Wade Clark Mulcahy LLP

<p style="text-align: justify;">Recently, in <a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Carrasquillo-Individually-and-as-Administratrix-of-the-Estate-of-Rafael-Santiago-Deceased-v.-Nancy-Kelly-and-Nationwide-Mutual-Fire-Insurance-Company.pdf"><em>Carrasquillo, Individually and as Administratrix of the Estate of Rafael Santiago, Deceased v. Nancy Kelly and Nationwide Mutual Fire Insurance Company</em></a>, the Superior Court of Pennsylvania considered whether Nationwide Mutual Fire Insurance Company (“Nationwide”) had a duty to defend and indemnify its insured, Nancy Kelly (“Kelly”) in an action involving the death of Anna Carrasquillo’s son, Rafael Santiago (“Santiago”).</p>
<p style="text-align: justify;">Santiago was staying at the home of (“N. Kelly”) when he was fatally shot inside of her home by James Kelly (“J. Kelly”).  At the time of the shooting, J. Kelly and N. Kelly were insured under a homeowners’ insurance policy issued by Nationwide (“policy”).  Ultimately J. Kelly pled guilty to criminal charges.  Soon thereafter, Carrasquillo commenced a wrongful death and survival action (“Underlying Lawsuit”) against N. Kelly and J. Kelly.  Simultaneously, Carrasquillo requested that Nationwide defend N. Kelly in the Underling Action.  After Nationwide disclaimed coverage, Carrasquillo filed the instant declaratory judgment action seeking an order that the Policy provided coverage to N. Kelly for the allegations contained in the Underlying Lawsuit.</p>
<p style="text-align: justify;">Nationwide filed a motion for summary judgment, seeking an order that it had no duty to defend N. Kelly in the Underlying Lawsuit because the Policy’s intentional and criminal act exclusions barred coverage.  Carrasquillo disagreed – arguing Carrasquillo’s complaint in the Underlying Lawsuit triggered coverage because the complaint sounded in negligence.  The trial court denied Nationwide’s motion for summary judgment, effectively providing that Nationwide had a duty to defend, and potentially indemnify N. Kelly in the Underlying Lawsuit; subsequently, Nationwide appealed.  On appeal, the Superior Court based its analysis on longstanding Pennsylvania case law regarding the interpretation of insurance policies, which the Court noted, is a question of law.  The fundamental question on appeal was whether the trial court erred in determining that the Policy’s criminal act exclusion, which excludes coverage for, <em>inter alia</em>, bodily injury “caused by or resulting from an act or omission which is criminal in nature and committed by an insured” regardless of whether the insured is convicted of a crime, did not apply to bar coverage.</p>
<p style="text-align: justify;">Although the Court noted it was required to only consider the allegations contained in Underlying Lawsuit, the Court determined Carrasquillo “artfully pled” her complaint to avoid the Policy’s exclusions, as the complaint omitted any reference to J. Kelly’s criminal conviction and only alleged J. Kelly who had “dangerous propensities” “attacked . . . and fatally shot” Santiago.  Accordingly, the Court held it was required to consider J. Kelly’s criminal conviction.  In doing so, the Court determined that J. Kelly’s conviction triggered the criminal act exclusion, which automatically precluded coverage to J. Kelly.</p>
<p style="text-align: justify;">However, the pertinent question on appeal was whether the criminal act exclusion barred coverage to N. Kelly.   The Policy’s criminal act exclusion excludes coverage for the criminal act of “an insured”, as opposed to exclusions excluding coverage to “the insured”.  Based on the plain language of the Policy and precedential Pennsylvania law, the Court determined J. Kelly was “an insured” under the Policy and committed a criminal act, it held the criminal act exclusion also barred coverage to N. Kelly.  Therefore, the Court reversed the trial court decision and granted Nationwide’s motion for summary judgment.  Ultimately, this case is a reminder of the importance between exclusions that refer to “an insured” versus “the insured”.</p>
Thanks to Lauren Berenbaum for her contribution to this post.  Please email <a href="mailto:vterrasi@wcmlaw.com">Vincent F. Terrasi</a> with any questions or comments.