J.A19043/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


NATIONWIDE PROPERTY AND CASUALTY :                    IN THE SUPERIOR COURT OF
INSURANCE COMPANY,               :                         PENNSYLVANIA
                                 :
                v.               :
                                 :
JOHN S. SCHLICK, JON R. SCHLICK, :
DENISE L. SCHLICK, AND TAMMY     :
BULGER, ADMINISTRATRIX OF THE    :
ESTATE OF MARSHALL D. CURL       :
                                 :
APPEAL OF: TAMMY BULGER,         :
ADMINISTRATRIX OF THE ESTATE OF  :
MARSHALL D. CURL                 :                          No. 1909 WDA 2013


              Appeal from the Judgment Entered November 22, 2013
                  In the Court of Common Pleas of Erie County
                        Civil Division No(s).: 10553-2013

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 18, 2014

        Appellant, Tammy Bulger, administratrix of the estate of Marshall D.

Curl (“decedent”), appeals from the order of the Erie County Court of

Common Pleas entering summary judgment in favor of Appellee, Nationwide

Property Casualty Insurance Company.              Appellant asserts the trial court

erred    in   concluding   that   a   “criminal    acts”   exclusion   in   Appellee’s

homeowner’s policy barred coverage for her potential claims against John S.,




*
    Former Justice specially assigned to the Superior Court.
J. A19043/14


Jon R., and Denise L. Schlick (“John S.,” “Jon R.,” and “Denise L.,”

respectively, “Schlicks,” collectively).1 We affirm.

      At the times relevant to this appeal, Appellee issued a homeowners

policy (“Policy”) to Jon R., under which Jon R.’s wife, Denise L., and their

son, John S. were also insured. On September 18, 2012, John S., shot and

killed the decedent, who was a visiting the Schlick’s home.2      The firearm

involved in that incident belonged to Jon R.      The Commonwealth charged

John S. with, inter alia, involuntary manslaughter.    On February 4, 2013,

John S. pleaded guilty to that charge and was sentenced to a term of

incarceration.

      Meanwhile, Appellant was appointed administratrix of the decedent’s

estate and submitted a claim under the Policy. The Schlicks also requested

coverage under the Policy if Appellant filed an action against them.




1
  The Schlicks, who were named as codefendants in Appellee’s action for
declaratory judgment, submitted a letter advising this Court that they intend
to join in the brief filed by Appellant. However, there is no record evidence
that the Schlicks filed a notice of appeal.
2
  In their motion for summary judgment, Appellee referred to John S. as an
adult who resided with his parents.     Appellant did not challenge that
characterization of John S.

       We also note we have gleaned the above summary of the events from
the pleadings in this case. None of the parties described the specific
relationship between the decedent and the Schlicks.




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      On March 4, 2013, Appellee filed a complaint for declaratory judgment

against Appellant and the Schlicks. According to Appellee, all possible claims

for the incident would fall under Coverage E or F of the Policy, which stated:

         COVERAGE E — PERSONAL LIABILITY

            We will pay damages an insured is legally obligated to
         pay due to an occurrence resulting from negligent personal
         acts . . . .

                                  *    *    *

         COVERAGE F — MEDICAL PAYMENTS TO OTHERS

             We will pay the necessary medical and funeral
         expenses incurred within three years after an accident
         causing bodily injury. . . . This coverage applies as
         follows:

               1. to a person on the insured location with consent
            of an insured

Appellee’s Compl., 3/4/13, ¶¶ 20, 22 (quoting Policy at G1-G2). However,

Appellee asserted all potential claims were barred by the Policy’s “criminal

acts” exclusion, which stated:

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

                                  *    *    *

               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.



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Id. at ¶ 23 (quoting Policy at H1) (bold in original, bold and italics added for

emphasis).

      Appellant filed an answer and new matter admitting “John S. Schlick

engaged in negligent and reckless conduct” that constituted a crime.

Appellant’s Answer & New Matter, 4/15/13, at ¶ 27.           Nevertheless, she

asserted the Policy provided coverage. Id. at ¶¶ 29, 33.

      The parties subsequently filed the following motions: Appellant’s July

25, 2013 motion for judgment on the pleadings; Appellee’s July 31st motion

for summary judgment; and the Schlicks’ August 12th motion for judgment

on the pleadings.3      The trial court, on November 22, 2013, granted

Appellant’s motion for summary judgment and denied Appellant’s and the

Schlicks’ motions for judgment on the pleadings.         In its accompanying

opinion, the court concluded that the criminal acts exclusion applied to each

of the Schlicks and that Appellee had no duty to indemnify or defend claims

based on the shooting of the decedent. Trial Court Op., 11/22/13, at 5, 8.

      Appellant filed a timely notice of appeal. The trial court did not order

the filing of a Pa.R.A.P. 1925(b) statement.

      Appellant presents the following questions on appeal:

         Whether the accidental shooting of [the decedent] by John
         S. Schlick constituted an occurrence as defined by
         [Appellee’s] Homeowner’s Policy?

3
 The Schlicks filed their answer to the complaint on July 29, 2013, denying
Appellee’s claim that no coverage was due.




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J. A19043/14



           Whether the crimes to which John S. Schlick pled guilty fall
           within the criminal acts exclusion of [Appellee’s]
           Homeowner’s Policy?

           Whether the criminal acts exclusion of [Appellee’s]
           Homeowner’s Policy bars coverage under the policy of Jon
           R. Schlick and Denise L. Schlick?

Appellant’s Brief at 5.4

      Our review of an order granting a motion for summary judgment is as

follows.

              We view the record[5] 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

4
  In the trial court, Appellant also argued that Appellee’s declaratory
judgment action was “premature” because she had yet to file a complaint
against the Schlicks. See Appellant’s Answer & New Matter at ¶ 38. In this
Court, Appellant has not argued that the present action was premature or
that the trial court erred in failing to consider whether Appellee had a duty to
defend.
5
  Pennsylvania Rule of Civil Procedure 1035.2 permits a party to move for
summary judgment “[a]fter relevant pleadings are closed ” and “whenever
there is no genuine issue of any material fact as to a necessary element of
the cause of action or defense which could be established by additional
discovery or expert report[.]” Pa.R.C.P. 1035.2(1).

      Because Appellee filed its motion for summary judgment after the
close of pleadings, but before the taking of discovery, the record before this
Court consists of the pleadings only.       See Pa.R.C.P. 1035.1 (defining
“record” for purposes of summary judgment as including any pleadings,
depositions, answers to interrogatories, admissions, and affidavits, and
signed expert reports).



                                      -5-
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        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.

State Farm Fire & Cas. Co. v. DeCoster, 67 A.3d 40, 45 (Pa. Super.

2013) (citation omitted).

        [T]he interpretation of an insurance contract regarding the
        existence or non-existence of coverage is generally
        performed by the court. The interpretation of an insurance
        contract is a question of law, our standard of review is de
        novo, thus, we need not defer to the findings of the lower
        tribunals. . . . Our purpose in interpreting insurance
        contracts is to ascertain the intent of the parties as
        manifested by the terms used in the written insurance
        policy. When the language of the policy is clear and
        unambiguous, we must give effect to that language.
        However, when a provision in the policy is ambiguous, the
        policy is to be construed in favor of the insured to further
        the contracts prime purpose of indemnification and against
        the insurer, as the insurer drafts the policy and controls
        coverage.

Donegal Mut. Ins. Co. v Baumhammers, 938 A.2d 286, 290-91 (Pa.

2007) (citations and quotation marks omitted).

     “Words of ‘common usage’ in an insurance policy are to be construed

in their natural, plain, and ordinary sense, and a court may inform its

understanding of these terms by considering their dictionary definitions.”

Allstate Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1172 (Pa. Super.

2011). “[C]ontractual terms are ambiguous if they are subject to more than

one reasonable interpretation when applied to a particular set of facts.”

Spece v. Erie Ins. Group, 850 A.2d 679, 682 (Pa. Super. 2004) (citation

omitted). However, “[a] court cannot torture the [policy] language to create


                                   -6-
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ambiguities where none exist.” Swarner v. Mut. Benefit Group, 72 A.3d

641, 645 (Pa. Super. 2013) (citations and quotation marks omitted), appeal

denied, 85 A.3d 484 (Pa. 2013).

      “Exclusionary clauses generally are strictly construed against the

insurer and in favor of the insured.” Id. “[A]n exclusion from liability must

be clear and exact in order to be given effect.” Prudential Prop. & Cas.

Ins. Co. v. Sartno, 903 A.2d 1170, 1177 (Pa. 2006).         The insurer bears

the burden of establishing an exclusion applies. Spece, 850 A.2d at 682.

      In the instant case, there is no dispute in this appeal that John S., Jon

R., and Denise L. were insured under the Policy.6            Additionally, the

decedent’s death constituted “bodily injury” that occurred on the covered

premises within the meaning of the Policy.      See Policy at G1.     We also

presume the decedent was on the premises with the consent of the Schlicks.

      Appellant first argues the shooting of the decedent constituted an

accident or occurrence under the Policy.      Appellee does not dispute this

contention, but asserts that even if coverage was triggered by an accident or

occurrence, the criminal acts exclusion barred recovery under the Policy.

Accordingly, we will presume, without deciding, that the events leading to

the decedent’s death constituted an accident or occurrence triggering the

possibility of coverage.

6
  The Policy stated “INSURED” means “you [the named insured, Jon R.
Schlick] and the following persons if residents of your household at the
residence premises: . . . a) your relatives[.]” Policy at G1.



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      Appellant next argues John S.’s actions did not trigger the criminal

acts exception. She acknowledges the Policy bars coverage for bodily injury

“caused by or resulting from an act or omission which is criminal in nature

and committed by an insured.”        See Policy at H1.      Nevertheless, she

suggests the phrase, “an act . . . which is criminal in nature,” only applies to

intentional acts. In support, she asks this Court to adopt the reasoning and

policy considerations in Swift v. Fitchburg Mut. Ins. Co., 700 N.E.2d 288

(Mass. App. Ct., 1998), and Tower Ins. Co. v. Judge, 840 F.Supp. 679 (D.

Minn. 1993). No relief is due.

      Instantly, the criminal acts exclusion employs the phrase “an act. . .

which is criminal in nature.” Webster’s Dictionary defines “criminal” as:

         1 : relating to, involving, or being a crime . . . 2 :
         relating to crime or to the prosecution of crime . . . 3 :
         guilty of a crime; also : of or befitting a criminal . . . 4.
         DISGRACEFUL[.]”

Webster’s Ninth New Collegiate Dictionary (1987) at 307. Under the Policy,

the nature of the act triggering the exclusion is not otherwise qualified.

Additionally, the Policy contained a separate intentional acts exclusion, which

bars coverage for bodily injury “by an act intending to cause harm done by

or at the direction of any insured.”7 Policy at H1.

      Following our review, we discern no support in the language of the

exclusion or the Policy for Appellant’s contention that an “act . . . which is

7
  The intentional acts exclusion was listed on the same page of the Policy,
immediately before the criminal acts exclusion.



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criminal in nature” should be limited to acts intending to cause harm. The

phrase “an act . . . which is criminal in nature” is sufficiently clear on its

face.   Under the circumstances of this case—i.e., where John S. admitted he

caused the decedent’s death by “recklessly”8 pointing a loaded firearm at the

decedent and having the firearm discharge—we conclude John S.’s acts were

criminal in nature, even if he did not intend to cause bodily injury.

Moreover, because we agree with the trial court that the language of the

exclusion is unambiguous, we discern no basis to read ambiguity into the

Policy by relying on the foreign law cited by Appellant.   See Swarner, 72

A.3d at 645. Thus, we detect no error in the trial court’s determination that

the criminal acts exclusion barred coverage for John S.

        Appellant, in her third argument, asserts the trial court erred in

concluding that Appellee’s policy excluded coverage for John S.’s parents,

Jon R. and Denise L. In support, Appellant suggests the term “an insured,”

8
  “Recklessly,” for the purposes of involuntary manslaughter, is defined as
follows:

          A person acts recklessly with respect to a material element
          of an offense when he consciously disregards a substantial
          and unjustifiable risk that the material element exists or
          will result from his conduct. The risk must be of such a
          nature and degree that, considering the nature and intent
          of the actor’s conduct and the circumstances known to
          him, its disregard involves a gross deviation from the
          standard of conduct that a reasonable person would
          observe in the actor’s situation.

Commonwealth v. Huggins, 839 A.2d 862, 868-69 (Pa. 2003) (quoting 18
Pa.C.S. § 302).



                                     -9-
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as used in the criminal acts exclusion, is ambiguous because Appellee more

clearly excluded coverage for “all insureds” in other sections of the Policy.9

She thus argues the criminal acts exclusion does not clearly exclude

coverage for Jon R. and Denise L. based on their son’s acts.

      Appellee responds that the criminal acts exclusion is clear and bars

coverage for Jon R. and Denise L. Appellee emphasizes that the exclusion is

triggered by an act committed by “an insured.” It observes that the use of

the article “an” has been construed by this Court as permitting joint

application of an exclusion to “any” insured.      Thus, Appellee argues, the

term “an insured” creates a joint insurable interest, such that the acts of a

culpable co-insured bars coverage for innocent co-insureds.

      “A(n)” is an indefinite article “used as a function word before a singular

noun when the referent is unspecified <a man overboard> . . . .” Webster’s

Ninth New Collegiate Dictionary at 43.          In common usage, it is also

synonymous with      “any,”   the   latter   of which means “one      or   some

indiscriminately of whatever kind.” Id. at 43, 93. The plain meaning of “an

insured” is not restricted to a single, definite individual, but rather one or

more of a set.


9
  For example, the Policy contains a separate exclusion for coverage from
“perils insured against” that states: “Intentional Acts, meaning loss resulting
from an act committed by or at the direction of an insured that may
reasonably be expected to result from such acts, or is the intended result
from such acts. Intentional acts include criminal acts. Such acts exclude
coverage for all insureds.” Policy at D1.



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      Decisional law supports Appellee’s position that the use of the

indefinite article “an” and the adjective “any” are interchangeable and create

joint obligations under an exclusion. See McAllister v. Millville Mut. Ins.

Co., 640 A.2d 1283, 1289 (Pa. Super. 1994) (holding innocent co-insured

barred from recovery under fire insurance by intentional act, i.e. arson, of

another co-insured where policy excluded coverage for loss resulting from

neglect by “any insured” or intentional acts of “an insured”); see generally

Allen, 708 A.2d at 833 (discussing non-Pennsylvania cases regarding uses

of “an” or “any,” but finding use of “the insured” in insurance policy’s

exclusion did not bar innocent co-insured from seeking coverage where the

culpable co-insured intentionally abused children). But see Allen, 708 A.2d

at 832 (noting use of “an insured” is “less clear” when creating joint

obligations than terms such as “any insured.”)

      Although we agree with Appellant that the Policy contains language

that more clearly expresses that an exclusion will apply jointly to all co-

insureds, our case law and the language of the exclusion here support the

trial court’s legal determination that Jon R. and Denise L. are not covered for

the harms caused by John S.’s criminal act. Accordingly, Appellant has not

demonstrated that the trial court erred in its interpretation that Jon R. and

Denise L. were not entitled to coverage under the Policy.

      Judgment affirmed.




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     President Judge Emeritus Bender joins the memorandum.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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