469_C307

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SHOOTING INCIDENT EXCLUDED AS CRIMINAL ACTIVITY

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Homeowners	Public Policy
Intentional Act	Duty to Defend

Ryan Slayko and Joseph France were drinking and smoking marijuana in a cabin owned by France's grandmother. France picked up a shotgun and pointed it at Slayko, believing it to be unloaded. The gun did not discharge, and Slayko told France he should never point a gun at somebody and pull the trigger. France laughed at him and pulled the trigger again. Slayko was wounded.

France subsequently pleaded guilty to second degree assault. Slayko then filed an action against France for damages. France's grandmother had a homeowners policy covering the premises, and the insured tendered the defense to Security Mutual Insurance Company. It refused to defend. A default judgment was entered against France, and Slayko commenced this action against Security Mutual and France, on the ground Security Mutual had a duty to defend and indemnify France.

The policy excluded liability "caused intentionally by or at the direction of any insured." It also did not cover damages "arising directly or indirectly out of instances, occurrences or allegations of criminal activity by the insured." The lower court entered judgment in favor of Slayko, finding that the intentional act exclusion did not apply, and the "criminal activity exclusion" violated public policy because it "clearly defies the reasonable expectations of the insured." The higher court disagreed with the finding that the "criminal activity exclusion" was in violation of public policy.

The court, on appeal, found there was no evidence that France intended to hurt Slayko. The two young men were friends, and France was surprised when the gun discharged. He took steps to stop the bleeding and called for immediate help. His conduct was reckless but not intentional.

The "criminal activity exclusion" in this policy did not violate public policy and was enforceable.

The judgment entered in the lower court in favor of Slayko was reversed and judgment was entered that Security Mutual had no duty to defend and indemnify the insured.

Ryan A. Slayko v. Security Mutual Insurance Company, Appellant, et al.-Court of Appeals of New York-July 2, 2002-774 North Eastern Reporter 2d 208.