469_C294

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DROWNING DEATH’S COVERAGE DISPUTED

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Homeowners	Wrongful death
Intentional Act	Occurrence

This case resulted from the drowning death of Brandy Nicole Harvey. Harvey and Toby Gearheart were on a boat ramp on the Wabash River when Gearheart pushed her into the river. Harvey drowned. Gearheart was eventually convicted of involuntary manslaughter and was sent to prison. After his conviction, Jon Harvey and Misty Johnson, the co-personal representatives for Harvey's estate, filed a wrongful death action against him. They argued that Gearheart's "negligence and recklessness" caused Brandy's death and should be covered by an Auto-Owners Insurance Company homeowners policy purchased by Gearheart's parents. Auto-Owners claimed there was no coverage under the policy because the policy defined "occurrence" as "accident." Because Gearheart intentionally pushed Brandy Harvey into the river--as demonstrated by his conviction--Auto-Owners argued there was no "accident" within the meaning of the policy. Auto-Owners then filed a motion for summary judgment, claiming it was entitled to judgment as a matter of law. In response to Auto-Owners' motion, Harvey and Johnson argued that the case should go to trial because there was a factual question as to whether Gearheart was consciously aware of the harm that his actions would cause.

The trial court agreed with Harvey and Johnson, denying Auto-Owners' motion. Auto-Owners appealed, and the appellate court accepted jurisdiction over the case.

The Auto-Owners policy provided personal liability protection for an insured if "bodily injury or property damage [is] caused by an occurrence to which this coverage applies." The definitions section of the policy specifically defined "occurrence" as "an accident that results in bodily injury or property damage and includes, as one occurrence, all continuous or repeated exposure to substantially the same generally harmful conditions."

The issue on appeal revolved around Gearheart's mental state at the time of the drowning tragedy. The Indiana Court of Appeals found that, given the trial court's acceptance of Gearheart's guilty plea for involuntary manslaughter, there was no question that Gearheart acted intentionally or knowingly in pushing Brandy into the river. This, the court stated, was enough to establish that the event was not an "accident" within the meaning of the policy. It was not necessary, as Harvey and Johnson argued, to determine whether or not Gearheart pushed Brandy "with an intent to injure her." Accordingly, the court reversed the judgment of the trial court and remanded with instructions that summary judgment be entered in favor of Auto-Owners.

Auto-Owners Insurance Company vs. Harvey-No. 83A01-0309-CV-343-Court of Appeals of Indiana-August 20, 2004-813 North Eastern Reporter 2d 1190