             Case: 12-10734    Date Filed: 12/20/2012   Page: 1 of 7

                                                           [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                                _____________

                                 No. 12-10734
                                _____________

                     D. C. Docket No. 2:10-cv-00191-WCO

ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY,

                                                        Plaintiff-Counter
                                                        Defendant-Appellee,

                                     versus

JEFF HASLUP,
JANICE HASLUP,
Surviving Parents of Stephanie Diane Hart,

                                                        Defendants-Counter-
                                                        Claimants-Appellants,

JONATHAN HART,

                                                        Defendant.

                                ______________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                               ______________

                              (December 20, 2012)
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Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

      This is a declaratory action filed by Appellee Allstate Property and Casualty

Insurance Company (“Allstate”) seeking a declaration with respect to its

obligations to defend and provide coverage under a homeowner’s policy (“the

Policy”) naming Jonathan Hart (“Jonathan”) and Stephanie Hart (“Stephanie”) as

insureds. Appellants Jeff and Janice Haslup (“the Haslups”) appeal the district

court’s order granting summary judgment in favor of Allstate. We affirm, but on

different grounds.

                                                 I.

      On July 26, 2008, Jonathan shot and killed his estranged wife Stephanie.

Thereafter, Jonathan was convicted in Georgia Superior Court of felony murder,

aggravated assault, and possession of a firearm during the commission of a felony.

Jonathan was sentenced to life in prison. Stephanie’s parents, the Haslups,

subsequently filed a wrongful death action against Jonathan in Georgia Superior

Court. Prior to the resolution of the wrongful death action, Allstate filed the

current declaratory action in the Northern District of Georgia, naming the Haslups

and Jonathan as parties. 1


      1
          The wrongful death action is still pending.
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       Jonathan testified at his criminal trial that he accidentally shot and killed

Stephanie, when, at his invitation, she came to his residence to sign divorce papers.

Allstate contends that the Policy’s intentional acts exclusion applies and relieves it

from providing coverage. The Haslups argue that Jonathan killed Stephanie

accidentally and that the intentional acts exclusion does not apply. Both sides seek

a declaration confirming their respective positions. The Policy’s intentional acts

exclusion provides:

       We do not cover any bodily injury or property damage intended by, or
       which may reasonably be expected to result from the intentional act or
       acts or omissions of, any insured person, which are crimes pursuant to
       the Georgia Criminal Code.

The district court did not reach the issue of whether the intentional acts exclusion

applies, however, because it found that the Haslups were not parties to the Policy

and therefore lacked standing to contest coverage thereunder. 2

                                                II.



       2
          Applying Georgia law, the district court concluded that the Haslups did not have
standing in this declaratory action. We disagree. This case is controlled by St. Paul & Marine
Insurance Co. v. Johnson, 216 Ga. 437, 117 S.E.2d 459 (1960). In St. Paul, the Georgia
Supreme Court found that accident victims who filed a lawsuit against an insured would not be
bound by a separate declaratory judgment action brought to determine the insurance company’s
liability when the accident victims were not parties to the declaratory action. Thus, the St. Paul
court allowed the accident victims to be parties to the declaratory action to ensure a uniform
finding of the insurance company’s liability in the declaratory action and the underlying lawsuit.
Like the accident victims in St. Paul, the Haslups would not be bound by Allstate’s declaratory
judgment action brought against the insured—Jonathan—alone, without being parties thereto.
Moreover, Allstate concedes on appeal that the Haslups have standing.
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       We review de novo a district court’s grant of summary judgment. Fanin v.

U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). “[W]e may

affirm the district court’s judgment on any grounds supported in the record.”

Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004).

                                         III.

      We are persuaded that Jonathan’s intentional acts exclude him from

coverage. As noted above, the exclusion provides in relevant part: “We do not

cover any bodily injury . . . intended by, or which may reasonably be expected to

result from the intentional act or acts [of the insured.]” The Georgia Court of

Appeals has held that while the “intended by” language of this exclusion requires

subjective intent, injury “which may reasonably be expected to result” is not

measured by the subjective intent of the insured. Tripp v. Allstate Ins. Co., 262 Ga.

App. 93, 96, 584 S.E.2d 692, 695 (2003). Rather, an objective test—what a

reasonable person would expect—is used. Id. The following facts persuade us that

Jonathan’s actions triggered the intentional acts exclusion at issue in this case. In

other words, we are persuaded that “a reasonable person in [Jonathan’s]

circumstances may expect bodily injury to result” from his intentional actions. Id.

      On the date of Stephanie’s shooting, Jonathan left work early, stopped at a

gas station, and bought a 12-pack of beer. He then stopped at his mother’s house

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and picked up a 40-caliber carbine rifle and bullets. When Jonathan arrived at his

house, he cleaned and reloaded the rifle and cocked its firing hammer. He placed

the rifle in his living room on the arm of the couch. Thereafter, he called

Stephanie and asked her to come by and sign divorce papers. During Stephanie’s

visit, Jonathan became emotional and started to cry. At some point, Stephanie

walked off down a narrow hallway toward the kitchen to get a beer. Jonathan

picked up his rifle and followed very closely behind Stephanie. He held the

loaded, cocked rifle, which was pointed downward in one hand, and he covered his

eyes with the other hand because he was crying.

      Jonathan followed Stephanie so closely that, when she stopped, the rifle hit

her. Jonathan testified: “I had the gun . . . in my hand, when I was close enough to

her, which it struck—I don’t know if it hit her shoulder or neck or in the head or

where . . . .” [R. 17-6 Tr. of Jonathan Hart’s Criminal Trial Test. at 1749.] He

continued: “When I looked up to see what just happened and where the gun was, I

jerked the gun back and said, ‘oh, shit,’ to get it out of her face because it was

pointed directly at her.” [Id. at 1750.] Describing the same moment when the rifle

bumped her, he testified:

      She was looking around to see what was happening, and my response,
      I looked at her about the same time she was coming around looking at
      me and I said, ‘oh shit,’ because I realized what just happened and

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        where the gun was. And when I went to jerk it back and get it away
        from her, it went off.

[Id. at 1748.]

        The facts discussed above are very similar to the facts of Tripp. In both,

insured homeowners were sued for coverage under their respective insurance

policies for a shooting that the insured claimed was accidental. Moreover, the

intentional acts exclusion at issue in both is identical. 3 See Tripp, 262 Ga. App. at

95, 584 S.E.2d at 694. In Tripp, as in the instant case, the insured-killer claimed

that the gun discharged accidentally and that he lacked subjective intent to harm

anyone. Id at 94, 584 S.E.2d at 694. In fact, the Tripp insured-killer claimed that

he did not even know the gun was loaded.4 Id. Despite the claimed lack of

subjective intent on the part of the insured-killer, the Georgia Court of Appeals

held that the trial court properly granted summary judgment and found that the

        3
         In construing this exclusion, the Tripp court noted that the “exclusion relieves the
insurer of liability if (1) the insured acted either intentionally or criminally, and (2) the resulting
injuries were either intended or may reasonably be expected to result from the insured’s
intentional or criminal acts.” 262 Ga. App. at 96, 584 S.E.2d at 695.
        4
          It is undisputed that Jonathan knew the rifle was loaded. Jonathan testified, however,
that the “gun simply went off” despite him putting the safety on. [R. 17-6 Tr. of Jonathan Hart’s
Criminal Trial Test. at 1783.] At the summary judgment stage, the court must draw reasonable
inferences in favor of the non-movant. “A court need not permit a case to go to a jury, however,
when the inferences that are drawn from the evidence, and upon which the non-movant relies,
are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
Because there is no evidence that the firearm was defective, no reasonable factfinder would find
that the firearm’s safety was on when Jonathan shot and killed Stephanie. See Riley v. City of
Montgomery, Ala., 104 F.3d 1247, 1251 (11th Cir. 1997) (noting that the “[p]laintiff’s theory of
the incident is inherently incredible and could not support reasonable inferences sufficient to
create an issue of fact”).
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exclusion applied because “a reasonable person in [the insured-killer’s]

circumstances may expect bodily injury to result from his [intentional and]

criminal actions.” Id. at 96, 584 S.E.2d at 695. Just like in Tripp, here the “bodily

injuries and resulting death were the natural, probable and foreseeable

consequences of [the insured-killer’s] actions as a matter of law.” Id.

      We conclude from the record that the evidence establishes Jonathan’s

intentional acts and their inevitable consequences caused Stephanie’s death.

Because Jonathan walked very closely behind Stephanie down a narrow hallway

with a cocked and loaded rifle without being careful where he was walking or

where the rifle was pointing, we are persuaded that Jonathan’s intentional actions

were such that a “reasonable person would expect that someone may get hurt in

such perilous circumstances.” Tripp, 262 Ga. App. at 96, 584 S.E.2d at 695. Thus,

we conclude that the intentional acts exclusion applies, and Allstate is relieved of

liability to pay under the Policy.

                                            IV.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of Allstate.

AFFIRMED.




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