Brandon Osterbind obtained a $100,000 policy limit settlement after a homeowner’s insurance coverage dispute and court battle.
Our client was a 10-year-old boy who was playing in the woods with his friends behind their neighborhood, as kids are expected to do. While many days kids these days spend more time playing video games than playing in the woods, this is not so for our client and his friends. Hearing them recount the events of that day will take even the youngest jurors in Lynchburg back to the fondest memories of their childhood.
While our client and his friends were playing in the woods, the defendant was playing with a 13-year-old boy who lived in the same neighborhood, which was adjacent to our client’s neighborhood. The Defendant knew that our client was in the woods and he knew the general location of where they were. Nevertheless, he began shooting a pellet gun in that general direction. Our theory was that he did not intend to shoot our client but he intended to scare him and his friends.
One of the pellets entered the side of his stomach and became lodged in his abdomen near his colon. He went to Lynchburg General Hospital and was transferred to UVA for surgery that same day.
At first, the defendant and his 13-year-old friend lied to the authorities, to our client and his friends, and to our client’s father about their involvement in the event. They denied shooting their pellet guns at all and said that they were playing basketball in the cul-de-sac and heard loud screaming in the woods so they ran to see what was going on. Based on what happened later, this was clearly a lie.
The defendant and his 13-year-old friend finally admitted to knowing that the boys were playing in the woods and they admitted that they could hear the boys because they were being loud. The defendant told the detective that he could hear them playing in the woods. He also told the detective that he saw three boys when they came out of the tunnel in the woods and he saw them go toward the treehouse. The defendant ultimately admitted that he saw two boys leave the area and then decided to “shoot at birds” in between the tunnel and the treehouse. He told the detective that he was shooting at birds in between the tunnel and the treehouse but the 13-year-old friend told the detective that the defendant said he was trying to scare the kids in the woods.
The defendant knew that the boys were in the woods. He admitted that he saw two leave but did not see the third leave, but he assumed that he went somewhere else. They had not; however, and our client’s 11-year-old friend testified in the criminal trial that he and his brother were 5-10 feet from the tunnel when they heard the shots. The defendant, who admitted to the detective that he is not a good shot, fired his pellet gun into the woods. According to the boys, several shots were fired, and one struck our client in the side. According to the defendant, both he and his 13-year-old friend were shooting into the woods, but the 13-year-old friend was reloading when the defendant fired the last shot and they both heard a loud scream.
“General negligence principles require a person to exercise due care to avoid injuring others.” RGR, LLC v. Settle, Record No. 130633 at 15, 764 S.E.2d 215, ___ (citing Overstreet v. Security Storage & Safe Deposit Co., 148 Va. 306, 317, 138 S.E. 552, 555 (1927); Charles E. Friend, Personal Injury Law in Virginia § 1.1.1., at 2 (3rd ed. 2003)). The defendant owed a duty of care to our client to “avoid conduct that creates risks of harms to others.” Id. (citing 2 Dan B. Dobbs, The Law of Torts § 251, at 2-3 (2nd ed. 2011)).
Whenever a person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or the property of the other, a duty arises to use ordinary care and skill to avoid such injury.
Id. at 16, 764 S.E.2d at ___ (citing Southern States Grain Mktg. Coop. v. Garber, 205 Va. 757, 761, 139 S.E.2d 793, 796 (1965)). “Whenever the circumstances. . . are such that an ordinary prudent person could reasonably apprehend that, as a natural and probable consequence of his act, another person rightfully there will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises.” Id. at 22, 764 S.E.2d at ___ (citing Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va. 270, 278, 401 S.E.2d 878, 882-83 (1991)).
The defendant knew that the boys were in the woods and he knew that one had not left the woods. The defendant did not ensure that all of the boys had left the woods before he fired his shots.
In exercising reasonable care under the circumstances of this case, the defendant knew or should have known that, as a natural and probable consequence of his act, he created a recognizable risk of harm to all of the boys putting them in danger of receiving an injury from the negligent conduct. The resulting injury could have been reasonably foreseen by exercise of reasonable care and prudence. By failing to ensure that the boys were out of the area of danger he created, the defendant was negligent and breached his duty to all would have been in those woods.
Our client incurred $36,908.75 in medical expenses as a result of this accident. Additionally, the emotional effect of this accident on our client was significant. We sent a demand to the defendant’s homeowners insurance policy because every homeowners policy has a general liability coverage to it. It is not limited to just injuries that happen on the insured premises, but also for general liability that is not covered by auto or commercial insurances.
The insurance company denied coverage and argued that the insured’s conduct was intentional and criminal and therefore excluded from their coverage. We briefed and argued this issue in Lynchburg Circuit Court and the judge ruled in our client’s favor holding that the homeowners insurance policy had to defend the defendant and indemnify the defendant for any loss caused therefrom.
After winning the insurance coverage case, the homeowners insurance tendered their policy limits of $100,000.00.
If you don’t know if insurance is available, one of your attorney’s jobs is to find as much coverage as there can be to compensate you for your injuries. Contact us if you need help.
The Virginia State Bar requires that we give a disclaimer whenever we talk about case results. As we are sure you already know, the case result described above must be read in context with the unique facts of this particular case. Each case result depends upon a variety of factors unique to each case, which is why we describe those facts in detail. To be clear, this case result does not guarantee or predict a similar result in any future case undertaken by the lawyers at Osterbind Law, PLLC.