NOT RECOMMENDED FOR PUBLICATION File Name: 25a0390n.06
Case Nos. 24-1264/24-1265
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 05, 2025 ) KELLY L. STEPHENS, Clerk STATE FARM FIRE AND CASUALTY ) COMPANY, ) Plaintiff - Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE v. ) EASTERN DISTRICT OF MICHIGAN ) DANIELE GIUSEPPE GIANNONE (24-1264); ) HEIDI C. AULL, personal representative for the ) OPINION estate of Kimberly Ann Mollicone (24-1265), ) Defendants - Appellants. ) )
Before: THAPAR, NALBANDIAN, and RITZ, Circuit Judges.
RITZ, J., delivered the opinion of the court in which THAPAR and NALBANDIAN, JJ., concurred. NALBANDIAN, J. (pp. 9–13), delivered a separate concurring opinion.
RITZ, Circuit Judge. Kim Mollicone was tragically killed when a gunfight broke out
between her husband, Matthew Mollicone, and Daniele Giannone. Ms. Mollicone’s estate sued
Giannone in Michigan state court. These adversaries now join together to argue that State Farm
should defend and indemnify Giannone in the state-court litigation. A federal district court granted
summary judgment to State Farm, finding that Giannone’s State Farm insurance policy did not
cover his actions. We affirm.
BACKGROUND
At this stage, the parties still dispute elements of what took place. We view the facts in the
light most favorable to Ms. Mollicone’s estate and Giannone. Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
Mr. Mollicone believed his wife was having an affair with Giannone. Mr. Mollicone, with
Ms. Mollicone in the car, drove to Giannone’s house to confront him. After Mr. Mollicone walked
up the driveway to Giannone’s garage and flashed his firearm at Giannone, Giannone drew his
own gun and fired a warning shot. Mr. Mollicone began shooting at Giannone, and a gunfight
ensued.
Giannone ran out of bullets. Mr. Mollicone chased Giannone, shooting him in the foot and
knee, as Giannone ran into the house. When Giannone entered his home, Mr. Mollicone remained
outside, and the gunfight paused.
Giannone then heard a woman screaming outside, so he retrieved a second firearm from
the garage and returned to the driveway. As Ms. Mollicone was backing out of his driveway with
Mr. Mollicone in the passenger seat, Giannone shot at the car. Giannone admits he was aiming at
Mr. Mollicone, and he claims that he fired because he saw a gun poke out of the passenger window
and heard shots. During this final exchange of gunfire, Ms. Mollicone was fatally shot in the neck.
At the time of the shooting, Giannone was covered by a State Farm homeowner’s insurance
policy (“the policy”). The policy contained two relevant clauses. First, it provided for litigation
defense, indemnity for damages, and medical payment coverage when the property damage or
bodily injury at issue was “caused by an occurrence.” RE 7-2, Policy, PageID 145-46. The policy
defined “occurrence” as “an accident” that results in “bodily injury” or “property damage.” Id. at
PageID 163.
Second, the policy contained an intentional-acts exclusion to personal liability or medical
payment coverage. This provision excluded acts from coverage that were (1) “a result of a willful
and malicious act or omission of the insured;” (2) “intended by the insured;” or (3) “would have
been expected by the insured based on a reasonable person standard.” Id. at PageID 147. The
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intentional-acts exclusion explicitly provided that “exclusions [(2) and (3)] above do not apply to
bodily injury or property damage resulting from the use of reasonable force to protect persons or
property.” Id.
Mr. Mollicone (but not Giannone) faced criminal charges for his actions at Giannone’s
residence. Ms. Mollicone’s estate filed a civil lawsuit in Michigan state court against Giannone
and Mr. Mollicone, alleging negligence, assault, and battery.
Giannone asked State Farm to defend and indemnify him in the state-court proceedings.
In turn, State Farm filed this action in federal district court seeking a declaratory judgment that it
has no duty to defend or indemnify Giannone. State Farm also named Heidi Aull, the
representative of Ms. Mollicone’s estate, as a co-defendant. State Farm later moved for summary
judgment.
The district court granted the motion, finding that Giannone’s actions did not qualify as an
“accident,” so State Farm had no duty to indemnify him. Ms. Mollicone’s estate and Giannone
appealed.
ANALYSIS
We review a district court’s grant of summary judgment de novo. Big Yank Corp. v. Liberty
Mut. Fire Ins. Co., 125 F.3d 308, 312 (6th Cir. 1997). Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
I.
The parties agree that Michigan law governs the interpretation of the policy. Under
Michigan law, “unambiguous contracts, including insurance policies, are to be enforced as written
-3- Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
unless a contractual provision violates law or public policy.” Rory v. Cont’l Ins. Co., 703 N.W.2d
23, 43 (Mich. 2005).
The key issue is whether Ms. Mollicone’s shooting constituted an “occurrence.” The
policy defined an occurrence as “an accident” that results in “bodily injury” or “property damage.”
RE 7-2, Policy, at PageID 163. Ms. Mollicone’s estate and Giannone argue that while Giannone
intended to fire the gun, he did not intend to injure or aim at Ms. Mollicone, and her injuries are
therefore a covered accident.
Michigan law defines an accident, for purposes of interpreting insurance contracts, as “an
undesigned contingency, a casualty, a happening by chance, something out of the usual course of
things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Frankenmuth Mut.
Ins. Co. v. Masters, 595 N.W.2d 832, 838 (Mich. 1999) (quoting Arco Indus. Corp. v. Am.
Motorists Ins. Co., 531 N.W.2d 168, 173 (Mich. 1995)). We frame the allegedly accidental events
from the standpoint of the insured party. Id. Generally, “an accident may include an unforeseen
consequence of an intentional act.” Auto Club Grp. Ins. Co. v. Marzonie, 527 N.W.2d 760, 766
(Mich. 1994).
But unforeseen consequences are not accidental when “the intended act created a direct
risk of harm from which the consequences should reasonably have been expected by the insured.”
Allstate Ins. Co. v. McCarn, 645 N.W.2d 20, 23 (Mich. 2002). Unless the policy language specifies
otherwise, Michigan uses a subjective standard, meaning we look to whether the insured should
have reasonably expected the consequences of their act. Id. at 24. To prevail, then, Ms.
Mollicone’s estate and Giannone must show that Ms. Mollicone’s death was not a foreseeable
result of aiming and shooting a gun at the vehicle she occupied.
-4- Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
They cannot make this showing. Ms. Mollicone’s estate and Giannone point us to two
Michigan cases in which subjective expectations rendered intentional, harmful actions accidental
under an insurance policy. The cases, however, are distinguishable. First, in Metropolitan
Property & Liability Insurance Co. v. DiCicco, 443 N.W.2d 734 (Mich. 1989), one college student
brandished a knife at another during a dormitory fight. 443 N.W.2d at 738. The second student
grabbed the knife-wielding student by the throat and tried to flip him around. Id. In the confusion,
the second student felt the knife withdraw from his stomach. Id. The knife-wielding student
claimed he intended only to scare his classmate and did not intend to use the knife. Id. The
Michigan Supreme Court held the stabbing was an accidental “occurrence” because the facts were
not clear-cut enough to find an intent to stab. Id. at 742.
Second, in Allstate Insurance Co. v. McCarn, 645 N.W.2d 20 (Mich. 2002), a teenager
pointed a gun he believed to be unloaded at a friend and fatally shot him. 645 N.W.2d at 22. As
in DiCicco, the Michigan Supreme Court held the incident was an accident and therefore an
occurrence. Id. at 27. Under the subjective standard, the court reasoned, the insured teenager did
not “intend or reasonably expect” that shooting a gun he believed to be unloaded would hurt his
friend. Id. at 27-28.
DiCicco and McCarn are meaningfully different from the facts here. In neither DiCicco
nor McCarn did the insured party use a weapon with a belief that he could cause bodily harm. In
other words, the intended act itself did not occur as planned. For instance, in DiCicco, the college
student claimed he only intended to brandish a knife, not stab someone. 443 N.W.2d at 738. And
in McCarn, the teenager only meant to pull the trigger of an unloaded gun, not shoot it. 645
N.W.2d at 25. By contrast, Giannone aimed his loaded gun at Mr. Mollicone and fired, expecting
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a bullet to leave the chamber. The act took place as intended, even if Giannone desired a different
result.
The actions here are much closer to those in Masters, where a store owner purposefully set
a fire to commit insurance fraud, but the fire spread much more widely than he expected. 595
N.W.2d at 835. There, the court declined to find an “occurrence,” reasoning that the store owner
should have foreseen the damage because “of the direct risk of harm intentionally created by [his]
actions.” Id. at 839 (quoting Marzonie, 527 N.W.2d at 771 (Griffin, J., concurring)). Similarly,
in Nabozny v. Burkhardt, 606 N.W.2d 639, 644 (Mich. 2000), the court held that a broken ankle,
though more harmful than intended, was a foreseeable result of tripping another during a fight. In
both Masters and Nabozny, the acts—starting a fire and tripping—took place as intended. But the
ultimate harms—widespread flames and a broken ankle—were beyond what the perpetrator
expected.
While DiCicco and McCarn held that harm was accidental based on the subjective beliefs
of the insured, Masters and Nabozny declined to find coverage because greater-than-expected
damages were foreseeable. The latter cases are more analogous to this case. Giannone
subjectively intended to cause harm, just not the harm that ultimately came about. Accordingly,
Giannone’s conduct was not accidental and not a covered occurrence.
II.
Ms. Mollicone’s estate and Giannone next argue that the analysis changes if Giannone was
plausibly acting in self-defense. Along these lines, Giannone claims that he saw a gun poke out
of the passenger window and, out of concern for his and his family’s safety, fired back. At this
stage, the factual record is not developed enough to determine whether Giannone acted in self-
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defense. But we do not need to reach this question, because such a determination would not affect
State Farm’s liability.
The Michigan Supreme Court has not directly decided whether actions taken in
self-defense are “occurrences” under an insurance policy. But, in addressing the closely related
issue of whether the intentional-acts exclusion of an insurance policy applies, the Court has held
that actions taken in self-defense are “intentional.”1 Auto-Owners Ins. Co. v. Harrington, 565
N.W.2d 839, 842-43 (Mich. 1997). In Harrington, an insured man intentionally shot an intruder
who he had reason to believe was armed and intended harm. Id. at 840. The court held that the
insured’s actions were not covered under his insurance policy, because actions taken in self-
defense were different from “those that are purely accidental” and excluded as intentional acts. Id.
at 842. Harrington’s reasoning implies that, under Michigan law, intentional actions taken in self-
defense are not accidental. They likely thus do not constitute an “occurrence.”
Indeed, Michigan appellate courts have held in multiple instances that actions taken in self-
defense are not occurrences. For example, in Auto Club Group Insurance Co. v. Burchell, 642
N.W.2d 406 (Mich. Ct. App. 2001), the Michigan Court of Appeals wrote that an insured may not
“have it both ways.” 642 N.W.2d at 415. That is, the insured’s actions were either unforeseeable
accidents or intentional actions taken in self-defense; they cannot be both. Id. The court reasoned
that, although an insurance company does not have to indemnify the insured for actions taken in
self-defense, the insured would also not be liable for damages. Id. at 416. Further, “[w]here neither
outcome led to the duty of the insurer to pay on behalf of the insured,” the court “refused to impose
on the insurer a duty to defend.” Id. (quoting Century Mut. Ins. Co. v. Paddock, 425 N.W.2d 214,
1 To be sure, Giannone’s policy had an explicit exception to the exclusion for actions taken in self-defense, which was not present in Harrington. We cite Harrington only to illustrate how the Michigan Supreme Court would analyze whether an action taken in self-defense is an “accident” under the definition of “occurrence.”
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217 (Mich. Ct. App. 1988)); see also Smorch v. Auto Club Grp. Ins. Co., 445 N.W.2d 192, 193
(Mich. Ct. App. 1989) (“In a case where an insured is sued for tortious conduct and argues self-
defense, there is no duty to defend.”).
The upshot is that Ms. Mollicone’s estate and Giannone are wrong to suggest it matters if
Giannone was acting in self-defense. Michigan’s lower courts have unambiguously held that self-
defense claims are not covered occurrences and have declined to involve insurance companies in
resulting tort proceedings. Accordingly, even if Giannone were validly acting in self-defense such
that the events fall into the exception to his intentional-acts exclusion, his actions were not
accidental. So, the occurrence provision still precludes coverage.
CONCLUSION
In sum, Ms. Mollicone’s death was a direct result of Giannone’s foreseeable actions.
Therefore, Ms. Mollicone’s estate and Giannone cannot show that Giannone’s actions fall under
the policy’s definition of an “occurrence.” We affirm.
-8- Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
NALBANDIAN, Circuit Judge, concurring. I join the majority opinion in full. But I
write separately to address the interplay between the personal liability coverage provision, the
intended-acts exclusion, and the self-defense exception.
Since insurance is not the most intuitive area of law, I start with some background. The
insurance contract dictates an insurance policy’s coverage. And insurance contracts are generally
made up of three types of interrelated provisions. First, the coverage provisions that set out the
general bounds of the insurer’s liability by stating what type of incidents and casualties the policy
covers. Second, the exclusions that preclude certain categories of incidents from coverage. And
third, the exceptions that allow coverage for circumstances that might otherwise fall within the
plain language of an exclusion.
In this case, the defendants’ best argument is that the intended-acts exclusion and the self-
defense exception in the Giannone policy must both mean something. Under Michigan law, the
“primary goal” of interpreting an insurance contract “is to honor the intent of the parties.” Klapp
v. United Ins. Grp. Agency, Inc., 663 N.W.2d 447, 456 (Mich. 2009) (quoting Rasheed v. Chrysler
Corp., 517 N.W.2d 19, 29 n.28 (Mich. 1994)). And the best evidence of the parties’ intent is the
agreed-upon terms of the contract. Id. at 457. So “[t]he language of insurance contracts should
be read as a whole and must be construed to give effect to every word, clause, and phrase.”
McGrath v. Allstate Ins. Co., 802 N.W.2d 619, 621 (Mich. Ct. App. 2010); see also Auto-Owners
Ins. Co. v. Churchman, 489 N.W.2d 431, 434 (Mich. 1992). And the insurance contract’s coverage
provisions, exclusions, and exceptions cannot be walled-off from one another. They are
constituent parts of the agreement between insurer and insured. Only through reading the
agreement as a whole may a court honor the contracting parties’ intent.
-9- Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
If an act of self-defense can never give rise to a covered “occurrence,” it seems odd to
include an intended-acts exclusion. Stranger still is the inclusion of an exception clarifying that
this intended-acts exclusion would “not apply to bodily injury or property damage resulting from
the use of reasonable force to protect persons or property.” R.1-2, Ins. Pol’y, p.25, PageID 51.
This language would be pointless if acts of self-defense were categorically excluded by the
definition of “occurrence” in the coverage provision. And so concluding that self-defense can
never constitute an occurrence would conflict with the rule that “courts must . . . give effect to
every word, phrase, and clause in a contract and avoid an interpretation that would render any part
of the contract surplusage or nugatory.” Klapp, 663 N.W. at 453.
This all invites the question of how the word “occurrence” should be understood when the
plain language shows that the parties meant for the policy to cover at least some intentional actions
taken in self-defense. As far as I can tell, the Michigan courts have not yet grappled with this
problem. Cases such as Auto Club Group Insurance Co. v. Burchell might come close. 642
N.W.2d 406 (Mich. Ct. App. 2001). But the policy there didn’t have a self-defense exception and
so only answered the first-order problem of whether actions taken in self-defense were intentional
under an intended-acts exclusion. The Michigan Court of Appeals held that they were, noting that
“no exception to the exclusion should be made for self-defense where the plain language provides
no exception.” Id. at 487; see also Auto-Owners Ins. Co. v. Harrington, 565 N.W.2d 839, 842
(Mich. 1997) (refusing “to create a self-defense exception to the intentional-act exclusion” where
“the plain wording of the exclusion” provided none). But here the plain language of Giannone’s
policy contains the exact exception contemplated by that case. So applying Burchell without
considering the impact of this self-defense exception would conflict with the reasoning underlying
that decision.
- 10 - Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
Still, I agree with the majority opinion that we should affirm the district court. On these
facts, the claimed act of self-defense doesn’t constitute an “occurrence” under Michigan law. But
our holding should not be read as stating that intentional actions taken in self-defense can never
give rise to an “occurrence” that would be covered under similar policy language.
After all, the Michigan courts have made clear that an accident can result from an insured’s
intentional action. See Allstate Ins. Co. v. McCarn, 645 N.W.2d 20, 23 (Mich. 2002). The problem
arises only when the insured intended “both the act and the consequences” or when “the intended
act created a direct risk of harm from which the consequences should reasonably have been
expected by the insured.” Id. And as ably explained by the majority opinion, the intended act of
shooting at an occupied car—even in self-defense—creates a direct risk of harm to the car’s
occupants. Under these circumstances, the consequences of this intended act would not be an
accident and so could not be an occurrence under the policy’s coverage provision. And Michigan
law dictates that we affirm the district court’s declaration that State Farm had no duty to indemnify
or defend in this case.
Yet one could see a situation in which an intentional act taken in self-defense could give
rise to an occurrence under this policy language. For instance, a man acting reasonably in self-
defense fires a warning shot at an aggressor who is threatening his life. But the bullet strikes a
third person across the street that the insured didn’t see and had no reason to suspect was in the
line of fire. This would likely be covered. Why? Because even though the act of firing the gun
was an intentional act, hitting the third person was not the shooter’s intended result. Nor was it a
- 11 - Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
reasonably foreseeable result of the intended act.1 After all, “the question is not whether a
reasonable person would have expected the consequences, but whether the insured reasonably
should have expected the consequences” based on his understanding of the circumstances.2
McCarn, 645 N.W. at 23.
So that unintended bodily injury would be an accident, making it a covered “occurrence”
under the policy. The next question would be whether the intended-acts exclusion from the policy
would preclude coverage. And while the act of shooting the gun would be an intentional act, the
self-defense exception to the intentional act exclusion would apply so long as the bodily injury
resulted “from the use of reasonable force to protect persons or property.” R.1-2, Ins. Pol’y, p.25,
PageID 51.
This hypothetical shows that the self-defense exception is not mere surplusage (though it’s
hard to imagine it applying often). Under this policy language, an insured could run the gauntlet
and be covered for actions taken in self-defense. So even though this language doesn’t change the
outcome in Giannone’s case, it would be a mistake to ignore it completely. After all, not all
1 This is distinguishable from Giannone’s shooting of Kimberly Mollicone. While Giannone claims that he didn’t intend to hit her, he did intend to fire bullets at an occupied vehicle. From his perspective, it was reasonably foreseeable that shooting at the vehicle might injure or kill its other occupants—even if his primary motivation for shooting was to return fire at Mr. Mollicone who was still shooting out of his passenger-side window.
2 Of course, there will be some debate at the margins about what is reasonably foreseeable for each insured. Some might argue that anytime someone fires a gun it is reasonably foreseeable that the shot might miss and hit something besides the intended target. But this would amount to something close to strict liability. And the Michigan Supreme Court has made clear that just “because, in retrospect, an insurer is able to identify” a causal connection between an objectively risky act and the consequence doesn’t make it not an accident. Allstate Ins. Co. v. McCarn, 645 N.W.2d 20, 26 (Mich. 2002). For example, a traffic accident is still an accident even if it “might be traceable to ‘objectively unreasonable’ conduct by the insured, i.e. driving too fast on a highway.” Id. And so if the insured has the reasonable, subjective belief that shooting the gun will not create a direct risk of harm to others, the mere fact that his intentional act ultimately caused an injury doesn’t prevent that result from being an accident. - 12 - Nos. 24-1264/1265, State Farm Fire & Casualty Co. v. Giannone, et al.
insurance contracts include a self-defense exception. In fact, such an exception seems rare. And
so it’s reasonable to assume that State Farm included this language in the policy they sold to
Giannone because they thought it gave them a competitive advantage, helping their policy stand
out in the crowded field of homeowners insurance. Including an exception to the intentional-acts
exclusion goes against the insurer’s financial interest since it broadens the scope of potential
liability under the policy. Thus, the only reason a rational insurer would offer a self-defense
exception is to help it sell more policies.
It would be odd to allow an insurer to reap the competitive benefits of using this policy
language if the company could always retreat behind the “occurrence” argument when the bill
comes due. And so I believe that an action taken in self-defense can result in an accident—and
thus a covered occurrence—even if the shooting here did not.
* * *
Because Kimberly Mollicone’s death was the direct and foreseeable result of Giannone’s
actions, there is no coverage under the policy. But our holding doesn’t foreclose the possibility
that other actions taken in self-defense would result in a covered occurrence under this policy
language.
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