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Utica First Ins. Co. v. Maclean

February 19, 2009

UTICA FIRST INS. CO.
v.
EDWARD MACLEAN



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

On March 28, 2005, Edward Maclean shot Brian Scott Orr dead "because he believed it was necessary for self-defense." Joint Stip. of Facts at ¶¶ 12-13. Sanford D. Beecher, Administrator of Orr's estate,*fn1 is suing defendant Edward Maclean in the Court of Common Pleas of Pike County ("Beecher Complaint" or "Beecher Case") under the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A. § 8301, and Survival Act, 42 Pa. C.S.A. § 8302. Utica First Insurance Company ("Utica") issued a homeowner's insurance policy to Maclean and has been defending him in the Beecher Case under a reservation of rights.

In the complaint Utica filed in our Court, it seeks a declaratory judgment that Maclean's killing of Brian Orr ("Brian" or "Orr") was intentional and therefore excluded from its policy, which provides liability coverage only for accidents. Utica requests declarations that the policy does not bind Utica to defend Maclean in the Beecher Case, or indemnify him for any damages, particularly punitive or exemplary damages and related defense costs.

Utica filed a motion for summary judgment, Maclean filed a response, and Utica replied. Utica has established through uncontested facts that Maclean intentionally shot Orr, and Maclean has not identified remaining genuine issues of fact. We will therefore grant Utica's motion and enter judgment in its favor.

I. Factual Background*fn2

The parties filed a Joint Stipulation of Facts, and much of our recitation of the facts below relies on that document. All other facts below are those in the record that Maclean does not contest*fn3 or Maclean's own account of the night that Orr died.

A. The Insurance Policy

Utica issued Maclean a Special Homeowners Policy (No. HOP 125689202), which was in effect from September 12, 2004 to September 12, 2005. Joint Stip. at ¶ 1. The policy states, "[w]e pay, up to our limit, all sums for which an insured is liable by law because of bodily injury or property damage caused by an occurrence to which this coverage applies. We will defend a suit seeking damages if the suit resulted from bodily injury or property damage not excluded under this coverage." Ex. E*fn4 at 8, Coverage L (emphasis in original removed in all quotes from the policy); Joint Stip. at ¶ 2. The policy defines occurrence as "an accident." Ex. E at 2; Joint Stip. at ¶ 3. The "policy does not apply to bodily injury or property damage which results directly or indirectly from . . . an intentional act of an insured or an act done at the direction of an insured." Ex. E at 10-11; Joint Stip. at ¶ 4. It also "does not cover punitive or exemplary damages or related defense costs." Ex. E at "Punitive Damages Exclusion" (unnumbered page); Joint Stip. at ¶ 5.

B. Maclean's Involvement with Orr's Death

Except in one important respect, which we will discuss below, the facts in the record before us do not present a perfectly coherent story of the events that led to Orr's death. In his answer to the state court complaint, Maclean explained that Brian Orr and Orr's wife, Laura,*fn5 came to the defendant's house on the night of March 28, 2005. Ex. D at ¶ 3. Brian and Laura got into a lengthy and violent fight,*fn6 and Brian eventually left Maclean's house "after physically beating" her. Id. at ¶ 4. Orr returned to Maclean's house with a loaded gun, accused Maclean of having an affair with Laura, and threatened to kill defendant. Id. Maclean does not know what happened next, but somehow Orr's "gun was placed on the table."*fn7 Id. at ¶ 5. Maclean unloaded the gun, and then Orr punched him and "knocked him out." Id.

After Maclean regained consciousness, Orr tried to choke him and then walked toward the living room, where Maclean had a gun cabinet. Id. at ¶ 6-7. At this point, Maclean "went into his bedroom and retrieved his own handgun, fearing for his safety and his very life." Id. at ¶ 7. Maclean came into the living room, and "Orr once again came at [Maclean], appearing to try and grab for [his] gun. [Maclean] fired the gun in self-defense, hoping that Brian Orr could be stopped from his constant aggression and life threatening actions." Id. at ¶ 8. See also Joint Stip. at ¶¶ 12-13 (Maclean "went to his bedroom to get a loaded handgun, returned, and then fired the handgun" at Brian. He "fired the gun because he believed it was necessary for self-defense."). Maclean admitted to the police that he shot Orr "to stop [him]." Ex. B at 2. Regarding the shooting itself, then, the facts consistently show that Maclean acted intentionally for the purpose of self defense. There is no evidence that the shooting was accidental or negligent.

On September 6, 2006, Maclean pled nolo contendere to the involuntary manslaughter of Orr, for which he received a sentence of eleven and a half to twenty-three months of imprisonment. Joint Stip. at ¶¶ 15-16. At the sentencing hearing on November 30, 2006, Maclean's attorney told the court that the defendant "'thought for a while, thought for a minute, he went to his bedroom, he got a revolver that he had. He was concerned because there was a gun rack in the living room with rifles in it. He went out, [Decedent] was by the door, he turned and came at [Defendant] again and [Defendant] shot him.'" Id. at ¶ 17 (all punctuation and alterations in the original). Maclean himself told the judge, "I'm sorry the man had died, but he came to my house with a gun that would have killed me. He had no intentions of leaving my home until the job was done and my life was in danger." Ex. C at 17.

C. The Beecher Complaint

On October 2, 2007, Sanford Beecher, Administrator of Orr's estate, filed a complaint against Maclean in the Court of Common Pleas of Pike County, in which Beecher set forth causes of action for wrongful death and survival. Joint Stip. at ¶¶ 6-7. The Beecher Complaint alleges that on March 28, 2005, Orr, Laura, and Maclean went to Maclean's "real property . . . after an evening of drinking alcoholic beverages." Ex. A at ¶ 3. At some point, the Beecher Complaint alleges, Orr and Laura began arguing. Id. at ¶ 3. Orr allegedly left Maclean's house and came back with a pistol, which Orr pointed at Maclean. Id. at ¶ 4. According to the Beecher Complaint, Orr "gave up possession of the pistol [and] it was unloaded by [Maclean]." Id. at ¶ 5. Then Beecher claims that "[a] fight between [Orr and Laura] resumed," and "[Maclean] went to his bedroom [and] returned shortly thereafter with a loaded pistol of his own removed from his night stand."

Id. at ¶¶ 7-8. Up to this point, the facts Beecher alleged in his complaint are roughly in accord with those to which the parties stipulated in this case. In stark contrast to the joint stipulation we have before us, Beecher alleges that Maclean "negligently permitted the weapon to fire" at Orr and caused an injury that resulted in Orr's death. Id. at ¶¶ 8-9.

II. Analysis*fn8

In its motion for summary judgment, Utica argues that the claims in the Beecher Complaint are excluded from the insurance policy it issued to Maclean because the defendant acted intentionally in shooting Orr. This intentional act, according to Utica, renders the shooting something other than an "occurrence" or an "accident." Utica avers that Beecher's characterization of Maclean's actions as negligent is "merely artful pleading." Pl. Mot. at ¶ 63. Utica asserts, furthermore, that public policy in Pennsylvania prohibits insurance companies from indemnifying their insureds for intentional torts and criminal acts. Utica also claims that it should not be liable for indemnifying Maclean for any punitive and exemplary damages and related defense costs because the policy specifically excludes coverage for those types of damages.

In his two-page response, Maclean appears to argue that Utica has not carried its burden of establishing that there is no genuine issue of material fact. Maclean states that "[n]o discovery has taken place, and no witnesses to the subject incident, including Mr. Maclean himself, have been deposed."*fn9 Resp. at 2. Maclean also contends that Utica may not rely upon his plea of nolo contendere as an admission. Maclean claims that whether he ...


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