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Does Marijuana Insurance Policy Cover Wrongful Death?

By William Vogeler, Esq. on May 18, 2017 2:59 PM

If marijuana insurance were available anywhere, you would think it would be in Colorado.

Colorado was one of the first states in the country to legalize marijuana for recreational use. Since 2012, it has been a boon to business there -- including businesses like insurance that support the marijuana industry.

But it is insurance after all, and exceptions may apply. That's the question in a wrongful death case involving a man who allegedly went crazy after eating marijuana candy and then killed his wife.

Too Much THC

Richard Kirk is serving 30 years for the 2014 murder. He initially pleaded not guilty by reason of insanity, which he said was induced by consuming Karma Kandy Orange Ginger.

According to reports, Kirk shot his wife Kristine in the head while she was on the phone with police. In the 911 recording, he talked about some marijuana candy he got from a store.

Kirk had eaten the Karma Kandy, a marijuana edible that advertises 100 milligrams of THC in a bar. It is 10 times more than the amount needed to get a person high.

The Kirks' children sued the edible maker and the retail store for wrongful death in 2016, and the store settled. Gaia's Garden, the candy maker, is still in the case, but its insurance company is refusing to defend.

No Body Injury

"The policy specifically did not cover, and was not intended to cover, bodily injury arising out of one of Gaia's products where the injury occurred after Gaia's had 'relinquished possession' of the product -- i.e., after the product was sold and distributed," the insurer says in a complaint for declaratory relief. "Therefore, it was not a covered hazard under the policy."

United Specialty Insurance Company also claims the policy had an exclusion for "any bodily injury" which was caused by ingesting a psychotropic substance. The exclusion specifically includes "marijuana" and "cannabinoids," the insurer says.

The court will decide whether the policy exclusions apply in the wrongful death case, but many insurers offer coverage specifically for marijuana businesses -- including bodily injury claims. The questions about coverage will continue to challenge marijuana providers, including lawyers who represent them.

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