ALLSTATE INSURANCE COMPANY v. HOPFER et al

Filing 50

MEMORANDUM AND/OR OPINION GRANTING ALLSTATES MOTION FOR JUDGMENT ON THE PLEDINGS. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 11/18/2009. 11/19/2009 ENTERED AND COPIES E-MAILED AND MAILED TO PRO SE PARTIES.(sg, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ALLSTATE INSURANCE CO., Plaintiff v. TIMOTHY HOPFER, et al Defendants : : : : : : : CIVIL ACTION

NO. 08-4549

MEMORANDUM STENGEL, J. November 18, 2009

B e f o re the Court is a motion for Judgment on the Pleadings filed by Plaintiff A lls ta te Insurance Company on April 29, 2009. Allstate filed a declaratory judgment c o m p la in t on September 18, 2008 seeking a declaration of its duties to defend and in d e m n if y David, Linda Lee, Kevin, and Timothy Hopfer in an underlying state civil a c tio n against them for the death of Abigail Alexis Tagert.

I.

F A C T U A L BACKGROUND On December 7, 2005, Ms. Tagert died at the Honeybrook, Pennsylvania home of

D a v id and Linda Hopfer, who are the named insureds under an Allstate Deluxe H o m e o w n e rs insurance policy. Pl.'s Declaratory J. Compl. at ¶¶ 10, 13. Their son T im o th y resided with Mr. and Mrs. Hopfer at the time of Ms. Tagert's death.1 Id. at ¶¶ 1 1 , 12. The Hopfer's other son, Kevin, lives in Morgantown, Pennsylvania, but is alleged to have been in the family residence on the night in question.
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A s a result of Ms. Tagert's death, her parents, Defendants Darlene Pfeiffer and T h o m a s Tagert, filed suit against the Hopfers in the Chester County Court of Common P le a s. Am. Compl. of Darlene Pfeiffer and Thomas Tagert, individually and as coa d m in is tra to rs of the Estate of Abigail Alexis Tagert v. Timothy Hopfer, Linda Lee H o p fe r, David Hopfer, and Kevin Hopfer, Docket No. 07­08771 ("Tagert Complaint"). T h e following facts as alleged in the Tagert complaint are crucial to the d e ter m in a tio n whether Allstate is required to defend and indemnify the Hopfers in this u n d e rlyin g suit. On December 6, 2005, Timothy Hopfer took a quantity of the p re sc rip tio n drug Dilaudid, a Schedule II controlled substance, from the Chester County H o s p ita l. Tagert Compl. at ¶ 10. Timothy worked at the hospital as a registered nurse, b u t took the Dilaudid with the intention to use it for recreational purposes. Id. at ¶¶ 8, 10. That night, he took it to the Hopfer residence, where Ms. Tagert was a guest. Id. at ¶ 12. While there, he injected Ms. Tagert with Dilaudid three separate times through a "port" he h a d inserted into her foot. Id. at ¶ 13. Following the third injection, Ms. Tagert began to e x p e rie n c e "labored breathing, discoloration, vomiting, and loss of consciousness." Id. at ¶ 17. Timothy was aware the third injection had contained more of the drug than the p re v io u s two, and was also aware Ms. Tagert was experiencing potentially deadly side e f f e c ts . Id. at ¶ 19. Timothy attempted to resuscitate Ms. Tagert at some point following h e r adverse reaction. Id. at ¶ 18. However, he failed to seek medical attention for Ms. T a g e rt for at least another two hours and ignored the requests of another guest, Kourtney

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R o w e , that he do so. Id. at ¶¶ 22-23. David, Linda, and Kevin Hopfer also became aware of the symptoms Ms. Tagert w as experiencing but similarly failed to seek medical help for her for at least two hours a f te r learning of them. Id. at ¶ 22. Ms. Tagert died at the Hopfer residence as a result of d ru g toxicity later that night. Id. at ¶ 24. In connection with his actions, Timothy Hopfer was charged with and pleaded g u ilty to drug delivery resulting in death in violation of 18 Pa. C.S.A. § 2506; theft by u n la w f u l taking in violation of 18 Pa. C.S.A. § 3921(a); and illegal manufacture, delivery, o r possession of a controlled substance in violation of 35 Pa. C.S.A. § 780­113(a)(30). Pl.'s Declaratory J. Compl. at ¶ 19. C o u n t I of the Tagert Complaint alleges negligence on the part of Timothy Hopfer f o r, inter alia, engaging in dangerous activities within his home, repeatedly injecting Ms. T a g e rt with Dilaudid, failing to obtain medical attention for her in a timely manner f o l lo w in g her adverse reaction, observing her condition and allowing her to "sleep it off", a llo w in g and causing a prolonged delay in obtaining medical attention for her by "moving a n d cleaning" her body, and misinforming authorities about the identity and nature of the su b stan ce causing her condition. Tagert Complaint at ¶ 31(c)­(e), (g), (i), (p), (q). C o u n ts II and III of the Tagert Complaint allege negligence on the part of Linda a n d David Hopfer for, inter alia, failing to properly monitor the activities conducted in th e ir residence by Timothy and Kevin Hopfer, allowing Timothy and Kevin to engage in

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a c tiv itie s dangerous to others, breaching their duty to safeguard guests in their home, f a ilin g to obtain medical attention for Ms. Tagert upon learning of her adverse reaction, a llo w in g Ms. Tagert to "sleep it off", and allowing a prolonged delay in obtaining medical ca re for her. Tagert Complaint at ¶ 33(a), (b), (e), (g), (l), (p), ¶ 34 (a)­(c),(e), (j), (m), (q). C o u n t IV of the Tagert Complaint alleges negligence on the part of Kevin Hopfer f o r, inter alia, engaging in behavior that was dangerous to others, failing to promptly o b ta in medical attention for Ms. Tagert at the first sign of her adverse reaction, allowing a n d causing a prolonged delay in obtaining care for her, and failing to inform authorities o f the nature of the substance with which she had been injected. Tagert Complaint at ¶ 3 7 (a)­ (c), (i), (q), (r). C o u n t s V, VI, VII, and VIII of the Tagert Complaint allege wrongful death against T im o th y, Linda, David, and Kevin Hopfer and seek damages pursuant to the P e n n s ylv a n ia Wrongful Death Act, 42 Pa.C.S.A. § 8301. Allstate Insurance Company seeks a declaration pursuant to 28 U.S.C. §2201 that it does not have a duty to defend or indemnify the Hopfers in the civil action filed by D a rle n e Pffeiffer and Thomas Tagert in state court. This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because the citizenship of the parties is diverse and the amount in c o n tro v e rs y exceeds $75,000.

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I I . STANDARD U n d e r Federal Rule of Civil Procedure 12(c) a party may move for judgment on th e pleadings. In order to prevail, the movant must show that "no material issue of fact re m a in s to be resolved and that he is entitled to judgment as a matter of law." Rosenau v. U n if u n d Corp., 539 F.3d 218, 221 (3d Cir. 2008) (citing Jablonski v. Pan Am. World A irw a ys , Inc., 863 F.2d 289, 290-91 (3d Cir.1988)). In reviewing a 12(c) motion, the c o u rt must view the facts in the pleadings and the inferences drawn therefrom in the light m o s t favorable to the non-moving party. Id.

III. DISCUSSION In determining whether the Hopfers' policy requires Allstate to defend or in d e m n if y them in the Tagert action, the parties do not dispute that Pennsylvania law m u s t be applied.2 Under Pennsylvania law of insurance contract interpretation, the in s u ra n c e policy should be read as a whole and construed according to its plain meaning. S e e Atlantic Mut. Ins. Co. v. Brotech Corp., 857 F.Supp. 423, 427 (E.D. Pa. 1994), aff'd, 6 0 F.3d 813 (3d Cir.1995). The primary goal in interpreting an insurance policy is "to a sc e rta in the parties' intentions as manifested by the policy's terms." Kvaerner Metals

When a federal court presides over a diversity case, the court must apply the choice-of-law rules of its forum state. Klaxon v. Stentor Elec. Mfg., 313 U.S. 487, 496 (1941). Pennsylvania choice of law rules mandate the application of the law of the state where the insurance policy is in effect, which in this case is in Pennsylvania. Pittsburgh Bridge & Iron Works v. Liberty Mut. Ins. Co., 444 F.2d 1286, 1288 n. 2 (3d Cir. 1971). Additionally, all parties cite to Pennsylvania law in their memoranda. -5-

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D iv . of Kvaerner U.S. Inc. v. Commercial Union Ins. Co. 589 Pa. 317, 331, 908 A.2d 8 8 8 , 897 (2006) (citing 401 Fourth St. v. Investors Ins. Co., 583 Pa. 445, 446, 879 A.2d 1 6 6 , 170 (2005)). When the language of the policy is clear and unambiguous, the Court m u s t give effect to that language. Id. "A carrier's duties to defend and indemnify an insured in a suit brought by a third p a r ty depend upon a determination whether the third party's complaint triggers coverage." Mut. Benefit Ins. Co. v. Haver, 555 Pa. 534, 538, 725 A.2d 743, 745 (Pa. 1999) (citing G e n . Accident Ins. Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (Pa. 1 9 9 7 )). In determining whether the insured's policy covers the action brought, courts look to the factual allegations contained in the underlying complaint. Id. (citing Scopel v. D o n e g a l Mut. Ins. Co., 698 A.2d 602 (Pa. Super. Ct. 1997)). Coverage is not triggered by th e official cause of action pled; courts must take care to look to the underlying facts and n o t to base a finding of coverage solely on the causes of action contained in a skillfullyw o rd e d complaint. Id. "An insurer's duty to defend . . . arises whenever an underlying complaint may 'p o te n tia lly' come within the insurance coverage." Frog, Switch & Mfg. Co., Inc. v. T ra v e le rs Ins. Co., 193 F.3d 742, 746 (3d Cir. 1999). The duty to defend, therefore, may a ris e where the duty to indemnify does not later come to fruition; the former duty is based o n the possibility that an underlying complaint will come within the policy's coverage. See Erie Ins. Exch. v. Claypoole, 449 Pa. Super. 142, 156, 673 A.2d 348, 355­56

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(Pa. Super. 1996). "If the complaint . . . avers facts that would support a recovery c o v e re d by the policy, then coverage is triggered and the insurer has a duty to defend until s u c h time that the claim is confined to a recovery that the policy does not cover." Allen, 6 9 2 A.2d at 1095. T o qualify for coverage in the first place, the insured's underlying complaint must c o n ta in allegations of an "occurrence" under the policy. Even if a court finds that the u n d e rlyin g event constitutes an occurrence, the insurer may still establish that it is not re q u ire d to defend because the underlying action falls under a policy exclusion precluding c o v e r a g e for intentional acts. A. C o v e r a g e For An Occurrence

T h e "Family Liability Protection" section of the Hopfer's policy states that: Allstate will pay damages which an insured person becomes legally o b lig a te d to pay because of bodily injury or property damage arising f ro m an occurrence to which this policy applies, and is covered by th is part of the policy. Def.'s Mot. For J. On The Pleadings, Ex. C. An "insured person" is defined as "you [the h o ld e r(s ) of the policy] and, if a resident of your household (a) any relative; and (b) any d e p e n d e n t person in your care." Id. Bodily injury is "physical harm to the body, in c lu d in g sickness or disease, and resulting death." Id. An "occurrence" is "an accident . . . resulting in bodily injury or property damage." Id. 1. T im o th y Hopfer

Allstate claims the complaint filed against Timothy Hopfer does not trigger -7-

c o v e ra g e under Hopfers' policy because it does not allege acts that were accidental or that q u a lif y as an "occurrence." It also argues that Timothy's criminal conviction establishes h is intent as to Ms. Tagert's death. The Defendants' respond that although the Tagert c o m p la in t refers to some intentional acts, it primarily seeks recovery based on Timothy's n e g lig e n t administration of CPR and negligent failure to promptly seek medical attention f o r Ms. Tagert --actions which are occurrences. While the Tagert Complaint certainly a lle g e s specific intentional acts on the part of Timothy Hopfer, it also alleges substantial n e g lig e n c e that brought about the eventual death of Ms. Tagert. Because the complaint c a n n o t be characterized as an action based solely on Timothy's intentional conduct and in f a c t contains allegations of negligence, some of Timothy's actions constitute occurrences. T h e question of whether an incident constitutes an "occurrence" must be d e te rm in e d from the perspective of the insured.3 See Nationwide Mut. Fire Ins. Co. of C o lu m b u s v. Pipher, 140 F.3d 222, 226 (3d Cir.1998). Intentional conduct does not q u a lif y as an "occurrence," while conduct that is accidental or negligent does. See Gene's R estau ran t Inc. v. Nationwide Ins. Co. 519 Pa. 306, 309, 548 A.2d 246, 247 (Pa. 1988); D o n eg al Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 158, 938 A.2d 286, 292 (Pa. 2007). A llstate points to the Pennsylvania Supreme Court's decision in Minnesota Fire a n d Cas. Co. v. Greenfield, 855 A.2d 854, 579 Pa. 333 (Pa. 2004) in support of its a r g u m e n t that Timothy's act was not accidental and therefore not an "occurrence." Allstate does not contest that Timothy, as the son of David and Linda Hopfer and a resident in their home, is an "insured" under their homeowner's policy. -83

G re e n fie ld concerned the availability of insurance coverage for Greenfield, who s o ld a woman heroin from his home and then allowed her to die from a heroin overdose w h ile there. 855 A.2d at 856­57. As discussed below, the court overturned the lower c o u rt's finding that coverage for Greenfield was barred under his policy's intentional act ex clus ion . Allstate urges this Court to look to a footnote in the Greenfield opinion where th e court reasoned that the lower court should have avoided the issue of the intentional act e x c lu s io n , and could instead have based its finding on whether Greenfield's act c o n stitu te d an occurrence. It reasoned that, had the lower court done so, it could have re a ch e d a finding of non-coverage because Greenfield's act was neither accidental nor n e g lig e n t but was rather a "voluntary . . . criminal transaction involving heroin." Id. at 864­65. The Pennsylvania Supreme Court recognized in Gene's Restaurant Inc. that an in ten tio n a l tort is not an "occurrence." 548 A.2d at 310. The court in Greenfield, albeit in dicta, recognized that the intentional transaction at issue there--the sale of heroin la b e le d "suicide" by the insured, who knew that the victim had previously experienced n e g a tiv e side effects from the drug--would likely have fallen under the rule in Gene's R e sta u ra n t. W h e n an insured person engages in intentional acts leading to the death or bodily in ju ry of another, but allegations in an underlying complaint state a cause of action for n e g lig e n c e , the insured's acts or omissions may still qualify as an "occurrence." See Erie

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In s . Exch. v. Muff, 851 A.2d 919, 932­934 (Pa. Super. Ct. 2004); State Farm Fire and C a s . Co. v. Bellina, 264 F.Supp.2d. 198, 204 (E.D. Pa. 2003). In Muff, the insured, a b a b ys itte r, dropped a child in her care and then negligently failed to call for assistance. Id. at 929­930. The child later died, and Mrs. Muff was convicted of first-degree murder a n d aggravated assault. Id. at 930. She then was sued by the child's parents in a civil a c tio n , and the court found that because the complaint against her alleged negligence in f a ilin g to get medical attention for the child, Mrs. Muff's actions and failures, as set forth in the complaint, constituted an "occurrence" or "accident." Id. at 929. The court then f o u n d that, even though first-degree murder in Pennsylvania is, by definition, "an in te n tio n a l killing," Mrs. Muff's conviction did not "conclusively establish her intent re g a rd in g the [negligent] acts alleged in the . . . complaint." Id. As a result, the insurance c o m p a n y had a duty to defend Mrs. Muff in the civil action alleging negligence. T h e question this court must determine is whether, at this stage in the proceedings, A lls ta te has met its burden by showing that no factual question remains whether T im o th y's actions were an "occurrence" or accident. Timothy is alleged to have injected M s . Tagert with dilaudid three times; to have given her a third and final dose twice the s iz e of the previous two; and to have encouraged her to receive numerous doses of the d ru g . However, a close examination of the Tagert complaint reveals that it also contains s p e c if ic allegations of negligence, which include "failing to obtain medical attention for [ M s .] Tagert at the first signs of labored breathing, discoloration, vomiting, and loss of

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c o n sc io u s n e ss ," "allowing and causing a prolonged delay in obtaining medical attention f o r [Ms.] Tagert," "failing to report the adverse reaction in a timely manner," and "o b se rv in g the [adverse reactions] . . . and negligently failing to appreciate the danger in w h ich [Ms. Tagert] had been placed." Tagert Complaint at ¶ 31(c), (d), (e), (j). In connection with these actions, Timothy Hopfer has pleaded guilty to Drug D e liv e r y Resulting in Death. Allstate rightly argues that Timothy's injection of Ms. T a g e rt with Dilaudid was not accidental, and further, that by pleading guilty to drug d e liv e ry resulting in death, he has acknowledged that she died as a result of his acts. But th is conviction does not foreclose the possibility that Ms. Tagert also died as the result of T im o th y's negligence following the injection. Since the Tagert complaint adequately sets f o rth allegations supporting a claim of negligence, those acts qualify as occurrences and h e is, barring the effect of any exclusion, entitled to coverage under the Hopfer insurance p o l i c y. 2. R o b e r t, Linda, and Kevin Hopfer

B e c au s e the inquiry into whether an act is intentional or negligent is to be made f ro m the point of view of the insured, analysis of the acts of Robert, Linda, and Kevin H o p f e r will necessarily differ. In Baumhammers, 938 A.2d at 156­58, the Pennsylvania S u p r e m e Court addressed whether an intentional act on the part of an insured child takes th e entire underlying complaint out of the realm of an "occurrence." In Baumhammers, th e Court recognized that although the insured son engaged in the intentional shooting

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a n d killing of numerous people, the complaint against his parents sounded in negligence a n d thus fell within the definition of an "occurrence." Id. at 291. This is so even when all in v o lv e d parties--the intentional actor and the negligent actors--are insured under the s a m e policy. See id. at 289; Allstate Insurance Co. v. Key-Berthau, 2008 WL 5382924 at * 6 ­ 7 (E.D. Pa. Dec. 19, 2008). The allegations against David, Linda, and Kevin Hopfer sound in negligence. These remaining family members did not engage in any intentional acts that caused Ms. T ag ert's death; rather, the Tagert complaint alleges that David and Linda Hopfer were n e g lig e n t for, among other things, failing to obtain medical attention for Ms. Tagert in a tim e ly manner and failing to properly supervise their sons and safeguard guests in their h o m e . It alleges that Kevin Hopfer was negligent for engaging in dangerous activities a n d failing to promptly seek medical help for Ms. Tagert. From the standpoint of David, L in d a , and Kevin Hopfer, the death of Ms. Tagert was an occurrence--an accident which re su lted from their negligence both before and after Timothy injected Ms. Tagert with D ila u d id . B. E ffe c t Of The Criminal Act Exclusion

E v e n though the negligent actions of Timothy, Linda, David, and Kevin Hopfer c o n stitu te an occurrence as defined in Allstate's policy, Allstate may avoid the duty to d e f en d if Timothy's acts fall under the policy's criminal act exclusion and joint obligations c la u se . They state:

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L o s s e s We Do Not Cover: We do not cover any bodily injury or p ro p e rty damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any in s u re d person . . . This exclusion applies regardless of whether or n o t such insured person is actually charged with, or convicted of a c rim e . D e f .'s Mot. For J. On The Pleadings, Ex. C. A lls ta te argues (1) that it is not required to defend Timothy Hopfer pursuant to the c rim in a l act exclusion and (2) that, as a result, it is not required to cover the remaining m e m b e r s of the Hopfer family because this section excludes coverage for all insureds for a loss resulting from the intentional criminal acts of "any insured." Defendants argue th a t, because the Tagert complaint alleges non-criminal and negligent behavior on the p a rt of Timothy Hopfer, neither the criminal act exclusion nor the joint responsibility c la u se are applicable. 1. W h e th e r Bodily Injury Was Intended by Timothy Hopfer

In the context of intentional act exclusions, the Pennsylvania Supreme Court has r e f u s e d to recognize the doctrine of transferred intent--assumption of the intent to cause s p e c if ic harm based on the commission of an act causing that harm--to cases other than c h ild sexual abuse. See Greenfield, 855 A.2d at 863. The Third Circuit too has re c o g n iz e d the limited reach of transferred intent in the context of Pennsylvania insurance co n trac t interpretation. Aetna Life and Cas. Co. v. Barthelemy, 33 F.3d 189, 193 (3d Cir. 1 9 9 4 ). In Greenfield, the Pennsylvania Supreme Court acknowledged that Pennsylvania in s u r a n c e law generally distinguishes between committing an intentional act that causes a -13-

h a rm f u l result and acting with the intent to cause that harmful result. Id. ("In our state, th e exclusionary clause applies only when the insured intends to cause a harm. Insurance c o v e r a g e is not excluded because the insured's actions are intentional unless he also in ten d e d the resultant damage. The exclusion is inapplicable even if the insured should re a so n a b ly have foreseen the injury which his actions caused." (citing United Services A u to . Ass'n v. Elitzky, 517 A.2d 982, 987 (Pa. Super. Ct. 1986))). It found that although G re e n f ield sold the victim heroin, his actions did not relieve the insurance company of its d u ty to defend him under the policy's intentional act exclusion, which applied to "bodily in ju ry which is expected or intended by the insured." Id. at 858. The Court in Greenfield did reach a finding of non-coverage, but based it solely on th e strong public policy interest in preventing insurance companies from having to defend h e ro in dealers. 855 A.2d at 865. It did not recognize a broader public policy interest in e x c lu d in g coverage for all users or dealers of all drugs. More importantly, it specifically re f u se d to extend the doctrine of inferred intent to drug sales. Id. at 863­64. Notably, the c o u rt acknowledged the dangerous nature of heroin but noted that transferred intent was o n ly appropriate in child sexual abuse cases, where the unique and non-consensual nature o f the act guarantees that harm will occur. Id. It observed that where heroin is involved, " [ s ]o m e tim e s , users are fortunate and suffer no ill effects; other times, they lose c o n sc io u s n e ss ; in the worst of all scenarios, they die." Id. at 863. Because of the limited role of transferred intent in this context and in the absence

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o f an explicit ruling that public policy considerations preclude coverage for all incidents in v o lv in g drugs, this Court cannot find that Ms. Tagert's bodily injury was "intended by" T im o thy Hopfer. 2. W h eth er Ms. Tagert's Death Was Reasonably Expected to R e su lt

T h e question remains whether coverage for Timothy is precluded pursuant to the s e c o n d clause in the criminal act exclusion, which applies to bodily injury "which may re a so n a b ly be expected to result from the intentional or criminal acts or omissions of, any in s u r e d person." Even when a third party makes a claim against an insured for negligence, nonc o v e ra g e may be established based on a criminal act exclusion. See Bellina, 264 F. Supp. 2 d at 198. In Bellina, the Court found the insured's failure to ascertain a trespasser's id e n tity before shooting him constituted negligence and qualified as an occurrence, but it th e n based a finding of non-coverage on the insurance policy's criminal act exclusion. Id. a t 204. It found that the exclusion applied because of the insured's conviction for v o lu n ta ry manslaughter--a specific intent crime--in connection with the shooting. See id . As discussed above, the intentionality of underlying conduct is not to be assumed in P e n n sylv a n ia. Specific intent crimes such as assault or murder are intentional on their f a c e and are therefore "reasonably expected" to bring about the bodily harm they cause. See Bellina, 264 F. Supp. 2d at 198; Allstate Insurance Co. v. Ervin, 2006 WL 2372237 at * 4 (E.D. Pa. Aug. 14, 2006) (criminal act exclusion applied to assault by the insured); -15-

A lls ta te Ins. Co. v. Key-Berthau, 2008 WL 5382924 at *8 (criminal act exclusion applied to insured's intentional act of shooting the victim nine times with a gun). T im o th y Hopfer pleaded guilty to a criminal charge--Drug Delivery Resulting in D e a th -- in connection with his actions on the evening of December 7, 2005. This statute p r o v i d e s that: "A person commits murder of the third degree who administers, dispenses, d e liv e rs , gives, prescribes, sells or distributes any controlled substance . . . and another p erso n dies as a result of using the substance." 18 Pa. C.S. § 2506. Conviction under § 2 5 0 6 does not require specific intent for harm to result; however, it does require a s h o w in g of malice. See Commonwealth v. Ludwig, 583 Pa. 6, 19­20, 874 A.2d 623, 630 (P a. 2005); Commonwealth v. Costa, 861 A.2d 358, 363 (Pa. Super. Ct. 2004). In d is c u ss in g the showing of malice required for a conviction under § 2506, the P e n n s ylv a n ia Supreme Court looked to the traditional common law requirements for c o n v ictio n of a malice crime, explaining that: " M a lice has been characterized as exhibiting an "extreme indifference to h u m a n life," and "may be found to exist not only in an intentional killing, b u t also in an unintentional homicide where the perpetrator `consciously d is re g a rd e d an unjustified and extremely high risk that his actions might c a u se death or serious bodily harm.'" Indeed, our Court has stated that an in f e re n c e of malice is not supported even by evidence which demonstrates that a defendant acted out of anger and rage; in such a case, voluntary m a n sla u g h te r, not murder, is established. Thus, the mental state of malice a f o re th o u g h t is significantly more than mere carelessness or neglect, or the d is re g a rd of a chance or possibility of death, and it is this special frame of m in d that is required to obtain a conviction under Section 2506." L u d w ig, 874 A.2d at 632 (internal citations omitted).

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T h e Hopfer policy excludes coverage for injury "which may reasonably be e x p e cte d to result from the intentional or criminal acts or omissions of, any insured p e rs o n ." Timothy Hopfer's conviction for Drug Delivery Resulting in Death establishes n o t only that Timothy could reasonably expect injury to result from his criminal act of g iv in g Dilaudid to Ms. Tagert, but also that by doing so, he disregarded an extremely high ris k that injury would result. Therefore, Timothy Hopfer is excluded from coverage p u rs u a n t to the policy's criminal act exclusion. T h e Hopfer policy's criminal act exclusion applies to "bodily injury or property d a m a g e . . . which may reasonably be expected to result from the. . . criminal acts . . . of a n y insured person." An insurer does not owe a duty to defend an "innocent" insured w h e n the policy excludes coverage for bodily injuries arising from the intentional or c rim in a l acts of "any insured." Baumhammers, 893 A.2d at 818 (immaterial that parents o f child who committed criminal acts did not engage in criminal behavior because the p o lic y exclusion applied to the criminal behavior of "any insured"); see also Allen, 708 A .2 d at 832 (noting distinction between exclusion for "any insured" and "the insured"). Because the Hopfer policy's exclusion pertains to the criminal acts of "any insured," and T im o th y Hopfer is excluded from coverage due to criminal acts that could reasonably be e x p e cte d to result in the death of Ms. Tagert, the remaining Hopfers, too, are excluded f ro m coverage.

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IV. CONCLUSION I will grant Allstate's motion for judgment on the pleadings. I find that Allstate h a s no duty to defend or indemnify the Hopfers in the underlying civil action due to the o p e r a tio n of the policy's criminal act exclusion. An appropriate order follows.

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