Donegal Mutual Insurance Co. v. Baumhammers

CONCURRING AND DISSENTING OPINION BY

LALLY-GREEN, J.:

¶ 1 Our esteemed colleague, Judge Todd, has, in her usual fashion, conducted a thorough and scholarly review of the difficult issues in this case.

¶ 2 To begin, I join the result and reasoning of the Majority’s Opinion with respect to Issue l.20 Specifically, I agree that the Donegal policy provides coverage to Parents. As the Majority aptly states, “Parents’ alleged negligence, no less negligent because it is alleged to have led to Baumhammer’s intentional attacks, can be considered an ‘accident’ triggering an occurrence under the Donegal policy.” Majority Opinion at 811. The Majority correctly focuses on the standpoint of the insured, not the standpoint of the victims, when determining that an accident has occurred.

¶ 3 I am compelled respectfully to dissent, however, from the Majority’s determination in Issue 2 that six “occurrences” took place under the policy. The Majority comes to.this conclusion by adopting the “immediate cause” or “damaging act” approach set forth in Koikos v. Travelers Ins. Co., 849 So.2d 263 (Fla.2003).21 The *825Majority rejects the “liability” approach, which focuses on the negligent act of the insured.

¶ 4 In my view, the “liability” approach is the more logical approach for cases such as this. Indeed, the Appellate Division of the New Jersey Superior Court recently adopted the reasoning behind the “liability” approach in a case strikingly similar to the instant case. Bomba v. State Farm Fire & Cas. Co., 379 N.J.Super. 589, 879 A.2d 1252 (App.Div.2005). In that case, a young man who lived with his parents left the home with a shotgun and injured two police officers on a city street. The officers filed suit against the parents, contending that the parents “negligently maintained firearms in their home, negligently supervised their son, and negligently entrusted the firearms to him.” Id. at 1253. The parents held a homeowners’ policy which, like the instant policy, provided coverage for an “occurrence,” which was defined as an “accident.”

¶ 5 As in the instant case, the question became whether there was one “occurrence” or multiple “occurrences” for coverage purposes. The Bomba Court held that there was one “occurrence.” The Court began by analogizing the case to a New Jersey case called Doria v. Insurance Co. of North America, 210 N.J.Super. 67, 69, 73-74, 509 A.2d 220 (App.Div.1986), where one boy drowned in a swimming pool, and a second boy died while trying to save the first. The Court noted that in Doria, even though there was more than one victim, there was only one “occurrence” because those injuries “are so closely linked in time and space as to be deemed by the average person as a single event[.]” Bomba, 879 A.2d at 1255.

¶ 6 Next, the Bomba Court rejected the position that the shooter’s intentional act constituted an intervening cause, thus triggering multiple “occurrences” for coverage purposes. In other words, the Court rejected the “immediate cause” or “harmful act” approach. The Court wrote:

We cannot avoid observing that plaintiffs’ assertions about the cause of the injuries are based on a fundamental misunderstanding of the coverage analysis. Simply put, in the absence of a covered event, there can be no recovery under the policy at all. In this regard, we note that plaintiffs’ complaint against the gunman’s parents appropriately focused solely on their asserted acts of negligence rather than on the gunman’s acts. That pleading recognized that for coverage purposes the alleged negligence of the homeowner is the appropriate focus. Indeed, as the Law Division judge noted, if the action of the gunman, who repeatedly aimed and fired at the two police officers, is the cause of the injuries, then the officers’ claims would not be covered under the policy, but would fail by virtue of the policy’s exclusion for intentional or criminal acts. The Law Division judge aptly described this as an intervening uncovered act which, if it were the cause, would result in a loss of coverage. As the judge recognized, the only act that would support coverage for these claims is the negligent act of the insureds, namely, their failure to safely maintain the weapons and their failure to properly supervise their adult son which led to his criminal act of shooting the two officers.

Id. at 1255-1256 (emphasis added).22

¶ 7 I would conclude that Bomba is factually on point, and that its reasoning on *826the “liability” approach is quite persuasive. The only covered event was an act of negligence. Parents, the insureds, allegedly let their son Richard out of the house with a gun on one fateful occasion. From the Parents’ standpoint, this is one alleged act of negligence, one accident, and one occurrence. This is a logical result, quite consistent with the Majority’s sound disposition of Issue 1.

¶ 8 Furthermore, from a public policy standpoint, I agree with the reasoning of the cases described in detail at pages 814-15 of the Majority’s Opinion. Without repeating that rationale in detail, I point specifically to the Majority’s persuasive statement that “a liability-focused assessment of cause is most appropriate because, inter alia, it allows the insurer a basis for setting premiums and provides a meaningful limit on the insurer’s liability.” Id. at 815 (citations omitted).

¶ 9 To summarize, a liability-focused assessment of cause is most consistent with the reasonable expectations of the insured, and with predictable insurance practices. Moreover, it is the approach which is most consistent with the plain language of the policy itself. Again, the policy states, in relevant part:

Limit of Liability. Our total coverage under Coverage E for all damages resulting from any one “occurrence” will not be more than the limit of liability for Coverage E as shown in the Declarations [i.e., $300,000.00]. This limit is the same regardless of the number of “insureds,” claims made or persons injured. All “bodily injury” and “property damage” resulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions shall be considered to be the result of one “occurrence.”

Majority Opinion at 812, quoting, Donegal Insurance Policy at 17 (emphasis added). In my view, this unambiguous language demonstrates an intent to focus on the insureds’ underlying liability, rather than the most-proximate “damaging act” or the number of victims.23

¶ 10 I understand that under this reasoning, Plaintiffs and Parents would have $300,000.00 of insurance coverage potentially available to them, rather than $1.8 million. While I have huge sympathy for the victims of this most tragic case, the conclusion I suggest derives from the relevant case law, the public policy, and the insurance contract itself. Accordingly, I concur in part and dissent in part.

¶ 11 -FORD-ELLIOTT, J. joins. ORIE MELVIN, J. concurs in the result.

. I also join the Majority’s Opinion in full with respect to Issue 3, regarding the USAA policy.

. Under this approach, the focus is on whether an intervening act (e.g., a criminal shooting spree) was the "act that caused the damage.” This approach seems to be based on a broad view of an "accident” as any event which causes harm to another and which is neither expected nor intended from the point of view of the insured. Koikos, 849 So.2d at 271. Under the Majority's logic, since all six shootings separately caused harm and none of them was expected nor intended by the insured, there were six "occurrences.”

In my view, the Majority’s approach improperly focuses on the number of victims and/or the specific instrumentality chosen by Richard Baumhammers, instead of the negligent act of the insured. Under the "liability” approach (adopted by the Majority in Issue 1), there is only one occurrence under the facts of the case because there is one act of negligence. Said another way, from the point of view of the insured parents, the Donegal policy provided coverage for the parents’ negligence and not Richard’s intentional criminal acts.

. The Bomba Court then cited with approval the cases of RLI Ins. Co. v. Simon's Rock Early College, 54 Mass.App.Ct. 286, 765 N.E.2d 247, 251 (2002), and Travelers Indem. Co. v. Olive's Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596, 599 (1989), adopting *826the "liability” approach. The Majority cites these cases in its discussion of the "liability” approach.

. I note that in many automobile insurance policies, insurers provide separate limits of coverage "per accident,” and "per person” injured. In stark contrast, the Donegal policy provides coverage solely on a “per accident” basis and not on a “per person” basis.