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July 25, 1997


Appeal from the ORDER ENTERED September 30, 1996, in the Court of Common Pleas of ARMSTRONG County, CIVIL No. 1995-0848. Before Snyder, J.

Before: McEWEN, P.j.; Kelly and Olszewski, JJ. Opinion BY Olszewski, J. Concurring Statement by McEWEN, P.j.

The opinion of the court was delivered by: Olszewski

Filed July 25, 1997


In July of 1990, Darren Scopel was accosted and severely beaten by Gregory Shankle and two of his cohorts. This unprovoked attack, which resulted in extensive injuries to Scopel, prompted Scopel and his parents to file a civil lawsuit against the unruly threesome. In the underlying complaint supporting the suit, the Scopels alleged that Shankle willfully, maliciously and intentionally assaulted Darren Scopel; no averment was made that Shankle's actions were the result of reckless or negligent behavior. Both compensatory and punitive damages were sought.

At the time of this unfortunate attack, Shankle was insured under a homeowners' insurance policy issued by Donegal Mutual Insurance Company to Shankle's parents. In addition to protecting against loss or damage to personal property, the policy provided $100,000 in personal liability insurance for, inter alia, bodily injuries to third persons accidentally caused by an insured.

Based upon the averments contained in the Scopels' complaint, Donegal refused to defend and/or indemnify Shankle. In denying coverage, Donegal issued a reservation of rights letter, in which it justified its refusal to cover Shankle based upon the fact that the beating was intentional and, thus, not within the purview of the policy. Specifically, Donegal stated that two policy provisions supported its belief that Shankle was not contractually deserving of a defense. First, the insurer claimed that the assault did not constitute an "occurrence" within the meaning of the policy because the incident was not accidental. *fn1 Additionally, because the injuries were intended by the accused insured, Donegal stated that the policy's intentional acts exclusion precluded coverage. *fn2

Shankle then retained private counsel and proceeded to defend against the Scopels' suit. In the spring of 1993, the Scopels deposed several witnesses to the beating as well as Shankle's lawless compatriots of that fateful afternoon. As a whole, the deposition testimony established that Shankle and his friends had been drinking during the hours just prior to the attack and had accosted another man earlier that afternoon.

These depositions, however, were never filed and made a part of the official record. Moreover, although the deposition testimony put the Scopels on notice that they potentially had a cause of action sounding in negligence and/or recklessness, the original complaint was never amended to excise or modify the intentional and malicious flavor of the averments.

Two years thereafter, in June of 1995, the parties reached a settlement whereby, in exchange for a full and final release of the claim against him, Shankle agreed to the entry of a $100,000 consent judgment. Additionally, Shankle executed an assignment of his insurance policy rights in favor of the Scopels.

On October 23, 1995, the Scopels, as assignees of Shankle's insurance policy, filed a praecipe for a writ of summons against Donegal, thereby commencing the instant action. In their subsequent complaint, the Scopels averred that, by virtue of its denial of coverage, Donegal breached its contract with Shankle.

Donegal denied all liability and, in August of 1996, filed a motion for summary judgment in which it contended that its denial of coverage was proper because the complaint in the underlying action solely averred intentional tortious conduct for which the insured was not covered. In their brief in opposition to Donegal's motion, the Scopels admitted that Donegal did not initially have a duty to defend Shankle because the complaint's allegations did not fall within the policy's purviews. Scopels' brief in opposition to motion for summary judgment at 7; R.R. at 115.

The Scopels argued, however, that such a duty arose in 1993, two years after commencement of the underlying action, when deposition testimony revealed that Shankle may have been intoxicated during the assault and, thus, have acted without the requisite intent. Id. Further, acknowledging that an insurer's duty to defend is triggered when a complaint comprehends an injury potentially within the scope of the policy, and that the underlying complaint against Shankle was never amended to negate or modify its intentional character, the Scopels asked the court to extend the existing law to allow an insurer's duty to be triggered where "evidence gleaned during the course of the action indicates the presence of a viable claim that would be within the scope of the policy." Id. at 8; 116. In support of its argument that Donegal owed Shankle a duty to defend and indemnify in the underlying action, the Scopels attached to their brief in opposition the four unfiled 1993 depositions, all of which contained information relating to Shankle's intoxicated state on the day of the assault.

On September 25, 1996, the Honorable Edwin J. Snyder granted Donegal's motion for summary judgment. In so doing, the court held that the Scopels' failure to amend their original, underlying, complaint was fatal to their present claim. Donegal, the court reasoned, was never put on notice that the Scopels were pursuing an alternative ...

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