North Carolina Farm Bureau Mutual Insurance Co. v. Lynn (Lawyers Weekly No. 11-16-1076, 8 pp.) (Rick Elmore, J.) Appealed from Gaston County Superior Court. (Mark E. Klass, J.) N.C. App. Unpub.
Holding: Even though the plaintiff-insurer showed that the insured’s son intended to pull the trigger of his gun, the insurer failed to show that the son intended to injure defendant. Therefore, the insurer failed to prove that the shooting was not an “occurrence” under its homeowner’s policy.
We reverse summary judgment for the insurer and remand for entry of summary judgment for defendant.
At a party at Ricky and Pamela Cole’s home, their son got into a fight with a third party. Defendant, a guest at the party, saw the Coles’ son pull out a gun. Defendant tried to leave. While he was attempting to leave, defendant was shot in the shoulder. The bullet severed his spine and paralyzed him from the chest down.
Plaintiff, which provided the Coles’ homeowners’ insurance, defended the Coles and their son when defendant sued. In that underlying lawsuit, the trial court found that the Coles’ son was negligent. The parties stipulated that defendant’s damages were $100,000.
Plaintiff filed this declaratory judgment action seeking a declaration that its policy does not provide coverage for defendant’s injuries. The trial court granted summary judgment for the plaintiff-insurer.
Even though the determination of the son’s negligence in the prior lawsuit later affected the insurer’s liability, this does not show privity between the insurer and the son. Neither res judicata nor collateral estoppel bars the insurer’s action.
However, the insurer failed to show that the Coles’ son intended to commit both the act and the injury to defendant.
The insurer argued that the shooting did not constitute an “occurrence” as defined in its policy. The insurer’s entire argument is based on the fact that the son intended to fire his weapon.
However, the insurer makes no argument that the son intended to shoot defendant in the shoulder or that defendant’s resulting paralysis was an expected result. In short, the insurer has only argued that the son intended to fire his weapon, but the insurer has failed to establish that defendant was the intended victim.
This court has established the rule that, in order to avoid coverage for intended injuries, the insurer must prove that (1) the insured intended the act and (2) the insured intended the injury. Here, plaintiff has failed to establish the second requirement in that two-part test.
Reversed and remanded.