by: Peter J. Gallagher (@pjsgallagher)
One of the most ridiculously entertaining movies of the late-1970’s/early-1980’s was “The Warriors.” You need to watch it to fully appreciate how ridiculous and entertaining it was but it involves a running battle between street gangs through a post-apocalyptic-looking New York City. (To give just a glimpse of how ridiculous it was, the members of one of the gangs, the “Hi Hats,” were dressed like mimes.) The quote in the title of this post is one of the two most well-known lines from the movie (bonus points if you know the other one, answer below).
I was reminded of “The Warriors” when I read the opening sentences of the Appellate Division’s recent decision in Cannon v. Palisades Insurance Company:
“This case involves a street fight between two groups of combatants, some of whom were employed as telemarketers with two local companies. Not surprisingly, the challenge to fight, the acceptance of that challenge, and negotiations over the combat site were all done telephonically.”
A gang of telemarketers could have easily fit into “The Warriors.” Regardless, with an opening sentence like that, I had to read the rest of the opinion. Ultimately, the facts of Cannon are unique and not likely to be useful to you in any future matter. But, that doesn't mean you should not read on, and read the decision yourself if you have the time.
After finishing his shift as a telemarketer, Kenneth Hyslop met up with four of his friends at a convenience store where they waited for a fifth friend to join them. While waiting for that friend, they received a call from "Dom" who challenged the group to a fight. (Plaintiff was a member of Dom's crew.) Negotiations ensued over the location of the fight, and they eventually settled on a nearby parking lot.
Hyslop drove his group to the parking lot in his mother's car (or at least in a car insured under his mother's automobile insurance policy). They found Plaintiff's group at the parking lot in a gold Camry, toting baseball bats. The members of Hyslop's group, "expecting a traditional fist fight," were unarmed. When they saw Plaintiff's group was armed, they "hurriedly left the parking lot with the Camry in pursuit and the occupants waiving baseball bats from the car windows."
Hyslop's group lost the Camry and drove back to the Lakeview Apartments in order to, as the Appellate Division described it, pick up reinforcements. One of these reinforcements was "an unknown person" who got into the back of Hyslop's car. After picking up these reinforcements, Hyslop's group — now in two separate cars — drove to the Skytop Gardens Complex, where they expected to find Plaintiff's group. On the way there, members of Hyslop's group "made phone calls trying to reschedule the fight."
When Hyslop's group arrived at the Skytop Gardens Complex, the gold Camry suddenly appeared, cut off Hyslop's group, and the occupants got out carrying bats. Hyslop put his car in reverse, but then heard a gunshot and looked over to see a "short shotgun" in the lap of his friend in the passenger's seat. Part of the "projectile" fired by the friend struck Plaintiff and permanently lodged inside of his skull. Hyslop claimed he had not seen the shotgun before the shooting. After the shooting, Hyslop's group drove to the shooter's aunt's house, and on the way they "disposed of the shotgun by throwing it into some shrubs."
Hyslop was charged with a number of crimes, and eventually pled guilty to "riot," for which he as sentenced to time served and probation. (He later violated probation and was sentenced to four years in prison.)
Plaintiff sued Hyslop, his parents, the shooter, and others for his injuries. After default judgment was entered against the defendants, Plaintiff sought a declaratory judgment requiring Hyslop's mother's insurance carrier to satisfy any judgment against Hyslop. (Hyslop's mother assigned her rights under the policy to plaintiff.) The trial court granted summary judgment to the carrier, noting that the policy disclaimed coverage for "intentional and willful violent acts," and it was clear to the trial court that Hyslop "intended for people to get hurt" when he returned to the fight with reinforcements.
The Appellate Division affirmed but for an even more fundamental reason. It held that plaintiff could not satisfy his burden of showing that the claim fell within the insurance policy. Plaintiff's injuries were not covered by the policy because they were not caused by an "auto accident." Because the claim was not covered by the policy in the first place, the Appellate Division did not need to determine whether any of the exclusions in the policy, including the one relied upon by the trial court for intentional acts, were applicable. However, the Appellate Division noted that even if this were not the case, plaintiff's claim would be barred by Hyslop's intentional acts.
So, the take home message from the case is that automobile insurance carriers will probably not be held liable for injuries that occurred in a street fight where the insured was a willing participant in said street fight. Again, I doubt that this is particularly useful in your everyday practice, but the case was asking to be read because of the Appellate Division's enticing opening paragraph.
[BONUS: In addition to quote used in the title of this post, the other famous line from “The Warriors” was uttered by the gang leader who called the street gang summit that sets the stage for the rest of the movie. His “Can You Dig It?!?” speech appears to also have been the inspiration for a similar speech by Lawrence Fishburne as Morpheus in the equally ridiculous, but less entertaining, final Matrix movie.]
[Double Bonus: Like all great things, the line, "Warriors, come out to playyyyyy" was spoofed on the Simpsons.]