Michigan City personal injury lawyer comments on American Family Insurance's recent lawsuit trying to deny coverage in McGowan shooting case.
The McGowan shooting case has been in the newspaper for a while. A jury found McGowan guilty of killing Amanda Bach and sentenced him to 60 years. Bach's parents obviously distraught over the death of their daughter are seeking civil money damages against McGowan. A lawsuit was filed against McGowan and his father. The McGowans' home was insured through American Family Insurance. I'm sure American Family initially hired a lawyer to defend the civil lawsuit.
American Family has also hired another lawyer to file a case in federal court seeking a ruling from the federal court that it does not owe the McGowan's a duty to defend the civil lawsuit or indemnify (pay money to Bach's parents).
This Is How The Whole Thing Works
The language in the typical homeowner's insurance policy is broad and typically affords coverage for a variety of actions if a homeowner is negligent (careless). Almost all insurance companies have a list of exclusions in their policies. Many times the list of exclusions (the things the insurance company will not pay) is longer than the list of things the insurance will pay. Almost all insurance policies have intentional acts and/or criminal exclusions. This exclusion typically says that the insurance will not pay money if its insured committed a criminal act. These policies make the distinct between negligence (carelessness) and crimes (intentional acts).
If you read the newspaper article in The Times, it sets out that Bach's parents' lawyer filed the civil lawsuit under a negligence theory. In essence, the complaint says that McGowan's dad was careless in leaving the gun in an area where his son was able to get the gun and commit the crime.
Based on the negligence theory set out in the complaint against McGowan and his dad, American Family had a duty to hire a lawyer for the McGowans in the civil matter. But now, American Family has filed a separate lawsuit in federal court, which is called a declaratory judgement action.
These lawsuits, a/k/a “dec actions” go something like this:
Court we are an insurance company and we are not sure of liabilities (responsibilities) under the insurance contract, so we are asking you to look at the facts of the case and the language in the contract, and tell us if we have a duty to defend the civil lawsuit and/or pay money. (paraphrased)
These dec actions are very common in cases where there are crimes or intentional torts (like battery). I do not know the exact language of American Family's policy or the specific facts that will be developed but we will see what happens.
Is The Insurance Company The Bad Guy?
Indiana personal injury and insurance law can be complex in situations like this. Some folks think that in such a tragic situation, the insurance company should just pay the insurance. Other folks think that the insurance company should not be on the hook for the guy's actions. What are your thoughts? What side of the coin are you on?