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A defendant in a personal injury case who crept up behind his friend and struck him in the testicles—possibly rendering that friend infertile for life—is not entitled to indemnity under his family’s homeowner’s insurance policy, the state Superior Court has ruled.

In American National Property and Casualty v. Hearn, a three-judge panel affirmed Monday a Montgomery County court’s determination that Brandon Hearn cannot be indemnified because his family’s insurance policy contained an exclusion of coverage in matters of “expected or intended acts.”

Judge Kate Ford Elliott said the striking, which Hearn had described in court as a “ball tap” done only to inflict temporary pain on his friend, Clayton Russell, was clearly intentional.

“Hearn’s act of hitting Clayton in the groin was clearly intentional. Hearn snuck up behind Clayton while his back was turned and hit him in the groin area with his forearm,” Ford Elliott wrote. “Hearn testified that he only meant to cause Clayton momentary discomfort; however, the policy excludes coverage of bodily injuries resulting from intentional acts ‘even if the actual injury or damage is different than expected or intended.’”

The incident occurred Sept. 15, 2006, when Hearn and Russell were teenagers. According to Ford Elliott, the two were in Russell’s basement with a group of friends playing the video game “Dance Dance Revolution.” The game requires the player to face the television and step on a corresponding floor pad when given instructions.

While Russell was distracted by the game, Hearn approached Russell from behind and hit him in the testicles with his forearm. Ford Elliott said Russell experienced immediate pain that intensified later that night.

The following day, Ford Elliott said, Russell’s mother, Stacey Marshall, took him to the emergency room for severe pain and swelling of the groin area. Russell was diagnosed with testicular torsion and underwent emergency surgery.

“Diagnostic tests have revealed that [Russell] may be permanently infertile as a result of having been struck in the groin,” Ford Elliott said.

Russell and his mother filed the underlying suit in 2008 against Hearn and his parents for negligence, assault, battery, both negligent and intentional infliction of emotional distress, and punitive damages, among other claims.

According to Ford Elliott, American National Property and Casualty Cos. (ANPAC) filed a declaratory judgment complaint naming the Hearns, Russell and Marshall as defendants, in which it claimed that the damages Russell and Marshall sought were based on intentional acts and therefore not covered by the policy.

The court granted summary judgment in favor of ANPAC and Russell and Marshall appealed.

In upholding the trial court, Ford Elliott pointed to the 2002 Superior Court decision in Erie Insurance Exchange v. Fidler, a case where an insured’s coverage was excluded despite the insured injuring the plaintiff by throwing him against a wall and into a desk.

“As a rule,” Ford Elliott said, “general liability policies do not cover intentional torts and/or criminal acts, and must be clearly and unambiguously written to provide such coverage.”

The plaintiffs’ complaint alleged that Hearn’s assault was unprovoked and, consistent with those allegations, Ford Elliott said, Hearn testified that his actions were intentional.

“According to Hearn, he snuck up behind [Russell] and made a ‘ball tap motion,’ putting his hand forward as though he were going to strike Clayton in the testicles,” Ford Elliott said. “Hearn then had second thoughts and hesitated, but his friend Greg nodded his head yes. At that point, Hearn hit [Russell] in the testicles with his forearm.”

The plaintiffs argued that coverage exclusions only apply when the insured intends to cause the same general amount of harm as that which was actually inflicted, according to Ford Elliott, citing the Superior Court’s 1986 ruling in United Services Automobile Association v. Elitzky.

In that case, the court held an exclusionary clause applied only to injury or property damage intended to be caused by the insured, according to Ford Elliott, and held that exclusionary clauses are subject to alternate interpretations.

However, the Hearns’ policy specifically stated the exclusionary clause applies “even if the actual injury or damage is different than expected or intended,” Ford Elliott said.

A call to John Lachall, the Hearns’ lawyer, was not returned.

Steven Cherry, the attorney representing ANPAC, said he was pleased with the ruling and the court construed the policy correctly.

Keith McWhirk, the attorney for Marshall and Russell, said the Superior Court “missed the chance to make the law reflect what real life is: We had a group of boys in a basement goofing around, and one of them got hurt.”

A snowball fight or even a game of football, McWhirk said, can cause injuries that may not be covered by insurance policies with similar exclusionary clauses.

Additionally, McWhirk said while the underlying case is still pending, compensation for Russell’s injuries may be difficult to come by.

“Hearn is left without any insurance to cover the verdict. We can get a judgment,” McWhirk said, however, “it doesn’t appear that the Hearns have assets that would satisfy a judgment.”

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI.

(Copies of the 14-page opinion in American National Property and Casualty v. Hearn, PICS No. 14-0712, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •