New ERA Article November, 2001

Alcohol, A Gun, And A Homeowners Policy!

There are various ways to break up an unruly gathering in your backyard. One generally would not count the use of a gun, however, as one of the more appropriate ways!

During a birthday party held for a 19 year old son, alcohol was apparently consumed by some of the underage youths in attendance. A fight broke out in the backyard. The father came outside and, unfortunately, became embroiled in the altercation. He then "pulled out a gun and began chasing the youths from his property."

The Court of Appeal decision reports:

"Someone yelled that [the father] had a gun, and the crowd began to run away. [The father] fired the gun and the bullet struck James . . . who was shot in the back of the right leg as he fled. [The father] later told an investigating officer he intentionally fired the gun in order to ‘scare’ the kids off his property."

James later filed a lawsuit against the father for his injuries and the father tendered the defense of the litigation to his homeowners insurance carrier, which accepted the tender.

In an interesting settlement arrangement, James dismissed his suit against the father and released all claims against him on condition that the insurance carrier pay him $20,000, his brother $1,000 [the brother’s claim was based on emotional distress as a result of witnessing the shooting], and the remaining $79,000 of a $100,000 policy limit was paid in trust to the insurance carrier’s attorney.

It was agreed by the insurance carrier and the attorneys representing James that the trust money would be paid to whoever prevailed in a declaratory relief action as to whether the shooting was covered by the homeowner’s policy.

Under the insurance policy, an exclusion existed for "criminal acts" which have the "foreseeable result" of causing bodily injury.

Since the father had pleaded "no contest" to a criminal charge of firing his weapon in a manner which could "result in injury or death," the court concluded that the plea constituted an admission that his conduct fell within the insurance policy exclusion.

The Court of Appeal also noted that there was no "viable claim of self-defense or other justification" for the use of the weapon which might have caused the court to consider an alternative point of view.

The moral of the story? An insurance policy is no substitute for parenting skills and common sense!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 2001-2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	Alcohol, A Gun, And A Homeowners Policy!
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.