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Insurance Won't Cover Injury Due to 'Playing Around' With Gun

By Jonathan R. Tung, Esq. on July 28, 2016 | Last updated on March 21, 2019

In a decision that probably won't surprise many, the Fourth Circuit found that an employer-insurer was under no duty to indemnify a gunshot wound to a third party after the employee "play[ed] around" with his gun. The decision is important because it gives a little bit more clarity to both employers and employees as to what actions are covered under the "work related" language of insurance policies.

Practitioners should note, however, that the ruling is unpublished and does not yet have precedential effect. Nonetheless, the cases cited within appear to be strong and good law for those within the Fourth Circuit. And it appears that shooting your friend in your apartment is not work related.

Relevant Facts

Crooks was employed by Jeco, Inc. and lived in an apartment within the same building where Jeco was housed in order to "provide some level of security for the business off-hours," according to court documents.

While entertaining friends at his apartment, Crooks started "playing around" with his gun and accidentally shot his friend Cobbs. In the ensuing litigation, Jeco's insurer, QBE smelled blood in the water and moved for a declaratory judgment that it had no duty to indemnify Cobbs' injuries. This passed muster at the lower district court. Cobbs appealed -- probably because Crooks' pockets were quite shallow.

The legal issue at bar overlaps tremendously with common law concepts of respondeat superior. Under South Carolina law, "[a]n act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and in furtherance of the master's business," even if the act is outside the scope of the servant's authority.

But in this case, Crooks was fooling around with his firearm. Under relevant South Carolina employment law, "If a servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended; this is so no matter how short the time, and the master is not liable for [the servant's] acts during such time."

The very same concepts were (and are) memorialized in most insurance policy agreements. Insurances have no intention of covering the foolish endeavors of employees' off hours -- particularly when such actions have nothing to do with work. "Playing around" with one's gun and shooting your friend cannot be stretched under the shade of insurance coverage because to do so would significantly increase premiums -- or end the business of insurance.

Indeed, application of basic contract law precludes that absurd outcome. In the case of the state's applicable law, contract construction mandates against a "strained or violent interpretation not contemplated by the parties."

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