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Both sides won key rulings — but no definitive victory — in an insurance dispute focusing on whether a home owner’s policy covers a man who was sued for negligence after his mentally ill son shot a man while in a psychotic state. In his 30-page opinion in Strouss v. Fireman’s Fund Insurance Co., U.S. District Judge Legrome D. Davis rejected plaintiff Jay Strouss’ argument that an exclusion in the policy for intentional acts should not apply to him since he was sued only for negligently failing to recognize that his son posed a “clear and present danger” to the shooting victim. Instead, Davis found that if the son is a co-insured under the policy — an issue that remains in dispute — the intentional nature of the shooting would bar coverage for all insureds. Plaintiffs attorney Anthony J. Petrone of Cogan Petrone & Associates argued that a severability clause in the policy requires the intentional injury exclusion to be applied separately to each insured, rather than collectively to all insureds. In the alternative, Petrone argued that the severability clause rendered the intentional injury exclusion ambiguous, thereby triggering the rule that ambiguous provisions should be interpreted in favor of coverage. Davis disagreed, finding that the Pennsylvania courts have held that exclusions that apply to “any insured” are “joint, rather than several.” But Davis refused to grant summary judgment in the insurer’s favor after finding there was a genuine factual dispute over whether Daniel Strouss was a “resident” of his parents’ house at the time of the shooting. If Daniel Strouss — who was back from college for the summer — was not a “resident,” he would not be considered a co-insured and his intentional act would therefore not trigger the exclusion. According to court papers, Daniel Strouss was a student at Ithaca College and was living with his parents in Bucks County in June 2002 when he found his father’s gun in the garage and used it to shoot Eric Kassoway. Daniel Strouss was charged with attempted murder, aggravated assault and firearms violations. After a non-jury trial in March 2003, Bucks County Common Pleas Judge John J. Rufe found him guilty but mentally ill on all counts. Kassoway later filed suit in Bucks County naming only Jay Strouss as defendant, alleging that as the father of Daniel Strouss and the owner of the .380 caliber semi-automatic gun, he knew or should have known about the clear and present danger posed by his son, and that he was negligent in failing to safeguard the gun. Jay Strouss later filed suit against Fireman’s Fund seeking a declaratory judgment that it must defend and indemnify him in Kassoway’s suit. Fireman’s Fund’s lawyers — Jeffrey B. McCarron and Kathleen Carson of Swartz Campbell — moved for summary judgment, arguing that Daniel Strouss was a resident of his parents’ home and was therefore an insured, and that the policy excludes coverage for bodily injury which is expected or intended by one or more insureds. In response, Petrone also moved for summary judgment, arguing that since Jay Strouss is the only named defendant, the suit alleges only negligence, which constitutes an “occurrence” triggering coverage. Petrone also argued that the intentional injury exclusion should not be applied to bar coverage for Jay Strouss since the policy also includes a severability provision. On that point, Davis ruled in favor of the insurer, finding that while the Pennsylvania Supreme Court has not yet addressed the question, the Superior Court has. In McAllister v. Millville Mutual Insurance Co., the Superior Court upheld a denial of coverage where one of five insureds set fire to a building, holding that the innocent co-insureds were properly denied coverage under an intentional acts clause. Davis found that one of his Eastern District colleagues also addressed the issue in Michael Carbone Inc. v. General Accident Insurance Co. and found that “the bulk of the courts which have addressed the issue have held that an exclusion worded ‘any insured’ unambiguously expresses a contractual intent to create joint obligations and [to] preclude coverage to innocent co-insureds,” despite the existence of a severability clause in the policy. In so ruling, Davis found, the Michael Carbone court reasoned that permitting the severability clause to modify the language “any insured” in an exclusion would render meaningless the term “any” and its clear implications. On the other hand, Davis said, the court found that reading the exclusion as creating a joint obligation despite the existence of the severability clause does not render the severability clause meaningless, as it would modify other exclusions and provisions that do not contain express language applying to “any” or “all” insureds. Petrone cited numerous decisions from federal and state courts outside Pennsylvania that interpret severability clauses in insurance policies as individualizing the application of an intentional injury exclusion. Those courts, Petrone argued, reason that applying the exclusion to all insureds under the policy would render the severability clause meaningless, as the policy would not be applied separately to each insured. Davis agreed that “the sheer volume of conflicting judicial interpretations concerning the interplay between an exclusion applicable to ‘any insured’ and a severability clause provides some evidence of ambiguity.” Nonetheless, Davis said he was “not convinced that the Pennsylvania Supreme Court would overrule McAllister and find that the severability clause renders the ‘one or more insured’ language … ambiguous as a matter of law.” Instead, Davis found that McAllister “comports with critical commentary on the scope and purpose of severability clauses within insurance contracts.” As a result, Davis found that, under Pennsylvania law, “the obligations in the intentional injury exclusion are joint, rather than several.” But in a victory for the plaintiff, Davis granted summary judgment on the issue of the duty to defend, and ruled that Fireman’s Fund “must continue to provide plaintiff with a defense in the underlying civil action until the resolution of whether Daniel Strouss is a ‘resident’ of plaintiff’s household within the meaning of the intentional injury exclusion.” And Davis denied summary judgment to both sides on the issue of whether Daniel Strouss was a resident of his parents’ home. Davis said he simply didn’t have enough evidence from either side to determine whether Daniel Strouss’ “factual place of abode” was his parents’ home in the summer of 2002. Jay Strouss provided an affidavit that said his son lived away from home the previous summer and was in Ithaca, N.Y., for the school year that ended just one month before the shooting. But defense lawyers filed documents from the criminal case that showed police had listed the Bucks County address as Daniel Strouss’ “permanent address.” Davis found that “neither party has demonstrated with clarity the factual circumstances surrounding Daniel Strouss’ visitation with his parents in the summer of 2002, the time of the shooting, including the duration of this visitation period.” The record, Davis noted, “does not indicate whether Daniel Strouss took steps to establish residence in New York, such as applying for and obtaining a New York driver’s license, establishing a New York bank account, and keeping important personal items in New York during his vacation period. Nor does the record document whether he received mail at his parent’s house, whether he was financially emancipated from his parents, whether he returned home during the school year, the frequency and duration of such return trips, and other significant contacts with his parent’s household.”

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