Justices: Injuries from high speed police chase not 'intentional,' insurer must pay

By Steve Korris | Apr 23, 2009

Texas Supreme Court

AUSTIN – Richard Gibbons never paid in any way for ramming a Ford F-350 truck into a car with a family inside but his insurer must pay $300,000.

The Texas Supreme Court ruled April 17 that Nationwide Mutual covered Gibbons as he eluded police around San Marcos at speeds up to 100 miles an hour.

Nationwide Mutual argued that his policy excluded intentional damage, but eight Justices agreed that Gibbons didn't intend to harm the family he struck.

"The exclusion requires intentional damage, not just intentional conduct," Justice Don Willett wrote.

"Gibbons slammed on his brakes hard enough to skid before impact, showing he actively tried to avoid the collision," he wrote.

Justice Scott Brister wrote in dissent that Nationwide Mutual didn't agree to pay for the kind of damage Gibbons caused.

"If insurers must pay for intentional, criminal acts by policyholders like Gibbons, they will have to charge everyone higher premiums," he wrote.

The crash left Roney Tanner, son of Greg and Maribel Tanner, comatose for a week.

Roney would spend a month in a hospital and five years in physical therapy.

Gibbons posted $10,000 bond on eight felony charges. He didn't appear for trial in 2001 and no one ever brought him to trial.

"He was last seen in his hometown of Akron, Ohio," Willett wrote.

The chase began after a Texas state trooper pulled Gibbons over on Interstate 35 south of San Marcos. Gibbons drove off with the trooper in pursuit.

Three San Marcos officers joined the chase and Gibbons swerved into their town. On local streets he topped 80 miles per hour.

He shot out of town on Highway 80 south and hit 100 mph. As police closed in he plowed into a cornfield and escaped on a parallel road.

Another officer blocked his way with a cruiser. He plowed around it.

He saw the Tanner car in an intersection. He plowed into it where Roney sat. He hurt the others too.

Gibbons kept driving and escaped through another cornfield.

Police received authority to shoot tires. They hit two tires according to Willett and three according to Brister, ending the chase.

The Tanners sued Gibbons in Caldwell County district court and obtained default judgment. Nationwide refused to pay and filed an action for declaratory judgment.

The jury ruled in favor of the Tanners, finding that the policy didn't exclude coverage because Gibbons did not intentionally cause their injuries.

Nationwide Mutual asked District Judge Todd Blomerth for judgment in its favor notwithstanding the verdict, and Blomerth granted it.

The Tanners appealed, and 11th District judges in Eastland affirmed Blomerth.

In their final appeal the Tanners succeeded.

Willett wrote, "We will uphold the jury's finding if more than a scintilla of competent evidence supports it."

He wrote that Nationwide Mutual did not establish as a matter of law that Gibbons intentionally caused the family's injuries.

"While leading police on a protracted high speed chase is not merely reckless but reprehensible, we cannot say on this record that no reasonable juror could resist finding that injury to others was unavoidable," he wrote.

"In fact, the chase could have ended in any number of ways: with
Gibbons rolling his vehicle, with Gibbons hitting a fixed object, with officers using preventive techniques to stop Gibbons's vehicle, or even with officers discontinuing the pursuit," he wrote.

"Put simply, the injury was not so inevitable that we can say as a matter of law it was intended," he wrote.

Brister replied, "Anyone who drives a huge 4- ton pickup at 100 miles an hour through city streets during rush hour ought to know that someone is going to get hurt."

The exclusion didn't require that Gibbons know who or what he would hit, he wrote.

He wrote that "the most surprising thing on this record is not that there was an accident, but that someone wasn't killed."

"If the Court cannot say on this record that Gibbons ought to have known damage would follow his conduct, then courts can never say it," Brister wrote.

Don Cotton and Bob Richardson represented the Tanners. Chris Heinemeyer represented Nationwide Mutual.

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