J.A19043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATIONWIDE PROPERTY AND CASUALTY : IN THE SUPERIOR COURT OF

INSURANCE COMPANY, : PENNSYLVANIA

:

v. :

:

JOHN S. SCHLICK, JON R. SCHLICK, :

DENISE L. SCHLICK, AND TAMMY :

BULGER, ADMINISTRATRIX OF THE : 

ESTATE OF MARSHALL D. CURL :

:

APPEAL OF: TAMMY BULGER, :

ADMINISTRATRIX OF THE ESTATE OF :

MARSHALL D. CURL : No. 1909 WDA 2013

Appeal from the Judgment Entered November 22, 2013

In the Court of Common Pleas of Erie County

Civil Division No(s).: 10553-2013

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2014

Appellant, Tammy Bulger, administratrix of the estate of Marshall D. 

Curl (“decedent”), appeals from the order of the Erie County Court of 

Common Pleas entering summary judgment in favor of Appellee, Nationwide 

Property Casualty Insurance Company. Appellant asserts the trial court 

erred in concluding that a “criminal acts” exclusion in Appellee’s 

homeowner’s policy barred coverage for her potential claims against John S., 

 

*

Former Justice specially assigned to the Superior Court.
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Jon R., and Denise L. Schlick (“John S.,” “Jon R.,” and “Denise L.,” 

respectively, “Schlicks,” collectively).1 We affirm. 

At the times relevant to this appeal, Appellee issued a homeowners 

policy (“Policy”) to Jon R., under which Jon R.’s wife, Denise L., and their 

son, John S. were also insured. On September 18, 2012, John S., shot and 

killed the decedent, who was a visiting the Schlick’s home.2 The firearm 

involved in that incident belonged to Jon R. The Commonwealth charged 

John S. with, inter alia, involuntary manslaughter. On February 4, 2013, 

John S. pleaded guilty to that charge and was sentenced to a term of 

incarceration.

Meanwhile, Appellant was appointed administratrix of the decedent’s 

estate and submitted a claim under the Policy. The Schlicks also requested 

coverage under the Policy if Appellant filed an action against them. 

 

1 The Schlicks, who were named as codefendants in Appellee’s action for 

declaratory judgment, submitted a letter advising this Court that they intend 

to join in the brief filed by Appellant. However, there is no record evidence 

that the Schlicks filed a notice of appeal.

2

In their motion for summary judgment, Appellee referred to John S. as an 

adult who resided with his parents. Appellant did not challenge that 

characterization of John S. 

We also note we have gleaned the above summary of the events from 

the pleadings in this case. None of the parties described the specific 

relationship between the decedent and the Schlicks. 
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On March 4, 2013, Appellee filed a complaint for declaratory judgment 

against Appellant and the Schlicks. According to Appellee, all possible claims 

for the incident would fall under Coverage E or F of the Policy, which stated: 

COVERAGE E — PERSONAL LIABILITY

We will pay damages an insured is legally obligated to 

pay due to an occurrence resulting from negligent personal 

acts . . . . 

* * *

COVERAGE F — MEDICAL PAYMENTS TO OTHERS

We will pay the necessary medical and funeral 

expenses incurred within three years after an accident 

causing bodily injury. . . . This coverage applies as 

follows: 

1. to a person on the insured location with consent 

of an insured

Appellee’s Compl., 3/4/13, ¶¶ 20, 22 (quoting Policy at G1-G2). However, 

Appellee asserted all potential claims were barred by the Policy’s “criminal 

acts” exclusion, which stated:

1. Coverage E — Personal Liability and Coverage F —

Medical Payments to Others do not apply to bodily injury 

or property damage:

* * *

b) caused by or resulting from an act or omission 

which is criminal in nature and committed by an 

insured

This exclusion 1.b) applies regardless of whether the 

insured is actually charged with, or convicted of a 

crime.
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Id. at ¶ 23 (quoting Policy at H1) (bold in original, bold and italics added for 

emphasis).

Appellant filed an answer and new matter admitting “John S. Schlick 

engaged in negligent and reckless conduct” that constituted a crime. 

Appellant’s Answer & New Matter, 4/15/13, at ¶ 27. Nevertheless, she 

asserted the Policy provided coverage. Id. at ¶¶ 29, 33. 

The parties subsequently filed the following motions: Appellant’s July 

25, 2013 motion for judgment on the pleadings; Appellee’s July 31st motion 

for summary judgment; and the Schlicks’ August 12th motion for judgment 

on the pleadings.3 The trial court, on November 22, 2013, granted 

Appellant’s motion for summary judgment and denied Appellant’s and the 

Schlicks’ motions for judgment on the pleadings. In its accompanying 

opinion, the court concluded that the criminal acts exclusion applied to each 

of the Schlicks and that Appellee had no duty to indemnify or defend claims 

based on the shooting of the decedent. Trial Court Op., 11/22/13, at 5, 8. 

Appellant filed a timely notice of appeal. The trial court did not order 

the filing of a Pa.R.A.P. 1925(b) statement.

Appellant presents the following questions on appeal:

Whether the accidental shooting of [the decedent] by John 

S. Schlick constituted an occurrence as defined by 

[Appellee’s] Homeowner’s Policy?

 

3 The Schlicks filed their answer to the complaint on July 29, 2013, denying 

Appellee’s claim that no coverage was due. 
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Whether the crimes to which John S. Schlick pled guilty fall 

within the criminal acts exclusion of [Appellee’s] 

Homeowner’s Policy?

Whether the criminal acts exclusion of [Appellee’s] 

Homeowner’s Policy bars coverage under the policy of Jon 

R. Schlick and Denise L. Schlick?

Appellant’s Brief at 5.4

Our review of an order granting a motion for summary judgment is as 

follows. 

We view the record[5] in the light most favorable to the 

nonmoving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the 

moving party. Only where there is no genuine issue as to 

any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary 

judgment be entered. Our scope of review of a trial 

court’s order granting or denying summary judgment is 

 

4

In the trial court, Appellant also argued that Appellee’s declaratory 

judgment action was “premature” because she had yet to file a complaint 

against the Schlicks. See Appellant’s Answer & New Matter at ¶ 38. In this 

Court, Appellant has not argued that the present action was premature or 

that the trial court erred in failing to consider whether Appellee had a duty to 

defend. 

5

Pennsylvania Rule of Civil Procedure 1035.2 permits a party to move for 

summary judgment “[a]fter relevant pleadings are closed ” and “whenever 

there is no genuine issue of any material fact as to a necessary element of 

the cause of action or defense which could be established by additional 

discovery or expert report[.]” Pa.R.C.P. 1035.2(1). 

Because Appellee filed its motion for summary judgment after the 

close of pleadings, but before the taking of discovery, the record before this 

Court consists of the pleadings only. See Pa.R.C.P. 1035.1 (defining 

“record” for purposes of summary judgment as including any pleadings, 

depositions, answers to interrogatories, admissions, and affidavits, and 

signed expert reports). 
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plenary, and our standard of review is clear: the trial 

court’s order will be reversed only where it is established 

that the court committed an error of law or abused its 

discretion.

State Farm Fire & Cas. Co. v. DeCoster, 67 A.3d 40, 45 (Pa. Super. 

2013) (citation omitted).

[T]he interpretation of an insurance contract regarding the 

existence or non-existence of coverage is generally 

performed by the court. The interpretation of an insurance 

contract is a question of law, our standard of review is de 

novo, thus, we need not defer to the findings of the lower 

tribunals. . . . Our purpose in interpreting insurance 

contracts is to ascertain the intent of the parties as 

manifested by the terms used in the written insurance 

policy. When the language of the policy is clear and 

unambiguous, we must give effect to that language. 

However, when a provision in the policy is ambiguous, the 

policy is to be construed in favor of the insured to further 

the contracts prime purpose of indemnification and against 

the insurer, as the insurer drafts the policy and controls 

coverage.

Donegal Mut. Ins. Co. v Baumhammers, 938 A.2d 286, 290-91 (Pa. 

2007) (citations and quotation marks omitted). 

“Words of ‘common usage’ in an insurance policy are to be construed 

in their natural, plain, and ordinary sense, and a court may inform its 

understanding of these terms by considering their dictionary definitions.” 

Allstate Fire & Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1172 (Pa. Super. 

2011). “[C]ontractual terms are ambiguous if they are subject to more than 

one reasonable interpretation when applied to a particular set of facts.” 

Spece v. Erie Ins. Group, 850 A.2d 679, 682 (Pa. Super. 2004) (citation 

omitted). However, “[a] court cannot torture the [policy] language to create 
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ambiguities where none exist.” Swarner v. Mut. Benefit Group, 72 A.3d 

641, 645 (Pa. Super. 2013) (citations and quotation marks omitted), appeal 

denied, 85 A.3d 484 (Pa. 2013). 

“Exclusionary clauses generally are strictly construed against the 

insurer and in favor of the insured.” Id. “[A]n exclusion from liability must 

be clear and exact in order to be given effect.” Prudential Prop. & Cas. 

Ins. Co. v. Sartno, 903 A.2d 1170, 1177 (Pa. 2006). The insurer bears 

the burden of establishing an exclusion applies. Spece, 850 A.2d at 682.

In the instant case, there is no dispute in this appeal that John S., Jon 

R., and Denise L. were insured under the Policy.6 Additionally, the 

decedent’s death constituted “bodily injury” that occurred on the covered 

premises within the meaning of the Policy. See Policy at G1. We also 

presume the decedent was on the premises with the consent of the Schlicks. 

Appellant first argues the shooting of the decedent constituted an 

accident or occurrence under the Policy. Appellee does not dispute this 

contention, but asserts that even if coverage was triggered by an accident or 

occurrence, the criminal acts exclusion barred recovery under the Policy. 

Accordingly, we will presume, without deciding, that the events leading to 

the decedent’s death constituted an accident or occurrence triggering the 

possibility of coverage. 

 

6 The Policy stated “INSURED” means “you [the named insured, Jon R. 

Schlick] and the following persons if residents of your household at the 

residence premises: . . . a) your relatives[.]” Policy at G1. 
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Appellant next argues John S.’s actions did not trigger the criminal 

acts exception. She acknowledges the Policy bars coverage for bodily injury 

“caused by or resulting from an act or omission which is criminal in nature 

and committed by an insured.” See Policy at H1. Nevertheless, she 

suggests the phrase, “an act . . . which is criminal in nature,” only applies to 

intentional acts. In support, she asks this Court to adopt the reasoning and 

policy considerations in Swift v. Fitchburg Mut. Ins. Co., 700 N.E.2d 288 

(Mass. App. Ct., 1998), and Tower Ins. Co. v. Judge, 840 F.Supp. 679 (D. 

Minn. 1993). No relief is due. 

Instantly, the criminal acts exclusion employs the phrase “an act. . . 

which is criminal in nature.” Webster’s Dictionary defines “criminal” as: 

1 : relating to, involving, or being a crime . . . 2 : 

relating to crime or to the prosecution of crime . . . 3 : 

guilty of a crime; also : of or befitting a criminal . . . 4. 

DISGRACEFUL[.]” 

Webster’s Ninth New Collegiate Dictionary (1987) at 307. Under the Policy, 

the nature of the act triggering the exclusion is not otherwise qualified. 

Additionally, the Policy contained a separate intentional acts exclusion, which 

bars coverage for bodily injury “by an act intending to cause harm done by 

or at the direction of any insured.”7 Policy at H1. 

Following our review, we discern no support in the language of the 

exclusion or the Policy for Appellant’s contention that an “act . . . which is 

 

7 The intentional acts exclusion was listed on the same page of the Policy, 

immediately before the criminal acts exclusion. 
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criminal in nature” should be limited to acts intending to cause harm. The 

phrase “an act . . . which is criminal in nature” is sufficiently clear on its 

face. Under the circumstances of this case—i.e., where John S. admitted he 

caused the decedent’s death by “recklessly”8 pointing a loaded firearm at the 

decedent and having the firearm discharge—we conclude John S.’s acts were 

criminal in nature, even if he did not intend to cause bodily injury. 

Moreover, because we agree with the trial court that the language of the 

exclusion is unambiguous, we discern no basis to read ambiguity into the 

Policy by relying on the foreign law cited by Appellant. See Swarner, 72 

A.3d at 645. Thus, we detect no error in the trial court’s determination that 

the criminal acts exclusion barred coverage for John S. 

Appellant, in her third argument, asserts the trial court erred in 

concluding that Appellee’s policy excluded coverage for John S.’s parents, 

Jon R. and Denise L. In support, Appellant suggests the term “an insured,” 

 

8

“Recklessly,” for the purposes of involuntary manslaughter, is defined as 

follows: 

A person acts recklessly with respect to a material element 

of an offense when he consciously disregards a substantial 

and unjustifiable risk that the material element exists or 

will result from his conduct. The risk must be of such a 

nature and degree that, considering the nature and intent 

of the actor’s conduct and the circumstances known to 

him, its disregard involves a gross deviation from the 

standard of conduct that a reasonable person would 

observe in the actor’s situation.

Commonwealth v. Huggins, 839 A.2d 862, 868-69 (Pa. 2003) (quoting 18 

Pa.C.S. § 302). 
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as used in the criminal acts exclusion, is ambiguous because Appellee more 

clearly excluded coverage for “all insureds” in other sections of the Policy.9 

She thus argues the criminal acts exclusion does not clearly exclude 

coverage for Jon R. and Denise L. based on their son’s acts. 

Appellee responds that the criminal acts exclusion is clear and bars 

coverage for Jon R. and Denise L. Appellee emphasizes that the exclusion is 

triggered by an act committed by “an insured.” It observes that the use of 

the article “an” has been construed by this Court as permitting joint 

application of an exclusion to “any” insured. Thus, Appellee argues, the 

term “an insured” creates a joint insurable interest, such that the acts of a 

culpable co-insured bars coverage for innocent co-insureds. 

“A(n)” is an indefinite article “used as a function word before a singular 

noun when the referent is unspecified <a man overboard> . . . .” Webster’s 

Ninth New Collegiate Dictionary at 43. In common usage, it is also 

synonymous with “any,” the latter of which means “one or some 

indiscriminately of whatever kind.” Id. at 43, 93. The plain meaning of “an 

insured” is not restricted to a single, definite individual, but rather one or 

more of a set. 

 

9

For example, the Policy contains a separate exclusion for coverage from 

“perils insured against” that states: “Intentional Acts, meaning loss resulting 

from an act committed by or at the direction of an insured that may 

reasonably be expected to result from such acts, or is the intended result 

from such acts. Intentional acts include criminal acts. Such acts exclude 

coverage for all insureds.” Policy at D1. 
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Decisional law supports Appellee’s position that the use of the 

indefinite article “an” and the adjective “any” are interchangeable and create 

joint obligations under an exclusion. See McAllister v. Millville Mut. Ins. 

Co., 640 A.2d 1283, 1289 (Pa. Super. 1994) (holding innocent co-insured 

barred from recovery under fire insurance by intentional act, i.e. arson, of 

another co-insured where policy excluded coverage for loss resulting from 

neglect by “any insured” or intentional acts of “an insured”); see generally

Allen, 708 A.2d at 833 (discussing non-Pennsylvania cases regarding uses 

of “an” or “any,” but finding use of “the insured” in insurance policy’s 

exclusion did not bar innocent co-insured from seeking coverage where the 

culpable co-insured intentionally abused children). But see Allen, 708 A.2d 

at 832 (noting use of “an insured” is “less clear” when creating joint 

obligations than terms such as “any insured.”) 

Although we agree with Appellant that the Policy contains language 

that more clearly expresses that an exclusion will apply jointly to all coinsureds, our case law and the language of the exclusion here support the 

trial court’s legal determination that Jon R. and Denise L. are not covered for 

the harms caused by John S.’s criminal act. Accordingly, Appellant has not 

demonstrated that the trial court erred in its interpretation that Jon R. and 

Denise L. were not entitled to coverage under the Policy. 

Judgment affirmed.
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President Judge Emeritus Bender joins the memorandum. 

Judge Olson concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2014