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Auto Club loses attempt to wipe out homeowners coverage for hunting accident

Matthew Kondziolka accidently shot John Shwary in the neck.  Kondziolka testified that he thought he had flushed a deer when he heard footsteps behind him.  He turned, saw a flash of white and shot, striking Shwary.  When Shwary made a claim for damages, Kondziolka's homeowner's insurer, the Auto Club, filed a declaratory judgment action and argued that it didn't owe coverage because the shooting wasn't an "occurrence" and because the "criminal acts" exclusion in the policy excluded coverage. 

To support the latter claim, the Auto Club argued that by pointing a weapon at Shwary, with the intent to shoot, even without malice, Kondziolka violated the express language of 750.235(1), rendering him guilty of a "criminal act."  The trial judge ruled that the incident was nothing more than a "hunting accident" and that it did not meet the definition of a criminal act excluding coverage because it was simple "negligence."  The Auto Club appealed.

The Court of Appeals sustained the occurrence holding in a brief paragraph.  With regard to the statutory violation of intentionally aiming a weapon, even without malice, the higher court judges noted that by Auto Club's analysis, anyone who pointed a weapon at anything woud be guilty of a criminal act, regardless of intent.  The judges concluded that since Kondziolka thought he was aiming at a deer, he had not violated the statute that the Auto Club cited seeking summary disposition.

The action may be of limited precedential value, however, because the attorneys for the Auto Club did not cite the broader "negligent discharge of a firearm" statute, violation of which is also a criminal misdemeanor.  Frankly, there are so many criminal statutes involving negligent endangerment of another person (particularly children, such as, for example discarding a refrigerator with an operable door mechanismn) that the typical insurance exclusions applicable to actions "in the nature of a criminal act" virtually wipe out homeowner liability coverage.

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