Is Injury in the Course of Self-Defense an Occurrence?
Post 5171
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When There is no Accident the Intentional Acts Exclusion is Irrelevant
The case involves a tragic incident where Kimberly Mollicone was killed during a gunfight between her husband, Matthew Mollicone, and Daniele Giannone. The central issue is whether Giannone’s actions, taken in self-defense, are covered under his State Farm homeowner’s insurance policy.
In State Farm Fire And Casualty Company v. Daniele Giuseppe Giannone; Heidi C. Aull, personal representative for the estate of Kimberly Ann Mollicone, Nos. 24-1264, 24-1265, United States Court of Appeals, Sixth Circuit (August 5, 2025) resolved the dispute.
THE INSURANCE COVERAGE
Although rare in insurance contracts the policy in question provides coverage for the insured’s liability to third parties who are injured in an accident, State Farm’s policy includes a self-defense exception to the intentional-acts exclusion. Sixth Circuit discussed various legal precedents and interpretations of the policy language, focusing on whether actions taken in self-defense can be considered “occurrences” under the policy.
Appellate courts have generally held that intentional actions taken in self-defense are not accidental and therefore do not constitute occurrences under the policy.
The decision explored the interplay between the personal liability coverage provision, the intended-acts exclusion, and the self-defense exception. It highlights the importance of interpreting the insurance contract as a whole to honor the intent of the parties involved.
Ultimately, the court affirmed the district court’s decision that Giannone’s actions did not qualify as an “accident,” and therefore, State Farm had no duty to indemnify or defend him in the state-court litigation.
ANALYSIS
The key issue before the Sixth Circuit whether Ms. Mollicone’s shooting constituted an “occurrence.” The policy defined an occurrence as “an accident” that results in “bodily injury” or “property damage.” Ms. Mollicone’s estate and Giannone argued that while Giannone intended to fire the gun, he did not intend to injure or aim at Ms. Mollicone, and her injuries are therefore a covered accident.
Michigan law defines an accident, for purposes of interpreting insurance contracts, as an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected. Generally, an accident may include an unforeseen consequence of an intentional act.
But unforeseen consequences are not accidental when the intended act created a direct risk of harm from which the consequences should reasonably have been expected by the insured.
Unless the policy language specifies otherwise, Michigan uses a subjective standard, meaning the appellate court must look to whether the insured should have reasonably expected the consequences of his act. To prevail, then, Ms. Mollicone’s estate and Giannone must show that Ms. Mollicone’s death was not a foreseeable result of aiming and shooting a gun at the vehicle she occupied.
The Sixth Circuit concluded that they cannot make the needed showing.
Giannone aimed his loaded gun at Mr. Mollicone and fired, expecting a bullet to leave the chamber. The act took place as intended, even if Giannone desired a different result.
Giannone subjectively intended to cause harm, just not the harm that ultimately came about. Accordingly, Giannone’s conduct was not accidental and not a covered occurrence.
Ms. Mollicone’s estate and Giannone next argued that the analysis changes if Giannone was plausibly acting in self-defense. Along these lines, Giannone claims that he saw a gun poke out of the passenger window and, out of concern for his and his family’s safety, fired back. At the stage of the appeal the factual record is not developed enough to determine whether Giannone acted in self-defense. But the Sixth Circuit did not need to reach the question of self-defense, because such a determination would not affect State Farm’s liability.
The Sixth Circuit noted that the Michigan Supreme Court has held that actions taken in self-defense are “intentional.” [Auto-Owners Ins. Co. v. Harrington, 565 N.W.2d 839, 842-43 (Mich. 1997).] In Harrington, an insured man intentionally shoo an intruder who he had reason to believe was armed and intended harm. The court held that the insured’s actions were not covered under his insurance policy, because actions taken in self-defense were different from “those that are purely accidental” and excluded as intentional acts. Harrington‘s reasoning implies that, under Michigan law, intentional actions taken in self-defense are not accidental. They likely thus do not constitute an “occurrence.”
Ms. Mollicone’s estate and Giannone are wrong to suggest it matters if Giannone was acting in self-defense. Even if Giannone were validly acting in self-defense such that the events fall into the exception to his intentional-acts exclusion, his actions were not accidental. So, the occurrence provision still precludes coverage.
In sum, Ms. Mollicone’s death was a direct result of Giannone’s foreseeable actions. Therefore, Ms. Mollicone’s estate and Giannone cannot show that Giannone’s actions fall under the policy’s definition of an “occurrence”without which coverage cannot exist making the intentional act exclusion surplusage.
Because Kimberly Mollicone’s death was the direct and foreseeable result of Giannone’s actions, there is no coverage under the policy.
ZALMA OPINION
Occurrence, as defined, is the key to every liability insurance contract. If there is no occurrence, no accident, there can never be coverage and there is no need to consider exclusions.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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Death by Self-Administered Dialysis is Excluded
Post 5173
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Clear & Unambiguous Exclusion Effective
Dana Kleinsteuber died while administering her own dialysis at home. MetLife now agrees that tragedy was an accident but refused to pay because of an exclusion for losses caused or contributed to by the treatment of a physical illness.
In Charles M. Kleinsteuber v. Metropolitan Life Insurance Company, CIVIL No. 23-3494 (JRT/DTS), United States District Court, D. Minnesota (August 19, 2025) the USDC was faced with the interpretation of an exclusion in an ERISA plan.
KEY FACTS:
Dana Kleinsteuber’s Death:
Dana Kleinsteuber, diagnosed with end-stage renal disease (ESRD), was self-administering dialysis at home when she suffered acute blood loss and died. The cause of death was listed as ESRD and natural causes.
Insurance Claims:
Charles Kleinsteuber, Dana’s husband, filed claims for both ...
Not Wise to Attempt Rescission Without Evidence
Post 5173
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Desiree Durga and Justin Durga v. Memberselect Insurance Company, No. 371891, Court of Appeals of Michigan (August 13, 2025) Desiree Durga and Justin Durga (plaintiffs) claimed the insurer wrongfully attempted to rescind an auto policy.
THE ALLEGATIONS
MemberSelect claimed that Desiree Durga’s application for insurance contained a material misrepresentation, it did not produce a copy of the application. In fact defendant admitted the application for insurance no longer exists.
Trial Court Decision
The trial court granted the plaintiffs’ motion for summary disposition on their breach of contract claim and denied the defendant’s cross-motion for summary disposition, which argued that it was entitled to rescind the policy. The court found that the defendant failed to provide clear and convincing evidence of fraud
The court ...
Improper Joinder of Multiple Party Criminal Fraud Case With Co-Defendants Charged with Murder
Post 5172
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Murder Defendants Must be Tried Separately from Fraud Defendants
A case that involved allegations of a years-long scheme by over a dozen individuals to stage fake automobile collisions in the New Orleans metropolitan area and file fraudulent insurance claims and lawsuits based on the staged collisions. The key individuals involved included Cornelius Garrison, who began cooperating with the federal government in 2019 and was subsequently murdered on September 22, 2020.
FACTS
In United States Of America v. Ryan Harris, et al., CRIMINAL ACTION No. 24-105, United States District Court, E.D. Louisiana (July 25, 2025) the USCA dealt with motions to sever some defendants from the massive and admittedly complex case. There are 11 defendants charged with a multi-year conspiracy involving ...
Rulings on Motions Reduced the Issues to be Presented at Trial
Read the full article at https://lnkd.in/gwJKZnCP and at https://zalma/blog plus more than 5100 posts.
CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...