*1 COMPANY, Appellant, GERMANTOWN INSURANCE v. MARTIN,

Russell Administrator the Estate of Robert Martin Deceased and Russell Martin and Florence

Martin his Wife Edward Van Kirk.

Superior Pennsylvania. Court of

Argued April 1991. July Filed 1991. Reargument Sept. 27, Denied 1991. *2 Rubin, Philadelphia, appellant.

Richard Bensalem, Kirk, Jr., appellee. for Van Beckert, Paul R. TAMILIA, MONTEMURO, BECK and JJ. Before TAMILIA, Judge:

This is from appeal declaratory a Order judgment against appellant, entered June Germantown Insur- Company, ance favor of appellee, Edward Van $100,000. resulting an award of tragic The circum- stances of the underlying case have been exacerbated by trial misapplication legal court’s of the relevant stan- a of providing dards as means relief to an innocent and injured victim of senseless violence. We reverse. of the record unfolding

Our review discloses the scenario. following Martin, age On. Robert Levittown, Trynoski entered the home Pennsylvania, and, shooting spree lasted a matter of seconds, people another, killed two and gravely wounded Van Kirk. For one approximately year before the shoot- *3 ings, dating and, Martin had been White Cindy steadily, fact, engaged the two to were be married until several shootings relationship weeks before the when the ended abruptly and White returned to her boyfriend, former Jef- friend, Martin’s frey Trynoski. Duffy, best later Kevin upset testified Martin was White left him had and returned ato and boyfriend lifestyle strongly disap- which he proved. apparent parents Martin’s distress was both to his situation, to To Duffy. compound already and bad their breakup weeks between and the shootings, White regularly telephoned harassing him upsetting and him, ultimately leaving and him A up.” prior “fed week to shootings, Martin told Duffy go he wanted “to over just there and start and kill shooting everybody house.” him [Trynoski] Duffy plan talked out of his at that time and informed White Martin’s intention to shoot her. morning May 26, 1986,

On Martin obtained a 9mm handgun gun collection, automatic from his loaded the and, weapon taking two extra 9mm ammunition clips, at 9:00 a.m. his approximately Trynoski drove car home. at Martin knocked the door and as Anthony Trynoski, brother, Jeffrey’s opened door, Martin fired two shots point range chest, into Anthony’s killing blank him. Kirk, a living room where Van entered the Martin then stared at Van boarder, the couch. Martin lying was of about fifteen from a distance gun, his raised chest, followed a Van Kirk’s feet, single a shot into fired Kirk’s more into Van chest. three shots moment later unconsciousness, he heard falling into Kirk As Van was name, time, Martin and at that Jeffrey’s Martin call out fired two Trynoski approaching Rosemarie sighted chest, to find killing her. Unable to her head and shots Martin hiding, or who were Jeffrey Trynoski, White Cindy Martin then drove to his car. left the house and returned he roadway parked, where miles a secluded several curb, by firing himself a killing car sit on a leaving his into his head. shot own normal life shootings, Martin led a the time of the

Until a incidents. He was noteworthy marked no or untoward He average student. graduate school and better than high and had press operator a employed printing work, history a nor did he have problems at disciplinary Martin lived significant physical problems. psychiatric collection, and gun parents, at home with his owned target shooter. frequent hunter and a an avid Kirk filed an action Van September On or about estate, alleging trespass against Martin’s “[a]cci- fired shots which inadvertently” dentally, negligently 9,1987, German- Kirk’s On November injuries. caused Van town, parents’ personal liabili- as underwriter of Martin’s which Martin was policy, insurance under ty/homeowner’s *4 to deter- insured, judgment for declaratory filed an action of insurance mine the existence or nonexistence the cited Specifically, Kirk’s Germantown injuries. Van personal excluded of the which portion homeowner’s bodily injury to others for liability payments and medical intended property damage expected “which insured.” 1, 1989, dealing on hearing

A was held this matter a duty had Germantown with the issue whether portions of the presented various defend. Germantown pleadings, the homeowner’s policy, testimony by Kevin Duf- records, the victims’ medical fy, police deposi- records and tions Martin’s father and Kirk. Appellee Van relied solely testimony of Van expert medical testimony was offered by any party. On June trial court entered a declaratory judgment that Order Ger- required mantown was to defend Martin’s estate under the of its provisions homeowner’s that policy, finding deranged at the shootings time under the “irra- test impulse” tional for mental capacity.1 July On 1989, 10, filed a for post-trial relief, Germantown motion requesting, alia, inter the trial court delete its of fact finding that: We have concluded that the surrounding are so events decedent, bizarre that acting have been enraged from an or a mentally disturbed state of mind he totally under which incapable forming any with specific intent reference to Van Kirk. requested Germantown also that declaratory judgment be entered in its favor. 20,. 1989, the parties agreed

On November a stipulated limit, verdict the policy in favor of Van Kirk if $100,000, pending declaratory judgment action determined Van Kirk was entitled to the proceeds recover A policy. stipulated Order dated November 1989 deferred a final 21, concerning rights decision the parties liabilities of a hearing present until could be held to additional testimony concerning Martin’s state mental at time of the shoot- A ings. hearing was held on June on the sole issue 11,1990 of Martin’s competency. Conflicting testimony was 1. The trial derived court the "irrational test from New Co., Jersey Casualty case Ruvolo v. American 39 N.J. (1963). The capacity Ruvolo Court articulated its test for mental follows: suffering derangement We hold that if insured was from a of his deprived capacity govern intellect which him of the his conduct reason, acting in accordance with and while condition on an LeFace, impulse, irrational he shot and killed Dr. his act cannot be treated as "intentional” within connotation of defendant’s insur- ance contract. Id. 189 A.2d at 209.

331 the by expert witnesses surprisingly, not presented, Sadoff, M.D., a called psychiatrist forensic Robert parties. Germantown, his that it was testified a as witness police reports, the medical and opinion, upon medical based hearing transcripts, that Martin 1, 1989 the he knew shootings, of ill the time mentally not actions, intended and that he of his quality nature and expert Kirk’s wit- resulted. Van which consequences Berman, M.D., testified ness, psychiatrist, also a Perry suffering from that Martin was opinion his medical him deprived of thinking in his which derangement some rea- in accordance with his conduct capacity govern im- on an irrational that condition acted and while in son pulse. judg- the final the trial court entered

On June appeal, finding favor forms the basis this ment which Germantown, in the amount against Kirk and of Van earlier $100,000. its doing, In the trial court reiterated so finding acted under an “irrational that Martin meaning his not intended actions within thus could have provisions the homeowner’s of the excluded policy. consideration, obligation of German- an initial

As Martin’s estate is fixed against action town to defend an underlying complaint in the filed allegations solely by complaint comprehends long Van Kirk. As of the scope policy, within German- injury may which claim is confined Martin’s estate until the town must defend cover. United Services recovery to a does not Pa.Super. 358 517 v. Elitzky, Automobile Association denied, Pa. (1986), A.2d 982 alloc. determination, omitted). To such a

(1987) (citations make pertinent and the interpret the insurance contract we construction a thereof, bearing mind the provisions need this Court not writing question of law which court. Id. finding the trial defer to case, the excluded In are concerned with this we the stock specifically more policy, coverage portions phrase concerning damage “expected which is or intended *6 by the insured.” The policy following provi- contains sion: Coverage Liability Coverage

1. F— E—Personal and Payments bodily Medical to do not apply Others to injury property damage: or insured____ which is expected a. or intended In a and thorough panel well reasoned Opinion, a of this Court in examined Elitzky claus- history exclusionary other, es case resulting Pennsylvania and law and jurisdictions exclusionary and held clauses for “expected law, damage, intended” ambiguous as matter are and insurer, construed against be but the “ex- terms pected or intended” are synonymous purposes of insur- exclusionary ance The Elitzky clauses. Court further held “such a clause excludes injury damage and the same general type which the insured intended to An cause. an if insured intends he to injury desired cause the conse- quences of if his act or he acted knowingly that such consequences substantially Id., were certain to result.” 358 375, Pa.Superior Ct. 517 A.2d at 989. Donegal See Ferrara, 588, Mutual Insurance Co. v. 380 Pa.Super. Life (1989); 552 A.2d 699 State Farm Fire and v. Casualty Co. Levine, 1, 389 Pa.Super. (1989).

Applying standards to the facts of the Elitzky us, case before we find Martin's morning conduct 1986 is excluded under the terms home of- the with owner’s as it is exactly Germantown type injury against which insurance are companies not and expected should not to be insure. one week before the shootings, expressed to his best friend his desire to “just shooting start and kill everyone the [Trynoski] house.” On May Martin nearly just did that. Having mortally wounded already Anthony Trynoski, Mar tin him, turned toward Van looked at and but rapidly wildly not four range fired at close bullets into Van Kirk’s chest. then Martin shot and killed Rosemarie Trynoski. Martin was not intoxicated or under the any influence of

333 shots these shootings. Clearly, at the time of drug to cause were intended weapons with proficient from a man evidence that to Van Kirk. The which resulted injuries brought extra ammuni- handgun, chose automatic Martin house, incident tion, without right approached to the drove inescapa- saw leads us person each he repeatedly shot cause or intended to expected to the conclusion bly We Trynoski home. inhabitants of the harm the serious negli- accidental or shooting find evidence identity Van Kirk’s consequence it is of no gent may Intent in the were unknown Martin. house presence Nation- an intended victim another. transferred from Hassinger, Pa.Super. v. Mutual Ins. Co. wide (1984). A.2d 171 *7 to Martin’s estate excluded coverage we find

While we would also policy, the terms of the homeowner’s under of the phblic policy excluded as violative find supra. The Pennsylvania. Hassinger, supra; Elitzky, an insurer require refused to Pennsylvania courts of have intentional torts and/or for his own to defend insured Co., 377 Pa. Maryland Casualty v. criminal acts. Wilson Liscio, Pa.Super. 209 (1954); 105 304 v. A.2d Esmond extend the (1966). 224 A.2d The trial court would heretofore and would beyond anything of Pennsylvania law beyond interpretation policies homeowner far impose an on To the trial court permit parties. was intended what sound negate existing effectively to stand would decision public policy. court, to have the learned trial were it believe

We Court, analysis as this would undoubted the same employed court, how conclusion. The trial have reached a similar ly found ever, by the “bizarre” events that dismayed was so it dis enraged mentally of an or product Martin’s acts the incapa totally state of mind under which turbed Kirk. In to harm Van forming specific intent any ble impulse” test to this so, he the “irrational doing applied intention and, confused rational conduct with case thereby, senseless, irrational Martin’s acts conduct. That were al anyone else has the trial court incomprehensible and bearing on determining coverage under policy. The record us Martin brought before discloses about the harm he intended. no rational Obviously, person go would on a shooting spree, but this in no way lessens intentional conduct, character of the if such intent is evidenced. matter, As a final we agree with Germantown to the extent an case, standard is to this insanity relevant the M’Naghten Rule rather than the “irrational applicable test is the standard civil and criminal matters.2 trial, As in this occurred once the court moves beyond the clear meaning policy and delves into subjective actor, mind rationality state of it becomes a contest psychiatric experts, between one of whom can be found to testify any position. The psychiatric testimony appears this case irrelevant to the issue of coverage for purposes representation.3 Germantown reasons, foregoing

For the we find the trial court erred in entering declaratory Van Kirk judgment favor of against Germantown, we vacate the Order of the trial Opinion dispositive court. This the sole issue this requires case and no further proceeding as Germantown is not required defend the holder and has no legal responsibility the actions of which are not covered policy. homeowner’s reversed; Order judgment vacated. relinquished.

Jurisdiction *8 BECK,

Concurring opinion by J. Code, provided phrase 2. As in ‘legally the Crimes "the insane’ means that, offense, at the time of the of the commission actor was reason, mind, laboring such a of under defect from disease as or, doing quality not to know nature and of the act he was if the act, quality actor know the did of that he did not know that what doing wrong.” 315(b). he was Pa.C.S. § Concurring Opinion Judge by 3. It is incredible that the Beck considers M’Naughten discussion of the rule to be dicta when it relates to an which, effect, argument proposed by appellant lynch pin allegation impulse, court, adopted its that irrational as the trial can any way capacity by insanity not be a standard for diminished M’Naughten concerning psychiat- the face rule. The discussion testimony necessarily ric follows. BECK, concurring: Judge, bodily injury that the conclusion majority’s

I in the join exclusion Kirk falls within the Van by appellee suffered or intend- expected is injury which coverage bodily from the “irrational agree I that the insured. ed the cover- inapplicable is to the trial court adopted by test case. by this presented age question it is express my to view only I separately write opine to on of this case to the decision unnecessary does majority Rule as the M’Naghten pertinence clearly This case Opinion. of its concluding paragraphs could deemed to be insured who be not involve an does makes party neither M’Naghten Rule and under the insane on this opine trial court Nor did the argument. such an express any opinion Thus, unnecessary I find it subject. Rule to the M’Naghten the relevance of dicta majority’s I in the join and do not presented question subject. on that opine, majority unnecessary find it

I further expert or usefulness does, general relevance on the I that in agree as this. in cases such testimony psychiatric irrelevant, viewed as testimony expert this case the acting insured was directed whether since it was decided that this and we have impulse irrational on an I do not coverage issue. irrelevant to the determination is expert pronouncement broad agree majority’s with the in a case where irrelevant testimony always psychiatric or intended expected the insured is whether posed the issue coverage is for which damage injury property the bodily complete- testimony depends The relevance of such sought. need to I see no case. particular the facts of the ly upon testimony any of such relevance possible on the opine of this case. than the facts context other