Appeal from order of Superior Court, Oct. T., 1972, No. 280, affirming judgment of Court of Common Pleas of Berks County, Feb. T., 1970, No. 257, and Nov. T., 1971, No. 1193, in case of Richard L. Mohn v. American Casualty Co. of Reading, Pa.
Leonard J. Gajewski, for appellant.
Geoffrey M. Stoudt, with him Rhoda, Stoudt & Bradley, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones dissents.
This appeal raises again the vexing problem of determining whether the injuries sustained by the insured, necessitating medical care and ultimately causing death, resulted from an accident. Appellant, Richard L. Mohn, sought recovery on two medical insurance policies for expenses incurred as the result of his son's hospitalization. Appellant filed a complaint in assumpsit on the two insurance contracts seeking reimbursement pursuant to the policies terms for the hospital expenses incurred. Appellee, American Casualty Co., responded by filing an answer and new matter. A stipulation was entered in the lower court to the effect that on May 26, 1969, appellant's son, one of the dependents insured under the policies, was fatally wounded by a police officer's bullet while he was attempting to flee from the scene of a burglary he was in the process of committing. Both appellant and appellee filed motions for summary judgment in accordance with Pennsylvania Rule of Civil Procedure 1035. The Court of Common Pleas of Berks County entered summary judgment in favor of the appellee and was affirmed by the Superior Court with three judges dissenting. We granted allocatur and now reverse.
The pertinent provisions of the policies provided:
"American Casualty Company of Reading, Pennsylvania . . . insures Richard L. Mohn . . . and agrees to pay indemnity for eligible expense incurred as a result of injury or sickness, in the manner and to the extent herein provided.
"'Injury' as used in this Policy means accidental bodily injury which causes the loss directly and independently of all other causes and is sustained while this Policy is in force, and for which benefits are not payable under any Workmen's Compensation Act or Law.
"This Policy does not cover any expense incurred because of:
"1. intentionally self inflicted injury, or . . .".*fn1
While the court below was correct in its view that the provision in the one policy excluding "intentionally self inflicted injury" was not applicable because this was not a case of a self-inflicted injury, it fell into error in concluding that the facts did not show a case of accidental bodily injury within the terms of the two policies.
In health and accident policies the law is now reasonably clear that the fact that the event causing the injury may be traceable to an intentional act of a third party does not preclude the occurrence from being an "accident." See 10 Anderson, Couch Cyclopedia of Insurance Law, ch. 41 (2d ed. 1962). Thus, the test of whether injury is a result of an accident is to be determined from the viewpoint of the insured and not from the viewpoint of the one that committed the act causing the injury. White v. Metropolitan Life Insur. Co., 118 N.J.L. 149, 191 A. 770 (1937); Goodwin v. Continental Casualty Co., 175 Okla. 1469, 53 P.2d 241 (1935); Furr Page 579} v. Metropolitan Life Ins. Co., 111 N.J. Super. 596, 270 A.2d 69 (1970). The difficult question arises where the policy fails to ...