Another insurance claim arising out of an accidental shooting

Michigan insurers have become far more aggressive in attempting to deny coverage for accidental shootings.  In recent years, we have been forced to litigate the fact of coverage in the case of hunting accidents and carless use of a BB gun by kids.  In Pioneer State v. Alore, et al., the appellate court adressed this issue once again.  The appellate panel had to consider both whether an "accident" had occurred and whether coverage was excluded by an "intentional or criminal act".

One Richard Stanley-John Jankowski, aged 17, invited a group of friends over, in his parents' absence, and they all proceeded to drink alcohol and ingest cocaine.  The kid then opened his dad's gun cabinet, took out a handgun, emptied it of bullets, and used it to play a trick on his buddy Mark Alore.  The trick was on Richard, not his fatally-wounded buddy, as Richard had only removed 5 bullets and had left one in the chamber.  When the Alore family sued him, Richard's homeowners insurance denied coverage.  It claimed the shooting was not an "accident" and that in any event Richard was guilty of a "criminal or intentional act".  Insurers have successfully argued to the Cliff Taylor/Engler court that even a criminally negligent act (such as negligent discharge of a BB gun) is an exception from the coverage provided under an insurance policy.

The appellate judges pointed out, however, that the Taylor/Engler Court insisted that policy language defining "accidents" must be interpreted from the standpoint of the insured.  In other words, it is not an issue of whether an objectively-reasonable person would have expected the "unloaded" gun to fire, but rather, whether this insured expected the "unloaded" gun to fire.  On this basis, the current case falls squarely under the interpretation of that prior Taylor decision in McCarn v. Allstate and there was an "accident" under the policy.

The Court then had to examine the criminal acts/intentional acts exclusion from coverage.  Given that the shooter in this case pleaded guilty to involuntary manslaughter, this would seem to be an "open and shut" issue, however, longstanding Michigan law on insurance policies requires the insurer to prove both the intentional or criminal act, and also prove that the insured should reasonably have expected the resulting injury or damages.  In this case, taking into account the "totality of facts" known by the insured, an objective person would not expect that pulling the trigger on an "unloaded" gun would kill someone.  Since the insurer had presented no evidence to contradict the shooter's claim that he was certain he had removed all of the bullets from the gun, the insurer had no factual basis to argue that Richard's act was an excludable intentional act, rather than simply a stupid, negligent mistake.