Audit, Compliance and Risk Blog

Insurance Claim: Tragic Shooting Not 'An Occurrence' in Policy

Posted by Barry Zalma on Mon, Jun 18, 2012

TrialIf a person fires bullets at a car and unintentionally kills someone seated inside, does that constitute an 'occurrence’ for the purpose of insurance coverage? One Mississippi case follows the thread of that question. This year an appeals court was asked to determine whether a shooting that caused the “accidental death” of a person is an “occurrence” as defined in a home insurance policy, and/or whether an illegal act exclusion should apply. Here is a brief summary of the case.

The Party Gone Wrong

A man and his son were guests at a swimming party hosted by a friend. At one point during the party, the host suspected that the guest had gone into his house and stolen money, then left the house to hurry back to his car.

In response, the host of the party grabbed a gun, and followed the suspected thief outside. As the man was leaving the property, the host fired a pistol at the suspect’s car. One of the bullets he fired ricocheted off the pavement and hit the suspect’s son who was inside the vehicle. The son later died from the gunshot wound. According to the shooter, when he fired a gun at the car he was only attempting to disable the car to keep the suspect from fleeing, but was unaware that the man’s son was inside the vehicle. He was subsequently charged with murder, and pled guilty to the lesser charge of manslaughter by culpable negligence.

The shooter was sentenced to prison, house arrest, and probation.

Meanwhile, the mother of the victim filed a wrongful-death suit against the convicted man in circuit court. The convict responded by denying liability for damages.

Will the home insurance policy pay for an ‘unintentional’ killing?

The convicted shooter was a policy holder, and the homeowner insurance carrier got permission from the circuit court to intervene in the wrongful-death action. The insurance company filed a complaint for declaratory judgment, asserting that their insurance policy with the convicted man did not provide him with liability coverage, or a defense, or indemnification for any claims that could arise out of a wrongful-death suit, and filed a motion for summary judgment.

Following a hearing, the circuit court denied this motion, finding genuine issues of material fact on the issue of coverage.

The mother of the shooting victim then moved for partial summary judgment on the issue of the convict’s liability, which the circuit court granted. The circuit court also entered an agreed order, assessing $75,000 in damages against the convict.

Trial Finds No Coverage for Convict

After a bench trial on the issue of liability coverage for award of damages to the victim’s family, the circuit court entered its judgment in favor of the insurance company, finding the convict was not entitled to liability coverage under his homeowner’s insurance policy.

The victim’s mother then filed an appeal of this decision, and also filed a wrongful-death suit against the convict. She alleged that her son had suffered physical injuries and death as a result of the convict’s gross negligence.

Mother Goes Before the Mississippi Court of Appeal

In the Court of Appeal, the mother argued that the circuit judge was erroneous in determining the policy provided no coverage. The circuit court judge had considered the facts as such: firstly, the insured committed an illegal act; secondly, the insured intended to discharge a firearm in the direction of the vehicle (actions that were not accidental and not an “occurrence” as required under the policy); thirdly, the insured’s actions were intentional—thus barring coverage under the policy’s intentional acts exclusion.

But the victim’s mother argued that although the convicted intended to discharge his firearm, the evidence established that he did not intend the consequences of his act – her son’s death. She also pointed out that the convicted man pled guilty to manslaughter by culpable negligence, which she claimed is not a specific-intent crime. The mother argued, and the record showed, that the convict lacked the requisite intent to commit an illegal act; therefore, the illegal-acts exclusion in the policy should not apply.


Under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Additionally, provisions that limit or exclude coverage are to be construed liberally in favor of the insured, and strongly against the insurer.

The circuit judge had determined that although there was no proof that the insured intended to harm or kill the victim personally when he fired his gun, the undisputed evidence showed that he did intend the act of shooting a firearm towards and at the vehicle in which the victim was sitting. Because the insured intended the act of shooting his gun and shooting it at the vehicle, his actions were not an accident, and thus not an “occurrence”, as required under his home insurance policy.

The insured admitted that he indeed intended to discharge his firearm at the vehicle, that resulted in the victim’s death, although he also claims he only fired at the vehicle with the intention of disabling the car. That fact alone was sufficient for the Mississippi Court of Appeal, and it affirmed the circuit judge’s finding that the victim’s death was caused by an illegal act committed by the insured. Under the illegal-acts exclusion in the convicted man’s insurance policy, the insurance company could not owe liability insurance coverage to him. The record also supported a finding that because the shooter intended to discharge the firearm, his actions were not an “accident’ or “occurrence”, therefore unintentional, as required by the policy.

My View

Since the policy was clear and unambiguous, the Mississippi court applied the facts to the policy wording. Had it ruled otherwise, murderers could avoid the responsibility for their actions by passing that responsibility to an insurer by merely saying — “I didn’t intend to kill him, I was just shooting at his car.”

When a policy excludes bodily injury as a result of criminal acts any criminal act should be sufficient. Shooting at a car — occupied or not — is an intentional act and is not, by any variation of the definition, an “occurrence.”  The insurance company did not agree to protect their insured client from criminal and intentional acts, and seeking such coverage was wrong.

Rita Kees Lambert, Individually, and v. Safeco Insurance Company of America, No. 2011-CA-00166-COA (Miss.App. 05/08/2012).

Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and is the author of Insurance Claims: A Comprehensive Guide, Mold: A Comprehensive Claims Guide, and Construction Defects: Litigation and Claims.

Barry Zalma can be reached at any time at 310-390-4455 or by e-mail at

Tags: Business & Legal, Insurance, Insurance Claims