How Can Drunk Driving Causing Injury an Accident?
A person, with knowledge of the hazards of drunk driving, who drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second-degree murder under an implied malice theory in California (People v. Watson, (1981) 30 Cal.3d 290). However, in Richard Brett Frederking v. Cincinnati Insurance Company, No. 18-50536, the United States Court of Appeals for the Fifth Circuit (July 2, 2019) found a person causing injury while driving drunk was in an accident and his insurer must pay to defend and indemnify him.
Carlos Xavier Sanchez was driving under the influence of alcohol when he failed to yield the right of way, thereby colliding with another car and injuring Richard Brett Frederking. At the time, Sanchez was driving a truck assigned to him by his employer, Advantage Plumbing Services. Advantage, in turn, is insured by Cincinnati.
Frederking sued both Sanchez and Advantage in Texas state court. The jury found that Sanchez’s conduct was grossly negligent, and that Advantage negligently entrusted Sanchez with the vehicle. The jury held Sanchez and Advantage jointly and severally liable for $137,025 in compensatory damages. It further awarded $207,550 in exemplary damages for Sanchez’s gross negligence.
As Advantage’s insurer, Cincinnati agreed to pay Frederking the amount of the compensatory damages award, thereby discharging Advantage’s liability. Cincinnati refused to pay the exemplary damages awarded against its insured.
Cincinnati moved for summary judgment on various grounds. The district court granted summary judgment to Cincinnati when it concluded that Sanchez’s intentional decision to drive while intoxicated meant that the collision was not an “accident” under Texas law.
An interpretation of an insurance policy provision is an issue of law. Both of the policies at issue here cover damages resulting from “accidents.” Neither policy defines the term “accidents.”
Consistent with ordinary usage, the Supreme Court of Texas has defined the term “accident” as a fortuitous, unexpected, and unintended event. Accident, the broadest term, refers to an unforeseen event involving an injury or loss that ranges from slight to grave. In the context of insurance, accident insurance covers injuries to oneself by some lack of care or inattention, or perhaps by some occurrence wholly outside one’s control. An accident is an unintended and unforeseeable injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.
Put another way, the term “accident” is defined by what it excludes—intentional acts. Not surprisingly, then, we ordinarily describe automobile collisions as “accidents” in common parlance. The Fifth Circuit concluded that there is no reason to describe the automobile collision in this case as anything other than an “accident.” Certainly no one contends that Sanchez intended his vehicle to collide with Frederking’s vehicle. Nor does anyone suggest that Sanchez drank in hopes of causing an automobile collision.
Cincinnati argued that drunk driving collisions are not “accidents,” because the decision to drink (and then later drive) was intentional — even though there was admittedly no intent to collide with another vehicle. As Cincinnati points out, a jury found that Sanchez intentionally decided to drive while intoxicated, with “actual, subjective awareness” of the extreme degree of risk, considering the probability and magnitude of the potential harm to others. As a result, Sanchez’s subjective awareness of the risk he posed renders the collision intentional, rather than accidental.
The Fifth Circuit noted that decades of legal authorities consistently refer to drunk driving collisions as “accidents.”
Under Cincinnati’s theory of interpretation it is not just drunk driving collisions that would be excluded from coverage. Perhaps because counsel went too far and acknowledged during oral argument that a collision caused by texting while driving doing makeup while driving, or eating while driving would also not be an accident.
The Fifth Circuit, strangely concluded that the collision was neither “highly probable” nor the “natural and expected” result of Sanchez’s intoxicated driving. As dangerous as drunk driving is, the Fifth Circuit concluded it does not make collisions “more likely than not” — or the “expected” result of intoxicated driving.
Cincinnati Insurance Company’s logic is this: “intentional acts are not accidents, and drunk drivers make the intentional choice to drink and then drive.” This theory of interpretation, according to the Fifth Circuit, conflicts with the plain meaning and common usage of the word “accident”— and defies the understanding and expectation of everyone who drives a car.
Cincinnati could have argued the California Supreme Court decision in People v. Watson, (1981) 30 Cal.3d 290, that held that a person, with knowledge of the hazards of drunk driving, who drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second-degree murder under an implied malice theory.
“Malice is implied . . . when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 596.) If a person can be convicted of murder when driving drunk he can be convicted of battery if the drunk driving only injures, rather than kills, the victim of the collision. Both crimes are also intentional torts and, by definition, not fortuitous.
Since the Fifth Circuit made a drunk driving collision an accident and neither intentional nor a case of implied malice as did the California Supreme Court, I recommend that insurers writing auto insurance in Texas, add the following exclusion by endorsement: “We provide no coverage for defense or indemnity for any injuries or property damage caused by an insured who operates an automobile while intoxicated. Intoxicated is a blood alcohol level greater than the minimum level set by the state for intoxication.” It seems to me that the “accident” could have resulted in the prosecution of Carlos Xavier Sanchez for the crime of battery a specific intent crime where malice should be applied.
© 2019 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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