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June 28, 1974

WALBURN ET AL., Defendants

Gasch, District Judge.

The opinion of the court was delivered by: GASCH

GASCH, District Judge:

 This matter is before the Court on plaintiff's motion for summary judgment and defendants' opposition thereto. Plaintiff, The Travelers Indemnity Company (hereinafter referred to as Travelers), seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 et seq. that it is not obligated to defend certain claims or indemnify against any liability arising out of those claims pending against Mr. James R. Walburn [Walburn].


 The tragic events that gave rise to this litigation occurred in the Fall of 1971. On the night of September 17, 1971, Walburn picked up his shotgun and walked outside his home at 3606 Porter Street, N.W., in the District of Columbia. What followed was the subject of a criminal trial in which Walburn was convicted by jury verdict of second degree murder for the killing of John T. Nalls, II ["Corky" Nalls].

 The transcript of that trial, *fn1" before Judge Aubrey Robinson of this Court, reveals the following facts. Walburn was at home that night when a visitor observed that someone in a white shirt was looking into the yard of the Walburn home. *fn2" After checking and finding no one, Mr. Walburn went to the garage and picked up his shotgun. *fn3" Again, finding no one present, Walburn came back into the house but then stepped out onto his front porch with the shotgun loosely held in his hand. *fn4" At this time Mr. Walburn saw "Corky" Nalls. There was testimony that Nalls and Walburn were not on friendly terms due to alleged sexual improprieties taken by Nalls with Walburn's daughter. What occurred after Mr. Walburn, still holding the shotgun, saw Nalls near his house is described in Walburn's own words as follows:

"Well, as soon as I started to go towards the edge of the porch and stood up I saw this figure out of the corner of my eye, coming up from behind the stucco parapet wall of my neighbor's adjoining house on the east. He was crouched over and came up to my steps where he came into view. He looked up and he hollered "Yeah, it's me, Walburn. I am going to get you. I am going to kill you you god damned son-of-a-bitch," and as soon as I heard this maniac, that tried to kill me before, I thought he is going to kill me. I must get away from him. So there was a brick pillar in front of the porch and I tried to run over and get behind it and I tried. I got behind it but then I heard a tremendous explosion and the last thing I knew until I woke up at 6:00 o'clock the next morning was that. " *fn5"

 The tremendous explosion described by Mr. Walburn later proved to be the discharge of Walburn's 16-gauge shotgun. The shotgun blast struck "Corky" Nalls in the neck killing him instantly. Notwithstanding the fact that Mr. Walburn testified he had no knowledge of the events immediately subsequent to the shooting, there was uncontradicted testimony from Victor Garcia, a friend of Walburn's son and who was present before and after the shooting, that Walburn returned to the house, put the shotgun away and

"[said] he was sorry and, you know, and that -- then that he loved everyone, and that the boy was driving him out, driving him bats or something like that and he put on his clothes and he got a drink and went out back. " *fn6"

 On September 8, 1972, the jury found Walburn guilty of murder in the second degree in violation of 22 D.C. Code § 2403 (1967 ed.). That verdict was affirmed on appeal; James Walburn was incarcerated on February 4, 1974, and is currently in prison.

 As a consequence of this killing, Mr. Earl M. Nalls, Jr., the brother and personal representative of "Corky" Nalls, instituted a civil tort action against James Walburn. In that suit, Civil Action No. 1843-72, now pending before this Court, Earl Nalls seeks damages for the "deliberate, wrongful, and negligent action of the defendant [Walburn], in causing the death of the decedent ["Corky" Nalls]. *fn7"

 Mr. Walburn has asked Travelers to defend him in the pending wrongful death action pursuant to a homeowners policy that Mr. Walburn had with Travelers. *fn8" Travelers initially agreed to defend that action with a reservation of rights.

 Upon further evaluation of its policy with Mr. Walburn, Travelers determined that its policy did not encompass a death such as occurred in this instance. In its policy of insurance with Mr. Walburn, Travelers agreed to pay on behalf of its insured

[All] sums which Insured shall become legally obligated to pay as damages because of bodily injury . . . to which this section applies, caused by an occurrence. (Emphasis added.)

 It is the contention of Travelers that the killing of Mr. Nalls was not such an occurrence as would obligate the insurer under the plain terms of the policy. ...

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