State Farm Fire & Casualty Co v. the Estate of Thomas W. Mehlman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 08-2220, 08-2261, 08-2262
_____________
STATE FARM FIRE & CASUALTY CO.,
Appellant in No. 08-2220
v.
THE ESTATE OF THOMAS W. MEHLMAN;
WILLIAM F. MEHLMAN, EXECUTOR OF
THE ESTATE OF THOMAS MEHLMAN;
MARIA IACONO
STATE FARM FIRE & CASUALTY CO.
v.
ESTATE OF THOMAS W. MEHLMAN;
WILLIAM F. MEHLMAN, EXECUTOR
OF THE ESTATE OF THOMAS MEHLMAN;
MARIA IACONO
MARIA IACONO
Appellant in No. 08-2261

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2
STATE FARM FIRE & CASUALTY CO.
v.
ESTATE OF THOMAS W. MEHLMAN;
WILLIAM F. MEHLMAN, EXECUTOR
OF THE ESTATE OF THOMAS MEHLMAN;
MARIA IACONO
THE ESTATE OF THOMAS
W. MEHLMAN and
WILLIAM F. MEHLMAN,
Appellants in No. 08-2262
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 06-2960)
Honorable Thomas M. Golden, District Judge
Argued November 3, 2009
BEFORE: SCIRICA, Chief Judge, and JORDAN and
GREENBERG, Circuit Judges
(Filed: December 16, 2009)

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Eric R. Brown
John J. Hare (argued)
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103
Attorneys for Appellant-Cross-Appellee State Farm Fire &
Casualty Co.
Mark E. Lovett (argued)
Hartman, Underhill & Brubaker
221 East Chestnut Street
Lancaster, PA 17602-0000
Attorneys for Appellee-Cross-Appellants William F.
Mehlman and Estate of Thomas W. Mehlman
Brian P. Kelly
Joseph L. Messa, Jr. (argued)
Messa & Associates
123 South 22nd Street
Philadelphia, PA 19103-0000
Attorneys for Appellee-Cross-Appellant Maria Iacono
OPINION OF THE COURT

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We refer to the appeals as do the parties as an “appeal” and1
“cross-appeals” in accordance with the order of the docket
numbers assigned in this Court. Actually all the parties
appealed at about the same time.
4
GREENBERG, Circuit Judge
I. INTRODUCTION
This matter comes on before this Court on an appeal
and cross-appeals from a final order of the District Court
dated March 27, 2008, and entered March 28, 2008, in a
declaratory judgment action initiated by the State Farm Fire &
Casualty Company. See State Farm Fire & Cas. Co. v. Estate1
of Mehlman, 2008 WL 863969 (E.D. Pa. Mar. 28, 2008)
(“State Farm”). Both the District Court and this Court have
been asked to decide whether two insurance policies, the
“Homeowners Policy” and the “Umbrella Policy,” that Dr.
Thomas W. Mehlman purchased from State Farm required it
to defend or indemnify Mehlman’s estate and its executor,
William F. Mehlman (collectively, “the Mehlman Estate”), in
an action that Maria Iacono brought against them (the
“Underlying Action”).
In the order from which the parties have appealed and
cross-appealed, the District Court granted in part and denied
in part their respective cross-motions for summary judgment,
as it concluded that State Farm did not have a duty to defend
or indemnify the Mehlman Estate under the Homeowners
Policy, but that it did have the duty to defend but not

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Inasmuch as Pennsylvania law governs this action we treat2
Pennsylvania Supreme Court opinions as binding precedent and
Pennsylvania Superior Court opinions as persuasive precedent.
See Jewelcor Inc. v. Karfunkel, 517 F.3d 672, 676 n.4 (3d Cir.
2008).
5
necessarily indemnify the Mehlman Estate under the
Umbrella Policy. State Farm appeals from the portion of the
District Court’s order holding that it has a duty to defend the
Mehlman Estate under the Umbrella Policy, and Iacono and
the Mehlman Estate cross-appeal from the portion of the order
holding that State Farm does not have a duty to defend or
indemnify the Mehlman Estate under the Homeowners Policy.
Id. at *8.
The dispositive question in this Court is whether
Mehlman’s alleged drunkenness on the afternoon of March 5,
2005, may have rendered “accidental” under Pennsylvania
law, which the parties agree is applicable, his attempts to
shoot and possibly kill Iacono, for unless they did so, State
Farm did not have a duty to defend or indemnify the
Mehlman Estate under either policy. Because we answer this2
question in the negative, we hold that State Farm does not
owe a duty under either policy to defend or indemnify the
Mehlman Estate in the Underlying Action. Accordingly, we
will affirm in part and will reverse in part the order of the
District Court and will remand the case to the District Court
for entry of judgment in State Farm’s favor.

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We base our factual recitation solely on the allegations in3
Iacono’s amended complaint in the Underlying Action, even
though there was discovery in this coverage case in which more
germane facts may have surfaced, because an insurer’s duty to
defend an action against its insured is initially measured on the
basis of the allegations of the pleadings in the complaint against
the insured. See Donegal Mut. Ins. Co. v. Baumhammers, 938
A.2d 289, 290-91 (Pa. 2007).
6
II. BACKGROUND
A. The Events of March 5, 2005
The events giving rise to this dispute are tragic and
bizarre. On the afternoon of March 5, 2005, Mehlman3
entered Ristorante La Locanda in Edgemont, Pennsylvania,
and began drinking at the restaurant’s bar. After consuming a
number of alcoholic drinks within a short time, Mehlman
became visibly intoxicated and cognitively impaired. He then
left the restaurant, and, at approximately 4:30 p.m., walked
one and one-half miles to the residence owned by his
girlfriend or former girlfriend Phyllis Sauter. Iacono was
present at Sauter’s residence because she resided in a suite
that she rented on its second floor. When Mehlman went to
Sauter’s residence he brought a backpack containing a .45
caliber handgun. Upon arriving at Sauter’s residence,
Mehlman let himself in, and upon encountering Iacono, asked
to see Sauter. Iacono explained that Sauter was in Colorado,
but Mehlman became increasingly agitated and aggressive,
threatening Iacono with loud, abusive language, and
demanding to see Sauter. After Mehlman refused Iacono’s

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7
requests to leave, Iacono left the house and walked toward her
car.
As Iacono entered her car and prepared to leave,
Mehlman, now armed with the handgun, approached Iacono’s
vehicle in a rage, raised his gun, aimed the weapon at
Iacono’s head, and pulled the trigger, but the gun did not
discharge. Iacono attempted to flee, but was unsuccessful as
she stalled her car and then crashed it into a tree as she tried to
drive away. Mehlman then jumped up on the front of
Iacono’s car, laid his body flat on the hood, aimed his gun at
Iacono’s head through the front windshield, and pulled the
trigger. The gun, however, again misfired. Mehlman,
undeterred, then approached the passenger side of Iacono’s
car, attempted to break the passenger-side window with his
elbow, and for a third time tried to shoot Iacono but the gun
again misfired. When Iacono finally escaped and drove away,
Mehlman chased after her and fired at least one shot in the
direction of her vehicle but fortunately his shot or shots
missed.
Mehlman then returned to Sauter’s residence and went
inside. Shortly thereafter, police arrived and attempted to
negotiate Mehlman’s surrender. At approximately 11:30
p.m., a SWAT team entered the residence and found
Mehlman dead. A police report indicated that he died from a
self-inflicted gunshot wound to his head, and placed the time
of death at approximately 5:00 p.m. According to a
toxicology report, Mehlman’s blood-alcohol level at the time
the police found his body was 0.21 percent. Mehlman did not

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Though Iacono makes the allegation which we accept on this4
appeal that Mehlman did not consume any alcohol after he left
the restaurant, we cannot help but wonder how she could know
that Mehlman did not drink any alcoholic beverage after he
returned to the Sauter residence following Iacono’s escape.
Though the Homeowners Policy and the Umbrella Policy5
provide coverage for “property damage” in addition to “bodily
injury,” inasmuch as neither Iacono nor the Mehlman Estate rely
on the property damage provisions of the policies to provide
coverage for the Estate in the Underlying Action, we do not
address them further.
8
ingest any alcohol between the time he left Ristorante La
Locanda and the time of his death.4
B. The Insurance Policies
Mehlman’s Homeowners Policy provides $500,000 in
liability coverage “[i]f a claim is made or a suit is brought
against an insured for damages because of bodily injury . . .
caused by an occurrence.” App. at 22. The policy defines5
“bodily injury” as “physical injury, sickness, or disease to a
person,” but states that “bodily injury does not include . . .
emotional distress, mental anguish, humiliation, mental
distress, mental injury, or any similar injury unless it arises
out of actual physical injury to some person.” Id. at 8. The
policy defines an “occurrence” as “an accident, including
exposure to conditions, which results in” bodily injury. Id. at
9. The Homeowners Policy further limits coverage because it
contains an exclusion that states that it does not provide

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The complaint also includes a claim for punitive damages in a6
separate count.
9
coverage for bodily injury “(1) which is either expected or
intended by the insured; or (2) which is the result of willful
and malicious acts of the insured.” Id. at 23.
Mehlman’s Umbrella Policy provides $1,000,000 in
liability coverage if an insured is “legally obligated to pay
damages for a loss.” Id. at 51. The policy defines “loss” as
“an accident that results in personal injury” which it defines
as “bodily harm, sickness, disease, shock, mental anguish or
mental injury.” Id. at 49-50. In a provision that parallels the
Homeowners Policy, the Umbrella Policy excludes from its
coverage personal injury “which is either expected or
intended” by the insured, or which was a result of the
insured’s “willful and malicious act, no matter at whom the
act was directed.” Id. at 52.
C. Procedural History
Iacono brought the Underlying Action in the Court of
Common Pleas of Delaware County, Pennsylvania, on
November 14, 2005, against the Mehlman Estate and other
defendants with whom we are not concerned on this appeal,
seeking compensation for injuries she claimed to have
suffered by reason of Mehlman’s actions. In her amended
complaint, Iacono set forth four counts against the Mehlman
Estate: (1) intentional infliction of emotional distress; (2)
negligent infliction of emotional distress; (3) assault with a
firearm; and (4) negligence. Upon receipt of the lawsuit, the6

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10
Mehlman Estate demanded a defense and indemnification
from State Farm pursuant to the Homeowners Policy and the
Umbrella Policy. See State Farm, 2008 WL 863969, at *2.
State Farm retained counsel to defend the Mehlman Estate but
did so subject to a reservation of rights that would allow it to
disclaim coverage later.
State Farm then brought a declaratory judgment action
in the Court of Common Pleas of Lancaster County,
Pennsylvania, against the Mehlman Estate and Iacono to
determine whether it owed a duty to defend or indemnify the
Mehlman Estate in the Underlying Action, but Iacono
removed State Farm’s action to the District Court. Following
discovery, the parties filed cross-motions for summary
judgment, with State Farm seeking a declaration that it did not
owe a duty to defend or indemnify the Mehlman Estate under
either policy in the Underlying Action, and with the Mehlman
Estate and Iacono seeking a declaration that State Farm owed
those duties under both policies.
In a Memorandum Opinion and Order dated March 27,
2008, and entered March 28, 2008, the District Court granted
in part and denied in part each party’s motion for summary
judgment, as it concluded that State Farm did not have a duty
to defend or indemnify the Mehlman Estate under the
Homeowners Policy because Iacono’s alleged injuries did not
constitute “bodily injury” as defined in that policy, State
Farm, 2008 WL 863969, at *4, but that State Farm did have a
duty to defend the Mehlman Estate under the Umbrella Policy
“at least until such time as the factual record can show that
Dr. Mehlman’s purported state of intoxication did not negate

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11
any intent on his part.” Id. at *8. The appeal and cross-
appeals followed.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction in
this diversity of citizenship action pursuant to 28 U.S.C. §§
1332 and 1441, and we have jurisdiction to review the final
order of the District Court pursuant to 28 U.S.C. § 1291. We
exercise plenary review of a district court’s final decision
resolving cross-motions for summary judgment. Startzell v.
City of Philadelphia, 533 F.3d 183, 192 (3d Cir. 2008). We
review a district court’s interpretation and prediction of state
law, in this case Pennsylvania law, de novo. Koppers Co. v.
Aetna Cas. and Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996).
IV. DISCUSSION
In determining whether State Farm owes a duty to
defend or indemnify the Mehlman Estate in the Underlying
Action, we examine the allegations in Iacono’s amended
complaint in the Underlying Action and the language of the
insurance policies that Mehlman purchased from State Farm:
[A]n insurer’s duty to defend an action against
the insured is measured, in the first instance, by
the allegations in the plaintiff’s pleadings. . . . In
determining the duty to defend, the complaint

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claiming damages must be compared to the
policy and a determination made as to whether,
if the allegations are sustained, the insurer
would be required to pay [the] resulting
judgment. . . . [T]he language of the policy and
the allegations of the complaint must be
construed together to determine the insurer[’s]
obligation.
Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286, 290
(Pa. 2007) (quoting Gene’s Restaurant, Inc. v. Nationwide
Ins. Co., 548 A.2d 246, 247 (Pa. 1988)). Accordingly, we
first consider whether either the Homeowners Policy or the
Umbrella Policy affirmatively provides for coverage against
the claims in Iacono’s amended complaint.
The Homeowners Policy provides coverage only for
damages caused by an “occurrence,” and the Umbrella Policy
similarly limits coverage to damages caused by a “loss.” The
policies define “occurrence” and “loss” as accidents.
Therefore, if Mehlman’s actions on March 5, 2005, do not
constitute an accident within the meaning of that term as used
in the policies, State Farm does not owe a duty under them to
defend or indemnify the Mehlman Estate in the Underlying
Action. See Gene’s Restaurant, 548 A.2d at 247 & n.1
(existence of accident was “policy requisite,” and insurer
owed no duty to defend where alleged injuries not caused by
accident).
Ordinarily in insurance coverage disputes an insured
bears the initial burden to make a prima facie showing that a
claim falls within the policy’s grant of coverage, but if the

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We do not suggest that our result would have been different if7
we had taken the other approach and considered Mehlman’s
intent in determining if an exclusion precluded coverage.
13
insured meets that burden, the insurer then bears the burden of
demonstrating that a policy exclusion excuses the insurer
from providing coverage if the insurer contends that it does.
Koppers, 98 F.3d at 1446 (applying Pennsylvania law).
Courts interpreting “occurrence” policies have split on
whether they should analyze the insured’s intent as part of the
insured’s prima facie case of demonstrating that there was an
accident, or as part of the insurer’s burden to demonstrate that
the exclusion for intentional conduct is applicable. See Barry
R. Ostrager & Thomas R. Newman, Handbook on Insurance
Coverage Disputes 442-44, § 8.03[e] (10th ed. 2000)
(comparing different approaches).
Here the plain language of both policies limits
coverage to damage caused by an accident, and the parties
have briefed and argued the case on that basis. Accordingly,
we examine Mehlman’s intent in engaging in his conduct in
the context of determining whether the insurance policies
affirmatively provide coverage, i.e., in deciding whether there
was an accident so that there was a “loss” or “occurrence” for
which there is coverage. Cf. Minnesota Fire & Cas. Co. v.7
Greenfield, 855 A.2d 854, 861 n.6 (Pa. 2004) (noting that
although it may be preferable to resolve case by principles of
contract construction and hold that a sale of heroin was not an
“accident,” that issue had not properly been raised on appeal).

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14
Neither policy provides a definition of “accident,” but
the Pennsylvania Supreme Court, in noting that courts have at
times struggled to determine whether there has been an
accident, has emphasized that the fortuity of the events in
question is the key factor to consider in making that
determination:
An accident, simply stated, is merely an
unanticipated event; it is something which
occurs not as the result of natural routine but as
the culmination of forces working without
design, coordination or plan. And the more
disorganized the forces, the more confusedly
they operate, the more indiscriminately
haphazard the clash and intermingling, the more
perfect is the resulting accident.
Brenneman v. St. Paul Fire & Marine Ins. Co., 192 A.2d 745,
747 (Pa. 1963). Moreover, “[q]ualification of a particular
incident as an accident seems to depend on two criteria: 1.
the degree of foreseeability, and 2. the state of mind of the
actor in intending or not intending the result.” Black’s Law
Dictionary 16 (9th ed. 2009) (quoting John F. Dobbyn,
Insurance Law in a Nutshell 128 (3d ed. 1996)).
In determining whether Iacono’s injuries resulted from
an accident, we must view the operative events from
Mehlman’s perspective, for State Farm insured him not
Iacono. See Baumhammers, 938 A.2d at 293 (“[W]e are
required to determine whether, from the perspective of the
insured, the claims asserted . . . present the degree of fortuity
contemplated by the ordinary definition of ‘accident.’”).

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Accordingly, it is of no significance in our analysis that the
events in question were unexpected, as they surely must have
been, when viewed through the eyes of Iacono.
Neither Iacono nor the Mehlman Estate contends that
any injury Iacono suffered in the incident was not a
foreseeable result of Mehlman’s attempted shooting of her,
and neither contends that, absent Mehlman’s intoxication, any
such injury could be considered the result of an accident.
See, e.g., Gene’s Restaurant, 548 A.2d at 247 n.1 (“[A]n
‘occurrence’ must be an accident which a malicious, willful
assault and beating could never be.”). Thus, the dispute in
this case centers on the question of whether Mehlman’s
intoxication might have rendered conduct accidental even
though it otherwise would be regarded as intentional.
1. The Effect of Intoxication under Pennsylvania Law
In Pennsylvania, as elsewhere, “insurance is not
available for losses that the policyholder knows of, planned,
intended, or is aware are substantially certain to occur.” See
Ostrager & Newman, supra, at 419, § 8.02 (collecting cases);
see also United Servs. Auto Ass’n v. Elitzky, 517 A.2d 982,
989 (Pa. Super. Ct. 1986) (“An insured intends an injury if he
desired to cause the consequences of his act or if he acted
knowing that such consequences were substantially certain to
result.”). Accordingly, an insured is not entitled to coverage
for damages caused by his intentional assault on another
person. Gene’s Restaurant, 548 A.2d at 247.
Under Pennsylvania law, “imbibed intoxicants must be
considered in determining if the actor has the ability to

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formulate an intent.” Stidham v. Millvale Sportsmen’s Club,
618 A.2d 945, 953 (Pa. Super. Ct. 1993) (citing Nationwide
Mut. Ins. Co. v. Hassinger, 473 A.2d 171, 176 (Pa. Super. Ct.
1984)). Thus, if the actor lacks the ability to formulate an
intent, the resulting act cannot be intentional. Id. The mere
fact that an insured was intoxicated, however, will not prevent
a court from finding that he intended the natural and probable
consequences of his actions. See State Farm Mut. Auto. Ins.
Co. v. Martin, 660 A.2d 66, 68 (Pa. Super. Ct. 1995). It is
entirely appropriate to recognize this limitation on the
consequences of intoxication in coverage disputes, for
alcoholic beverages certainly can contribute to the loosening
of a person’s inhibitions without eliminating his ability to
intend to engage in harmful conduct. Indeed, the effect of the
use of alcoholic beverages may contribute to a party
formulating an intent to engage in anti-social conduct.
The Pennsylvania courts have on several occasions
addressed the effect that an insured’s intoxication has on the
insured’s capacity to commit an intentional act. In
Nationwide Mutual Insurance Co. v. Hassinger the
Pennsylvania Superior Court affirmed a declaratory judgment
that resulted from a jury finding that Nationwide Mutual
Insurance Company was not responsible to cover its insured,
David Hassinger, on a liability policy for his conduct in
driving his car while intoxicated and striking and killing a
pedestrian. 473 A.2d 171. There was evidence at the trial
indicating that after Hassinger struck the decedent, he exited
his car and stated “I told you I would get the son-of-a-bitch.”
Id. at 173-74. Hassinger and the decedent’s estate
nevertheless contended that Hassinger’s intoxication had
deprived him of the ability to formulate an intent. Id. at 173.

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The trial court instructed the jury that it must consider
Hassinger’s intoxication in determining whether he had the
ability to formulate an intent, and the court emphasized that if
an actor lacks such ability, the resulting act is not intentional.
Id. at 176. The jury found that Hassinger had acted
intentionally and the Superior Court affirmed, noting that the
jury instruction regarding intoxication “was a fair statement”
of Pennsylvania law. Id.
Stidham v. Millvale Sportsmen’s Cub, relied upon
heavily by Iacono and the Mehlman Estate, arose from an
incident in which the insured, Robert McLaughlin, shot and
killed Brett Stidham in a bar. 618 A.2d at 948. McLaughlin,
who had been drinking all day and who had a history of
alcoholic blackouts, never had met Stidham prior to the
shooting and claimed to have no memory of the incident. Id.
at 948-49. McLaughlin subsequently pled guilty to third
degree murder, which in Pennsylvania does not require proof
of specific intent, but rather is satisfied by a showing of gross
negligence. Id. at 949, 951 (citing 18 Pa. Cons. Stat. Ann. §
2501 (West 1998)). The administratrix of Stidham’s estate
initiated a wrongful death suit against the sports club where
McLaughlin had been drinking earlier in the day, as well as
the bar where the shooting occurred. Id. at 948. The two
initial defendants then joined McLaughlin in a complaint
alleging negligent, careless, reckless, and/or willful conduct.
Id. After a judgment was entered against McLaughlin, the
plaintiff instituted a garnishment proceeding against
McLaughlin’s insurer. Id. Relying solely on McLaughlin’s
guilty plea for third-degree murder, the insurance company
successfully moved for summary judgment, contending that

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McLaughlin’s conduct fell within the policy exclusion barring
coverage for “expected or intended” conduct. Id. at 950.
On appeal the Pennsylvania Superior Court held that
McLaughlin’s guilty plea was not conclusive evidence of his
intent, and that his intoxication may have deprived him of the
ability to formulate an intent. Id. at 952-53. Accordingly, the
court reversed the trial court’s grant of summary judgment,
holding that the Stidham complaint stated a cause of action
that the insurance company may be compelled to cover. Id. at
953-54. In reaching its conclusion, the court noted that
McLaughlin was suffering from “an alcoholic blackout as a
result of his extreme intoxication” at the time of the shooting,
that his precise intent never was determined conclusively in
the underlying criminal proceedings, and that he had stated in
his plea colloquy that he did not intend to kill or hurt anyone.
Id. at 949, 951, 952-53.
In State Farm Mutual Automobile Insurance Co. v.
Martin the Pennsylvania Superior Court considered an
automobile insurance policy which provided coverage for
bodily injury or property damage “caused by accident.” 660
A.2d at 67. The owner of the policy, Frederick Martin, had
driven drunk to his estranged wife’s house, struck his wife
with his truck, and repeatedly crashed the truck into his wife’s
vehicle, her rental home, and her boyfriend’s vehicle. Id. at
67. When the police arrived, Martin stated to them that
although he had aimed at his wife, he hoped that she was all
right. Id. In holding that State Farm did not have a duty to
provide coverage to Martin in an action initiated against him
by reason of his conduct, the court rejected the contention that
Martin’s “conduct was unintentional (and, therefore,

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The Martin court did not describe the underlying action but it8
seems to have been a property damage case that the owners of
his estranged wife’s rental property brought.
19
accidental) because he was under the influence of alcohol,”
and noted that:
It is correct that Martin’s speech was slurred, he
smelled of alcohol, and a blood test disclosed an
alcoholic blood content of .26 percent.
However, ‘while voluntary intoxication may so
cloud the mind as to deprive it of the power of
pre-meditation and deliberation [ ], it will not
prevent the formation of the general intent
necessary for the commission of an assault and
battery.’
Id. at 68 (quoting Esmond v. Liscio, 224 A.2d 793, 797 (Pa.
Super. Ct. 1966)). The court also reaffirmed that a court must
determine for insurance coverage purposes whether an act is
accidental from the vantage point of the insured. Id.8
Our review of the relevant Pennsylvania law leads us
to conclude that Mehlman’s intoxication cannot render his
alleged actions on March 5, 2005—walking to his girlfriend’s
house equipped with a loaded handgun and, after
encountering Iacono, attempting to shoot and kill
her—accidental under Pennsylvania law. An actor is
presumed to intend the natural and expected results of his
actions. Baumhammers, 938 A.2d at 292 (“An injury [] is not
‘accidental’ if the injury was the natural and expected result

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of the insured’s actions.”). We realize that situations may
arise in which an insured’s intoxication, particularly when
combined with other factors, may call the insured’s intent into
question. Thus, in State Farm Fire & Casualty Co. v.
Dunlavey, 197 F. Supp. 2d 183, 192 (E.D. Pa. 2001), the
court applying Pennsylvania law found that, based on
“evidence of the insured’s intoxication, physical infirmity in
his left eye, temporary injury to his right eye, and the
conflicting testimony as to intent,” the insured may not have
intended to injure his fellow bar patron by striking her with a
motorcycle helmet. Nevertheless, we do not believe that
Pennsylvania law permits us to treat Mehlman’s conduct in
attempting to shoot Iacono as an “accident” merely because
Mehlman was intoxicated when he engaged in the conduct.
In a difference from the complaint in Stidham, there is
no allegation in this case that Mehlman was in the midst of an
alcoholic blackout and had lost awareness of his actions at the
time he assaulted Iacono. The only allegations to support a
conclusion that this case involves an accident are that
Mehlman was intoxicated and cognitively impaired at the
time of the attack, and that he had a blood alcohol level of
0.21 percent when the police discovered his body. Although
these allegations indicate that Mehlman was drunk during the
events at issue, they do not suggest that Mehlman lacked
awareness of his actions. In fact, whatever the degree of
Mehlman’s intoxication it did not preclude him from walking
one and one-half miles from Ristorante La Loncanda to
Sauter’s residence. Thus, intoxicated or not Mehlman knew
the route to take and he had the ability to walk the
considerable distance required to get there. Furthermore, his
repeated attempts to shoot Iacono certainly support a

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conclusion that he knew what he was doing and his ability to
carry out his attempts demonstrate that his intoxication had a
limited impact on his use of his faculties. Unlike his gun,
which was not functioning as it was intended to do when it
misfired, Mehlman certainly was functioning precisely as he
intended. Moreover, Martin, a case involving allegations of
intoxication similar to those at issue in this appeal,
demonstrates that the Pennsylvania courts will not lightly
allow an insured to avoid the financial repercussions of an act
of violence by drinking himself into insurance coverage.
We are aware of the point raised by Iacono and the
Mehlman Estate that the insured actors in both Hassinger and
Martin made statements indicating their intent when engaging
in the conduct for which coverage was being pursued,
whereas Mehlman was not alleged to have made any such
statement. See Martin, 660 A.2d at 67 (insured told police
that he had aimed his truck at his wife but that he hoped she
was all right); Hassinger, 473 A.2d at 175 (“I told you I would
get the son-of-a-bitch.”). This distinction, while accurate, is
not dispositive. Such a statement, like other indicia of
intent—including an insured’s intoxication—is merely one
factor that a court should consider in determining whether the
insured intended to cause the results of his or her actions.
See Germantown Ins. Co. v. Martin, 595 A.2d 1172, 1175
(Pa. Super. Ct. 1991) (noting the insured’s lack of
intoxication, and stating that evidence that the insured “chose
an automatic handgun, brought extra ammunition, drove to
the right house, approached without incident and shot
repeatedly each person he saw leads [] inescapably to the
conclusion that [he] expected or intended to cause serious
harm”).

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The District Court minimized the significance of Martin9
because the Superior Court’s holding in that case with respect to
alcohol use and intent relied on a quotation from Esmond v.
Liscio. Martin, 660 A.2d at 68. The District Court
distinguished Esmond, a 1966 decision of the Superior Court,
because the Court reached its conclusion in that case only after
consideration of a well-developed factual record. See State
Farm, 2008 WL 863969, at *6. We find this distinction
22
Furthermore, when considering the significance of the
insureds’ statements in Hassinger and Martin, it should be
remembered that it was alleged that they made the statements
immediately following the events in question at a time that
they surely were intoxicated. See Martin, 660 A.2d at 67;
Hassinger, 473 A.2d at 175. In any event, Pennsylvania law
does not require that for an insured’s actions to be considered
intentional it must be accompanied by a declaration indicating
that the insured acted intentionally.
In sum there is no escape from a conclusion that
Mehlman’s alleged actions demonstrate that he had an
unmistakable intent to cause harm to Iacono. Damages
resulting from a violent assault with a deadly weapon are
“exactly the type of injury against which insurance companies
are not and should not be expected to insure.” See
Germantown Ins. Co., 595 A.2d at 1175. We believe the
Pennsylvania Supreme Court would agree with the Superior
Court’s observation in Martin that voluntary intoxication
ordinarily will not prevent the formation of the general intent
necessary for the commission of an assault of the kind Iacono
alleges to have suffered. See 660 A.2d at 68. Furthermore,9

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unavailing given that the Superior Court in Martin applied
Esmond’s holding to a case in which the record was developed
in a manner analogous to the process in the present matter.
In holding that none of the policy exclusions barred Iacono’s10
claims, the District Court noted that if it “wished to protect itself
from the duty to defend an intoxicated insured, State Farm could
have added more specific language to its policy to expand and
clarify its exclusions.” 2008 WL 863969, at *7. By providing
coverage only for damages caused by accidents, we believe
State Farm did express its desire to exclude coverage for
damages caused by a drunken insured’s violent assault. See
Mark W. Dykes, Occurrences, Accidents, and Expectations: A
Primer of These (and Some Other) Insurance Law Concepts,
2003 Utah L. Rev. 831, 874 (2003) (“[H]omeowner’s policies
are usually broad in their coverage. It is not a satisfactory
answer to say that insurers may draft around results that they
may not fairly be deemed to have anticipated, particularly when
such efforts will lead to long policies of daunting complexity.”).
23
Iacono in her amended complaint alleged that Mehlman
“through his intentional and/or extreme reckless actions,
intended to inflict severe emotional distress” on her. App. at
65. Where, as here, the injured party does not make
allegations indicating that an insured’s intoxication prevented
him from intending the consequences of his violent behavior,
we are satisfied that Pennsylvania law does not permit an
insured or his representative, i.e., the Mehlman Estate, to shift
responsibility for the damages resulting from his behavior to
his insurer.10

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24
2. Iacono’s Allegations of Negligence
We recognize that Iacono’s amended complaint in the
Underlying Action contains two causes of actions charging
the Mehlman Estate with negligence. Iacono and the
Mehlman Estate argued in the District Court that these
negligence counts, coupled with the allegations regarding
Mehlman’s intoxication, were sufficient to trigger State
Farm’s duty to defend. Though the District Court accepted
that argument in dealing with the Umbrella Policy, State
Farm, 2008 WL 863969, at *5-7, we disagree with the Court
on this point. Mehlman’s intoxication did not render his
attack on Iacono unintentional, and the inclusion of two
negligence causes of action cannot change that circumstance.
See Mut. Benefit Ins. Co. v. Haver, 725 A.2d 743, 745 (Pa.
1999) (“[T]he particular cause of action that a complainant
pleads is not determinative of whether coverage has been
triggered. Instead it is necessary to look at the factual
allegations contained in the complaint.”); Scopel v. Donegal
Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. Ct. 1997) (“[I]n
focusing attention upon the cause of action pled, [claimants]
run afoul of our caselaw, which dictates that the factual
averments contained in a complaint determine whether an
insurer must defend.”) (emphasis in original). Iacono cannot
square the circle by stating that Mehlman breached the duty of
care he owed Iacono when he attempted to shoot and kill her.
Of course, Mehlman breached a duty that he owed Iacono but
the duty he breached was not a duty of reasonable care, it was
a duty not to harm her intentionally. We cannot permit
Iacono, with allegations such that “Dr. Mehlman further
breached his duty to [Iacono] when he attempted to shatter the
driver’s side window with his elbow, pointed his gun at

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Our examination of the cases we have cited reveals that there11
is a tension in intoxication insurance coverage situations. On
the one hand it is unfortunate that the denial of coverage is
likely to deprive an innocent victim from obtaining
compensation for her injuries but on the other hand the
Pennsylvania cases make plain that it is against the policy of that
State to provide insurance coverage for insureds intentionally
committing wrongful acts intended to cause injury. Moreover,
insurance companies are not eleemosynary institutions and thus
courts cannot require them to provide coverage beyond the
scope of the coverage in their contracts unless duly adopted
legal requirements compel the companies to provide such
coverage. There is no such legal requirement implicated here.
25
[Iacono] and pulled the trigger,” App. at 67, to convert an
intentional act into an act of mere negligence.11
V. CONCLUSION
Because we conclude Iacono’s alleged injuries were
not caused by an accident, we hold that there was not an
“occurrence” under the Homeowners Policy or a “loss” under
the Umbrella Policy triggering a duty on the part of State
Farm to defend or indemnify the Mehlman Estate in the
Underlying Action. In light of this conclusion, we need not
consider the parties’ remaining contentions regarding the
applicability of the policy exclusions or whether Iacono
sufficiently alleged that she suffered “bodily injury.”
Accordingly, we will affirm the order of the District Court

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26
insofar as it holds State Farm does not have a duty to defend
or indemnify the Mehlman Estate under the Homeowners
Policy, but will reverse insofar as it holds that it has such a
duty to defend under the Umbrella Policy and will remand the
case to the District Court to enter judgment in favor of State
Farm.

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