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Home My WebLink About00-3530 CivilPROGRESSIVE NORTHERN INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW ANGELA ROHRER, LAURA J. MYERS, and TERRY L. VITALE, Defendants NO. 00-3530 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and DECREE NISI OLER, J., August 17, 2001. In this declaratory judgment action, an automobile insurance company has sued an insured and two persons injured by the insured. The insurance company seeks a declaration that the incident in which the injuries occurred was intentional on the part of the insured and thus not covered by the policy. A nonjury trial was held on August 9, 2001. For the reasons stated in this opinion, the court will find in favor of the insurance company. FINDINGS OF FACT 1. On or about Friday, July 16, 1999, at around 11:00 p.m., a car driven by Defendant Angela Rohrer, who was 16 years old, struck and injured two pedestrians, Defendants Laura J. Myers and Terry L. Vitale. 2. The incident occurred on Pomfret Street, west of its intersection with Spring Garden Street, in the Borough of Carlisle, Cumberland County, Pennsylvania. 3. The incident concluded an argument between occupants of Defendant Rohrer's vehicle and Defendants Myers and Vitale. 4. Immediately prior to the argument, Defendant Rohrer had been driving around Carlisle, smoking marijuana. 5. The argument had begun when words were exchanged between the pedestrians and the occupants of Defendants' vehicle as it drove by. The pedestrians had not been previously acquainted with Defendant or the occupants of her vehicle. 6. During the course of the argument, a shoe had been thrown at Defendant Rohrer' s vehicle. 7. The injuries to Defendants Myers and Vitale resulted from the acts of Defendant Rohrer in backing her vehicle up, aiming the vehicle at Defendants Myers and Vitale, accelerating the vehicle forward, and striking them with the front of her car. 8. The instrumentality which stopped the forward movement of Defendant Rohrer's vehicle after contact with Defendants Myers and Vitale, and prevented more serious injuries to them, was a sidewalk curb bordering the cartway. 9. Following her vehicle's contact with Defendants Myers and Vitale and with the curb, Defendant Rohrer backed her vehicle up and fled the scene. 10. The acts of Defendant Rohrer, including the striking of Defendant Myers and Vitale with her vehicle, occurred during a period of anger on her part toward them and were intentional. ~ 11. Litigation has been commenced by the filing of praecipes for writs of summons on behalf of Defendants Myers and Vitale against Defendant Rohrer for personal injuries resulting from being struck by her vehicle) ~ Defendant Rohrer's testiony at the trial in this declaratory judgment action included the following exchange: Q At any point in time did you intend to strike either of those women with your car? A Yes, I did intend to do it. : See Myers v. Rohrer, No. 2001-2327 Civil Term (Cumberland Co.) (filed April 20, 2001); Fita/e v. Myers, No. 2001-4319 Civil Term (Cumberland Co.) (filed July 17, 2001). 2 12. At the time of the incident, Defendant Rohrer was "an insured person" under a motor vehicle insurance policy issued by Plaintiff Progressive Northern Insurance Company.3 13. The policy covered Defendant Rohrer for liability for bodily injuries to others "because of an accident arising out of ... use of [the vehicle in question].4 14. The policy defined an "accident" as % sudden, unexpected, and unintended occurrence.''5 15. The policy expressly excluded from liability coverage "bodily ,6 injury.., caused by an intentional act of an insured person .... 16. The injuries suffered by Defendants Myers and Vitale (a) were not the result of an accident as defined by the policy, (b) were the result of an intentional act of Defendant Rohrer, an insured person, and (c) were not within, and were expressly excluded from, the liability coverage of the policy. DISCUSSION "In interpreting insurance contracts, our courts have relied upon the traditional principles of contract interpretation which hold that the court must ascertain the intent of the parties from the wording of the written agreement, and in the absence of ambiguous language, enforce the plain meaning of the contract." Kova/exki v. Erie Ins. Group, 398 Pa. Super. 519, 522, 581 A.2d 585, 586 (1990) (citation omitted). At the same time, it is also the rule that "[p]olicy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to the insured." Geisler v. Motorists Mut. Ins. Co., 382 Pa. Super. 622, 626, 556 A.2d 391, 393 (1989). "[E]xclusionary clauses for 'expected or intended' damage.., must be construed against the insurer .... "Germanto~vn 3 The terms of this policy are contained in Plaintiff's Exhibit 1, at 6, Trial, August 9, 2001 (hereinafter Plaintiff's Exhibit 1). 4 Plaintiff's Exhibit 1, at 5. s Plaintiff's Exhibit 1, at 2. 6 Plaintiff's Exhibit 1, at 8. 3 Ins. Co. v. Martin, 407 Pa. Super. 326, 331, 595 A.2d 1172, 1175 (1991), appeal denied, 612 A.2d 985 (Pa. 1992). "An inquiry into whether a loss is within policy coverage is [normally] a question of law .... "DonegalMut. Ins. Co. v. Ferrera, 380 Pa. Super. 588, 592, 552 A.2d 699, 700 (1989). insurers do not generally provide liability coverage for intentional acts of harm. The moral hazard implicit in such coverage is obviously at a high level,7 and premiums are normally not calculated on the basis of the assumption of such an obligation,a in addition, "[i]t is against the public policy of this Commonwealth to provide insurance coverage for intentional acts." Nationwide &[ut. Ins. Co. v. Hassinger, 325 Pa. Super. 484, 489, 473 A.2d 171, 173 (1984). "[A] willful and malicious assault, being an intentional tort, is not an accident. As such, it is not covered by a policy agreeing to indemnify against damages caused by accident, indeed, in such cases, the insurer does not even owe a duty to defend its insured." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 444, 660 A.2d 66, 67 (1995) (citations omitted), appeal denied, 678 A.2d 366 (Pa. 1996). Thus, liability coverage for bodily injury will generally not apply where an insured motorist intentionally strikes a pedestrian. See Nationwide Mut. Ins. Co. v. Hassinger, 325 Pa. Super. 484, 473 A.2d 171, 173 (1984).9 In the present case, Plaintiff's insured intentionally struck Defendants Myers and Vitale with her vehicle in a moment of anger. The occurrence was not, 7 See generally Erie Ins. Exch. v. Commonwealth, Ins. Dept., 129 Pa. Commw. 120, 564 A.2d 1312 (1989). 8 See generally Royal Indemnity Co. v. T.B. Smith, 121 Ga. App. 272, 275, 173 S.E.2d 738, 740 (1970). 9 In the context of this type of exclusion, it has been noted that, "while voluntary intoxication may so cloud the mind as to deprive it of the power of premeditation and deliberation, it will not prevent the formation of the general intent necessary for the commission of an assault and battery." State Farm Mut. Auto. Ins. Co. v. Martin, 442 Pa. Super. 442, 444, 660 A.2d 66, 67 (1995) (citations omitted), appeal denied, 678 A.2d 366 (Pa. 1996). 4 in the court's view, an accident in the sense of being "sudden, unexpected, and unintended." Although the insured may not have foreseen each specific injury which the impact caused to each victim, the purpose of her conduct was battery. Under these circumstances, neither the terms of the insurance contract nor the public policy of the Commonwealth will admit of a holding that Plaintiff is responsible for liability coverage of the insured in connection with the incident in question. ~ 0 CONCLUSIONS OF LAW 1. The court has jurisdiction over the parties and subject matter of this litigation. 2. The incident occurring on or about July 16, 1999, in which Plaintiff's insured, Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L. Vitale with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland County, Pennsylvania, is not covered by the liability insurance policy subjudice. For the foregoing reasons, the following decree nisi will be entered. ~ DECREE NISI AND NOW, this 17th day of August, 2001, upon consideration of Plaintiff's complaint for declaratory judgment in the above-captioned case, and following a nonjury trial held on August 9, 2001, it is ordered, adjudged, decreed and declared that the incident occurring on or about July 16, 1999, in which Plaintiff's insured, Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L. Vitale with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland County, Pennsylvania, is not covered by the liability insurance policy issued by Plaintiff which is the subject of this action. l0 This type of case is distinguishable, it is believed, from those where a wrongful and intentional act produces a type of harm quite different from that which would be, and was, expected by the insured. See, e.g., Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970). ~ "The practice and procedure [in actions for declaratory relief] shall follow, as nearly as may be, the rules governing the Action in Equity." Pa. R.C.P. 1601(a); see Pa. R.C.P. 1517(a) (contents of adjudication in equity). 5 THIS DECREE NISI shall automatically become a final decree, without further order of court, if no party in interest files a timely motion for post-trial relief in accordance with Pennsylvania Rule of Civil Procedure 227.1 BY THE COURT, George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Matthew S. Crosby, Esq. 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Defendant Laura J. Myers Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant Terry L. Vitale Angela Rohrer 724 North Hanover Street Carlisle, PA 17013 Defendant, Pro Se /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 6 7 PROGRESSIVE NORTHERN INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW ANGELA ROHRER, LAURA J. MYERS, and TERRY L. VITALE, Defendants NO. 00-3530 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this 17th day of August, 2001, upon consideration of Plaintiff's complaint for declaratory judgment in the above-captioned case, and following a nonjury trial held on August 9, 2001, it is ordered, adjudged, decreed and declared that the incident occurring on or about July 16, 1999, in which Plaintiff's insured, Defendant Angela Rohrer, struck Defendants Laura J. Myers and Terry L. Vitale with her vehicle on Pomfret Street in the Borough of Carlisle, Cumberland County, Pennsylvania, is not covered by the liability insurance policy issued by Plaintiff which is the subject of this action. THIS DECREE NISI shall automatically become a final decree, without further order of court, if no party in interest files a timely motion for post-trial relief in accordance with Pennsylvania Rule of Civil Procedure 227.1. BY THE COURT, J. Wesley Oler, Jr., J. 9 George B. Failer, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Matthew S. Crosby, Esq. 1300 Linglestown Road Harrisburg, PA 17110 Attorney for Defendant Laura J. Myers Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant Terry L. Vitale Angela Rohrer 724 North Hanover Street Carlisle, PA 17013 Defendant, Pro Se