State Farm Fire and Casualty Co. v. Wilkerson

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
June 7, 2016
Susan List Hauske, Esquire Debra C. Aldrich, Esquire
Tybout, Redfearn & Pell Doroshow, Pasquale, Krawitz & Bhaya
750 Shipyard Drive, Suite 400 28535 DuPont Boulevard, Suite #2
P.O. Box 2092 Millsboro, DE 19966
Wilmington, DE 19899
Paul G. Enterline, Esquire
113 South Race Street
P.O. Box 826
Georgetown, Delaware 19947
RE: State Farm Fire and Casualty Company v. Jennifer Wilkerson, et al.
C.A. No. S14-09-014 ESB
Dear Counsel:
This is my decision on the Motions for Summary Judgment filed by the parties
in this case involving a dispute over whether a homeowner’s insurance policy
provides coverage for an incident where one child used a paintball gun to
intentionally shoot a paintball at another child.1 Chad Wilkerson used a paintball gun
to intentionally shoot a paintball at a group of kids. Ethan Joseph was one of the kids
1
A paintball gun, which is also called a paintball marker, uses some type of compressed
air or gas to force a gelatin capsule filled with paint through the gun’s barrel. Mullen v. Northern
Neck Insurance Co., 67 Va. Cir. 434, at *2 (Va.Cir. 1997). See also 18 Pa. C.S.A.
§2707.2(a.1)(c).
in the group. The paintball hit Ethan’s eye, causing severe damage to his eye. Ethan
and his parents sued Chad and his parents. Chad’s parents have a homeowner’s
insurance policy with State Farm Fire and Casualty Company. Pursuant to the policy,
if a suit is brought “against an insured for damages because of bodily injury or
property damage to which coverage applies, caused by an occurrence,” State Farm
will pay up to its limits of liability “for the damages for which the insured is legally
liable,” and “provide a defense.” Excluded from the coverage is “bodily injury or
property damage which is either expected or intended by the insured.” State Farm
filed suit against Chad and Ethan and their respective parents for a declaratory
judgment as to whether it is obligated to defend and/or indemnify Chad and his
parents as a result of the lawsuit brought against them by Ethan and his parents.
Background
Chad and some friends were playing football at the Gumboro Community
Center. During a break, William Betts drove Chad to a Walmart store to purchase a
paintball gun. Shortly thereafter, Chad returned to the Gumboro Community Center.
While still in the car, Chad extended the paintball gun outside of the passenger side
window, called over to a group of his friends to approach the car, and fired a paintball
at the group of kids. The paintball hit Ethan’s eye, causing serious damage to it. The
following are relevant questions and answers from Chad’s deposition:
2
Q. You intended to shoot it at the group of people, is that correct?
A. Yes.2
Q. When you pulled the trigger on the paintball marker, and it was in the
direction of Joseph what did you expect to happen?
A. I expected to, you know, get everyone wanting to play paintball.3
Q. When you pulled the trigger on the paintball marker while it was pointed
in the direction of Ethan Joseph, did you intend to hit him?
A. Yes.4
Q. Okay. And you intended to hit him where?
A. Feet, knees, somewhere low. It wasn’t even exactly at Ethan, like in
particular. It was just any of them really, to be honest.5
Q. So you intended to him [sic] maybe somebody?
A. Yes.6
Q. Did you understand that shooting the paintball marker at somebody may
cause injury?
A. Yes.7
Standard of Review
Summary Judgment is appropriate where there are no genuine issues of
2
Defendant’s Exhibit C at 21.
3
Id. at 32-33.
4
Id. at 34.
5
Id.
6
Defendant’s Exhibit C at 35.
7
Id. at 23.
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material fact and the moving party is entitled to judgment as a matter of law.8 The
moving party must initially demonstrate that there is no genuine issue of material
fact.9 If that burden is met, the burden then shifts to the non-moving party to
demonstrate that an issue of material fact remains in dispute.10 Where the parties
have filed cross motions for summary judgment and have not presented argument to
the Court that there is an issue of fact material to the disposition of either motion, the
Court shall deem the motions to be the equivalent of a stipulation for decision on the
merits based upon the record submitted with the motions.11 Neither party’s motion
will be granted unless no genuine issue of material fact exists and one of the parties
is entitled to judgment as a matter of law.12 Filing of a cross motion for summary
judgment does not serve as a waiver of the party’s right to assert the existence of a
factual dispute as to the other party’s motion.13
Discussion
Delaware law recognizes the validity of exclusion provisions in a homeowner’s
8
Superior Court Civil Rule 56(c).
9
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
10
Id.
11
Superior Court Civil Rule 56(h).
12
Emmons v. Hartford Underwriters Insurance Co., 697 A.2d 742, 745 (Del. 1997).
13
United Vanguard Fund, Inc. v. Take-Care, Inc., 693 A.2d 1076, 1079 (Del. 1997).
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insurance policy.14 The policy in this case excludes coverage for bodily injury which
is either expected or intended by the insured. There is a difference between
“expected” and “intended” injury. Under Delaware law, an injury is “expected” if the
actor knows or should have known there was a substantial probability that a certain
result would take place.15 The word “intended” as applied to an exclusion clause
“denotes that the actor desired to cause the consequences of his act or believed that
the consequences were substantially certain to result from it.”16 State Farm argues
that Chad should have expected that his conduct would cause serious injury to
Ethan’s eye.
The facts are straightforward and undisputed. Chad used a paintball gun to
intentionally fire a paintball at a group of kids. Chad intended to hit at least one of
the kids in the group and he knew that in doing so he could cause injury to one of the
kids. The paintball struck Ethan’s eye, causing severe damage to his eye. While Chad
did not intend to hit anyone of the kids in particular and he did not intend to cause
serious harm to Ethan’s eye, he intended and expected to hit one of the kids with the
14
See, e.g. Farmer in the Dell Enterprises v. Farmers Mutual Insurance Company of
Delaware, Inc., 514 A.2d 1097 (Del. 1986).
15
Keystone Insurance Company v. Walls, 2006 WL 1149143, at *5 (Del. Super. Jan. 31,
2006).
16
Keystone Ins. Co., v. Walls, 2006 WL 1149143 (Del. Super. Jan. 31, 2006).
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paintball knowing it might cause injury to whomever he hit. Thus, the issue is should
Chad have known that there was a substantial probability that his conduct could have
seriously injured Ethan’s eye. I conclude that Chad should have known that there was
a substantial probability that his conduct could have seriously injured Ethan’s eye.
Chad was using a gun that fires a paintball. Chad knew that the paintball could cause
injury. Notwithstanding that, Chad used the gun to fire a paintball at a group of kids
that included Ethan. It should have come as no surprise to Chad that he seriously
injured Ethan’s eye, which is probably the most unprotected and therefore the most
vulnerable part of a person’s body.17 I certainly agree with State Farm that this type
of intentional conduct that creates a substantial probability of injury to another person
is excluded from the homeowner’s insurance policy that it issued to Chad’s parents.
Conclusion
I have granted State Farm Fire and Casualty Company’s Motion for Summary
Judgment and denied Kathy A. Joseph and Ethan P. Joseph’s Motion for Summary
Judgment.
17
See In re M.H.M, 864 A.2d 1251, 1257 (Pa. Super. 2004) (“A paintball gun is capable
of inflicting serious bodily injury, such as permanent eye injury and loss of vision. Indeed, in the
game in which the paintball gun is used, the participants wear goggles to provide the necessary
protection.”).
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IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley
ESB/sal
oc: Prothonotary
cc: Counsel
7