Intentional Acts Exclusion – Shooting

Insurance lawyers in the Dallas and Fort Worth area need to have an understanding as to intentional acts that are not covered under an insurance policy. Many times the only way to actually recover money for a clients injuries such as medical bills, lost wages, pain, etc. is to have an insurance policy to recover under. Being aware of this Houston Court of Appeals [14th Dist.] case is important. It is a 1992 case styled, Bonner v. United Services Automobile Association. Here is some relevant information.
This is an appeal from a take nothing judgment in favor of United Services Automobile Association (USAA). The issue involved is whether a Texas Homeowner’s Insurance Policy issued by USAA to Gloria Padgett provided liability coverage to her son, Roger Padgett, for damages for the death of Roger’s girlfriend, Linda Tarrant, or whether there was no coverage for such death because of specific exclusions contained in the policy.
The insurance policy involved in this case is a Texas Standard Homeowners Policy issued by USAA to Gloria C. Padgett, mother of Roger Padgett. The premises covered by the policy is defined as a dwelling located at Route 3, Box 5388, Canyon Lake, Comal County, Texas. The Liability Section of the policy provides under coverage D that USAA will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury. That same Liability Section of the policy also contains the following exclusion:
Coverage D shall not apply:
. . . . .
3. To any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an Insured.
On November 8, 1982 Roger Padgett shot and killed his girlfriend, Linda Tarrant. The shooting occurred at 1640 Blalock, in Houston, in an apartment Padgett and Tarrant shared. H.D. Bonner, as next friend of Hershel Gene Tarrant, minor son of the decedent, filed a wrongful death suit against Padgett. USAA provided Padgett a defense in that case under the terms of a non-waiver agreement signed by Roger Padgett. The non-waiver agreement reserved to USAA the right to deny coverage based on Exclusion No. 3 quoted above and also based on USAA’s contention that the death of Linda Tarrant was caused intentionally by Roger Padgett, thus invoking another exclusion contained in the policy.
At the beginning of the trial the parties stipulated that USAA had the burden of proof as to the exclusions in the policy. The non-waiver agreement signed by Roger Padgett specifically reserved to USAA the right to deny coverage because of the “other premises” exclusion.
Dwayne L. Spiess, a claims examiner for USAA, testified in great detail concerning the meaning of this exclusion in the policy. He was questioned extensively by attorneys for Bonner and USAA concerning this exclusion and various constructions that could be applied thereto. At no time during the trial did USAA contend that Bonners’ failure to plead ambiguity would prevent the court from determining that issue and from applying rules of construction to the exclusion. Throughout the trial Bonner continued to urge their construction of the exclusion, that for the act of Roger Padgett in shooting Linda Tarrant to be “in connection with” the premises at 1640 Blalock in Houston, there had to be some causal connection between the shooting and the Blalock premises, something more than that it occurred thereon. Also, throughout the trial USAA contended that the act of Roger Padgett in shooting Linda Tarrant occurred on the Blalock premises and therefore was “in connection with” those premises.
For the foregoing reasons the court rejected USAA’s contentions concerning the failure to plead ambiguity.
The insurance policy involved in this case contained another exclusion with which the court had to deal. The policy provided that Coverage D (the Personal Liability section) shall not apply; … 5. To bodily injury or property damage caused intentionally by or at the direction of the Insured.
In the court’s charge to the jury Question No. 2 inquired whether Roger Padgett intentionally caused the death of Linda Tarrant on November 8, 1982 at 1640 Blalock, apartment 225, in Houston. As pointed out hereinabove the jury was deadlocked on that question and the trial court accepted a partial verdict and rendered judgment in favor of USAA.
There was evidence sufficient to support a jury finding that Roger Padgett intentionally caused the death of Linda Tarrant; therefore, the case must be remanded to the trial court for a new trial. Bonner contends there was no competent evidence to support a finding that Roger Padgett intentionally caused the death of Linda Tarrant and that Roger Padgett’s testimony that the shooting was an accident was the only competent evidence on that issue. Officer R.W. Holland of the Houston Police Department testified that he investigated the shooting death of Linda Tarrant on the day that it occurred and talked to Roger Padgett at the scene. Holland concluded from his investigation that the shooting death of Linda Tarrant was intentional. This was competent evidence regarding whether Roger Padgett intentionally caused the death of Linda Tarrant.
This case was remanded for a new trial.