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Vol. 12 - Issue 3

April 17, 2023

 

You Don’t Bring A Hairdryer To A Gun Fight

 

This case had the potential to be a really good one in the world of “pleading into coverage.”  And maybe it was.  But, if so, the court didn’t provide enough of the underlying complaint’s allegations to tell us.  And since the underlying complaint was filed in state court, I couldn’t get it easily like a federal court complaint.  And since you don’t pay for this fine publication, you can’t say that you didn’t get your money’s worth by my lack of effort.  So, I’ll discuss State Farm v. Thomas, No. 22-1465 (W.D. Pa. March 23, 2023) based solely on what’s in the court’s decision.  [I suspect that if there were really good “pleading into coverage” allegations in the complaint, the court would have concluded them in its analysis.]

Antoine Thomas is the sole proprietor of Hair on Bedford Square.  An employee, Gino Graffia, pointed a hairdryer at Thomas in a playful manner pretending it to be a gun.  Thomas did what most people would: he reached into the drawer behind his barber chair, pulled out a handgun and shot Graffia in the ankle.  [How does that happen?]

Litigation ensured, followed by coverage litigation with the issues that you would expect to see.  The court concluded that Graffia’s injuries were not caused by an “occurrence.”  While the court noted that the underlying complaint included causes of action styled negligence and negligent infliction of emotional distress, the allegations belied the conduct as accidental.  That was the end of the court’s discission on the issue. 

Needless to say, a creative plaintiff’s lawyer – and there are many when it comes to doing so -- could have done a lot here to attempt to plead a negligence claim into coverage: Thomas confused the handgun for the hairdryer that he kept in his drawer; Thomas thought that Graffia was holding a real gun that was in the shape of a hairdryer; Thomas believed that hot air from the hairdryer could be lethal and was justified in using a gun in self-defense.  

 

 

 

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