ALLSTATE INSUR CO V ROBERT DANIEL MCCARN
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STATE OF MICHIGAN
COURT OF APPEALS
ALLSTATE INSURANCE COMPANY,
UNPUBLISHED
October 3, 2000
Plaintiff-Appellant,
v
ROBERT DANIEL MCCARN, ERNEST WARD
MCCARN, PATRICIA ANN MCCARN and
NANCY S. LABELLE, Personal Representative of
the Estate of KEVIN CHARLES LABELLE,
Deceased,
No. 213041
Shiawassee Circuit Court
LC No. 97-000369-CK
Defendants-Appellees.
Before: Zahra, P.J., and White and Hoekstra, JJ.
WHITE, J. (dissenting).
I respectfully dissent.
I add the following to the majority’s recitation of the facts. Robert testified that he met Kevin in
September 1995, at school, and that the two saw each other outside of school three times a week. On
December 15, 1995, Kevin picked up Robert and they drove to and from school together. After
school they drove to the McCarn home, ate a sandwich, drove to visit a friend of Kevin’s, drove back
to the McCarn home, played with several pets, smoked marijuana, and watched television briefly.
Robert testified his father had given him a .410 shotgun as a gift about a year before the incident
at issue, but that the shotgun had always been kept at his grandparents’ home in a case under his
grandfather’s bed, along with his grandfather’s guns. Both Robert and his grandfather testified that the
shotgun was not normally loaded when it was under the bed. His grandfather kept the ammunition for
the shotgun in his dresser drawer. Robert testified that his grandfather taught him how to operate the
gun, and that to fire the gun you had to pull back on the hammer and then pull the trigger.
Robert testified that he and Kevin had played or horsed around with shotguns of Kevin’s three
times, at Kevin’s house, and that they had each pointed a gun at the other and pulled the trigger, making
the trigger make a clicking sound.
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Robert testified that on the day in question, he and Kevin had talked about the .410 shotgun and
that Kevin wanted to see it. He testified that both he and Kevin handled the .410 shotgun, and that after
Kevin handled it, Robert had it and at some point pointed it at Kevin’s face, when Kevin was about a
foot away. Robert testified that he believed the gun was unloaded and that at some point he pulled the
hammer back, and did not say he was going to pull the trigger but acted like he was, by moving his
finger and pretending he was going to pull it. He testified that he was “just playing,” that Kevin did not
ask him to stop, and that at some point he pulled the trigger, thinking that it would click and that the
clicking sound would scare Kevin. The shotgun fired, hitting Kevin in the face and neck, and Kevin
died as a result of the shooting.
Robert testified that he had used the shotgun approximately four times before the shooting, once
for hunting rabbits during deer-hunting season and the other times for target practice, in his
grandparents’ back yard. He testified that he had last used the shotgun in the fall of 1995, for target
practice, without his grandparents’ permission, and that his grandfather found out because he found
shells in the back yard. Robert testified that after finding the shells, his grandfather prohibited him from
using the shotgun or getting it out from beneath the bed when he was not home. Robert testified that he
did not recall how many times he shot the gun when he last used it, did not recall how many shells his
grandfather found, did not recall whether he had unloaded the gun after using it, and that he had put the
shotgun away in a hurry because he expected his grandparents to be getting home from work. Robert
testified that he may have forgotten to unload the gun in his haste to put it away, and that he had no
knowledge of anyone else using the shotgun between that time and the shooting in question.1
As the majority notes, if undefined in the policy, the common meaning of the term “accident”
has been held to be “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.”
Nabozny v Burkhardt, 461 Mich 471, 477; 606 NW2d 639 (2000), quoting Frankenmuth Mutual
Ins Co v Masters,460 Mich 105, 114; 595 NW2d 832 (1999). The definition of accident should be
framed from the standpoint of the insured, not the injured party. Nabozny, supra at 477, quoting
Masters, supra at 114. “[T]he appropriate focus of the term ‘accident’ must be on both ‘the injury
causing act or event and its relation to the resulting property damage or personal injury.’” Nabozny,
supra at 477, quoting Masters, supra at 115.
1
Robert’s grandfather, defendant Edward McCarn, testified that Robert’s parents had given Robert the
.410 shotgun about two years before Robert moved in with him and his wife, and that it had always
been kept at his house because it was bought for hunting, which was done on his property, where there
was acreage available. McCarn testified that the guns under his bed were kept in cases and unloaded,
and that he kept ammunition in a top dresser drawer. McCarn further testified at deposition that, at the
time of the shooting, Robert lived with him and his wife, as did their son, Kenneth, who was twenty-nine
years old. He testified that Kenneth had been seriously ill, had moved in with them in November 1995,
and shared a room with Robert. McCarn testified that Robert’s friend Kevin, the decedent, was at his
house about three times a week, and that about two days before the incident, Kevin had told him about
new guns he had just bought.
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. . . “an insured need not act unintentionally’ in order for the act to constitute an
‘accident’ and therefore an ‘occurrence.’”
However, where an insured does act intentionally, a problem arises “in attempting to
distinguish between intentional acts that can be classified as ‘accidents’ and those that
cannot.” In such cases, a determination must be made whether the consequences of the
insured’s intentional act
either were intended by the insured or reasonably should have been
expected because of the direct risk of harm intentionally created by the
insured’s actions. When an insured acts intending to cause property
damage or personal injury, liability coverage should be denied,
irrespective of whether the resulting injury is different from the injury
intended. Similarly, . . . when an insured’s intentional actions create a
direct risk of harm, there can be no liability coverage for any resulting
damage or injury, despite the lack of an actual intent to damage or
injure.” [Masters, supra at 115-116, quoting Auto Club Group Ins
Co v Marzonie, 447 Mich 624, 648-649; 527 NW2d 760 (1994),
abrogated in part on other grounds Masters, supra at 117 n 8.]
In Nabozny, the insured, Burkhardt, had tripped Nabozny intentionally but testified that he did
not intend to break Nabozny’s ankle. The Supreme Court concluded that because the injury
reasonably should have been expected, the injury did not result from an “accident,” and liability
coverage under the policy was thus precluded. Nabozny, supra at 479-482.
In this case, Mr. Burkhardt apparently did not intend to break Mr. Nabozny’s ankle.
However, it is plain that in tripping someone to the ground in the course of a fight, Mr.
Burkhardt reasonably should have expected the consequences of his acts because of
the direct risk of harm created. This precludes a finding of liability coverage under the
terms of this policy. In other words, the injury did not result from an “accident.”
Moreover, Mr. Burkhardt’s testimony that he did not intend to “break any bones” does
not assist him. . . .
It is clear from the facts, as stated by the insured, that injury reasonably should have
been expected. Therefore, it is irrelevant that the broken ankle was not the specific
harm intended by the insured. [Id. at 480-481.]
The facts in Masters, supra, were that the owner of a clothing store and his son, George
Masters, Sr., and George Masters, Jr., intentionally set a fire at the store which extensively damaged the
store and spread to nearby businesses. The store was insured by the plaintiff insurer. The two men
confessed to the police that their plan had been to start a small fire that would damage inventory and
allow them to collect insurance, but denied intending to destroy their building or neighboring buildings.
Masters, supra at 107-108. The commercial policy defined “occurrence” as “an accident, including
continuous or repeated exposure to substantially the same general harmful conditions,” but did not
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define “accident.” Id. at 113. The Court concluded that the act was not an “accident” and there was
no “occurrence:”
. . . viewed from the standpoint of the Masters, the fire, which was the underlying event,
was caused by the Masters’ intentional act. Also, there is no question that, in
perpetrating the intentional act, the Masters intended to do property damage. Thus, the
Masters’ act cannot be characterized as an “accident,” and there was no “occurrence”
for purposes of coverage under either policy. It is irrelevant whether the harm that
resulted, damage to the clothing store and surrounding businesses, was different from or
exceeded the harm intended, minor damage to the clothing inventory. [Masters, supra
at 116-117.]
An act need not be unintentional in order for it to constitute an “accident” and therefore an
“occurrence.” Masters, supra at 115-116. Both Robert and McCarn, his grandfather, testified at
deposition that the guns stored under McCarn’s bed were kept unloaded. Robert testified that he
believed the shotgun to be unloaded when he pointed it at Kevin and pulled the trigger, and that he did
not intend the gun to fire or to harm Kevin. Rather, he intended to play and engage in conduct in which
he and Kevin had previously engaged. I agree with the circuit court that the consequences of Kevin’s
intentional act of pointing the gun at Kevin and pulling the trigger, the shotgun firing and Kevin’s death,
viewed from Robert’s standpoint, were neither intended or reasonably should have been expected,
given that he believed the gun was unloaded. See Nabozny, supra at 477-478; Masters, supra at
115-116. The fact that Robert did not check to confirm that the gun was unloaded does not mean that
he should have expected that the gun would fire.
The instant case is different from Nabozny and Masters in that the insureds in those cases
intended to employ the instrumentality used, and intended the consequences of their intentional acts,
although not the magnitude of the consequences. Burkhardt intended to trip Nabozny, but not to injure
him so severely. The Masters intended to set a fire, but for its scope to be limited. Here, Robert did
not intend to set the instrumentality in motion. He intended to pull the trigger of an unloaded
gun. He did not intend to fire the gun and did not intentionally create a direct risk of harm. I
therefore do not agree with the majority’s crucial conclusion that “[i]n other words, Robert intended to
set in motion a dangerous weapon, but with limited consequences.” Slip op at __.
I would affirm.2
2
Regarding plaintiff’s other arguments, I note the following. Plaintiff seems to argue that the
Legislature’s enactment of MCL 750.329; MSA 28.561 which states
[a]ny person who shall wound, maim or injure any other person by the discharge of any
firearm, pointed or aimed, intentionally but without malice, ant any such person, shall, if
death ensue from such wounding, maiming or injury, be deemed guilty of the crime of
manslaughter
(continued…)
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(…continued)
establishes as a matter of law that there is a substantial probability that injuries could occur when a
firearm is aimed at someone and therefore there can be no accident. However, the principles for
deciding whether there is coverage under the policy are as set forth in the cases discussed. The criminal
provision is relevant only if made relevant by the policy language.
Plaintiff also argues that the circuit court erred in concluding that Robert’s conduct was not
barred under the policy exclusion which provides:
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may
reasonably be expected to result from the intentional or criminal acts or omissions of any
insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct;
b) such bodily injury or property damage is of a different kind or degree than intended
or reasonably expected; or
c) such bodily injury or property damage is sustained by a different person than
intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually
charged with, or convicted of a crime.
Plaintiff argues that Robert’s deposition testimony that he intentionally aimed the gun at Kevin and pulled
the trigger establishes that he violated MCL 750.329; MSA 28.561 and that the circuit court erred in
ruling that there was no criminal act because the injuries were not reasonably expected. Plaintiff argues
that the circuit court erroneously relied on Robert’s subjective beliefs in making this determination,
instead of viewing Robert’s conduct under an objective standard in determining whether the injuries
caused by the criminal act would be expected. Plaintiff argues that from an objective standpoint, it is
clear that there is a possibility of injury when an individual points a firearm at another and pulls the
trigger without first checking to determine whether the weapon is loaded. Plaintiff correctly asserts that
an objective standard controls. However, the mere possibility of injury does not trigger the exclusion.
By its terms, the exclusion does not automatically bar coverage for injuries resulting from
intentional or criminal acts, but rather, bars coverage for bodily injury which was intended by or which
may reasonably be expected to result from the allegedly intentional or criminal act.
Exclusionary clauses in insurance contracts are strictly construed against the insurer. Fire Ins
Exchange v Diehl, 450 Mich 678, 687; 545 NW2d 602 (1996). In Allstate Ins Co v Freeman, 432
Mich 656, 709; 443 NW2d 734 (1989), a majority of the Court held that an exclusionary clause similar
to the one at issue in the instant caserequired the use of an objective standard, Diehl, supra at 684, and
(continued…)
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(…continued)
that application of the exclusion to relieve an insurer of a duty to defend and provide coverage to an
insured requires a showing that (1) t e insured acted either intentionally or criminally, and (2) the
h
resulting injuries occurred as the natural, foreseeable, expected, and anticipated result of an insured’s
intentional or criminal acts.
I have found no Michigan cases involving injury caused by discharge of a weapon the shooter
believed to be unloaded. In Freeman, supra at 686, and Buczkowski v Allstate Ins, 447 Mich 669,
677; 526 NW2d 589 (1994), the weapons were known by the shooters to be loaded. In Freeman,
the shooter left the scene of a fight, reentered her home, reappeared with a loaded gun, and fired it
towards a neighbor standing three to six feet away, injuring the neighbor. The Court concluded that the
shooter acted either intentionally or criminally and that the injuries were the expected result of the acts.
In Buczkowski, supra, after an altercation, the shooter went home, retrieved his shotgun and deer slugs,
drove to the home of one of the persons with whom he had been arguing, and shot at what he believed
to be the person’s truck. Rather than hitting the vehicle, the slug went through one of its tires,
ricocheted, and injured the person, who, unknown to the shooter, was sitting in the yard behind his
house. A majority of the Supreme Court affirmed this Court’s reversal of the circuit court’s grant of
summary disposition to the defendant insurer. Chief Justice Cavanagh’s majority opinion agreed with
much of the reasoning of Justice Brickley’s opinion, 447 Mich at 671, including that “shooting a shotgun
in a residential neighborhood in the middle of the night at an unoccupied car does not necessarily lead,
as a matter of law, to a reasonable expectation of bodily injury.” 447 Mich at 671-672.
The McCarn defendants and defendant LaBelle argue that plaintiff must show more than that the
result of Robert’s conduct was reasonably foreseeable; plaintiff must show that there was a substantial
probability that the result would occur. Defendants rely on the following language in Chief Justice
Riley’s majority opinion in Freeman, also largely quoted in Justice Brickley’s concurrence in
Buczkowski, supra:
. . . we agree with those courts which have held that ‘[f]or the purposes of an
exclusionary clause in an insurance policy the word ‘expected’ denotes that the actor
knew or should have known that there was a substantial probability that certain
consequences will result from his actions.” City of Carter Lake v Aetna Casualty &
Surety Co, 604 F2d 1052, 1058-1059 (CA 8, 1979). We also reject defendant’s
contention that the standard we adopt today will preclude coverage for negligent acts by
the insured. As the City of Carter Lake court stated, supra at 1059, n 4:
The difference between “reasonably foreseeable” and “substantial
probability” is the degree of expectability. A result is reasonably
foreseeable if there are indications which would lead a reasonably
prudent man to know that the particular results could follow from his
acts. Substantial probability is more than this. The indications must be
strong enough to alert a reasonably prudent man not only to the
possibility of the results occurring but the indications also must be
(continued…)
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/s/ Helene N. White
(…continued)
sufficient to forewarn him that the results are highly likely to occur.’”
[Freeman, supra at 675; Buczkowski, supra at 673.]
Applying this language, Robert’s belief that the shotgun was not loaded and the other
circumstances surrounding this case lead me to conclude that while a reasonably prudent person would
know that a gun which is not checked for ammunition immediately before the trigger is pulled m
ight
possibly discharge, there were not indications strong enough to alert a reasonably prudent person that
the shotgun was highly likely to discharge when Robert pulled the trigger. Freeman, supra at 675.
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