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Carrier has duty to defend wrongful death shooting suit

Virginia Lawyers Weekly//June 5, 2023

Carrier has duty to defend wrongful death shooting suit

Virginia Lawyers Weekly//June 5, 2023

Where a man fatally shot a woman, and then pleaded guilty to second-degree murder, but this court would not consider his guilty plea, and it was possible a jury might conclude that he acted negligently or unintentionally, the carrier had a duty to defend him against the wrongful death suit.


On Dec. 1, 2020, Brandon Shiflett, at age 17, shot and killed Sara Hammond at the residence of Wade Shifflett, Brandon’s grandfather. On Oct. 25, 2021, Brandon pled guilty to second degree murder. At the guilty plea hearing, he admitted that “on or about the 1st day of December 2020, in the County of Greene, [he] feloniously did kill and murder in the second-degree one Sara Hammond against the peace and dignity of the Commonwealth, in violation of Virginia Code Section 18.2-32.”

In this suit, State Farm seeks a declaratory judgment that it owes no duty to defend or indemnify Brandon under its insurance policies for a wrongful death lawsuit brought by the administrator of Sara Hammond’s estate, Verma Hammond. Plaintiff State Farm and defendants Brandon and Hammond have filed cross-motions for summary judgment.

Guilty plea

State Farm does not cite any case in which a Virginia court considered evidence of an insured’s guilty plea and conviction in determining whether an insurer had an obligation to defend under a policy. Without the Supreme Court of Virginia’s authority to vary from the eight corners rule, State Farm will owe a duty to defend if Brandon’s conduct, as alleged in the underlying complaint, falls within the scope of coverage provided by the insurance policies and none of the policies’ exclusions apply.


State Farm claims that Brandon’s alleged conduct is not covered because Sara’s death did not result from an “accident.” In the underlying suit, Hammond alleges that Brandon “carelessly and/or recklessly pointed a firearm in Sara’s direction” and “carelessly and/or recklessly discharged a firearm while it was pointed in Sara’s direction” and shot and killed Sara.

While the allegations are sparse, they do not eliminate the possibility that Brandon’s conduct was unintentional, and that Sara’s death resulted from an “accident.” Depending on the evidence introduced at the underlying state trial, if the guilty plea is not introduced, it is possible for a jury to find that Brandon carelessly pointed a gun in Sara’s direction and negligently and carelessly discharged the gun and that her resulting death “happen[ed] by chance, or unexpectedly.”

Expected or intended

State Farm argues that Brandon expected or intended Sara’s death and thus is not covered under the insurance policies, which exclude coverage for bodily injury that was intended or reasonably expected by the insured. Virginia courts have found that allegations involving intentional shootings fall within this “Expected or Intended Acts Exclusion.”

However, unlike those cases, the factual allegations in Count Two do not eliminate the possibility that Brandon shot Sara unintentionally or that he did not reasonably expect her death. And as previously discussed, the underlying complaint contains factual allegations which might support that Brandon acted negligently in causing Sara’s death.

Criminal act

State Farm argues no coverage exists under its policies because Sara’s death was the result of a willful and malicious or criminal act. Because the factual allegations do not eliminate the possibility that Brandon shot Sara unintentionally, the willful and malicious act exclusion does not exclude coverage at this stage of the litigation. Therefore, State Farm has a duty to defend.

Duty to indemnify

The court considers State Farm’s request for declaratory judgment as to the duty to indemnify to be premature. State Farm has a duty to defend, and the underlying trial had not yet happened. Thus, State Farm’s motion for summary judgment will be denied.

Defendants’ MSJ

Hammond and Brandon move for partial summary judgment as to the duty to defend. For the reasons discussed above, their motions will be granted because the court, in applying the eight corners rule, concludes that the factual allegations in the underlying complaint support a possibility that the underlying civil action could be covered under the policies.

Plaintiff’s motion for summary judgment denied. Defendants’ motions for partial summary judgment granted.

State Farm Fire and Casualty Company v. Shifflett, Case No. 3:22-cv-00031, May 23, 2023. WDVA at Charlottesville (Moon). VLW 023-3-277. 14 pp.

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