D'Imperio, M. v. Nationwide Insurance Comp.

J-A05017-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL D'IMPERIO : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NATIONWIDE GENERAL INSURANCE :

COMPANY A/K/A NATIONWIDE :

MUTUAL INSURANCE COMPANY : No. 1474 EDA 2020

A/K/A NATIONWIDE PROPERTY AND :

CASUALTY INSURANCE COMPANY :

:

Appellant :

Appeal from the Judgment Entered September 1, 2020

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): No. 181001132

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED JULY 13, 2021

Appellant Nationwide General Insurance Company appeals from the

judgment entered in favor of Appellee Michael D’Imperio, following a non-jury

trial. Appellant claims the trial court erred by concluding that Appellant had

a duty to defend Appellee in the personal injury lawsuit brought against

Appellee (DiBello action). Specifically, Appellant contends that the trial court

erred in concluding that (1) the DiBello action involved an occurrence within

the meaning of Appellant’s insurance policy, and (2) the policy’s intentional

act exclusion did not apply to the DiBello action. Appellant also argues that

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A05017-21

the trial court erred by not considering evidence from outside the DiBello

complaint. We affirm.

The trial court set forth the following finding of facts:

1. [Appellee,] initiated this action by filing a declaratory judgment

complaint on or about October 2, 2018.

2. [Appellee] seeks a declaration from the [trial c]ourt that

Nationwide has a duty to defend him in the action docketed in

the Philadelphia Court of Common Pleas as Anthony DiBello,

et al. v. Michael D’Imperio, et al., No. 170901836.

3. In the DiBello complaint, Mr. DiBello alleges that [Appellee]

intentionally fired a gun at Mr. DiBello. (Joint Stip., Ex. 2B at

¶¶ 8 and 22).[1]

4. Mr. DiBello alternatively alleges that [Appellee] “carelessly

fir[ed] a gun in the vicinity of a crowd of people,” “creat[ed] a

trap and/or nuisance and/or dangerous condition,” and

“fail[ed] to properly control a firearm.” (Id. at ¶ 26).

5. Nationwide insures [Appellee] pursuant to homeowner’s policy

5837HP494350 (“the Policy”).

6. The Nationwide homeowners policy 5837HP494350 provides

liability coverage to [Appellee]:

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1 Specifically, the DiBello complaint states:

8. Subsequently, [Appellee] produced a handgun and fired it at

Plaintiff, Anthony DiBello, thereby striking Plaintiff in the

abdomen, which caused him to suffer severe, serious and

permanent injuries and damages which are described at length

below.

* * *

22. This incident resulted, in part, from the intentional acts of

[Appellee] and was due in no manner whatsoever to any act or

failure to act on the part of the Plaintiff.

DiBello Compl. at ¶¶ 8, 22.

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SECTION II - LIABILITY COVERAGES

Page G1

Coverage agreements

Coverage E - Personal liability

We will pay damages an insured is legally obligated to pay

due to an occurrence resulting from negligent personal

acts or negligence arising out of the ownership,

maintenance or use of real or personal property. We will

provide a defense at our expense by counsel of our choice.

We may investigate and settle any claim or suit. Our duty

to defend a claim or suit ends when the amount we pay for

damages equals our limit of liability.

This coverage is excess over other valid and collectible

insurance. It does not apply to insurance written as excess

over the applicable limits of liability.

SECTION II - LIABILITY COVERAGES

Page G2

Additional liability coverages

We will pay the following in addition to the limits of liability.

These additional coverages are not subject to the Section II

Liability Exclusions.

Claims Expense. We will pay:

a) expenses we incur and costs levied against an

insured in a legal action we defend, including

prejudgment interest on that portion of the award

which does not exceed the limit of this coverage.

(Joint Stip., ¶ 9 and Exhibit 2A at pp. G1, G2) (Emphasis in

original).

7. The Nationwide homeowners policy 5837HP494350 is subject

to the following exclusions:

SECTION II - LIABILITY EXCLUSIONS

1. Coverage E Personal Liability and Coverage F – Medical

Payments to Others do not apply to bodily injury or

property damage:

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a) caused by an act intending to cause harm done

by or at the direction of any insured.

This exclusion does not apply to corporal

punishment of pupils.

b) caused by or resulting from an act or omission

which is criminal in nature and committed by an

insured.

This exclusion 1.b) applies regardless of

whether the [i]nsured is actually charged with,

or convicted of a crime.

c) arising out of business pursuits of an insured.

This exclusion 1.c) does not apply to:

(1) activities normally considered non-

business.

(2) occasional or part time self-

employed business pursuits of an

insured under age 19 years old

(age 23 if a full-time student).

(3) an office, school, studio, barber or

beauty Shop on the residence

premises if noted on the

Declarations.

(4) home care services provided by or

at the direction of an insured on or

from the residence premises if

noted on the Declarations.

(Joint Stip., ¶ 10 and Exhibit 2A at pp. H1) (Emphasis in original).

8. The Nationwide homeowners policy 5837HP494350 issued to

[Appellee] defines an “Occurrence” as relating to an accident

as follows:

SECTION II - LIABILITY COVERAGES

Page G1

“OCCURRENCE” means bodily injury or property damage

resulting from an accident, including continuous or repeated

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exposure to the same general condition. The occurrence

must be during the policy period.

9. Anthony DiBello and his wife sued [Appellee] in the Philadelphia

Court of Common Pleas in the matter styled Anthony DiBello

and Kelly DiBello v. Michael D’Imperio, et al., No.

170901836 (the “DiBello Action”).

10. Mr. DiBello initiated this action by filing a complaint.

11. In his complaint, Mr. DiBello alleges that [Appellee] accosted

him:

Subsequently, after leaving The Lobster Club, Defendant

L.O.B.Ster Association’s steward, Joseph DeLullo, arrived on

the Scene, and, at the same time, Plaintiff, Anthony DiBello,

was accosted by Defendant, [Appellee].

(Joint Stip., ¶ 14, Exhibit 2B at ¶ 7).

12. Mr. DiBello also alleges that [Appellee] shot him:

Subsequently, Defendant, [Appellee], produced a

[h]andgun and fired it at Plaintiff, Anthony DiBello, thereby

striking Plaintiff in the abdomen, which caused him to suffer

severe, serious and permanent injuries and damages which

are described at length below.

(Joint Stip., ¶ 15, Exhibit 2B at ¶ 8).

13. Further, Mr. DiBello alleges that [Appellee] was acting as an

agent of defendant L.O.B.Ster Association at the relevant time.

14. The DiBello Action includes an assault and battery claim against

[Appellee].

15. In support of his assault and battery claim, Mr. DiBello alleges

that:

The intentional conduct of [Appellee] consists of, but is not

limited to the following:

a. attempting, by violence, to hurt the Plaintiff;

b. firing a firearm at and striking Plaintiff in his body;

c. recklessly endangering Plaintiff’s life;

d. acting in a violent manner;

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e. intentionally inflicting harm upon Plaintiff; and

f. such other and further intentional acts that will be

developed by future discovery in this case.

(See Exhibit 2B at ¶ 23).

16. In support of his assault and battery claim, Mr. DiBello alleges

that:

The negligence and carelessness of [Appellee] consists of,

but is not limited to the following:

a. carelessly firing a gun in the vicinity of a crowd of

people;

b. creating a trap and/or nuisance and/or dangerous

condition; and;

c. failure to properly control a firearm.

(See Exhibit 2B at ¶ 26).

17. As a result of his conduct, the Philadelphia Police arrested

[Appellee]. He was charged by the Philadelphia District

Attorney’s Office, but the charges were eventually withdrawn.

Trial Ct. Op. & Verdict, 2/19/20, at 1-6 (footnote and some record citations

omitted) (formatting altered).2

The trial court entered a decision in favor of Appellee. Id. at 10. On

March 2, 2020, Appellant timely filed a post-trial motion, requesting judgment

notwithstanding the verdict (JNOV). On May 21, 2020, the trial court denied

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2 The trial court’s opinion and verdict is dated February 12, 2020, but the trial

court did not give notice of its verdict to the parties until February 19, 2020.

See Pa.R.A.P. 108(b); Pa.R.C.P. 236(b).

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Appellant’s post-trial motion. Appellant filed a notice of appeal on June 16,

2020.3 Appellant and trial court both complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court err as a matter of law in concluding that the

allegations of the . . . DiBello complaint against the Appellee

alleged an “occurrence” when the allegations within the DiBello

complaint merely pled conclusions of law regarding supposed

or alleged negligent or careless conduct?

2. Did the trial court err as a matter of law in concluding that the

allegations of the . . . DiBello complaint against Appellee

alleged an “occurrence” and further that the facts pled did not

implicate the intentional act exclusion contained within the

Appellant’s homeowners policy issued to Appellee?

3. Did the trial court err as a matter of law by not considering the

admissions of record in the joint stipulated facts that

Appellee[’s] admitted conduct in intentionally shooting

Anthony DiBello negated any duty to defend which may have

been triggered by the . . . DiBello complaint involving the

matter of Anthony DiBello, et al. vs. Michael D’Imperio, et

al., No. 170901836 and thus was not an “occurrence” and

further implicated the intentional act exclusion in the policy?

4. Did the trial court err as a matter of law in failing to grant

Appellant Nationwide’s motion for post-trial relief [which

requested the trial court give] consideration to evidence

outside the DiBello Complaint developed within this declaratory

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3 “An order in a declaratory judgment action that either affirmatively or

negatively declares rights, status, and other legal relations is a final order.

See 42 Pa.C.S.[] § 7532; see also Pa.R.A.P. 341(b)(1) (providing that a final

order is any order that disposes of all claims and of all parties.).” Good v.

Frankie & Eddie’s Hanover Inn, LLP, 171 A.3d 792, 794 n.1 (Pa. Super.

2017) (formatting altered). Therefore, at the time Appellant filed its notice of

appeal, it was timely filed. Nevertheless, on September 1, 2020, this Court

entered an order stating that final judgment had not been entered and

directing Appellant to praecipe the trial court’s prothonotary to enter judgment

and file a certified copy of the trial court docket reflecting entry of the

judgment with this Court. Order, 9/1/20. Appellant complied with this order

and a final judgment was entered on September 1, 2020.

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judgment action and submitted to the court within the joint

stipulated facts, and establishing that no “occurrence” took

place or further that the intentional act exclusion contained

within the Nationwide homeowners policy applied?

Appellant’s Brief at 5-6 (formatting altered).

Appellant discusses its first two issues collectively in its appellate brief,

and we summarize them together.4 Appellant argues that the trial court erred

in concluding that Appellant had a duty to defend Appellee in the DiBello action

based on the allegations in the DiBello complaint. Id. at 34-46. Appellant

observes that under Pennsylvania law, the duty to defend is governed by the

allegations of the complaint in the underlying action. Id. at 34. Appellant

contends that there is no duty to defend when the allegations in the underlying

action fall into “a clear and unambiguous exclusion of coverage.” Id. at 35.

Specifically, Appellant claims that the factual allegations of the DiBello

complaint indicate that Appellee acted intentionally by accosting DiBello and

firing his gun at DiBello, but artfully pled a claim of negligence to avoid the

intentional act exclusion in the Policy. Id. at 36-39, 45. Appellant contends

____________________________________________

4 Although Appellant presents four distinct questions on appeal, the argument

section of Appellant’s brief is not divided into separate sections for each

question. See Pa.R.A.P. 2119(a) (stating “[t]he argument shall be divided

into as many parts as there are questions to be argued; and shall have at the

head of each part . . . the particular point treated therein, followed by such

discussion and citation of authorities as are deemed pertinent”). We do not

condone Appellant’s failure to comply with the Rules of Appellate Procedure,

but because the noncompliance does not impede our review, we decline to

find waiver. See, e.g., Forrester v. Hanson, 901 A.2d 548, 551 n.2 (Pa.

Super. 2006) (disapproving of the appellant’s failure to divide argument into

subsections equal to the number of questions raised on appeal but addressing

the claims on the merits).

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that all of the references to negligence in the DiBello complaint are conclusions

of law and not factual allegations. Id. at 43-44. Appellant argues that to

claim that Appellee aiming his handgun at DiBello and firing a shot was an

accident “strains common sense.” Id. at 46. Appellant concludes that

because the DiBello complaint does not plead facts that would constitute an

accident, the shooting does not qualify as an “occurrence” as defined in the

Policy, and therefore the DiBello complaint does not trigger Appellant’s duty

to defend under the Policy. Id. at 45-46.

Appellee responds that because the DiBello complaint asserted facts that

could support a finding that Appellee acted negligently, Appellant had a duty

to defend Appellee. Appellee’s Brief at 4-7. Specifically, Appellee referred to

Count III of the DiBello complaint, which pled a cause of action of negligence

against Appellee. Id. at 5-6.

This Court has stated that “[w]hen a case is submitted on stipulated

facts, the rulings of the trial court are limited to questions of law. Accordingly,

our standard of review allows us to evaluate only whether the trial court

committed legal error. Our scope of review is plenary.” Triage, Inc. v.

Prime Ins. Syndicate, Inc., 887 A.2d 303, 306 (Pa. Super. 2005) (citations

omitted); see also QBE Ins. Corp. v. Walters, 148 A.3d 785, 787 (Pa.

Super. 2016) (Walters) (stating “[t]he proper construction of an insurance

policy is resolved as a matter of law in a declaratory judgment action. Thus,

as with all questions of law, our scope of review is de novo and our standard

of review is plenary” (citations omitted)).

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This Court has explained:

When an insured who has been sued requests coverage under an

insurance policy, the insurer is required to accept all of the

allegations contained in the third party’s complaint as true and

provide a defense if there is a possibility that the injury alleged

could fall within the scope of the policy. To determine whether an

insurer is obligated to defend and potentially indemnify a party,

we review the factual allegations contained in the underlying

complaint against the insured. Generally, exclusionary clauses

are strictly construed against the insurer and in favor of the

insured.

Furthermore, our courts recognize that the duty to defend is

broader than the duty to indemnify. The insurer may not

justifiably refuse to defend a claim against its insured unless it is

clear from an examination of the allegations in the complaint and

the language of the policy that the claim does not potentially come

within the coverage of the policy. This duty is not limited to

meritorious actions; it even extends to actions that are

groundless, false, or fraudulent so long as there exists the

possibility that the allegations implicate coverage. The duty

persists until an insurer can limit the claims such that coverage is

impossible.

Walters, 148 A.3d at 788 (citations omitted and formatting altered).

Further, we have stated:

In determining whether an insurer’s duties are triggered, the

factual allegations in the underlying complaint are taken as true

and liberally construed in favor of the insured.

The obligation of an insurer to defend an action against the

insured is fixed solely by the allegations in the underlying

complaint. As long as a complaint alleges an injury which may be

within the scope of the policy, the insurer must defend its insured

until the claim is confined to a recovery the policy does not cover.

The particular cause of action that a complainant pleads is not

determinative of whether coverage has been triggered. Instead it

is necessary to look at the factual allegations contained in the

complaint. If we were to allow the manner in which the

complainant frames the request for damages to control the

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coverage question, we would permit insureds to circumvent

exclusions that are clearly part of the policy of insurance. [Mutual

Benefit Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999)]

([holding that] allowing the language of the complaint alone to

control coverage questions would “encourage litigation through

the use of artful pleadings designed to avoid exclusions”). The

insured would receive coverage neither party intended and for

which the insured was not charged. The fact that the plaintiffs

couched their claims in terms of negligence does not control the

question of coverage.

Am. Nat. Prop. & Cas. Companies v. Hearn, 93 A.3d 880, 884 (Pa. Super.

2014) (Hearn) (some citations omitted and formatting altered).

In Hearn, the insured sought a declaratory judgment that it did not

have a duty to defend the insured where the underlying complaint alleged,

among other things, that the insured “came from under [the underlying

plaintiff], hitting him in the groin with his forearm while [the underlying

plaintiff’s] back was turned” and that the insured “intended to cause a harmful

or offensive contact with [the underlying plaintiff’s] body by striking him . . .

.” Hearn, 93 A.3d at 882-83, 885 (record citations omitted). The trial court

granted the insurer’s motion for summary judgment because the Policy

excluded bodily injury resulting from intentional acts. Id. at 883. The Hearn

Court concluded that the insurer did not have a duty to defend and

emphasized that “[r]egardless of whether [the underlying plaintiffs] chose to

plead a negligence cause of action, it is clear from the undisputed facts that

[the insured’s] assault on [the underlying plaintiff] was intentional.” Id. at

886; see also Erie Ins. Exch. v. Fidler, 808 A.2d 587, 590 (Pa. Super. 2002)

(Fidler) (stating “[t]he fact that the [underlying plaintiffs] couched their

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claims in terms of negligence does not control the question of coverage” and

concluding that the underlying complaint’s factual allegations described

intentional conduct (citations omitted)).

In Erie Ins. Exchange v. Moore, 228 A.3d 258 (Pa. 2020) (Moore),

the underlying plaintiff’s complaint alleged that the insured had shot and killed

his ex-wife in her home. Moore, 228 A.3d at 260, 266. When the underlying

plaintiff arrived at the ex-wife’s home, the insured pulled the underlying

plaintiff into the home, and a struggle ensued. Id. During the struggle, the

insured “negligently, carelessly, and recklessly caused the weapon to be fired

which struck [the underlying plaintiff] in the face” and “other shots were

carelessly, negligently and recklessly fired[,]” striking “various parts of the

interior of the residence” and the underlying plaintiff. Id. (citations omitted).

The insured then turned the gun on himself. Id. The insurer argued that it

did not have a duty to defend the underlying action because the insured’s

shooting of the underlying plaintiff was intentional, and therefore was not an

“occurrence” within the meaning of the policy (i.e., an accident). Id. at 263-

64.

Our Supreme Court, in Moore, concluded the allegations of the

underlying complaint were not artful pleadings “designed to present

intentional acts as accidental for purposes of insurance coverage.” Id. at 266.

Instead, the Court reasoned that these allegations “taken as true, . . . present

a factual scenario that potentially comes within the definition of a covered

‘occurrence,’ and to which the [insurer’s] exclusion for bodily injury ‘expected

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or intended’ by the insured does not apply.” Id.; see also id. at 267 (noting

that the “complaint’s allegations do not preclude the possibility [the insured]

accidentally shot [the underlying plaintiff], despite the fact he intentionally

shot [his ex-wife], or intentionally pulled [the underlying plaintiff] into the

house before the shooting”); Erie Ins. Exchange v. Muff, 851 A.2d 919, 933

(Pa. Super. 2004) (Muff) (holding that while the insurer did not have to

defend the insured’s intentional acts, it did have “a duty to defend against the

specific allegations of negligence contained in the [underlying plaintiff’s]

complaint, regardless of whether these claims are ultimately determined to be

specious” (citation omitted)).

Here, the trial court explained:

Nationwide’s Policy covers “occurrence[s] resulting from

negligent personal acts. . . .” (Joint Stip., ¶ 9 and Exhibit 2A at

p. G1) (emphasis in original). The policy further defines

“occurrence” as “bodily injury . . . resulting from an accident. . .

.” Id. The term “accident” is undefined in the policy, and

therefore must be interpreted in its natural, plain and ordinary

sense. Kvaerner Metals Division of Kvaerner U.S., Inc. v.

Commercial Union Ins. Co., 908 A.2d 888, 897 (Pa. 2006)

[(Kvaerner)]. Courts may consult a dictionary to determine a

word’s ordinary usage. According to Webster’s, an “accident” is

“[a]n unexpected and undesirable event,” or “something that

occurs unexpectedly or unintentionally.” Id. (quoting Webster’s

II New College Dictionary 6 (2001)). The key term in the ordinary

definition of “accident” is “unexpected.”

In his complaint, Mr. DiBello alleges that he was “accosted by

[Appellee],” and that “[Appellee] produced a handgun and fired it

at [Mr. DiBello] thereby striking [him] in the abdomen.” (Joint

Stip., ¶¶ 14-15, Exhibit 2B at ¶¶ 7-8). Mr. DiBello brings a

negligence claim against [Appellee], claiming that [Appellee]

“carelessly [fired] a gun in the vicinity of a crowd of people,”

“[created] a trap and/or nuisance and/or dangerous condition;”

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and “[failed] to properly control a firearm.” (Joint Stip., Exhibit 2

“B” at ¶ 26). Therefore, on the face of the complaint, Mr. DiBello’s

injury may have been an “occurrence” resulting from [Appellee]

accidentally firing a gun, i.e., “failing to properly control a

firearm.” (Joint Stip., ¶¶ 9, 14-15; Exhibit 2 “B” at ¶ 26). If true,

these allegations constitute an “unexpected or undesirable event,”

and therefore fall within the scope of Nationwide’s Policy. (Id.)

Trial Ct. Op., 8/12/20, at 7-8 (some citations omitted).

The trial court additionally stated:

The Policy’s intentional act exclusion applies to “bodily injury or

property damage [. . .] caused by an act intending to cause harm

done by or at the direction of any insured.” (Joint Stip., ¶ 10 and

Exhibit 2A at p. H1). As discussed above, on the face of the

complaint, [Appellee’s] conduct may have been negligent.

Therefore, it is unclear whether the intentional act exclusion

applies. Since [Appellant’s] duty to defend attaches until it is

“clear that the claim has been narrowed to one beyond the terms

of the policy,” [Appellant] cannot disclaim the duty with the

“intentional act” exclusion.

Id. at 10-11 (some citations omitted).

We agree with the trial court’s analysis that the factual allegations of

the DiBello complaint plead an occurrence as defined in the Policy. The Policy

defines an “occurrence” as “bodily injury . . . resulting from an accident . . .

.” See Policy at G1 (emphasis omitted). In the underlying complaint, DiBello

alleged that Appellee drew and fired a handgun at DiBello. See DiBello Compl.

at ¶¶ 8, 21-27. The factual allegations of the DiBello complaint, could be read

to allege that Appellee intentionally shot DiBello, but in liberally construing the

underlying complaint in favor of Appellee as the insured, its factual allegations

could also depict an accidental shooting. Accordingly, the factual allegations

of the DiBello complaint do not necessarily preclude the possibility that the

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shooting was accidental, therefore the trial court did not err in concluding the

DiBello pled an “occurrence” as defined in the Policy.

Likewise, we agree with the trial court’s conclusion that the Policy’s

intentional act exclusion does not apply when considering only the DiBello

Complaint’s factual allegations. According to the Policy’s intentional act

exclusion, Appellant does not cover “bodily injury . . . caused by an act

intending to cause harm done by or at the direction of any insured.” See

Policy at H1 (emphasis omitted). As stated above, the allegations of the

underlying complaint are that Appellee drew a handgun and fired it at DiBello.

The factual allegations of the underlying complaint, when liberally construed

in favor of the insured, do not preclude the possibility that the shooting was

accidental. Compare Moore, 228 A.3d at 266-67 (the allegations of the

complaint were that the insured negligently fired his gun several times during

a struggle between the insured and the underlying plaintiff, and that the

insured “was screaming, swearing, incoherent, and acting ‘crazy,’” did not

preclude the possibility that the insured accidentally shot the underlying

plaintiff, and the insurer had a duty to defend), with Hearn, 93 A.3d at 885-

86 (concluding that the allegations of the complaint, which included that the

insured came from behind the underlying plaintiff and suddenly struck him in

the groin area, described intentional conduct and there was no duty to

defend).

As for Appellant’s contention that the underlying plaintiff has artfully

pleaded the factual allegations of his complaint to avoid coverage exclusions,

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we disagree. The courts of this Commonwealth have discussed artful pleading

in terms of the causes of action, not the factual allegations of the complaint.

See Hearn, 93 A.3d at 884 (holding that despite pleading a cause of action

for negligence, the underlying complaint alleged intentional acts); Fidler, 808

A.2d at 590 (same). Here, the underlying complaint alleges both intentional

and negligent conduct. See DiBello Compl. at ¶¶ 8, 21-27. Therefore, we do

not hold that the factual allegations of the underlying plaintiff complaint

constitute artful pleading designed to avoid coverage exclusions. Cf. Hearn,

93 A.3d at 886; Fidler, 808 A.2d at 590.

This Court has explained that “[a]s long as [the factual allegations of] a

complaint alleges an injury which may be within the scope of the policy, the

insurer must defend its insured until the claim is confined to a recovery the

policy does not cover.” See Hearn, 93 A.3d at 884 (quoting Fidler, 808 A.2d

at 590). For these reasons, we hold that trial court did not err in concluding

that Appellant has a duty to defend Appellant in the DiBello action until the

claims are confined to ones that the Policy does not cover. See id.; Walters,

148 A.3d at 787; Triage, 887 A.2d at 306. Appellant is not entitled to relief

on this claim.

In its third issue, Appellant argues that the trial court erred in not

considering evidence outside the complaint, specifically, Appellee’s deposition

and responses to requests for admissions in this matter. Appellant’s Brief at

47-61. Appellant contends that this evidence shows that Appellee acted

intentionally in shooting DiBello, and therefore, the intentional acts exclusion

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in the Policy applies and the claim has been confined to a recovery not covered

in the Policy. Id. at 47-48, 51-53, 60-61. Appellant cites this Court’s decision

in Carrasquillo v. Kelly, 2720 EDA 2018, 2019 WL 5887293 (Pa. Super. filed

Nov. 12, 2019) (unpublished mem.) as an example of when the court may

look to facts outside the complaint to conclude that a policy exclusion applied

and the insurer had no duty to defend. Id. at 54-55. Appellant has also cited

a number of federal cases where the federal courts considered extrinsic facts

before ruling the insurers had no duty to defend. Id. at 55-60 (citing, inter

alia, Gardner v. State Farm Fire & Casualty Co., 544 F.3d 553 (3d Cir.

2008), and State Farm Fire & Cas. Co. v. Griffin, 903 F. Supp. 876 (E.D.

Pa. 1995)).

Appellant also essentially argues that it is against public policy to require

an insurer to defend a case based upon false and fraudulent claims to verdict

without the ability to pursue a declaratory judgment action to resolve the

question of coverage. Id. at 48-52. Appellant contends that to require the

insurer to defend the insured creates a conflict between the attorney hired to

defend the insured and the insurer who is responsible for paying the attorney

and the verdict. Id.

Appellee responds that the trial court properly excluded extrinsic

evidence from its consideration in determining whether Appellant had a duty

to defend. Appellee’s Brief at 7-8.

As noted above, our case law holds that the initial determination of

whether an insurer has a duty to defend requires the trial court to examine

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the underlying complaint. See Walters, 148 A.3d at 788; Hearn, 93 A.3d at

884. Recently, our Supreme Court has emphasized that our analysis is limited

to the four corners of the complaint and the four corners of the insurance

contract. See Moore, 228 A.3d at 261 n.2, 265. Further, the Court

disapproved of relying on additional facts, such as deposition testimony, in

determining whether the insurer has a duty to defend. See id. at 261 n.2;

see also Kvaerner, 908 A.2d at 896 (holding that this Court “erred in looking

beyond the allegations raised in [the underlying complaint] to determine

whether [the insurer] had a duty to defend”).5

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5 As one treatise explains:

[A]s a general rule, an insurer’s duty to defend the insured is

determined primarily by the pleadings in the underlying lawsuit

without regard to their veracity, what the parties know or believe

the alleged facts to be, the outcome of the underlying case, or the

merits of the claim. It is the factual allegations instead of the legal

theories alleged that determine the existence of a duty to defend.

Even if the allegations are groundless, false, or fraudulent, the

insurer is obligated to defend.

14 Couch on Ins. § 200:20. As the treatise explains, jurisdictions differ in how

they address the issue of conflicting facts:

In regard to the existence of coverage, it is possible that the

allegations of a complaint lead to one conclusion while the facts

known to the insurer lead to another. This creates an issue

of whether the allegations of the complaint or the known facts are

determinative as to the duty to defend.

In jurisdictions that consider only the allegations of the complaint

in determining a duty to defend, the allegations in the complaint,

alone, determine the insurer’s duty to defend without regard to

contradictory extrinsic facts. On the other hand, jurisdictions that

(Footnote Continued Next Page)

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Here, the trial court explained:

[Appellant] contends that the [trial c]ourt erred by declining to

consider evidence outside of the DiBello complaint in determining

whether [Appellant] had a duty to defend [Appellee]. Under

Pennsylvania law, however, an insurer is obligated to defend if the

factual allegations of the complaint on its face comprehend an

injury which is actually or potentially within the scope of the

policy. Therefore, a court’s inquiry into an insurer’s duty to defend

is strictly limited to the allegations on the face of the complaint.

Aetna Cas. and Sur. Co. v. Roe, 650 A.2d 94, 99 (Pa. Super.

1994) (“The insurer’s obligation to defend is fixed solely by the

allegations in the underlying complaint.”)[.] Indeed, “[i]t does

not matter if in reality the facts are completely groundless, false,

or fraudulent.” Id. The [trial c]ourt therefore could not properly

consider evidence outside of the complaint and did not err by

confining its analysis to the four corners of the complaint.

Trial Ct. Op. at 7 (some citations omitted and formatting altered).

____________________________________________

consider extrinsic facts or evidence in the determination of a duty

to defend reflect a difference in opinion with regard to the relative

weight of allegations in the complaint and other facts. Under one

view, an insurer’s duty to defend is not unlimited and ultimately

depends upon facts relevant to the suit of which the insurer is

aware. These facts must conclusively demonstrate that there is

no potential for coverage. If the duty to defend is extinguished

pursuant to extrinsic facts, it is extinguished only prospectively

and not retroactively. Under a second view, facts outside the

pleadings cannot defeat the duty to defend, but they may create

it. Under either view, an insurer has a duty to defend its insured

in a pending lawsuit where the pleadings do not allege a covered

occurrence, but the insurer knows or could reasonably ascertain

facts establishing a reasonable possibility of coverage.

Id. § 200:23 (emphasis added). Pennsylvania is a jurisdiction that solely

considers the allegations of the complaint. “We do not consider extrinsic

evidence” from outside the complaint in construing the allegations raised in

the underlying complaint. Kiely in re Feinstein v. Phila. Contributionship

Ins. Co., 206 A.3d 1140, 1146 (Pa. Super. 2019) (citing Kvaerner, 908 A.2d

at 896); accord 14 Couch on Ins. § 200:22 (citing Pennsylvania as a

jurisdiction that does not consider extrinsic evidence).

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We note that Appellant has cited several federal court decisions applying

Pennsylvania law. The decisions of the lower federal courts are not binding

on this Court but may be persuasive authority. See Okeke-Henry v.

Southwest Airlines, Co., 163 A.3d 1014, 1017 n.4 (Pa. Super. 2017).

Several of the federal cases that Appellant cited are not declaratory judgment

actions seeking a ruling on whether the insurer has a duty to defend. See,

e.g., Gardner, 544 F.3d at 557 (plaintiff sued insurer for breach of contract,

breach of fiduciary duty, and related claims after insurer declined to defend

plaintiff in another action). While in some duty to defend declaratory

judgment cases, the federal courts relied on facts outside the complaint, these

federal cases are not applicable in light of our Supreme Court’s precedent.

Compare Griffin, 903 F. Supp. at 877-78 (concluding that there was no duty

to defend based on the insured’s statement that he intended to start a fight

with the underlying plaintiffs), with Moore, 228 A.3d at 261 n.2, and

Kvaerner, 908 A.2d at 896.

Appellant’s reliance on Carrasquillo is also unavailing, because non-

precedential decisions of this Court only have persuasive value. See Pa.R.A.P.

126(b)(1)-(2); see also 210 Pa. Code § 65.37(B). Further, Carrasquillo is

distinguishable on the facts. The Carrasquillo Court concluded that the

underlying plaintiff artfully crafted her complaint to avoid the insurance

policy’s intentional act and criminal act exclusions, by omitting any reference

to the insured’s conviction for third degree murder. Id., 2019 WL 5887293,

at *7-8. The Carrasquillo Court relied on the insured’s criminal conviction,

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which was evidence outside the underlying complaint, to conclude that the

insured committed a criminal act, therefore the insurer did not have a duty to

defend the underlying action. Id. at *8. The Carrasquillo Court did not

address the applicability of the policy’s intentional act exclusion. Id. at *8

n.8. Here, Appellant argues the Policy’s intentional act exclusion applies based

on facts outside the underlying Complaint, therefore Carrasquillo is not

applicable to the facts of this case.6

We agree with the trial court that it could not consider evidence outside

the complaint. Regardless, our Supreme Court recently reiterated our analysis

is limited to the four corners of the complaint and the four corners of the

insurance contract, and courts should not rely on additional facts, such as

deposition testimony, to determine whether the insurer has a duty to defend.

See Moore, 228 A.3d at 261 n.2. Moore is controlling authority for this

Court; therefore, we conclude that the trial court did not err in refusing to

consider Appellee’s admissions and deposition testimony deciding this

declaratory judgment action. See Walters, 148 A.3d at 787; Triage, 887

A.2d at 306.

To the extent Appellant is arguing that we should reverse the trial court’s

order on public policy grounds, that argument is waived because it has been

____________________________________________

6 Further, Appellee was not convicted of a crime. Instead, Appellant argues

the trial court should have considered Appellee’s deposition and responses to

requests for admissions as proof that Appellee intentionally shot DiBello. Even

assuming that a criminal conviction is an exception to the Moore’s directive

that our consideration is limited to the four corners of the complaint,

Carrasquillo is not applicable to the facts of this case.

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raised for the first time on appeal. See Pa.R.A.P. 302 (stating “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal”). Even if this argument was not waived, it is meritless because this

Court has established that the duty to defend extends to allegations that are

fraudulent or false as long as there is the possibility that such allegations

implicate policy coverage, and further has rejected public policy arguments to

deny a duty to defend where the insurer believes the claims may ultimately

be determined as specious. See Walters, 148 A.3d at 788; see also Muff,

851 A.2d at 933 (rejecting the insurer’s public policy argument and stating

the insurer had a duty to defend negligence allegations against the insured

“regardless of whether these claims are ultimately determined to be

specious”).

Appellant’s fourth issue relates to the denial of its post-trial motion.

Appellant’s Brief at 6. The issue, as set forth in Appellant’s statement of

questions presented, relies on the same grounds presented in Appellant’s first

three issues. See id. However, Appellant did not present a separate

argument regarding the denial of its post-trial motion. As we have already

discussed the grounds Appellant has relied on in support of its first three

issues, we do not find waiver. See Pa.R.A.P. 2119(a); Forrester, 901 A.2d

at 551 n.2.

In its post-trial motion, Appellant argued that the trial court erred by

not considering Appellee’s admission of record, submitted with the joint

stipulation of facts, that Appellee intentionally shot Mr. DiBello and there was

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no accidental discharge of his weapon. See Post-Trial Mot., 3/2/20, at 3.

Appellant contends that based on the joint stipulation of facts, the terms and

conditions of the Policy, the allegations of the DiBello Complaint, no

“occurrence” had been alleged within the meaning of the Policy, and the trial

court erred in concluding that Appellant had a duty to defend. See id. at 4.

For the reasons discussed above concluding that the trial court did not

err in holding that Appellant has a duty to defend the underlying action, we

conclude that the trial court did not err in denying Appellant’s post-trial

motion.

For these reasons, we determine that the trial court’s verdict in favor of

Appellee was not erroneous. See Walters, 148 A.3d at 787; Triage, 887

A.2d at 306. Accordingly, we affirm.7

Judgment affirmed.

____________________________________________

7 We note that under our case law, Appellant’s duty to defend persists until

facts are developed in the underlying action that would narrow DiBello’s claim

to one outside the scope of the Policy. See Moore, 228 A.3d at 265 (stating

“to the extent there are undetermined facts that might impact on coverage,

the insurer has a duty to defend until the claim is narrowed to one patently

outside the policy coverage, for example through discovery” (citations and

quotation marks omitted)); see also Hearn, 93 A.3d at 884 (the duty to

defend persists “until the claim is confined to a recovery the policy does not

cover” (citation omitted)).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2021

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