If you're a Central New York hunter and you accidently shoot a fellow hunter, you sure would feel bad, right? I mean Central New York shooting accidents, like hunting accidents everywhere, can kill, seriously injure and maim. But there's insurance for that, right? I mean, if you are a hunter, and you own a home, your homeowner's insurance will protect you if you accidently shoot another hunter, right?
Think again. Here's a true story. A Central New York deer hunter goes out hunting in the hours where night is turning to day. He is in his tree stand waiting. He sees a deer. He aims, shoots, fires and --- hears a man scream. He just shot another hunter! The deer wasn't a deer, it was a hunter whom he mistook for a deer.
When he calms down, and he is assured that his victim is not going to die, but is seriously hurt, he thanks his lucky stars that at least he has homeowner's insurance. He realizes that homeowner's insurance covers accidents like this, so the poor guy he shot will at least get his medical bills and lost wages paid, and maybe even some compensation for any pain and suffering.
But he's wrong. His insurance refuses to cover the accident. Why? Written into the insurance policy was a "criminal activities exclusion". Basically this exclusion says that if the insured injures or kills someone while engaged in a "criminal activity", the insurer won't cover it. What was the hunter's crime? Assault third, which includes "criminal negligence". Even though this was just an accident, it was a "criminal" accident. The insurance policy says it can exclude coverage for this even if the insured is never charged with a crime. As long as the insurance company believes that the activity amounts to a crime, and it can convince a jury of it, then it doesn't have to pay a dime.
Only problem is we have got a seriously injured hunter who needs money. And we have another hunter, the insured, who is flat broke and can't pay a judgment. And justice, for crying out loud, demands that something be done!
I represent the injured hunter. The other day I argued the case in the appellate court in Rochester. I told the Court the insurance policy was unfair, and ran against good public policy. The insurer should not be allowed to exclude coverage under these circumstances. I told them that this "criminal activities" exclusion can be used by the insurance company to disclaim coverage on all hunting accidents, at least where someone ends up shot, because in each and every instance shooting someone by accident can be construed as "criminal" negligence. This isn't fair. Why should hunting accidents not be covered by insurance while all kinds of other accidents are covered? I can run you over with my ATV, and that is covered, but if I mistake you for a deer and shoot you it is not. Go figure.
In fact, I may be asking the Court of Appeals, the highest court in New York State, to "go figure" soon. I'll keep you posted.
