No. 350 Hsbg., 1981, No. 358 Hsbg., 1981, Appeal from the Order of December 2, 1981 in the Court of Common Pleas of Juniata County, Civil, at No. 450 of 1979.
Jack E. Feinberg, Philadelphia, for Harvey, appellant (at No. 350) and appellee (at No. 358).
David E. Lehman, Harrisburg, for Nationwide Mutual Insurance Co., appellant (at No. 358) and appellee (at No. 350).
Wickersham, Cirillo and Watkins, JJ.
[ 325 Pa. Super. Page 487]
This is an appeal from an order of the Court of Common Pleas of Juniata County declaring that since the death of Richard L. Harvey was the result of intentional conduct on the part of the insured, David L. Hassinger, there was no insurance coverage for claims arising out of that death.
In the early morning hours of November 9, 1975, the decedent Richard L. Harvey was struck and killed by a motor vehicle owned and operated by David L. Hassinger. At the time of the incident, the decedent was walking
[ 325 Pa. Super. Page 488]
through a parking lot when Hassinger drove his car over the curb, across the sidewalk, and hit the decedent. The decedent was propelled onto the hood of the car, after which he slipped underneath the car and was run over. As a result, the decedent suffered serious injuries which caused his death.
A civil action was commenced in the Huntingdon County Court of Common Pleas by Mrs. Judy Harvey, widow of the decedent. She sought damages against Hassinger in her capacity as administratrix of her husband's estate and in her own right. As the insurance carrier for the vehicle involved, Nationwide Mutual Insurance Company defended Hassinger subject to a reservation of rights. On March 28, 1979, a verdict was returned in favor of Mrs. Harvey in the amount of $305,000.
Nationwide subsequently petitioned the Court of Common Pleas of Juniata County for a declaratory judgment under its insurance policy with Hassinger claiming that it was not responsible for the liability of Hassinger. It was Nationwide's contention that Hassinger acted intentionally in striking the decedent. Therefore, he was excluded from coverage under a provision in his insurance policy.
Since both Hassinger and Mrs. Harvey had an interest in the declaratory judgment, both were named as Respondents. They contended that, at the time of the incident, Hassinger was so intoxicated as to be incapable of forming an intent to cause his vehicle to strike and kill the decedent. In the absence of any intent, they believed that Nationwide was liable under the policy for the verdict against Hassinger.
The Petition for Declaratory Judgment proceeded to trial before a jury on November 25 and 26, 1980. After hearing the evidence, the jury was asked for its finding with respect to one question: Did Mr. Hassinger act intentionally? The jury answered the interrogatory affirmatively. The court entered a ...