Dec 15, 2017 5 min read

State Superior Court has sent back to Washington County the insurance case of a man shot in the face by his girlfriend’s ex-husband.

But Herman Bigi, the Charleroi attorney who won the latest round in the appellate court, said, “This is a very important case for people injured in accidental shootings. It would not surprise me if Erie would take it all the way to the Supreme Court.”

Superior Court’s online docket shows the appeal process is continuing. Erie Insurance Exchange filed last week for re-argument of the case.

According to the underlying complaint, Richard Carly of Kopper Kettle Road was injured in September 2013 when he went to the aid of his girlfriend, Terry L. McCutcheon, who lived on Arrowhead Drive, South Strabane Township.

She abruptly ended a phone call that night with Carly. According to police and court records, McCutcheon’s ex-husband, Harold E. McCutcheon Jr., broke into her home and shot her twice in the upper torso, killing her.

The McCutcheons divorced in 1996.

On Sept. 26, 2013, Harold McCutcheon Jr. notified his children through a note he intended to kill Terry McCutcheon and then commit suicide.

When Carly was unable to resume his phone call with Terry McCutcheon, he went to the Arrowhead Drive home about 11:45 p.m. and was attempting to enter. Carly, not knowing Terry McCutcheon was already dead, was pulled inside the home by Harold McCutcheon Jr.

Bigi, in an interview Thursday, called the shooter “befuddled.”

The men struggled and Carly was shot in the face. He managed to escape and crawl to the home of a neighbor, who summoned help. Carly was flown to a Pittsburgh hospital, where he underwent surgery.

South Strabane police contacted the Washington area SWAT team for assistance. Harold McCutcheon later shot and killed himself after keeping police at bay. Surrounding homes were evacuated.

Carly filed suit in early 2014, seeking damages from Harold McCutcheon’s estate and his children with whom he lived, Tracy L. Moore and Harold E. McCutcheon III. At the time of the shooting, Harold McCutcheon Jr. was insured under two policies issued by Erie. One was a homeowner’s policy and the other is what is known as an “excess liability policy” for personal injury or property damage which is neither expected nor intended.

Carly, in his lawsuit, described his injuries as permanent and including post-traumatic stress disorder, a lower jaw fracture and deformity, hearing loss in both ears and severe facial scarring. He raised the possibility of needing medical treatment for the rest of his life and claimed his injuries were caused by Harold McCutcheon’s deliberate conduct.

In a separate action, Erie asked Washington County Court to determine whether it was obligated to provide coverage for Carly’s claim against the Harold McCutcheon estate.

Washington County President Judge Katherine B. Emery ruled two years later Erie Insurance Exchange was not obligated to defend or indemnify the estate of Harold McCutcheon Jr.

“While tragic, the shooting of Carly by McCutcheon Jr. cannot fall within the definition of an accident,” Emery wrote.

A panel of three Superior Court judges, however, disagreed.

“We reverse because the facts pleaded in Carly’s complaint against (Harold McCutcheon’s) estate allege that Carly’s injuries were caused by unintentional conduct,” stated an opinion by Judge Carl A. Solano, who heard the case along with Judges Judith Ference Olson and Lillian Harris Ransom.

Erie Insurance contended the policies it issued to McCutcheon did not cover Carly’s injuries because McCutcheon inflicted them intentionally.

Carly’s position, as represented by Bigi, is the discharge of the gun and resulting injuries were unintentional and Erie is required to defend the suit and compensate the victim for his injuries. Because Emery disagreed, Bigi appealed her decision to Superior Court.

As part of his 26-page opinion, Solano wrote, “The allegations make clear that McCutcheon went to his former wife’s home to kill her and himself – not Carly; indeed, they make clear that Carly’s arrival at the home was totally unplanned and unexpected. Moreover, there is nothing in the complaint to suggest that McCutcheon knew Carly was his ex-wife’s boyfriend and would therefore have had that motivation to deliberately shoot him.”

Emery’s “labeling of McCutcheon’s shooting of Carly as ‘deliberate conduct’ does not match the allegations of the complaint,” Solano continued. “The facts alleged by Carly bear no resemblance to those of the willful assault cases on which Erie relies.”

Superior Court reversed Emery’s order in favor of Erie, noting the trial court must enter a judgment in favor of Carly.

The opinion is a published one, meaning it is a precedent-setting case, Bigi said Thursday. “We’re asking for money damages. Erie said, ‘We don’t want to pay anything.’ I respect Judge Emery. These aren’t easy cases.”