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Vol. 12 - Issue 2

March 14, 2023

Court Rejects Coverage Hail Mary: Killing Someone Was Not Part Of The Insured’s Plumbing Business


This is a tragic case.  And the possibility of coverage was thin.  But sometimes the effort is made.  Not surprisingly, it did not succeed.

Donald Bottoms owned Three D Plumbing.  The place of business contained an apartment.  On a night in April 2020, Bottoms and some friends spent time there socializing.  In the early morning hours, bottoms drove Nicole Wagner home.  According to Bottoms, Wagner refused to leave the vehicle.  Bottoms used a gun that he kept under the seat in an attempt to scare her out.  During a struggle or accident – unclear – Bottoms shot and killed Wagner.  Bottoms pled guilty to second degree manslaughter.

As part of a settlement agreement, Bottoms assigned his rights under a commercial general liability policy to Wagner’s estate and the issue of coverage made its way to a Kentucky appeals court.  While the applicability of the expected or intended exclusion was clearly going to be an issue, the court in Jones v. Acuity, No. 2021-0834 (Ky. Ct. App. Dec. 22, 2022) started with a more overarching question: Bottoms was only an insured “with respect to the conduct of a business.”  Was that requirement satisfied?

It seems difficult to see how it could be.  The estate made these arguments:

“[T]he events leading up to the shooting included the promotion of Three D Plumbing and the ‘building of goodwill,’ thereby falling under the umbrella of actions taken ‘with respect to the conduct of a business.’ To support this contention, Jones [the estate] presented an affidavit from a former Three D Plumbing client who stated (1) that she hired Bottoms after attending a social gathering at Bottoms’s apartment, and (2) that Bottoms frequently promoted his plumbing business at such events.

“Additionally, Jones submitted a photograph of Bottoms, Wagner, and three other people ‘poised in a luxury bathtub in Bottoms’[s] place of business during the social gathering.”

Acuity, with help from Bottoms, who did not want to see coverage afforded, argued that “Bottoms stated in his affidavit that the events leading up to the shooting were not business related; the plumbing client affidavit was irrelevant because she was not present on the night in question; and the undated photograph does not equate to conducting plumbing business.”

The court sided with the insurer:

“The client affidavit was not from someone present with Wagner and/or Bottoms on April 18 or 19; thus, it was not based upon any personal knowledge of the events leading up to the shooting. Further, text messages between Bottoms and Wagner on that fateful evening do not reference plumbing. Bottoms asserted in his affidavit that none of his activities of April 18 and 19 ‘were related in any way to my occupation or business as plumber.’ Instead, he stated that the evening was ‘for purely personal, social, and nonbusiness reasons.’ Jones was unable to link Bottoms’s plumbing business to the shooting - a shooting which occurred in Bottoms’s vehicle while it was parked in Wagner’s driveway after a night of socializing. Further, while the photograph did technically show a bathtub and part of a faucet, that alone does not correlate to conducting plumbing business. Stated another way, just because a chicken has wings does not mean it can fly.” (emphasis in original).

Incidentally, while not necessary to have reached the issue -- based on this conclusion -- the court went on to state that, with Bottoms having pled guilty to second degree manslaughter, i.e., wanton manslaughter, the expected or intended exclusion applied.
Tragic case for sure.  While there were some interesting facts concerning the “conduct of a business” argument, the conclusion was unsurprising.




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