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ERIE INSURANCE EXCHANGE v. DAVID EISENHUTH V. JAMES V. MCCUMMINS AND DOROTHY A. MCCUMMINS (10/15/82)

filed: October 15, 1982.

ERIE INSURANCE EXCHANGE
v.
DAVID EISENHUTH V. JAMES V. MCCUMMINS AND DOROTHY A. MCCUMMINS, APPELLANTS. JAMES V. MCCUMMINS AND DOROTHY MCCUMMINS, HIS WIFE, APPELLANTS, V. DAVID EISENHUTH AND ERIE INSURANCE EXCHANGE V. CITY OF NEW CASTLE AND ERNEST CRAWFORD. JAMES V. MCCUMMINS AND DOROTHY A. MCCUMMINS, HIS WIFE, APPELLANTS, V. ERIE INSURANCE GROUP, ERIE INSURANCE COMPANY. ERIE INSURANCE EXCHANGE V. DAVID EISENHUTH AND JAMES V. MCCUMMINS, AND DOROTHY A. MCCUMMINS, APPELLANTS. ERIE INSURANCE EXCHANGE V. DAVID EISENHUTH, APPELLANT, V. JAMES V. MCCUMMINS AND DOROTHY A. MCCUMMINS



No. 977 Pittsburgh, 1980, No. 978 Pittsburgh, 1980, No. 979 Pittsburgh, 1980, No. 1114 Pittsburgh, 1980, Nos. 1001 Pittsburgh, 1980, 1117 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Lawrence County, Civil Division, at Nos. 951 of 1978 CA, 176 of 1979 MD, and 11 of 1979 CA

COUNSEL

Dominick Motto, New Castle, for McCummins, appellants and appellees.

Phillip L. Clark, Jr., Ellwood City, for Eisenhuth, appellant and appellee.

Charles Garbett, Ellwood City, for Erie Ins., appellee.

Price, Brosky and Montemuro, JJ.

Author: Brosky

[ 305 Pa. Super. Page 572]

The issue we decide today is whether a no-fault insurance policy covers injuries suffered by a passenger in an automobile who is shot by a policeman during his pursuit of the driver. We agree with the lower court's conclusion that the

[ 305 Pa. Super. Page 573]

    policy does not apply to this situation and therefore affirm the orders before us for review.

Appellant McCummins was a passenger in an automobile driven by appellant Eisenhuth. In a complaint filed against Mr. Eisenhuth and appellee Erie Insurance Exchange, Mr. McCummins avers the following facts.

On December 12, 1976, while Mr. McCummins was a passenger in the Eisenhuths' vehicle, Mr. Eisenhuth stopped at a gasoline station and obtained gasoline. However, Mr. Eisenhuth drove away from the station without paying for the gasoline. Sometime later, the Eisenhuth vehicle was spotted by a police officer who, by use of the police car's lights and horn, ordered the vehicle to stop. Mr. Eisenhuth did not stop, but rather sped away, eventually skidding into a ditch. The police officer approached the automobile while it was still in the ditch at which time Mr. Eisenhuth drove the vehicle intentionally, wilfully and recklessly toward the officer. At that time the officer lept onto the hood of the vehicle to avoid being struck by it and fired shots into the car, wounding Mr. McCummins.

Appellant McCummins brought suit against Mr. Eisenhuth and appellee Erie Insurance Exchange, as Mr. Eisenhuth's insurer. Erie Insurance then sought declaratory judgment as to its duty to defend and indemnify Eisenhuth. It also sought ...


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