He didn't mean to do it, again: the criminal-acts exclusion of a homeowners policy can be found to have very different interpretations.

In my September column, I wrote about a court finding that an insured who intentionally punched another man in the head and caused serious injury is not entitled to insurance coverage (State Farm Fire and Casualty Insurance Company vs. Neyhart). What about an insured who points a shotgun at another person's head, pulls the trigger, and kills him? If an injury-causing punch is not covered, certainly a fatal shot is not covered.

The answer, however, is more complicated. In Allstate Insurance Co. vs. McCarn, the Supreme Court of Michigan considered a shooting involving a 16-year-old boy. The boy lived with his grandparents. After smoking marijuana with a friend, also 16, he took a shotgun that had been under his grandfather's bed. He supposedly intended to scare his friend into sharing some crackers. He also supposedly believed that the gun was not loaded. But, the gun was loaded and the teen's pulling of the trigger killed the friend. The shooting victim's estate sued the young shooter and his grandparents. The grandparents sought coverage under their homeowners policy.

This tragic incident has generated a great deal of judicial attention. In 2002, the Michigan Supreme Court found that the incident was an "occurrence" within the meaning of the policy because the shooter believed that the gun was not loaded. This past summer, the case was back before the Michigan Supreme Court. The most recent decision considered whether the criminal-acts exclusion of the policy bars coverage. The Michigan Supreme Court concluded that the incident was covered.

In reviewing the McCarn decision, insurers can draw some comfort from the fact that this decision lacks the support needed to be a powerful precedent. One judge of the Supreme Court supported the result only; he did not endorse the reasoning. Two other judges wrote dissenting opinions, strongly and effectively criticizing the decision to permit coverage for the incident.

I disagree with the Michigan Supreme Court's decision, but it merits discussion because it highlights several important principles.

Insurance coverage law is a state-by-state analysis. The cases addressed in this column and in my September column illustrate the extent to which different jurisdictions can reach different findings. In State Farm vs. Neyhart, the court found that an injurious punch was a criminal act that is not covered. Yet in McCarn, a fatal shot was found not to fall within a criminal act exclusion. Isn't shooting worse than punching? Certainly. But, states are free to reach very different interpretations of insurance policies and in fact, different states often reach very different decisions.

The Michigan Supreme Court decision also illustrates how far some courts will strain to find coverage. As one of the two dissenting judges wrote, the decision to provide coverage stems from "an apparent policy-driven view that even the most fanciful beliefs merit insurance coverage."

For readers interested in the hard core law, the decision illustrates different approaches to evaluating whether beliefs are reasonable. The policy provided that "we do not cover any bodily injury ... intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions...." What does "reasonably" mean?

Lawyers are taught that conduct is generally evaluated under one of two standards: objective (that is, the belief of a reasonable person) or subjective (that is, the actual belief of the involved person). All of the judges agreed that an objective standard applied.

The majority decision finding coverage concluded that "reasonable" was evaluated based upon what a reasonable person would believe based upon the facts as believed by the shooter. Since the shooter believed that the gun was not loaded, it was reasonable to believe that the gun would not cause injury.

The dissenting judges argued that if you determine whether conduct is reasonable through the eyes of what the insured claimed to believe, then almost anything is reasonable: "even the most dangerous intentional or criminal behavior" is then covered "so long as an insured claims to believe that something innocuous would result from his dangerous conduct."

The dissenters argued that the majority's approach was more subjective than objective. One dissenting judge (Justice Weaver) said it simply: the intentional and criminal acts exclusion "plainly and unambiguously excludes coverage under these facts since bodily injury can reasonably be expected to result when, without first determining that a gun is unloaded, a person points the gun at another person and pulls the trigger." Seems reasonable to me. I see no coverage.

Alan S. Rutkin, a Best's Review columnist, is a partner in Rivkin Radler LLP, Uniondale. N.Y. He can be reached at [e-mail].