Friday, September 16, 2005

On the Defensive

Picture this scenario. You are a homeowner. You spend a good portion of your paycheck on your mortgage, utilities, phone, trash, and of course, homeowner's insurance. As in most neighborhoods, you have neighbors and acquaintances. One of your acquaintances and you get involved in some sort of money transaction where one of you may or may not owe the other. He weighs three times as much as you, and has attacked and injured you in the past. He gets agitated over the dispute and comes to your home to confront you about it. The situation escalates, and in order to protect yourself and your family, you shoot the man. You don't intend to kill him; you don't ever want to be responsible for someone else's death. You only want to hurt him, to keep you and yours safe. Unfortunately the 12 gauge you use is remarkably accurate, and your acquaintance dies.

You are arrested, as you should be. At your criminal trial, you either hire a lawyer, or you have the Court appoint one for you. You do what makes sense; you hire your own attorney. You have your day in court, and the jury acquits you. You did nothing wrong; you protected your family from an intruder. We don't like that you took a life, but you swear you didn't intend to, and we believe you.

Now that you've won your freedom at extensive cost to you, you are sued for wrongful death by the estate of the man whose life you took, a civil suit. Your insurance company wants a declaration that they are not required to provide you counsel. You feel that since you did not intentionally kill the man, the killing was accidental. According to the plain language of the policy you have, the company must defend or indemnify you against accidental occurrances.

The Insurance company sees it differently. They deem the act of shooting to be an intentional act. The killing was not intentional, but the shooting was, and of course, according to the language you just pointed to, an intentional act is not covered, so they owe you nothing.

What do you think should happen? Write your answer, then check here to see what the 3rd District of the Appellate Division of New York says. Or cheat, and see what they said and determine whether or not you agree.


Bruce said...

On a side note, I'll note that every gun training class I've ever been to has taught me that you don't even *point* a gun at something unless you're planning to kill it.

Michelle said...

Another case of "We do things differently down under"!!
Firstly you would not get off scott free. That type of gun is illegal so you would be in the pooh to start with. If you shot him with a different gun, you better make sure you have a gun licence.....even then your skating on thin ice...were there witnesses?
See, here the whole thing would be centred around the gun issue, if i were betting on this being tried here, depending on any prior convictions you had, you'd get time. Then you'd still have to go through civil court, the lawyer would not be your problem, the damages would be.
There is an on going case here, a female security gard shot at a man who robbed a bank, he beat her up with knuckle dusters first, he took off, she reached for her gun whilst on the ground and killed him. They reckon she'll get put away when the matter goes to trial.
Moral of the story....if you live in OZ do not own a gun!

Gramma said...

Good grief. If the man is acquitted, the family should not be able to file a wrongful death suit. More importantly, how did this situation get to a point where he felt his only defense was a gun? Where are the protections that should be in place in our communities? Why are bullies allowed to continue bullying?

Sam said...

Though I think he was justified in using deadly force and should win at trial (probably on summary judgment), I don’t think the insurance policy covers the incident. Though I didn’t see the actual contract, the article gives the impression that policy covered negligence but not intentional torts. The case does not involve whether the gun was discharged negligently (if it were negligence, self defense wouldn't even be an available defense); all sides agree that it was an intentional act. The legal issue is whether there was the justification of self defense: that does make the act unintentional, but simply avoids the battery charge.

Matthew said...

I almost cheated. This is not so much an answer as it is criticism of insurance companies. Insurance companies make money by collecting premiums, not by paying claims. Thus, insurance companies will take your premiums (and make every effort to increase your premiums), and do everything they can to avoid paying a claim. I will attempt an answer. I would advance that, since our defendant was defending against a claim of wrongful death, the death was the act at issue. As the death was unintentional, the act was unintentional, and thus within the scope of coverage. Am I way off from how the 3rd District of the Appellate Division of New York interpreted it?