Girl in costume at Halloween party shot after being mistaken for skunk 10/21/2012 Associated Press
Talk about taking all the fun out of Halloween, this story takes the cake. The shooting occurred in Freedom, Pa. “Police say a costumed 9-year-old girl was accidentally shot outside a western Pennsylvania home during a Halloween party by a relative who thought she was a skunk. New Sewickley Township police say the girl was over a hillside and wearing a black costume and a black hat with a white tassel. Chief Ronald Leindecker says a male relative mistook her for a skunk and fired a shotgun, hitting her in the shoulder Saturday night. Leindecker tells the Beaver County Times that the girl was alert and talking when she was flown to a hospital in Pittsburgh, about 30 miles away. Her condition was unavailable. Leindecker says the man hadn’t been drinking and he doesn’t know whether charges will be filed.
When I first read this article, I had a lot of questions that came to mind.
1. How could anyone mistake a nine-year old girl for a skunk and NOT be drunk. Unless they grow giant skunks in Pennsylvania, this makes no sense at all.
2. Is it legal to kill a skunk in Pennsylvania which would then not make this some sort of criminal offense. I goggled that exact question. I am apparently not the only one who has researched that question as page after page of specific skunk killing questions and blogs appeared. Summarizing the information, it appears that it is legal to kill skunks in some areas of PA; however, some species of skunks are protected by law.
now to the BIG question. Is accidentally shooting a 9-year-old girl dressed in a skunk outfit covered on the Homeowners Policy when the homeowner is sued for all the medical bills and potential legal expenses. I would certainly expect that parents of the injured child will do exactly that.
For the answer to the question, we must revisit an exclusion that has been the topic of many articles written by the Insurance Community Center—the Expected or Intended Injury Exclusion under the Section II Liability Coverage. This exclusion has taken a major change in the most recent edition date of the Homeowners Policy and in the 04/91 edition date and prior was called the Intentional Loss Exclusion. If we look at the two exclusions, we might answer differently as to whether the shooting would be covered. In the 04/91 edition date the exclusion reads:
h. Intentional Loss, meaning any loss arising out of any act committed:
(1) By or at the direction of an “insured”, and
(2) With the intent to cause a loss
As we look at the older language, the second paragraph (which is connected by the word “and”) would imply that the insured would have had to intend to cause a loss in order for it to be excluded. In this case, the homeowner intended to cause a loss to a skunk but had no intention of injuring a nine-year old girl.
The new “intentional act” exclusion is far more reaching and will effectively exclude many more situations, including that of the “skunk” shooting. The edition dates after 04/91 including the recent 05/11 reads as follows:
1. Expected or Intended Injury
“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 or property than initially expected or intended.
However, this Exclusions E.I. does not apply to “bodily injury” or “property damage” resulting from the use of reasonable force by an “insured” to protect persons or property.
Clearly this is a much broader exclusion. Notice that the two paragraphs are connected by an “or” rather than an “and” which means either paragraph (a) or (b) could apply for the exclusion to apply. In this case, while the homeowner intended to kill a skunk but inadvertently shoot a nine-year old girl—there would be no coverage. Clearly the intent of these later edition dates was to exclude situations exactly like the one reported in PA.
As we look at these forms we always have to be various state laws and case-law in different states. We all know that attorneys have a very different view on how these forms can be interpreted. Once Florida law firm boosts on their site that they were able to recover damages from the Homeowners Policy for a gun owner who accidentally shot a woman that he testified he was merely trying to scare by waving a gun around her. The contention here, must have been, that the homeowner was “intending” to scare and not “intending” to shot. The newer edition date would be a much more difficult form language to contend with on this allegation.
The lessons learned in this case is that the intentional act exclusion is very broad-based; the injuries to the nine-year old girl will probably not be covered on the Homeowners Policy AND do not dress up as a skunk next Halloween.