469_C376

NOTE – This is from our older court case archives. It may involve situations that are inapplicable to newer coverage forms. Please be aware of this possibility when reading and using this case.

Homeowners Insurance	Gun Liability
Automobile exclusion

Homeowners Policy Applied To Gun Accident In Automobile

This court action was brought to determine the liability of three insurers for a shooting accident that occurred inside an automobile. Involved were the Automobile insurer of the intended seller of the car, the Automobile insurer of the man who was in the process of buying the car, and the Homeowners Insurer of the intended purchaser. A son of the latter had reached over the back of the driver’s seat while the car was stopped to adjust the bolt of a rifle that was propped up in the back seat. The gun accidently discharged, wounding another occupant.

The question for the appeal court was whether the accident arose out of the use of the motor vehicle. It has noted that both Automobile policies provided coverage for injury or damage “arising out of the …use of the owned automobile” and that the Homeowners policy excluded “bodily injury or property damage arising out of the…use, loading or unloading of…any motor vehicle owned or operated by…the insured.”

The court said that the vehicle was not moving at the time the gun was discharged. “No one contends that any action on the part of the driver, related to the automobile, caused the gun to go off.” It quoted the Colorado court in Azar v. Employers Casualty Company (1972) 178 Colo. 58 (495 P.2d at page 555) as follows: “In our view, it cannot be said that the discharge of the weapon in this case originated from, grew out of or flowed from the use of the vehicle. Rather, the injury originated from, grew out of or flowed from the use of the firearm.”

The appeal court sustained the trial court in ruling that the Homeowners policy, rather than the Automobile policies, covered the injury.

Aetna Casualty And Surety Company, Plaintiff, Respondent v. Safeco Insurance Company, Defendant, Appellant, California Court of Appeal, Second District, Division Four. Civ. No. 56319. March 24, 1980. CCH 1980 Fire and Casualty Cases 1307.