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That wicked cocaine: Driver flees police and crashes

That wicked cocaine: Driver flees police and crashes

October 05
13:46 2016

That wicked cocaine: Driver flees police and crashes

At around 5:00 p.m. on March 31, 2010, Exavier Gardner was driving a 1996 white Mercury Grand Marquis borrowed with permission from its owner,  Brittany Husky. Gardner was the sole occupant of the vehicle, had recently consumed several intoxicants, was in possession of cocaine, and was navigating rush-hour traffic when he observed a police vehicle behind him.

Two detectives of the Jefferson Parish Sheriff’s Office were on patrol when they were alerted to a possible carjacking of a white Mercury Grand Marquis. They observed Gardner in the vehicle fitting this description and began following him. During the next several minutes, the police observed Gardner commit several traffic violations. The police activated their lights and sirens, but Gardner refused to stop.

Gardner admitted that he wanted to avoid capture because he was in possession of cocaine. He accelerated and changed lanes, trying to evade the police through congested traffic, until he came to an intersection where both lanes of traffic were backed up at the red light. Still determined to escape, Gardner positioned his vehicle on the line dividing the two lanes and forced his way through the traffic, colliding with at least six vehicles and forcing others off the road. His damaged vehicle finally came to rest on the side of the road, where Gardner fled on foot and was apprehended nearby. Gardner was cited with several traffic violations and was later charged with battery of a police officer and possession of cocaine, to which he ultimately pled guilty.

As a result of this incident, individuals who had been struck by Gardner’s vehicle filed claims for property damage and/or bodily injury against Safeway, the liability insurer for the vehicle owned by Brittany Husky and operated by Gardner. Safeway denied coverage on the basis that the policy excluded coverage for damages caused by intentional and criminal acts. On July 26, 2010, Safeway filed a petition seeking a declaratory judgment to this effect.

Progressive Security Insurance Company, the insurer of one of the victims, filed a reconventional demand against Safeway asserting a subrogation claim and seeking reimbursement for payment made to its insured as a result of the damages caused by Gardner.

On August 6, 2015, the court denied Safeway’s request for declaratory relief and granted relief on Progressive’s reconventional demand, holding Safeway liable to Progressive. The court explained that Safeway had not met its burden of proving that coverage for the damage caused by the accident was excluded under the policy. Safeway sought and was granted a suspensive appeal from this ruling.

On appeal, the court pointed to the Safeway policy’s exclusions of coverage for “bodily injury or property damage caused intentionally by or at the direction of the insured” and for “any automobile being operated or used in the commission of a crime, other than a traffic violation.”

The court noted that although coverage exclusions generally do not comport with the policy of granting protection for injured persons, the exclusions in the Safeway policy served a separate public policy interest of prohibiting persons from insuring themselves against their own intentional or criminal acts.

The court next considered whether Gardner’s conduct that caused the damages was a “crime” for purposes of the exclusion. The lower court found that Safeway did not bear the burden of proving this; the appellate court disagreed, pointing out that Gardner’s flight from the police clearly constituted a crime. The court reversed the judgment of the lower court.

Safeway Insurance Company vs. Gardner-Court of Appeals of Louisiana Fifth Circuit-April 27, 2016-No. 15–CA–696.


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Leonard Clay

Leonard Clay

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