Insurance Law

Can Murder Ever Be Accidental? – Tenant is Not an Insured

By definition liability insurance never applies to an intentional act. When a person rents a room in her house to a convicted felon with a history of violence and then gives the tenant a gun to use as he desires, she cannot claim that when the felon kills her son-in-law, that the shooting was an accident and covered by her insurance policy for negligently letting him have the gun. Murder, established by a conviction beyond a reasonable doubt, should never be considered an accident or an act for which an insurer must respond with defense or indemnity

In Szerbowski v. Trinka, Slip Copy, 2015 Wisc. App. LEXIS 542 (Wis.App., 7/21/2015), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], the Wisconsin Court of Appeal was asked to determine the issue of coverage after a fatal shooting  that resulted in a conviction of first-degree reckless homicide.

FACTS

Amy Szerbowski appeals a judgment concerning an insurance coverage dispute arising out of the shooting death of her husband.

The shooting in this case happened at the home of Szerbowski’s mother, Connie Puerling. George Trinka resided at Puerling’s residence. Puerling was aware that Trinka was a felon with a history of problems with drinking, anger and violence, but she entrusted to Trinka a handgun previously owned by her deceased husband. Trinka produced the weapon during a family dispute some time later and fatally shot Szerbowksi’s husband, Steven. Trinka was convicted of first-degree reckless homicide and felon in possession of a handgun.  At the time of the shooting, Puerling’s homeowner’s insurance policy issued by State Auto Insurance Company indemnified Puerling for bodily injury arising out of an “occurrence,” defined in the policy as an “accident.”

Szerbowski commenced a lawsuit against Trinka and State Auto, alleging negligence on the part of Trinka, and negligent entrustment of the weapon on the part of Puerling although she did not name her mother in the suit. State Auto disputed coverage.

The circuit court concluded Trinka was not an insured under Puerling’s policy because he was not named as an insured nor was he a resident relative of Puerling.

The court further determined that Puerling’s act did not qualify as an accidental “occurrence” under State Auto’s policy because Puerling gave the gun to Trinka deliberately, not by accident. The court therefore granted State Auto’s motion for summary and declaratory judgment. The plaintiff appealed.

ANALYSIS

The construction or interpretation of an insurance policy and the grant of summary judgment present questions of law that an appellate court reviews as if it was a new case brought directly to the appellate court. In doing so the appellate court must consider the words in an insurance policy given the common and ordinary meaning. When the language of the policy is plain and unambiguous, it is enforced as written, without resort to rules of construction. Summary judgment is properly granted on an insurance coverage question if no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law.

Szerbowski concedes there was no coverage for Trinka because he was not an “insured” under State Auto’s policy. Szerbowski nevertheless insists the death of Steven was the result of an “occurrence” within the meaning of State Auto’s policy because Puerling negligently entrusted the gun to Trinka. We disagree.

The Wisconsin Supreme Court recently reviewed the law concerning coverage for an “occurrence,” defined in the standard policy as an “accident.” When analyzing whether there was an “accident” for the purposes of a liability policy, Wisconsin courts take an approach that considers whether the insured acted with lack of intent in a particular incident.

To assess the existence of an accident, courts must focus on the “means or cause” of harm to determine whether it was accidental, even if the result was unexpected.

Here, Puerling’s act of entrusting a handgun to a volatile felon with a known history of drinking problems and a tendency to become belligerent when intoxicated created the means or cause of harm. Szerbowski testified at her deposition that Trinka “pretty much” “drank every day.” Trinka testified that on the day of the shooting, “my blood alcohol was, I think, .143, Steve’s was .200, Connie’s was .095….” Trinka’s anger management issues were also uncontroverted, and the record reveals a strained, aggravated relationship between Trinka and Steven. Trinka testified the two were “no stranger[s] to arguments prior to this incident,” and that they were like “oil and water” from “day one when I first met him.”

Under these circumstances, giving a handgun to Trinka put in place the conditions for a murder and bodily injury to Steven was hardly unforeseeable.

The Court of Appeal concluded, therefore, that the trial court correctly determined that Puerling’s act of entrusting the gun to Trinka did not qualify as an accidental occurrence under State Auto’s policy.

ZALMA OPINION

What amazes me about this case is not the result but that the plaintiff had the unmitigated gall to sue the felon who killed her husband to collect on an insurance policy issued to her mother and not the killer. To add to the insanity the plaintiff then appealed the trial court’s decision to the court of appeal even after admitting that the killer was not an insured. The plaintiff wasted the court’s time with a specious claim.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2015, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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