Metropolitan News-Enterprise


Tuesday, August 21, 2001


Page 1


Homeowners Entitled to Insurance Coverage in Shooting Case—S.C.

‘Illegal Act’ Exclusion Does Not Insulate Carrier in Accidental Killing, Justices Say


By KENNETH OFGANG, Staff Writer/Appellate Courts


A teenager and his parents are entitled to a defense and indemnification by the family’s homeowner’s carrier in connection with a shooting in which the boy accidentally killed a friend, regardless of an “illegal act” exclusion in the policy, the state Supreme Court ruled yesterday.

The justices unanimously reinstated Los Angeles Superior Court Judge Lawrence Crispo’s ruling that Safeco Insurance Company of America owes the parents a defense as well as coverage. By a 4-2 vote, they agreed with the trial judge that the teenager is covered as well.

The case stems from the 1995 death of Christopher Mitchell. Mitchell’s parents contend that his death was a result of the negligence of Kelly S., as the court identified him, and Kelly’s parents.

Kelly, then 16, apparently shot his friend with .22-caliber Beretta handgun he found in his mother’s coat pocket.  Kelly’s father had taught him how to handle a 9-millimeter Beretta, and the boy mistakenly thought that the .22 wouldn’t fire after he removed the clip.

The juvenile court placed Kelly on probation after sustaining a charge of involuntary manslaughter.

Declaratory Action

Timothy and Christy Mitchell sued Kelly and his parents, who tendered their defense to Safeco. The insurer brought a declaratory action, arguing that the “illegal act” exclusion precluded coverage.

Crispo ruled for the insureds, reasoning that the exclusion didn’t apply because it was “undisputed that Kelly…did not intend to cause harm to [Christopher and] that [Kelly] did not intend to commit an unlawful or ‘illegal’ act.”

The Court of Appeal reversed, holding that an act is “illegal” if it violates criminal or civil law, regardless of intent, so long as it falls outside the scope of simple negligence. Thus, any public offense, whether it involved intentional wrongdoing or gross negligence, would fall within the exclusion, the panel said.

Negligence Coverage

But Justice Joyce L. Kennard, writing for the high court, said the policy’s coverage for negligence arising out of an “accident” would be “illusory” if the Court of Appeal’s interpretation were followed.

The lower panel’s distinction between gross and ordinary negligence, she said, is contrary to Insurance Code Sec. 533, which declares that an “insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured.”

Kennard noted that the section “does not distinguish between ordinary and gross negligence.” If an insurer doesn’t want to cover occurrences resulting from gross negligence, she said, it must say so in unambiguous policy language.

The opinion was joined by Chief Justice Ronald M. George and Justices Kathryn M. Werdegar and Ming Chin.

Justice Marvin Baxter wrote separately, joined by Justice Janice Rogers Brown.

Baxter agreed that Kelly’s parents were entitled to coverage, since committed no crime. But Kelly can’t be covered, under “even the narrowest reasonable interpretation of the illegal act exclusion,” because “any criminal act is also illegal,” Baxter argued.

The case was argued in the high court by Raymond H. Goettsch of the Long Beach firm of LaTorraca and Goettsch and by Andrea M. Gauthier of Encino’s Horvitz & Levy for the insurer and by Kapp L. Johnson of Granada Hills for the insureds.

The case is Safeco Insurance Company of America v. Robert S., 01 S.O.S. 4243.


Copyright 2001, Metropolitan News Company