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An insurance company has no duty to defend or indemnify a homeowner’s policyholder in a wrongful-death suit stemming from allegations that the insured provided heroin that led to the overdose and subsequent death of a woman, a divided Pennsylvania Superior Court has ruled. The majority of the court in Minnesota Fire and Casualty Co. v. Greenfield said the wrongful death resulted from an intentional act and was, therefore, not covered under the negligence provisions of the homeowner’s policy that Michael Greenfield had taken out with the Minnesota Fire and Casualty Co. The court, led by Judge Richard B. Klein, said the supplying of heroin to an individual was similar to child abuse cases where courts have adopted the doctrine of inferred intent. The courts have noted that the criminal nature of the act puts the offender on notice that harm could occur as a result of the act. “While Greenfield may not have intended that Angela Smith die, the risk of adverse effects from taking heroin is not unexpected, be those adverse effects of sickness or even death,” Klein wrote. “Under the policy language, we find that Greenfield’s conduct in supplying her with heroin was intentional. “Her death may not have been intentional, but, because of the known risks, an adverse reaction is an expected occurrence and the situation should not occur because of the degree of the adverse reaction, even when it results in death.” Judge Joan Orie Melvin joined Klein in the majority. Judge Peter Paul Olszewski filed a dissent disagreeing with the majority’s use of the inferred intent doctrine. “The events of that evening were tragic, negligent and a testimony to the perils of heroin use,” Olszewski wrote. “Yet, as such, they constitute an occurrence under the terms of the insurance policy. No exclusion applies, because while the sale of heroin by Greenfield was intentional, the injury in question, the death of Smith, was neither expected nor intended.” The decision is a victory for William T. Salzer and Kori Ann Connelly of Swartz, Campbell & Detweiler in Philadelphia. John R. Fenstermacher of Fenstermacher and Associates in Mechanicsburg, Pa., represented Smith’s parents. Fenstermacher said he hadn’t spoken with his clients yet and was unsure whether he would file an appeal. He said he was disappointed with the majority’s conclusion and agreed with Olszewski’s opinion. “Perhaps [Greenfield] knew that she would suffer some narcotic effect, but he never intended for her to die,” Fenstermacher said. Fenstermacher also said that Greenfield has since filed for bankruptcy. Greenfield voluntarily provided Smith with a bag of heroin labeled “suicide.” Smith took the heroin over several hours and ultimately overdosed on the drug and died. According to Fenstermacher, Greenfield also left Smith unattended for hours and found her dead the next evening. He then took her to a nearby creek and abandoned her body, the attorney said. Smith’s parents subsequently filed a wrongful-death and survival action against Greenfield, alleging negligence. In criminal court, Greenfield pleaded guilty to one count each of involuntary manslaughter, delivery of a controlled substance and abuse of a corpse. He served 11 months in prison and later declared bankruptcy. Greenfield had a homeowner’s policy with Minnesota Fire and Casualty. The insurance company did not dispute Greenfield’s negligence, but rather asserted that it did not have a duty to defend and indemnify because Smith’s death was the result of an intentional act. The Cumberland County, Pa., trial court ruled in Greenfield’s favor and concluded that Minnesota Fire and Casualty had a duty to defend Greenfield. The insurance company appealed. On appeal, the Smiths argued that the death of their daughter was not intended, but rather was the result of a negligent act and was covered by the policy. Klein cited the Superior Court’s decision in Aetna Casualty and Surety Co. v. Roe, where the court adopted the notion of inferred intent in child abuse cases. “Inferred intent results when there is an intentional act on the part of the insured and it is inherent in that act that harm will occur,” Klein wrote. “In child abuse cases, the actor’s abuse will frequently cause long-term harm to the child. “Therefore, although the offender may not intend to cause long-term harm to the child, since it is likely to occur, the act is considered intentional and there is no insurance coverage for policies that merely cover general negligence.” The court said the inferred intent rule was applicable to Greenfield’s case. The policy Greenfield had with Minnesota Fire and Casualty covered damages due to “bodily injury or property damage caused by an occurrence to which this coverage applies.” An occurrence is defined as “an accident, including exposure to conditions, which result, during the policy period, in a.) bodily injury; b.) property damage.” The policy specifically excludes coverage for claims based on bodily injury that was expected or intended by the insured. Klein said that although Greenfield may not have intended Smith to die, he could have drawn a reasonable conclusion that the use of the heroin could cause serious injury or death. “While Greenfield may not have known exactly what reaction Angela would have to the heroin, an overdose and death was one of the possibilities,” Klein wrote. “Therefore, the intent should be inferred.” The court also cited case law from various jurisdictions, including Texas, Maryland and Georgia, which have denied insurance coverage for heroin users or sellers. Klein said that heroin has no accepted medical use and that the sale of heroin meets the special criteria for the imposition of inferred intent. “Further, the knowledge of the dangers of this drug are so universal, the ravages and evils so real, that the intent to cause harm is apparent,” Klein wrote. “The results of this particular transaction, while unfortunate, were indeed foreseeable, expected and usual and, therefore, substantially certain.” The court cited a case from Georgia that compared using heroin to playing a game of Russian roulette. Klein agreed with the comparison. The majority also said there were compelling public policy reasons for denying the claim. “In effect, the courts are being asked to help provide insurance for heroin dealers,” Klein said. “While it is true that an insurer can put in its policy specific language to exclude such behavior, there should be no reason to do so.” Klein also noted that the court’s decision did not in any way signify that the Smiths did not have a cause of action against Greenfield, but rather, Minnesota Fire and Casualty does not have a duty to defend Greenfield in any action stemming from Smith’s death. The court remanded the case for entry of judgment in favor of Minnesota Fire and Casualty. In his dissent, Olszewski said he believed the majority improperly extended the concept of inferred intent. “Even if it could be applied in this case, the threshold requirements of intent and substantial certainty of injury must be met; and the rule is then only to be applied when the degree of certainty that injury will result is sufficiently great,” Olszewski wrote. “I do not believe Greenfield intended and was substantially certain that Smith’s death was forthcoming after he handed her the heroin. “Had the threshold requirements been satisfied, however, I further believe that the degree of certainty that Greenfield’s conduct would cause Smith’s death is not sufficiently great enough to justify inferring intent to injure as a matter of law.” Olszewski said he didn’t think the facts of the case were equivalent to cases where the criminal conduct was the sexual abuse of children. Olszewski said he did not agree with the majority that it was obvious that death would result from Greenfield’s supplying Smith with heroin. The judge cited 1998 testimony before Congress from Drug Enforcement Administration officials who said that 4,000 out of nearly 1 million heroin addicts die each year because of heroin. “It cannot be said … that because Greenfield intended that Smith use the heroin and was aware of the potential dangers, that he intended or was ‘specifically certain’ that her death would result,” Olszewski wrote. “Actually, the record only reveals that Greenfield intended and expected that Smith lock the house when she left.”

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