Standard Venetian Blind Co. v. American Empire Insurance Co., 469 A.2d 563,
566 (Pa. 1983).
2. Summary Judgment Standard
In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a
court must determine "whether there is a genuine issue of material fact
and, if not, whether the moving party is entitled to judgment as a matter
of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.
1999) (internal citation omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn therefrom, in the
light most favorable to the non-moving party. See, e.g., Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). For its part, the non-moving party must,
through affidavits, admissions, depositions, or other evidence,
demonstrate that a genuine issue exists for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
making its showing, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts," id. at
586, and must produce more than a "mere scintilla of evidence in its
favor" to withstand summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the
non-moving party fails to create "sufficient disagreement to require
submission [of the evidence] to a jury," the moving party is entitled to
judgment as a matter of law. Liberty Lobby, 477 U.S. at 251-52.
B. Coverage for Plaintiffs' Injuries Under the AIU Policy
1. The Policy
The Policy at issue provides for uninsured motorists coverage as
follows: "we will pay reasonable expenses incurred for necessary medical
and funeral services because of bodily injury (1) caused by accident and
(2) sustained by an insured." See Policy, Part C, at ¶ A. Insured is
defined thusly: "`[i]nsured' as used in this part means: (1) you or any
family member (a) while occupying or (b) as a pedestrian struck by a
motor vehicle designed for use mainly on the public roads . . . (2) or
any other person while occupying your covered auto." Id. at ¶ B.
Bodily injury "means accidental bodily harm to a person and that
person's resulting illness, disease or death." See Policy Endorsement
Changing First Party Benefits Coverage at ¶ B(1). The Uninsured
Motorists Coverage Endorsement further states that bodily injury must be
caused by an accident arising out of the maintenance or use of the motor
vehicle. See Uninsured Motorists Coverage Endorsement at ¶ A(1). The
policy does not define accident and the uninsured motorists coverage
portion of the policy does not include an exclusionary clause excluding
and/or defining intentional acts.
Coverage for Plaintiffs' Injuries
AIU argues that Plaintiffs' injuries are not covered under the
terms of the policy because their injuries were not caused by an
accident but rather were caused by their own intentional conduct.
AIU argues that if Plaintiffs had not tried to stop the carjackers
from stealing the car they would not have been injured, and thus
it was their own intentional act of trying to stop the carjackers
that caused their injuries.
Under the terms of the policy, there is no question that the Plaintiffs
are considered "insureds." Further, there is no question that the
Plaintiffs' injuries resulted from "use of the motor vehicle." Thus, the
only question for the Court is whether
the injuries sustained by Plaintiffs were as a result of an "accident."
As stated above, the policy does not define accident or intentional
acts. However, Pennsylvania courts have defined both of those terms in
interpreting other insurance contracts. For example, in the context of
the duty to defend under a homeowner's policy, the Pennsylvania Supreme
Court has determined that "[w]hen it is alleged that the conduct of the
insured causing harm was intentional, there has been no accident or
`occurrence.'" State Farm Fire & Casualty Co. v. Tolmie, No. CIV.A.
97-7878, 1998 WL 737981, * 3 (E.D.Pa. Oct. 22, 1998) (quoting Gene's
Restaurant, Inc. v. Nationwide Insurance Co., 548 A.2d 246, 246-47 (Pa.
1988)). Pennsylvania courts have further determined that "`[a]n insured
intends injury if he desired to cause the consequences of his act or if
he acted knowing that such consequences were substantially certain to
result.'" United States Fire Insurance Co. v. Rothenberg, No. CIV.A.
98-2275, 1998 WL 778354, *8 (E.D.Pa. Sept. 25, 1998) (quoting Wiley v.
State Farm Fire & Casualty Co., 995 F.2d 457, 460 (3d Cir. 1993) (quoting
United Services Automobile Association v. Elitzky, 517 A.2d 982, 989
(Pa.Super. 1986))). To determine whether an insured intended the harm,
courts apply a subjective standard. Wiley, 995 F.2d at 460 (Pennsylvania
standard for specific intent looks to insured's actual subjective
intent). Thus "it is not sufficient that the insured intended his
actions; rather, for the resulting injury to be excluded from coverage,
the insured must have specifically intended to cause harm." Id. (emphasis
in original) (citing Elitzky, 517 A.2d at 987 and Eisenman v.
Hornberger, 264 A.2d 673, 674-75 (Pa. 1970)). Accordingly, in determining
whether conduct is intentional, the doctrine of foreseeability is
inapplicable. Elitzky, 517 A.2d at 988 (citing Mohn v. American Casualty
Co. of Reading, 326 A.2d 346, 349 (Pa. 1974)).
Further, Pennsylvania courts distinguish between conduct that is
"intentional" and conduct that is "reckless." In Elitzky, the Court,
quoting the Restatement (Second) of Torts, held that "`[a]s the
probability that the consequences will follow [the insured's acts]
decreases, and becomes less than substantial certainty, the actor's
conduct loses the character of intent, and becomes mere recklessness.'"
Elitzky, 517 A.2d at 989 (quoting Restatement (Second) of Torts § 8A
cmt b)). The Pennsylvania courts have adopted the Restatement's
definition of recklessness which follows:
The actor's conduct is in reckless disregard of the
safety of another if he does an act or intentionally
fails to do an act which it is his duty to the other
to do, knowing or having reason to know of facts which
would lead a reasonable man to realize, not only that
his conduct creates an unreasonable risk of physical
harm to another, but also that such risk is
substantially greater than that which is necessary to
make his conduct negligent.
Id. at 989-990 (quoting Restatement (Second) of Torts § 500)).
Courts applying Pennsylvania law have held that conduct which is
reckless, as defined above, does not equate to intentional conduct, but,
rather, constitutes an accident or occurrence. See, e.g., Rothenberg,
1998 WL 778354 at * 9 (if harm is inflicted recklessly rather than
intentionally there is coverage); Duff Supply Co. v. Crum & Forster
Insurance Co., No. CIV.A. 96-8481, 1997 WL 255483, * 13 (E.D.Pa. May 8,
1997) ("reckless conduct constitutes an `accident' and `accidents' are
`occurrences' under the defendants' policy").
Defendant claims that Plaintiffs' conduct constitutes intentional
conduct and should not be covered under the policy as an accident because
Plaintiffs were not injured until they intentionally attempted to stop
the carjackers. Defendant claims that the Plaintiffs' conduct was
"intentional and reckless." Def.'s Mot. at ¶ 25.
Upon questioning about the incident, Christopher Ryan responded as
Q: During the period of time when you opened the car
door and attempted — did you attempt to get into
A: I don't really know what I attempted. There were
people in my car. I pretty much objected to them being
there. Whatever I tried to do — maybe get the
keys. You know, you figure if somebody is in your car
and you open the door they are going to get out.
Ryan Dep. Tr. pg. 13, lines 15-23.
Q: Did you at that point when you figured that they
were going to try to steal your car, did you consider
backing off and letting them steal your car?
A: I don't think so. It wasn't — there was no
thought in it. It was all instinct. I just acted on
adrenalin. It was such a short span of time. There was
no consideration of anything.
Q: Did you intend to stop them from stealing your car
by your actions?
A: I didn't intend on anything.