Insurance And Hunting

Texas insurance lawyers, with the prevalence of hunting in the state, may see a situation where hunting needs to be defined. A 1989, Corpus Christi Court of Appeals case addressed this issue in an opinion. The opinion is styled, Warrilow v. Norrell.
In that case three hunting friends, Norrell, Kerr, and Wolfe, had been on a deer hunting trip in Colorado. Upon arriving, the three men rented a four-wheel drive vehicle from a local resident for easy transport to and from the hunting fields. On the last day of the hunt, Norrell shot a deer and secured it to the vehicle, while Kerr did not. To take advantage of the last few hours of the hunt, Norrell suggested that Kerr keep his holster and fully loaded pistol handy in case they spotted a deer on the way to return the vehicle.
On the way to return the vehicle, the left rear tire went flat, and the three hunters exited the vehicle to change the tire. To assist in the operation, Kerr removed his belt and moved to set his holster on the ground. Tragically, he dropped the pistol, which then discharged and hit Norrell in the left temple. Norrell died almost a week later. Norrell’s family first brought suit agains the pistol manufacturer, Ruger, on product defect theories. Ruger then made Kerr a third-party defendant and sought contribution. Kerr’s homeowners insurer, Foremost, provided a defense and also tendered its $50,000 limits in contribution to Ruger. The Norrell’s next brought suit directly against Kerr.
At the time of the accident, Kerr was a member of the NRA, and as such, was covered under a master policy of insurance referred to as a “Peacemaker” policy. Upon receiving the claim, the NRA denied coverage on the basis that changing a tire did not constitute “hunting” and because of an automobile exclusion. The Peacemaker Policy provided coverage for:
(a) bodily injury, or (b) property damage caused by an occurrence and rising out of the use by the Individual Insured Member of firearms, bows and arrows or trapping equipment, but only while engaged in the following activities:
(i) Hunting or trapping on public or private land.

The Policy also excluded:
(k) Bodily Injury or Property Damage arising out of the ownership, maintenance, operations, use, loading or unloading of:
… (ii) any automobiles

The evidence agains Kerr was substantial. Not only had he failed to take advantage of a free Ruger program to correct the defect in the pistol, he also failed to use the basic safety practice of keeping an empty chamber under the hammer’s pistol to prevent accidental firing. Following the advice of his attorney, Kerr consented to the entry of judgment against him and in favor of the Norrells for $2.9 million. Kerr was also able to obtain a covenant not to execute and an assignment of any potential claims against both the NRA and their insurer.
Based on the assignment, the Norrells then brought suit against the NRA and their insurer. The NRA settled and was dismissed from the case, however, the claims agains the insurer proceeded to trial. The jury concluded the Kerr’s loss occurred while hunting and that it was not excluded under the insurer’s policy. It also found the insurer intentionally breached its duty of good faith and fair dealing. The jury found; $2.9 million in actual damages, and $7.5 million in punitive damages. The trial court entered judgment for $10,963,066.53.
This Court first examined whether coverage had been triggered by bodily injury that occurred during “hunting.” It first observed that while “hunting has a plain and generally accepted meaning,” the parties presented conflicting, but equally reasonable interpretations. The Norrells contended that “hunting” included travel to and from the fields, while the insurer contended that the definition was limited solely to the “actual pursuit of game.” The court observed that while the term “hunting” itself is not ambiguous, it was ambiguous when applied to the actual facts of the case. Given that ambiguities must be construed in favor of coverage, the court held the jury could reasonably conclude that this accident arose out of hunting activities.
One Judge disagreed with this finding citing the Texas Parks & Wildlife Code, which says that “hunt” includes take, kill, pursue, trap, and the attempt to take, kill, or trap. On the facts before him, he could not conclude that the actions constituted a “hunt.” Actual hunting had ceased for the day and the men were on a different mission, i.e., to return a vehicle.
In this case, the court deferred to the jury’s finding. It is noteworthy that the definition relied on by the one Judge is no longer in the Texas Parks & Wildlife Code. Therefore, it appears that for the time being, what constitutes “hunting” is fair game.