The Mississippi Court of Appeals has dealt with the question of whether a criminal act that causing the “accidental death” of a person can be an “occurrence” or “accident” as defined in an insurance policy and whether a criminal act exclusion applies in Rita Kees Lambert, Individually, and v. Safeco Insurance Company of America, No. 2011-CA-00166-COA (Miss.App. 05/08/2012). Rita Kees Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of her son, Brian Michael Kees, filed a wrongful-death action in Rankin County Circuit Court against Al Ellis and John Does 1-10, alleging that Brian had suffered physical injuries and death as a result of Ellis’s gross negligence. The circuit judge assessed $75,000 in damages against Ellis. The circuit judge ultimately entered a final judgment finding that Ellis was not entitled to liability coverage under the homeowner’s insurance policy issued to him by Safeco Insurance Company of America (Safeco) for the $75,000 judgment entered against him as a result of Brian’s death. Lambert appealed.

On August 13, 2005, Brian and his father, Michael Kees, attended a swimming party at Ellis’s home in Brandon, Mississippi.  Ellis claimed that at some point during the pool party, Michael went into Ellis’s home and stole money. Michael exited the house with Brian and hurried to his car. After concluding that Michael had stolen money from him, Ellis retrieved his pistol and followed Michael outside. As Michael exited the driveway, Ellis fired his pistol at Michael’s car, which Ellis claimed was an attempt to disable and stop the car. Ellis stated that he did not know that Brian was in the vehicle. One of the bullets ricocheted off of the pavement and hit Brian. Brian later died as a result of the gunshot wound. Ellis was arrested and charged with Brian’s murder. Ellis pled guilty to the lesser charge of manslaughter by culpable negligence, and he was sentenced to a term of incarceration, house arrest, and probation. Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of Brian, filed a wrongful-death suit in the Rankin County Circuit Court against Ellis and John Does 1-10. Ellis answered and denied liability for damages. On May 22, 2008, the circuit court entered an agreed order permitting Safeco, Ellis’s homeowner’s insurance carrier, to intervene in the wrongful-death action. On June 4, 2008, Safeco filed a complaint for declaratory judgment, asserting that Safeco’s homeowner’s insurance policy did not provide Ellis with liability coverage or a defense or indemnification for any claims arising out of Lambert’s wrongful-death suit. Safeco then filed a motion for summary judgment. Following a hearing, the circuit court denied Safeco’s motion, finding genuine issues of material fact on the issue of coverage. Lambert moved for partial summary judgment on the issue of Ellis’s liability, which the circuit court granted. The circuit court also entered an agreed order, assessing $75,000 in damages against Ellis. After a bench trial on the remaining issue of whether Safeco owed liability coverage to Ellis for Lambert’s $75,000 award of damages, the circuit court entered its judgment in favor of Safeco, finding that Ellis was not entitled to liability coverage under Safeco’s homeowner’s insurance policy. Lambert filed her appeal on January 28, 2011. On appeal, Lambert argues that the circuit judge erred by finding that Ellis is not entitled to liability coverage under his homeowner’s insurance policy, issued by Safeco, for the $75,000 judgment entered against him as a result of Brian’s death. Specifically, she claims that the circuit judge erroneously determined that the policy provides no coverage because: Ellis committed an illegal act; Ellis intended to discharge the firearm in the direction of the vehicle, actions that were not accidental and not an “occurrence” as required under the policy; and Ellis’s actions were intentional, thus barring coverage under the policy’s intentional acts exclusion. Under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Additionally, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and strongly against the insurer. In his final judgment on the issue of coverage, the circuit judge determined: “The uncontradicted evidence shows that . . . Ellis knowingly and willfully discharged his weapon at the vehicle in which Brian . . . was riding, evincing a depraved heart regardless of human life, and the evidence is uncontradicted and undisputed that . . . Ellis in fact pled guilty to the crime of manslaughter by culpable negligence. It cannot be disputed by the parties that . . . Ellis did in fact and in law commit a crime and thus an illegal act. Accordingly, the court finds that the death of Brian . . . was caused by an illegal act committed by . . . Ellis, and therefore, pursuant to the Illegal Acts Exclusion in the subject Safeco policy, Safeco does not owe liability insurance coverage to . . . Ellis for the claims being made against him as a result of the death of Brian . . . . Although there was no proof that Ellis intended to harm or kill Brian personally, the undisputed evidence showed that Ellis did intend the act of shooting a firearm towards and at the vehicle in which Brian was riding. Because Ellis intended the act of shooting his gun and shooting it at the Kees’ vehicle, Ellis’ actions were not an accident and thus not an “occurrence” as required under the subject Safeco policy. Lambert argued that although Ellis intended to discharge his firearm, the uncontradicted evidence established that he did not intend the consequences of his act – Brian’s death. Lambert also pointed out that Ellis pled guilty to manslaughter by culpable negligence, which she claims is not a specific-intent crime. Lambert thus claimed that the record shows that Ellis lacked the requisite intent to commit an illegal act; therefore, the illegal-acts exclusion in the policy does not apply. Ellis admitted that he indeed intended to discharge his firearm at the Kees’ vehicle, resulting in Brian’s death (although Ellis claims he only fired at the vehicle with the intention of disabling the car). That fact alone was sufficient for the Mississippi Court of Appeal and it affirmed the circuit judge’s finding that Brian’s death was caused by an illegal act committed by Ellis. Under the illegal-acts exclusion in the Safeco policy, therefore, Safeco could not not owe liability insurance coverage to Ellis.