d 246, 247 (Pa. 1988) (holding, “[t]he

willful and malicious assault alleged in the complaint is not an accident but rather is an

intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed

no duty to defend.”). Moreover, other than characterizing the events in the legal terms

“negligently, carelessly and recklessly,” there are no descriptive terms within the four

corners of this complaint that describe the events as those in the nature of an accident.

In fact, the word “accident” does not appear in the complaint.

       What further distinguishes my view from the Majority’s is that, under the facts

alleged in the complaint, there is no occurrence alleged to justify insurance coverage

even if the gunshot wound itself was unintended by McCutcheon. That is so because an

“occurrence” must not merely be unintended but unexpected. As explained, the Carly

complaint cannot be reasonably read in a way that suggests that McCutcheon did not

expect this injury to occur. See Carly Lawsuit Compl., 2/20/14, at ¶ 21 (acknowledging

that McCutcheon “us[ed]” conduct that created an unreasonable risk of physical harm to


2Unlike the Majority, I find the underpinnings of Haver to bear precisely on the issues
before this Court.


                           [J-31-2019] [MO: Dougherty, J.] - 7
[Carly].”). This is not, as the Majority suggests, an impermissible inference. See Majority

Opinion at 13. To view purely the discharge of the weapon, without reference to the

context, is contrary to our precedent that requires us to view the complaint as a whole.

       The Majority does not appear to distinguish its analysis with respect to whether

there was an occurrence from whether the occurrence was excluded by the terms of the

policies’ respective exclusionary clauses. However, clearly, the exclusionary provisions

of these policies further preclude coverage. In American National Property and Casualty

Co. v. Hearn, 93 A.3d 880 (Pa. Super. 2014), there was no dispute the insured

intentionally struck his friend intending only to cause brief pain. Hearn, 93 A.3d at 882,

885. The injured, however, experienced extreme pain and swelling, had to undergo

emergency surgery, and testing revealed the possibility of permanent infertility as a result.

Id. at 882.   The intermediate court found the exclusionary clause barred insurance

coverage, as “it is clear from the undisputed facts that Hearn’s assault on [his friend] was

intentional.” Id. at 886. Because there was no question that Hearn did not intend to cause

a serious injury when he struck his friend, the Superior Court addressed its holding in

United Servs. Auto Ass’n v. Elitzky, 517 A.2d 982 (Pa. Super. 1986). In this case, the

Majority notes that under Elitzky, the insured must possess some conscious awareness

of the injury in order for coverage to be excluded. Majority Op. at 5, n. 3. Indeed, Elitzky

held, “[i]nsurance coverage is not excluded because the insured’s actions were intentional

unless he also intended the resultant damage.” Elitzky, 517 A.2d 987 (citation omitted).

However, the Hearn court recognized that the exclusionary clause at issue barred

coverage for an intentional act even if the harm is different than expected or intended.

See Hearn, 93 A.3d at 886.

       The Homeowner’s Policy and the Catastrophic Liability Policy at issue both

exclude expected or intended damage. Further, the Homeowner’s Policy here, as in




                            [J-31-2019] [MO: Dougherty, J.] - 8
Hearn, explicitly excludes coverage for injury “expected or intended by anyone we protect

even if . . . the degree, kind or quality of the injury or damage is different than what is

expected or intended[.]” Homeowner’s Policy at 15. 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.

As the discharge of the firearm under the circumstances alleged in the Carly 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. I respectfully dissent.



       Chief Justice Saylor and Justice Todd join this dissenting opinion.




                            [J-31-2019] [MO: Dougherty, J.] - 9
