Where a father shot his son and the son sued, alleging both negligence and intentional conduct by his father, the carrier must defend the father.
Colin Patteson was visiting his father, Troy Patteson, on July 22, 2018. During the visit, Troy Patteson was handling a firearm which discharged and struck Colin Patteson, injuring his face, jaw and ear. Troy Patteson then filed suit against Colin Patteson in the Circuit Court of Powhatan County.
TRAVCO Insurance Company then sued Troy Patteson and Colin Patteson, seeking a declaration that it has no duty to defend or indemnify Troy Patteson for any liability alleged in an underlying state case. Defendants have filed motions to dismiss.
Defendants assert that under the eight corners rule, plaintiff clearly has a duty to defend because the amended state complaint alleges a claim for negligence, which would be covered under the policy. Plaintiff counters that “recast[ing] intentional conduct as negligence does not create” an occurrence under the policy or otherwise bypass the “Expected or Intended Acts Exclusion” contained in the policy.
While plaintiff is correct that a mere negligence claim or mention of negligent action is not enough to bypass an intentional acts exclusion, the court must still look to the nature of the claim and the facts in the underlying complaint. Here, the alternate theories in the amended state complaint allege that Troy Patteson either intentionally shot the gun or, negligently handled the gun, which caused it to discharge. In other words, either the entire situation was negligent, or the entire situation was intentional. Thus, the resulting injury is not necessarily an expected result of intentional conduct. Rather, it could have been the result of entirely negligent conduct.
The amended state complaint alleges two alternate theories that, although contradictory, could each be possible. While the facts for the negligence claim are particularly sparse, the court can envision a scenario where that theory succeeds in the underlying suit. Thus, because there is a possibility of a negligence judgment, which could be an occurrence as defined by the policy, there is a duty to defend.
Plaintiff additionally points to the “Expected or Intended Acts Exclusion” in the policy, which excludes bodily injury “which is expected or intended by an ‘insured.” Plaintiff cites to two cases where Virginia courts held that intentional shootings fell into the “Expected or Intended Acts Exclusion” and, therefore, there was no possibi1ity of coverage. Both of these cases involved clearly intentional shootings, which the defendants attempted to characterize as accidental due to the shooter’s mental capacity.
Unlike those cases, the underlying suit here does not involve such obvious intentional conduct, nor does the amended state complaint try and reclassify intentional conduct as negligent based on the shooter’s mental capacity. As stated above, the amended state complaint does not allege a set of facts that is so obviously intentional that the negligence count will clearly fail. Rather, it includes two alternate theories, one of which will succeed. Thus, based solely on the amended state complaint and the policy, there is a possibility that a judgment in the underlying suit could be covered under the policy. Therefore, there is a duty to defend.
Further, defendants argue that plaintiff’s request for declaratory judgment as to the duty to indemnify is “premature and should be dismissed without prejudice” pursuant to Rule 12(b)(l). Plaintiff concedes that if the court finds plaintiff has a duty to defend Troy Patteson, the request for a declaration on the duty to indemnify is premature.
Defendants’ motions to dismiss granted.
Travco Insurance Company v. Patteson, Case No. 3:22-cv-135, May 18, 2022. EDVA at Richmond (Hudson). VLW 022-3-215. 10 pp.