Home Page The Publication The Editor Contact Information Insurance Key issues Book Subscribe


Vol. 8 - Issue 9
November 6, 2019


Court Concludes That Murder Can Be An “Accident”


While sometimes tragic, coverage cases involving bar fights and shootings often involve interesting facts.  Needless to say, there’s usually a story there.  But despite this, I often times do not address such cases in Coverage Opinions.  Most of the time, coverage is not owed in these scenarios, based on the injury not having been caused by an “occurrence”/accident or the expected or intended exclusion or an assault and battery exclusion. 

When a court concludes that an assault and battery exclusion precludes coverage to a bouncer, for beating up a bar patron, it’s probably not a decision that offers much in the way of a lesson to be learned.  But show me a case where a court holds that an assault and battery exclusion does not serve to preclude coverage to a bouncer, for beating up a bar patron, and now you’ve got my attention.
This is why Maxum Indemnity Co. v. Broken Spoke Bar & Grill, No. 13-804 (W.D. Ky. Sept. 27, 2019) made its way into this issue of CO.  The court held that an insured’s act of murder could qualify as an “occurrence”/accident.  Granted, other coverage provisions served to preclude coverage, but, still, murder as an accident….

At issue in Broken Spoke was coverage for Chris Gribbons, under a liability policy issued to Chris Gribbons d/b/a Raywick Bar & Grill, for a suit filed against him for killing David Litsey. 

The story is that Gribbins confronted Litsey in a crowd outside the bar where Gribbins “pistol whipped” Litsey.  The gun discharged killing Litsey.  Gribbins argued self-defense.  A jury found Gribbons guilty of Wanton Murder.       

Turning to the civil case, Maxum undertook Gribbons defense, under a reservation of rights, and then filed an action seeking a declaration that it owed no coverage to Gribbons for defense or indemnity.

First up for the court was whether the “bodily injury” was caused by an “occurrence,” defined as an accident.  The court concluded that it could be.

At the heart of the court’s decision was the fact that Gribbons had been found guilty of “wanton murder.”  Of significance, the court in the criminal case charged the jury that, to convict Gribbons, he must have been “wantonly engaging in conduct which created a grave risk of death to another and thereby caused the death of David Litsey, Jr. under circumstances manifesting an extreme indifference to human life.” 

Then, the court defined “wantonly” as “[a] person acts wantonly with respect to a result or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would overserve in the situation.”

The court’s conclusion was that these instructions permitted a conviction for wanton murder without a finding that Gribbons intended Litsey’s death.

And, conveniently, this issue had been addressed by the Kentucky Supreme Court its Gribbons’ appeal of his criminal conviction.  The Kentucky Supreme Court concluded that the jury had heard evidence sufficient to instruct on both wanton murder and intentional murder and “the jury could have reasonably believed that by ‘using a loaded handgun[] as a club to beat Listey, Gribbins consciously disregarded a substantial and unjustifiable risk that the handgun might accidently be discharged.’” 

Putting this in simple terms, Gribbons’s conviction for wanton murder did not forestall the possibility that Gribbons did not intend Litsey’s death.  Add to this that, under Kentucky law, only intentional acts are non-accidental (as well as “inferred intent” situations, when a person intentionally commits an act certain to cause that particular kind of harm).  Moreover, even reckless disregard for an obvious danger is an accident because the insured did not intend the injury.

Putting these two together, the court concluded that wanton murder could be an accident. 

When all was said and done, Gribbins’s victory on the “occurrence”/accident issue was a moot point, as the court held that coverage was still precluded by the expected or intended exclusion and assault and battery exclusion. 

But still, murder as an accident….That gets my attention.


Website by Balderrama Design Copyright Randy Maniloff All Rights Reserved