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CGL carrier must defend workplace shooting suit

A business insurance carrier must defend an employer after a workplace shooting leads to a negligence action by the employee’s estate.

The “Employer Liability” exclusion – which usually protects a business carrier from paying for employee workplace injuries – did not apply in Admiral Ins. Co. v. G4S Youth Services Inc. (VLW 009-3-330), in a June 9 decision by Richmond Chief U.S. District Judge James R. Spencer.

But a Western District judge might have seen the matter differently.

On similar facts – same carrier, same exclusionary clause, different workplace shooting – a Harrisonburg federal judge said in March that the carrier was not liable under its commercial general liability policy for injuries to employees of a home-healthcare company who were shot by a coworker.

There is “clearly a split” between the Virginia federal districts on the coverage issue, according to Falls Church lawyer Andrew J. Terrell, who represents the carrier in both cases. The Harrisonburg case, Admiral Ins. Co. v. Ace American Ins. Co. (VLW 009-3-170), is on appeal to the 4th U.S. Circuit Court of Appeals.

The coverage decision turns on the causal connection between the job and the employee’s injury.

In G4S, the carrier “took the position that the Employer Liability exclusion applies any time there’s a connection to the workplace, no matter how attenuated,” said Richmond lawyer Edward H. Starr Jr., who represents G4S. According to Starr, the Harrisonburg and Richmond cases are different because the former involved employee-on-employee violence, and the latter was a domestic dispute.

G4S, headquartered in Richmond, contracted with the Florida Department of Juvenile Justice to operate juvenile correctional facilities, including one in Okeechobee, Fla., where one of the department’s employees, Shanique Harris, was shot by a boyfriend she was trying to shed.

Harris previously had obtained a protective order that barred her violent boyfriend, Marlon Brown, from having any contact with her. But on the evening of July 14, 2006, Brown appeared in the juvenile facility parking lot with a ring and a gun.

When Harris appeared to slap the engagement ring from Brown’s hand, he pulled the gun and shot her to death.

Harris’s estate sued G4S in Florida for negligence. Admiral asked the Richmond U.S. District Court for a decision that it did not have to defend G4S under the CGL policy.

The CGL policy covered G4S for “bodily injury and property damage,” subject to exclusions.

Admiral argued the Employer Liability exclusion for injury arising out of employment required only that the injury be causally connected to, not proximately caused by, the employment relationship.

G4S countered that the type of broad “but for” interpretation advanced by Admiral has not been adopted in Virginia, which narrowly construes policy exclusions with a slant toward finding coverage.

Sidestepping the parties’ dispute over the use of workers’ compensation law to interpret the Employer Liability clause, Spencer went directly to the dictionary.

Applying Webster’s definition of “arise,” Spencer said the phrase “bodily injury arising out of and in the course of employment’ means the injury claimed originated from, or came into being as a result of, the course of Harris’s employment; this is not the case.

“Rather, it is clear from the facts that the killing of Shanique Harris arose from a personal dispute between Harris and Brown that unfortunately resulted in the death of Harris on her employer’s property.” Spencer noted that Harris was on the employer’s premises, but had not “signed on” or even entered the building.

After declining to apply the exclusionary clause, Spencer had to decide whether there was potential coverage for the kind of claim asserted in the underlying lawsuit.

Spencer agreed with G4S that the claims by Harris’s estate, including a premises liability claim, did not arise out of Harris’s employment, and Admiral owed a duty to defend. Spencer noted the premises claim was based on G4S’s alleged breach of its contract duty to provide security for the premises that arises after notice of a potential threat.

Spencer granted summary judgment to the employer.

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