Insurance Companys Attempt to Avoid Coverage for Mother of Murderer Fails By Levine & Slavit PLLC on July 13, 2010

In August of 2006, Evan Marshall, who lived with his mother in a gated community in Glen Cove, New York, dismembered and decapitated his neighbor, Denice Fox, a retired schoolteacher who lived across the street. Marshall took her remains to his mothers home and dismembered them, stashing the body parts, along with two knives, in basement trash cans. He was arrested the next day as he pulled into his mothers driveway. Mrs. Foxs head was later found in the trunk of that vehicle. Marshall pleaded guilty to murder, assault and other charges, saying he was in search of money for drugs when he confronted the woman and repeatedly stabbed her. Foxs estate commenced a civil action against Evan Marshall and his mother, Jacqueline. Evan Marshall did not live with his mother on the date he murdered Denise Fox.He was out on a weekend pass. Jacqueline Marshall denies even knowing that her son was out on a weekend pass and maintains that she was not home on the date in question. All of the allegations against Jacqueline Marshall are based upon negligence. Marshalls mother had primary insurance with State Farm, and excess with Metropolitan Insurance Company. Metropolitan commenced a declaratory action seeking a declaration that it has no obligation to defend and/or indemnify Jacqueline Marshall in the civil action. Metropolitans motion for an order granting summary judgment in its favor was denied by Nassau County Supreme Court Justice Randy Sue Marber in Metropolitan Property and Cas. Ins. Co. v. Marshall, Slip Copy, 2010 WL 2651638 (Table) N.Y.Sup., 2010. (July 6, 2010). The primary issue in the decision was whether Marshall had given timely notice to Metropolitan of the claim. The Court held that notice was timely. The Court held that Jacqueline Marshall had clearly established that there is no evidence to suggest that she should reasonably believe that the claims advanced against her in the Fox action will likely exhaust her primary insurance coverage and trigger her excess coverage. Both her attorney and her primary insurer have steadfastly advised her that she is not liable for Fox's claims, and Metropolitan assessed her liability at zero percent. Before reaching that issue, the Court had to resolve the more interesting question of whether the murder, under the subject policy, should be deemed to be an accident as defined in the policy. The Court held, correctly I believe, that the insured, Jacqueline Marshall, obviously did not expect and could not foresee her son murdering Denise Fox, and therefore that act was in fact an accident from her point of view. The Court did not reach the merits of Metropolitans attempt to rely upon the Intentional Act exclusion in the policy inasmuch as Metropolitan did not cite to that exclusion in its Disclaimer.

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