at Sandy Hook Elementary School, the issue has been taken up passionately by both sides of the dispute over gun violence. Did the murderers in Newtown and Aurora kill in large numbers because they were able to fire many shots quickly, and without reloading, as Sen. Lautenberg believes? Or, as a Wall Street Journal editorial recently suggested, can the proliferation of mass killings be more reasonably attributed to the practice of designating “gun-free zones” in schools and theaters? Last month, in a case based on another awful event, the issues coalesced: In a coverage dispute under a homeowners’ policy, the U.S. Court of Appeals for the Eleventh Circuit held that a fatal shooting arose out of the insured’s intentional act of putting a gun to the throat of his victim, and not out of his “negligence” in pulling the trigger.
In February 2006, a group of friends that included Christopher Hutchins and Jessica Leigh Fraccalvieri spent the evening at a club in Hudson, Florida. At closing time, Ms. Fraccalvieri got into her car with two other friends, while Hutchins retrieved a 9 mm handgun from his own car. In the course of what he later described as “showing off” his new weapon, Hutchins asked Ms. Fraccalvieri to roll down her window, whereupon he held the gun to her neck. Hutchins claimed he never intended to harm his friend, but the gun discharged, and Ms. Fraccalvieri died. Her estate brought a wrongful death action against Hutchins, alleging that he was liable for “negligence” as a result of having “placed the handgun to [Jessica’s] neck and pulled the trigger.”
Hutchins lived with his grandmother at the time, and he sought defense and indemnity under his grandmother’s homeowners policy. The policy provided liability coverage for any suit arising out of an “occurrence,” but the definition of “occurrence” expressly excluded “assault or battery” by an insured. The insurer brought an action for a declaratory judgment that the exclusion barred Hutchins’s claim.
On cross motions for summary judgment, the district court held that, whether or not Hutchins intended to kill Ms. Fraccalvieri, the act of holding a gun to her neck constituted a “harmful or offensive contact” and was made “with the intent to cause the contact itself.” As such, it constituted a “battery” under Florida law, and it triggered the “assault or battery” exclusion, at least with respect to the insurer’s duty to indemnify.
Hutchins appealed, and, in Geoverra Specialty Ins. Co. v. Hutchins, No. 12–10364 (11th Cir. Jan. 24, 2013), the Eleventh Circuit issued a curt affirmance. The Court of Appeals found that Jennifer’s death “flowed from” an intentional act that constituted “battery” under Florida law. The court emphasized that the label of the claim in the underlying suit could be disregarded. But what the court also decided, without discussion, was that Hutchins’s alleged carelessness in handling his weapon could not be separated out as a cause of the tragedy from his intentional act of pressing the gun against his friend’s neck.
For purposes of this story, at least, the moral was clear: An accident didn’t kill Jessica Fraccalvieri; Christopher Hutchins did.