The insured, Mr. Giannone, sought cover under his liability policy when he was sued by the estate of Ms. Mollicone in the following circumstances:
“Mr. Mollicone believed his wife was having an affair with Giannone. Mr. Mollicone, with Ms. Mollicone in the car, drove to Giannone’s house to confront him. After Mr. Mollicone walked up the driveway to Giannone’s garage and flashed his firearm at Giannone, Giannone drew his own gun and fired a warning shot. Mr. Mollicone began shooting at Giannone, and a gunfight ensued.
Giannone ran out of bullets. Mr. Mollicone chased Giannone, shooting him in the foot and knee, as Giannone ran into the house. When Giannone entered his home, Mr. Mollicone remained outside, and the gunfight paused.
Giannone then heard a woman screaming outside, so he retrieved a second firearm from the garage and returned to the driveway. As Ms. Mollicone was backing out of his driveway with Mr. Mollicone in the passenger seat, Giannone shot at the car. Giannone admits he was aiming at Mr. Mollicone, and he claims that he fired because he saw a gun poke out of the passenger window and heard shots. During this final exchange of gunfire, Ms. Mollicone was fatally shot in the neck.”
The insured sought cover under his policy which provided for litigation defence, indemnity for damages and medical payment coverage when the bodily injury at issue was “caused by an occurrence.”
The policy defined “occurrence” as an “accident” that results in “bodily injury.” The policy also contained an intentional-acts exclusion to personal liability or medical payment coverage. Excluded acts from coverage were those the “result of a willful and malicious act or omission of the insured” or “intended by the insured” or “would have been expected by the insured based on a reasonable person standard.”
The insured argued that while he intended to fire the gun he did not intend to injure or aim at the deceased, and her injuries are therefore a covered accident.
The relevant Michigan law defined an accident, for purposes of interpreting insurance contracts, as “an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.”
The existing authorities said that unforeseen consequences are not accidental when “the intended act created a direct risk of harm from which the consequences should reasonably have been expected by the insured.”
The court said the insured could not show that the death was not a foreseeable result of aiming and shooting a gun at the vehicle which Ms Mollicone occupied. The insured aimed his loaded gun at Mr. Mollicone and fired, expecting a bullet to leave the chamber. The act took place as intended even if the insured desired a different result. He subjectively intended to cause harm, just not the harm that ultimately came about. Accordingly, his conduct was not accidental and was not a covered occurrence.
It was also argued that actions taken in self-defence were “occurrences” under the policy. Even if it was accepted that the insured acted in self-defence, the court referred to authority that actions taken in self-defence are “intentional.” The event would fall within the exception of the intentional-acts exclusion.
The occurrence provision precluded coverage on the facts.
The result would be no different in South African law on those facts and wordings.
State Farm Fire and Casualty Company v Daniele Giuseppe Giannone