whether a party can plead into an insurance coverage merely by alleging that the insured was intoxicated when he engaged in what can only fairly be described as a vicious and intentional assault there is no reasonable way to look at the underlying complaint in this action and conclude that dr moments conduct in chasing maria iacono jumping on her car repeatedly aiming a forty five at her head repeatedly pulling the trigger fixing the misfire when that gun misfired three times breaking through her car window and shooting at her as she drives away as an accident  decided by pennsylvania courts not eastern district case interpret in pennsylvania law are the sted and hassen are cases the only cases cited by anybody here from pennsylvania and in both of those cases judge chance your question you had very specific and detail allegations of a lack of conscious awareness and an inability to formulate intent stidham is the main case in this area of the law in that case this gentleman was so intoxicated that he was in what was alleged to be an alcoholic stupor when he when he shot these folks the allegations were he didn't even remember what he was doing he had a history of these kind of you know alleged alcoholic blackouts if you will and so the allegations in that case were specifically that he amazing amount of dexterity judge this was not some you know freak out where god forbid someone just assault someone you have all these bar fight cases things like that this is a prolonged very vicious assault that took a lot of xterra to run jump chase fix misfires make sure the gun shooting go after her again in there to be fair the allegation in the complaint and there are no allegations at all with respect a lack of ability to formulate intent lack of conscious awareness there is a  here that he was cognitively impaired whatever that means and we know that under pennsylvania law cognitive impairment does not negate intent and we've talked in district court cited the bomb hammer's case where you had a raging delusional schizophrenia who goes on a shooting spree well here here don't you have i mean a man commits suicide so obviously there is something badly amiss with his mental state and you have on top of that  issue a fact that needs to be resolved how can we say that a suicidal highly intoxicated person is more in control then somebody who claims to have blacked out later as was the case well understood judging and that's why we're sort of limited here we have to look solely at the allegations in the complaint and you know with respect judge i guess we could differ about whether the actions undeniably exhibited by this man demonstrate high intoxication and you know to the extent that that's a fact question fair enough but we have to look at the allegations in this complaint and they do not measure up to anything that any pennsylvania court has ever said is sufficient  negate intent you simply can't say that by alleging intoxication and you know just as a double edged sword i mean you know there is clearly an attempt here to plead insurance coverage that are trying to get within this policy and having set about through to undertake that task there are standards for that and the standards are you have got to you've got to say something about this man's ability to formulate intent since we're focused on the allegations in the complaint you know your position is that to as you put it to plead into coverage a plaintiff would have to say something like the assailant was incapable of forming intent because they were so intoxicated there would have to be sort of in those words no magic words at all judgments didn't use different language passing or use different language but there's got to be some fact because this is about fact that you know they have to plead as a fact not only that he was drunk or somewhat cognitive all purply couldn't formulate intent when everything else in that complaint suggests this was intentional they start off by alleging intentional infliction of i'm certain they have to intend the specific harm that results for an intentional act exclusion absolutely judge that is true he cannot merely intend his actions he's got to intend the harm for intentional acts exclusion so how far does that logic reach to see this there have to be proof that you know he wasn't just trying to kill or he was trying to scare so manage she'd be emotionally crippled the rest of our life i don't think so judge i don't think you'd have to plead that level of specificity but to you know the cases have been out there in a state in which the side of more than two decades ago the case law is very clear about what you have to play and i think and so you have to you know drug meets they form things are absolutely judge and the only third circuit cases of relevance here are cases like that where there is no indication you know it's the cop with the police officer think that's right judge i mean i think if you look at the allegations in the complaint there's no reasonable way and that's what we're trying to assess what could potentially come within the coverage of this complaint there's no reasonable way to say what he did was an accident i think at the end of the day that's right i mean that if it comes down to that you can say that what he did here was an accident and so you know to the extent that someone's driving down a road drunk and having just been through this traumatic situation and you know injure somebody that's right i think you err on the side of the insured in that case apps and there are cases like that the third circuit cases of relevance even where you have cases the camera case of third circuit case where you know there's a bar fight there's a question about this gun goes off and there's a question about whether it was a you know the guys were joking around or whether it was intentional in the case like that where there is a reasonable allegation that it might be an accident i think that's right you got to err on the side until discovery can flush out what happened there's no reasonable interpretation of repeatedly pointing a gun at someone said pulling tribe the trigger you know i don't know we were going to but it's just our view would look on the surface to be pretty aggressive intentional assaultive behavior it's same sort of thing you got going here in that case you know the pennsylvania courts say well the red zone how how you make that distinction we think there are two we think there are two very critical distinctions judge between state in this case the first as i mention is the allegation and we are bound by those i mean this is plain and spartan to prove that this is an accident th grant of coverage it's not an exclusion so it's their burden to demonstrate coverage under this policy and you do that through the allegations in the complaint stood up tells you what the allegations are that will get you past this this type of defense the second critical distinction instead of is that it was interpreting an that's an exclusion a burden is on the insurer to demonstrate so any any any reasonable doubt if you will judge has to go against the insurer in that case not true with a grant of coverage it's their obligation to meet the pleading standard because that's how we determine if there is coverage so you have totally respect them and if the they've met they mentioned those in the complaint and that's enough to overcome your argument that this is just disconnected emotional injury with yours well the response judge is again you know we have to focus on what the complaint actually says discovery they certainly said that she was injured when she ran into that tree complaint never says that never says anything close it says she crashed into a tree and when you look at every allegation of physical trauma physical pain in here it follows and is made in conjunction with allegations of emotional harm and it repeatedly i think on six or eight occasions calls these physical injuries physical manifestations of the think paragraph forty three judge there are there is no doubt that they referred to those things but i always and i'm sorry and emotional and physical trauma on paragraph thirty six yeah if you look at the structure of this complaint everything that this gentleman did to cause this harm is associated with fear and anxiety and the things that flowed from that they say that in and if you look for every specific physical injury identified gastrointestinal injuries bound bladder dysfunction headaches etc they all are alleged to come from fear there are four coupe four counts against the state of dr moment here two are intentional negligent infliction of emotional distress clearly emotional injuries negligence the allegation of negligence is interesting they say that he had an a duty not to inflict bodily injury and they say he preached that thirty not by shooting or hitting her in a specifically say he never did that he never shot her the allegation is that he breached his duty of negley in negligence law by placing her in fear by pointing a gun at her and pulling the trigger these are emotional injuries that lead to physical injuries the allegations are that she was over pennsylvania law of stood among one hand in the martin line of cases on the other hand in martin you have a case where a gentleman deliberately drive his truck into his ex wife injures her and her property  right it is and a district court in that this state trial judge found that in the spirit court reversed and said it doesn't matter that allegation of intoxication could not overcome intent even though his allegation the intoxication and was much higher than it was here addressing exactly the same exclusion that we have at issue here unlike stethem in that court said and it said while intoxication may prevent premeditation quote it will not prevent the formulation of the general intent necessary for the commission of an assault battery counsel i will start with the issue with respect to the homeowners complaint since the apple e agrees with the district court decision as to the other aspects of the coverage issue the limited issue of the homeowner's policy we believe the coverage should appropriately be provided as a consequence of the fact that the district court misinterpret the complain as alleging only emotional injuries and as the court has touched on now i'll point out some others throughout the complaint there are pleadings in claims of physical injury and physical trauma on paragraph thirty six physical trauma is it enough the way you alleged and i mean i understand their assertion to be all the complaining specificity is directed at emotional trauma and then in a couple of places there's a catch all assertion that she suffered physical trauma as well but there's no way to say that the trauma was different or separate other than a manifestation of physical symptoms flowing from the emotional distress and therefore they've only alleged freestanding emotional distress where can you point us to language your complaint where you're saying she hit the tree and that resulted in these injuries and the fact that she cry her car into a tree as part of this entire alter cation is a physical impact and that's set forth in paragraph thirty one of the complaint and the actual hours it is you haven't said anything about injury from that that's what i'm trying to  complaint i know you talk about the tree their argument is they're asking you to assume to make some inference that because she hit a tree with the car she must have been injured from that and that's what they must have been talking about when they later say physical trauma even though that physical trauma surgeon falls immediately after talking about the emotional stress why are they wrong because it doesn't it's not included as part of the allegation of emotional injury if you read through the complaint there's separate and distinct allegations of physical injury in paragraphs thirty six forty three forty five eighty two eighty six eighty eight throughout the complaint where there are allegations of physical injury and of emotional injury but certainly not within the context that it's been argued that those physical injuries are only as a consequence of the emotional injury there are specific allegations and i paragraph eighty six physical pain paragraph eighty eight that the plaintiff suffered physical damage in those allegations are separate apart from the psychological or emotional aspect of the injury perhaps not as clear as it may have been but certainly with the construction of pleading in this context that as this court's previously held and false which manufacturing versus travelers that those factual allegations of the complaint or to be liberally construed in favor of the insured or coverage which would be the case here well i'm sorry i was just going to process wrong or second can you point that i've looked at those disaffect paragraphs in the complaint and just taken as an example  caused tremendous emotional and physical trauma as a result of dr moans and the goods in pencil actions what are we how does the physical trauma tie to some physical injury other than an enemy be sufficient i just want to make sure i understand am i am i correct in understanding that you're saying well we said physical trauma here and there for you because you have to literally construe you've got to read that i mean there was physical injury from the car hit the tree that's what that's what i mean and candidly your honor the may not be as clear as it could or should have been in the pleading however the allegation of the physical trip the physical trauma with the tree the car crash into the tree is a consequence of these actions and the allegation of physical injury following from that is throughout the complaint for example if you go to that we can specifically talk about the negligence count you don't need to i just need to know if like if i got your legal position you're sure that we're viewed as physical trauma you're talking about she hit a tree consequence of dr mehlman actions and her attempt to escape or flee she crashed into the tree in the factual section the complaint and then subsequently in the specific counts including the count for negligence there's an allegation that the negligent and careless conduct of the defendant dr melman caused her physical pain and physical injury and physical harm pending this court's decision we don't have a lot of rationale for that other than perhaps the truck or believe there was a better chance to get the case settled and not have to go through a two weeks while i case is being held like  court level the issue of intent and whether or not the intoxication negated that intent certainly that's what i believe the list of cases like the state in case and cases that have been decided previously in this jurisdiction in the district court have indicated the effect of insureds intoxication must be considered by the fact finder and that question of fact turns on credibility so that's an issue that should and the whole thing even though the verdict for the plaintiff won the not coverage point exonerates quiet and he went all out completely and got a no cause or i'll never forget so i mean i'm just trying to figure out how would you try this oh you are there is certainly was or was cruelly liability there is certainly liability against this defendant there is counsel always been found in this case the beginning who's appointed by state farm to defend this case on a reservation of rights as you see in most of these cases and as your honour's pointed out that's an issue which i believe would have to be addressed in the tr the legion of cases have asserted that issue of whether this person is intoxication clearly at point two one although your honor i don't remember the time the point one five was not intoxicated by doing or one point one i was not intoxicated but point to the defendant may be liable is could be true at this point your honor oh least where the current proceeding stand there is a duty to defend on state farm and that issue of intoxication would be submitted if depending on where we come back from this issue of coverage into two and only two categories and that they're mutually exclusive one is intentional conduct and the other is accidental conduct and therefore if intent is negated by intoxication ipso facto we are in the realm of the accidental and i'm wondering if you've got some authority for that which seems to be an underlying presumption or premise in your argument maybe i've misunderstood your argument i am not trying to turn your question if i have an underlying is there some case in other words that it occurs to me that it's possible that the universe of human behavior has more than those two things in it and that indeed if the term accident means as the pennsylvania last seems to say it means something that has an element of fortuity to it that you could say a lot of things about dr melbourne's behavior in the events on that day but that they were an accident seems in ordinary parlance a bit of a stretch you know an accident is when you attempt to kill you repeatedly that's not what ordinary people think of as an accident i think you are becomes an accident i think if one accepts what seems to be your premise which is he was drunk it could have been intentional and the only other kinds of things in the world to describe human behavior when they're not intentional are accidents so that's maybe not artfully form but that's my question you have authority for the proposition that if not intentional therefore accidental is the law i think there are a couple of responses to your question your honor that i would submit number one we know for a fact that ms iacono was not someone who significant relationship was not really a target so to speak the person she was who was so happened to be in the wrong place at the wrong time and certainly we're inferring or kind of facts and says you don't look at this from the victim's perspective i mean it's pretty clear on that right i agree on ok so that that doesn't seem to carry much weight i mean from her may have been a real bad piece a lot for her to be where she was once you was but that is your take on that seems contrary to martin i agree i was i apologize i was trying to get through the point which was or which is we are assuming by virtue of how we view this kind of conduct socially that it must have been something horrific intentional except for one there's the issue of intoxication that we've already talked about but we don't know what this man's intent if any was even if we put intoxication aside for a moment whether his intent was to to scare her to find his girlfriend who he was on the outs with miss out or who wasn't home certainly guns accidently misfire accidentally discharge certainly she was not shot so well you're not you're not suggesting that is pointing a gun at her was an accident i mean in this course of events to whatever was in his mind whether he meant killer or not if it was it was some kind of intent was going on there whether it's legally the kind that would pull him in or out of coverage is a different issue but there sure is is that fortuitous conduct i mean or is it it's it appears to be motivated behavior not accidental but wolf we put aside intoxication how motivated by what is unclear given obviously is underlying mental state but he clearly was in an agitated state and it's played in the complaint i think the facts support it that he was sort of irrational in an agitated state and we don't know what happened with this gun whether that was accidental or otherwise in addition i would point out your honor that and your honor has referenced the court's evaluations of the term accident but state farm doesn't the fine accident there are references to occurrence accident does this fall under that definition the fact that they don't define it i think under the construction principles makes it such that should be more broadly defined in terms of coverage and secondly states form in their briefs take the position that accident is defined as in black's law dictionary which is on expected occurrence to the victim as opposed to the oh i'm sorry you're right estate looking at the complaint and with regard to your questions about the allegations of physical injury i think sequentially the way it's alleged does great coverage for physical damage in paragraph thirty that states that the vehicle crashed into a tree when you get to paragraph thirty six it's all inclusive language of the as a result of dr melman is negligent and intentional actions there was tremendous physical trauma we know that trauma is the find has produced by son physical injury and under a duty when we are examining a duty to defend we have to look at the allegations of the complaint we have to look at what they reasonably tree i just don't think that's a fair interpretation of the complaint if you look at what it says the only physical injuries listed here and i won't read them again but they are very clearly specified the physical injuries in this case are very clearly specified all called physical manifestations of emotional harm the complainant is very clear on that i'd submit we were talking past each other it sounds like because you know it doesn't say paragraph thirty six physical manifestation of the actual it says just what you heard quoted three injury they specify what they are where they do that only where in this complaint they say physical trauma means manifestations of physical injury associated with the emotional yeah i unfortunately don't know all of the complaint in front of a judge but there's about eight occasions where they specifically understand what you're saying judgment you know just to say that it's physical injury or physical trauma when that term is always used after in conjunction with emotional harm in a complaint that pleads that every action was intended to cause fear and anxiety i don't think that  know a fair interpretation to say that they're alleging separate and distinct physical injuries here that term never appears unless it's after any conjunction with emotional harm you know if you thirty second thank you or are with respect to judge jordan's point that negating intent even if intoxication does that we don't think it does that does not make a accident and does not make intentional conduct an accident things could be malicious for instance at a minimum did here was malicious it's not fortuitous it's not a mishap so even if you get past intoxication your honour's we don't think this was an accident the trauma to get back to the point they say it means it's only means physical injury that's just not true