noting that “the ‘occurrence’ must be an accident, which a malicious, willful assault and beating could never be.”
How later courts described this case
- noting that “the ‘occurrence’ must be an accident, which a malicious, willful assault and beating could never be.”
- finding no coverage for assault and battery where complaint alleged that victim was struck with fists, repeatedly shook with great force and violence, cast and thrown to the ground
- holding, “[t]he willful and malicious assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy and, therefore, the insurer owed no duty to defend.”
- finding that, under a different policy with similar language, an “ ‘occurrence’ must be an accident which a malicious, willful assault and beating could never be”
Written by the judges who cited it.
The opinion
PAPADAKOS, Justice,
dissenting.
I dissent.
This Court has repeatedly held that where the language of an insurance policy is ambiguous, obscure, uncertain, or susceptible to more than one construction, our courts will construe the language most strongly against the insurer and accept the construction most favorable to the insured. D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33 , 467 A.2d 1303 (1983). If we err in an interpretation, we must err in favor of coverage for the insured. Motley v. State Farm Mutual Automobile Insurance Co., 502 Pa. 335 , 466 A.2d 609 (1983). See also, Mohn v. American Casualty Company of Reading, 458 Pa. 576 , 326 A.2d 346 (1974); Penn-Air, Inc. v. Indemnity Insurance Co. of North America, 439 Pa. 511 , 269 A.2d 19 (1970); Hafer v. Schauer, 429 Pa. 289 , 239 A.2d 785 (1968); Miller v. Boston Insurance Co., 420 Pa. 566 , 218 A.2d 275 (1966); Gnagey v. Pa. Threshermen and Farmers’ Mutual Casualty Insurance Co., 332 Pa. 193 , 2 A.2d 740 (1039); Western Insur *311 ance Co. v. Cropper, 32 Pa. 351 , 6 P.L.J. 209, 75 Am.Dec. 561 (1859).
The majority has insensibly abandoned this sound doctrine today. Granting that the duty of Appellee, Nationwide Insurance Co., to defend is dependent upon its ultimate duty to compensate should the underlying suit against its insured be lost, coverage, and therefore duty to compensate, turns on the following language in the insurance policy at issue:
“occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured____
Allegedly, Mrs. Aschenback, was willfully, maliciously and repeatedly assaulted physically while a patron in Appellant’s restaurant. She sued Appellant. Appellant itself was not guilty of intentional wrongdoing in the attack. It is certainly reasonable to argue that if the allegations in the underlying suit were proven, Mrs. Aschenback was subject to “continuous or repeated exposure to conditions, which results in [her] bodily injury or property damage neither expected nor intended from the standpoint of the insured [Appellant] ...” The policy defines “occurrence” as meaning an “accident,” and “accident” is defined to include such a “continuous or repeated exposure to conditions.” This may be an unusual and expansive way to define an accident, but that is what the policy says. “Accident” is defined so that it includes such an eventuality. It is perfectly reasonable to assume that Appellant purchased this policy to protect itself from lawsuits arising from such occurrences which, after all, are not unheard of in an establishment that serves food to the public. As long as it can be reasonably argued that the definition contained in this policy covers the attack on Mrs. Aschenback, and there is no doubt in my mind that the argument is at least plausible, then under our law the policy should be most strongly construed against the insurance company and in favor of the insured.
*312 This convoluted clause was inserted in the policy by Nationwide and was intended for their benefit. If it is tortured or obscure, it is their fault. A lay person could not be expected to grasp the fact that an occurrence, such as happened here, was excluded from coverage. Since the clause is capable of two interpretations, that should be adopted which is most favorable to the insured. If we were to decide this case correctly, and Nationwide did not care for the result, it could easily amend its standard policy in the future by adopting clear and unambiguous language.
For the reasons set forth above, I would reverse the Superior Court.