Detectives Whalend Shepherd and Richard Dykes 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 Mr. Gardner in the vehicle fitting this description and began following him.

During the next several minutes, the police said, they observed Mr. Gardner commit several traffic violations, prompting them “to go ahead and stop the vehicle related to [these] violations … and to partially eliminate the vehicle as being the carjacking vehicle.”

The police activated their lights and sirens, but Mr. Gardner refused to stop.

Mr. Gardner later 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, Mr. 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 Mr. Gardner fled on foot and was apprehended nearby.

Mr. Gardner was cited with several traffic violations and was later charged with, to which he ultimately pleaded guilty, battery of a police officer and possession of cocaine.

Individuals who had been struck by Mr. Gardner filed claims for property damage or bodily injuries against Safeway Insurance Company of Louisiana, the liability insurer for the vehicle owned by Ms. Husky and operated by Mr. Gardner.

Safeway denied coverage on the basis that the policy excluded coverage for damages caused by intentional and criminal acts. Thereafter, Safeway filed a petition seeking a declaratory judgment to this effect.

Progressive Security Insurance Company, an insurer of one of the victims, sought reimbursement for payment made to its insured as a result of the damages caused by Mr. Gardner.

The trial court ruled that Safeway was liable to Progressive, finding that Safeway had not met its burden of proving that coverage for the damage caused by the accident was excluded under the policy.

Safeway appealed.

The Safeway Policy

The Safeway policy provided that:

insured

included the named insured and:

any other person using [the owned] automobile to whom the named insured has given the expressed or implied permission, provided the use is within the scope of such permission

The policy excluded coverage for:

bodily injury or property damage caused intentionally by or at the direction of the insured

and for:

any automobile while being operated or used in the commission of a crime, other than a traffic violation

La. R.S. 14:108.1, captioned:

Flight from an officer; aggravated flight from an officer

, provides:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense.

* * *

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense.

D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts: (1) Leaves the roadway or forces another vehicle to leave the roadway[;] (2) Collides with another vehicle or watercraft.

The Appellate Court's Decision

The appellate court reversed.

In its decision, the appellate court explained that the meaning of “crime” was conduct defined as “criminal” under Louisiana law. It then found that Mr. Gardner's conduct that caused the damages was a “crime” for purposes of the crime exclusion in the Safeway policy.

In the appellate court's opinion, “the damages were caused by Mr. Gardner's flight from the police, not traffic violations.” It noted that Mr. Gardner had admitted that he had seen blue and red lights but that he had not stopped because he “was trying to get away” and “was trying to get rid of what [he] had on [him], drugs.” The appellate court found that Mr. Gardner had “attempted to make his escape by forcing his way through congested rush-hour traffic, colliding with at least six vehicles and forcing others off the road,” and stated that it had “little difficulty concluding that this was a crime.”

The appellate court concluded that because the damages had been caused by Mr. Gardner's operation of an automobile in the commission of a crime, coverage under Safeway's policy was excluded.

The case is Safeway Ins. Co. of Louisiana v. Gardner, No. 15–CA–696 (La. Ct.App. April 27, 2016). Attorneys involved include: Tracy L. Oakley, Lafayette, Louisiana, for Appellant, Safeway Ins. Co. of Louisiana; Anthony J. Milazzo, Jr., Charles V. Giordano, Metairie, Louisiana, for Appellee, Progressive Security Ins. Co.