The court denied the carrier's motion for summary judgment, seeking to establish it had no duty to defend or indemnify. Allstate Ins. Co. v. Tarantino, 2016 U.S. Dist. LEXIS 81713 (D. Conn. June 23, 2016).

    The insured's son was at a friend's house. He found an air gun, aimed the gun at the floor and pulled the trigger several times. Gas was released from the gun, but no pellets fired. The boy then went to where his friend was lying down to "startle and/or waken" the friend by pulling the trigger, which would cause the release of gas and a firing sound. The insured's son did not believe the gun was loaded. He pulled the trigger several times, releasing gas. One pull, however, released a pellet from the air gun and struck the other boy in the left eye.

    The insured was sued for negligence. Allstate defended, but filed an action for declaratory judgment. Allstate moved for summary judgment arguing: (1) the complaint did not allege that the injuries were caused by an "occurrence" and (2) even if the complaint did allege an occurrence, the "intentional or criminal acts" exception applied to bar coverage.

    Allstate argued the injuries did not arise from an occurrence because they were the direct and foreseeable consequence of an intended mechanical act (pulling the trigger), regardless of whether the boy acted with a subjective intent to cause physical harm.

    The court found that taking into account the subjective intentions of the insured person when determining whether an incident was an "occurrence" was the most logical way to reconcile the provisions in the policy. After stating it covered bodily injury "arising from an occurrence" subject to certain exceptions, the policy excluded bodily injury "intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, an insured person." The "reasonably expected" language was clearly intended to encompass foreseeable injuries. Thus, it must be possible for the coverage of injury arising from "occurrences" to include bodily injury foreseeably arising from some intentional or criminal acts in an accidental way, or there would be no need to exclude coverage for such situations.

    Here, the complaint alleged the insured's son intended to engage in the mechanical acts leading up to the shooting: he "pulled the trigger of the air gun a number of times while in close proximity to where his friend was lying on the couch so it would make a loud firing noise and startle his friend." but there was no allegation that the boy subjectively intended to shoot his friend or otherwise cause him any physical harm. Carelessness and poor judgment did not exclude negligent conduct from coverage. Therefore, the court found, for purposes of the duty to defend, there was an "occurrence" that could be covered by the policy.

    Allstate argued if there was an "occurrence," the exclusion for "any bodily . . . intended by, or which may reasonably be expected to result from the intentional acts or omissions of an insured person," applied to bar coverage. The exclusion meant that an objective test applied. Applying the objective standard, a jury could find that a reasonable person would not have expected bodily injury to result from a gun that had been shot empty of its pellets.

    Therefore, Allstate did not show that the injury, as alleged in the complaint, fell squarely within the exclusion. Allstate's motion for summary judgment was denied with respect to its duty to defend. It was premature to rule on Allstate's duty to indemnify.