Safeco Insurance of America v. Robert S.

When a homeowners policy expressly covers accidental bodily injury but excludes coverage for bodily injury arising out of an “illegal act,” is the insurer obligated to defend and indemnify its insureds in a wrongful death action brought against them after their teenage son accidentally shot and killed his friend? We conclude that, in the context of the policy as a whole, the insurer does have such an obligation.

I

On March 10, 1995, 16-year-old Kelly S. and some of his friends were at Kelly’s home when Kelly found a .22-caliber Beretta handgun in his mother’s coat pocket. Kelly’s father had taught him how to handle a 9-millimeter Beretta. Taking the same precautions he would have taken to unload a 9-millimeter Beretta, Kelly removed the clip from the handle of the .22-caliber Beretta, placed the clip on a table, and pulled back the slide on the gun. Believing the gun to be unloaded, Kelly pulled the trigger. The gun fired, killing his friend, Christopher Mitchell.

A petition alleging Kelly’s commission of involuntary manslaughter, a felony (Pen. Code, § 192, subd. (b)), was filed in juvenile court (Welf. & Inst. Code, § 602). The court sustained the petition, made…

Though my reasons differ from the majority’s, I agree with their conclusion that the “illegal act” exclusion in Safeco’s policy did not deprive Kelly S.’s parents of liability coverage for their son’s fatal shooting of Christopher Mitchell. I respectfully dissent, however, from the majority’s determination that, despite the policy’s explicit refusal to cover an insured for his or her “illegal act,” the policy nonetheless covered Kelly himself for his criminal homicide.

On the latter point, I accept, for purposes of argument, that an “illegal act” could mean something broader than a “criminal act,” a more common form of coverage exclusion. There may be situations that would strain the outer limits of an illegal act exclusion in a policy designed to afford coverage for accidental injuries. Finally, I do not doubt that all reasonable uncertainty about the phrase’s meaning must be resolved against the insurer, which drafted the policy, and in favor of coverage a policyholder would reasonably expect. Hence, I am satisfied that the illegal act exclusion cannot contravene the parties’ basic understanding that coverage would be afforded for an insured’s ordinary negligence.

But Kelly…

Law Offices of Ian Herzog, Evan D. Marshall, Ian Herzog, Santa Monica; Mark B. Robinson, Jr., Encino; Roland Wrinkle, Woodland Hills; Harvey R. Levine, San Diego; Robert Steinberg, Los Angeles; Thomas G. Stolpman, Long Beach; William D. Turley, San Diego; Mary E. Alexander, Los Angeles; Joseph Harbison III, Sacramento; Bruce Broilett; Wayne McClean, Woodland Hills; Leonard Sacks, Granada Hills, Tony Tanke, Redwood City; Lea Ann Tratten; Steven J. Keifield; David Rosen; Moses Lebovits, Los Angeles; Douglas Devries Sacramento; Christine Spagnoli; James Sturdevant, San Francisco; Daniel U. Smith; Deborah David, Los Angeles; Lawrence Drivon; Thor Emblem, Escondido; Rick Simons; and David Casey, Jr., San Diego, for Consumer Attorneys of California as Amicus Curiae on behalf of Defendants and Respondents.

When a homeowners policy expressly covers accidental bodily injury but excludes coverage for bodily injury arising out of an "illegal act," is the insurer obligated to defend and indemnify its insureds in a wrongful death action brought against them after their teenage son accidentally shot and killed his friend? We conclude that, in the context of the policy as a whole,…