Posts Tagged ‘superior court of pennsylvania’

In Brethren Mutual Insurance Company v. Cynthia McKernan, et al., the Superior Court of Pennsylvania ruled that an insurance company which provided home owner’s insurance to an insured was responsible to defend and provide coverage to a woman who fatally stabbed her boyfriend with respect to civil claims asserted by the boyfriend’s Estate against her. In addition, the Court held that the insurance company was responsible for satisfying a restitution award for funeral expenses ordered against the woman in the criminal proceedings against her arising out of the fatal stabbing.

Generally, intentional criminal acts will not be covered under a homerowner’s insurance policy. There is always an exclusion for such acts in homeowner’s insurance policies. However, in the McKernan case, the insured was not convicted of any intentional crimes as a result of the killing. Rather, she was convicted of reckless endangerment and simple assault by negligently causing bodily injury to another with a deadly weapon. The insured had grabbed a steak knife to defend herself from her abusive boyfriend. When she swung the knife intending to frighten her boyfriend away, she accidentally struck him in the chest and pierced his heart.

Because the insured’s actions were not intentional, the insured acknowledged that the insured’s conduct qualified as an occurrence under the policy language for which coverage was applicable. However, the the insurance company disputed whether it had an obligation to satisfy the restitution award of funeral expenses assessed against the insured by the judge in the criminal proceedings against her. The Court stated that the policy language did not limit claims to those made in the course of civil proceedings. The Court further held that a restitution award in a criminal proceeding qualifies as “damages” to which coverage is applicable under the policy.

As in any claim against an insurance company over coverage issues, the language of the policy will ultimately dictate the result. The Court’s decision in McKernan scrutinized the policy language in reaching its decision. McKernan is another decision from the Pennsylvania appellate courts in recent years which re-emphasizes a trend towards compelling insurance coverage for criminal conduct which results in serious injuries or death. The key component of these decisions is that coverage will only be found if the conduct was not intentional, although it can be criminal.

John P. Finnerty, Esquire

On May 22, 2007, the Pennsylvania Superior Court of Pennsylvania affirmed a trial court’s granting of summary judgment to a forklift manufacturer in a products liability case. In Arnoldy v. Forklift L.P., the plaintiff was struck by a forklift while it was backing up. Plaintiff’s cause of action alleged defective design of the machine because it lacked any warning system when moving in reverse. The Court held that any state tort law requiring all forklifts to have certain safety devices would contradict language in the Occupational Safety and Health Act (OSHA)that states the user of the machine has the option to request the manufacturer to equip the machine with additional safety devices depending upon where the machine will be used.

Thomas P. Cummings, Esq.

In a recent decision issued March 27, 2007, the Superior Court of Pennsylvania affirmed a trial court decision which dismissed a medical malpractice suit based upon plaintiff’s failure to file the requisite certificate of merit.
In Shon v. Karason, the Court held that the patient’s complaint did not set forth a claim of lack of informed consent or a claim of negligent conduct independent of a professional duty. Instead, the complaint set forth a claim of professional negligence, such that certificate of merit was required. In the complaint, the patient alleged that he suffered various injuries and damages solely as a result of the negligence and substandard care of podiatrist in removing neuroma on patient’s foot, and patient alleged that podiatrist’s professional conduct fell below the standard of care.
The Superior Court stated that the defendant podiatrist’s corporation fell within the definition of health care or professional medical services for purposes of the Medical Care Availability and Reduction of Error (MCARE) Act’s definition of health care provider. Allowing the corporation, which functioned as podiatry center, to conduct business in Pennsylvania sufficed as “approval” by the Commonwealth, as required by MCARE Act, and as such, the corporation constituted a licensed professional and was a “health care provider” under MCARE Act, such that a certificate of merit was required to maintain an action in professional negligence.
Thomas P. Cummings, Esq.