Ga. Court of Appeals: Insurance Company Not Responsible for Homeowner’s Fatal Shooting of Child

Most personal injury lawsuits involve accidents, i.e. unintentional but negligent conduct, but sometimes a personal injury arises from criminal activity. When this is the case, the criminal party can be held liable in a personal injury lawsuit–but their insurance company probably will not cover any award of damages. That is because insurers typically include criminal activity from the scope of their policy coverage.

Marcus v. Country Mutual DO-013 Insurance Company

A recent decision from the Georgia Court of Appeals, Marcus v. Country Mutual DO-013 Insurance Company, provides a helpful illustration of this principle. This case unfortunately began with a scenario that has become all too common in Georgia — a white person reporting “suspicious” African-Americans to the police. According to court records, the woman repeatedly complained to law enforcement in Macon about several African-American youths. When questioned, the juveniles explained that the woman had repeatedly shouted racial epithets at them. The police advised the youths to “stay on the other side of the street when passing by her house, knowing that [she] was upset and hostile.”

Later that day, the woman again called the police, this time to report the fact she “had shot someone.” The woman claimed the same African-American youths had been “throwing rocks at her.” In response, she opened fire with a .38 revolver. While the woman said she never intended to hit anyone, she nevertheless managed to strike an innocent bystander, causing him to suffer permanent disabilities from a head injury.

Prosecutors charged the woman with aggravated assault and aggravated battery. She entered what is known as an Alford plea, also known as a “no-contest” plea. Essentially, she acknowledged that the state had sufficient evidence to convict her without technically admitting guilt. The judge sentenced her to 15 years in prison.

The victim’s parents later filed a claim against the woman’s homeowner’s insurance policy. The insurer then filed its own lawsuit, seeking a judicial declaration it was not liable for injuries caused by the homeowner’s criminal conduct. The judge sided with the insurer and granted its motion for summary judgment.

A divided, three-judge panel of the Court of Appeals upheld the judge’s ruling. The majority rejected the parents’ claim that the criminal exclusion did not apply because, despite the Alford plea, the homeowner said she acted in self-defense when she opened fire. Put another way, she had a “justification defense” under Georgia law, which created a viable question as to whether her conduct was actually criminal. As the majority noted, the homeowner never raised this defense during her criminal trial, and the fact she now offered “self-contradictory” testimony in order to get her insurer to cover a potential civil judgment was not enough to overcome the legal presumption this was an excluded criminal act under her policy.

The dissenting judge, however, suggested that the trial court should have considered whether or not the homeowner offered a “reasonable explanation” for her self-contradictory testimony before granting summary judgment to the insurer. The dissent pointed out that an Alford plea is not the same thing as a guilty plea. Here, the homeowner maintained she was innocent in spite of the evidence presented against her. So she could theoretically argue in a civil case that she did not engage in excluded criminal conduct.

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