Now, I know what I’m going to say is going to strike some of you as wrong, but hear me out. In Essex Ins. Co. v. Brown, 2006 WL 1445786 (W.D. Mo. May 22, 2006), the court found no duty to defend or indemnify a security services company or its employees in a lawsuit filed after one of the employees fatally shot a man in Kansas City over a towing dispute.
Here are the facts: Michael and Wendy Eslick of Superior Protective Service, along with one John Speakman of another security company, were directing the towing of illegally parked vehicles from the parking lot of an apartment complex. One of the vehicles belonged to a man named Russell Brown, who said his vehicle was not illegally parked. A fight broke out, and Speakman began whipping Brown with a bullwhip. (I have never before heard of a security guard or anyone else armed with a bullwhip this side of Indiana Jones). Mr. Eslick then tasered Brown, and then shot him four or five times, mortally wounding him.
The language of the intentional acts exclusion in Superior’s policy bars coverage for injury that is "expected or intended from the standpoint of the insured." That takes care of Mr. Eslick: it’s hard to deny that injury is expected, if not intended, when you taser and shoot someone. But what about Superior’s potential vicarious liability for their acts? Superior is also an insured, and so is Ms. Eslick. Vicarious liability can be assessed whether the employer is at fault or not, and while an employee’s acts can be imputed to an employer, the employee’s motives should not. Further, one employee’s actions can’t be imputed to a fellow employee. Did Superior intend or expect the injury to Brown? Did Ms. Eslick? I don’t think so. As for Speakman, I’m not even sure why the court included him in the coverage analysis, since it appears that he and his bullwhip worked for another outfit.