Legal Updates



    (first released 11/28/2016)

    Singer/songwriter Warren Zevon once wrote a song entitled by the headline of this article, and for those of us who recall, Mr. Zevon suddenly found himself in a bit of a “sticky wicket.” And I can’t think of a better place to apply his experience than the friendly confines of an East Texas watering hole.

    Regardless of size, brand, or caliber, make no mistake: Texans love their guns. Between updated gun laws and the fear of foreign terrorists on American soil, private gun ownership is more popular than ever. However, gun holders must be cognizant of both safety features and potential use of their prized firepower – especially when children are present.

    From a real Texas case: a family drove to a fishing lake, parked and locked their pickup. The truck was equipped with a loaded shotgun, displayed proudly on a gun rack hanging inside over the rear window. Returning to the locked vehicle to retrieve his coveralls, a young boy attempted to enter the truck’s cab through the sliding rear window. He accidently touched the shotgun, causing it to discharge. The buckshot struck Mr. Brown*, who was seated in his mother’s car, parked next to the pickup.

    Needless to say, Mr. Brown sued the fishing family, and settled for the insurance policy limits on the defendant’s truck – which were far less that the total damages. Mr. Brown then filed a claim on his mother’s insurance policy under the uninsured/underinsured provision – which was denied because, as the insurance company argued, there was no physical contact between the two vehicles. This induced Mr. Brown to sue the insurance company for, among other things, breach of contract. The court now had to decide two compelling issues: (a) whether the injuries to Mr. Brown were “caused by the accident” within the meaning of the insurance policy, and (b) whether the injuries “arose out of the use” of the vehicle.

    The Supreme Court of Texas ruled that (a) the child only intended to get into the truck and not discharge the firearm, nor injure Mr. Brown, nor was it reasonably foreseeable that either result would be a consequence of the boy’s attempt to enter the truck through the rear window of the cab. Hence, the court concluded that the term “accident” was applicable within the definition of the policy because two vehicles were involved even if no collision took place.

    Secondly, the Court ruled (b) there was a “nexus” or causal connection between the accident or injuries produced and the use of the motor vehicle. The boy’s use of the truck was to gain entry and gather his clothing; he did not stray from this intent (IE; no deliberate or purposeful handling of the gun). Since the boy’s efforts to enter the locked vehicle directly cause the gun to discharge, the Court held that, “on balance the . . . truck ‘produced’ . . . the injury.” Hence, Mr. Brown was able to collect in full on his mother’s uninsured/underinsured automobile policy

    Wow. Sticky wicket, indeed. Moral of this tale: secure your firearms and be painstakingly vigilant! The last thing you want is for an injured party to sue you for weapon damages arising out of the use of your auto – even if your vehicle is stationary! Mr. Brown was fortunate; he survived the blast, and sued for appropriate personal injury compensation. If Mr. Brown had been killed, the owner of the vehicle – or the offender, if legally competent – could have been sued for wrongful death, and criminal charges might also have been filed.

    You most certainly do not want your situation to end like it did for Warren Zevon:

    “I’m hiding in Honduras

    ‘Cause I’m a desperate man,

    Send lawyers, guns, and money

    The (bleep) has hit the fan!”

    *named changed to protect interests of actual party involved.

    Setterberg Law Office

    Dec 27, 2016
    Share on Twitter Share on Facebook
Write a Comment

(Max 1000 characters - You have 1000 characters remaining)
captcha Refresh