In Wargacki v. Western National Assurance Co. Judge Leighton of the Western District of Washington held that a homeowner’s carrier had no duty to defend a civil suit where the insured shot his pregnant girlfriend, and then shot himself – despite the allegation in the complaint that the boyfriend acted “either negligently, intentionally or recklessly” and that the shooting was “at least negligent.”

The court held that the allegation that the shooting was negligent and thus not barred by the intentional acts exclusion was not plausible, and characterized the girlfriend’s estate’s argument as “spin, massage, speculation or sophistry.”  Although this decision appears rooted in common sense, it appears to be inconsistent with Washington law on the burden of proof in the duty-to-defend situation.  The court took the plaintiff to task for failing to allege any facts that would have supported the shooting being negligent, rather than intentional.  But that was not the plaintiff’s burden.  Under Washington law, as under the law in most states, the duty to defend is based only on what is pled in the complaint.  If the complaint itself is compliant with court rules on factual pleading, it is simply not up to the judge in a coverage case to fault the plaintiff for not pleading more.  If the complaint could allow the presentation of evidence to support a covered loss (such as proof that the shooting was negligent), then there should be a duty to defend.

That is not to say that the decision was necessarily incorrect.  The plaintiff’s complaint alleged not only negligence but also in the same claim the tort of outrage, which (according to the judge) requires intent.  If the decision had relied on that pleading, then the decision might be easier to reconcile with Washington law.  However, the decision only cites that fact as further evidence that there was no duty to defend.


This decision highlights the importance of careful analysis of coverage issues before embarking on any kind of litigation and when crafting an opening pleading, but also the importance of the burden of proof in coverage disputes.  It is not “sophistry” or “spin” to plead in the alternative where the facts are reasonably in dispute and as a result different legal theories may be implicated.  Forensic science and life experience teach us that our gut-level beliefs about such things as motive and causation are often incorrect.  Courts should recognize that and approach duty-to-defend questions accordingly.