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HomeMy WebLinkAbout11-3770IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, CIVIL DIVISION ?t'3?-76 UV4 NO .. c1 -C°=- --v cam---: C COMPLAINT FOR DECLARATORY JUDGMENT Defendants. Filed on Behalf of Plaintiff, State Farm Fire and Casualty Company Counsel of Record For This Party: David J. Rosenberg, Esquire PA I.D. #37492 Email: drosenberg@wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 6z? 00.4A %q Q. co a a5 9 lao IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, CIVIL DIVISION NO.: Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. NOTICE TO DEFEND TO: James Decoster Beverly Diane Rydman 161 West Louther Street 103 North Pitt Street, Apartment C Carlisle, PA 17013-2938 Carlisle, PA 17103 YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 1-800-990-9108 s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, CIVIL DIVISION NO.. Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. COMPLAINT FOR DECLARATORY JUDGMENT AND NOW, comes the Plaintiff, State Farm Fire and Casualty Company, by and through its attorneys, David J. Rosenberg, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Complaint for Declaratory Judgment: 1. Plaintiff, State Farm Fire and Casualty Company (hereinafter referred to as "State Farm"), is a corporation organized under the laws of the State of Illinois with a principal place of business located in Bloomington, Illinois and which is licensed to transact business in the Commonwealth of Pennsylvania. 2. Defendant, James Decoster (hereinafter referred to as "Decoster"), is an adult individual residing at 161 West Louther Street, Carlisle, Cumberland County, Pennsylvania. 3. Defendant, Beverly Diane Rydman (hereinafter referred to as "Rydman"), is an adult individual residing at 103 North Pitt Street, Apartment C, Carlisle, Cumberland County, Pennsylvania. 4. State Farm issued a policy of insurance to James M. Decoster, Policy Number 38- EQ-42339, which provided liability coverage subject to the terms of the policy. A copy of the 1 applicable policy of insurance is attached hereto as Exhibit A and incorporated herein by reference. 5. Pursuant to the policy in question, Rydman filed a Complaint in Civil Action against Decoster in the Court of Common Pleas of Cumberland County, Pennsylvania at Docket Number 2010-4862. A copy of the Plaintiff's Complaint is attached hereto as Exhibit B and incorporated herein by reference. 6. Pursuant to the policy in question and the allegations in the Complaint, Decoster submitted a claim related to the Complaint filed by Rydman. 7. The Complaint in question describes a situation wherein Decoster intentionally shot the Plaintiff, mistaking her for a male intruder (see ¶26 of the underlying Complaint). 8. Specifically, at ¶19, the underlying Complaint states: "Defendant, who was carrying his handgun, rounded the foot of the stairs and ran from the hallway and then through the living room toward the dining room, where he encountered the Plaintiff, whom he mistook for an intruder." 9. The underlying Complaint at ¶20 states: "Alarmed, Plaintiff instinctively ran in the other direction, and Defendant chased her in a circuit through the hallway, the living room and the dining room, until Plaintiff took a wrong turn and Defendant cornered her in the hallway." 10. The underlying Complaint at ¶22 states: "Plaintiff also noticed, as Defendant approached her, that his eyes were extremely wide open, as if in fear or excitement." 11. The underlying Complaint at ¶23 states: "Defendant then pointed the handgun at Plaintiff and shot her in the abdomen." 12. The underlying Complaint at ¶26 states: -2- "After the police responded to the call, Defendant, still unaware that he had shot Plaintiff, insisted to the police that he shot a male intruder." 13. The policy of insurance states: "If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will: pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability." 14. The policy of insurance defines the word occurrence as follows: "when used in Section II of this policy, means an accident, including exposure to conditions, which results in: a. bodily injury; or b. property damage; during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence. 15. The policy of insurance provides the following relevant exclusions: "Coverage L and Coverage M do not apply to: a. bodily injury or property damage: (1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured. 16. Based upon the specific allegations set forth in the Complaint, as well as supporting documentation from Mr. Decoster's criminal proceedings, Decoster's act of shooting a gun at an individual was not an occurrence as defined by the policy of insurance. -3- 17, Defendant Decoster's act of shooting a gun at Rydman was not an accident as defined by the policy of insurance, as it is clear that he intended to shoot an intruder. 18. Defendant Decoster's act of shooting a gun is excluded under the policy of insurance as it was expected or intended. 19. Defendant Decoster's act of shooting a gun at Rydman is excluded under the policy of insurance as the act was willful and malicious. 20. The State Farm insurance policy issued to Defendant Decoster does not provide coverage or a duty to defend him because the alleged injuries claimed by the underlying Plaintiff were not the result of an accident as defined by the policy. 21. The State Farm insurance policy issued to Defendant Decoster does not provide coverage or a duty to defend him because the alleged injuries claimed by the underlying Plaintiff were not the result of an occurrence as defined by the policy. 22. The State Farm insurance policy issued to Defendant Decoster does not provide coverage or a duty to defend him because the alleged injuries claimed by the underlying Plaintiff were allegedly caused as the result of conduct that was either expected or intended by Defendant. 23. The State Farm insurance policy issued to Defendant Decoster does not provide coverage or a duty to defend him because the alleged injuries claimed by the underlying Plaintiff were caused as the result of the willful and malicious acts of Defendant Decoster. 24. Even though it is alleged in the underlying Complaint that Defendant Decoster mistook Rydman for a male intruder, it is uncontroverted that he intended to shoot the "male intruder". 25. Even though Defendant Decoster did not know the identity of his victim, he intended to shoot his gun and cause injury to an individual. Therefore, his actions would be -4- considered intentional and excluded under the policy of insurance (see United Sers. Auto. Ass'n v. Elitzsky, 358 Pa.Super. 362, 373, 517 A.2d 982, 988 (Pa.Super. 1986). WHEREFORE, Plaintiff, State Farm Fire and Casualty Company, moves for judgment declaring that it has no duty to defend or indemnify Defendant, James Decoster, for any and all allegations arising out of the facts stated in the Complaint filed by Beverly Diane Rydman. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP 11 By: David I olenberg, Esquire Attorn f r Plaintiff -5- State Farm Fire and Casualty Company A Home Office, Bloomington, Illinois 61710 Ballston Spa Operations Center 100 State Farm Place Ballston Spa, NY 12020-8000 CERTIFICATE I, the undersigned, do hereby certify that I am custodian of the records pertaining to the issuance of policies issued by State Farm Fire and Casualty Company of Bloomington, IL that are processed by the Personal Lines Fire Division of the Ballston Spa Operations Center. Based on our available records, I further certify that the attached coverage summary prepared March 23, 2011 represents a true copy of the policy provisions and coverages as of August 15, 2008 for policy 38-EQ-4233-9 issued to Decoster, James 161 W Louther St Carlisle PA 17013-2938 Darlene Latinski Underwriting Support Services Supervisor State Farm Fire and Casualty Company Ballston Spa Operations Center 100 State Farm Pl Ballston Spa NY 12020 Er INPAR State Farm Fire and Casualty Company A Stock Company With Home Offices in Bloomington, Illinois 100 STATE FARM BALLSTON SPA NY 12020-8000 Named Insured DECOSTER, JAMES 161 IN LOUTHER ST CARLISLE PA 17013-2938 P-13- 6278-F382 HOMEOWNERS POLICY DECLARATIONS PAGE COVERAGE SUMMARY 12 Months MAY 17 2008 MAY 17 2009 The policy period begins and ends at 12:01 AM standard time at the residence premises. Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automatically subject to the ppreremmiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the M?rtaaaee/Lienholder written notice in compliance with the policy provisions or as reauired by law. Location of Residence Premises: Same as Insured's Address Coverages & Property Limits of Liability SECTION I A Dwelling $ 331,400 Dwelling Extension Up To $ 33,140 B Personal Property $ 248,550 C Loss of Use $ Actual Loss $ Sustained SECTION II L Personal Liability $ 100,000 Each Occurrence) Damage to Property $ 500 of Others M Medical Payments to $ 1,000 Others (Each Person) Loss Settlement Provisions (See Policy) Al : Replacement Cost - Similar Construction 61 : Limited Replacement Cost - Coverage B Forms, Options, and Endorsements Homeowners Policy FP-7955 Ordinance/Law 1096 $33.140 OPT OL Increase Dwlg up to $66,280 OPT ID Jewelry and Furs $1,500 / $2,500 OPT JF Amendatory Endorsement FE-7269 Policy Endorsement FE-5320 Fungus (including mold) Excl FE-5398 Motor Vehicle Endorsement FE-5452 Telecommuter Coverage FE-5831 Deductibles - Section I All Losses $ 500 In case of loss under this policy, the deductible will be applied per occurrence and will be deducted from the amount of the loss. Other deductibles may apply - refer to your policy. Discount(s) Applied: Claim Free Home/Auto Other Limits and exclusions may apply - refer to your policy Your policy consists of this page, any endorsements and the policy form. Please keep these together. FP-7001.6C MIKE SHOPE Ic Prepared Mar 23 2011 717-241-3029 COM M FROM FRONT BiM •••.••••State Farm Fire and Casualty Company A Stock Company With Home Offices in Bloomington, Illinois MSw.wc? 100 STATE FARM BALLSTON SPA NY 12020-8000 Named Insured DECOSTER JAMES 161 IN LOUVER ST CARLISLE PA 17013-2938 P-13- 6278-F382 HOMEOWNERS POLICY DECLARATIONS PAGE COVERAGE SUMMARY 12 Months MAY 17 2008 MAY 17 2009 The policy period begins and ends at 12:01 AM standard time at the residence premises. Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automatically subject to the premi ims, rules and forms in effect for each succeeding policy period. If this policy, is terminated, we will give you and the Mortaaaee/l.ienholder written notice in compliance with the policv provisions or as required by law. Location of Residence Premises: Same as Insured's Address Coverages & Property Limits of Liability SECTION I A Dwelling $ 331,400 Dwelling Extension Up To $ 33,140 B Personal Property $ 248,550 C Loss of Use $ Actual Loss $ Sustained SECTION II L Personal Liability $ 100,000 (Each Occurrence) Damage to Property $ 500 of Others M Medical Payments to $ 1,000 Others (Each Person) Inflation Coverage Index: Deductibles - Section I All Losses $ 500 In case of loss under this policy, the deductible will be applied per occurrence and will be deducted from the amount of the loss. Other deductibles may apply - refer to your policy. Loss Settlement Provisions (See Policy) Al : Replacement Cost - Similar Construction B1 : Limited Replacement Cost - Coverage B Forms, Options, 3 Endorsements Homeowners Policy FP-7955 Ordinance/Law 10% $33,140 OPT OL Increase Dwlg up to $66,280 OPT ID Jewelry and Furs $1,500 / $2,500 OPT JF Amendatory Endorsement FE-7269 Policy Endorsement FE-5320 Fungus (including mold) Excl FE-5398 Motor Vehicle Endorsement FE-5452 Telecommuter Coverage FE-5831 Policy Premium Discount(s) Applied: Claim Free Horne/Auto Other Limits and exclusions may apply - refer to your policy Your policy consists of this page, any endorsements and the policy form. Please keep these together. FP-7001.6C NgKE SHOPS Ic Prepared Mar 23 2011 717-241 -029 CONTINUED FROM FRONT SIDE .•••• State Farm Fire and Casually Company DECLARATIONS PAG Y A Stock Company With Home Offices in Bloomington, Illinois MAR 23 2011 / ?a?, Pocky Number 100 STATE FARM BALLSTON SPA NY 12020-8000 Pocky Period: Effective Date: Expiration Date: Named Insured 12 Months MAY 17 2008 MAY 17 2009 P-13- 6278-F382 The ?? period begins and ends at 12:01 AM standard time at the residence premises. 1161 IN LOUVER ST CARLISLE PA 17013-2938 CERTIFIED HOMEOWNERS POLICY Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automatically subject to the ppremiums, rules and forms in effiect for each succeeding policy period. If this policy is terminated, we will give you and the Mortaacee/Lienhoider written notice in compliance with the policy provisions or as regWred by law. Location of Residence Premises: Same as Insured's Address Coverages & Property Limits of Liability SECTION I A Dwelling $ 331,400 Dwelling Extension Up To $ 33,140 B Personal Property $ 248,550 C Loss of Use $ Actual Loss $ Sustained SECTION II L Personal Liability $ 100,000 Damage t Occurrence) (Each to Property $ 500 of Others M Medical Payments to $ 1,000 Others (Each Person) Loss Settlement Provisions (See Policy) Al : Replacement Cost - Similar Construction 61 : Limited Replacement Cost - Coverage B Forms, Options, 3 Endorsements Homeowners Policy FP-7955 Ordinance/Law 10% $33,140 OPT OL 9 up to $66,280 Increase " OPT ID . Jewel and urs $1,500 / $2,500 OPT JF Amendatory Endorsement FE-7269 Policy Endorsement FE-5320 Fungus (including mold) Excl FE-5398 Motor Vehicle Endorsement FE-5452 Telecommuter Coverage FE-5831 Inflation Coverage Index: 214.2 Deductibles - Section I All Losses $ 500 4 In case of loss under this policy, the deductible will be applied per occurrence and will be deducted from the amount of the loss. Other deductibles may apply - refer to your policy. Policy Premium Discount(s) Applied: Claim Free Home/Auto Other Limits and exclusions may apply - refer to your policy Your policy consists of this page, any endomements and the policy form. Please keep these together. FP-7001.6C MIKE SHOP= Ic Prepared Mar 23 2011 717-241-3029 CONTWO FROM FRONT BIDE FE-7269 (10/97) AMENDATORY ENDORSEMENT (Pennsylvania) SECTION I - ADDITIONAL COVERAGES Debris Removal is replaced with the following: Debris Removal. We will pay the reasonable expenses you incur in the removal of debris of covered property when coverage is afforded for the peril causing the loss. This expense is included in the limit applying to the dam- aged property. When the amount payable for the property damage plus the debris removal expense exceeds the limit for the damaged property, an additional 5% of that limit is available for debris removal expense. Tree Debris Removal. We will pay for reasonable ex- penses you incur in the removal from the residence premises of tree, shrub or plant debris subject to the following: a. if loss is caused by windstorm, hail or weight of ice, snow or sleet: (1) we will pay up to $150; and (2) we will pay up toan additional $350 forthe removal of tree debris when property covered under Cov- erage A is damaged and the Governor of Pennsyl- vania has declared the area in which the residence premises is located to be a disaster area as a result of such weather conditions; or b. if the loss is caused by other SECTION I - LOSSES INSURED, we will pay up to $500 for the removal of tree debris when the tree has damaged property cov- ered under Coverage A. We will pay no more than $500 in the aggregate for each Loss Insured. SECTION II - LIABILITY COVERAGES COVERAGE M - MEDICAL PAYMENTS TO OTHERS: The three year limitation on medical expenses for funeral services is deleted. SECTION I AND SECTION II - CONDITIONS Cancellation: All references to 10 days" are changed to "30 days". Right to Inspect is added: Right to Inspect. We have the right but are not obligated to make inspections and surveys at any time, give you reports on conditions we find and recommend changes. Any inspec- tions, surveys, reports or recommendations relate only to insurability and the premiums to be charged. We do not: a. make safety inspections; b. undertake to perform the duty of any person or organiza- tion to provide for the health or safety of workers or the public; c. warrant that conditions are safe or healthful; or d. warrant that conditions comply with laws, regulations, codes or standards. This condition applies not only to us but also to any rating, advisory, rate service or similar organization which makes insurance inspections, surveys, reports or recommendations. Joint and Individual Interests is added: Joint and Individual Interests. When there are two or more named insureds, each acts for all to cancel or change the policy. All other policy provisions apply. FE-7269 (10/97) FE-5320 (4/99) POLICY ENDORSEMENT SECTION I AND SECTION II - CONDITIONS The following condition is added: Premium. The premium for this policy may vary based upon the purchase of other insurance from one of the State Farm affiliated companies. All other policy provisions apply. FE-5320 (4/99) FE-5398 FUNGUS (INCLUDING MOLD) EXCLUSION ENDORSEMENT DEFINITIONS The following definition is added: In item 2., the following is added as item g.: g. Fungus. We also do not cover. "fungus" means any. type or form of fungus, including mold, mildew, mycotoxins, spores, scents or byproducts produced or released by fungi. SECTION I - LOSSES INSURED Item 12.d. is replaced with the following: d. caused by or resulting from continuous or repeated seepage or leakage of water or steam which occurs over a period of time and results in deterioration, corrosion, rust, or wet or dry rot. hem 131. is replaced with the following: b. caused by or resulting from continuous or repeated seepage or leakage of water or steam which occurs over a period of time and results in deterioration, corrosion, rust, or wet or dry rot. SECTION I - LOSSES NOT INSURED Rom 1.i. is replaced with the following: i. wet or dry rot; (1)any loss of use or delay in rebuilding, repairing or replacing covered property, including any associated cost or expense, due to interference at the residence premises or location of the rebuilding, repair or replacement, by fungus; (2) any remediation of fungus, including the cost to: (a) remove the fungus from covered property or to repair, restore or replace that property; or (b)tear out and replace any part of the'building or other property as needed to gain access to the fungus; or (3) the cost of any testing or monitoring of air or property to confirm the type, absence, presence or level of fungus, whether performed prior to, during or after removal, repair, restoration or replacement of cov- ered property. All other policy provisions apply. FE-5398 FE-5452 MOTOR VEHICLE ENDORSEMENT DEFINITIONS The definition of "motor vehicle" is replaced by the following: "motor vehicle", when used in Section II of this policy, means: a. a land motor vehicle designed for travel on public roads or subject to motor vehicle registration; b. a trailer or semi-trailer designed for travel on public roads and subject to motor vehicle registration; c. a "recreational vehicle" while off an insured location. "Recreational vehicle", means a motorized vehicle designed for recreation principally off public roads that is owned or leased by an insured. This includes, but is not limited to, a motorized all terrain vehicle, amphibious vehicle, dune buggy, go-cart, golf cart, snowmobile, trailbike, minibike and personal assistive mobility device; d. a "locomotive" while off an insured location. "Loco- motive" means a self-propelled vehicle for pulling or pushing freight or passenger cars on tracks that is large enough to carry a person and is owned or leased by an insured; e. a bulldozer, track loader, backhoe, high-hoe, iren- cher, grader, crane, self-propelled scraper, excava- tor, pipe-layer, cherry picker, telehandler, logging vehicle, mining vehicle or road building vehicle that is owned or leased by an insured while off an insured location; f. any vehicle while being towed or pushed by or carried on a vehicle included in a., b., c., d. or e.; g. the following are not motor vehicles: (1)a motorized land vehicle in dead storage on an insured location; (2)a boat, camp, home or utility trailer not being towed or pushed by or carried on a vehicle included in a., b., c., d. or e.; (3) a motorized golf cart while used for golfing pur- poses; (4) a motorized vehicle or trailer designed to assist the handicapped that is not designed for travel on public roads or subject to motor vehicle registra- tion; h. "leased" does not include temporary rental. All other policy provisions apply. FE-5452 FE-5831 Page 1 of 1 TELECOMMUTER COVERAGE SECTION I - COVERAGES COVERAGE A - DWEWNG The following replaces item 2.b.: b. used in whole or in part for business purposes unless such use consists solely of use of office space for paperwork, computer work or use of a telephone, and consists solely of activities that are: (1) duties of the insured's employment by another, and (2) performed solely by the Insured. FE-5831 FP-7955 (8m) STATE FAIM INSURANCE STATE iARM INSURANCE This policy is one of the broadest forms available today, and provides you with outstanding value for your insurance dollars. FP-7955 ." W``° However, we want to point out that every policy contains limitations and exclusions. Please read your policy carefully, (&,96) °LA especially 'Losses Not Insured' and all exclusions. 'TABLE OF CONTENTS DECLARATIONS Your Name Location of Your Residence Policy Period Coverages Limits of Liability Deductibles Begins on Page DECLARATIONS CONTINUED 1 .. ..... DEFINITIONS 1 SECTION I - YOUR `PROPERTY COVERAGES . ... .. .. : 3 Coverage A - Dwelling ... ... 3 Coverage B - Personal Property . . . . , , , , , , .. 3 Coverage C - Loss of Use . ..?. ... . . . . .. . . . . . 4 Additional Coverages . . . .. . . ... . . 5 . . . . . . . . . . . Inflation Coverage' . . . ... . . . . . .. .. .:. LOSSES INSURED . 7 7 LOSSES NOT INSURED ' . . .. .. .. : . LOSS SETTLEMENT :. 9 ... .. . . .. 11 CONDITIONS .. ... ... . . 13 SECTION II - YOUR LIABILITY COVERAGES ... .. 15 Coverage .L - Personal Liability . . .. .. Coverage M - Medical Payments to Others 15 5 1 Additional Coverages . .. . .. . ... . 15 . . .. . . . . . EXCLUSIONS . . . . .. . . . . . . . .. .. . . . . . . . . CONDITIONS, 16 ... . . . . . 18 . SECTION 'l AND SECTION II - CONDITIONS ' . . . . .. . .. . . 19 OPTIONAL POLICY PROVISIONS . . . . .. . . . . . . . . . . . . . . . 20 In dopy ighted materiai of State Farm Fire and Casbafty Company. Copyright, State Farm Fire and Casualty Company; 1983, .1992., FP-7955 (8/96) Printed in U.S.A. HOMEOWNERS POLICY DECLARATIONS CONTINUED We agree to provide the insurance described in this policy: 1. based on your payment of premium for the coverages you chose; 2. based on your compliance with all applicable provisions of this policy; and 3. in reliance on-your statements in these Declarations. You agree, by acceptance of this policy, that: 1. you will pay premiums when due and comply with the provisions of the policy; 2. the statements in these Declarations are your state- ments and are true; t 3. we insure you on the basis your statements are true; and 4. this policy contains all of the agreements between you and us and any of our agents. Unless otherwise indicated in the application, you state that during the three years preceding the time of your application for this insurance your Loss History and Insurance History are as follows: 1. Loss History: you have not had any losses, insured or not; and 2. Insurance History: you-have not had any. insurer or agency cancel or refuse to issue or renew similar insur- ance to you or any household member. DEFINITIONS "You" and "your" mean the "named insured" shown in the Declarations. Your spouse is included if a resident of your household. "We", "us" and "our" mean the Company shown in the Declarations. Certain words and phrases are defined as follows: 1. "bodily injury" means physical injury, sickness, or dis- ease to a person.; This includes required care, loss of services and death resulting therefrom. 2. "business" means a trade, profession or occupation. This includes farming. 3. "Declarations" means the policy Declarations, any amended Declarations, the most recent renewal notice or certificate, an Evidence of Insurance form or any endorsement changing'any of these. 4. "insured" means you and, if residents of your household: Bodily injury does not include: a. any of the following which are communicable: dis- ease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person; b. the exposure to any such disease, bacteria, parasite, virus, or other organism by any insured to any other person; or c. emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person. a. your relatives; and { b. any other person under the age of 21 who is in the care of a person described above. Under Section II, "insured" also means: c. with respect to animals or watercraft to which this policy applies, the person or organization legally responsible for them. However, the animal or water- craft must be owned by you or a person included in 0. or 4.b. A person or organization using or havin custody of these animals or watercraft in the cours of a business, or without permission of the owner, i not an insured; and d. with respect to any vehicle to which INS policy,ap- plies, any person while engaged in your employment or the employmentof a person included in 4.a. or 4.b. 5. "insured location" means: a. the residence premises; b. the part of any other premises, other structures and grounds used by you as a residence: This includes premises, structures and grounds you acquireyfhile this policy is in:effect for your use as -a residence; c. any premises used by you in connection with the premises included in 5.6. or 5b.; d. any part of a premises not owned by an •Insured but where an insured is temporarily residing; .. e. land owned by or rented to an insured on'which a one or two family dwelling is being constructed as a residence for an insured; f. individual or family cemetery plots or burial vaults owned by an insured; g. any part of a premises occasionally rented to an insured for other than business purposes; h. vacant land owned by oriented to an insured. This does not include farm land; and i. farm land (without buildings), rented or held for rental to others, but not to exceed a'total of 5Qb acres, regardless of the number of locations. 6. "motor vehicle", when used in Section II ofANs policy, means: a. a motorized land vehicle designed fortravel on public roads or subject to motor vehicle registration. A mo- torized land vehicle in dead storage on an insured location is not a motor'vehicle; b. a trailer or semi-trailer designed for travel,on public roads and subject to motor vehicle registration. A boat, camp, home or utilitytrailer not being towed by . or carried on a vehicle included in 6.a. is not a motor vehicle; c. a motorized golf cart, snowmobile, motorized bicycle, motorized tricycle; all-terrain vehicle or any other similar, type equipment owned by an insured and designed or used for recreational or utility. purposes off public roads, while off an insured location. A motorized golf cart while used for golfing purposes is not a motor vehicle; and d. any vehicle while being towed by or carried on a vehicle included in 6.a., 6.b. or 6.c. 7. "occurrence", when used in Section II of this policy, means an accident, including' exposure to conditions, which results in: a. bodily injury; or b. property damage; during the.policy period. Repeated or continuous expo- sure.to the same general conditions is considered to be one occurrence. 8. "property damage" means physical damage to or de- struction,of tangible, property, including loss of use of this property. Theft or conversion of property by any insured is not property: damage. 9. "residence employee" means an employee of an in- sured who performs duties; including `household or do- mestic services, in connection with the maintenance or use of the residence;premises. This includes employ- ees who perform similar duties elsewhere for you. This does.not include employees while performing duties in connection with the business of an insured. 10. "residence premises" means: a. the one, two, three or four-family dwelling, other structures and grounds; or b. that part of any other building; where you reside and. which is shown in the ,Declara- tions. 2 FP-7955 SECTION I - COVERAGES COVERAGE.A DWELLING 1. Dwelling. We cover the dwelling used principally as a private residence on the residence premises shown in the Declarations. Dwelling includes: a. structures attached to the dwelling; b. materials and supplieslocatedon'oradjacent to the residence premises for use" in' the 'construction, alteration or repair of the dwelling or other structures on the resfdence,preinises; c. foundation, floor slab and footings supporting the dwelling; and d. wall-to-wall carpeting attached to the dwelling. Dwelling. Extension. We cover other structures on the residence premises; separated from. the 'dwelfing by clear space. Structures connected tothe dwelling by only a fence, utility line, or similar connection ae considered to be other structures., We ;do not cover other structures: a. not permanently attached to or otherwise forming a part of the realty; b. used in whole or in pad. for business purposes; or c. rented or held for rental to a person not a tenant of the dwelling, unless used selel)i as a private garage. 3. Property Not Covered. We do not cover: a. land, including the land necessary to support any Coverage A property.; b. any, costs required to replace, ,rebuild; stabilize, or otherwise restore the land; or c. the costs of repair. techniques designed to-compen- sate for or prevent land instability to any property, whether or not insured under Coverage A. COVERAGE B - PERSONAL PROPERTY 1. Property Covered. We cover personal property owned or used by an insured while it is anywhere in the world. This includes structures not permanently attached to or otherwise forming a part of the realty. At your request, we will cover personal property owned by others while the property is on the part of the residence premises occu- pied exclusively by an Insured.. At your request, we will also cover personal property owned by a guest or a residence employee, while the property is in any other residence occupied by aminsured. We.cover,personal ;property usually situated at an in- sured's residence, other than the residence premises, for up to.$1,000,or;10% of the Coverage :B limit, which- ever is greater. This limitation does not apply to personal property in a newly acquired principal residence for the first 30 days after you start moving the property -there. If the residence premises is a newly acquired principal residence, personal property in your immediate past principal residence is not subject to this limitation for the first 30 days afterthe inception of this policy. Special Limits of Liability. These limits do not increase the Coverage B limit. The special limit for each of the following categories is the total limif for each loss for all property in that:category. a. $200 on money,'coin's and medals, including any of .;these that are a partof a collection, and bank notes; b. $1,000 on propery used or intended for use in a business, including merchandise held as samples or for.sale or for delivery after sale, while on the resi- denceprenrses. This coverage.is limited to $250 on such property away from the residence premises. Electronic'data processing system equipment or the recording or storage media used with that equipment is not included under this coverage c. $1,000 on securities, checks, cashier's checks, trav- eler's checks, money. or and other negotiable instruments, accounts, deeds, evidences of debt, letters of credit, notes other than bank notes, manu- scripts, passports and tickets; d. $1,000 on watercraft of all types and outboard mo- tors, including their trailers, furnishings and equip- ment; e. $1,000 on trailers not used with watercraft; r z FP-7955 9• h. $2,500 on stamps; trading cards and'corric;b6oks, including any of these that are a part of a collection; $2,500 for loss by theft of.firearms; $2,500 for loss by theft;of`silderware and goldware; $5,000 on electronic data.prpcessing system.equip- ment and the recording or storage media used with that equipment: There is no coverage for said equip- ment or media while located away from'the'resi- dence premises except when said -equipment or media are removed from the`residence premises for the purposeoftrepair, servicing or temporaryuse. An insured student's equipment and media are c_ overed while at a residence away from home; and $5,000 on any one article and $10,000 in the aggre- gate for loss by theft of any rug, ; carpet_(except wall-to-wall carpet), tapestry, wall-hanging' or' other similar article. 2. Property Not Covered. We,do not cover: a. articles separate'lydescribed and'specifically insu[ed in this or any other insurance; b. animals, birds or fish; c. any engine or motor propelled vehicle or machine, including the parts, designed for movement on land. We do cover those not licensed for use on public highways which are: (1) used solely to service the: insured location; or (2) designed for assisting the handicapped; d. devices or instruments for the recording or reproduc- tion of sound petmanentlyattach'ed to an engine or motor propelled vehicle. We ado not cover tapes, wires,; records :or other, mediums that may be used with these devices or instruments while in the vehicle; e. aircraft and parts; I. property of roorpfrs, boarders, tenants and other residents not related to art insured. Vile do cover property of roomers, boarders and---other residents related to an insured; g. property regularly rented or'heldfor rental to others by. an insured. This exclusion does not apply to property of an insured in a sleeping room rented to others by an insured; h. property rented orheld for rental to others away from the residence premises; i. any citizens band radios,. radio telephones, radio transceivers, radio transmitters, radar or laser detec- tors, antennas and othersimilar 'equipment perma nently attached to an engine or motor propelled vehicle; j. books of account, abstracts, drawings, card index systerns' and other records. This exclusion does not apply to any recording or storage media for electronic data processing. We will cover the cost of blank books, cards or other blank material plus the cost of labor you incur for transcribing or copying such re- cords;-pr k. recording orstorage media for electronic data proc- essing that cannot be'replaced with other of like kind and quality on the current retail market. COVERAGE C - LOSS OF USE 1. Additional Living Expense. When a Loss Insured causes the residence premises to become uninhabit- able, we will cover the necessary increase in cost you incur to 'maintain your standard of living for up to 24 months. Outpayment is limited to incurred costs for the shortestot (a)Ahe time required to repair or replace the premises, (b) the time'required'_for your household to settle elsewhere; or (c) 24 months: This coverage is not reduced by the expiration 'of this policy. 2, Fair Rental Value, When a Loss Insured causes that part of.the residernct premises rented to others or held for rental by youIto become uninhabitable; we will cover its fair rental value. Payment shall be for the shortest time required to repair or replace the part of the premises rented or held for rental, but not to'exceed 12 months. This period of time is not limited by expiration of this policy. Fair rental value shall not include any expense that does not cdntinue while that part of the residence prem- ises rented oe held.for rental is uninhabitable. 3. Prohibited.Use: Whena civil authority prohibits your use of the'residenceypremisesbecause of direct damage to a neighboring premises`bya Loss insured, we will cover any,res4iting Additional Living. Expense and Fair Rental FP-7955 Value. Coverage is for a period not exceeding two weeks while use is prohibited. We do not coverloss or expense due to cancellation of a lease or agreement. SECTION t -'ADDITIONAL COVERAGES The following Additional coverage's are subject to all the terms, provisions,. exclusions and,condons of this policy. 1. Debris Removal. We will pay the reasonable expenses you incur in." jemoval of debris of covered property damaged by a Loss Insured. This expense is included in the limit applying to the damaged property. When the amount payable for the property damage plus the debris removal exceeds the"limi-Odrthe damaged property, an additional 5% of that limit is available for debris removal expense. This additional amount of insur- ance, does not _apply, to; Additional Coverage, item 3. Trees, Shrubs and Other Plants,; . We will also pay up to $500 in the aggregate for each loss to cover the reasonable enses you incur in the re- moval of tree debris from the residence premises when the tree has caused a L•oss'Insured to Coverage A property. 2. Temporary Repairs. If damage is caused by a-Loss Insured, we will pay the reasonable and,necessary cost you incur for temporary :repairs to coveted,property to protect the: propedy from further immediate damage or loss. This coverage ;,does not increase the limit applying to the property being repaired., . 3. Trees, Shrubs -and Other •Plants.:INe cover outdoor trees; shrubs, plants,or lawnsjoCIRthe residence prem- ises,>for direct loss caused byfthe;following:, Fire or lightning; Explosion,:•Riot or civil commotion., Aircraft, Vehicles (not. owned or. operated by a resident_:of the residence-premises), Vandalism or malicious mischief or Theft. The limit for this coverage, inGludrn';.the removal of debris, shalf not exceed 5% oftthe amount shown in the Declaritions1for .MRAGE"A 'DWELLING. We will not?pay.more than $500 for anyone vutidoor tree, .shrub or plant; including: debris,rerhovalr;expen'se?,This cover- age may increase the.limit othe.rMw,,applicable. We do not cover property grown forbusiness purposes. 4-Fire Department Service Charge. We will pay up to $500 for your liability assumed by.contract.or agreement for fire department charges. This means charges incurred when the fire deoailtrihi is called to save or protect covered property.frorrr,,a,-Loss insured., No deductible applies to this coverage. This coverage may increase the limit otherwise applicable. 5. Property Removed.; Covered property, while being re- moved from a premises endangered by a Loss;lnsured, is covered for any accidental direct physical loss. This coverage alsQ;applie to the property for up to 30 days while removed. We will also payfor:reasonableexpenses incurred by,you,for the removaland,retum of the.covered property. This coverage does not increase the limit ap- plying to the property being removed. 6. Credh,,Pard, Bank Fund Transfer Card, Forgery and Counterfeit Money., a. We will pay up to $1,000 for: (1) the legal oblig6ficin of an insured to pay because of the theft or unauthorized use of credit cards and bank fund transfer?cards issued to. or regis- tered in an insured's name. If an insured has not complied with all terms and conditions under which the cards are. issued, we do not cover use by an insured oranyone else; (2) loss to aninsureidcausedbyforgery or alteration of any check or negotiable instrument; and (3) loss to an: insured through acceptance in good faith of counterfeit United States or Canadian paper currency. ` No deductible applrgs to this coverage. We will not pay more than the limit stated above for forgery or alteration committed by any one person. This limit applies when theJorgery, or alteration in- volves one or more instruments in the same loss. b. We do not cover loss arising out of business pursuits or dishonestydf an insut'nd. c. Defense: (1) We may make any investigation and settle any claim or suit that-ve decide, is appropriate. Our obligation to.defend claims or suits ends when FP-7955 the amount we pay for the loss equals our. Gmitof liability. (2) If claim is made or a suit is brought against `an insured for liability under the Credit Card or Bank Fund Transfer Card coverage, we will provitle a defense. This defense' is at our expense by coun- sel of our choice. (3) We have the option to defend at our expense . an insured or an insured's bank,agaytst-any suit for the enforcement of payment poder`the For= gery coverage. ?. Power Interruption. We cover accidental;di fact physical loss caused directly or indirectlyby a ehan'go of tempera- ture which results from power interrupCoii that takes place on the residence premises. The power interrup- tion must be caused by a Loss Insured;oixprring.pn The residence premises. The power lines off theresiderice' premises must remain energized This coverage'does not increase the'limit ap'plorfd to the damaged'property. 8. Refrigerated Products. Coverage B-is extended to cover the contents of deep freeze or refrigerated units on the residence pnmises for loss due to power failure or mechanical failure.1f mechanical failure or;power.failure is known to you, all reasonable' means must be used to protect the property insured from further damage or this coverage is void. Power failure ormechanical failure shall not include: a. removal of a plug from an electrical outlet, or'. b. turning off an electrical switch unless caused,by a Loss Insured. This coverage does not increase the limit applying to the damaged property. 9. Arson Reward. We will pay $1;;000 for information which leads to an arson conviction in connection with a fire loss to property coveredby this-:policy. This coverage may increase the limit !otherwise ;applicable. ,.However, the $1,000 limit shall not be increased ,regardless of the number of personsproviding information: 10. Volcanic Action. We cover direct physical loss to a Wired building :or covered.-property eontaikd in a building resulting from the eruption of a volcano when the loss is directlyand immediately caused by a.? volcanic' blast or airborne shock waves; b. ash, dust or particulate matter; or c. lava flow. We will also pay. for the. removal of that ash, dust or particulate' matter which has caused direct physical loss to a covered building or covered property contained in a building: One or more volcanic eruptions that occur within a 72- hour period shall be considered one volcanic eruption. This coverage does not increase the limit applying to the damaged property. 11. Collapse. We insure only for direct physical loss to covered property involving the sudden, entire collapse of a building or, any part of a building. Collapse means actually fallen down or fallen into pieces. It does not include settling, cracking, shrinking, bulging, expansion, sagging or bowing, the collapse must'be'directly and immediately caused only by one or more of the following: a. perils described in SECTION I?- LOSSES INSURED, COVERAGE B - PERSONAL PROPERTY. These penis apply to coveredbu. ilding and personal property for loss insured by this. Additional Coverage; b. hidden decay of a supporting or weight-bearing struc- tural member of the building; c. hidden'irisect or vermin damage to a structural 'mem- be"r of the buikflrrg; A. weight of contents,- equipment, animats or people; e. weight of ice, snow, sleet.or rain which collects on a roof; or f. use of defective material or. methods in the construc- tion (includes rerrl4deling or renovation) of the build- ing, if the collapse occurs during the course of the construction of the building. Loss to an awning, fence, patio,: pavement, swimming pool, underground pipe, flue, drain, cesspool, septic tank, foundation,'retalnirigwall bulkhead, pier, what or dock is not included under items b., c., d., e. and I. unless the FP-7955 loss is the direct and immediate cause of'the collapse of the building. This coverage does not increase the limit applying to the damaged property. 12. Locks..We will pay the reasonable'expenses you incur to're-key locks pn exterior doors o#'th6- dwelling located on the residence premises, when the keys to those locks are a part of a covered theft loss. No deductible applies to this, coverage: INFLATION' COVERAGE The limits of liability, shown in. the Declarations for Cover- age A, Coverage Band, when applicable, Option lb will be COVERAGE A.- DWELLING. increased:-at the same rate as the increase in the Inflation Coverage Index shown in the Declarations. To find the limits on a given date: 1. divide.. the Index on, that date- by the Index as of the effective date of this Inflation Coverage provision; then 2. multiply the resulting factor by the limits of liability for Coverage A, Coverage B and Option ID separately. The limrts`bf liabilitywill not'be reduced to less than the amounts 9fi8`h in thieDeclarations. If during the term of this policy the CoverageA limit of iability is;charng afyour request, the effective date 'of thiOnflation Coverage provisipn is changed to coincide with the effective date of such change: SECTION I LOSSES, INS?U4"v)., We insure for accidental direct physical toss to the property described in Coverage k..exceptas provided in SECTION I - LOSSES NOT INSURED. COVERAGE B-.-PERSONAL.PROPERTY We insure for , accidental direct physical loss to property described in Coverage, 8 caused by the following perils, except as provided in SECTION I -LOSSE$ N&MURED: 1. Fire or lightning. 2,. Windstorm pr hail, This,peril does not include loss to property contained in a_building caused by rain, snow, sleet, sand or dust. This limitation does not apply when the direct force :of*nde ordiail damages the building causing an opening in a roof or wall and the rain, snow, sleet; sand or dust enters through this`opening. This peril includes loss to watercraft of all types and their trailers, furnishing's,equipment, and outboard motors, only while' it sidO fully enclosed building.. 3. Explosion. 4. Riot or civil commotion. 5. Aircraft, including. self-propelled missiles and space- craft. 6. Vehicles, meaning impact by a vehicle. 7. Smoke, ,meaning sudden and accidental damage from smoke'. This peril does not include loss caused by smoke'from agricultural smudging br industrial operations 8. Vandalism or.maicious mischief, meaning only willful and malicious damage to or destruction of property. 9. Theft, including attempted theft and loss of property from a known location when it is probable that the property has been stolen. This peril does not include: a. loss of a ,precious or semi-precious stone from its setting; b. loss caused by. thef t: . (1) .-committed by an insured or by any other'person ;regularly residing on the insured location. Prop- erty of -a, student who is an insured pis :covered 'h* a located at a residence away from home, if - the this committed by:a person who. is not an insured; (2) in or. to a.dwelling under construction or of mate- rials andsuppliesforuse in'the.constructiori until the.dwelling is completed and occupied; or is FP-7955' (3) from the part of a residence premises rented to others: (a) causedby a.tenant, members of the tenant's household, or the tenant's employees; (b) of money, bank notes, bullion, gold, gold- ware, silver, silverware, pewterware, plati- num, coins and medals; (c) of securities, checks, cashier's checks, trav- eler's checks, money orders and other nego- tiable instruments, accounts, deeds, evidences of debt,,letters of credit, notes other than bank notes, manuscripts, pass- ports, tickets and stamps; or (d) of jewelry, watches, fur garments and gar- ments trimmed with fur, precious and semi- precious stones; c. loss caused by theft that occurs away from the resi- dence premises of: 12. Sudden and accidental dischargeor overflowof water or steam from withirva plumbing, heating, air conditioning or automatic fire protective sprinkler system, or from within a household appliance. This peril does not include loss: a. to the system or appliance from which the water or steam escaped; b. caused by or resulting from freezing; c. caused by or resulting from water or sewage from outside the. residence: premises plumbing system that enters through sewers or drains, or water which enters into and overflows from within a sump.pump, sump pump well or any other system designed to remove subsurface water which is drained from the foundation area; or d. caused by or resulting from continuous or repeated seepage or leakage of water,or steam which occurs over a period of time and results in deterioration, corrosion, rust, mold, or wet or dry rot. (1) property.while at any other, residence owned, 13. Sudden and accidental tearing asunder, cracking, rented to, or, occupied by. An insured, except burning or bulging of a steam' or hot water heating while an insured is temporarily residing there. system, an air conditioning' or'automatic fire protective Property of a student who is an insured is cov- sprinkler system, or an appliance for heating water. ered while at a residence away from home; (2).watercraft of all,types,. including their furnishings, This peril does not , include loss: equipment and outboard.motors; or a. caused by or resulting from freezing; or (3) trailers and campers designed to be pulled by or carried on a vehicle. If the residence premises is a newly acquired prin- cipal residence, property in the immediatepast.prin- cipal residence shall not be considered property away from the ,residence premises for the first 30 days after the inception of this policy. 10. Falling objects. This peril does not friclude lossto,prop- erty contained in a building unless'the roof'or°anexterior wall of the building is first damaged by a`falling object. Damage to the falling object itself is not included. 11. Weight of ice, snow or sleet which causes bamage to property contained in a building. b. caused by or resulting from continuous or repeated seepage or leakage of water or'steam which occurs over a period of time and results in deterioration, corrosion, rust, mold, or wet or dry rot. 141 Freezing of a plumbing, heating,>air conditioning or auto- matic fire prbtective'sprinkler'systemj or of a household appliance. This:peril does not:include loss on. the residence prem- ises while the dwelling is vacant, unoccupied or being constructed, unless you have used reasonable care to: a. maintain heat in the building; or b. shot off the water supply and drain the system and appliances of water. FP-7955 15. Sudden and accidental: datnagl - ao ,electrical: appli- antes, devices, fixtures. and wiring from .an increase or decrease of artificially generated electrical current. We will pay up to $1,000 under this;peril for each damaged item described above. 16. Breakage of glass, meaning damage to personal prop- erty caused by breakage of glass which is a part of a building on the residence premises. There is no cover- age for loss or'darfiage toIhe glass. SECTION i - LOSSES NOT INSURED We do not insure for any loss to. the propertydescribed in Coverage A which consists of, or is directly and imme- diatelycaused by, one or more of the perils 'listed in items a. through n. below,'regardfessofwhether theloss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural`or external forces, or occurs as a result of any'combination of these: a. collapse, except as specifically provided in SEC- TION I - ADDITIONAL, COVERAGES, Collapse; b. freezing of a plumbing, heating, air, conditioning or automatic fire' protective sprinkler system, or of a household `appliance, or, by diseharge, leakage or ovedlow.from within thesystem or appliance caused by freezing. This exclusion only applies while the dwelling is vacant, unoccupied or being constructed. This exclusion does hot apply if you have used rea- sonable care to:' ' ' (1) maintain heat in the building; or (2),shut off the water supply and drain the system and appliances of:watej; f. continuous or repeated seepage or leakage of water or steam from a: (1) heating, air conditioning or automatic fire protec- tive sprinkler system; (2) household appliance; or l3) plumbing system; including from, within or around any shower. stall, shower bath, tub instal- lation, or other plumbing fixture, including their walls, ceilings or floors; which occurs over a period of:time. If loss#ocovered property is caused by water or steam not otherwise excluded, we -will cover the cost of fearing out and replacing any part of the building necessary to repair the system orapplianc&`We do not cover loss to the system or appliance from which-the water or steam escaped; g. wear, tear, marring, scratching, `deterioration, inher- ent vice,`latent defect or mechanical breakdown; c. freezing, thawingpressure or weight of water or ice, whether driven by wind or not, to a swimming pool, hot tub or spajncluding their filtration and ckoulation systems, fences paveme lt, patio, foundation;- retain-ing wall, bulkhead, pier, wharf or dock;. d. theft in or to a dwelling under construction, or of materials and. supplies for use' in the construction, until the dwelling is completed and occupied; e. vandalism or malicious miseh1ef or breakage of glass and safety,glazigg materials jf-the.dwelling, has been vacant for more than 30 consecutive days, immedi- ately before the loss. A dwelling being constructed is not considered vacant; h. corrosion, electrolysis or rust; i. mold, fungus or wet or dry rot; j. contamination; k. smog, smoke from agricultural smudging or industrial operations; I. settling, cracking, shrinking, bulging, or expansion of pavements, ;patios, foundation, walls, floors, roofs or ceilings; m. birds, vermin, rodents, insects, or domestic animals. y glazing We .do,cover .the breakage of glass, or safet t material which is a part,of a bwilding,,whert caused by birds, vermin, rodents, insects or domestic ani- mals; or f FP-79551 n. pressure from or :presence of tree, slirub or plant roots. However, we do insure for any resufhng`ioss`fmrn items a. through m. unless the resulting loss is itself, a Loss Not Insured by this Section. 2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any segueh'ce With the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from "natural or external forces, or occurs as a result of any combination of these: a. Ordinance or, Law, meaning enforcement of any ordinance or law regulating the construction, repair or demolition of a building or other structure. b. Earth Movement, meaning the sinking, rising, shift- ing, expanding or contracting of earth, all whether combined with water or not. Earth movement in- cludes but is not limited to earthquake, .landslide, mudflow, mudslide, sinkhole, subsidence, erosion or movement resulting from-improper. compaction,, site selection or any other external, forces. Earth move- ment also includes volcanic explosion or lava flow, except as specifically provided in SECTION I - AD- DITIONAL COVERAGES, Volcanic Action. However, we do insure for any direct.loss by fire resulting from earth movement, provided the result- ing fire loss is itself a Loss Insured. c. Water Damage, meaning: (1) flood, surface water, waves, tidal water, tsunami, seiche, overflow of a bodyof water, or spray from any of these, all whether driven by wind or not; (2) water or sewage from outside the residence premises plumbing system that enters through sewers or drains, or water which enters into and overflows from withina sump pump, sump pump well or any other system designed to remove subsurface water which is drained from the foun- dation area; or (3) water below the surface of the ground, including water which exerts pressure on, or seeps or leaks through a building, sidewalk, driveway, founda- tion, swimming pool or other structure. However, we do insure for any direct loss by fire, explosion or theft resulting from water damage, pro- vided the resulting loss is itself a Loss Insured. d. Neglect, _meaning neglect of the insured to use all reasonable means to save and preserve property at and after the time of a loss, or when property is endangered. e. War, including any undeclared war, civil war, insur- rection, rebellion, revolution, warlike act by a military force or military personnel, destruction or seizure or use for a military purpose, and including any conse- quence of any of these: Discharge of a nuclear weapon shall be deemed a warlike act even if acci- dental f. Nuclear Hazard, meaning any nuclear .reaction, ra- diation, or radioactiVe contamination, all whether con- trolled or, uncontrolled or however caused, or any consequence. of any of these. Loss caused by the nuclear hazard shall not be considered loss caused by fire, explosion or smoke. However, we do. insure for any direct loss by fire resulting from the nuclear hazard, provided the result- ing fire foss is itself a,Loss Insured. 3. We do not insure under any coverage for any loss con- sisting of one or more of the items below. Further, we do not insure for. loss described in paragraphs 1. and 2. immediately above regardless of whether one or more of the following: (a) directly or indirectly cause, contribute to or aggravate the loss; or (b) occur before, at the same time, or after the loss or any other cause of the loss: a. conduct, act, failure to act, or decision of any person, group, organization or governmental body whether intentional, wrongful, negligent, or without fault; 10 FP-7955 b. defect, weakness, inadequacy, fault or unsoundness in: (1) planning, zoning, development, surveying, siting; (2) design, specifications, workmanship, construc- tion, grading, compaction; (3) materials used 'in construction or repair; or (4) maintenance; of any property (including land, structures; or im- provements of any kind) whether on or off the resi- dence premises; or c. weather conditions. However, we do insure for any resulting loss from items a., b. and c. unless the resulting loss is-itself a Loss Not Insured by this Section. SECTION I - LOSS SETTLEMENT Only the Loss Settlement provisions shown in the Declara- tions apply. We will settle covered property losses according to the following. COVERAGE A - DWELLING 1. A1- Replacement Cost Loss. Settlement Similar Construction. a. We will pay the cost to repair or replace with similar construction and for the same use on the premises shown in the Declarations, the-damaged part of the propertycovered under.SECTION I -COVERAGES, COVERAGE A DWELLING, except for wood fences, subject to the following: (1) until actual repair or replacement is completed, we will pay only the actual cash value at the time of the loss of the damaged part of the property, up to the applicable limit of liability shown in the Declarations, not to exceed the cost to repair or replace the damaged part of the property; (2) when the repair or replacement is actually com- pleted, we will pay the'd&&edaddifional amount you actually and necessarily spend- to repair or replace the damaged part of the property, or an amount up tothe applicable limitof liabilityshown in the Declaratioiri whichever is less; (3) to receive any additional payments on a replace- ment'cost basis, you-must`cornplete the actual repair .or replacement of the damaged part of the property within two years after the date of loss, and notify us within 30 days after the work has been completed; and (4) we will not pay for increased costs resulting from enforcement of any ordinance or law regulating the construction, repair ordemolition of a building or other structure, except as provided under Op- tion OL'- Building Ordinance 'or Law Cover- age. b. Wood Fences: We will pay the actual cash value at the time of loss'for loss or damage'to wood fences, not to exceed the limit of liability shown in the Decla- ratiorjs for COVERAGE A - DWELLING EXTEN- SION. 2. A2 Replacement Cost Loss Settlement - Common Construction. a. We will pay the cost to repair or replace with common construction and for the same use on the premises shown in the Declarations, the damaged part of the property covered under SECTION I - COVERAGES, COVERAGE A -DWELLING, except for wood fences, subject to the following: (1) we will pay only for repair or replacement of the damaged part of the property with common con- structior techniques and materials commonly used by the building trades in standard new construction. We will not pay the cost to repair or replace obsolete, antique or custom construction with like kind and quality; (2) until actual repair or replacement is completed, we will pay only the actual cash value at the time of the loss of the damaged part of the property, up to the applicable limit of liability shown in the Declarations, not to exceed the cost to repair or 11 FP-7955 replace the damaged part of the property as described in a.(1) above; (3) when the repair or replacement is actually com- pleted as described in a.(1) above, we will pay the covered additional amount you actually and necessarily spend to repair or replace the dam- aged part of the property, or an amount up W the applicable limit of liability shown in the Declara- tions, whichever is less; (4) to receive any additional payments on a replace- ment cost basis, you must complete the actual repair or replacement of the damaged part of the property within two years after the date of loss, and notify us within 30 days after the work has been completed; and (5) we will not pay for increased; costs resulting from enforcement of any ordinance or law regulating the construction japairor demolition of a building or other structure, except as provided under Op- tion OL - Building Ordinance or Law Cover- age. b. Wood Fences: We will pay the actual cash value at the time of loss for loss or damage to wood fences, not to exceed the limit of liability shown in the Decla- rations for COVERAGE, A - DWELLING EXTEW SION. COVERAGES -PERSONAL PROPERTY 61 - Limited Replacement Cost Loss Settlement. a. We will pay the cost to repair or replace COVER- AGE under SECTION-1 OVERAGES, AGE B - PERSONAL PROPERTY, except for prop- erty listed in item b. below„subject to the following: (1) until repair or replacerent is completed, we will pay only the cost to repair or replace less depre- ciation; (2) after repair or replacement is completed, we will pay the difference between the cost to repair or replace less depreciation and the cost you have actually and necessarily spent to repairor replace the property; and (3) if property is not repaired.or replaced within two years after the date of loss, we will pay only the cost to repair or replace less depreciation. b. We will pay market value at the time of loss for: (1) antiques, fine arts, paintings, statuary and similar articles which by their inherent nature cannot be replaced with new articles; (2) articles whose age or history contribute substan- tially to their.value including, but not limited to, memorabilia, souvenirs and collectors items; and (3) property not useful for its intended purpose. However, we will not pay an amount exceeding the smallest of the following for items a. and b. above:. (1) our cost to replace at the time of loss; (2) the full cost of repair; (3) any special limit of liability described in the policy; or (4) any applicable Coverage B limit of liability. 2. B2 - Depreciated Loss Settlement. a. We will pay the cost to repair or replace less depre- ciation at the time of loss for property covered under SECTION I - COVERAGES, COVERAGE B - PER- SONAL PROPERTY, except for property listed in item b. below. b. We will pay market value at the time of loss for: (1) antiques, fine arts, paintings, statuary and similar articles which by their inherent nature cannot be replaced with new articles; (2) articles whose.age or history contribute substan- tially to their value including, but not limited to, memorabilia, souvenirs and collectors items; and (3) property not useful for its intended purpose. FP-7955 12 ui a i N I? Cd is 0 d Fj i ;I? However; we will not pay an amount exceeding the smallest of the following for items a. and b. above: (1) our cost to'replace at the time of loss; (2) the full cost of repair; SECTION I Insurable Interest and Limit of Liability. Even if more than one person has an insurable interest in the property covered, we shall not be liable: (3) any special limit of liability described in the policy; or I (4) any applicable Coverage B limit of liability. - CONDITIONS (4) produce employees, members of the insured's household. or others for examination under oath to the extent it is within the insured's power to do so; and a. to the insured for an amount greater than the in- sured's interest; or b. for more than the applicable limit of liability. 2. Your Duties After Loss. After a loss to which this insurance may apply, you shall see that the following duties are performed: a. give immediate notice to us or our agent. Also notify the police if the loss is caused by theft. Also notify the credit card company or bank if the loss involves a credit card or bank fund transfer card; b. protect the property from further damage or loss, make reasonable and necessary temporary repairs required to protect the property, keep an accurate record of repair expenditures; c. prepare an inventory of damaged or stolen personal property. Show in detail the quantity; description, age, replacement cost and amount of loss: Attach to the inventory all bills, receipts and related documents that substantiate the figures in the inventory; d. as often as we reasonably require: (1) exhibit the damaged property; (2) provide us with records and documents we re- quest and permit us to make copies; (3) submit to,and subscribe, while not in the pres- ence of any other insured: (a) statements; and (b) examinations under oath; and e. submit to us, within 60 days after the loss, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: (1) the time and cause of loss (2) interest of the insured and all others in the prop- erty involved and all encumbrances on the prop- erty; (3) other insurance which may cover the loss; (4) changes in title or occupancy of the property during the term of this policy; (5) specifications of any damaged building and de- tailed estimates for repair of the damage; (6) an inventory of damaged or stoien personal prop- erty described in 2.c.; (7) receipts for additional living. expenses Incurred . and records supporting the fair rental value loss; and (8) evidence or affidavit supporting a claim under the Credit Card, Bank Fund Transfer Card, Forgery and Counterfeit Money coverage, stating the amount and cause of loss. - 3. Loss to a Pair or Set. In case of loss to a pair or set, we may elect to: a. repair or replace any part to restore the pair or set to its value before the loss; or b, pay the difference between the depreciated value of the property before and after the loss. 13 FP-7955 4. Appraisal. If you and we fail to agree on the amount of loss,-either one can demand that the amount of theloss be set by appraisal: l# either makes :a-written demand for appraisal, each shall select a competent, disinterested appraiser. Each shall notify the other of the appraiser's identity within 20 days of receipt of the written demand. The two appraisers shall then select a cornpetent,'impar- tial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can "ask ajudge of a court of record in the state where the resfdence`prem- ises is located to select an umpires Thp appraisers shall then set the amount of the loss. If"ttie appraisers submit a writtenreport of anagreement to us, the amount agreed upon shall be the amount of the loss. If the; appraisers fail to agree within a reasonable time, they shall subinit their differences to the umpire. Written agreement signed by any two of these three, shall -set the amount of the loss. Each appraiser shall be paid by the part y selecting that appraiser. Other expenses of the appraisal and the com- pensatimof the'umpire shall'be paid equally by you and us. 5. Other Insurance. If a loss covered,by this policy is also covereOy other insurance, we Will pay only bO share of the. lost. Our share is the proportion.,of. the, IQSs that the applicable limit under this policy beafs to the, trotal amount of insurance covering the loss. 6. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one'yearafter the dale of loss or damage: 7. Our Option. We ,may repair orreplace .any.part of the property damaged or stolen with similar property. Any property we pay for or replace becomes our'property. 8. Loss Payment. We will.adjust all losses with,yow;.We will pay you unless some other person is namedm. ,'the policy or is legally entitled to receive payment. Loss wilt be payable 60 days after we receive yourproof of loss and: a. reach agreement with you, b. there is an, entry of,a final judgment;v c. there is a filing of an appraisal award with us. 9. Abandonment of Property. We need not accept any property abandoned by an insured.: 10. Mortgage Clause. The word "mortgagee" includes trus- tee. a. If a mortgagee is named in this policy, any loss payable under Coverage A shall be paid to the mort- gagee and you, as interests appear. If more than one mortgagee is named, the order of payment shall be the same as the order of precedence of the mort- gages. b. If we deny your claim 'that-denial shall not apply to'a valid. claim of the•mortgagee, if the mortgagee: (1) notifies us of any change. in ownership, occu- pancy or substantial change in risk of which the m6dgagee'is aware; (2) pays on demand any premium due under this policy, if you have not paid the premium; and (3) submits asigned, swom statement of loss within 60 days after. receiving notice from us of your failure :to do so. Policy conditions relating to Ap- praisal, Suit Against Us and Loss Payment apply to the mortgagee. c. If this policy is cancelled by us, the mortgagee shall be notified at Ieast,l0 days before. the date cancella- tion takes effect: Proof of mailing shall be . proof of notice. d. If we pay the mortgagee for any loss and deny payment to you: (1) we are subrogated to all the rights of the mortga- gee granted under the mortgage on the property; .or (2) at our option, wefmay pay to the mortgagee the whole principal on themortgage plus any accrued interest. In this event, we shall receive a full assignment and transfer of the mortgage and all securities held ascollateralto:the mortgage debt. e. Subrogation shall not impair the right of,the mortga- gee to recover the full amount of the mortgagee's claim. 11. No Benefit to Bailee. We will not recognize an assign- . ment or grant =coverage .for the benefit of a person or organization holding, storing or transporting property for 14 FP-7955 cy a fee. This applies regardless of any other provision of this policy. 12. Intentional Acts. If you or any person insured under this policy causes or procures a loss to property covered under this policy for the purpose of obtaining insurance benefits, then this policy is void and we will not pay you or any other insured for this loss. SECTION II - LIABILITY COVERAGES COVERAGE L - PERSONAL LIABILITY . If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will: 1. pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice. We may make any investigation Oand ur et obligatle on claim or suit that we decide is appropriate. t pay to defend any claim or suit ends when the amoujudgment for damages, to effect settlement or satisfy a resulting from the occurrence, equals our limit of liability- COVERAGE. M -MEDICAL PAYMENTS TO OTHERS We will pay the necessary medical expenses incurred or medically ascertained within three Meyears diicalrexpenses tme ns accident causing bodily injury. 'dental, am- reasonable charges for medical, surgical, x-ray, bulance, hospital, professional nursing, prosthetic devices and funeral services. This coverage applies only; 1. to a person on the insured location with the permission of an insured; 2. to a person off the insured location, if the bodily injury: a. arises out of a condition on the insured location or the ways immediatelyadjoining; b. is caused by the activities of an insured; c. is caused by a'residence enployee in the course of the residence employee's, employment by an in sured; or d. is caused by an animal owned by or in the care of an insured; or 3.1o a residence employee if the occurrence causing bodily, injury occurs off the insured-1atron and asses out of or in the course of the residence employee's employment by an insured. SECTION 11- ADDITIONAL COVERAGES We cover the following in addition to the limits of liability: r t t l? fi 1. Claim Expenses. We Pay: a. expenses we incur and costs taxed against an in- sured in suits we defend; b, premiums on bonds required in suits we defend, but j not for bond amounts; greater than the Coverage L limit. We are not obligated to apply for or furnish any ; f bond; i I c. reasonable expenses an insured incurs at our re- quest: This Jr . ludes actual loss of earnings (but not loss of other income) up to $1 oo per day for,aiding us in the investigation or defense of claims or suits; d. prejudgment interest awarded against the insured on that part of the judgment we pay; and e. interest; on, the entire judgment which accrues .after entry of the judgment and before we pay oraender, or deposit in court that part of the judgment which does not exceed the limit of liability that applies. 2. First Aid Expenses. We will pay expenses for first aid to others incurred by an insured for bodily injury covered under:thispolicy. We will not pay for first aid to you or any other insured. 3. Damage to Property of Others. a. We will pay for property damage to property of others caused by an insured. b. Wewiflnotpaymore than thesmallest ofthefollowing amounts: (1) replacement cost at the time of loss; (2) full cost of repair; or FP-7955 15 (3) $500 in any one occurrence. (4) arising out of: c. We will not pay for property damage: (a) business. pursuits;,. (1) if insurance is otherwise provided in this policy; (b) any act or.. orniWon in connection with a premises an insured owns, rents or controls, (2) caused intentionally by an insured who is 13 other than the insured location; or years of age or older; (c) the ownership; maintenance; or use of a mo- (3) to property, other than'a rented golf cart, owned for vehicle; aircrafflorwatercraft, including by or.rented to an insured, -a=tenant of an in- airboat, air,wshlon, personal watercraft, sail sured, or a resident in your household; or board or similar type watercraft. SECTION 11- EXCLUSIONS Coverage L and Coverage M do not'apply to: a. bodily injury or property ` damage: (1) which is either expected or intended by the in- sured; or (2) which is the result of willful and malicious acts of the insured; b. bodily injury or property damage arising out of business. =pursuits,of anyansured,or the ;rental or holding for rental of•any part of any-premises by any insured. This exclusion does notapply: (1) to activities which are ordinarily' ncidentto non- business pursuits; (2) with respect to Coverage L to the occasional or part-time business pursuits of an insured who is under 19 years of age; (3) to the rental or holding for rental of. a residence of yours: (a) .pn an occasional basis for the exclusive use as a residence; (b) in., part;. unless intended :for use as. a resi- dence by more than two roomers or boarders; or (c) in part, as an off ice,, school, studio or private garage; (4) when the dwelling on theresidence premises is a two, three orfourfamilydwelling and: you oc- cupy one part and rent or hold for rental the other part; or (5) to farm larnd'(without buildings), rented or held for rental to others, but trot to exceed a .total of 500 acres, regardless of the number of locations; c. bodily injury or property damage arising out of the rendering or failing to render professional services; d. bodily injury or; property damage arising out of any premises.cu.rrently owned or rented to any insured which is not an insured location. This exclusion does not apply to'iodity injury o ,A residence employes arising out of and` in the course of the residence employee's employment by'aninsured; e. Idly injuryor property damage arising out of the ownership; maintenance, use, loading or unloading of: '(1)' an aircraft; (2) a mgtor veh!cie; owned or operated by or rented or loaned to any insured; or, (3) -a watercraft: (a) owned by.or,rented.to any insured if it has inboard or,inboard-outdrive motor power of more than 50,horsepower; (b) owned by or rented to any insured'if it is a sailing vessel; with or without auxiliary power, 26 feet or more in overall length; 16 FP-7955 or, more-onboard motors powered by Me (c) with more than 25tot8l horsepower owned by any insured; (d) designated an airboat, art cushion, or simi- lar type of craft; or, (e) owned by any insured which is a personal watercraf Mein ,2WOrletpumppoweredby an internal cornbustlcl.enguni? as the primary source of propuiStOn This exclusion does not apply to bodjll residence employee. arising out of and to ee's emploj of the residence employee' mp Goes not api insured. Exclusion e.(3) remise residence p watercraft is on the injury to a 1,the course vent by an v while the f. bodily injury or propel y dam arising out of: {1) the entrustment by any mgured to any person; (2) the supervision by any insured of any person; (3) any liabiliity`statutoniY imposed on any insured; or . (4) any liability "assumed 'through an unwritten or written agreement'by, any insured; owners'h p, maintenance or use of with regard to the : or motes arehrcle which is not any aircraft, watercraft, _1 covered under Section II of this policy; g. bodily. injury o .,property damage caused directly or indirectly by War Poi iAng undeclared'w or any warlike act inctudin9 destruction or seizure or use for a military purpose, or any consequence.of these. Discharge of a nuclear eapo, shall be deemed a warlike act even i the mean- This exclusion also' applies ton i share damt brought against you or any ,, with or repafl:so?eo? elge `who'may be obli- age s esbecause`of the bodily injury gated to pay d'arreg._ "insured thin the meaning sustained you he de definition of insured; of part a. or rb. of ? i. any claim made or a brought against any insured by: (1) any person °who is in the care of any insured because of child care services provided by or at the direction of: (a) any insured; (b) any employee of any insured; or (c) any other person actually or apparently act- ing on behalf of any insured; or (2) any person who makes a claim because of bodily injury to any person who is in the -care of any insured because of child care services provided by or at the direction of: (a) any insured; (b) any employee of any insured; or (c) any other person actually or apparently act- ing on behalf of any insured. This exclusion does not apply to the occasional child care services provided by any insured, or to the part-time child care services provided by any insured who is under 19 years of age; or ,,,. j. bodily injury or property damage arising out of an insured's participation m, or preparationorpractice for any prearranged or organized tace,•-speed or demolition contest, or similar competition involving a motorized land vehicle or motorized watercraft. This exclusion does not apply to a sailing vessel less than .26 feet in overall length with or-without auxiliary power. 2. Coverage L does not apply to: a. 'liability: (1) for your share of any loss assessment charged against all members ofan association of property owners; or (2) assumed under any unwritten contract or agree- ment, or by contract oragreement in connection r. with a business of the insured;- Ir b. property damage to property currently owned by any insured; C. property damage to.property rented to, occupied or . used by or in the care of any insured. This exclusion 17 FP-7955 does not apply to property damage causedby;ire, smoke or explosion; d. bodily injury to a person eligible to receive any benefits required to be provided or voluntarily, pro- vided by an insured under a workers' compensation, non-occupational disability, or occupational disease law; e. bodily injury or property damage for which an insured under this policy is also an insured under a nuclear energy liability policy or would be an insured but for its termination upon exhaustion of its limit of liability. A nuclear energy liability policy is a policy issued by Nuclear Energy Liability Insuran.wAsso- ciation, Mutual Atomic ,Energy Liability Underwriters, Nuclear Insurance Association. of-Canada, or any of their successors. 3. Coverage'M does not apply to bodily injury: a. to a residence employee if it Occurs off the insured location and does not arise out of or in the course of the residence employee's employment by an in- sured; b. to a person eligible to receive any benefits required to be' provided or voluntarily provided under any workers' compensation, non-occupational disability or occupational disease law; c. from nuclear reaction, radiation or radioactive con- tamination, all whether controlled or uncontrolled or ever caused, or any consequence of any of howthese;; d• to a person other than a residence employee of an inlocsured ation, regularly residing on any part of the insured . SECTION II - CONDITIONS 1 • Limit of Liability. The Coverage L limit is shown in the Deciaraftons ,This is our limif for all damages from each ocurrepce: ,r'egardless of the number of :insureds, claims made or persons miur$d, The Coverage M limit is shown in, the D is eclarations. This our limit for all medical. expense for bodily injury to one person as the result of one accident. 2 Severabflity of Insurance This insurance applies sepa- rately to each insured' This our contlition sltalf'not increase limit of liability for any one occurrence.' 3. Duties After Loss. In case the of an' accident or occurrence insured shall perform the following duties that apply.' You , all cooperate with us in seeing'that these duties are performed: a. give written notice to us or our agent as soon as practicable, which sets forth: (1) the identity of this policy and insured; (2) reasonably available ..information on the time, Place and circumstances bf 'the accident or oc- currence; and (3) names andaddresses of any claimants and avail- able witnesses; b. immediately forward to us every notice, demand, su . -1 ori,th . Process relating to the accident or occurrence; C. at our request, assist in: (1) making settlement; (2) the enforaernent of any -right of contribution or indemnity against a person or organization who may be liable to an insured; (3) the conduct of suits and attend hearings and trials; and (4) securing and giving evidence and obtaining the ,attendance of witnesses; d. under the coverage -Damage to Property of Oth- ers,ed'exhicosbitnthe damaged property if within the in- sur trol;.and e the -fnsifred,shall not; except at the insured's own cost; Voluntarily tnakepayments assume obligations or incur'expenses: Thfs does not apply fa'expense for first aid to others at the time of the bodily injury. is FP-7955 v D .o R v S h 0 J m y d 4. Duties of an Injured Person - Coverage M. The injured person, or, when appropriate, someone acting on behalf of that person, shall: a. give us written proof of claim, under oath if required, as soon as practicable; b. execute authorization to allow us to obtain copies of medical reports and records; and c. submit to physical examination by a physician se- lected by us when:and as often as we reasonably require. 5. Payment of Claim Coverage M. Payment under this coverage is not an admission of liability by an insured or us. & Suit Against Us. No action shall be brought against us unless there has been compliance with the policy provi- sions. No one shall have the right to join us as a party to an action against an insured. Further, no action With respect to Coverage L shall be brought against us until the obligation of the insured has been determined by final judgment or agreement signed by us. 7. Bankruptcy of an Insured. Bankruptcy or insolvency of an insured shall not `relieve us of our obligation under this policy. 8. Other Insurance-Coverage L. This insurance is excess over any other valid and collectible insurance except insuranceWrittenSpecifically to cover as excess over the limits of liability that apply in this policy. SECTION I AND SECTION II - CONDITIONS 1. Policy Period. This policy applies only to loss under Section I or bodily injury or property damage under Section 11 which occurs during the period this policy is in effect. 2. Concealment orFraud. This policy is void as to you and any other insured, if you or any other insured under this policy has intentionally concealed ormisrepresented any material fact or circumstance relating to this insurance, whether before or after a loss. 3. Liberalization Clause. If we adopt any revision which would broaden coverage under thispolicy without addi- tional premium, within 80 days priiirto orduring the period this policy is in effect, the `broadened coverage will imme- diately apply to this policy. 4. Waiver or Change. of Policy Provisions. A waiver or change of any provision of this policy must be in writing by us to be valid. Our request for an appraisal or exami- nation shall not waive any of our rights. 5. Cancellation. a. You may cancel this policy at any time tiy'notifying us in writing of thedate..cancellation istotake effect: We may waive the.-.requirement that-the,notice be in writing by confirming the date and timeofcancellation to you in writing. b. 'We may cancel this policy only for.the reasons stated in this condition, We will notify you in writing of. the date cancellation takes effect. This'dancelld6n no- tice may be delivered to you, or mailed to youatyour mailing address shown in the Declarations. Proof of mailing shall be sufijcienf proof of notice: (1) When you have not paid the premium, we may cancel at any time by notifying you at least 10 days before the date cancellation takes effect. This condition applies whether.the,premium is payable to us or our agent or uncle' any finance or credit plan. (2). When this policy has been in effect for less than 60 days and is not a renewal with .us, _ we may cancel for any reason. We may cancel. by notify- ing you at least 10 days before the date cancel- lation takes effect. (3) When this policy has been in effect for 60 days or more, or at any time if it is a renewal with us, r we may cancel:. (a) if there has been a material misrepresenta- tion of fact which, if known::to us, would have caused us not to issue this policy; or M 19 FP-7955 (b) if the risk has changed substantially since the policy was issued. We may cancel this policy. by notifying you at least 30 days;before the date.cancellation takes effect. C. (4) When this policy is written for a period longer than one year, we may cancel for any reason at anni- versary. We may cancel.by:notifying you at least 30 days before the date cancellation takes effect. When this policy is cancelled, the premium for the period from the date'of cancellation' to the expiration 'date will be refunded. When you request cancella- tion, the return premium will be based on our rules for such cancellation. The-ret m premium may be less than a full pro rata refund. When we cancel, the return premium will be pro rata. d. The return premium may not,be refunded with;the notice of cancellation or when thepolicyis returned to us. In such cases, we will refund it within a reason- able time after the date cancellation' takes effect. 6. Nonrenewal. We may elect.not to renew this, poiigy.,lf we elect not to renew, a written notice will be delivered to you, or mailed to you at your mailing address shown'in the Declarations. The notice will be mailed or delivered at least 30 days before the expiration date of this policy. Proof of mailing shall, be suff icient proof of notice. . 7. Assignment. Assignment of this policy shall not be valid unless we give our written bonsent. 8. Subrogation. An insured may waive in writing before a loss all rights of recovery against any `person. If not waived, we may require an assignment of rights ofrecov- ery for a loss to the extent that payment is made by us. If anAssignmentis sought, an insured shall: a. sign and deliver all related papers; . b. cooperate with us in 'a reasonable manner; and c. do nothing after a loss to prejudice such rights. Subrogation does not apply under Section II to Medical Payments to Others or Damage to Property of Others. 9. Death. If any person shown in the Declarations or the spouse, ilia resident of the same household, dies: a. we insure the legal representative of the deceased. This condition applies only with respect to the prem- ises andprop`erty of the deceased covered under this policy at the time of death; b. insured includes: (1) any member of your household who is an in- sur?d at the time of your death; but only while a resident of the residence premises; and (2) with respect to your property, the person having proper; temporary custody of the property until appointment and.qualification of a legal repre- sentative. 10. Conformity to State Law. When a policy provision is in conflict with the applicable law of the State in which this policy is issued, the law.of the State will apply. OPTIONAL' POLICY PROVISIONS Each Optional Policy Provision applies only as.shown in the Declarations and is subject to all the terms, provisions, exclusions and conditions of this policy. ' Option Al Additional Insured. The definition of-insured is extended to include the, person or organization shown in the Declarations as an Additional Insured or whose name is on file with us. Coverage is with respect to: 2. Section II - Coverages Land M but only with respect to the residence premises. This coverage does not apply to bodI 1 1, yihjury to an employee arising out of or in the course of ,the employee's employment by the person or organization. This option applies only with respect to the location shown in the Declarations. k s i .s N ? U - Cc '-o d CO) 0 J I 1. Section I - Coverage A; or, - - Option $P - 'business Property: The COVERAGE B - PERSONAL-PROPERTY, Special Limits of Liability, item b., for property used or intended for use in a business, 20 FP-7955 including merchandise held as samples or -for sale or for delivery after sale, is changed as follows: The $1 Goo limit is replaced with the amount shownin the Declarations for this option. Option BU - Business Pursuits. SECTION II EXCLU- SIONS, item 1.b. is modified as follows: 1:section :ll c6.Wage- applies to the business Pursuits of an insured who is a: a. clerical office employQei-salesperson, collector, messenger; or. b. teacher ,(except college,.untversity and profes- sional athletic coaches), school principal or school administrator; . while acting within the scope of the above listed occupations. 2. However, no coverage is provided; arising out a. for bodily injury or property damage of a'buslness owned or financially controlled by the insured' or by a parfnership of which the insured is a partner or member; b'. for bodily injury or property damage arising out of the rendering of or failure to render profes- sional'services of any nature (otherthan teaching or school administration). This'exclusion includes but is,notaimited for (1) computer programrti! ,architectural, engi- neering o0ndustrial design seances; (2) medical, surgical, dental`or other services or treatment conducive to the health of persons or animals; and (3) beauty or barber senitces or treatment; C. for bodily injury to a fellow *,ployee-of the insured injured in the course of employment; or & when the insured is a member of the #aculty'or teaching staff of, a school or college: (1) for bodiily'i*fy;br V004rtY larris+ge urr un out of the crnaihtenance; use,: loading or un- loading of;.. (a) draft or saddle animals, including vehi- cles for use with them; or t (b) aircraft, motor vehicles; recreational E motor vehicles or watercraft, airboats, air cushions or personal watercraft which x l use a water jet pump powered by an internal combustion engine as the pri- source of propulsion; mary owned or operated,, or hired by or for the insured or employer of the`insured or used - by the insured for the purpose of instruction in the use thereof; or (2) under Coverage M for bodily injury to a pupil arising out of corporal punishment adminis- tered by or at the direction of the insured. Option FA - Firearms. Firearms are insured for accidental direct physical `loss ordamage. The limits for this option are shown in the Declarations. The first amount is the limit for anyone article; the second amount is the aggregate limit for each loss. The following additional provisions apply: 1. we do not insure for any loss to the property described in this option either consisting of, or directly and immedi- ately caused by, one or more of the following: a. mechanical breakdown, -wear and tear, gradual dete- rioration; b. insects or vermin; c. any process of refinishing, renovating, or repairing; d. dampness of atmosphere or extremes of tempera, lures;: e. inherent defect or faulty manufacture; f. rust, fouling or explosion of firearms; g. breakage, marring, scratching, tearing or denti unless caused by fire, thieves or accidents to conve ancestor h. infidelity of an insured's employees or persons tl whom the insured property may be entrusted +) rented; FP-79 21 2. our limit for Ioss?by any Coverage-13 'peril except theft is the limit shown in the Declarations for Coverage B, plus the aggregate limit; 3. our limits for loss by theft are those shown in the Decla- rations forthisoptio6. These hmits''apply in, lieu of the Coverage B theft limit; and 4.?owgnats'forioss`by`,any,covered peril ftcept those in items MAW Ziare those shown` 0he Declarations. b off s r 4 Option HC -Home Co nputec.:the COVERAGE 8 - PER- SONAL PROPERTY, Special Limits of Liability, item i., for electronic dataprocessing.system'equipmentand the record= ing.or: storage media-.used with 'that equipment is increased to be the amount shown in the Deciatations,for this option: Option ID - Increased Dwelling Limit, Wo will setHe losses to damaged building structures covered under COVER- AGE, :A a D!WELLfNQ according to.the SECT10N I = LOSS SETTLEMENT provision shown in the'Deolarabons. If the amount you actually and necessarily spend to repair or replace damaged building structures exceeds the applicable limit of liability shown in the Declarations, we.will pay the additional amounts riot to exceed 1. the Option JD lirriit; of Jlability shown in,the_D,eclorations to repair or replace the Dwelling; or 2. 10% of the Option lD limit of liability to repair.or, replace building structures covered under COVERAGE A - DWELLING, Dwelling Extension. Report Increased Values. You must notify us within 90 days of the start of any new building structure costing $5,000 or more; or any addlfions tour rernodeiing of budding structures which increase their values by $5,000 or more: You must pa 4ny.4dditional premigm due,forthe Fle?aii d,y W shown in the not, pay iraore than 0*-qo licafPlehmit g liaaiity Will Declarations, if you fail to notify us of the tnpreased value within 90 days. Option t0 -'Incidental Business T?o,coverage groa?ided by this option applies only to that incidental business occu- pancyp file wdh us. 1. `COVERAGE A - DWELLING bwelling Extension, item 2.b. is deleted. r 2. COVERAGE B - PERSONAL PROPERTY is extended to include equipment, supplies and furnishings usual and incidental Ito this ;business occupancy. This Optional Policy Provision does not include electronic data proc- essing system equipment or the recording or storage media used with that equipment or mei6h: ' dise held as samples or for sale or fordeiivery after sale. The Option 10 limits are shown in the Declarations. The first limit applies to property on the residence premises. nd limit applies` to propertywhile off'th'e 'reei- The seco dence;prelr?ises ,,These, Emits are in; addition to the COVERAGE B 1?ERSQNAL, PqPERTY, Special used or intended for use Liinits,af,f_iability on:property in a business. o u 3. Under Section 11, the residence premises is not consid- ered business properttl because an irifsured occupies a part of it.as an incidental: business. SECTION II - EXCLUSIONS, item 1.b. of Coverage L and 4 . Coverage M is replaced with the following: b bodily injury or property denaage arising out of ' s business putsoi s of,an insured or the. rental or holding for rental of any part of any premises by an insured This exclusion does not apply: (1)to. activdios Which are ordinarily"incident to 'nonAusiness pursuits 'or to business put- suits of an.insured which are,necessary or incidental to the use of the residence prem- ises as an incidental business; y (2) , wi#.l respoctto Coverage L to the occasional ; or part-time business pursuits of an insured who is under 119 years of age; (3) to the rental or holding for rental of a resi- dence of yours: TV (a) on ii occasional basis for exclusive use ' g s residence; as > (b) m',part, Unlg$s intended, for use as a N residence by more than ?a roomers or boarders; Qi` . .?' (c) in part, as an incidental business or pri- a vate garage; (4) when the dwelling on the residence prem- ises is a two family dwelling and you occupy FP-7955 22 one partand rent or hold forrentai the other part; or (5) to. farm land (without buidding?), rented or held for re tal to others, but not xo exceed a total of `500 acres, regardless of the number of locations. 5 This'insurance does not apply to a bodily injury town employee of an insured ahsing out of tesrderice Premi"a as incidental busrn ssotheritian#ciarasidell smP?oyEe' hile engaged in the employee's empkiyfnent by an in- sured; b bodily:ifilury to a pupil. arising out of corporal pun- ishment administered by or at the direction of. the insured; ions of c. liability arising out of anyacts?n for. or orni acts an an insured, or any, other , Pe or insures 1s liable, resumng ftotri'tne Preparation approval ?t data,, plans; de5igrf, opinions, reports, programs, specif cations, supervisoly inspections or engineering services in the eta rocessi g,rc?om incidental business involving rarnming; or puter; consulting or ,computer grog d. any claim made or suit brought against any insured by (1) any person who is in the care of any insured becaus&of child care seNides provided by or at the direction bf: (a) any insured; (b) any employee of agOnWred; or (c) any other .person actually or, apparently act- ing on behalf pt anybspfed; or Person whamakes a Claim because of bodily (2) any, erson who is , the care of any injury, to any p,._ insured because of childcare services provided by or at the directibn of (a) any insured, i' (b) any employee of any insured; or (c) any other person actually or apparently act- ing on behalf of any insured. ; Coverage M does pot apply to any person indicated in (1) and (2) above. This exclusiQn does not apply to the:occa6ion4l child care services provided by any, ins!F*ds or to the part time chid care services provided by any insured ' 19 ears of age: who is under Y option JF . ;leweiry and furs Jewelry, watches; fur gar- I and armentstpmrnedwith Puri precious and semi-pr than ments 9 cious stones, golf •other'than goldware,: silver, other tha silverware and platinum are insured for accidental direct physicai'loss of damage'. The limits for this option aTe shown in the Declarations: The first amount is the iinid for any one `article; the second amount is the aggregate limit for each loss. The following •additional:provisions apply: i. we do not insure for any- loss to the property described in this option either consisting of, or directly and immedi- atety caused by, one or more of the following: a. mechanical breakdown, wear and tear, gradual dete- rioration; b. insects or vermin; c. inherent vice; or d. seizure or destruction under quarantine or customk regulations; 2. our limit-400690,Y anycoverage•13Petit except theft i the limit shown in, e"Declerations toT Coverage B, p the aggregatef snit; 3. our limits for loss by theft are those shown in the Decd rations for this option; and 4. our limits for loss by. any covered peril except those items 2. and 3. are those shown in the Declarations f this option. Y. k FP-7 23 Ootior OL - BWlding Ordinahceor: Law- 1. Coverage Pi "d6d. The total :fimit of insurance provided by this Building Ordinance or Law provision will not exceed an amount equal to the option OL percentage shown in the Decla- rations of the Coverage A limit shown in the Declara- tions at the time of the loss, as adjusted by the inflation coverage•provisions of ft. policy.;Tbis is. an addjtional amount of insurance ana applies only to the dwelling. 2. Damaged Portions of Dwelling. When the dwelling covered under COVERAGE A - DWELLING is damagedkby-a Loss Insured we will pay for. the increased cost to repair or rebuild.the-physically damaged portion of the dwelling caused by the enforce- ment of a building, zoning or land use ordinance or. law if the enforcement is directly caused by the: same Loss. Insured and the requirement is in'efledt at the time the Loss Insured occurs. 3. Undamaged Portions of Damaged Dwelling. When the dwelling covered under COVERAGE A - DWELLING is damaged by a Loss Insured we will also pay for: a. the cost to demolish and clear the site of the undam- aged portions of the dwelling caused by the enforce- ment of a building, zoning or land use ordinance or law if the enforcement is directly caused by the same Loss Insured and the requirement is in effect at the time the Loss Insured occurs; and b. loss to the undamaged portion of the dwelling caused by enforcement of any ordinance or law if: (1) the enforcement is directly caused by the same Loss Insured; (2) the enforcement requires the demolition of por- tions of the same dwelling not damaged by the same Loss Insured; (3) the ordinance or law regulates the construction or repair of the dwelling, or establishes zoning or land use;xequirements at the described premises; and. d. jr ce or law.is in force at the time of the (4) the or, occurrence of the same Loss insured; or c. the legally required changes to the undamaged por- tion of the dwelling caused by the enforcement of a 2 building, zoning or land use ordinance or law if the enforcement, is. directly caused,by, the same Loss Insured and the requirement is in` effect at the time the Loss Insured occurs. 4. Building Ordinance or Law Coverage Limitations. a. We will not pay for any increased cost of construction under this coverage: e (1) until the dwelling is actually repaired or replaced at the same.-or another premises. in the same 5 general: icinity; and s (2) unless the repairs or replacement are made as soon as reasonably possible after the loss, not to exceed two years. ! b. We will not pay more for loss to the undamaged portion of the dwelling caused by the enforcement of any ordinance or law than: (1) the depreciated value of the undamaged portion of the dwelling, if the dwelling is not repaired or y replaced; 4 (2) the amount you actually spend to replace the ; x undamaged portion of the dwelling if the dwelling N is repaired or replaced. We will not pay more under this coverage than the c . amount you actually spend: (1) for the increased cost to repair or rebuild the dwelling at the same or another premises in the same general vicinity if relocation is required by of ordinance or law; and o (2) to demolish and clear the site of the undamaged , portions of the dwelling caused by enforcement of building, zoning or land use ordinance or law. o d 24 FP-7955 `8i a We will never pay for more than a dwelling of the Option SG - Silverware and Goldwarp Theft The COVER- same height, floor area and style on the same or AGE B - PERSONAL PROPERTY, Special Limits of Li- similar premises as the dwelling, subject to the limit ability, item h., for theft of silverware and goldware is provided in paragraph 1. Covei* Provided of this increased to be the amount shown in the. Declarations for option. this option. IN WITNESS WHEREOF, this Company has caused this policy to be signed by its President and Secretary at Bloomington, s Illinois. Secretary 15U4?' gr President X ' The Board of Directors, in accordance with Article VI(c) of this Company's Artrcles of incprporation, may from time to time distribute equitably to the holders of the participating policies issued by said Company such auras out of its earnings as in its judgment are proper. 25 FP- Received: Jan 14 2011 02AUm SF Fax Server 13 1/14/2011 2:43:10 PM PAGE 2/013 Fax Server In the Court of Common Pleas of Cumberland County, Pennsylvania Beverly Diane Rydman, Plaintiff No. 2010-4862 Civil v. James M. DeCoster MW o -n , Defendant Zern ? M M-- n ? N COMPLAINT AND NOW comes the plaintiff, Beverly Diane Rydman , by and through her•at rn 1, - rn Flower Law, LLC, and avers the following: J -< 1. The plaintiff is Beverly Diane Rydman ("Plaintiff"), an adult individual residing at 103 North Pitt Street, Apt. C, Carlisle Borough, Cumberland County, Pennsylvania. 2. The defendant is James M. DeCoster ("Defendant"), an adult individual residing at 161 West Louther Street, Carlisle Borough, Cumberland County, Pennsylvania. 3. On the evening of August 14, 2008, at approximately 9:00 p.m., Plaintiff and Defendant, who were caeual acquaintances, were drinking together at Fast Eddie's Bar on High Street in Carlisle. 4. ' Defendant invited Plaintiff to accompany him to-his inearby;home at..161: West.,,.-:., ' :. Louther Street, to visit and to continue drinking alcohol. 5. Plaintiff had known Defendant for approximately cight.months and had been to Defendant's home for social visits on several prior occasions. 6. For several hours, from the night of August 14, 2008 through the.early morning of August 15, 2008, Plaintiff and Defendant socialized at Defendant's home, drinking and conversing together, and, in Plaintiff s case, making telephone calls. 7. Specifically, Defendant's telephone records show that Plaintiff dialed her son's telephone number in Washington State that night from Defendant's home telephone at 10:10 p.m., 11:15 p.m., 11:18 p.m., 12:11 a.m., 1:07 a,m. and 2:18 a.m. 8. 'the first five times Plaintiff called she reached only her son's answering machine; the fifth time she spoke with her son's wife for fifteen minutes. 9. During that time Defendant continued to drink alcohol untit he was extremely intoxicated, with a blood alcohol level of at least 0.187. EXHIBIT Received: Jan 14 2011 02:50pm $,F Fax Server 13 1/14/2011 2:43:10 PM PAGE 4/013 Fax Server 10. At some time between 2:33 a.m. and 3:00 a.m,, following a phone conversation with her daughter-in-law in Washington State, Plaintiff went into the defendant's kitchen to locate her cigarettes on a counter. 11. From the kitchen, she saw Defendant siting on the toilet in the bathroom off the kitchen, with the door open; she asked, "Why don't you close the door?" and he did. 12. Plaintiff then decided it was a good time to go outside and smoke a cigarette, 13. Defendant, who would not allow smoking in his home, had directed Plaintiff during previous visits to smoke outside at a bench on his patio, where there he kept an ash tray for the convenience of visiting smokers. 14. Plaintiff, who was familiar with the location of the patio bench from prior visits, proceeded outside to Defendant's pario; where"she smoked one ortwo cigarettes- - - 15. Plaintiff believes she was outside on Defendant's patio for approximately ten minutes. lb. After her smoke, Plaintiff returned through the back door and into, the kitchen of Defendant's home at approximately 3:00 a.m. 17 As Plaintiff proceeded from the kitchen to the dining room of Defendant's home, she heard Defendant run down the stairs from the second story of the home. . j 18. " The police,later notedt that the pictures hangingon the stairway.-wallaiad.,,been.:. knocked askew. 19. Defendant, who was carrying his handgun, rounded the. foot of the, stairs, and ran from the hallway and then through the living room toward the dining room, where he encountered Plaintiff, whom he mistook for an intruder. 20. Alarmed, Defendant instinctively ran the in other:direction, and Defendant chased her in a circuit through the hallway, the living room and the dining room, until Plaintiff took a wrong turn and Defendant cornered her in the hallway. 21. As Defendant approached Plaintiff in the hallway, she noticed that he was in his knee-length underwear and that he was not wearing the eyeglasses he normally wore to correct his vision. 22. Plaintiff also noticed, as Defendant approached her, that his eyes were extremely wide open, as if in fear or excitement. 23. Defendant then pointed the handgun at Plaintiff and shot her in the abdomen. Received: Jan 14 2011 02:50cm W Fax Server 13 1/14/2011 2:43:10 PM PAGE 6/013 Fax Server 24. Before collapsing, Plaintiff was able to stumble into the living room and grab the portable phone from the coffee table where the two had been drinking, and she managed to dial 911 to call for help. 25. The police were dispatched to Defendant's house at 3:07 a.m. 26, After the police responded to the call, Defendant, still unaware that he had shot Plaintiff', insisted to the police that he had shot a male intruder. 27. In his drunken condition, to grab his handgun and run downstairs to confront a supposed intruder, without putting on his eyeglasses and without taking time to identify the person in his hallway before shooting, was a gross deviation from the standard of conduct that a reasonable person would observe in his situation. 28. Defendant's grossly negligent or reckless shooting of Plaintiff in the abdomen caused Plaintiff such grievous harm that she had to be transposed by helicopter for emergency treatment in the trauma center at Hershey Medical Center. 29. Plaintiff was brought in as a level one activation, which is the most serious activation, indicating an imminent danger of death. 30. The gunshot wound was to Plaintiffs abdomen, approximately in the epigastrium. % 31. Plaintiff sustained two injuries to her duodenum and her right ureter was damaged as well. 32. Surgeons were unable to remove the bullet, which was lodged, near her spine. 31` Surgeons were unable to close Plaintiffs abdomen during that, initial operation,, i; because 'it was not possible to sufficiently repair her duodenum,.-which was: instead , protected temporarily with a retrograde tube, 34. At a subsequent surgery, skin grafts were taken from Plaintiffs thighs and used to , repair her bowel in a procedure known as a planned ventral hernia. 35. Plaintiff was confined to hospitals and nursing homes for the next eight months. 36• For the first six months after the shooting, while the wound in her abdominal slowly healed, she was not able to eat or drink, subsisting on intravenous solutions alone. 37. During that period of taking no orally-consumed nourishment Plaintiff permanently lost the functioning of her taste buds. i r r 38. Plaintiff continues to have difficulty digesting food, and as a result remains emaciated and has not been able to regain the forty pounds she lost after the wound to her abdomen, Received: Jan 14 2011 02:50pm Fax Server 13 1/14/2011 2:43:10 PM PAGE 8/013 Fax Server J 39, Plaintiffs thighs are permanently disfigured by scars from the skin grafts needed to repair her duodenum. 40. Because of the bullet's proximity to her spinal nerves, doctors determined that the risk of removing the bullet was too great, and Plaintiff still carries in her back the bullet with which Defendant shot her. 41. Plaintiff's total charges for medical and nursing care resulting from the harm caused by Defendant amounted to five hundred twenty-four thousand six hundred twenty-two and 99/100ths ($524,622.99) dollars, for which the providers were reimbursed by Medicare in the amount of one hundred thirty-three thousand four hundred sixty-two and 35/100ths ($133,462.35) dollars. WHEREFORE, Plaintiff' prays this Court enter judgment against Defendant and award damages to Plaintiff in an amount in exccss of 550,000, as compensation for the grievous harm, including disfigurement, pain, suffering and medical costs, caused by Defendant's grossly negligent or reckless acts. Respectfully submitted, FLOWER LAW, LLC Dated: ` r o By:.. - '~ omas E. Flower S. Ct. #83993,.,,. FLOWER LAW, LLC 10 W. High St. Carlisle, PA 17013 Phone (717) 243-5513 Fax (717) 241-4021 Counsel for the plaintiff' i { 1 .f t i t 3 J Received: Jan 14 2011 02:50PM 3F Fax Server 13 1/1412011 2:43:10 PM PAGE 10/0'q Fax Server In the Court of Common Pleas of Cumberland County, Pennsylvania Beverly Diane Rydman, Plaintiff No. 2010-4862 Civil V. James M. DeCoster, Defendant VERIFICATION I, Beverly Diane Rydman, hereby verify that the statements made in the foregoing complaint are true and correct, to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unworn falsification to authorities. DATED: Z fZS//ia B _ n ?? Beverly ane Rydman _ ......... _ Received: Jan 14 2011 02:51pm S,F' Fax Server 13 1/14/2011 2:43:10 PM PAGE 12/01q Fax Server In the Court of Common Pleas of Cumberland County, Pennsylvania Beverly Diane Rydman, Plaintiff No. 2010-4862 Civil V. James M. DeCoster, Defendant CERTIFICATE OF SERVICE On this 21th day of December, 2010, I, Thomas E. Flower, hereby certify that I served a true and correct copy of the foregoing Complaint, upon Matthew R. Gover, Esquire, attorney for the defendant, by placing a copy of same in the United States Mail, first class, postage prepaid, addressed as follows: Matthew R. Govei, Esquire Gover, Perry & Shorc 2411. North Front Street Harrisburg, PA 17110 Dated: 12 / 2 9 f IO By: a1. L_?....---_. Thomas E. Flower S. Ct. #83993 FLOWER T..AW, LLC 10 W. High St. Carlisle, PA 17013 (717) 243-5513 Counsel for the plaintiff w A VERIFIED STATEMENT I of State Farm Fire and Casualty Company, am duly authorized to make this Verified Statement on its behalf. I hereby verify that the statements set forth in the foregoing COMPLAINT FOR DECLARATORY JUDGMENT are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: G' R E' ("I" (_ MAR ' 2010 "fir JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff V. JAMES DECOSTER and BEVERLY DIANE RYDMAN Defendants era C J =?? =M Attorney foie' gtenct, James Coster -mac IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-3770 Civil DECLARATORY JUDGMENT PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendant, James M. DeCoster, in the above-captioned matter. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: // 11,4 2, 9A4A J n ?RNinosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: May 5, 2011 Counsel for Defendant DeCoster 440484 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Entry of Appearance has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on May 5, 2011: David J. Rosenberg, Esquire Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Beverly Diane Rydman 103 North Pitt Street, Apartment C Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: 4Z n R. nos y I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. CIVIL DIVISION ,a r•> NO.: 11-3770 Civil NOTICE OF SERVICE b C-) =C) Filed on Behalf of Plaintiff, State Farm Fire and Casualty Company Counsel of Record For This Party: David J. Rosenberg, Esquire PA I.D. #37492 Email: drosenberg_@wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, CIVIL DIVISION NO.: I1-3770 Civil vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. NOTICE OF SERVICE Plaintiff, State Farm Fire and Casualty Company, by and through its attorneys, David J. Rosenberg, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, hereby notifies the Court that its Requests for Admissions have been served Defendant, James Decoster, by mailing a copy of the same by first class U.S. Mail, postage prepaid, to Defendant, James Decoster, 161 West Louther Street, Carlisle, Pennsylvania 17013-2938 on May 3, 2011. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: WWX Da d . osenberg, Esquire Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing NOTICE OF SERVICE has been served by first class U.S. mail, postage prepaid, this 3rd day of May, 2011, upon the following party: James Decoster 161 West Louther Street Carlisle, PA 17013-2938 Dav J. Rosenberg, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, a$ CIVIL DIVISION NO.: 11-3770 Civil '- , f PROOF OF SERVICE OF COMPLAINT FOR DECLARATORY JUDGMEN T Defendants. Filed on Behalf of Plaintiff, State Farm Fire and Casualty Company Counsel of Record For This Party: David J. Rosenberg, Esquire PA I.D. #37492 Email: drosenbergaa wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh. PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, CIVIL DIVISION NO.: 11-3770 Civil VS. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants PROOF OF SERVICE OF COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff, State Farm Fire and Casualty Company, by and through its attorneys, David J. Rosenberg, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, hereby notifies the Court that a Complaint for Declaratory Judgment has been served upon Defendant, James Decoster, by mailing a copy of the same by Certified U.S. Mail, Return Receipt Requested, to Defendant, James Decoster, 161 West Louther Street, Carlisle, Pennsylvania 17013-2938 on April 28, 2011. The Domestic Return Receipt is attached hereto as Exhibit A. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: Da id J. Rosenberg, Esquire Attorneys for Plaintiff ¦ ComE1M6s ftm 1, 2, and I Also oorrtplere Item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: JOurr2s ucm?-P Jul we! I+ Lo?14r ?r? Curl??)?, PA 1-70)3-(9 930 A. / ?? ? Agent ? Addresses ?. R Prin ) C. Date of Delivery D. Is delivery address different from Rem 1? ? Yes If YES, enter delivery address below: ? No 3. ice Type ified Mail ? Express Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7002 2030 0002 6342 0852 (1fer1e11 r Aem svviCS MW PS Form 3811, February 2004 Domestic Return Receipt 102M-M-Wt540 E EX IT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PROOF OF SERVICE OF COMPLAINT FOR DECLARATORY JUDGMENT has been served by first class U.S. mail, postage prepaid, this 3rd day of May, 2011, upon the following party: James Decoster 161 West Louther Street Carlisle, PA 17013-2938 D id J. Rosenberg, Esquire 46 JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 f' UE0-0- FI E r H E r?r,0Tli0N.-l iAR' 2011 JUN -2 AM 10: 16 Attorney for Defendant, CUMBERLAND CtOUNT"? James DeCoster PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff V. JAMES DECOSTER and BEVERLY DIANE RYDMAN Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-3770 Civil DECLARATORY JUDGMENT DEFENDANT JAMES DECOSTER'S RESPONSES TO PLAINTIFF'S REQUESTS FOR ADMISSIONS It is admitted that you believe you saw a small male intruder in your house. Admitted. 2. It is admitted that upon believing you saw an intruder in your house, you took a gun and approached the intruder. Admitted. 3. It is admitted that you intended to shoot an intruder. Denied. I intended to defend myself against the intruder. 4. It is admitted that you were found guilty of the offense of aggravated assault by intentionally or knowingly causing to attempt injury to another with -a deadly weapon. Admitted. JOHNSO UFFIE, TEWART & WEIDNER By: J hn R. I inosky, Es e Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date:v?/ Attorneys for Defendant DeCoster VERIFICATION 1, James M. DeCoster, have read the foregoing Responses to Plaintiffs Requests for Admissions, and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the peng#ies of 18 Pa. C.S. §4904. mes M. De sfer Date: (0/1111 435138 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answers to Plaintiffs Requests for Admissions has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on , 2011: David J. Rosenberg, Esquire Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Beverly Diane Rydman 103 North Pitt Street, Apartment C Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER r? By: Joh R. Nin sky {tin +1 ' ?, 2: r Fw f'.UMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY CIVIL DIVISION COMPANY, NO.: 11-3770 Civil Plaintiff, vs. STIPULATION OF FACTS JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. Filed on Behalf of Plaintiff, State Farm Fire and Casualty Company Counsel of Record For This Party: David J. Rosenberg, Esquire PA I.D. #37492 Email: drosenberg(cr?wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, CIVIL DIVISION NO.: 11-3770 Civil vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. STIPULATION OF FACTS The parties to this case stipulate to the following facts as uncontroverted evidence: 1. On August 14, 2008, Diane Rydman and James Decoster had been together at a bar known as Fast Eddie's on High Street in Carlisle, Pennsylvania. Rydman and DeCoster had lived within blocks of the bar where they had met each other, and had slept together once before. 2. Rydman went to Decoster's home at 161 West Louther Street, where they continued to drink alcohol. 3. Decoster was intoxicated and had a blood alcohol level of 0.187 as tested by the police shortly after the shooting.. 4. In the early morning hours while Decoster was going to the bathroom, Rydman went outside Decoster's home to smoke a cigarette. 5. After approximately ten minutes, Rydman came back into Decoster's home. 6. When Rydman re-entered the home, Decoster believed that an intruder had broken in. 7. Decoster grabbed a handgun, saw Rydman and mistook her for a small male intruder. At this time Mr. Decoster did not have his glasses on, and believed that he was shooting a small male intruder in his home. 8. It is alleged in Rydman's Complaint that Rydman ran and Decoster chased after her. 9. It is alleged in Rydman's Complaint that Decoster, believing that he was chasing an intruder, pointed the handgun at Rydman and shot her in the abdomen. 10. Despite being intoxicated, Decoster intended to shoot who he believed to be a small male intruder. Mr. Decoster pulled the trigger on purpose intending to shoot who he perceived to be a small male intruder. In fact the victim was Diane Rydman. 11. Decoster was found guilty of the offense of aggravated assault by intentionally or knowingly causing to attempt injury to another with a deadly weapon. 12. Mr. Decoster was tried by a jury and found guilty of Aggravated Assault, but he did not testify at trial. The conviction was overturned on appeal, after which Mr. Decoster accepted a plea bargain in lieu of re-trial. His plea of guilty to the Aggravated Assault charge was pursuant to a plea bargain that was in exchange for a sentence of time served. He did not admit to any facts in the written colloquy at sentencing, but waived any right to appeal the sentence he accepted in writing. 13. When the police arrived, Decoster told the police that he shot a "male intruder". 14. Decoster told the police that he fired the gun at an unknown subject in his home and that he "gut shot" the victim. 15. On the telephone, Decoster said, "You are damn right I shot him. Hurry up and get here." -2- 16. When the police arrived at the scene, Decoster said, "Over here, I shot him. He is in here." 17. Decoster told the police that he shot "him" in self-defense. 18. Decoster was insured pursuant to a homeowners' insurance policy with State Farm. 19. The policy of insurance provides coverage if a claim is made or a suit is brought against the insured for damages because of bodily injury caused by an occurrence. 20. The word "occurrence" is defined as "an accident". 21. The policy of insurance excludes bodily injury which is either expected or intended by the insured. 22. The policy of insurance excludes bodily injury which is the result of willful or malicious acts of the insured. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: David J. Ro erg, Esquire Attorneys f aintiff -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants CIVIL DIVISION NO.: 11-3770 Civil STIPULATION I, James D. Flower, Jr., on behalf of my client, Beverly Diane Rydman, stipulate to the above facts as the record and basis of the case, and should be the basis in determining whether or not State Farm is entitled to declaratory relief. Respectfully submitted, FLOWER LAW, LLC By: QO A'd , '0 '4 9 - J es D. Flower, Jr., Esquire t rneys for Defendant, Beverly Diane Rydman IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, CIVIL DIVISION NO.: 11-3770 Civil Plaintiff, VS. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. STIPULATION I, John R. Ninosky, on behalf of my client, James Decoster, stipulate to the above facts as the record and basis of the case, and should be the basis in determining whether or not State Farm is entitled to declaratory relief. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: 4 16 ? 6 J R. /Noinosq Attornevs for Defendant, James Decoster IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, CIVIL DIVISION NO.: 11-3770 Civil vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. STIPULATION I, David J. Rosenberg, on behalf of my client, State Farm Fire ad Casualty Company, stipulate to the above facts as the record and basis of the case, and should be the basis in determining whether or not State Farm is entitled to declaratory relief. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: _"W? David J. Ro Attorneys fc Casualty Cc Esquire ff, State Farm Fire and CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing STIPULATION OF FACTS has been served by first class U.S. mail, postage prepaid, this 23rd day of Au ust, 2011, upon the following parties: James D. Flower, Jr., Esquire Flower Law, LLC 10 W. High Street Carlisle, PA 17013 Attorneys for Defendant, Beverly Rydman John R. Ninosky, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Defendant, James Decoster David J. Rose e , Esquire STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, V. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-3770 : CIVIL ACTION - LAW IN RE: CROSS MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS, P.J., GUIDO, J. and PECK, J. ORDER AND NOW, this 13 " day of March, 2012, upon consideration of Plaintiff's Motion for Summary Judgment, Defendant James DeCoster's Cross Motion for Summary Judgment, Defendant Beverly Diane Rydman's Motion for Summary Judgment, the responses filed thereto, and after oral argument by the parties heard on January 6, 2012, Plaintiff's Motion for Summary Judgment is DENIED, and Defendants' Motions for Summary Judgment are GRANTED. Thus, it is ordered and directed that Plaintiff State Farm is required to defend and indemnify Defendant DeCoster in the action filed against him by Defendant Beverly Diane Rydman in the Cumberland County Court of Common Pleas at Docket No. 2010-4862. BY THE COURT, Kevin . Hess. P.J r7 N -?? w M n CD ; V David J. Rosenberg, Esquire For the Plaintiff /John R. Ninosky, Esquire For Defendant DeCoster /James D. Flower, Jr., Esquire For Defendant Rydman Arn rnaofed 31IL1119 )W i STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, V. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-3770 CIVIL ACTION - LAW IN RE: CROSS MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS, P.J., GUIDO, J. and PECK, J. OPINION and ORDER The parties at the above captioned docket have filed cross motions for summary judgment, each pursuant to Pennsylvania Rule of Civil Procedure 1035. (Cross Motion for Summary Judgment of Defendant James DeCoster, filed Dec. 20, 2011) (Co-Defendant Beverly Diane Rydman's Motion for Summary Judgment, filed Dec. 20, 2011) (Plaintiff's Motion for Summary Judgment, filed Dec. 20, 2011). This case involves an action for Declaratory Judgment wherein Plaintiff seeks a declaration that it has no duty under a Homeowners Insurance Policy to defend or indemnify Defendant James DeCoster for any and all allegations arising out of facts alleged in a Complaint filed by Beverly Diane Rydman at Docket Number 2010-4862 in the Cumberland County Court of Common Pleas. (Complaint for Declaratory Judgment, filed Apr. 18, 2011). The facts were stipulated by the parties and are set forth at length in the Stipulation of Facts, filed of record on August 25, 2011. Those material to the question presented in the instant Motions are in substance as follows: On August 14, 2008, Defendant Diane Rydman and Defendant James DeCoster had been together at a bar known as Fast Eddie's on High Street in Carlisle, Pennsylvania. Rydman and DeCoster had lived within blocks of the bar where they had met each other, and had slept together once before. After leaving the bar, the two went to DeCoster's home at 161 West Louther Street and continued to drink alcohol. In the early morning hours, and while DeCoster was going to the bathroom, Rydman went outside DeCoster's home to smoke a cigarette. After approximately ten minutes, Rydman came back into the home and, upon her re-entry, DeCoster mistakenly believed that an intruder had broken into his home. DeCoster grabbed a handgun, and, when he saw Rydman, he mistook her for a small male intruder. At the time, DeCoster was not wearing his eyeglasses, and he began to chase after Rydman believing he was chasing an intruder. DeCoster pointed the handgun and shot Rydman in the abdomen. Of DeCoster's intent as he shot Rydman, the Stipulation of Facts provides as follows: "Despite being intoxicated, DeCoster intended to shoot who he believed to be a small male intruder. Mr. DeCoster pulled the trigger on purpose intending to shoot who he believed to be a small male intruder. In fact, the victim was Diane Rydman." (Stipulation of Facts, ¶ (i)). DeCoster called the police, and over the telephone he stated, "You are damn right I shot him. Hurry up and get here." (Stipulation of Facts, ¶ (n)). Upon their arrival, DeCoster stated to the police, "Over here, I shot him. He is in here." (Stipulation of Facts, ¶ (o)). DeCoster was intoxicated and had a blood alcohol level of 0.187 as tested by the police shortly after the shooting. DeCoster was charged and found guilty of the offense of aggravated assault by intentionally or knowingly causing to attempt injury to another with a deadly weapon. The 2 conviction was overturned on appeal, and he subsequently accepted a plea in lieu of re-trial. DeCoster pled guilty to aggravated assault, and was sentenced to time served. At the time of the shooting, DeCoster was insured under a homeowners insurance policy issued by Plaintiff State Farm. The insurance policy provided, in pertinent part, as follows: If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will 1. pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). Furthermore, the policy of insurance defined the term "occurrence" as follows: when used in Section II of this policy, means an accident, including exposure to conditions, which results in: a. bodily injury; or b. property damage; during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). The policy also contained the following relevant exclusionary language: Coverage L and Coverage M do not apply to: a. bodily injury or property damage: 3 (1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). Rydman filed an action against DeCoster in the Court of Common Pleas of Cumberland County at Docket Number 2010-4862 seeking damages for the harm caused as a result of the shooting. The complaint does not set forth any specific counts; instead, Rydman's complaint describes the incident and contains substantially the same facts as the above-described Stipulation of Facts. The allegations relevant to the instant Motions are, in pertinent part, as follows: 19. Defendant, who was carrying a handgun, rounded the foot of the stairs and ran from the hallway and then through the living room toward the dining room, where he encountered Plaintiff, whom he mistook for an intruder. 20. Alarmed, Defendant instinctively ran the in [sic] other direction, and Defendant chased her in a circuit through the hallway, the living room and the dining room, until Plaintiff took a wrong turn and Defendant cornered her in the hallway. 22. Plaintiff also noticed, as Defendant approached her, that his eyes were extremely wide open, as if in fear or excitement. 23. Defendant then pointed the handgun at Plaintiff and shot her in the abdomen. 26. After the police responded to the call, Defendant, still unaware that he had shot Plaintiff, insisted to the police that he had shot a male intruder. 27. In his drunken condition, to grab his handgun and run downstairs to confront a supposed intruder, without putting on his eyeglasses and without taking time to identify the person in his hallway before shooting, was a gross deviation from the standard of conduct that a reasonable person would observe in his situation. 28. Defendant's grossly negligent or reckless shooting of Plaintiff in the abdomen caused Plaintiff such grievous harm that she had to be transported by helicopter for emergency treatment in the trauma center at Hershey Medical Center. 4 (Complaint, Ex. B, Rydman Complaint). DeCoster then filed a claim with State Farm requesting that State Farm defend and indemnify DeCoster in the Rydman action. State Farm subsequently filed the underlying declaratory judgment action, requesting this court to declare that it has no duty to defend or indemnify DeCoster for any and all allegations arising out of facts stated in a Rydman complaint. State Farm has filed the instant Motion for Summary Judgment, maintaining that the above- quoted language of the insurance policy excludes coverage. Rydman and DeCoster, as Co- Defendants herein, have filed cross Motions for Summary Judgment, asserting that, because DeCoster did not intend to shoot Rydman, the exclusion does not apply and State Farm is obligated to defend DeCoster in the Rydman action. Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, the court may grant summary judgment after the 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 that could be established by any additional discovery or expert report, or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense, which in a jury trial would require the issues to be submitted to a jury. Pa. R. Civ. P. 1035.2(1); Estate of Borst v. Edward Stover Sr. Testamentary Trust, 2011 PA Super 222, 30 A.3d 1207. Summary judgment shall be granted whenever "the material facts are undisputed," or the facts are insufficient "to make out a prima facie cause of action or defense." McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 940 (Pa. Super. 1998); Pa. R. Civ. P. 5 1035.2(1). Furthermore, summary judgment is proper when "the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law." Reliance Ins. Co. v. IRPC Inc., 2006 PA Super 150, ¶ 8, 904 A.2d 912, 915. Finally, a trial court's entry of summary judgment will not be overturned absent an error of law or a clear abuse of discretion. McCain v. Pennbank 379 Pa. Super. 313, 318, 549 A.2d 1311, 1313 (1988). The question of whether an insurer has a duty to defend its insured, and thus "[t]he interpretation of an insurance contract regarding the existence or non-existence of coverage," is a question of law to be decided by the court, and is properly resolved in a declaratory judgment action. Minnesota Fire and Cas. Co. v. Greenfield, 579 Pa. 333, 344, 855 A.2d 854, 861 (2004); Aetna Cas. And Sur. Co. v. Roe, 437 Pa. Super. 414, 650 A.2d 94, 98 (1994). In so interpreting, the court is to ascertain "the intent of the parties as manifested by the terms used in the written insurance policy." Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 155, 938 A.2d 286, 290 (2007) (citing 401 Fourth Street, Inc. v. Investors Ins. Group, 583 Pa. 445, 454, 879 A.2d 166, 171 (2005)). "Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer.... Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language." Minnesota Fire and Cas. Co., 579 Pa. at 344, 855 A.2d at 861 (quoting Gene & Harvey Builders, Inc. v. Pennsylvania Manufacturers' Association Insurance Company, 512 Pa. 420, 517 A.2d 910, 913 (1986)). 6 Pennsylvania courts have previously examined policy provisions that exclude coverage for bodily injuries which are "expected or intended" by an insured, and it is well settled that such provisions are "ambiguous as a matter of law and must be construed against the insurer." Erie Insurance Exchange v. Muff, 2004 PA Super 177, ¶ 13, 851 A.2d 919, 927 (quoting Stidham v. Millvale Sportsmen's Club, 421 Pa. Super. 548, 618 A.2d 945, 953 (1992)). "The words `expected' and `intended' are synonymous when interpreting this exclusionary clause, and connote an element of conscious awareness on the part of the insured. For purposes of this `expected or intended' provision, `an insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result."' Id. at ¶ 13, 851 A.2d at 927-28. The duty of an insurance company to defend and indemnify an insured is a great responsibility, and an insurer bears the burden of showing that claims raised in a third party complaint are excluded from the policy issued to the insured. Utica First Ins. Co. v. McClaim, 2009 WL 415988; see also D'Auria v. Zurich Ins. Co., 352 Pa. Super. 231, 233-34, 507 A.2d 857, 859 (1986). In determining whether an insurance company has a responsibility to defend its insured, our Supreme Court has instructed that the relevant inquiry lies in a comparison between the language of the insurance policy and the facts alleged in the third party complaint, from which the insured seeks to be defended and ultimately, perhaps, indemnified. Donegal, 595 Pa. at 155, 938 A.2d at 290-91 (quoting Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 538, 725 A.2d 743, 745 (1999)). Indeed, the Supreme Court observed, in a case oft cited in this area, the following: 7 [a]n insurer's duty to defend an action against the insured is measured, in the first instance, by the allegations in the plaintiffs pleadings.... In determining the duty to defend, the complaint claiming damages must be compared to the policy and a determination made as to whether, if the allegations are sustained, the insurer would be required to pay resulting judgment .... [T]he language of the policy and the allegations of the complaint must be construed together to determine the insurers' obligation. Donegal, 595 Pa. at 155, 938 A.2d at 290 (quoting Gene's Restaurant Inc. v. Nationwide Ins. Co., 519 Pa. 306, 308, 548 A.2d 246, 247 (1988)). Pennsylvania law is clear that it is not the actual details of the alleged injury, but, rather, the nature of the claim that determines whether the insurer is required to defend. D'Auria v. Zurich Insurance Co., 352 Pa. Super. at 234, 507 A.2d at 859. The duty to defend is "limited to only those claims covered by the policy. The insurer is obligated to defend if the factual allegations of the complaint on its face comprehend an injury which is actually or potentially within the scope of the policy." Id. "It does not matter if in reality the facts are completely groundless, false or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend." Id. at 253, 507 A.2d at 859. In light of the foregoing, we question the appropriateness of the use of a stipulation of facts as the basis for determination of the instant motions, as opposed to the use of solely the Rydman complaint. As a result, we rely on the Stipulation merely as a guide in interpreting the facts alleged in the underlying Rydman complaint. Despite the deceptively simple "policy/complaint" comparison test, Pennsylvania courts have rejected artful pleading as a means to circumvent coverage exclusions; indeed, the Superior Court has held that 8 ... 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. If we were to allow the manner in which the complainant frames the request for damages to control the coverage question, we would permit insureds to circumvent exclusions that are clearly part of the policy of insurance. Erie Insurance Exchange v. Fidler, 2008 PA Super 307, ¶ 7, 808 A.2d 587, 590 (citing Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999) ("The fact that the [underlying claimant] couched their claims in terms of negligence does not control the question of coverage."). In this case, Mr. DeCoster intentionally shot a person. However, he neither expected nor intended to shoot Ms. Rydman. In short, this case involves an intentional act with an unintended result. The question then becomes whether the shooting of Ms. Rydman was accidental for the purpose of coverage under the State Farm policy. In seeking guidance to resolve this issue, we have been unable to find any appellate cases with facts which are even remotely similar. As noted above, when applying the provisions of the policy to the allegations of the Plaintiff's complaint, we are bound to construe those provisions in favor of the insured and against the insurer. The Plaintiffs complaint alleges acts which were "grossly negligent" or "reckless." Under the language of the policy, there is no coverage for acts which are "willful and malicious." There is no contention in Ms. Rydman's complaint that Mr. DeCoster bore her malice. Instead, the contention is that his actions in mistaking her for an intruder were grossly negligent. 9 We recognize that affording Mr. DeCoster coverage is troublesome given the extreme recklessness of his actions. As we have already noted, however, to the extent that there is ambiguity in the insurance policy, the law requires that we resolve it in favor of the insured. ORDER AND NOW, this 13 ` day of March, 2012, upon consideration of Plaintiff's Motion for Summary Judgment, Defendant James DeCoster's Cross Motion for Summary Judgment, Defendant Beverly Diane Rydman's Motion for Summary Judgment, the responses filed thereto, and after oral argument by the parties heard on January 6, 2012, Plaintiff's Motion for Summary Judgment is DENIED, and Defendants' Motions for Summary Judgment are GRANTED. Thus, it is ordered and directed that Plaintiff State Farm is required to defend and indemnify Defendant DeCoster in the action filed against him by Defendant Beverly Diane Rydman in the Cumberland County Court of Common Pleas at Docket No. 2010-4862. BY THE COURT, Oq Kevin . Hess, P.J. ?/, 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, VS. JAMES DECOSTER and BEVERLY DIANE RYDMAN, Defendants. CIVIL DIVISION NO.: 11-3770 Civil rn CO `L - 1.r. _., S.2 - 57 C Notice is hereby given that State Farm Fire and Causality Company, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 9 h day of April, 2012, by the Honorable Judge Kevin A. Hess. This Order has been entered in the docket. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: ?\l ?, Davi J senberg, Esquire Atto r Plaintiff PA I. . 7492 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 Email: drosenberg a.w¢laww,com, e #30 59`7 p*.2 73616 S*,f ib 56wrv '? e L'ow-6 r I hereby certify that a true and correct copy of the foregoing NOTICE OF APPEAL has been served by first class U.S. mail, postage prepaid, this 9th day of A Rd 2012, upon the following parties: The Honorable Judge Kevin A. Hess, President Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Melissa H. Calvanelli, District Court Administrator Cumberland County Courthouse 1 Courthouse Square, Rm. 301 Carlisle, PA 17013 James D. Flower, Jr., Esquire Flower Law, LLC 10 W. High Street Carlisle, PA 17013 Attorneys for Defendant, Beverly Rydman John R. Ninosky, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Defendant, James Decoster David o enberg, Esquire Attorn or Plaintiff PA I. 437492 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 Email: drosen izamdaw.com ,PYS511 Cumberland. County ProthcnctaryI S Of-4 Page 1 Civil Case Print 2011-03770 STATE FARM FIRE AND CASUALTY (vs) DECOSTER JAMES ET AL Reference No... Filed......... 4/18/2011 Case Type ..... : MISCELLANEOUS - DECLAR Time........ 2:06 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disosed Date. 0/00/0000 ------------ Case Comments ------------- Hi.gEer Crt 1.: Higher Crt 2.: General Index Attorney Info STATE FARM FIRE AND CASUALTY PLAINTIFF ROSENBERG DAVID J COMPANY BLOOMINGTON IL DECOSTER JAMES DEFENDANT NINOSKY JOHN R 161 WEST LOUTHER STREET CARLISLE PA RYDMAN BEVERLY DIANE DEFENDANT FLOWER JAMES D JR 103 NORTH PITT STREET APARTMENT C CARLISLE PA ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - 4/18/2011 COMPLAINT - DECLARATORY JUDGMENT - BY DAVID J ROSENBERG ATTY FOR PLFF 5/06/2011 --------- PRAECIPE ------------------------ FOR ENTRY OF APPEARANCE ---------------------------------- - BY JOHN R NINOSKY ATTY FOR DEF 5/06/2011 --------- NOTICE OF ------------------------ SERVICE - REQUESTS FOR ---------------------------------- ADMISSIONS - BY DAVID J ROSENBERG ATTY FOR PLFF 5/06/2011 --------- PROOF OF ---------------------------------------------------------- SERVICE OF COMPLAINT FOR DECLARATORY JUDGMENT - BY DAVID J ROSENBE RG ATTY FOR PLFF 5/16/2011 --------- DEFENDANT ---------------------------------------------------------- JAMES DECOSTER'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT WITH NOTICE TO PLEAD - BY JOHN R NINOSKY ATTY FOR DEF 6/01/2011 --------- PRAECIPE ------------------------ TO ENTER APPEARANCE -BY ---------------------------------- JAMES D FLOWER JR ATTY FOR DEF RYDMAN ------------------------------------------------------------------- 6/02/2011 DEFENDANT JAMES DECOSTER'S RESPONSES TO PLFF'S REQUESTS FOR ADMISSIONS - BY JOHN R NINOSKY ATTY FOR DEFT DECOSTER ------------------------------------------------------------------- 8/25/2011 STIPULATION OF FACTS - BY DAVID J ROSENBERG ATTY FOR PLFF ------------------------------------------------------------------- 9/02/2011 ANSWER OF BEVERLY DIANE RYDMAN TO COMPLAINT FOR DECLARATORY JUDGMENT - BY JAMES D FLOWER JR ATTY FOR DEFT/RYDMAN ------------------------------------------------------------------- 9/02/2011 DEFTIFICATN OF SERVICE - COMPLAINT - BY JAMES D FLOWER JR ATTY FOR -------------------------------------------------------------------- 12/20/2011 PRAECIPE TO LIST MATTER FOR ARGUMENT - THOMAS E FLOWER ATTY FOR CO-DEFENDANTS ------------------------------------------------------------------- 12/20/2011 CROSS MOTION FOR SUMMARY JUDGMENT OF DEFENDANT JAMES DECOSTER - BY JOHN R NINOSKY ATTY FOR DEF JAMES DECOSTER ------------------------------------------------------------------- 12/20/2011 CO-DEFENDANT BEVERLY DIANE RYDMAN'S MOTION FOR SUMMARY JUDGMENT - BY THOMAS E FLOWER ATTY FOR CO-DEFENDANT -------------------------------------------------------------------- 12/20/2011 MOTION FOR SUMMARY JUDGMENT - BY DAVID J ROSENBERG ATTY FOR PLFF -------------------------------------------------------------------- 3/14/2012 ORDER - 3/13/12 - IN RE: CROSS MOTIONS FOR SUMMARY JUDGMENT - PLFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED & THE DEFTS' MOTIONS FOR SUMMARY JUDGMENT ARE GRANTED - ORDERED THAT THE PLFF IS REQURED TO DEFEND AND INDEMNIFY DEFT DECOSTSER IN THE ACTION FILED AGAINST HIM BY DEFT RYDMAN IN THE CUMB CO COURTHOUSE COMMON PLEAS #10-4862 - BY THE COURT KEVIN A HESS PJ -.??? MA FROM RECORD In Testimony whereof, I here unto set my hand and the seal of tail Cou at Carlisle, Pa. ,PYS51 C,.;.m.berla.nd County Prcthc Civil Case ,?ri:-i.t 2011-03770 STA'L'E FARM FIRE AND CASUALTY (vs) Reference No... Case Type ..... : MISCELLANEOUS - DECLAR Judgment..... .00 Judge Assigned: HESS KEVIN A Disposed Desc.: ------------ Case Comments ------------- terry's Off__ce DECOSTER JAMES ET AL t? Paae Filed........: 4/18/2011 Time.........: 2:06 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ¦ 2 ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Py*mts/Ad? End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 ------------ 23.50 .00 -- 92.00 ---------- --- 92.00 --------- .00 ***************************************************** *************************** * End of Case Information ***************************************************** *************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the seat of said Court at Carlisle, Pa. This -4-0-1day of -AWl? .20 _ [? Prothonotary Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District April 11, 2012 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us RE: State Farm Fire and Casualty Company Appellant V. James Decoster and Beverly Diane Rydman 673 MDA 2012 Trial Court Docket No: 11-3770 Civil Dear David D. Buell: rv s7• D Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure 3:26 P.M. Appeal Docket Sheet Docket Number: 673 MDA 2012 Page 1 of 2 April 11, 2012 State Farm Fire and Casualty Company Appellant v. James Decoster and Beverly Diane Rydman Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: April 11, 2012 Journal Number: Case Category: Civil CONSOUIDATED CASES Civil Action Law RELATED CASES SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: April 25, 2012 Next Event Type: Original Record Received Next Event Due Date: June 11, 2012 COUNSEL INFORMATION Appellant State Farm Fire and Casualty Company Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Rosenberg, David J. Bar No: 037492 Law Firm: Weber, Gallagher, Simpson, Stapleton, Fires & Newby, L.L.P. Address: Weber Gallagher ET AL 2 Gateway Ctr Ste 1450 Pittsburgh, PA 15222 Phone No: (412) 281-4541 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: drosenberg@wglaw.com Appellee Rydman, Beverly Diane Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Flower, James D., Jr. Bar No: 027742 Law Firm: Saidis, Flower & Lindsay Address: Flower Law Llc 10WHigh St Carlisle, PA 17013--2922 Phone No: (717) 243-5513 Fax No: Receive Mail: Yes Receive EMail: No Superior Court of Pennsylvania Secure CAPTION CASE INFORMATION Awaiting Original Record Case Type(s) 3:26 P.M. Appeal Docket Sheet Docket Number: 673 MDA 2012 Page 2 of 2 April 11, 2012 Appellee Do Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: Superior Court of Pennsylvania Secure COUNSEL INFORMATION -oster, James Appoint Counsel Status: Represented Ninosky, John Robert 078000 Johnson, Duffie, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, PA 17043 Phone No: (717) 761-4540 Fax No: (717) 761-3015 Receive Mail: Yes Receive EMail: Yes EMail Address: jrn@jdsw.com FEE' INFORMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No 04/10/2012 Notice of Appeal 73.50 04/11/2012 2012-SPR-M-000362 AGENCY/TRtAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: April 9, 2012 Judicial District: Documents Received: April 11, 2012 Notice of Appeal Filed: Order Type: Order Entered OTN(s): Lower Ct Docket No(s) :11-3770 Civil Lower Ct Judge(s): Hess, Kevin A. President Judge Receipt Amt 73.50 Cumberland County Civil Division 09 April 10, 2012 ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Descri Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry / Representing Participant Type Filed By April 11, 2012 Notice of Appeal Docketed Appellant State Farm Fire and Casualty Company April 11, 2012 Docketing Statement Exited (Civil) Middle District Filing Office CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STATE FARM FIRE AND CASUALTY COMPANY Vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN 2011-3770 Civil Term 673 MDA 2012 The documents comprising the record have been numbered from No. 1 to 154, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 04/17/2012. Davi rothonot A ma Kostjerevac, Deput An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania SS: Countv of Cumberland In 'TESTIMONY WHEREOF, 1 have hereunto this 17th 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein STATE FARM FIRE AND CASUALTY COMPANY Plaintiff, and JAMES DECOSTER and BEVERLY DIANE RYDMAN Defendant, as the same remains of record before the said Court at No. 011-37 0 Civil Term 61711 •( set rnv hand and affixed the seal of' said Court day of ril A. D., 2012 Pi othonotary 1, Kevin A. Hess President Judge of the Ninth Judicial District, composed of the County of' Cumberland, do certify that David D. Buell , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and atfixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth ol'Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the pro er officer. A4v President Judge Commonwealth of Pennsylvania SS: Gounty of Cumberland 1 David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County. do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto Subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. iN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 17th ay f ril A. D. 2012 PrO I 110T) Ot 3 P, No. Term 19 2011-3770 Civil T- N o 673 MDA 2012 Civil Term STATE FARM FIRE AND CASUALTY COMPANY Versus JAMES DECOSTER and BEVERLY DIANE RYDMAN EXEMPLIFIED RECORD Cumberland From County Debt. S 1 nt. from _ Costs Entered and Filed Prot honotarv. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland ceninty ? in the Commonwealth of Pennsylvania '_011.,7,0 CiviiTemi 673, MDA 2012 to No. Term, 19 _ is contained the following: COPY OF Appearance DOCKET ENTRY STATE FARM FIRE AND CASUALTY COMPANY vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN **SEE CERTIFIED COPY OF DOCKET ENTERIES** Yyssil Cumberland County Prothonotary's Off=_ce Page Civil Case Print 2011-03770 STATE FARM ?IRE AND CASUALTY (vs) DECOS'.LER JAMES ET AL Reference No..: Filed........: 4/18/2011 Case Type ..... : MISCELLANEOUS - DECLAR Time.......... 2:06 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments -------- - Higher Crt 1.: 673MDA2012 Higher Crt 2.: ******************************************************************************** General Index Attorney Info STATE FARM FIRE AND CASUALTY PLAINTIFF ROSENBERG DAVID J COMPANY BLOOMINGTON IL DECOSTER JAMES DEFENDANT NINOSKY JOHN R 161 WEST LOUTHER STREET CARLISLE PA RYDMAN BEVERLY DIANE DEFENDANT FLOWER JAMES D JR 103 NORTH PITT STREET APARTMENT C CARLISLE PA ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - 5'04/18/2011 COMPLAINT - DECLARATORY JUDGMENT - BY DAVID J ROSENBERG ATTY FOR PLFF ------------------------------------------------------------------- 51-5? 5/06/2011 PRAECIPE FOR ENTRY OF APPEARANCE - BY JOHN R NOdOSKY ATTY FOR DEF ------------------------------------------------------------------- S3_5S5/06/2011 NOTICE OFPSERVICE - REQUESTS FOR ADMISSIONS - BY DAVID J ROSENBERG AT FOR ------------------------------------------------------------------- 5b- 5 5/06/2011 PROOF OF SERVICE OF COMPLAINT FOR DECLARATORY JUDGMENT - BY DAVID J ROSENBERG ATTY FOR PLFF ------------------------------------------------------------------- 60_($5/16/2011 DEFENDANT JAMES DECOSTER'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT WITH NOTICE TO PLEAD - BY JOHN R NINOSKY ATTY FOR DEF ------------------------------------------------------------------- bb 6/01/2011 PRAECIPE TO ENTER. APPEARANCE -BY JAMES D FLOWER JR ATTY FOR DEF RYDMAN -------------------------------------------------------------------DECO 6ff-6q 6/02/2011 ADMIDEFENSDANT ONSJ BY JOHNS RTENINOSKYRIS DEFT'DERCOQSTERTS FOR --------------------------------------------------- -70-178/25/2011 STIPULATION OF - FACTS - - - BY - DAVID J ROSENBERG ATTY - FOR - PLFF - - - - - - - - - - ------------------------------------------------------------------- -JS-82 9/02/2011 JUDGMENTF-BBYEJAMESID FLOWER JRTATTOYMFORIDEFT/RYDMANARATORY ------------------------------------------------------------------- 83 9/02/2011 CERTIFICATE OF SERVICE - COMPLAINT - BY JAMES D FLOWER JR ATTY FOR DEFT/RYDMAN ------------------------------------------------------------------- 3q-S.512/20/2011 PRAECIPE TO LIST MATTER FOR ARGUMENT - THOMAS E FLOWER ATTY FOR CO-DEFENDANTS ------------------------------------------------------------------ f6-11312/20/2011 CROSSRMOIIO FOR SUM ARYDJUDGMENT OF DEFENDANT JAMES DECOSTER - BY FO JAMES JOHN ------------------------------------------------------------------- ?Jt,(-/x.012/20/2011 CO-DEFENDANT BEVERLY DIANE RYDMAN'S MOTION FOR SUMMARY JUDGMENT - BY THOMAS E FLOWER ATTY FOR CO-DEFENDANT ------------------------------------------------------------------- al-IO12/20/2011 MOTION FOR SUMMARY JUDGMENT - BY DAVID J ROSENBERG ATTY FOR PLFF ----------------------------------------------------- --------- ----- 3/14/2012 OPINION AND ORDER - 3/13/12 - IN RE: CROSS MOTIONS FOR SUMMARY JUDGMENT - PLFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED & THE DEFTS' MOTIONS FOR SUMMARY JUDGMENT ARE GRANTED - ORDERED THAT THE PLFF IS REQURED TO DEFEND AND INDEMNIFY DEFT DECOSTSER IN THE ACTION FILED AGAINST HIM BY DEFT RYDMAN IN THE CUMB CO COURTHOUSE COMMON PLEAS #10-4862 - BY THE COURT KEVIN A HESS PJ - COPIES PYS511 Cumberland County Prothonotary's Office Civil Case Print Page 2011-03770 STATE FARM r IRE AND CASUALTY (vs) DECOS'I nR JAMES ET AL Reference No..: Filed........: 4/18/2011 Case Type.....: MISCELLANEOUS - DECLAR Time.........: 2:06 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 673MDA2012 Higher Crt 2.: MAILED 3/14/12 -------- ---------------------- iqg-1514/10/2012 NOTICE OF APPEAL TO SUPERIOR --- COURT OF PA - BY DAVID J ROSENBERG ATTY FOR PLFF ------ --------------------------- ---------------- s?-t5q4/12/2012 SUPERIOR COURT O ------------ F PA NOTICE ------ OF APPEAL -DOCKETING-TO-#-673-MDA-2012- 4/17/2012 NOTICE OF DOCKET ENTRIES MAI LED TO DAVID J ROSENBERG ESQ AND JAMES D FLOWER JR ESQ AND JOHN ROBERT NINOSKY ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beq Bal Pmts/Adj End Bal COMPLAINT 55.00 50 55.00 50 .00 .00 TAX ON CMPLT SETTLEMENT . 8.00 . 8.00 .00 AUTOMATION 5.00 50 23 5.00 50 23 .00 .00 JCP FEE APPEAL HIGH CT . 57.00 ---- . 57.00 - --------- - - -- - .-00 ----- --- -------- 149.00 149.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the se of said Cou at Carl* sle Pa. Z This daY ? G-L C? CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STATE FARM FIRE AND CASUALTY COMPANY Vs. JAMES DECOSTER and BEVERLY DIANE RYDMAN 2011-3770 Civil Term 673 MDA 2012 The documents comprising the record have been numbered from No. 1 to 154, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is Alma,Kostjerevac, An additional copy of this certifMagn M&POR[ORAMS and date copy, thereby acknowledging receipt of this record. APR 2 0 2012 Date Signature & Title HARRISBURG superior Court of fleuu.5ptbauia Karen Reid Bramhlett,Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O.Box 62435 Mary A,Graybill,Esq, 601 Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 (717)772-1294 www.pacourts.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: State Farm v. Decoster, J. and Rydman, B. 673 MDA 2012 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 11-3770 Civil Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part April 23, 2012 1 Remand/Remittal Date: 06/24/2013 ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Mary A. ybill, Esq. Deputy Prothonotary /rh Enclosure cc: Thomas E. Flower, Esq. The Honorable Kevin A. Hess, President Judge John Robert Ninosky, Esq. David J. Rosenberg, Esq. y State Farm v. Decoster, J. and Rydman, B. 673 MDA 2012 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaVRemand of Record(to be returned): Signature Date Printed Name 3-A30015-12 2013 PA Super 121 STATE FARM FIRE AND CASUALTY IN THE SUPERIOR COURT OF COMPANY, PENNSYLVANIA Appellant V. JAMES DECOSTER AND BEVERLY DIANE RYDMAN, Appellees No. 673 MDA 2012 Appeal from the Order Entered April 9, 2012, In the Court of Common Pleas of Cumberland County, Civil Division, at No. 11-3770 Civil. BEFORE: SHOGAN, LAZARUS and OTT, JJ. OPINION BY SHOGAN, J. : FILED MAY 17, 2013 In this declaratory judgment action, State Farm Fire and Casualty Company ("State Farm") appeals from the trial court's April 9, 2012 order denying State Farm's motion for summary judgment and granting Appellees', James DeCoster ("DeCoster") and Beverly Diane Rydman's ("Rydman"), motions for summary judgment with respect to State Farm's duty to defend and indemnify DeCoster in a third-party action initiated by Rydman. On appeal, we are asked to decide, inter aiia, whether the intentional injury exclusion of a liability policy applies when an intoxicated homeowner intentionally injures a guest who he mistakes as an intruder. We hold that the application of the intentional injury exclusion of a liability J-A30015-12 policy, such as the one at issue here, depends on whether the insured's conduct was intentionally wrongful under tort law. Under the specific facts of this case, we conclude that State Farm currently has a duty to defend but that genuine issues of material fact exist as to whether the insured homeowner's conduct was intentionally wrongful under applicable tort law. Thus, the court's decision as to indemnification is premature at this juncture. Accordingly, we affirm in part and reverse in part. The trial court set forth the relevant factual and procedural history as follows: The facts were stipulated by the parties and are set forth at length in the Stipulation of Facts, filed of record on August 25, 2011. Those material to the question presented in the instant Motions are in substance as follows: On August 14, 2008, Defendant Diane Rydman and Defendant James DeCoster had been together at a bar known as Fast Eddie's on High Street in Carlisle, Pennsylvania. Rydman and DeCoster had lived within blocks of the bar where they had met each other, and had slept together once before. After leaving the bar, the two went to DeCoster's home at 161 West Louther Street and continued to drink alcohol. In the early morning hours, and while DeCoster was going to the bathroom, Rydman went outside DeCoster's home to smoke a cigarette. After approximately ten minutes, Rydman came back into the home and, upon her re-entry, DeCoster mistakenly believed that an intruder had broken into his home. DeCoster grabbed a handgun, and, when he saw Rydman, he mistook her for a small male intruder. At the time, DeCoster was not wearing his eyeglasses, and he began to chase after Rydman believing he was chasing an intruder. DeCoster pointed a handgun and shot Rydman in the abdomen. Of DeCoster's intent as he shot Rydman, the Stipulation of Facts provides as follows: ""Despite being intoxicated, DeCoster intended to shoot who he believed to be a small male intruder. Mr. DeCoster pulled the trigger on purpose intending to shoot who he believed to be a small male -2- I-A30015-12 intruder. In fact, the victim was Diane Rydman." (Stipulation of Facts, ¶ (i)). DeCoster called the police, and over the telephone he stated, "You are damn right I shot him. Hurry up and get over here." (Stipulation of Facts, $ (n)). Upon their arrival, DeCoster stated to the police, "Over here, I shot him. He is in here." (Stipulation of Facts, ¶ (o)). DeCoster was intoxicated and had a blood alcohol of 0.187 as tested by the police shortly after the shooting. DeCoster was charged and found guilty of the offense of aggravated assault by intentionally or knowingly causing to attempt [sic] injury to another with a deadly weapon. The conviction was overturned on appeal, and he subsequently accepted a plea in lieu of re-trial. DeCoster pled guilty to aggravated assault, and was sentenced to time served. At the time of the shooting, DeCoster was insured under a homeowners insurance policy issued by Plaintiff State Farm. The insurance policy provided, in pertinent part, as follows: If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will 1. pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). Furthermore, the policy of insurance defined the term "occurrence" as follows: when used in Section II of this policy, means an accident, including exposure to conditions, which results in: a. bodily injury; or -3- I-A30015-12 b. property damage; during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). The policy also contained the following relevant exclusionary language: Coverage L and Coverage M do not apply to: a. bodily injury or property damage: (1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured. (Complaint, Ex. A, Homeowners Insurance Policy) (emphasis original). Rydman filed an action against DeCoster in the Court of Common Pleas of Cumberland County at Docket Number 2010- 4862 seeking damages for the harm caused as a result of the shooting. The complaint does not set forth any specific counts; instead, Rydman's complaint describes the incident and contains substantially the same facts as the above-described Stipulation of Facts. The allegations relevant to the instant Motions are, in pertinent part, as follows: 19. Defendant, who was carrying a handgun, rounded the foot of the stairs and ran from the hallway and then through the living room toward the dining room, where he encountered Plaintiff, whom he mistook for an intruder. 20. Alarmed, [Plaintiff] instinctively ran the in [sic] other direction, and Defendant chased her in a circuit through the hallway, the living room and the dining room, until Plaintiff took a wrong turn and Defendant cornered her in the hallway. -4- 177� J-A30015-12 22. Plaintiff also noticed, as Defendant approached her, that his eyes were extremely wide open, as if in fear or excitement. 23. Defendant then pointed the handgun at Plaintiff and shot her in the abdomen. 26. After the police responded to the call, Defendant, still unaware that he had shot Plaintiff, insisted to the police that he had shot a male intruder. 27. In his drunken condition, to grab his handgun and run downstairs. to confront a supposed intruder, without putting on his eyeglasses and without taking time to identify the person in his hallway before shooting, was a gross deviation from the standard of conduct that a reasonable person would observe in his situation. 28. Defendant's grossly negligent or reckless shooting of Plaintiff in the abdomen caused Plaintiff such grievous harm that she had to be transported by helicopter for emergency treatment in the trauma center at Hershey Medical Center. (Complaint, Ex. B, Rydman Complaint). . DeCoster then filed a claim with State Farm requesting that State Farm defend and indemnify DeCoster in the Rydman action. State Farm subsequently filed the underlying declaratory judgment action, requesting this court to declare that it has no duty to defend or indemnify DeCoster for any and all allegations arising out of facts stated in a Rydman complaint. State Farm has filed the instant Motion for Summary Judgment, maintaining that the above-quoted language of the insurance policy excludes coverage. Rydman and DeCoster, as Co-Defendants herein, have filed cross Motions for Summary Judgment, asserting that, because DeCoster did not intend to shoot Rydman, the exclusion does not apply and State Farm is obligated to defend DeCoster in the Rydman action. Trial Court Opinion, 3/14/12, at 1-5 (emphasis in original). -5- 3-A30015-12 In an order accompanying the trial court's opinion, the court denied State Farm's motion for summary judgment and granted DeCoster's and Rydman's cross-motions for summary judgment, ordering State Farm to defend and indemnify DeCoster in the third-party action filed against him by Rydman. Order, 3/14/12. State Farm then filed this appeal. State Farm presents the following issues for this Court's consideration: I. Whether the trial court erred by finding that the act of shooting Ms. Rydman, by Mr. DeCoster, was as an occurrence (i.e., an accident) as defined within the subject homeowners' policy, such as to trigger State Farm's duty to defend and indemnify Mr. DeCoster. II. Whether the trial court erred by finding that, although Mr. DeCoster's conduct was intentional, State Farm was required to defend and indemnify its insured, Mr. DeCoster. III. Whether the trial court erred in ruling that, although Mr. DeCoster intentionally shot a person, because he neither expected nor intended to shoot Ms. Rydman, State Farm was required to defend and indemnify Mr. DeCoster in the action filed against him by Ms. Rydman. IV. Whether the trial court erred by finding that State Farm owed a duty to defend and indemnify its insured, Mr. DeCoster. State Farm's Brief at 51 (issues renumbered for ease of disposition). 1 We observe that while State Farm purports to raise four issues on appeal, it failed to divide the argument section into as many parts as there are questions to be argued. Pa.R.A.P. 2119(a). After a complete review of State Farm's brief, however, State Farm's fourth issue on appeal poses the salient question for this Court's consideration. The remaining three issues are fairly subsumed within its challenge to the basis of the trial court's determination that State Farm owed DeCoster a duty to defend and indemnify in the third-party action. -6- 3-A30015-12 We begin our analysis by noting the applicable scope and standard of review: We view the record in the light most favorable to the non- moving 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, 598 Pa. 769, 956 A.2d 436 (2008) (quoting Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001)). 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 insured's favor. 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. Since the insurer agrees to relieve the insured of the burden of defending even those suits which have no basis in fact, the obligation to defend arises whenever the complaint filed -7- J-A30015-12 by the injured party may potentially come within the coverage of the policy. 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. An insurer may not justifiably refuse to defend a claim against its insured unless it is clear from an examination of the allegations in the complaint and the language of the policy that the claim does not potentially come within the coverage of the policy. 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). Unlike the duty to defend, a determination of the duty to indemnify is not necessarily limited to the factual allegations of the underlying complaint. "Rather, there must be a determination that the insurer's policy actually covers a claimed incident." Am. States Ins. Co. v. State Auto Ins. Co., 721 A.2d 56, 63 (Pa. Super. 1998) (quoting Pacific Zndem. Co. v. Linn, 590 F. Supp. 643 (E.D. Pa. 1984), affirmed, 766 F.2d 754 (3rd Cir. 1985)). An insurer may rely on evidence outside of the complaint to ultimately prove -8- -A30015-12 it has no duty to indemnify.2 Thus, "[a]s long as a complaint alleges an injury which may be within the scope of the policy, the insurer must defend its insured until the claim is confined to a recovery the policy does not cover." QBE Ins. Corp, v, M & S Landis Corp., 915 A.2d 1222, 1225 (Pa. Super. 2007) (citations and quotation marks omitted) (emphasis added). Accordingly, we initially look at the language of the policy to determine what instances obligate State Farm to provide coverage. To summarize, coverage is to be provided: (1) for a claim or suit brought against an insured for damages because of bodily injury or property damage, (2) caused by an occurrence, but excluding (3) bodily injury or property damage (a) which is either expected or intended by the insured, or (b) which is the result of willful and malicious acts of the insured. Complaint, Ex. A, (Homeowners Insurance Policy) at 15-16 (emphasis original). In support of its contention that the trial court erred in denying its motion for summary judgment, State Farm first argues that the incident was not an "occurrence," which is defined as an accident under the policy, because DeCoster intended to shoot a gun at a person and cause injury to that person. State Farm further contends that the trial court erred because the policy exclusion for injuries "expected or intended" bars coverage. State 2 The facts were stipulated to by the parties in the case sub judice and set forth in a Stipulation of Facts filed of record. -9- J-A30015-12 Farm's Brief at 9. According to State Farm, the fact that DeCoster did not properly identify his victim "does not change the fact that his conduct, as alleged in the Complaint, was intentional." Id. Relying on this Court's opinion in Germantown Ins. Co. v. Martin, 595 A.2d 1172 (Pa. Super. 1991), State Farm argues that DeCoster's intent to shoot an intruder could be transferred to Rydman, thus relieving State Farm from any duty to defend or indemnify DeCoster. Id. at 14-15. Here, as noted by the trial court, Rydman's underlying complaint against DeCoster alleges: 19. Defendant, who was carrying a handgun, rounded the foot of the stairs and ran from the hallway and then through the living room toward the dining room, where he encountered Plaintiff, whom he mistook for an intruder. 20. Alarmed, [Plaintiff] instinctively ran the in [sic] other direction, and Defendant chased her in a circuit through the hallway, the living room and the dining room, until Plaintiff took a wrong turn and Defendant cornered her in the hallway. 22. Plaintiff also noticed, as Defendant approached her, that his eyes were extremely wide open, as if in fear or excitement. 23. Defendant then pointed the handgun at Plaintiff and shot her in the abdomen. 26. After the police responded to the call, Defendant, still unaware that he had shot Plaintiff, insisted to the police that he had shot a male intruder. 27. In his drunken condition, to grab his handgun and run downstairs to confront a supposed intruder, without putting on his eyeglasses and without taking time to identify the person in his hallway before shooting, was a gross deviation from the standard of conduct that a reasonable person would observe in his situation. -10- I-A30015-12 28. Defendant's grossly negligent or reckless shooting of Plaintiff in the abdomen caused Plaintiff such grievous harm that she had to be transported by helicopter for emergency treatment in the trauma center at Hershey Medical Center, Trial Court Opinion, 3/14/12, at 4 (quoting Complaint, Ex. B, Rydman Complaint) (emphasis added). We agree with the trial court that the factual allegations described a case of "an intended act with an unintended result," and, thus, DeCoster's action resulted in unintended consequences. Trial Court Opinion, 3/14/12, at 9. We further note that Rydman's complaint alleges that DeCoster was grossly negligent or reckless when he shot Rydman after running downstairs in a drunken condition, without his eyeglasses, and without taking the time to identify the person in the hallway. Complaint, Ex. B, Rydman Complaint, at ¶¶ 27, 28. Thus, while DeCoster intended to shoot someone that morning, Rydman contends that his precedent failure to take the necessary action to ascertain the identity of the person in his home was the cause of her injuries. She alleges that DeCoster's failure to take such action was demonstrative of his gross negligence or recklessness. Indeed, there is nothing in her Complaint to suggest that his failure to ascertain who was in the hallway was attributable to anything but DeCoster's alleged negligence or recklessness. Insofar as State Farm does not allege its policy excludes coverage for DeCoster's negligent actions or, as a matter of law, exclude acts the consequence of which he did not intend, we conclude J-A30015-12 that the policy does not relieve State Farm from its duty to defend DeCoster against Rydman's claim. Rydman's claim is potentially within the scope of the policy. Accordingly, we conclude the trial court neither erred as a matter of law nor abused its discretion in denying State Farm's motion for summary judgment and granting Appellees' respective motions for summary judgment with respect to its duty to defend. In doing so, we find Martin to be readily distinguishable. As noted above, in the case at bar, DeCoster was in his home, intoxicated, and under the mistaken impression that he shot an intruder. However, in Martin, the insured made the decision to travel to the home of a romantic rival. Martin, 595 A.2d 1173. After knocking on the door and gaining entrance to the home of his rival, the insured in Martin began systematically shooting occupants of the house. id. Thus, in the present case there is a mistake of fact, while in Martin, no such mistake existed, and the insured's actions were excludable from the outset. We now turn to the trial court's ruling relative to State Farm's duty to indemnify. As this Court explained in Unionamerica Ins. Co., Ltd. v. J.B. Johnson, 806 A.2d 431 (Pa. Super. 2002): The duty to defend exists until such time when it is determined that the claim is confined to a recovery that the policy does not cover. Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574, 533 A.2d 1363, 1368 (1987). Facts will be further developed at trial. If, at the time of trial, facts are proven which demonstrate that the exclusion should apply, coverage will not be afforded Johnson Roofing. ... -12- 3-A30015-12 It was premature for the trial court to rule on the indemnity question. Initially it must be determined whether Unionamerica is liable under the terms of the policy and the facts of the case. The duty to indemnify is a conditional obligation. The duty to indemnify arises only if, after trial on the third-party claim, it is determined that the loss suffered is covered by the terms of the policy. At this stage, while the trial court properly found Unionamerica was required to defend its insured, the court improperly ruled that Unionamerica had a duty to indemnify Johnson Roofing. Unionamerica Ins. Co., Ltd., 806 A.2d at 434. Similarly, in this case, we conclude the trial court's ruling on the duty to indemnify was premature. Initially, we note that an insured's guilty plea in an underlying criminal matter does not necessarily bar, on the basis of an expected or intended exclusion, the insured from recovering under his or her homeowner's liability policy in an underlying civil action. Stidham v. Milivale Sportsmen's Club, 618 A.2d 945, 956 (Pa. Super. 1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1993). A trial court must look at the specific facts of the case. In order to provide guidance to the trial courts in analyzing the specific facts of a given case, we hold that the critical inquiry is whether the insured's. conduct was intentionally wrongful under tort law. In undertaking this inquiry, we find the framework utilized by the Arizona Supreme Court in Transamerica Ins. Group v, Meere, 143 Ariz. 351, 694 P.2d 181 (1984) to be helpful. The insurer in Meere claimed that it did not have a duty to defend or indemnify its insured against the victim's tort action, which alleged that the insured intentionally assaulted the victim. The insured claimed that he acted -13- I-A30015-12 in self-defense. The Meere court began its inquiry by examining the issue of whether intent in the exclusionary clause referred to the objective intent which accompanied the immediate act, or the actual subjective intent which motivated the insured's conduct. The court utilized an approach which analyzed the purpose of the exclusion and the public policy considerations, as well as the the transaction as a whole, explaining as follows: Insurance policies are purchased "as protection against calamity." Noble v, National American Life Insurance Company, 128 Ariz. 188, 189, 624 P.2d 866, 867 (1981). The "business" principle here is that an insured seeks the safety of insurance against risks that are outside his control and the insurer agrees to cover for a premium based on actuarial calculations of the random occurrence (risk) of such events in a given population. This principle is the basis for the "intentional exclusion" and, according to Appleman, is central to the purposes of insurance: The intentional exclusion is necessary to the insurer to enable it to set rates and supply coverage only if losses under policies are uncertain from the standpoint of any single policyholder, and if a single insured is allowed through intentional or reckless acts to consciously control risks covered by policy, the central concept of insurance is violated. 7A Appleman, Insurance Law and Practice, § 4492.01 at 21 (1979) (emphasis supplied) (citing Bituminous Casualty Corporation v. Bartlett, 307 Minn. 72, 78, 240 N.W.2d 310, 313 (1976)). Thus, as a matter of contract, it seems proper to conclude that the clause is designed by the insurer to exclude indemnification when the insured suffers a loss resulting from the exercise of his own volition; the exclusion applies because the insured is assumed to have controlled the risk. From a non-contractual standpoint, the cases have taken the position that the clause also articulates a public policy which forbids contracts indemnifying a person against loss resulting from his own willful wrongdoing. Globe American Casualty -14- J-A30015-12 Co. v. Lyons, 131 Ariz. 337, 641 P.2d 251 (App.1981); Armstrong v. Security Insurance Group., 292 Ala. 27, 288 So.2d 134 (1973); Gray v. Zurich Insurance Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168 (1966); Ambassador Insurance Co. v. Montes, 147 N.J.Super 286, 371 A.2d 292 (1977); 7A App/eman, supra, § 4501.09 (supplement 1982). These principles of contractual "intent" and public policy coincide; the provision is designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will "pay the piper" for the damages. That design is not served by interpreting the provision to exclude coverage in self-defense situations where the insured is not acting by conscious design but is attempting to avoid a 'calamity" which has befallen him. See Nielsen v. St. Paul Companies, 283 Or. 2771 281, 583 P.2d 545, 547 (1978) (holding that the acts, though intentional, "must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches"). Meere, 143 Ariz. at 355-56, 694 P.2d at 186 (emphasis in original). The court then determined that the relevant intent is not that which accompanies the immediate act, but the purpose which underlies the insured's basic conduct. Accordingly, the critical inquiry is whether the conduct which led to the act was intentionally wrongful from the viewpoint of the law of torts. Zd. at 359, 694 P.2d at 189. The court concluded, and we agree, that an insured should not be indemnified when he or she acted intentionally and wrongfully in committing a tort with the purpose of injuring another person. He or she should not be able to avoid the exclusionary clause by claiming he or she did not intend the precise injury, in terms of character, magnitude, or identity of the victim. Zd. at 359, 694 P.2d at 189. Conversely, if the insured produces facts that establish privilege (as in a sports injury case) or -15- 3-A30015-12 under a claim of right recognized by law (as in self-defense), the insured's subjective intent can be explained, and it is then within the realm of the fact finder to determine whether the insured intended to wrongfully injure and whether the intentional injury exclusion is applicable. Zd.3 In the case at bar, the parties stipulated that an intoxicated DeCoster, who was not wearing his glasses, mistook Rydman for an intruder, chased her through the house, shot her in the abdomen, and immediately called police and reported that he shot a male intruder. Parties' Stipulation of Facts, 9/2/11. Under these particular circumstances, we conclude that genuine issues of material fact exist as to DeCoster's subjective intent precluding summary judgment on the issue of indemnification. For the reasons set forth above, we affirm the trial court order as to the duty to defend. However, we are constrained to reverse the order with respect to the duty to indemnify as being premature. Thus, the duty to 3 See also: Spengler v. State Farm Fire & Cas. Co., 568 So-2d 1293 (Fla.App. 1 Dist. 1990) (holding that where a homeowner shot his girlfriend believing she was an intruder, the exclusionary clause was not applicable when the injury to this particular victim was not intended, and the exclusion did not apply because the insured's intent to harm was not directed against his girlfriend whom he mistakenly shot); Allstate Ins. Co. v. Merritt, 772 S.W.2d 911, 912-913 (Tenn. App. 1989) (stating that, in a case where a homeowner shot a sanitation worker mistaking him for an animal, the issue was not whether the insured intentionally fired a weapon; rather, it was whether the insured reasonably expected or intended the actual injury inflicted to result from his intentional act of firing the weapon.); Curtain v. Aldrich, 589 S.W.2d 61 (Mo.App. 1979) (exclusionary clause not applicable where insured beat brother-in-law, who he mistook as a burglar, with a crowbar). -16- 3-A30015-12 indemnify will depend on the finder of fact's conclusions in the third-party action, filed by Rydman against DeCoster, with respect to whether DeCoster's conduct was intentionally wrongful under applicable tort law. Order affirmed in part. Order reversed in part. Jurisdiction relinquished. Judgment Entered. .,Mlz�w 4�� Deputy,+rothonotary Date: 5/17/2013 -17-