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STATE FARM FIRE AND CASUALTY COMPANY v. BRUCE LEVINE (11/22/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 22, 1989.

STATE FARM FIRE AND CASUALTY COMPANY
v.
BRUCE LEVINE, GERALD LEVINE, MICHAEL BIELAUS AND JOHN BIELAUS. APPEAL OF MICHAEL BIELAUS AND JOHN BIELAUS

Appeal from Order Entered Docketed February 1, 1989, in the Court of Common Pleas of Bucks County, Civil No. 85-02672-11-1.

COUNSEL

Jeffrey M. Stopford, Media, for appellants.

Marc F. Ullom, Warrington, for State Farm, appellee.

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Olszewski

[ 389 Pa. Super. Page 2]

Appellee, State Farm Fire and Casualty Company, brought an action for declaratory judgment to determine whether it owed a duty to defend or indemnify its insured in a personal injury action. The jury found by a preponderance of the evidence that the insured expected or intended to cause an injury of the same general type that the victim suffered; accordingly, the trial court entered judgment in favor of appellee. Michael and John Bielaus, the victim and his father, appeal the judgment. They assert that the court used an improper standard to decide what constitutes "an injury of the same general type." We have reviewed the law, the facts and the notes of testimony, and we find no error. Accordingly, we affirm the decision of the trial court.

[ 389 Pa. Super. Page 3]

The underlying cause of action in this case arose from an altercation in a high school locker room on February 23, 1983. The insured, 17-year-old Bruce Levine, had heard that the injured party, 16-year-old Michael Bielaus, had defamed him. Levine located Bielaus and discussed the matter with him.*fn1 Eventually, Levine punched Bielaus's face, crushing the bones of Bielaus's left cheek. Bielaus had to undergo reconstructive surgery and claims continued numbness in that portion of his face.

Levine was insured under a homeowners' insurance policy issued by State Farm. This policy does not cover "bodily injury or property damage which is expected or intended by the insured." State Farm sought a declaratory judgment action to determine whether the injury in the underlying case was excepted from the coverage of the policy. At trial, the primary issue was whether this injury was "expected or intended by the insured." The jury found that it was.*fn2 On appeal, Bielaus and his father assert that the court did not apply the correct standard, that the jury charge was in error, and that judgment n.o.v. or a new trial should have been granted. Upon review, we find that the court applied the correct standard; accordingly, we reject all of appellants' contentions and affirm the decision of the trial court.

Both parties and the lower court agree that this case is controlled by United Services Automobile Ass'n v. Elitzky, 358 Pa. Super. 362, 517 A.2d 982 (1986), allocatur denied, 515 Pa. 601, 528 A.2d 957 (1987). In Elitzky, this Court interpreted identical language in a similar policy. The Elitzky court analyzed authority from other jurisdictions, and found that the cases fell into three basic categories.

[ 389 Pa. Super. Page 4]

    judgment should only be entered where reasonable people could not fail to agree that the verdict was improper. In reviewing a denial of a motion for judgment n.o.v., this Court must review the evidence in the light most favorable to the verdict winner, resolving any conflict of evidence in favor of the verdict winner. Martin v. Soblotney, 296 Pa. Super. 145, 168, 442 A.2d 700, 712 (1982).

We have reviewed the notes of testimony. The evidence shows that Levine was angry with Bielaus and that Levine struck Bielaus with great force. The jury could infer that Levine intended to cause serious physical damage to Bielaus's face. The jury was entitled to disbelieve Levine's testimony, in which he claimed that he did not know a single blow could break bones. There is ample evidence to support the verdict. Judgment n.o.v. is not mandated.

Judgment affirmed.

Disposition

Judgment affirmed.


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