It is a safe bet that if a person fires a gun, and then seeks coverage for any resulting injuries, coverage issues, especially “expected or intended,” will ensue. It is also a safe bet that the person seeking coverage will come up empty. When it comes to wayward guns, it can be a challenge to secure coverage.
This is what makes Allstate v. Canell, No. 13-1182, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], (N.D. Ind. Sept. 22, 2015) an interesting, albeit sad, case. A gun was fired and coverage may still be owed.
David Canell was an aging and ill veteran. While on a waiting list for hospice care his family hired defendant Angela Campoli to care for Canell in his home. On her first day Campoli assisted Canell with getting around the house and taking care of his needs. While in his bedroom, Canell was getting agitated and acting erratically. He opened the top drawer of his dresser and pulled out a gun and ordered Campoli to “get the hell out of here.” Canell, after holding the gun to his head, then pointed it at Campoli and pulled the trigger. The bullet hit the dresser next to Campoli. She fled the room and got her foot stuck under a recliner in the living room. Campoli fell to the floor, crawled to the front door and dialed 911 when she got outside. Canell died of a self-inflicted gunshot wound.
Campoli sued Canell in Indiana state court for compensation for injuries to her back, leg and knee from the fall and emotional distress. Canell had a homeowner’s policy with Allstate and the insurer brought a declaratory judgment action asking the court to declare, as a matter of law, that it owed no duties under Canell’s policy. At issue in the coverage action was the policy’s exclusion for injury resulting from intentional acts of Canell.
With Canell deceased, and no ability to learn his subjective intent, the case focused on “inferred intent.” The court undertook a thorough analysis of several Indiana “inferred intent” coverage cases. They are fact-intensive decisions and the court sought to reconcile them.
The Canell court observed that “[i]n cases where the facts suggest the possibility that the action was an attempt to warn others of the undesirability of their actions, the Indiana courts are less likely to infer intent to injure.” Based on this standard, the Canell court held that intent to injure by Canell could not be inferred:
Under Harvey [Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], (Ind. 2006)] (the case that this court believes controls on this issue), intent to injure can be inferred only where reason mandates that from the very nature of the act, harm to the injured party must have been intended. The act in this case was Canell shooting a bullet from a gun in the same room as Campoli, with approximately an arm’s length of distance between them. Reason does not mandate that, from the very nature of Canell’s act, he must have intended to harm Campoli. Indeed, when taking the facts in a light most favorable to the Estate, reason could suggest other intentions on Canell’s part; given the fact that Canell ordered Campoli out of the room, shot the gun, and ordered her out again, reason could lead to the conclusion that Canell’s act of shooting was actually intended to motivate Campoli to leave the room so he could be alone, not to harm her at all. Perhaps firing a weapon with another person in the room suggests a disregard for the safety of the other person, but it does not “mandate” a finding of an intent to harm that person. Taking the facts in a light most favorable to the Estate, Canell’s act of shooting the gun in this case was more like firing a warning shot near trespassers, or shooting a gun at a lower portion of a door concealing a suspected burglar, and less like a direct punch in the face. Thus, the court finds that it is unable to infer as a matter of law that Canell intended to injure Campoli, and the court cannot determine as a matter of law that Allstate is free from its burden of providing coverage under the policy issued to Canell due to the intentional acts exclusions in the policy.” (citations and internal quotes omitted) (emphasis in original).
The Canell court gets high marks for its thorough job in analyzing, and attempting to reconcile, Indiana case law in reaching its decision. The court rejected Allstate’s urging that it consider cases from other states, calling that unnecessary because “Indiana jurisprudence provides ample guidance.” But speaking of other states, I believe that courts in many of them would have reached a different decision. Pointing a gun at someone, and firing it, is just too much of a disregard for the safety of the other person to not “mandate” a finding of an intent to harm that person.
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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