In a coverage dispute arising from a negligence claim brought by victims of a shooting spree, the Pennsylvania Supreme Court considered whether multiple shootings resulting in five deaths and one serious injury qualified as an “accident” under a homeowner’s policy, and whether the shootings constituted a single “occurrence.” In Donegal Mut. Ins. Co. v. Baumhammers (Pa. Dec. 27, 2007), the court held that negligence claims asserted against the perpetrator’s parents qualified as an accident, and that the multiple shooting arose from a single, not multiple occurrences.
The claim arose from a shooting spree that took place within a period of just two hours. The insureds’ son drove to four nearby townships and shot and killed or injured six victims. He was later convicted of first degree murder with respect to the five victims who had died, and aggravated assault and attempted homicide for the victim who had been seriously injured. The victims and their representatives then sued the family, alleging the parents were negligent in failing to procure adequate mental health treatment for their son; failing to take possession of his handgun; and, failing to notify authorities.
The court was unanimous in its holding that the claims against the insured parents, when viewed from their perspective, had the necessary degree of fortuity to qualify as an accident. The court explained, “[t]he extraordinary shooting spree embarked upon by [the insureds’ son] resulting in injuries to Plaintiffs cannot be said to be the natural and expected result of Parents alleged acts of negligence. Rather, Plaintiffs injuries were caused by an event so unexpected, undesigned and fortuitous as to qualify as accidental within the terms of the policy.” The court concluded that because the alleged negligence resulted in accidental injuries, the insurer was required to defend the parents.
The court, however, did not reach consensus on the number of occurrences. The majority chose to apply the “cause” test, focusing on the cause of the damage, rather than the number of resulting claimants or injuries, in determining the occurrence limits applicable to the claims. This approach, the court reasoned, “recognizes that the question of the extent of coverage rests upon the contractual obligation of the insurer to the insured. Since the policy was intended to insure Parents for their liabilities, the occurrence should be an event over which Parents had some control.” Applied to this case, the court concluded the parents' negligence in failing to remove the weapon and/or alert authorities was the occurrence that began the sequence of events that resulted in the injuries. Thus, the court held the parents' alleged negligence resulted from a single “occurrence.”
Two justices filed separate concurring and dissenting opinions. Although they agreed with the majority that the claims qualified as an accident, neither could agree (either with the majority or each other) as to the number of occurrences. In Chief Justice Cappy’s view, the number of occurrences should have been determined based on the number of unexpected or fortuitous events. He concludes in this case that the shooting spree resulted from six separate occurrences.
Justice Cappy does not define what qualifies as the unexpected or fortuitous event; it is either the shootings or the resulting injuries. If it is the unexpected or fortuitous injuries, he adopts the “effect” test rejected by the majority, and a majority of other jurisdictions considering the issue. On the other hand, he may have intended to apply a test similar to New York’s “unfortunate event” test, which focuses not on the number of victims or the negligent acts or omissions, but on the event for which the insured is ultimately held liable, in this case each separate shooting.
Justice Baer attempts to find middle ground by combining the approaches employed by the majority and Justice Cappy, concluding instead that the shooting spree produced four occurrences. Justice Baer would have had no trouble applying the “effect” test apparently approved by Justice Cappy, but for one sentence in the policy, which provided: “This limit is the same regardless of the number of ‘insureds,’ claims made[,] or persons injured.” If the number of occurrences was always determined by the number of victims, he reasoned, this unambiguous limit could never be applied. To give effect to the clause, he adopts an approach that attempts to account for both the negligent act and the bodily injuries, while acknowledging that the number of resulting injuries is irrelevant. Applied to this case, Justice Baer concludes that each stop on the shooting spree constituted a separate event uniting an allegedly negligent act and injury, triggering a completed act of negligence, and, therefore, a new occurrence.
Justice Baer’s approach seems unsatisfactory, since the number of stops has no relationship to either the negligent acts or resulting injuries. Interestingly, had Justice Baer applied the “unfortunate event” test, a finding of six occurrences would have been consistent with his attempts to produce a result that had some bearing on the insured’s actual liability, while still giving effect to the policy language.
The case highlights the conceptual difficulties in determining the number of occurrences potentially applicable to claims resulting in multiple injuries stemming from some common cause. The tests employed by the courts (“cause,” “effect” and “unfortunate event”) each focus on different points in the causal chain, from the negligent act or omission to the resulting injury, and all points in between. The question obviously continues to confound.
