Case considers exclusions in auto insurance policy

AUSTIN — The Texas Supreme Court must decide if an insurance
company should pay in the case of a boy injured by a driver who was
speeding away from police.

Richard
Gibbons was evading San Marcos police in 1999 when his pickup truck
smashed into Greg and Maribel Tanner's car at an intersection. The
wreck left 7-year-old Roney Tanner in a coma for a week, hospitalized
for a month, and in physical therapy for five years.

The
Tanners hoped Gibbons' $300,000 policy through Nationwide Insurance
would pay for their son's medical bills. But the company refused to pay
the Tanners, saying Gibbons violated his insurance contract when he led
police on a chase that was foreseeable to end in a wreck. Gibbons had
been speeding at about 100 mph, crossed into oncoming traffic, raced
through stop signs and fishtailed around corners during the chase, the
Austin American-Statesman reported Friday.

So far, two courts have sided with Columbus, Ohio-based Nationwide.

At
issue is how to interpret Gibbons' insurance policy, which included a
standard intentional acts exclusion. The clause voids coverage if the
driver deliberately caused an accident.

Gibbons bought his
policy in Ohio, a state that has a wider definition of "intentional"
than Texas. Ohio's exclusion voids coverage for "willful acts" that the
driver "ought to know" will result in an accident.

Nationwide
contends Gibbons should have known disregarding traffic signals and
signs during a police chase would eventually lead to a serious accident.

"You
had someone going 80, 90, 100 miles per hour through residential areas,
business areas, commercial areas," Nationwide attorney Chris Heinemeyer
told the court during oral arguments in October.

The
Tanners' lawyer, Don Cotton, argued that the accident was not
inevitable. Gibbons' pickup hit the Tanner's car on a lightly traveled
road surrounded by farmland. Police reported that Gibbons hit his
vehicle's brakes in an attempt to avoid hitting the Tanners.

"It
is nonsensical to say that somebody intentionally caused harm when the
only evidence in the record is that he was trying to avoid causing that
harm," Cotton told the nine justices. "The test is not reckless (acts).
The test is 'intentional.' "

The state Supreme Court was expected to issue a decision next year.

After the wreck, Gibbons was charged with using his truck as as deadly weapon but disappeared after posting bail.

Hays
County District Attorney Sherri Tibbe said the charges against Gibbons
were dropped after prosecutors lost touch with the Tanners. Because of
the pending state Supreme Court case, Tibbe has directed her office to
take the case to a grand jury to reindict Gibbons.