                                          SUPERIOR COURT
                                                  OF THE
                                       STATE OF DELAWARE

E. SCOTT BRADLEY                                                                       1 The Circle, Suite 2
                JUDGE                                                             GEORGETOWN, DE 19947


                                             June 7, 2016


Susan List Hauske, Esquire                                 Debra C. Aldrich, Esquire
Tybout, Redfearn & Pell                                    Doroshow, Pasquale, Krawitz & Bhaya
750 Shipyard Drive, Suite 400                              28535 DuPont Boulevard, Suite #2
P.O. Box 2092                                              Millsboro, DE 19966
Wilmington, DE 19899

Paul G. Enterline, Esquire
113 South Race Street
P.O. Box 826
Georgetown, Delaware 19947

        RE: State Farm Fire and Casualty Company v. Jennifer Wilkerson, et al.
            C.A. No. S14-09-014 ESB

Dear Counsel:

        This is my decision on the Motions for Summary Judgment filed by the parties

in this case involving a dispute over whether a homeowner’s insurance policy

provides coverage for an incident where one child used a paintball gun to

intentionally shoot a paintball at another child.1 Chad Wilkerson used a paintball gun

to intentionally shoot a paintball at a group of kids. Ethan Joseph was one of the kids


        1
           A paintball gun, which is also called a paintball marker, uses some type of compressed
air or gas to force a gelatin capsule filled with paint through the gun’s barrel. Mullen v. Northern
Neck Insurance Co., 67 Va. Cir. 434, at *2 (Va.Cir. 1997). See also 18 Pa. C.S.A.
§2707.2(a.1)(c).
in the group. The paintball hit Ethan’s eye, causing severe damage to his eye. Ethan

and his parents sued Chad and his parents. Chad’s parents have a homeowner’s

insurance policy with State Farm Fire and Casualty Company. Pursuant to the policy,

if a suit is brought “against an insured for damages because of bodily injury or

property damage to which coverage applies, caused by an occurrence,” State Farm

will pay up to its limits of liability “for the damages for which the insured is legally

liable,” and “provide a defense.” Excluded from the coverage is “bodily injury or

property damage which is either expected or intended by the insured.” State Farm

filed suit against Chad and Ethan and their respective parents for a declaratory

judgment as to whether it is obligated to defend and/or indemnify Chad and his

parents as a result of the lawsuit brought against them by Ethan and his parents.

                                     Background

      Chad and some friends were playing football at the Gumboro Community

Center. During a break, William Betts drove Chad to a Walmart store to purchase a

paintball gun. Shortly thereafter, Chad returned to the Gumboro Community Center.

While still in the car, Chad extended the paintball gun outside of the passenger side

window, called over to a group of his friends to approach the car, and fired a paintball

at the group of kids. The paintball hit Ethan’s eye, causing serious damage to it. The

following are relevant questions and answers from Chad’s deposition:

                                           2
Q.        You intended to shoot it at the group of people, is that correct?
A.        Yes.2

Q.        When you pulled the trigger on the paintball marker, and it was in the
          direction of Joseph what did you expect to happen?
A.        I expected to, you know, get everyone wanting to play paintball.3

Q.        When you pulled the trigger on the paintball marker while it was pointed
          in the direction of Ethan Joseph, did you intend to hit him?
A.        Yes.4

Q.        Okay. And you intended to hit him where?
A.        Feet, knees, somewhere low. It wasn’t even exactly at Ethan, like in
          particular. It was just any of them really, to be honest.5

Q.        So you intended to him [sic] maybe somebody?
A.        Yes.6

Q.        Did you understand that shooting the paintball marker at somebody may
          cause injury?
A.        Yes.7
                            Standard of Review

Summary Judgment is appropriate where there are no genuine issues of




2
    Defendant’s Exhibit C at 21.
3
    Id. at 32-33.
4
    Id. at 34.
5
    Id.
6
    Defendant’s Exhibit C at 35.
7
    Id. at 23.

                                        3
material fact and the moving party is entitled to judgment as a matter of law.8 The

moving party must initially demonstrate that there is no genuine issue of material

fact.9 If that burden is met, the burden then shifts to the non-moving party to

demonstrate that an issue of material fact remains in dispute.10 Where the parties

have filed cross motions for summary judgment and have not presented argument to

the Court that there is an issue of fact material to the disposition of either motion, the

Court shall deem the motions to be the equivalent of a stipulation for decision on the

merits based upon the record submitted with the motions.11 Neither party’s motion

will be granted unless no genuine issue of material fact exists and one of the parties

is entitled to judgment as a matter of law.12 Filing of a cross motion for summary

judgment does not serve as a waiver of the party’s right to assert the existence of a

factual dispute as to the other party’s motion.13

                                              Discussion

      Delaware law recognizes the validity of exclusion provisions in a homeowner’s


      8
          Superior Court Civil Rule 56(c).
      9
          Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
      10
           Id.
      11
           Superior Court Civil Rule 56(h).
      12
           Emmons v. Hartford Underwriters Insurance Co., 697 A.2d 742, 745 (Del. 1997).
      13
           United Vanguard Fund, Inc. v. Take-Care, Inc., 693 A.2d 1076, 1079 (Del. 1997).

                                                  4
insurance policy.14 The policy in this case excludes coverage for bodily injury which

is either expected or intended by the insured.                 There is a difference between

“expected” and “intended” injury. Under Delaware law, an injury is “expected” if the

actor knows or should have known there was a substantial probability that a certain

result would take place.15 The word “intended” as applied to an exclusion clause

“denotes that the actor desired to cause the consequences of his act or believed that

the consequences were substantially certain to result from it.”16 State Farm argues

that Chad should have expected that his conduct would cause serious injury to

Ethan’s eye.

         The facts are straightforward and undisputed. Chad used a paintball gun to

intentionally fire a paintball at a group of kids. Chad intended to hit at least one of

the kids in the group and he knew that in doing so he could cause injury to one of the

kids. The paintball struck Ethan’s eye, causing severe damage to his eye. While Chad

did not intend to hit anyone of the kids in particular and he did not intend to cause

serious harm to Ethan’s eye, he intended and expected to hit one of the kids with the



         14
        See, e.g. Farmer in the Dell Enterprises v. Farmers Mutual Insurance Company of
Delaware, Inc., 514 A.2d 1097 (Del. 1986).
         15
              Keystone Insurance Company v. Walls, 2006 WL 1149143, at *5 (Del. Super. Jan. 31,
2006).
         16
              Keystone Ins. Co., v. Walls, 2006 WL 1149143 (Del. Super. Jan. 31, 2006).

                                                   5
paintball knowing it might cause injury to whomever he hit. Thus, the issue is should

Chad have known that there was a substantial probability that his conduct could have

seriously injured Ethan’s eye. I conclude that Chad should have known that there was

a substantial probability that his conduct could have seriously injured Ethan’s eye.

Chad was using a gun that fires a paintball. Chad knew that the paintball could cause

injury. Notwithstanding that, Chad used the gun to fire a paintball at a group of kids

that included Ethan. It should have come as no surprise to Chad that he seriously

injured Ethan’s eye, which is probably the most unprotected and therefore the most

vulnerable part of a person’s body.17 I certainly agree with State Farm that this type

of intentional conduct that creates a substantial probability of injury to another person

is excluded from the homeowner’s insurance policy that it issued to Chad’s parents.

                                            Conclusion

        I have granted State Farm Fire and Casualty Company’s Motion for Summary

Judgment and denied Kathy A. Joseph and Ethan P. Joseph’s Motion for Summary

Judgment.




        17
             See In re M.H.M, 864 A.2d 1251, 1257 (Pa. Super. 2004) (“A paintball gun is capable
of inflicting serious bodily injury, such as permanent eye injury and loss of vision. Indeed, in the
game in which the paintball gun is used, the participants wear goggles to provide the necessary
protection.”).

                                                   6
     IT IS SO ORDERED.

                             Very truly yours,

                             /s/ E. Scott Bradley

                             E. Scott Bradley

ESB/sal
oc: Prothonotary
cc: Counsel




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