Preview:

No.

85-187

I N THE SUPREME COURT OF THE STATE OF MONTANA 1985

MUTUAL S E R V I C E CASUALTY INSURANCE COMPANY, P l a i n t i f f and R e spondent ,

TIMOTHY W. McGEHEE, a l s o k n o w n as TIMOTHY McGEHEE, a l s o k n o w n a s T I M McGEHEE Defendant,

,

and WALTER A.

RAUKER, D e f e n d a n t and A p p e l l a n t .

APPEAL FROM:

D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C u s t e r , T h e H o n o r a b l e A. B. M a r t i n , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :
H u n t l e y & E a k i n ; Ira E a k i n , ( R a u k e r ) , B a k e r , Montana H.D. B u e l o w , M i l e s C i t y , Montana

For R e s p o n d e n t :
L u c a s & Monaghan; Montana T h o m a s Monaghan, M i l e s C i t y ,

S u b m i t t e d on B r i e f s : Decided:

Oct.

10, 1985

D e c e m b e r 31, 1 9 8 5

Clerk

Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Walter Rauker appeals a Custer County District Court order which granted summary judgment to respondent Mutual Service Casualty Insurance Company (Mutual Service) and ruled that Mutual Service's insurance policy with Tim McGehee did not provide coverage for McGehee's intentional assault of appellant F.auker. The issue on appeal. is whether summary

judgment was proper where the insurance policy did not cover injuries intended or expected from McGehee's standpoint and where McGehee intended to strike the victim but may not have subjectively intended the McGehee and specific injuries. were both We affirm. by an

appellant

employed

electrical contractor in Colstrip, Montana.

McGehee was a On

superintendent and had some supervision of appellant.

November 11, 1982, both men were in a restaurant/bar near Colstrip. that McGehee states that he took exception to a remark made that night. that he McGehee testified by

appellant and

deposition

admitted

deliberately

punched

appellant twice in the face, that he wanted to hit appellant more, and that he waited outside the establishment for

appellant but appellant did not show up.

McGehee further

stated that he did not intend to hurt appellant but only to "shut appellant up." Appellant was seated in a chair at the

time of this attack and McGehee stated that appellant acted like he was going to start to get up and "I just didn't let him." McGehee's punches knocked appellant to the floor and

broke appellant's left cheek bone in three places. Appellant filed a criminal complaint and a civil action against McGehee. McGehee had an insurance policy with Mutual

Service which stated, in relevant part:

This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury caused by an occurrence. This Company shall defend any suit against the Insured seeking damages on account of such bodily injury

...

...

...

EXCLUSIONS This policy does not apply: To bodily injury which is either expected or intended from the . standpoint of the Insured

...

... . .

Mutual Service brousht a declaratory judgment action in the Custer County District Court seeking rulings that it had no obligation to defend McGehee in appellant's civil action and that it had no obligation to pay any judgment entered zgainst McGehee in appellant's action. for summary Mutual Service moved

judgment on these two issues and the court

granted summary judgment ruling that the exclusionary clause of the insurance policy eliminated coverage for McGehee's actions. Rauker appeals. Summary judgment is where the record

The standard of review is clear. only proper under Rule 56(c), M.R.Civ.P.,

discloses that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See, e.g.,State Dept. of Highways v. Midland Materials (Mont. 1322, 40 St.Rep. 666, quoting Darrah v.

1983), 662 P.2d

Milbank Mutual Insurance Co. (Mont. 1983), 658 P.2d 374, 40

The construed

overwhelming identical or

majority

of

courts

which

have

similar insurance provisions have

emphatically held that insurance coverage does not extend to situations such as this. A few of these cases are; Shelter

Ins. Companies v. Smith (Ill. App. 1985), 4 7 9 N.E.2d 365; CNA Ins. Co. v. McGinnis (Ark. 1984), 666 S.W.2d 689; State Farm 421;

Fire and Cas. Co. v. Williams (Minn. 1984), 355 N.W.2d

Transarnerica Ins. Group v. Meere (Ariz. 1984), 694 P.2d 181; Quincy Mut. Fire Ins. Co. v. Abernathy (Ma.ss. App. 1983), 455 N.E.2d 644; Guilbeau v. Roger (La. App. 1983), 443 So.2d 773;

Smith v. Senst (Minn. 1981), 313 N.W.2d 202; Jones v. Norval (Neb. 1979), 279 N.FJ.2d (Wis, 1979), 278 N.W.2d 388; Pachucki v. ~epublic Ins. Co. 898; Hartford Fire Ins. Co. v.

Spreen (Fla. App. 1977), 343 So.2d 649; Hins v. Heer (N.D. 1977), 259 N.W.2d 38; Eutler v. Behaeghe (Colo. App. 1976),

548 P.2d 934; Home Insurance Company v. Neilsen (Ind. App. 1975), 332 N.E.2d 240; Oakes v. State Farm Fire
&

Casualty

Company (N.J. App. 1975), 349 A.2d
(La. App. 1971), 246 So.2d 235.

102; Terito v. McAndrew

We agree with these courts.

Under the undisputed facts of this case, Mutual Service was entitled to judgment as a matter of law. facts show the following. McGehee The undisputed admits that he

intentionally struck appellant in the face. appellant's cheek bone. McGehee's

The blows broke

insurance policy with

respondent does not provide coverage for bodily injuries intended or expected from McGehee's standpoint. the District Court properly granted summary We hold that judgment in

Mutual Service's favor. Appellant contends that there exists a factual question which precludes summary judgment; i.e. whether McGehee

expected or intended that the victim receive the specific resulting injuries. We disagree. The

Shelter Ins. Companies, Hins, Jones, Senst and Spreen cases (cited above) all involved one person punching another,

resulting broken bones, and the aggressor claiming that he neither expected nor intended the specific injuries. All

five cases involved insurance clauses similar to the one here and in each case the court held there was no insurance coverage. In Jones, the Nebraska Supreme Court quoted from

Clark v.

A l l s t a t e I n s u r a n c e Company,

(Ariz.

1 9 7 5 ) , 529 P.2d

"[Tlhe a c t of s t r i k i n g another i n t h e f a c e i s o n e which w e r e c o g n i z e a s a n a c t s o c e r t a i n t o cause a p a r t i c u l a r kind of harm t h a t w e ca.n s a y a p e r s o n who performed t h e a c t i n t e n d e d t h e r e s u l t i n g harm, and h i s s t a t e m e n t t o t h e c o n t r a r y d o e s n o t h i n g t o r e f u t e t h a . t r u l e o f law." Jones, (Ark. 279 N.W.2d a t 391,

see a l s o CNA I n s . Co. v. McGinnis

1 9 8 4 ) , 666 S.W.2d.

a t 691 ( t h e A r k a n s a s Supreme C o u r t
W e agree.

a p p r o v i n g l y c i t e s t h e same r u l e ) .

Where, a s h e r e ,

an a s s a i l a n t a g g r e s s i v e l y and i n t e n t i o n a l l y s t r i k e s a n o t h e r in the face,

it

is

irrelevant that the or

for

the

purposes causes an

of

this

insurance different

exclusion in

assailant magnitude

injury he

character

from

the

harm

s u b j e c t i v e l y intended. (Ariz. 1984), 694 P.2d

S e e T r a n s a m e r i c a I n s . Group v . Meere a t 185
("It is,

therefore,

of

no

c o n s e q u e n c e t h a t h e may h a v e i n t e n d e d a d i f f e r e n t o r l e s s e r injury. The e x c l u s i o n a p p l i e s whenever t h e i n s u r e d i n t e n d s S t a t e Farm F i r e a n d C a s u a l t y Company A.2d at 103
(".

t o i n j u r e . " ) ; Oakes v .
(N.J.

App.

1975),

349

. . where
Lyons

the

intentional a c t has resulted i n intended injury, the injury inflicted coverage

e v e n where

i s d i f f e r e n t o r more s e v e r e t h a n was
should be denied. ")

intended,

,

citing

v.

H a r t f o r d I n s . Group ( N . J .

App.

1 9 7 3 ) , 310 A.2d 485; a n d J o n e s a t 392 ( " .

v. Norval
difference

(Neb. 19791, 279 N.W.2d if the actual injury

. . it
severe

makes no or of a

i s more

d i f f e r e n t nature than t h e injury intended."). t h i s Court w i l l n o t r e q u i r e t h e impossible o f

Furthermore, the insurer;

t h a t i s , p r o v i n g t h a t McGehee s p e c i f i c a l l y i n t e n d e d t o b r e a k t h e v i c t i m ' s c h e e k bone i n t h r e e p l a c e s by s t r i k i n g him w i t h his fist. The situation courts such a s a l s o agree t h a t t o require t h e one a t b a r , under coverage i n a insurance

similar

policies, is a violation of public policy.

The Arizona

Supreme Court stated that a policy provision such as the one here,
"

. . . articulates

a

public

policy

which

forbids

contracts indemnifying a person against loss resulting from I his own willful wrongdoing. ' also Spreen, 343 So.2d at 651 permitted to indemnify Meere, 694 P.2d at 186. (I '. See

. . one

ought not to be his v.
"

himself

against

intentional ~illoughby

I [torts] ' ) quoting Lea-therby Insurance Co. (Fla.App. 1975), 315 So.2d 553. Moreover,

.

'.

i

f a

single insured is allowed through intentional or reckless acts to consciously control risks covered by policy, the central concept of insurance is violated.'" at 186, quoting 7A Appleman, Meere, 694 P.2d

Insurance Law and Practice,

Affirmed.
/ /

We concur:

/

Justices

Mr. Justice William E. Hunt, Sr., dissenting:

I dissent and would reverse.
appropriate in this case. In Northwestern National

Summary judgment is not

Casualty

Company v.

Phalen

(1979), 182 Mont. 448, 597 P.2d 720, this Court was presented with a similar issue involving the same type of exclusion. In Phalen a man was also involved in an altercation with another. William Phalen followed Thu Duc Vo out of a bar. Some

He placed his arm around Vo and Vo's female companion.

verbal disagreement followed and he struck Vo who then ran and was tripped by another. suffered substantial injuries. followed and Phalen's insurer Vo fell to the pavement and Criminal and civil actions brought action seeking

declara-tory judgment that it was not obligated to defend or pay. It moved for summary judgment which was granted by the

District Court on the basis of policy exclusion.

In Phalen, this Court held that the applicability of
coverage could not be determined until the factual issues concerning the intention and expectation of Phalen as to Vo's injuries was decided in the separate tort action. that granting summary judgment was therefore F e held J improper.

Phalen, 597 P.2d at 728.

In Phalen, there was a significant

factual question whether Phalen, after hitting and chasing Vo, intended or expected that Vo would be tripped by another and be crashed to the pa-vement on his face. P.2d at 726 and 727. In the present case there is also a relevant factual dispute. Both parties agree that McGehee struck Rauker in Both parties agree However, it is not See, Phalen 597

the face and knocked him to the floor. that the blow or blows caused the injury.

clear that McGehee expected or intended the injuries that resulted.

The determinative matter in the present case is factual in nature. Phalen The true legal issue has already been decided in there is a factual distinction applicable in the

--

questioned policy exclusion between intent to do an act and the expectation or intention that that act shall cause a specific injury from the standpoint of the insured. This Court held in Phalen that an insurance policy

stating that it will cover for occurrences, excluding those where injury is expected or intended, includes in coverage intentional acts as long as the resulting injury is neither expected nor intended. from the insured's standpoint. 597 P.2d at 724. not be covered Phalen,

In Phalen, we said that an insured would in those cases where deliberate acts or

assaults resulted in injuries which would be expected or intended as a result of the act, but where deliberate acts lead to unexpected or unintended results coverage will exist. Phalen, 597 P.2d at 724. The District Court in the instant case concluded that PllcGehee did not specifically intend the resulting injuries yet, at the same time, concluded that the harm inflicted was intended and expected from the standpoint of McGehee. District Court excluded coverage. As in Phalen, where it was clearly questionable whether Phalen expected or intended that Vo be tripped by another, the injuries suffered
by

The

Rauker

also A

present

a

factual fact

question of intent and expectation. precludes summary judgment.

question of

I would reverse and remand to the District Court for

trial.

Xr. Justice John C. Sheehy:

I concur in the foregoing dissent of Mr. Justice Hunt.
-- ..
' j

'

Justice
, )

'' "7



Download f1e60dc7-1aca-41f1-b4ce-1946ca336315.pdf

Montana Law