Criminal act exclusions are a ubiquitous provision in automobile liability insurance policies (if not all insurance policies). But what happens if someone asserting coverage under a policy claims the person committing the criminal act changed his intent and/or stopped committing a criminal act just before the loss occurred? Such was the case in Harris v. Safeway Ins. Co.[1]  In the end, the appellate court did not find this change-of-heart claim persuasive, at least on the facts presented.

Facts of the Case

The auto accident in question occurred in Abbeville, Louisiana. Plaintiff was a passenger in a vehicle driven by another, who he later named as a defendant in the case. The vehicle was owned by a third person, who had a policy of insurance on the vehicle.

Law enforcement officers were in pursuit of the vehicle. They observed the Defendant driver operating with a broken windshield and attempted a traffic stop, but he did not stop. Instead, the driver led the officers on a high-speed chase, with officers of course following with lights and sirens on. According to the appellate opinion, the Defendant driver ignored a stop sign, proceeded through an intersection, and struck another vehicle. The Defendant driver was arrested for a felony criminal violation, aggravated flight from an officer (LA R.S. 14:108.1), as well as narcotics possession.

Plaintiff passenger was injured in the accident, including a cervical fracture. Plaintiff’s claim was denied by the insurer based on their criminal act exclusion in the policy, which applied as follows:

b) to 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:

1) such insured person lacks the mental capacity to govern his or her own conduct.

2) such bodily injury or property damage is of a different kind or degree 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.

. . .

m) to bodily injury or property damage arising out of the ownership, maintenance or use of any automobile while being operated or used in the preparation to commit a crime, commission of a crime, and/or flight from a crime, other than a traffic violation, regardless of whether or not such insured person is actually charged with, or convicted of a crime.

The Trial Court – Insurer’s MSJ Denied

Plaintiff eventually filed suit, and both Plaintiff and the insurance company filed Motions for Summary Judgment. Both Motions were denied. Regarding the denial of the insurance MSJ, the trial court stated:

At least in this case, we have some innuendo that Mr. Rossette had withdrawn from the flight and that he was trying to pull over to stop. I don’t know if that’s the case. If I was convinced that was the case, I’d be granting a summary judgment for the plaintiff.

But I think without more information or more testimony as to what happened, the court is going to deny both motions for summary judgment on the issue of the criminal conduct exclusion.

THE APPELLATE COURT – GRANTING THE MSJ

The insurer sought a writ of supervisory review from the Louisiana Third Circuit on the denial of its Motion for Summary Judgment. The insurer pointed out that the insured vehicle was chased by multiple police cars for several blocks through Abbeville, disregarding multiple stop signs at excessive speed and causing the subject collision. Under those circumstances, the insurer argued, the criminal act exclusion clearly applied.

Plaintiff, of course, disagreed. He argued that, in the moments before the collision, the driver was not engaged in criminal conduct.  He argued that the evidence demonstrated the driver slowed down to avoid the collision. That slowing was confirmed by the testimony of the officer who initially attempted the traffic stop. That same officer also testified the Defendant driver turned left, then right, in an attempt to avoid the collision. Plaintiff also testified that the Defendant driver advised he was heading to an empty, well lit field to pull over just before the accident. Therefore, Plaintiff argued, the Defendant driver’s intent to commit criminal acts had ceased prior to the accident and the criminal act exclusion no longer applied.

The question of intent was relevant, according to Plaintiff, because a prior Third Circuit case regarding insurance coverage exclusion for aggravated flight and relied upon by the insurer lacked any evidence that the driver in that instance had any intent to end the criminal activity.

The appellate court disagreed with Plaintiff. The panel cited to a Louisiana Fifth Circuit Court of Appeal ruling, Safeway Ins. Co. of LA. V. Gardner,[2] for the proposition that criminal act exclusions in insurance policies serve the long-standing public policy purpose of not allowing a person to insure against their illegal activity. While the trial court relied upon the potential for the defendant driver to have changed his mind regarding criminal activity, the appellate court emphasized that the driver had run a stop sign immediately before the impact. As such, the appellate panel stated “there is no question of fact that [the driver] ran into [the other] vehicle while intentionally fleeing from a police officer, which is a crime under La.R.S. 14:108.1.”

The court granted the writ application and specifically found that the criminal act exclusion, under paragraph (m) applied. Therefore, the court found no coverage, reversed the ruling of the trial court, and rendered summary judgment for the insurer.

Perhaps Plaintiff would have had a better result if he had blamed the one-armed man.
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[1]  23-165  (La. App. 3 Cir 10/25/23). As of this posting, this decision was not final and still subject to a 14-day rehearing period.

[2] 191 So. 3d 684 (La. App. 5 Cir. 04/27/2016)