The U.S. District Court for the Middle District of Georgia, admitting it erred when it denied a commercial general liability insurance company's motion for a judgment declaring that it was not obligated to defend or indemnify its insured against claims arising out of a fatal shooting on the insured's property, has granted the insurer's motion for reconsideration “in order to correct a clear error of law.”
The Case
Carol Slocumb filed a wrongful death action against Snappy Slappy LLC d/b/a Jus One More, alleging that her son, Jabrial Adams, had been shot and killed by a fellow business invitee to its business, Jus One More.
Thereafter, Snappy provided its commercial general liability insurance carrier, Hudson Specialty Insurance Company, with a copy of Ms. Slocumb's complaint. Hudson responded that Snappy's insurance policy barred coverage for Ms. Slocumb's lawsuit pursuant to, among other things, its firearms exclusion.
Snappy disputed this policy interpretation, and Hudson went to court, seeking a declaratory judgment.
Hudson moved for judgment on the pleadings, asking the court to declare that, under its commercial general liability insurance policy, it was not obligated to defend or indemnify Snappy.
The court denied Hudson's motion, finding that the firearms exclusion was ambiguous because it did “not limit or specify to whom it applie[d].” In particular, the court faulted the policy for not specifying whether the “use” of the firearm was limited to persons directly involved with Snappy or whether it applied to any person.
Hudson moved for reconsideration.
The Court's Decision
The court granted Hudson's motion “in order to correct a clear error of law.”
In its decision, the court explained that, “[s]ometimes . . . a [c]ourt just gets it wrong. This is one of those cases. When that happens, a [c]ourt is at its best when it acknowledges its mistake, owns it without offering excuses, and then fixes it. And, while this process may be deservedly humbling, it is simply the right thing to do.”
The court observed that the firearms exclusion in the Hudson policy provided that the policy did “not apply to 'bodily injury[ ]' . . . arising out of the manufacture, importation, sales, distribution, gunsmithing, ownership, maintenance, or use of firearms or weapons.”
The court said that, in its previous order denying Hudson's motion, it “effectively changed the language” of the firearms exclusion and inserted modifying language not otherwise present in the exclusion. “This,” the court said, it could “not do.”
It then reasoned that the “absence of limiting language as to whose use” was excluded did “not render the exclusion ambiguous” because “breadth” did “not equate to ambiguity.”
The court ruled that, by not limiting or modifying the noun “use” in the exclusion, its plain language barred coverage for “bodily injury” arising “out of the use of firearms, generally.” According to the court, the lack of any limiting language before “use” indicated that there was “no limitation.”
In sum, the court concluded that Hudson's decision not to limit the word “use” to certain persons meant that it applied to anyone's use of a firearm. Accordingly, the language included in the firearms exclusion was not ambiguous and because the bodily injuries on Jus One More's premises clearly arose “out of the . . . use of firearms or weapons,” the firearms exclusion applied to exclude coverage.
The case is Hudson Specialty Ins. Co. v. Snappy Slappy LLC d/b/a Jus One More, No., 5:18-cv-00104-TES (M.D. Ga. May 1, 2019). Attorneys involved include: For HUDSON SPECIALTY INSURANCE COMPANY, Plaintiff: CHRISTOPHER B. FREEMAN LEAD ATTORNEY, Atlanta, GA; AMANDA D PROCTOR, ATLANTA, GA. For SNAPPY SLAPPY LLC, doing business as, JUS ONE MORE, Defendant: BRITTANY E BENNETT, LEAD ATTORNEY, MACON, GA.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].