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STATE OF MINNESOTA IN COURT OF APPEALS A07-1093 State Farm Fire and Casualty Company, Appellant, vs. Gary Harold Schwich, Respondent, Jeanne Carol Stone, Respondent, Brandon Mitchell Hackbarth, as Trustee for the Next of Kin of Alicia Sue Hackbarth, Respondent. Filed May 20, 2008 Reversed Klaphake, Judge Scott County District Court File No. 70-CV-06-14690 C. Todd Koebele, William L. Moran, Scott G. Williams, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101-4919 (for appellant) Samuel A. McCloud, McCloud & Heefner, P.A., P.O. Box 216, Shakopee, MN 55379 (for respondent Schwich) Jeanne Carol Stone, Minnesota Correctional Facility, Attn: Warden Mark Carey, 1010 West Sixth Avenue, Shakopee, MN 55379 (pro se respondent) Sharon L. Van Dyck, Schwebel, Goetz & Sieben, 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402; and Michael D. Swor, Swor & Gatto, P.A., Grand Oak One Office Center, 860 Blue Gentian Road, Suite 150, St. Paul, MN 55121 (for respondent Hackbarth)

Considered and decided by Schellhas, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge. SYLLABUS 1. When an insured knowingly provides an injured party with

methamphetamine by preparing a syringe and encourages the injured party to inject the drug, intent to injure is inferred as a matter of law, precluding coverage under an intentional act exclusion contained in a general liability insurance policy. 2. An insured who knowingly and with deliberate indifference to the risk of

injury provides an injured party with a syringe of methamphetamine and encourages the injured party to inject the drug commits a willful and malicious act as a matter of law, precluding coverage under a willful and malicious act exclusion contained in a general liability insurance policy. 3. As a matter of public policy, serious violations of criminal law are not

within the coverage provided by a general liability insurance policy. OPINION KLAPHAKE, Judge In this declaratory judgment action, appellant State Farm Fire and Casualty Company challenges the district court's grant of summary judgment to its insured, respondent Gary Harold Schwich. The district court ruled that appellant had a duty to defend and indemnify Schwich under the terms of his homeowners' policy for the wrongful death of Alicia Sue Hackbarth. Schwich provided Hackbarth with methamphetamine for injection, which was a partial cause of her death. 2

Because intentional, willful, and malicious acts are excluded from coverage and intent to injure can be inferred from the facts and circumstances of Hackbarth's death, and because it is against public policy to require a general liability insurance policy to cover deliberate and serious criminal acts, we reverse. FACTS State Farm Fire and Casualty Company (State Farm) began a declaratory judgment action to determine its duty to defend and indemnify its insured, respondent Gary Harold Schwich, for the death of Alicia Sue Hackbarth. For purposes of summary judgment, State Farm, Schwich, and respondent Brandon Mitchell Hackbarth, who was trustee for the next of kin of Alicia Hackbarth, stipulated to three facts, in addition to the other evidence presented: (1) Schwich provided Hackbarth with methamphetamine (meth) on the night she died; (2) the meth was at least one of the causes of Hackbarth's death; and (3) although Schwich intentionally gave Hackbarth the drug, he did not intend to kill her. In granting summary judgment in favor of respondents, the district court concluded that (1) Hackbarth's death was not intentional and therefore her death was an accident or occurrence under the policy; (2) liability for Hackbarth's death was not excluded as an intentional, willful, or malicious act, because the harm in question was not substantially certain to result from the insured's conduct; and (3) appellant failed to show that insurance coverage for a criminal act should be void as against public policy. At the time of her death in March 2005, Hackbarth lived at Schwich's home and had resided there intermittently for about nine months. While living with Schwich, Hackbarth drank heavily, smoked marijuana, and snorted meth, possibly on a daily basis. 3

On March 10, 2005, another friend of Schwich's, Jeanne Carol Stone, moved in; Stone also habitually used meth. Unlike Hackbarth, both Schwich and Stone preferred to inject meth rather than to snort or smoke it, accelerating the onset of the drug's effect. On March 10, after injecting meth with breakfast, Schwich left for work; despite his heavy meth habit, Schwich continued to work full time as a well contractor. The two women spent the day together. Hackbarth snorted meth twice and drank steadily all day long. When Schwich returned home in the evening, he ingested his second dose of meth and then left with Stone to run errands and to stop at some bars. Hackbarth remained at home and continued to drink. After Schwich and Stone returned home, Schwich had a third dose of meth. Stone requested meth from Schwich for herself and for Hackbarth. Stone testified that Schwich pressured Hackbarth to try injecting, rather than snorting, the meth and that he prepared two syringes of meth. Stone helped Hackbarth inject the meth, after which Stone retired for the night. Schwich fell asleep in the master bedroom while Hackbarth sat in a Jacuzzi located in the master bathroom. Schwich woke after a couple of hours, heard the jets in the Jacuzzi and, upon investigating, found Hackbarth floating face down in the Jacuzzi. He called Stone, who attempted to resuscitate Hackbarth. Stone testified that initially Schwich assisted her with Hackbarth, but then he left the room and scurried around the house, disposing of drugs and paraphernalia, and putting his meth-tainted robe in the washing machine. Stone called 911 and continued CPR until the paramedics arrived some ten minutes later. According to the coroner's report, Hackbarth died of cardiac 4

arrhythmia, caused by the underlying factors of acute meth and ethanol intoxication, and arrhythmogenic right ventricular cardiomyopathy, with contributing factors of chronic alcoholism and cigarette smoking. Schwich had used meth for at least ten years, without apparent ill effects. He testified that he did not consider it to be a dangerous drug and had never heard of anyone overdosing or dying from use of meth, although he acknowledged that a former girlfriend had gone through drug treatment twice; it was an expensive habit; and he would not want his daughter to use it. Schwich clearly knew that meth was illegal; his house and grounds were monitored by closed-circuit cameras and protected by various measures, including hidden microphones and a locked gate. Schwich was tried and convicted for aiding and abetting third-degree murder: causing the death of another by administering a schedule I controlled substance without intent to cause death. Minn. Stat.

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