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No. 122849
| Allstate Insurance Company, |
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Joseph T. Collison
(989) 799-3033 |
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Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Shiawassee - Lostracco, G.) |
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| Robert Daniel Mccarn, et al, |
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Defendants-Appellees, |
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| Nancy S. Labelle, Personal Representative of |
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Timothy J. Donovan (517) 394-7500 |
the Estate of Kevin Charles Labelle, Deceased, |
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Defendant-Appellant. |
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| _____________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Background
Sixteen-year-old Kevin LaBelle was shot by Robert McCarn, the grandson of Ernest and Patricia McCarn, at the McCarns’ home. In both his statement to the police and his deposition testimony, Robert McCarn stated that he thought the gun was unloaded and would simply “click” when the trigger was pulled. McCarn acknowledged, however, that he did not check the gun to see that it was unloaded before pulling the trigger. Allstate Insurance Company, which issued the grandparents’ homeowners’ policy, filed suit, seeking a ruling that it was not liable to pay damages or defend the McCarns in a lawsuit brought against them by LaBelle’s estate. Allstate cited the policy’s intentional or criminal acts exclusion, which states, “We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if: a) such insured person lacks the mental capacity to govern his or her conduct; b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.” The Court of Appeals, in an unpublished per curiam opinion, concluded that McCarn’s actions constituted manslaughter because, regardless of his belief that the gun was unloaded, McCarn intentionally pointed the gun at the victim’s face and intentionally pulled the trigger. A person should reasonably expect that pointing a gun at another will probably cause injury or death, the majority continued. Accordingly, the criminal acts exclusion applied, the majority said. The dissenting judge contended that the criminal acts exclusion would not apply if McCarn thought the gun was unloaded. LaBelle’s estate appeals.
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