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Does an insurance carrier need to provide coverage for a man who was accidentally shot while intervening in a murder-suicide?

That question is one the Pennsylvania Supreme Court has agreed to consider.

On July 10, the justices granted allocatur in Erie Insurance Exchange v. Moore to address a recent state Superior Court decision saying that an allegedly accidental shooting during a scuffle with a man who had just killed his ex-wife and planned to kill himself counted as an “occurrence” that Erie Insurance needed to provide coverage for. The justices also agreed to consider whether that holding by the Superior Court conflicted with prior precedent and public policy that liability insurance should not cover damages that result from “evil or illegal conduct.”

Bigi & Walsh attorney Herman Bigi, who is representing the man who was shot, said he agreed with the Superior Court’s analysis.

“There are factual issues presented here,” he said. “It should be a jury question, not a question of law.”

Erie is seeking an declaration that it does not have to defend or indemnify the estate of Harold McCutcheon Jr., who in September 2013 fatally shot his ex-wife Terry McCutheon, before he shot her then-boyfriend, Richard Carly, in the face, and then fatally shot himself. According to a complaint Carly later filed against Harold McCutcheon’s estate, the shooting happened accidentally while the two were struggling over the gun.

In November, the three-judge Superior Court panel unanimously ruled that, because Carly alleged that the shooting was accidental, it fit the definition of “occurrence” in the homeowner’s policy that McCutcheon had through Erie, which defined an occurrence as “an accident including continuous or repeated exposure to the same general harmful conditions.”

Superior Court Judge Carl Solano, who wrote the court’s precedential opinion, said the court was bound by what Carly alleged in the complaint.

“As the trial court observed, it is impossible to ‘know with certainty what McCutcheon Jr.’s state of mind was that night,’ and it may be that McCutcheon actually intended to shoot Carly in the face. But Carly’s complaint alleges otherwise,” Solano said. “The allegations make clear that McCutcheon went to his former wife’s home to kill her and himself—not Carly; indeed, they make clear that Carly’s arrival at the home was totally unplanned and unexpected. Moreover, there is nothing in the complaint to suggest that McCutcheon knew that Carly was his ex-wife’s boyfriend and would therefore have had that motivation to deliberately shoot him.”

According to Solano, Carly contended that he had arrived at Terry McCutcheon’s house after she had been killed. The complaint, Solano said, alleged that, after ringing the doorbell, Carly tried to open the door, but Harold McCutcheon grabbed him and pulled him into the home. Carly alleged McCutcheon had a gun and was “screaming, swearing, incoherent and acting ‘crazy.’” The two fought and, during the scuffle, McCutcheon “tossed” up his arm that held the gun, “thereby recklessly shooting off various rounds in and about the room,” one of which hit Carly.

Erie contended that McCutcheon’s conduct was deliberate, and the trial court ultimately determined that the carrier should not have to provide coverage. The lower court, according to Solano, said “the prospect of injury from firing a gun during a physical struggle over that gun was … plainly and reasonably anticipated.”

However, Solano said the court’s decision shouldn’t hinge on “abstract notions about the foreseeable results of gun violence,” but rather on the specific facts on the case.

“Not all injuries from gun violence are intentional,” Solano said. “Firearms are dangerous instrumentalities, and although their danger makes the risk of potential harm foreseeable, the question whether an insurance policy covers injury from a gun does not turn merely on whether harm should have been ‘reasonably anticipated.’”

Allan Molotsky of Fowler Hirtzel, who is representing Erie, did not return a call seeking comment.