Illinois Farmers Insurance Company, Respondent, vs. Robert Anderson, Respondent, RoseMary Anderson as trustee for the next-of-kin of Dennis M. Anderson, Appellant.

Illinois Farmers Insurance Company, Respondent, vs. Robert Anderson, Respondent, RoseMary Anderson as trustee for the next-of-kin of Dennis M. Anderson, Appellant. A05-2400, Court of Appeals Unpublished, August 15, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2400

 

Illinois Farmers Insurance Company,
Respondent,
 
vs.
 
Robert Anderson,
Respondent,
 
RoseMary Anderson as trustee for the next-of-kin of Dennis M. Anderson,
Appellant.

 

Filed August 15, 2006

Affirmed

Minge, Judge

 

Stearns County District Court

File No. CX-05-0468

 

 

J. Mark Catron, Colleen O. Kaufenberg, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondent)

 

Frank J. Rajkowski, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56301 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court's determination on summary judgment that the insured intentionally caused the death of appellant's husband, thereby invoking the intentional-act exception under the insured's policy and precluding appellant's recovery.  Because the district court did not err in concluding that the insured acted recklessly with an inherently dangerous weapon and that this met the intentional-act exception, we affirm.

FACTS

Appellant RoseMary Anderson appeals from summary judgment granted in favor of respondent Illinois Farmers Insurance Company in its declaratory judgment action against appellant.  Appellant seeks to collect $300,000 from Robert Anderson's Illinois Farmers home insurance policy, pursuant to a Miller-Shugart[1] release agreement, in settlement of appellant's civil suit against Robert for his role in the death of appellant's husband, Dennis Anderson.  Illinois Farmers filed an action seeking a declaratory judgment that Dennis's death was the result of intentional actions by Robert, excluding coverage under Robert's policy.  Appellant counterclaimed, arguing that Illinois Farmers' denial of coverage was a breach of its insurance agreement.  Both parties brought motions for summary judgment, and the district court entered judgment in favor of Illinois Farmers.

            Dennis died as a result of a fatal stab wound inflicted by his brother, Robert.  Robert, Dennis, and appellant were spending a weekend at the Anderson family hunting camp near Deer River.  Dennis and appellant arrived first, and Robert came Friday evening.  Robert testified that he had been drinking all day long, consuming an entire case of beer in addition to the "three or four beers" he had at a tavern.  When Robert was arrested, his alcohol concentration was .22.

            When Robert, Dennis, and appellant arrived at the campsite around 11 p.m., they lit a fire and continued to drink.  When Robert mentioned that he could only stay through Saturday afternoon, Dennis became angry, and the brothers started fighting.  Dennis went to join appellant in their camper, and Robert continued to stoke the fire and drink.  Then, Robert began to shoot off fireworks and pounded on the door of the camper for Dennis to join him outside.  At some point, Dennis dressed and left the camper to confront Robert.  Appellant testified that she awoke to find Dennis missing from the camper.  She looked out the door and saw Robert lying on the ground and Dennis kneeling next to Robert's truck, removing the tire.  Robert testified that the fight began to escalate and that Dennis began beating him with the tire iron he was using to remove the tire.  This beating resulted in a double fracture of Robert's skull.

            Appellant testified that she did not hear what was said during this altercation, but that when Dennis came back into the camper, he told appellant to pack things up and get ready to go.  According to appellant, Dennis stated that he wanted to leave before Robert got out his guns.  While they packed, Robert came to the door of the camper and asked appellant to take him to the hospital because Dennis had hurt him.  Dennis did not want to take Robert, but eventually agreed.  During the trip, Dennis drove, appellant was in the passenger seat, and Robert sat in the back.

            Robert and Dennis argued en route to the hospital.  Appellant testified that she tried to ignore them and did not pay attention to what they were fighting about.  Both appellant and Robert admit that they were still feeling the effects of the alcohol while driving to the hospital.  Robert testified that Dennis was also intoxicated.  Approximately halfway to the hospital, Dennis made an abrupt turn onto a dirt road.  Appellant's and Robert's testimony diverge greatly about what occurred next.

            Appellant consistently testified that when Dennis turned off the road she was confused by his actions and did not understand why he stopped so suddenly.  According to appellant, everything happened very quickly; as soon as Dennis turned off the road and the truck came to a stop, Robert said that he had stabbed Dennis.  Appellant explicitly stated that there was no altercation between Dennis and Robert after the truck stopped.

            Conversely, Robert testified that Dennis turned off the road and stopped because he was going to remove Robert from the truck.  According to Robert, after the truck stopped, appellant exited the truck, and Dennis began tugging at Robert to get him out of the truck.  Robert stated that he thought he was going to die if he got out of the car, because he was convinced that Dennis was going to drive off and leave him in the woods with his head injury.  At some point during the ensuing altercation, Robert unsheathed the hunting knife that hung on his belt and continued to struggle with Dennis, holding the knife in his hand.  According to Robert's testimony,

He could see it, he could see it.  I didn't wave it at him.  My arms were up.  I wasn't letting him get at me.  I was in a defensive posture.  I had the knife up . . . . [H]e was coming after me, and then I moved forward and stabbed him at the same time he was coming after me. 

 

The knife went into Dennis's chest.  He collapsed and died.

            The state prosecuted Robert for Dennis's death, but the trial resulted in a hung jury.  Subsequently, the state amended the complaint and brought new charges, and Robert pleaded guilty to second-degree manslaughter, a violation of Minn. Stat. § 609.205 (2002).  Pursuant to the plea agreement, Robert received a sentence of 60 months in prison.  Appellant sued Robert in a wrongful-death action, which the parties settled pursuant to a Miller-Shugart agreement.  Appellant now challenges the district court's determination that the Illinois Farmers' policy does not cover Robert's actions.

D E C I S I O N

On appeal from summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  "Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that we review de novo."  Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001); see Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn. 1978).  But, "the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

            The relevant question in this appeal is whether Robert acted intentionally when he stabbed Dennis.  If so, Robert's actions come within the intentional-act exclusion of his Illinois Farmers' insurance policy, and exclude recovery.[2]

            I.          The Policy

            Robert's Illinois Farmers' homeowner's insurance policy specifically excludes coverage for a variety of intentional acts.  The relevant provision of the policy states:

We do not cover bodily injury, property damage or personal injury which: . . .

3.  is either:

a.  caused intentionally by or at the direction of an insured; or

b.  results from any occurrence caused by an intentional act of any insured where the results are reasonably foreseeable.

The policy defines "occurrence" as "an accident including exposure to conditions which results during the policy period in bodily injury or property damage."  The supreme court has interpreted "accident," as it appears in an insurance policy, to mean "an unexpected, unforeseen, or undesigned happening or consequence."  Walser, 628 N.W.2d at 611. 

            Robert's policy excludes two kinds of actions: (1) where the intent of the insured is to cause bodily harm, which may be determined by looking at the specific intent of the insured or inferring intent as a matter of law from the circumstances; and (2) where the insured's intentional act results in an accident from which reasonably foreseeable injuries occur.  Exclusions in insurance policies are interpreted strictly against the insurer.  Id. at 613.  However, if the exclusion applies, the Miller-Shugart agreement is not enforceable against the insurer.  R.W. v. T.F., 528 N.W.2d 869, 873 (Minn. 1995).

            II.         Intent to Injure as a Matter of Law

"The law in Minnesota is well-settled that an intentional act exclusion applies only where the insured acts with the specific intent to cause bodily harm."  Id. at 872.  But, there are some cases where, by the very nature and character of the insured's actions, intent to injure may be inferred from the circumstances.  See Woida v. N. Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn. 1981); Iowa Kempers, 269 N.W.2d at 887; Auto-Owners Ins. Co. v. Smith, 376 N.W.2d 506, 509 (Minn. App. 1985), review denied (Minn. Jan. 17, 1986).  Conversely, there are cases where the circumstances demonstrate that although the insured acted intentionally, a jury question may exist as to whether the insured did not intend to cause an injury but rather reacted reflexively or impulsively.  See Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980); Farmers Ins. Exch. v. Sipple, 255 N.W.2d 373, 377 (Minn. 1977).  Appellant contends that Robert's actions were either unintentional because this is not the type of case where it would be proper to infer intent, or unintentional because they were reflexive.

A.        Inferring Intent to Injure

            Robert maintains that he never intended to injure Dennis but only brandished the knife to scare Dennis into leaving him alone.  But, where bodily harm is reasonably foreseeable, intent to injure may be inferred, and the exclusion applies.  For example, in Iowa Kempers, the supreme court noted that the "intent required to exclude coverage is neither the intent to act nor the intent to cause the specific injury complained of.  Rather, it is the intent to cause bodily injury even if the actual injury is more severe or of a different nature than the injury intended."  269 N.W.2d at 887 (quotations omitted).  The court rejected an interpretation of the intentional-act clause that would require proof of a specific subjective intent to cause the harm that actually occurred.  Id.

            Generally, inferring intent to injure is reserved for extreme cases where the insured takes calculated action.  See Woida, 306 N.W.2d at 573-74 (inferring intent where insured participated in an elaborate plot to commit criminal property damage, armed himself with a high-powered rifle loaded with armor-piercing bullets, and fired upon a truck with the knowledge that there were two security guards inside); Iowa Kempers, 269 N.W.2d at 887 (inferring intent where insured and another boy agreed to fight to "settle" a dispute and where the insured punched the injured boy with his fist that was wrapped in a belt with the metal buckle facing outwards); Auto-Owners, 376 N.W.2d at 507, 510 (inferring intent where insured killed an individual when he intentionally drove to a specific house and fired a gun into the darkened first-floor windows as a warning, even though the insured testified that he avoided firing into the second floor because the lights were on and he feared injuring someone).

            Intent may also be inferred where the insured uses an inherently dangerous weapon.  Donovan v. Commercial Union Ins. Co., 493 N.W.2d 581, 583 (Minn. App. 1992).  In Donovan, the insured, attempting to scare his wife, intentionally fired a gun in her general direction.  Id. at 582.  When the wife unexpectedly moved into the path of the bullet at the last second, she was struck and injured.  Id.  This court inferred an intent to injure because the insured intentionally discharged an inherently dangerous weapon, even though his subjective intent was merely to frighten his wife: "Reckless or intentional misuse of a handgun creates an inherently dangerous situation.  To hold that the exclusionary clause of the policy did not apply to the facts of this case would be, in effect, to extend to the insured a license to permit wanton and malicious acts."  Id. at 583.

            But, without evidence that harm or injury is substantially certain to result from the insured's conduct, intent cannot be inferred.  See German Mut. Ins. Co. v. Yeager, 554 N.W.2d 116, 118 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).  Moreover, in Walser, the supreme court determined that, where two teens injured a third by pulling him down by the ankles while hanging from a basketball hoop, inferring intent to injure was not appropriate.  628 N.W.2d at 607, 615.  The court noted that it is only appropriate to infer intent where the insured "acted with deliberate and calculated indifference to the risk of injury."  Id. at 614.  Thus, where the injury resulted from three teenagers "goofing around," the court interpreted the conduct as accidental and, therefore, covered.  Id.

            Here, as the district court noted, Robert's testimony demonstrates that he and Dennis were not simply "goofing around."  Rather, Robert considered the struggle to be life or death, believing that he would die if left at the side of the road.  Like the insureds in Donovan and Auto-Owners, he claims to have only had the intent to scare his brother away, but in so doing he brandished a dangerous weapon.  Like the victims in Donovan and Auto-Owners, Dennis was unarmed.  By creating such an inherently dangerous situation, Robert orchestrated circumstances similar to the cases where the court has inferred intent to injure.[3]

                        B.        Reflexive Actions

            Robert also testified that he merely acted reflexively with the knife in his hand.  A fact issue may exist in some cases where the insured, although engaging in behavior that may be classified as an assault, does not have an intent to injure because his actions are reflexive or impulsive and in response to provocative stimuli.  These cases include Sipple, 255 N.W.2d at 374, where the insured struck a farmer during a heated argument; Brown, 293 N.W.2d at 823, where the insured engaged in a tug-of-war with an airport baggage clerk and struck the clerk; and Caspersen v. Webber, 298 Minn. 93, 95, 213 N.W.2d 327, 328 (1973), where an insured shoved a coat-check clerk while searching for his overcoat.  In each of the foregoing cases, the court held that whether those acts came within the intentional-act exclusion was a question for the jury.  Appellant argues, similarly, that Robert's stabbing of Dennis was a reflexive action, resulting from their heated argument to remove Robert from the truck.  But, Robert's actions are distinguishable because he utilized an inherently dangerous instrumentality, unlike the insureds in Sipple, Brown and Caspersen.  Robert's acts of removing the knife from the sheath, holding it in his raised hand, and lunging toward Dennis are distinct steps that cannot be excused as reflexive actions.

III.       Failure to Raise an Issue of Material Fact

            Appellant argues that the district court erred because it made a factual finding that Robert "came at" Dennis and that this constituted the intentional act that resulted in the application of the policy exclusion.  Conversely, Illinois Farmers argues that because appellant's testimony creates an inference that Robert acted with intent, she cannot now argue that Robert's distinct version of the incident applies.

            Illinois Farmers claims that appellant is estopped from arguing that Robert's version of the events occurred because her own version at trial and in her deposition is different.  Appellant stated that she did not know what happened, that she did not witness or hear an altercation between Robert and Dennis before the stabbing, and that Dennis was stabbed immediately upon stopping the truck.  Robert's version is that appellant left the truck when it stopped and that Dennis was not stabbed until after she left.  It does not appear that either party has a complete and accurate recollection of the incident; they were intoxicated, and it was the middle of the night.

            Although appellant's and Robert's accounts differ, it does not create a material fact in this case.  Appellant's version of what happened indicates an intentional action by Robert because of a lack of provocation.  Robert's version indicates that he acted recklessly with an inherently dangerous weapon.  Under either version, the result is the same, and the intentional-act exclusion applies.

Finally, appellant argues that the district court erred by making an inappropriate factual finding on summary judgment.  The district court reasoned that "Defendant Robert Anderson came at Dennis Anderson with a knife."  Robert testified, "I had the knife up.  . . . [H]e was coming after me, and then I moved forward and stabbed him at the same time he was coming after me."  The district court's articulation of the facts is consistent with Robert's testimony.  The district court's decision is sustainable because Robert brandished a dangerous weapon during a very physical struggle.  A reasonably foreseeable result of this action was an injury to Dennis whether Robert "came at" Dennis or not.  We conclude the district court did not err in granting summary judgment.

            Affirmed.

[1] A Miller-Shugart agreement allows the plaintiff to settle a claim with an insured defendant, creating a garnishment action for the plaintiff, who may then proceed to collect from the insured's liability carrier rather than the insured.  See Miller v. Shugart, 316 N.W.2d 729, 733-34 (Minn. 1982).

[2] Appellant's original complaint alleged both intentional and negligent actions by Robert Anderson.  Whether the intentional-act exclusion applies "is not defined solely by the way in which the claim is characterized in the underlying lawsuit."  Rulli v. State Farm Fire & Cas. Co., 479 N.W.2d 87, 89 (Minn. App. 1992), review denied (Minn. Feb. 19, 1992); see R.W. v. T.F., 528 N.W.2d 869, 873 (Minn. 1995) (applying intentional-act exclusion where harm was substantially certain to result from insured's acts, even though victim brought a negligence claim).

[3] Appellant also argues that because Robert was intoxicated he could not form the requisite intent and that the court erred in not finding that Robert acted accidentally.  "[V]oluntary intoxication may not be used to deny an intent to injure one's victim where the circumstances of the assault otherwise compel an inference of intent to injure."  Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn. 1987) (invoking intentional-act exception where insured assaulted victim with a hammer while intoxicated).  Robert's voluntary intoxication does not change the analysis in this case.