Virginia Lawyers Weekly VA Lawyers Weekly
On Mother’s Day 2015, the decedent drove to his home in Bedford County. Shortly thereafter, he was confronted by the defendant who alleged the decedent had driven too fast through the neighborhood and almost hit his dogs. The defendant had apparently seen the decedent driving and decided to drive to the decedent’s home to confront him. The defendant kept a loaded revolver in his car.
The decedent, who answered the door in socks, but not shoes, denied driving too fast. Defendant alleged that the discussion became heated, and while the parties disputed the exact sequence of events thereafter, it ended when the defendant shot the decedent in the back of the head. He died instantly. The shooting took place in front of the decedent’s home where both he and the defendant had parked their cars.
The defendant called 911 and was taken into police custody. He admitted to shooting the decedent, but claimed he acted in self-defense. Specifically, he alleged the decedent acted as an aggressor, slapped him in the face and then charged at him with something in his hand. In order to protect himself, he pulled his gun out of his car and fired. The defendant acknowledged having consumed alcohol prior to the shooting, although he was unclear as to how much he actually consumed. Law enforcement did not perform a blood-alcohol test because the defendant started drinking alcohol during the 911 call. The criminal trial resulted in a conviction for voluntary manslaughter and a one-year sentence.
During the civil case, the plaintiff, the decedent’s surviving spouse, intended to present evidence that the defendant acted as the aggressor. This included that the defendant cocked his revolver before firing it, that he pulled his revolver out twice, that he initiated the confrontation and that the fatal shot was in the back of the head as opposed to the front of the decedent’s body. The defendant also admitted to unzipping his holster as he drove to the decedent’s home because he thought there might be a confrontation. Finally, the plaintiff designated a substantial amount of firearm safety literature indicating that the use of a weapon under these circumstances was negligent.
The case was defended under a reservation of rights by the defendant’s homeowner’s insurance company. The carrier intended to rely on an intentional act exclusion in the policy to deny coverage. The plaintiff intended to present evidence of an intentional shooting, but also negligent conduct which preceded the shooting that would not have been expected to result in the decedent’s death. Under this theory, a jury could find for the plaintiff based upon evidence which would not implicate the intentional acts exclusion. That seemed likely given that the criminal jury apparently believed some part of the defendant’s self-defense story.
The decedent was survived by his wife and two adult children. The decedent and his wife were separated, but not divorced. The two remained close, but were not financially dependent on each other. The adult children were financially independent.
The case resolved for $255,000 of a $300,000 policy. The parties reached a settlement shortly after a conference call with the mediator.
[18-T-124]Type of action: Wrongful death
Injuries alleged: Wrongful death
Court: Bedford Circuit Court
Tried before: Mediation
Name of mediator: Hon. Malfourd W. “Bo” Trumbo (Ret.)
Date resolved: Oct. 22, 2018
Special damages: $2,593.90 in funeral and burial expenses
Verdict or settlement: Settlement
Amount: $255,000
Attorneys for plaintiff: David D. Lawrence, Benjamin D. Byrd and Caley A. DeGroote, Roanoke
Insurance carrier: Liberty Mutual
