Several fact issues can affect the determination of intent, including shooting an unintended victim or unintended consequences of the shooting. Legal issues that may have an effect on intent include whether insanity or intoxication can negate intent, and whether minors can formulate intent.
Parents of shooters may find themselves facing liability under theories of negligent entrustment or negligent supervision, and they may seek coverage under their own homeowners’ policies.
Shooting may result in criminal charges. The coverage issue is whether a criminal conviction, guilty plea, or acquittal is binding on the issue of the insured’s intent, for coverage purposes.
Additional issues may arise if the insured asserts self-defense, including the self-defense exception to bodily injury provisions and the assault and battery exclusion, and whether, in “four corners” or “eight corners” states, the insurer can consider this affirmative defense in evaluating coverage.
This article summarizes existing case law on these points, focusing mainly on policies issued to the shooter or his or her parents, and concludes by noting some of the coverage and underwriting issues that could arise if gun liability insurance is made mandatory. This article limits the discussion to shooting cases, unless otherwise stated, because some decisions have stated that using a gun is a special situation, and may be distinguishable from, for example, punching someone.
Is Shooting an Occurrence or Intentional?
At issue under liability policies is whether shooting is an occurrence or whether an “expected or intended” limitation (either as an exclusion or, arguably, a limitation in the definition of “occurrence”) may bar coverage. The analytical significance of the difference between an “occurrence” definition and an exclusion lies in who bears the burden of proof; in every state, the insured bears the burden of proving that coverage exists, including that there was an occurrence, while the insurer bears the burden of proving that an exclusion bars coverage.
Liability policies typically require an occurrence for bodily injury and property damage coverage to exist. One homeowners’ policy defines “occurrence” to mean “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in a. ‘Bodily injury’; or b. ‘Property damage.’” For there to be an accident, the insured cannot have intended the injury or conduct.
Most liability policies bar coverage for expected or intended injury or conduct. ISO’s HO3 form contains an exclusion for expected or intended injury, which states that coverage does not apply to the following:
“Bodily injury” or “property damage” which is expected or intended by an “insured” even if the resulting “bodily injury” or “property damage”:
a. Is of a different kind, quality or degree than initially expected or intended; or
b. Is sustained by a different person, entity, real or personal property, than initially expected or intended.
General liability policies issued to businesses often contain assault and battery exclusions, and such exclusions may also be endorsed onto homeowners’ policies. One example is an exclusion for “any claim arising out of … Assault and/or Battery committed by any person whosoever, regardless of degree of culpability or intent and whether the acts are alleged to have been committed by the insured or any officer, agent, servant or employee of the insured or by any other person.”
Standards for Intent
States have applied a variety of tests to determine whether the insured intended the act or injury. The standards are as follows, in order of most likely to least likely to be intentional:
Inferred intent. Intent is inferred as a matter of law, meaning the shooting is deemed to be intentional. States that have decisions inferring intent in shooting claims include Iowa, Kentucky, Minnesota, Nebraska, New Jersey, North Carolina, North Dakota, Oregon, and Pennsylvania. Courts have inferred intent in the following cases: In State Farm Fire & Casualty Co. v. Victor, the insured admitted that he shot at a doorway, knowing that a person was standing there; the insured believed that the person standing there was the actual victim; and the insured knew that the gun he used was a powerful weapon capable of causing serious damage. In Electric Insurance Co. v. Estate of Marcantonis, the insured broke into his ex-girlfriend’s home with a sledgehammer; shot her current boyfriend several times in the chest, at close range, killing him; and then committed suicide by setting himself on fire. In Ohio Casualty Insurance Co. v. Clark, the insured husband shot at the third-party claimant whom the insured discovered in bed with the insured’s wife. In Erie Insurance Exchange v. Heisey, the insured shot the his ex-girlfriend three times in the head.
Minnesota has inferred intent in cases involving intentional misuse of a firearm, even where the insured intended only to frighten the third-party claimant, but the shooting resulted in unintended consequences.
Objective standard. Many states employ an objective standard, under which the inquiry is whether a hypothetical reasonable insured in the particular circumstances presented would intend the conduct or the injury that resulted or both. In Hawaiian Insurance & Guarantee Co., Ltd. v. Blanco, the court explained that when the insured intentionally shot at his neighbor intending to frighten the neighbor, there was no accident and no occurrence, because a reasonable person in the insured’s position “should have anticipated and expected” that physical injury might result from such an action, even though the actual injury he caused was unexpected. Where the objective standard applies, courts are less likely to find an occurrence in cases involving unintended consequences or an unintended victim, reasoning that regardless of what the insured may have intended, he pointed a gun at another person.
Subjective standard. The subjective standard inquires whether the insured actually intended the act or injury or both. For example, in Colonial Penn Insurance Co. v. Hart, the third-party claimant boy had allegedly thrown a rock at the insured’s house. The insured fired once in the boy’s direction and once in the air. The court, applying Georgia’s subjective standard, ruled that the insured did not intend or expect bodily injury to result from intentional shooting, intending only to frighten the boy. Courts that apply a subjective standard are more likely to find an occurrence in cases involving unintended consequences or an unintended victim, because the insured did not intend the result that actually happened.
Shooting deemed an occurrence. Montana has held that shooting is an occurrence, to further the public policy goal of compensating third-party claimants. It is noteworthy that the case distinguished as an occurrence the insured wife’s shooting the third-party claimant woman with whom her husband had socialized or dated while the couple was separated, from per se intentional acts such as hitting someone in the face with a fist, sexual molestation, and hitting, biting, and kicking security guards.
Cases Finding No Occurrence or Intentional Exclusion Bars Coverage
Cases that have found that a shooting was not covered, either because it was not an occurrence or because the expected or intended exclusion barred coverage, include the following:
In Ohio Casualty Insurance Co. v. Henderson, the Arizona Supreme Court held that when wrongful death happens during an armed robbery, the injury is “expected or intended” because the insured’s course of conduct—most importantly, carrying a loaded gun—“made it not only foreseeable but substantially certain that some significant harm would result.”
In Western Agricultural Insurance Co. v. Brown, the Arizona Court of Appeals determined that in a murder claim, the insured’s intent to cause harm is presumed. The insured “knowingly” shot two people nine times, and the court rejected his assertion that he intended no harm because the contention “flies in the face of all reason, common sense and experience.” Thus, the intentional conduct exclusion barred coverage.
In 20th Century Insurance Co. v. Stewart, the California Court of Appeal construed a criminal acts exclusion and determined that it barred coverage. The insured was playing Russian roulette. The gun did not discharge for the first two people he shot at, but it discharged and killed the third person he shot at. The court found that the insured’s conduct was intentional, stating: “This is not a case in which a revolver was negligently mishandled and fired by mistake or inadvertence. [The insured] deliberately and intentionally pointed the revolver at [the third-party claimant] and deliberately and intentionally pulled the trigger.”
In State Farm Fire & Casualty Co. v. Hackendorn, the insured went to his wife’s workplace, a crowded beauty salon, and shot at her, killing his wife and injuring a third-party claimant bystander. The court found this could be an occurrence, because from the third-party claimant victim’s perspective, the “incident is a happening by chance, unusual, fortuitous and not anticipated.” However, the “expected or intended” exclusion barred coverage, because under these circumstances, injury to a bystander could be expected by the insured.
In State Farm Fire & Casualty Co. v. Gorospe, the court ruled that injury resulting from shooting a person six times is, at the very least, “expected” on the part of the insured, and no coverage exists.
In Stone v. Kentucky Farm Bureau Mutual Insurance Co., the court ruled that pointing a rifle directly at insured’s 20-month-old son and firing at close range is not an “accident,” because this act is “certain to cause a particular kind of harm.”
In United Services Automobile Association Casualty Insurance Co. v. Sorrells, the insured and third-party claimant left a bar together; drove to the insured’s home; argued; and the insured retrieved a gun from his bedroom, pointed it, and fired it, knowing at the time the gun was loaded and fired much more easily than most similar guns. Applying an objective test, the court ruled that the shooting was intended—or at least expected—so the “expected or intended” exclusion barred coverage.
In Union Insurance Co. v. Nunnery, the court declined to find that shooting three or four times a thief fleeing a store constitutes an occurrence. In Gulf Insurance Co. v. Lloyd, the court found that because the insured intended to draw a gun, there was no occurrence, even though the insured did not intend to kill the third-party claimant.
In Commercial Union Insurance Co. v. Mauldin, the insured husband had a general intent to shoot and injure his wife, but no specific intent to kill and injure his wife’s friend. The court ruled that the “expected or intended” exclusion barred coverage, because the insured knew it was “probable” that he would hit the friend when he fired four or five shots into his wife’s friend’s moving car.
In Shelter Mutual Insurance Co. v. Wheat, the court ruled that shooting someone at close range is not an “accident,” stating: “It is not an unnatural and unforeseeable consequence of shooting at close range to frighten someone that the bullet will ricochet, injuring the person who is meant to be frightened by the shooting.”
In Allstate Insurance Co. v. Savage, a shooting in an altercation between two drivers was held to be intentional and not “accidental,” where the insured got out of his car and walked aggressively to the third-party claimant’s car, started punching the third-party claimant through the open window of the car, pulled a gun out, stuck his arm with the gun into the car, pointed it at the third-party claimant and fired.
In State Farm Fire & Casualty Insurance Co. v. Reed, a shooting was found not an accident, where the insured intentionally pulled his gun, aimed it at the third-party claimant’s chest and fired, and there was no contention that gun accidentally discharged or that the insured intended to shoot in the air to warn the third-party claimant. Instead, the shooting was “so inherently injurious that it cannot be performed without causing the resulting injury.” “The effect of [shooting] is so integral to the act that the intent to do the act is interchangeable with the intent to cause the resulting injury.” Therefore, there was no accident and thus no occurrence, and moreover, the intentional acts exclusion barred coverage.
In South Carolina Farm Bureau Mutual Insurance Co. v. Dawsey, the insured father fired his pistol three times at the tires on his son’s truck, and one bullet ricocheted and hit the son in the jaw. The court ruled that the intentional acts exclusion barred coverage even though the insured did not aim at the third-party claimant.
In Cooperative Fire Insurance Association of Vermont v. Bizon, the court stated: “Under any common-sense definition, [the insured] intended harm when he deliberately shot at [the third-party claimant].”
In Travelers Indemnity Co. v. Obenshain, just hours after the insured received a letter from one third-party claimant’s attorney about a right-of-way over the insured’s land, the insured rammed his truck into the third-party claimants’ vehicle, exited his truck, and shot the third-party claimants numerous times with two pistols. The court ruled that the “expected or intended” exclusion barred coverage.
Morris v. Travelers Indemnity Co. involved a claim in which the insured, inside his home, fired a shotgun “wildly” outside, the injury to the third-party claimant was “expected,” and the “expected or intended” exclusion barred coverage. This was so even though the underlying action did not allege that the injuries were intended.
Cases Finding an Occurrence
Cases that have found that a shooting was an occurrence, and thus potentially covered, include the following:
In Alabama Farm Bureau Mutual Casualty Insurance v. Dyer, two brothers had an argument over $20. The insured brother pulled a gun, which discharged. In assessing coverage for the wrongful death suit, the court ruled that the shooting was not “expected or intended” from the insured’s standpoint, based on the following facts: Friends testified that the brothers had a good relationship; after the shooting, the insured appeared stunned and requested an ambulance for his brother; and the insured committed suicide soon thereafter.
In Allstate Insurance Co. v. McCarn, the insured 16-year-old pointed a gun at the third-party claimant’s face from one foot away, pulled back the hammer and pulled the trigger, believing the gun to be unloaded, when in fact it was not. The court ruled that there was an accident because the insured “did not intend or reasonably expect that his actions, pointing and pulling a trigger of an unloaded gun, would cause bodily injury” to the third-party claimant. On remand, the court ruled that the “intentional” exclusion did not bar coverage, because under the objective test required by the exclusion, a reasonable person would not expect harm to result from shooting an unloaded gun.
In American Family Mutual Insurance Co. v. Newman, the insured’s testimony indicated that he pulled the trigger by accident. The court ruled that it was a question of fact whether there was an occurrence, because the insured “did not necessarily expect the harm that resulted from the first shot.”
In Providence Mutual Fire Insurance Co. v. Scanlon, boys were shooting BB guns at each other for over an hour. Three participants were hit without injury. The fourth participant was shot in the eye, resulting in serious injury. The court ruled that under the subjective test, the history of the game could have led the insured boy to conclude no injury would result. Likewise, under the objective test, it was not certain that the final shot would result in any injury. Therefore, coverage existed.
In Slayko v. Security Mutual Insurance Co., two friends were drinking alcohol and smoking marijuana one night when the insured picked up a shotgun, pointed it at the third-party claimant, and pulled the trigger, believing the gun to be unloaded. It did not discharge, and the third-party claimant said with a smirky laugh, “don’t point a gun around someone and pull the trigger.” The insured then pumped the gun and pulled the trigger. This time, the gun discharged, injuring the third-party claimant. The insured took immediate measures to stanch the bleeding and summon help. The high court held that the “caused intentionally” exclusion did not bar coverage, because the insured did not intend to injure the third-party claimant. The court based its conclusion on the fact that the two young men were friends up until the shooting, the insured was surprised when the gun discharged, and he took prompt measures to mitigate the harm he had caused. The court did not infer intent, because the insured’s conduct was, in its view, reckless at most.
Unintended Consequences, Unintended Victim
A frequent issue is that the resulting injury to the third-party claimant differs in degree or type from what the insured shooter intended.
In an unintended degree of harm situation (more informally referred to as unintended consequences), for example, the insured might have meant to sting the third-party claimant by shooting a BB gun at his chest but instead hit him in the eye, causing serious injury.
In an unintended type of harm situation (more informally referred to as unintended victim), for example, the insured may have intended to harm his estranged wife but instead harmed someone else.
Courts have been more likely to find an occurrence, and that the intentional injury exclusion did not bar coverage, in claims involving unintended consequences or an unintended victim. The language of ISO Form No. HO 00 03 10 00, quoted above, provides that situations involving unintended consequences and unintended victims are not covered. The following is a survey cases, dated before this ISO form was promulgated, regarding coverage for unintended consequences and unintended victims.
Unintended consequences. The following cases determined that no coverage existed:
In Allstate Insurance Co. v. Herman, the insured intentionally shot at a crowd fleeing from him after he had first fired into the air. The court determined that the intentional act exclusion barred coverage, explaining that the insured “was deliberately committing an act which any reasonable person would deem calculated to cause injury.”
In American Family Mutual Insurance Co. v. Wubbena, the insured shot a BB gun twice at the third-party claimant, subjectively intending only to make him jump or feel short-term pain, but instead caused serious injury. The court inferred intent as a matter of law, because the nature of shooting a BB gun at a person is such that physical harm is foreseeable.
In Donovan v. Commercial Union Insurance Co., the insured intentionally fired a gun, intending to frighten his wife, the third-party claimant, into leaving the house. The court ruled that where the insured intentionally fired a gun with the intent of frightening the third-party claimant, intent is inferred and the “expected or intended” exclusion bars coverage.
The following cases determined that coverage existed:
In Prudential Property & Casualty Insurance Co. v. Swindal, the court ruled that there was an accident where the insured intended only to frighten the third-party claimant with a gun, but the gun discharged, causing serious injury.
In Allstate Insurance Co. v. Steinemer, the court ruled there was a question of fact as to whether the insured intended any harm to the third-party claimant. In that case, the insured and third-party claimant were playing with a pump-type BB gun. The insured practiced firing the gun at some leaves, then pointed the gun at the third-party claimant and shot, hitting him in the chest. The third-party claimant said it did not hurt and said, “if you ever shoot anyone, just pump it up one time. It will just hit short and not very far and not hurt, too.” The insured pumped the gun once and again aimed at the third-party claimant and shot, this time hitting him in the eye and causing serious injury. The court ruled that a question of fact existed as to whether the insured intended any harm to the third-party claimant, because he had reason to believe that a one-pump shot would be harmless. The court indicated that if the insured had fired the second shot after pumping the gun three times, then the issue would be whether the insured intended minor harm but in fact caused serious harm.
In West American Insurance Co. v. Merritt, the insured shot at his friend the third-party claimant, intending only to make his friend feel the stinging pain the insured had felt when his friend shot him with a BB gun—not to blind his friend. The court noted that other Georgia cases had found that an intentional conduct exclusion bars coverage only if the insured intended to inflict bodily injury and does not bar coverage if the insured intended only to inflict pain.
In Stout v. Underhill, the insured hit the third-party claimant trespasser three times but asserted that he was aiming for the safe zone in front of the trespasser. The court ruled that the injury was not “expected.”
In Southern Farm Bureau Casualty Insurance Co. v. Allard, the court concluded that the shooting was not intentional where the insured asserted that he did not intend to hit the third-party claimant victim by shooting in front of him, intending only to stop him by firing as he approached.
In Espinet v. Horvath, the court found a question of fact as to whether the insured intended the injury. In that case, the insured shot at the third-party claimant, who was lunging at the insured with a letter opener. The insured aimed above the third-party claimant’s head for the purpose of “straightening [him] out” but hit the third-party claimant near the eye. Because the underlying facts were in dispute, the court looked to the insured’s testimony, which was that he was “very shocked that he hit [the third-party claimant] as he is an expert marksman who habitually competes in marksmanship”; his drinking might have affected his aim; and he personally called the police and explained what had happened.
Unintended victim. The following case determined that no coverage existed:
In Harris v. Richards, the court ruled, “Where one fires a shotgun twice through the back of a pickup truck, knowing that some person is in the truck, but not being able to see who it is because of darkness, the injury caused to a person in the truck though claimed to be unintended, is not an accident.”
In contrast, the following cases involving unintended victims found that coverage existed:
In Allstate Insurance Co. v. Justice, the court held that where the insured shoots a bystander instead of the person with whom the insured was having a dispute, there can be an “occurrence.” In that case, the 13- or 14 -year-old insured was at a party when he learned another partygoer was armed and threatening to steal his gold necklace. The insured and other partygoer each left the party and returned with guns. The two continued their dispute outside, shooting at each other. During the shooting, a stray bullet fired by the insured hit the third-party claimant bystander, who was uninvolved in the incident, had just parked across the street, and was getting out of his car with his young daughter. The insured said he did not know the third-party claimant, did not intend to shoot or hurt him, was scared, and was shooting to protect himself from the other partygoer. The jury found that the stray bullet was an occurrence.
In Grange Mutual Casualty Co. v. Thomas, the court held that the “expected or intended” exclusion bars coverage only if the wrongful act was intentionally directed specifically toward the persons injured by that act. In other words, where the insured shoots the wrong person, the “expected or intended” exclusion does not bar coverage—even if the insured intended to shoot a person.
In Otterman v. Union Mutual Fire Insurance Co., the insured shot into a dark building, not knowing that a police officer was in the building, and hit the police officer. The court concluded that the insured could not have intended to harm the police officer, and thus there was an occurrence.
Factors that may negate intent: insanity, intoxication, and minor age. Traditional common-law concepts of capacity (the ability to formulate intent) have been applied in the coverage context to determine whether the insured could have expected or intended the act or injury resulting from shooting.
Insanity: Although mental illness can negate intent, many courts have been reluctant to so find in the coverage context. The following cases illustrate the courts’ reasoning:
In Nationwide Mutual Fire Insurance Co. v. Pelgen, the court inferred intent where the insane insured shot and killed his estranged wife, because the facts showed that notwithstanding mental illness, he was still able to act intentionally and deliberately as to his estranged wife. These facts included that the estranged wife was the person with whom the insured had strife, he went inside the house to retrieve a shotgun, and he avoided shooting at their 3-year-old child whom the estranged wife was holding.
In Economy Preferred Insurance Co. v. Mass, the insured shot the third-party claimant at close range. The insured was psychotic and legally insane, and did not know that what he was doing was wrong, because God ordered him to do it. The court determined that the insured had a “minimal degree of awareness of his actions,” which was sufficient to find the shooting intentional, and thus the “expected, anticipated, foreseeable or intended” exclusion barred coverage.
In Mallin v. Farmers Insurance Exchange, the insured estranged husband shot his wife and her friends after the wife refused to talk to him. The Nevada Supreme Court ruled that shooting three people in the head is intentional, because the insured committed the act of shooting and knew it would result in death. The Nevada Supreme Court rejected arguments that the insured was enraged and that his rage should negate intent, and more broadly rejected psychology-based arguments where common sense shows the insured knew what he was doing and intended to kill.
In Electric Insurance Co. v. Estate of Marcantonis, the court rejected the insured shooter’s contention that he was insane, because the facts showed the insured was acting normally on the evening of the murder of his ex-girlfriend’s current boyfriend by spending time with his friends and daughter at his usual diner, and that he carefully planned and executed the murder by purchasing ammunition, a crow bar, a lighter, and gas, kerosene, and containers the day before, putting a sledgehammer into his trunk, making sure his daughter would not be at the ex-girlfriend’s residence, parking at the residence in a spot hidden from view, and using two different guns to shoot the third-party claimant).
In Allstate Insurance Co. v. Savage, a shooting case, the federal court implicitly ruled that insanity does not negate intent. Even if the insured “lacked the mental capacity to govern his or her conduct,” the court held that the “expected or intended” exclusion barred coverage. The court did not allow evidence of the insured’s mental condition.
In Johnson v. Insurance Co. of North America, the court held that insanity does not negate intent, where the insured was aware of the fact that he was shooting the third-party claimant. However, the court left open the possibility that if an insured is “psychotic to an extreme degree” so that he or she has no awareness of what he or she is doing, then insanity could negate intent. An example of such a situation would be an insured who pointed a pistol at someone, thinking “he was peeling a banana.”
Intoxication. Most states are reluctant to find that voluntary intoxication negates intent. “We are not inclined to create a situation where the more drunk an insured can prove himself to be, the more likely he will have insurance coverage.” Involuntary intoxication, resulting from taking prescription drugs, may be different. In Safeco Insurance Co. of America v. Liss, the court remanded for a determination, among other things, of whether the shooter’s being “allegedly under the influence of numerous prescription medications” could negate intent.
Minors. States have generally drawn the line of ability to formulate intent at between 12 to 15 years of age.
In Allstate Insurance Co. v. Dillard, the court found that a 13-year-old boy formulated intent. In that case, the boy obtained guns from the insured grandparents’ locked chifforobe, locked other 13-year-olds in a trailer, threatened to shoot them, pointed a gun at their heads, shot an unloaded gun at each boy, and loaded or reloaded a gun and shot one boy in the head. The court stated that the acts of pointing a loaded gun at a person’s head, intentionally aiming the gun at a person’s head, and pulling the trigger are intentional, under an objective standard. The court further ruled that serious injury is a foreseeable and reasonably expected result of this conduct, one that even a reasonable 13-year-old should have anticipated.
In contrast, in Cumberland Mutual Fire Insurance Co. v. Murphy, the court did not infer intent on the part of a 14-year-old boy. In that case, two teenage boys decided to shoot BBs at passing cars. They stationed themselves on a wooden platform 25 yards from the road, on a dark, moonless night during sleeting weather. The boys later admitted they knew what they were doing was wrong and illegal, and could subject them to juvenile court. A third boy who was with them (but did not do any shooting) told the other two he thought this was wrong, but the two boys still thought they were just having harmless fun. The boys listened to the sound of the BBs ricocheting off vehicles and estimated they hit four to five vehicles. One shot pierced the plastic window of a soft-top Jeep and blinded the driver in the right eye. In the coverage action, the court, applying New Jersey’s two-step approach, found that there was an accident. First, there was no evidence that the boys “subjectively intended or expected to injure anyone.” Second, the third-party claimant’s injury was not “inherently probable,” given the poor weather, the distance of the boys from the road, and the few shots that hit their target. The court found that this was not “particularly reprehensible,” but merely “heedless conduct” of a 14-year-old boy, so the court did not infer intent.
Are Parents Covered for Shooting by Minors?
Parents of minor shooters may find themselves facing derivative tort claims, and they may seek coverage under their homeowners’ policies. The following cases concluded that the parents’ conduct was not intentional and that coverage existed for the parents:
In American Family Mutual Insurance Co. v. Newman, the court indicated that coverage for claims of negligent entrustment against the shooter’s parent depends on the level of the shooter’s conduct. In this case, because the court found that the insurer had a duty to defend the allegations of shooting, the court also found that the insurer had a duty to defend the allegations of negligent entrustment.
In Donegal Mutual Insurance Co. v. Baumhammers, the insured parents’ son went on a shooting spree that killed five people and seriously injured another person. Third-party claimants alleged that the parents were negligent in failing to procure adequate mental health treatment, take the handgun away from the son, and notify authorities that the son had a handgun. The court ruled that the “extraordinary shooting spree” was not “the natural and expected result of Parents’ alleged acts of negligence”; rather, it was “an event so unexpected, undesigned and fortuitous as to qualify as accidental.”
Whether a Criminal Conviction or Acquittal Affects the Coverage Analysis
Criminal proceedings against the insured may go to verdict before or during the pendency of a coverage claim. One of the facts the criminal proceedings may determine is whether the insured acted intentionally. Thus, at issue is whether a verdict or plea in criminal proceedings is dispositive of the issue of intent for coverage purposes. It is more common for a verdict or plea to have an effect on the insurer’s duty to indemnify, although it can sometimes affect the duty to defend (especially in states where the existence of a duty to defend is based on whether there is a duty to indemnify).
Courts often discuss this issue in the context of whether a verdict or plea is binding in a subsequent coverage action. The competing concerns are not allowing insureds to benefit from inconsistent positions, versus giving insureds and insurers a full and fair chance to litigate the coverage issues. In criminal proceedings, it may be to the insured’s advantage to admit to intentional conduct; for example, by pleading guilty to a lesser offense, the insured may avoid a prison sentence. In contrast, in the coverage action, it is usually to the insured’s advantage to assert that his or her conduct was accidental.
Assuming a verdict or plea is admissible in the coverage action, it can be binding or merely persuasive. For example, a criminal conviction may be binding to show that the insured acted intentionally, whereas a guilty plea is merely persuasive evidence.
Criminal proceedings binding on coverage. The following cases involving shooting have concluded that the result of criminal proceedings is binding on intent for coverage purposes:
In Garrison Property & Casualty Insurance Co. v. Barco, the court ruled that the insured’s guilty plea to criminal charges is binding on the issue of intent for coverage purposes.
In Thomas v. State Farm Fire & Casualty Co., the court held that where the parties testified in the underlying action and during criminal proceedings that the shooting was intentional, they could not claim in the coverage action that the shooting was accidental, in an effort to manufacture coverage.
Criminal proceedings not binding on coverage: The following cases involving shooting have concluded that the issue of intent can be relitigated in a coverage action:
In Hawaiian Insurance & Guarantee Co., Ltd. v. Blanco, the court held that where the insured has been convicted of a crime of assault involving willful or knowing conduct, the insurer can consider—but cannot rely solely—on the conviction.
In State Farm Fire & Casualty Co. v. Gorospe, the insured shooter was indicted on a charge of second-degree attempted murder and thereafter pled no contest to attempted assault in the first degree. The court held that the insurer could not rely on the no-contest plea for coverage purposes.
Pennsylvania National Mutual Casualty Insurance Co. v. Johnson involved a gun that discharged during a struggle. The insured decided to plead guilty to a lesser charge of voluntary manslaughter because he had three children and did not want to spend the rest of his life in jail. The underlying civil action alleged that the insured negligently shot the third-party claimant; thus, the court ruled that the insurer had a duty to defend.
Self-Defense by the Insured
Self-defense presents a different set of analytical issues, for several reasons. One issue is that self-defense is still an assault and battery, and is thus at least potentially intentional. Courts struggle with the issue because self-defense, like assault, involves an intent to harm another, even though the motivation for self-defense is “worthy” whereas the motivation for assault is not. Another issue is that self-defense is the insured’s affirmative defense to an underlying complaint, raising the question of whether the insurer must or can consider assertions outside the complaint, especially in four and eight “corners” states, which limit the duty to defend analysis to allegations in the third-party claimant’s complaint.
Yet another issue is that some policies extend coverage for self-defense by way of an exception to an exclusion, meaning that the insured bears the burden of proving that the exception reinstates coverage that would otherwise be precluded. The HO3 form’s Expected Or Intended Injury exclusion, quoted above, contains the following exception: “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force by an ‘insured’ to protect persons or property.”
Corners states. Four and eight corners states require the insurer to consider only the underlying complaint and the policy in evaluating coverage for liability claims. An insurer may not consider extrinsic evidence, which can include the insured’s answer to the complaint and affirmative defenses. In the following shooting cases, Texas and Wisconsin held that the insurer could not consider the insured’s answer, but Virginia allowed the insurer to consider the insured’s assertions.
No Extrinsic Evidence. In State Farm Lloyds v. Jones, the court held that extrinsic evidence is not admissible for the purpose of evaluating coverage where the insured asserts self-defense. In that case, the third-party claimant’s amended complaint alleged that the insured retrieved a loaded gun from her house when she saw a vehicle enter onto her property and did not put the gun down or return it to her house when she learned her neighbor was in the car; a verbal confrontation ensued between the insured and neighbor, which escalated into a physical confrontation, during which the gun was allegedly “negligently discharged,” killing the third-party claimant. The court concluded that these allegations could constitute an accident.
The coverage analysis stops with the intentional exclusion, and a court can never reach whether the self-defense exception to the intentional exclusion reinstates coverage, because of Wisconsin’s four corners rule. The Wisconsin Supreme Court granted certiorari, but the appeal was subsequently dismissed.
Extrinsic Evidence Permitted. Copp v. Nationwide Mutual Insurance Co., although not a shooting case, is Virginia’s landmark case holding that where the “expected or intended” exclusion carves out an exception for self-defense, Virginia considers extrinsic evidence, in the form of the insured’s assertion as to whether he or she was acting in self-defense (even though Virginia is otherwise an eight corners state). In that case, the facts that showed self-defense were as follows: College roommates were playing beer pong in their apartment, when two people they did not know came in through a “cracked” door and asked to play. An argument ensued, and the insured roommate escorted the two people out. The argument continued in the hallway, and the third-party claimant continued yelling in the hallway after the insured roommate was escorted back inside his apartment. When the insured roommate went back into to the hallway, he was confronted by several people who were attending a party upstairs, heard the shouting, and came downstairs to investigate. One of these people, the third-party claimant, was a friend of the person the insured had escorted out. The insured tried to get to the person he had escorted out, but three of the people pushed him back, wrestled with him, twisted his arm, and kept him from walking anywhere. According to the insured, he realized he was outnumbered and his safety was in jeopardy, and in the process of freeing himself, the insured swung his arm with a closed first over someone’s head, like a swim move in football, and unintentionally hit the third-party claimant. According to the third-party claimant, the insured was throwing punches in the air and intentionally hit him. The court accepted the insured’s version over the third-party claimant’s version, and the self-defense exception reinstated coverage.
Coverage for self-defense. The following cases concluded that self-defense was not covered.
In Clemmons v. American States Insurance Co., the court held that even though the insured was “an innocent” and acted only reluctantly, he nonetheless “intentionally discharged a firearm while intentionally aiming it toward another human being.”
In Allstate Insurance Co. v. Grayes, the court ruled that there was no occurrence where the insured “intended to shoot the gun and hit those whom he intended to shoot,” even if the insured asserted that the acts were performed in self-defense.
In Bay State Insurance Co. v. Wilson, the insured and third-party claimant both admitted that the insured “intentionally shot [the third-party claimant] with a .12-gauge shotgun at point-blank range.” The court therefore ruled that the injuries were at least expected, regardless of the insured’s belief that he was acting in self-defense, such that the expected injury exclusion barred coverage.
In Auto Owners Insurance Co. v. Grier, the insured asserted that he did not intend to harm the third-party claimant robber because he did not aim at the robber. North Carolina applies tort standards to determine whether a self-defense exception to the “expected or intended” exclusion reinstates coverage, and the court determined that the insured did not act in self-defense, but instead became the aggressor, when he left his store to search for men who robbed his store and, after spotting one of the robbers, forced that robber back to the store at gunpoint, instead of calling police. The court held that the “expected or intended” exclusion barred coverage because the insured intentionally carried a gun and admitted to shooting the third-party claimant.
In Allstate Insurance Co. v. Simms, the court ruled that the “intentionally caused” exclusion bars coverage for self-defense. In that case, one of the third-party claimants was the ex-boyfriend of the insured’s fiancée. The third-party claimants entered the insured’s room while he was sleeping and demanded to talk to him. Ultimately, as the third-party claimants were advancing on the insured, he shot one of them five times with a buffalo gun. The insured admitted that he was aiming for the chest area. Based on these facts, the court found that the only inference to be drawn was that the insured intended to shoot and cause harm to the third-party claimant. Thus, the exclusion barred coverage, even if the insured did not intend to cause death.
The following cases found that self-defense was covered:
In Automobile Insurance Co. of Hartford v. Cook, the underlying wrongful death action alleged that the insured negligently caused the third-party claimant’s death and that the insured “intentionally shot” the third-party claimant. The court ruled that the insurer had a duty to defend, because the allegations of negligence could be an occurrence, and the insurer did not show that the “expected or intended” exclusion barred coverage. The court noted that the allegations in the underlying action supported this conclusion: The insured and third-party claimant had known each other for many years and were having a business dispute; the third-party claimant weighed 360 pounds and was three times the size of the insured; the third-party claimant had previously attacked the insured; on the date at issue, the third-party claimant threw objects at the insured’s house, then entered, refused to leave, and advanced on the insured despite a warning that if he came closer the insured would shoot; the insured shot at the lowest point of the third-party claimant’s body that was not blocked by the pool table in between them; and a jury acquitted the insured of criminal charges. Although there was “some evidence” of intentional conduct by the insured, such as going to get a bigger gun when the third-party claimant laughed at his small gun, the allegations of negligent conduct gave rise to a duty to defend.
In Farmers & Mechanics Mutual Insurance Co. of West Virginia v. Cook, the court applied West Virginia’s presumption that where the insured can establish that he or she was acting in self-defense or defense of another, the insured intended to prevent harm, not cause harm. The following facts gave rise to a duty to defend, as they tended to show the insured wife acted in defense of her husband. The insured couple and the third-party claimant were neighbors, and the third-party claimant harassed and vandalized the insureds because of a fence they put up. The insureds called the police, and the third-party claimant agreed to apologize, but instead threatened to kill them if they called the police again. On the date of the event at issue, the third-party claimant (who was 6 feet 4 inches and weighed more than 300 pounds) was throwing rocks at the insureds’ house. The husband (who was 5 feet 6 inches and weighed 140 pounds) went outside and asked the third-party claimant not to throw rocks onto his property. The wife loaded a shotgun, went outside, fired a shot in the air, hurried to her husband’s side, told the third-party claimant she had called the police, and asked him to leave. The third-party claimant cursed at the husband and said he was a “dead man.” The husband began to walk away, but the third-party claimant pursued and attacked him, throwing him to the ground and beating him. The wife tried to pull the third-party claimant off and ask him to stop, but he hit her and ripped her shirt. The wife claimed she was afraid her husband would be killed, so she pointed the shotgun at the third-party claimant’s right arm, “didn’t really aim it,” but thought the shot would graze the side of his arm. As she fired, the third-party claimant raised up and raised his right arm, causing the shot to land under his right armpit. He later died of his injuries. As a side note, in the criminal proceedings, the wife was acquitted because she was defending her husband.
The following cases determined that a question of fact existed as to whether self-defense was intentional or not:
In Jackson v. State Farm Fire & Casualty Co., the court ruled that whether the insured subjectively intended to injure the third-party claimant, when acting in self-defense, was a question of fact. The facts, as recited by the dissent, showed that the insured believed he was acting in self-defense by shooting the third-party claimant, because the insured believed the third-party claimant had a gun. The dissent also noted that this case marked a change in Alabama law, away from the majority approach (i.e., that self-defense is necessarily intentional).
In Illinois Farmers Insurance Co. v. Rodgers, the court ruled that where the shooting could have been an impulsive and defensive reaction to a provocative situation, it is a question of fact whether the shooting was intentional. In that case, the insured teenager stood up in reaction to provocation from the third-party claimant friend such that a shotgun, which had been resting against the ground and the insured’s lap, discharged, causing a fatal injury to the friend.
Issues Posed by Calls for Mandatory Gun Liability Insurance Coverage issues regarding liability claims for shooting are well established in most states. To the extent emerging legislative proposals call for coverage for self-defense and exclude criminal conduct, they would do little to change existing coverage law. If states decide to mandate gun liability insurance, a coverage issue will be whether states decide to expand the scope of coverage, which could require states to declare by fiat that all shooting constitutes an occurrence and is not intentional. Such an approach would be fraught with problems, chief of which is requiring insurers to indemnify for intentional and even criminal conduct under occurrence policies. It remains to be seen whether the horror of Sandy Hook or current political pressure to cover shooting in circumstances of self-defense will eventually affect court rulings on coverage. The cases discussed in this article indicate that the facts presented in actual claims may often be more complicated than political rhetoric would have the public believe.
On the underwriting side, a gun owner who misrepresents his or her arsenal on a policy application could find the policy rescinded after a shooting. Policy premiums would likely increase across the board, as a result of requiring coverage for high-exposure claims that are currently not even potentially covered. Some gun owners may ignore a requirement of mandatory coverage—just as some drivers ignore state law requiring auto insurance—or opt for lower limits to save on premiums.
From a public policy standpoint, if the goal of gun liability insurance is compensation for third-party claimants, as opposed to protecting the insured from liability, low limits may be insufficient, especially if the claim involves death, serious injury, numerous third-party claimants, or a combination of these. Just as minimum auto liability limits may be insufficient to compensate those injured in car crashes, minimum gun liability limits may be insufficient to protect those injured in shooting incidents.
Keywords: litigation, occurrence, exclusion, accident, intentional act, self-defense
Rina Carmel is a partner in the Los Angeles office of Zelle McDonough & Cohen LLP.
 Rina Carmel, a partner in the Los Angeles office of Zelle McDonough & Cohen LLP, represents insurers and focuses her practice on coverage analysis and counseling, and defense of breach of contract and bad faith claims. Any opinions expressed in this article are those of the author and should not be construed as necessarily reflecting the views of her law firm or the firm’s clients or as an endorsement by the law firm or the law firm’s clients of any legal position described in the article.
 M. Cooper & M. Williams Walsh, “Buying A Gun? States Consider Insurance Rule,” N.Y. Times, Feb. 21, 2013 (last visited Mar. 1, 2013).
 Compare “Gun Insurance: It’s a Way to Encourage Greater Safety,” Pittsburgh Post-Gazette, Feb. 24, 2013 (last visited Mar. 1, 2013), with J. Taranto, “Insurance as Punishment: The Latest Assault on the Second Amendment,” Wall St. J., Feb. 7, 2013 (last visited Mar. 1, 2013).
 E.g., State Farm Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 105 (3d Cir. 2009) (Pennsylvania law) (insured went to his girlfriend’s house with loaded gun and shot at her housemate three times).
 E.g., Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 638 A.2d 1246 (1994).
 State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994) (New Mexico law) (insured and third-party claimant neighbor had argument, insured tried to hit neighbor with metal bar, then ran into adjoining garage, unlocked his car, took out gun he had hidden there, loaded gun, went looking for neighbor, pointed gun at neighbor’s head, kicked slide to make warning sound, then shot twice in neighbor’s direction).
 Auto. Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131 , 850 N.E.2d 1152, 818 N.Y.S.2d 176 (N.Y. 2006).
 E.g., Espinet v. Horvath, 157 Vt. 257, 597 A.2d 307 (1991) (insured “expert marksman” testified that he was “very shocked that he hit” the third-party claimant when he was aiming above the third-party claimant’s head, and that his drinking might have affected his aim).
 E.g., Am. Best Food, Inc. v. Alea London, Ltd., 168 Wash. 2d 398 , 229 P.3d 693 (2010). In that case, the third-party claimant patron and a second patron were at the insured nightclub. The patrons had two confrontations after brushing against each other, and the second patron shot the third-party claimant nine times outside the nightclub. The third-party claimant sued the nightclub, alleging post-assault negligence. The coverage issue in that case was whether the assault and battery exclusion in the nightclub’s liability policy barred coverage for post-assault negligence, and the court held that it did not bar coverage.
 E.g., ISO Form CG 00 01 12 07.
 Safeco Ins. Co. of Am. v. Liss, 2000 MT 380 , ¶ 36, 303 Mont. 519, 528 , 16 P.3d 399, 405 (2000).
 No offense or disrespect is meant by the use of this term. Although some states are more progressive than others in recognizing advances in mental health issues, many courts continue to use this term, which has been in use for centuries. See the discussion of insanity, intoxication, and minor age, below.
 Compare Safeco Insurance Co. of America, 2000 MT 380, ¶ 37, 303 Mont. at 529, 16 P.3d at 465 (shooting is “occurrence,” in contrast with hitting someone in face, sexual molestation, and hitting security guard, which are “per se” intentional), with Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 939 P.2d 1337 (1997) (insured’s course of conduct, most importantly, carrying a loaded gun, “made it not only foreseeable but substantially certain that some significant harm would result”).
 E.g., Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 16 (1995) (not a shooting case).
 E.g., ISO Homeowners 3—Special Form, Form No. HO 00 03 10 00; ISO Commercial General Liability Coverage Form, Form No. CG 00 01 12 07.
 ISO Homeowners 3—Special Form, Form No. HCPC HO 03 12 10; see Form No. CG 00 01 12 07 (defining “occurrence” to mean “an accident, including continuous or repeated exposure to substantially the same general harmful conditions”).
 E.g., Hartford Cas. Ins. Co. v. Merchs. & Farmers Bank, 928 So. 2d 1006, 1011 (Ala. 2005).
 ISO Form No. HO 00 03 10 00; see ISO Form No. CG 00 01 12 07 (excluding coverage for “‘Bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured”).
 Am. Best Food, Inc. v. Alea London, Ltd., 168 Wash. 2d 398, 406, 229 P.3d 693 (2010).
 E.g., Am. Family Mut. Ins. Co. v. Wubbena, 496 N.W.2d 783, 785 (Iowa 1992); Ky. Farm Bureau Mut. Ins. Co. v. Coyle, 285 S.W.3d 299 (Ky. Ct. App. 2008); Donovan v. Commercial Union Ins. Co., 493 N.W.2d 581, 583 (Minn. Ct. App. 1992); Farm Bureau Ins. Co. v. Witte, 256 Neb. 919, 929–30, 594 N.W.2d 574 (1999); Electric Ins. Co. v. Estate of Marcantonis, 755 F. Supp. 2d 632 (D.N.J. 2010); N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 545–46, 553 S.E.2d 420 (2001); Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶¶ 12–18, 583 N.W.2d 377 (N.D. 1998); Mut. of Enumclaw v. Merrill, 102 Or. App. 408, 412, 794 P.2d 818 (1990) (stating in dicta that in shooting cases, intent to injure is inferred as matter of law); Erie Ins. Exch. v. Heisey, 81 Pa. D. & C. 4th 18, 29, 33–34, 2007 Pa. Dist. & Cnty. Dec. LEXIS 88 (Feb. 12, 2007) (“an actor who discharges a gun at a vital point of another’s body is presumed to have a specific intent to kill”), aff’d, 959 A.2d 977 (Pa. Super. Ct. 2008). A more recent Kentucky case, Nationwide Mutual Insurance Co. v. James, No. 09–40–EBA, 2011 U.S. Dist. LEXIS 10802 (E.D. Ky. Feb. 3, 2011), denied both parties’ motions for summary judgment based on a factual dispute as to the minor’s subjective intent, stating that Kentucky cases had not inferred intent in the circumstances presented in this case, in which the minor, an experienced hunter who was familiar with firearms, killed his friend. The court pointed to the following as creating a factual dispute: The insurer noted that the minor pointed a rifle at the decedent third-party claimant friend, toggled the safety to a firing position, had a reason to believe the rifle was loaded, and asked “What would you do if I shot you?” The insured homeowners noted that the minor took the rifle off the wall, aimed it away from the people present, and pulled the trigger several times while the safety was engaged, and the rifle did not discharge; but later, without checking to see if the gun was loaded, the minor pointed the rifle at the decedent’s head, “switched the safety out of the full-safe position, and due to a defect with the weapon, it discharged without [the minor] touching the trigger.”
 232 Neb. 942, 442 N.W.2d 880 (1989).
 755 F. Supp. 2d 632 (D.N.J. 2010).
 1998 ND 153, ¶¶ 12–18, 583 N.W.2d 377 (N.D. 1998).
 81 Pa. D. & C. 4th 18, 29, 33–34, 2007 Pa. Dist. & Cnty. Dec. LEXIS 88 (Feb. 12, 2007), aff’d, 959 A.2d 977 (Pa. Super. Ct. 2008).
 Donovan v. Commercial Union Ins. Co., 493 N.W.2d 581, 583 (Minn. Ct. App. 1992) (insured intentionally fired a gun, intending only to frighten his wife into leaving the house, but shot wife).
 72 Haw. 9, 18, 804 P.2d 876 (Haw. 1990), overruled on other grounds by Dairy Road Partners v. Island Ins. Co., Ltd., 92 Haw. 398, 992 P.2d 93 (Haw. 2000).
 See the discussion below regarding unintended consequences and unintended victims.
 162 Ga. App. 333, 334–35, 291 S.E.2d 410 (1982).
 See the discussion below regarding unintended consequences and unintended victims.
 Safeco Ins. Co. of Am. v. Liss, 2000 MT 380, ¶ 36, 303 Mont. 519, 528, 16 P.3d 399, 405 (2000).
 Safeco Insurance Co. of America, 2000 MT 380, ¶ 37, 303 Mont. at 529, 16 P.3d at 406.
 189 Ariz. 184, 192, 939 P.2d 1337 (1997).
 195 Ariz. 45, 47, 985 P.2d 530 (Ariz. Ct. App. 1998).
 63 Cal. App. 4th 1333 (1998).
 605 A.2d 3 (Del. Super. Ct. 1991).
 106 F. Supp. 2d 1028 (D. Haw. 2000).
 34 S.W.3d 809 (Ky. Ct. App. 2000).
 910 S.W.2d 774 (Mo. Ct. App. 1995).
 2009 U.S. Dist. LEXIS 57448 (S.D. Miss. July 7, 2009).
 651 F. Supp. 518 (S.D. Miss. 1986).
 62 N.C. App. 461, 303 S.E.2d 214 (1983).
 313 F. App’x 76, 81, 2008 U.S. App. LEXIS 193, at *11 (10th Cir. Jan. 4, 2008) (unpublished) (predicting Oklahoma law).
 No. CIV 04535L (W.D. Okla. June 2, 2005).
 2009 U.S. Dist. LEXIS 22741, at *12 (D.S.C. Mar. 19, 2009).
 371 S.C. 353, 638 S.E.2d 103 (S.C. Ct. App. 2006).
 166 Vt. 326, 334 , 693 A.2d 722 (1997).
 219 Va. 44, 245 S.E.2d 247 (1978).
 31 Va. Cir. 306, 1993 Va. Cir. LEXIS 152, at *11 (July 19, 1993).
 454 So. 2d 921 (Ala. 1984).
 466 Mich. 277, 645 N.W.2d 20 (2002).
 471 Mich. 283, 683 N.W.2d 656 (2004).
 2008 U.S. Dist. LEXIS 20368, at *9–10 (D. Nev. Mar. 14, 2008).
 138 N.H. 301, 638 A.2d 1246 (1994).
 98 N.Y.2d 289, 774 N.E.2d 208, 746 N.Y.S.2d 444 (N.Y. 2002).
 551 N.E.2d 844, 846 (Ind. 1990).
 496 N.W.2d 783, 785 (Iowa 1992).
 493 N.W.2d 581, 582–83 (Minn. Ct. App. 1992).
 622 So. 2d 467 (Fla. 1993).
 723 F.2d 873 (11th Cir. 1984) (Florida law).
 216 Ga. App. 822, 823, 456 S.E.2d 225 (1995).
 734 N.E.2d 717 (Ind. Ct. App. 2000).
 611 So. 2d 966, 968–69 (Miss. 1992).
 157 Vt. 257, 259–60, 597 A.2d 307 (1991).
 254 Kan. 549, 554–56, 867 P.2d 325 (1994).
 229 Ga. App. 137, 493 S.E.2d 532 (1997).
 301 So. 2d 158 (Fla. Dist. Ct. App. 1974).
 130 Vt. 636, 642, 298 A.2d 547 (1972).
 241 S.W.3d 814 (Ky. Ct. App. 2007).
 242 Neb. 842, 497 N.W.2d 6 (1993).
 108 Nev. 788, 839 P.2d 105 (1992).
 755 F. Supp. 2d 632 (D.N.J. 2010).
 No. CIV 04535L (W.D. Okla. June 2, 2005).
 232 Va. 340, 350 S.E.2d 616 (1986).
 Dolan v. State Farm Fire & Cas. Co., 573 N.W.2d 254, 257 (Iowa 1998) (not a shooting case).
 2000 MT 380, 303 Mont. 519, 16 P.3d 399 (2000).
 859 F. Supp. 1501, 1503–4 (M.D. Ga. 1994), aff’d, 70 F.3d 1285 (11th Cir. 1995).
 183 N.J. 344, 873 A.2d 534 (2005).
 2008 U.S. Dist. LEXIS 20368, at *17–18 (D. Nev. Mar. 14, 2008) (relying on Fire Ins. Exch. v. Cornell, 120 Nev. 303, 307 , 90 P.3d 978 (2004)).
 595 Pa. 147, 159, 938 A.2d 286 (2007).
 2010 U.S. Dist. LEXIS 138035, at *7 (D. Colo. Jan. 3, 2011).
 No. 2002-CA-00656-COA, 856 So. 2d 646 (Miss. Ct. App. 2003).
 72 Haw. 9, 16, 804 P.2d 876 (Haw. 1990) (shooting claim), overruled on other grounds by Dairy Road Partners v. Island Ins. Co., Ltd., 92 Haw. 398, 992 P.2d 93 (Haw. 2000).
 106 F. Supp. 2d 1028 (D. Haw. 2000).
 82 Pa. D. & C. 4th 23, 2007 Pa. Dist. & Cnty. Dec. LEXIS 123 (Jan. 16, 2007).
 See R. Carmel, “Delgado v. Interinsurance Exchange: The California Supreme Court Restores Clarity to the Analysis of Coverage for Self-Defense,” Coverage, Vol. 19, No. 6 (November/December 2009).
 State Farm Fire & Cas. Co. v. Marshall, 554 So. 2d 504 (Fla. 1989).
 E.g., Hurley Constr. Co. v. State Farm Fire & Cas. Co., 10 Cal. App. 4th 533, 540 (1992) (“Ordinarily, an exception to a policy exclusion does not create coverage not otherwise available under the coverage clause.”) (not a shooting case).
 ISO Form No. HO 00 03 10 00; see ISO Form No. CG 00 01 12 07 (same, except omitting phrase “by an ‘insured’”).
 No. 4:05-CV-389 (E.D. Tex. Feb. 27, 2007).
 It is notable that the court’s earlier decision in the same case recited extrinsic evidence, including from the underlying criminal trial of the insured. State Farm Lloyds v. Jones, No. 4:05-CV-389 (E.D. Tex. Sept. 6, 2006).
 Wilkinson v. Arbuckle, No. 2009AP2868 (Wis. Ct. App. Oct. 13, 2010) (assault and battery claim).
 279 Va. 675, 683–85, 692 S.E.2d 220, 224–25 (2010).
 412 So. 2d 906, 909 (Fla. Dist. Ct. App. 1982).
 216 Ga. App. 419, 421, 454 S.E.2d 616 (1995).
 96 Ill. 2d 487, 493–94, 71 Ill. Dec. 726, 451 N.E.2d 880 (1983).
 163 N.C. App. 560, 565, 593 S.E.2d 804 (2004).
 597 F. Supp. 64 (D. Or. 1984).
 7 N.Y.3d 131 , 850 N.E.2d 1152, 818 N.Y.S.2d 176 (N.Y. 2006).
 210 W.Va. 394, 403, 557 S.E.2d 801 (2001).
 661 So. 2d 232 (Ala. 1995).
 Nos. C7-02-425, C9-02-426 (Minn. Ct. App. Nov. 19, 2002).
 Advertising literature for policies offered under the National Rifle Association’s Endorsed Property & Liability Insurance Program is apparently in accord that indemnity for intentional and criminal conduct is problematic. The advertising literature describes the Excess Personal Liability coverage as providing coverage for unintentionally caused injuries “while hunting or trapping on public or private land” and “while shooting in competitions or at private shooting ranges.” NRA Endorsed Insurance Program Online, Excess Personal Liability (last visited Mar. 4, 2013). The advertising literature describes the optional Self-Defense Coverage rider as providing coverage for “civil defense and liability and criminal defense reimbursement if you are involved in an act of self-defense,” but for the latter, only “when you are acquitted of such criminal charges or the charges are dropped.” NRA Endorsed Insurance Program Online, Self-Defense Coverage (last visited Mar. 4, 2013). The author was unable to locate copies of the actual policy forms online and cannot compare the policy provisions with those set forth in the homeowners’ and CGL forms available online and quoted in this article or the language quoted in the case law.