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11th Circuit: Guns Don't Go Off by Themselves
Scott Simonson
Fulton County Daily Report
09-22-2005
The ride grew bumpy, going from the dirt road to the highway to Wright's
Grocery Store outside Oglethorpe, and Mamie Luke was concerned that her
loaded .357 Ruger Blackhawk revolver was sliding around the seat of her
truck.
Luke set the pistol across her lap, its 712-inch barrel pointed toward her
friend Simon Smith in the passenger seat, then put both hands on the
steering wheel and kept driving. To this day, Luke and Smith don't know why
the revolver went off, putting a bullet in Smith's side and nearly killing
him.
A Georgia jury decided that under state law, Luke's auto insurance company
must help pay Smith's $70,000 medical bill. On Tuesday, a three-judge panel
of the 11th U.S. Circuit Court of Appeals affirmed a district court's
decision to deny the insurance company's motion for a new trial.
"Guns don't usually go off by themselves. I guess that's what the common
juror in Georgia understands," Judge Stanley F. Birch Jr. said at oral
arguments on Friday.
The 11th Circuit's decision signals that Georgia insurance law agrees with
the jurors: A bumpy truck ride and an accidental gunshot add up to a big
check from an insurance company.
The 11th Circuit affirmed the district court's decision in a unanimous
ruling by Birch, Judge Frank M. Hull and 8th Circuit Senior Judge Pasco M.
Bowman II, sitting by designation. Auto-Owners Insurance v. Luke, No.
05-10054.
Luke did not attend oral arguments and could not be reached for comment.
Smith also could not be reached for comment.
Their case began with a trip to the store. Luke set off from her home in the
woods near Alapaha in her truck with Smith, her dog Lobo and her revolver.
"Mamie Luke had used the same pistol the night before while shooting the gun
to run off coyotes," according to the appeals brief filed by Smith's
attorney, G. Leonard Liggin, a sole practitioner in Montezuma. "Luke could
not say whether she had left the gun's hammer cocked after shooting the
coyotes when she placed the gun back inside her truck."
According to the insurance company's brief, both Smith and Luke said at
trial they did not know what caused the gun to fire, blaming "old bullets."
The bullets were at least 8 years old, according to the company's brief.
The truck traveled two rough roads, one made of dirt, to reach the highway,
according to Smith's brief. Luke placed the pistol in her lap. Lobo's claws
screeched across the metal truck bed as Luke braked hard at an intersection,
then the truck turned, a loud explosion followed and Smith was shot.
Smith still has bullet fragments in his back and cannot work, Liggin said in
an interview.
"He should have died," Liggin said. "He's at the short end of a long stick."
Liggin described both Smith and Luke as being in their late 30s. Luke, in
her district court filings, said she is disabled and lives on government
assistance totaling less than $600 per month.
Smith filed a state personal injury suit, and Luke asked her insurance
company to defend her.
She said in a handwritten pro se filing in district court that she "never
had a traffic violation in my 25 yrs. driving. I paid a high premium and
never filed against it, till this accident. I feel if I'm required to pay
the accident coverage they should be required to provide the service they
sell to people."
The insurance company filed suit in the Middle District of Georgia seeking a
declaratory judgment that it was not required to pay. A jury found for Smith
and Luke, and Auto-Owners Insurance requested a new trial.
The attorney representing Auto-Owners, George L. Welborn of Downey &
Cleveland in Marietta, told the 11th Circuit on Friday that Luke sounded
genuine when she said at trial she didn't know why the gun went off.
"Bless herself, I think she was being honest," Welborn told the court. "But
that's not meeting the burden of proof." Welborn said he also believed Smith
couldn't explain the accident.
However, Bowman pointed out at oral arguments that Georgia courts don't need
direct evidence to require that car insurance must cover an accident.
Instead, Georgia law requires Smith to show the accident "arose out of" the
use of the truck, according to the trial judge, C. Ashley Royal, writing to
deny the insurance company's motion for a new trial.
"Georgia courts have clarified that the term 'arising out of' in this
context 'does not mean proximate cause in the strict legal sense,'" Royal
wrote. "In fact, it has been said that 'almost any causal connection or
relationship' between the injury and the insured automobile will do.'"
Royal wrote that the jury found circumstantial evidence that "the shooting
was intrinsically related to the operation of the vehicle."
Welborn said that the jury based its decision on conjecture, speculation and
"a lot of could-haves" that didn't amount to a causal connection.
Liggin, the attorney for the man who was shot, told the 11th Circuit that
the physics exerted in the cab of the pickup could have caused the gun to
fire.
"Don't you have to give the jury a nonspeculative reason?" Birch asked.
Liggin said that under Georgia law, he did not, echoing the language used by
Royal.
"Almost any causal connection will do," Liggin said.
If that's all Liggin was required to show, Birch said on Friday, he seemed
to have succeeded.
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