Wade Clark Mulcahy LLP

<p style="text-align: justify;">In a recent opinion, the Middle District of Pennsylvania held negligence after an intentional act, which would traditionally exclude coverage under an insurance policy, can still constitute an occurrence thus triggering an insurer’s duty to defend under a policy. The case, <a href="https://www.wcmlaw.com/wp-content/uploads/2021/08/Nationwide-General-Insurance-Company-and-Nationwide-Mutual-Fire-Insurance-Company-v.-Gary-DiBileo-Jr.-Jerald-Coyne-and-Jonathan-Martines.pdf"><em>Nationwide General Insurance Company and Nationwide Mutual Fire Insurance Company v. Gary DiBileo, Jr., Jerald Coyne, and Jonathan Martines</em></a>, No. 3:19-CV-01003, is a declaratory judgment action arising out of underlying action brought against various defendants, that involved a freshman at Penn State passing away as a result of a night of extensive drinking and hazing at a fraternity. Nationwide had issued homeowners policies to the named defendants’ parents.  Nationwide commenced a declaratory judgment action seeking a declaration that it did not owe coverage for the underlying action.  Ultimately, Nationwide filed a motion for summary judgment asserting exclusions to coverage.</p>
<p style="text-align: justify;">Nationwide’s arguments in its motion focused primarily on the defendants-insureds’ intentional actions, which were allegedly performed in an effort to provide some relief or care to the deceased prior to his passing. Nationwide claimed that since the acts were intentional, and the negligence thereafter resulted in the deceased’s passing, the criminal acts exclusion should apply. The court disagreed. The court reasoned that simply performing intentional acts that would traditionally fall within an exclusion prior to acting in a negligent manner did not discount the finding of an occurrence. The court continued, the negligence itself is the issue, not the intentional acts surrounding the negligence, and as such the negligence constitutes an occurrence that properly triggered Nationwide’s duty to defend.  The court did preserve Nationwide’s ability to renew the motion as the underlying action factually developed.</p>
<p style="text-align: justify;">Thus, this case illustrates that Pennsylvania courts are likely to find a duty to defend when there are claims stemming from an insured’s intentional acts when there are also claims of negligence being asserted.</p>
<p style="text-align: justify;">Thanks to Abigail Wilson for her contribution.  Please email <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a> with any questions.</p>