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January 20, 1953



Leon S. Forman, Albert L. Bricklin, of Bennett & Bricklin, Philadelphia, for appellant.

Benjamin Pomerantz, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 172 Pa. Super. Page 589]

ROSS, Judge.

Plaintiffs brought this action of assumpsit to recover on a policy of automobile insurance issued to them by defendant. The action was commenced by filing a complaint and, after defendant had made answer thereto, plaintiff filed a pleading styled a 'demurrer' which the court below and the parties treated as a motion for judgment on the pleadings. Judgment was entered in favor of plaintiffs on these pleadings and the defendant has appealed to this Court.

The averments of fact in the complaint may be summarized as follows: The defendant issued to plaintiffs a policy of insurance in which one of the coverages was 'To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile'. (Italics supplied.) On November 7, 1948, while the policy was in force, an employe of the plaintiffs, driving a truck covered by the policy, damaged the property of one Mousley Construction Company, Inc. The construction company brought an action of trespass against plaintiffs herein, and the defendant, though given notice of the proceeding, refused to participate on the ground that the construction company's damages were the result of an intentional tort and hence not 'caused by an accident'. The Mousley Construction's complaint in trespass charged that the insured's driver, operating a truck owned by

[ 172 Pa. Super. Page 590]

    it, 'negligently and carelessly drove said vehicle' and that 'by reason of the negligence of the servant, agent or employee' of the insured the property of the construction company was damaged. On May 15, 1951, a verdict was rendered in favor of Mousley Construction and against these plaintiffs in the amount of $473 and costs. Defendant's answer, inter alia, avers that 'facts and proofs submitted to the defendant by the plaintiff with respect to the alleged accident indicated that no accident had occurred and that, therefore, there was no coverage under the terms of the policy of insurance' issued to plaintiffs; and that the damage to the construction company's property 'was the result of the deliberate and intentional act of the plaintiff's servant or employee'.

Consequently, defendant's answer raises an issue of fact: Was the damage to the construction company's property which was caused by the insured, accidental or intentional? There is a clear distinction between accidental and intentional injuries or damage. See Hamilton v. American Indemnity Co., 82 Pa. Super. 191, and opinion filed this day in Kraftsow v. Brown, Pa. Super., 94 A.2d 183. This issue, in our opinion, cannot be determined as a matter of law on the pleadings but should be submitted to a trier of facts.

This appeal, therefore, raises the legal question: Does a judgment rendered against the insured on a basis of negligence preclude or prevent the insurer in a subsequent action on he policy for indemnity from asserting as a defense that the injured party's damages were the result of intentional harm and not accidental and hence not within the purview of the policy? The lower court answered this question in the affirmative and entered judgment on the pleadings. We think this was error.

[ 172 Pa. Super. Page 591]

Although the question is not without difficulty and would appear to be one of first impression in this Commonwealth, there is a division of authority among other jurisdictions. However, we believe that the principle which is sound and which we should follow is set forth in Farm Bureau Mut. Automobile Ins. Co. v. Hammer, 4 Cir., 177 F.2d 793, 799. In that case, the insurance carrier, having issued a policy of automobile liability insurance to one Wagner, sought a declaratory judgment that the policy did not cover the damages suffered by five persons who were killed or injured when Wagner intentionally drove his truck into an automobile in which they were riding. Wagner had been convicted of murder in the second degree. The defendants (a committee appointed by the State Court for Wagner, the personal representative of the persons who were killed, and two persons who were injured in the collision) contended that they were not bound by the conviction of Wagner in the criminal case, and they showed that after his conviction it was adjudged in civil suits brought by them in the State Court that the injuries were accidental; and they further contended that for the reasons stated the insurance carrier was obligated within the limits of liability specified in the policy to pay the judgments recovered against Wagner. The District Judge dismissed the carrier's complaint on the theory that it had notice of the civil suits and so was bound by the findings therein that the injuries and deaths were due to the ...

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