DENVER — An insurer refuses to cover a Colorado-based marijuana candy company for selling the “Karma Kandy Orange Ginger” under whose influence a man supposedly became psychotic and murdered his wife.
Hours before he shot and killed his wife on April 14, 2014, 49-year-old Richard Kirk had consumed a Karma Kandy Orange Ginger candy that he bought from the company Gaia’s Garden.
As Kirk readied for trial last year, pleading not guilty by reason of insanity, the couple’s three children brought what is believed to be the country’s first wrongful-death complaint against a recreational marijuana company.
Kirk later changed his plea. He is serving 30 years in state prison for his wife’s death, but the suit against Gaia’s Garden and its distributor, Nutritional Elements, is dragging on.
United Specialty Insurance fired back last week with a federal complaint against Gaia’s Garden and the children, through their guardians.
Denying that it has any obligation to defend the candy maker, United Specialty says Gaia’s Gardens is on its own.
“The policy specifically did not cover, and was not intended to cover, bodily injury arising out of one of Gaia’s products where the injury occurred after Gaia’s had ‘relinquished possession’ of the product — i.e., after the product was sold and distributed,” the complaint states.
“Per the allegations of the lawsuit, the bodily injury (the death of Kristine Kirk) occurred after the distribution and sale of the product. … Therefore, it was not a covered hazard under the policy.”
In fact, the insurer says, the policy had a psychotropic substances exclusion, for “any bodily injury ‘which would not have occurred, in whole or in part, but for the actual … ingestion of, contact with, exposure to … or presence of psychotropic substances.’ A copy of this endorsement is attached as Exhibit 5.” (Ellipses in complaint.)
Finally, United Specialty adds: “The psychotropic substances exclusion includes a (non-exclusive) list of psychotropic drugs. Included in the list are ‘marijuana’ and ‘cannabinoids.'” (Parentheses in complaint.)
The insurer also says that Nutritional Elements, the store that sold the drug to Kirk, has reached its own settlement with the family, and “United Specialty was likely prejudiced as a result.”
United Specialty seeks declaratory judgment that it has no duty to defend Gaia’s Garden or indemnify it for any loss. It is represented by Reid Neureiter with Wheeler Trigg O’Donnell. Neither this Denver attorney nor Gaia’s Garden has returned a request for comment.
In their 2016 lawsuit against Gaia’s Garden in Denver County Court, Kirk’s sons note that the label on the candy their father took purported to contain “101 mg. THC.”
Though a dose of 10 mg of THC is considered enough to get an average person high, the Denver Post reported that the candy police found at the crime scene, roughly the size of a Tootsie Roll, had been only partially consumed.
A toxicology test of Kirk’s blood from the night of the shooting also showed he had just 2.3 nanograms of THC per milliliter of blood. The state’s legal limit for stoned driving is 5 nanograms of THC per milliliter, according to the Denver Post.
Kirk’s children are seeking damages for negligence, failure to warn, wrongful death, deceptive trade, strict liability, breach of implied warranty, misrepresentation and consumer law violations. They are represented by Gregory Gold, of Greenwood Village.
The effects of marijuana can be much more powerful when it is eaten rather than smoked. New York Times columnist Maureen Dowd, on a visit to Colorado, wrote a much-cited column about the misery induced by eating marijuana candy.
One longtime jazz musician, no stranger to marijuana, told Courthouse News he suffered the same misery as Dowd after he ate marijuana candy on a visit to Denver. “I’ve smoked a lot of pot,” the musician said, “but it was nothing like that. It was not pleasant at all.”
Courthouse News editor Robert Kahn contributed reporting.