Written by Attorneys Martin H. Karo and Darren L. Harrison

Note: This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

A three-judge panel of the Pennsylvania Superior Court has held that an insurance company has a duty to defend a convicted murderer in a wrongful death and survival action. In Erie Insurance Exchange v. Muff, the deceased infant's parents, Jacob and Kelsey Bierling, sued their babysitter, Tricia Muff, after she was convicted of first-degree murder and aggravated assault for dropping their daughter, Madison, twice on her head in 1998. The infant later died due to the injuries caused by Ms. Muff. Ms. Muff was sentenced to life imprisonment.

The Bierlings filed a civil action in Delaware County against Ms. Muff, who had a homeowners' insurance policy that covered claims of negligence brought against the insured. The Bierlings accused Ms. Muff of acting negligently or recklessly in the events leading up to their daughter's death, including running and falling across uneven ground while carrying her own child as well as Madison and later failing to call 911 after she noticed Madison was having trouble moving and breathing.

Ms. Muff's insurance company, Erie Insurance Exchange, filed a declaratory judgment action asking the trial court to rule that there is no duty to defend or indemnify Ms. Muff in the civil lawsuit because the policy does not cover personal injuries arising from an insured's intentional criminal acts. Erie argued that Ms. Muff's criminal convictions established that the infant's death was the result of intentional acts.

The Superior Court affirmed the trial court's decision, reasoning that the policy's personal liability provision provides coverage for damages that an insured must pay because of personal injury or property damage resulting from an "occurrence" or "accident." The Superior Court concluded that the complaint, on its face, includes sufficient facts to support a negligence action against Ms. Muff.

Because the Bierlings were suing Ms. Muff for her negligence that contributed to their child's death, the panel concluded that the insurance company is not being forced to insure an intentional tort. The Superior Court explained that its conclusion did not go against public policy, which prohibits insurance coverage for intentional criminal conduct. Although the insurer owes no duty to defend Ms. Muff regarding her intentional actions related to the infant's death, the insurer does have a duty to defend against the specific allegations of negligence contained in the Bierlings' complaint.

In its appeal, Erie also argued that the Bierlings were collaterally estopped from claiming Ms. Muff's conduct was anything other than an intentional killing of the baby. Erie argued that the jury had specifically considered and rejected claims of Ms. Muff's negligence at her criminal trial, thus precluding the Bierlings from litigating those claims. The Superior Court found that Ms. Muff's convictions did not "conclusively establish" her intent in regard to the negligent and reckless acts alleged by the Bierlings in their complaint, and, therefore, do not preclude civil litigation of her intent regarding those acts.

It remains to be seen whether Erie will appeal to the Pennsylvania Supreme Court.