Pa. Justices Say Erie Must Cover Killer's 'Accidental' Shooting

As Published on Law360

Law360 (April 22, 2020, 5:45 PM EDT) -- A divided Pennsylvania Supreme Court found that Erie Insurance must defend a personal injury case brought by a man who was shot after walking in on an Erie policyholder's murder-suicide, narrowly ruling Wednesday that his wounding appeared accidental and coverage was not barred by the same policy exemptions as the murder.

The 4-3 majority held that when Richard Carly struggled with Harold McCutcheon after McCutcheon had shot and killed his ex-wife, Terry McCutcheon, the gun discharge that wounded Carly during the fight appeared from the complaint to have been accidental, and therefore wasn't an intentional injury excluded by Harold McCutcheon's homeowner's insurance or personal catastrophe policies.

"Here, the 'four corners of the complaint' — when taken as true and liberally construed — make out an accidental shooting … taken as true, they present a factual scenario that potentially comes within the definition of a covered 'occurrence,' and to which the Erie exclusion for bodily injury 'expected or intended' by the insured does not apply," wrote Justice Kevin M. Dougherty for the majority. "The allegations in the present complaint are not clear about McCutcheon's intentions with respect to Carly; taken as true, the allegations establish he intended to kill his ex-wife and himself, but not that he intended to shoot Carly."

The majority narrowly upheld a Superior Court ruling that said Erie had a duty to defend Harold McCutcheon's estate.

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