Espinet v. Horvath

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No. 89-632

Supreme Court
Frank Espinet
On Appeal from
v. Chittenden Superior Court

Peter Horvath Special December Term, 1990

John P. Meaker, J.

Susan M. Murray of Langrock Sperry Parker & Wool, Middlebury, for plaintiff-
appellant

Robert Andres, Burlington, for defendant-appellee

Michael J. Gannon and Richard H. Wadhams, Jr., of Pierson, Wadhams, Quinn &
Yates, Burlington, for intervenor-appellee

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

JOHNSON, J. Defendant challenges a trial court summary judgment
ruling that State Farm Insurance Company (State Farm) has no contractual
obligation to defend or indemnify him in connection with injuries sustained
by plaintiff whom defendant shot in the head. On appeal, defendant contends
first that summary judgment was inappropriate because a genuine issue of
material fact exists as to whether he intended or expected to injure
plaintiff; and second that the injury was covered by his State Farm policy
because he acted in self-defense. We reverse and remand with respect to the
first issue, but affirm with respect to the second.
Defendant shot plaintiff after a long evening of heavy drinking. He
alleges that during the course of an argument, plaintiff lunged towards him
with a letter opener and that he became frightened, reached for his handgun
and shot. He claims that he did not intend to hit plaintiff but rather
aimed above his head hoping that "the big bang would straighten [the] flaky
bastard out."
In the ensuing action by plaintiff against defendant, defendant called
upon State Farm to defend him. Defendant's State Farm policy covers
liability for damages arising from bodily injury and requires State Farm to
provide a defense when a claim is brought for such damages. Coverage does
not extend to a "bodily injury . . . which is expected or intended by an
insured." The trial court ruled that, as a matter of law, defendant
expected or intended to injure plaintiff, granted summary judgment,
relieving State Farm from a duty to defend and indemnify, and entered final
judgment dismissing State Farm from the case. This appeal followed.
When reviewing a motion for summary judgment, we
apply the same standard the trial court used in ruling
on the motion. To prevail, the moving party must
satisfy a two-part test. It must establish that no
genuine issues of material fact exist, and that the
motion rests on a valid legal theory that entitles it to
judgment as a matter of law. Both in the trial court
and on appeal, the moving party bears the burden of
proof.

Kelly v. Town of Barnard, ___ Vt. ___, ___, 583 A.2d 614, 616 (1990)
(citations omitted). In determining whether a genuine issue of material
fact exists, a court must give the non-moving party "the benefit of all
reasonable doubts and inferences . . . ." Price v. Leland, 149 Vt. 518,
521, 546 A.2d 793, 796 (1988). But "'[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party,
there is no 'genuine issue for trial.''" Kelly v. Town of Barnard, ___ Vt.
at ___, 583 A.2d at 619 n. 5 (quoting Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The trial court acknowledged that, under Vermont law, whether
defendant expected or intended the injuries is a subjective inquiry, but
applied an objective standard holding that the conduct in question was "so
inherently dangerous that an intent to harm [could] be inferred as a matter
of law." In State v. Glens Falls Insurance Co., 137 Vt. 313, 404 A.2d 101
(1979), we construed language similar to that in question here. We held
that although an insured must be taken to have intended an injury where the
circumstances indicate that he knew his act would damage the injured party,
in equivocal circumstances, subjective testimony may be relied on by the
trier of fact. Id. at 317, 404 A.2d at 104. The issue is whether the
circumstances in this case are equivocal or whether they are such that no
rational person could doubt defendant knew he would hit plaintiff.
Defendant testified in his deposition that he was heavily intoxicated
at the time of the incident. He calculated that plaintiff was eight to ten
feet away from him, but coming towards him. He admitted that he intended to
cock the pistol, point the gun in plaintiff's direction, and pull the
trigger but stated that he aimed over plaintiff's right ear expecting to
shoot about a foot or more over his head. Plaintiff was struck on the skull
near the right eye at the tear duct. Defendant claimed he was very shocked
that he hit plaintiff as he is an expert marksman who habitually competes in
marksmanship with friends; he surmised that his drinking might have
affected his aim. Defendant personally called the state police and
explained what had occurred.
In Otterman v. Mutual Fire Insurance Co., 130 Vt. 636, 642, 298 A.2d 547, 551 (1972), we upheld a trial court finding that the defendant did not
expect or intend to injure a victim when the defendant fired into a darkened
room. The bullet went through a wall hitting a police officer in a con-
tiguous room. The circumstances in Otterman are more equivocal than those
in the case at hand. Nevertheless, giving defendant the benefit of all
reasonable doubts and inferences, we cannot say that the circumstances
conclusively indicate defendant knew he would hit and injure plaintiff.
Accordingly, summary judgment in State Farm's favor was inappropriate.
Moreover, we reject the trial court's rationale that defendant's
intent can be inferred as a matter of law because he engaged in an inher-
ently dangerous activity. The State Farm policy excludes only coverage for
expected or intended injuries. It does not exclude coverage for injuries
caused by the insured's inherently dangerous activities. "[D]isputed con-
tract language, if clear and unambiguous, must be given force and effect in
its plain, ordinary, and popular sense." Glens Falls Ins. Co., 137 Vt. at
319, 404 A.2d at 105. Had State Farm wished to exclude from coverage
injuries caused by inherently dangerous activities, it could have included
an appropriate provision in the contract.
Defendant argues also that the court erred in ruling the contractual
provision excludes from coverage intended or expected injuries resulting
from acts taken in self-defense. Although defendant's claim that he acted
in self-defense may be relevant to the issue of his expectation and/or
intention in shooting, it does not bring him within the coverage of the
policy. The contractual language excludes any bodily injury intended or
expected by the insured. Though justified, an injury inflicted by an act
taken in self-defense may be expected and/or intended. To accept defend-
ant's theory that injuries inflicted in the course of self-defense are
included in coverage, we would be forced to read into the policy that only
injuries inflicted wrongfully are excluded. We may not read such a require-
ment into the contract. See State Farm Fire and Casualty Company v.
Marshall, 554 So. 2d 504, 505-506 (Fla. 1989) (per curiam) (refusing to
rewrite the policy, agreed to by the parties, to cover intentional acts
taken in self- defense); Lockhart v. Allstate Ins. Co., 119 Ariz. 150, 152-
53, 579 P.2d 1120, 1122-23 (Ariz. Ct. App. 1978) (no coverage under a policy
excluding coverage for injuries expected or intended by insured where
insured shot the victim in self-defense and testified he intended to hit
him). Accordingly, we affirm the trial court's ruling that defendant cannot
rely on his claim of self-defense to defeat the plain language of the
exclusion.
Affirmed in part, reversed and remanded in part.

FOR THE COURT:

__________________________________
Associate Justice

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DISSENTING

No. 89-632

Supreme Court
Frank Espinet
On Appeal from
v. Chittenden Superior Court

Peter Horvath Special December Term, 1990

John P. Meaker, J.

Susan M. Murray of Langrock Sperry Parker & Wool, Middlebury, for plaintiff-
appellant

Robert Andres, Burlington, for defendant-appellee

Michael J. Gannon and Richard H. Wadhams, Jr., of Pierson, Wadhams, Quinn &
Yates, Burlington, for intervenor-appellee

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., dissenting. Because I disagree with the majority's
application of the exclusion for injuries "expected or intended" to the
facts of this case, I would affirm the trial court's grant of summary
judgment to State Farm.
Although the inquiries into an insured's intentions and expectations
under the terms of the policy before us are both subjective, they are not
identical. If they were, the use of the word "expected" would be mere
surplusage, which is a result to be avoided in interpretation. State v.
Kreth, 150 Vt. 406, 409, 553 A.2d 554, 556 (1988); see, e.g., Indiana
Farmers Mut. Ins. Co. v. Graham, 537 N.E.2d 510, 512 (Ind. Ct. App. 1989)
(if expected and intended "were to be synonymous, what purpose is served by
including both within the exclusionary clause"); Farm Bureau Town & Country
Ins. Co. v. Turnbo, 740 S.W.2d 232, 236 (Mo. Ct. App. 1987) (same). An
insured intends an injury if he or she subjectively desires it, and an
insured expects an injury if he or she is subjectively aware that injury is
substantially certain to result. State v. Glens Falls Ins. Co., 137 Vt.
313, 317, 404 A.2d 101, 104 (1979) (interpreting similar provision to
exclude coverage for "highly probable or intentionally caused damage");
accord Alabama Farm Bureau Mut. Casualty Ins. Co. v. Dyer, 454 So. 2d 921,
925 (Ala. 1989); Bolin v. State Farm Fire and Casualty Co., 557 N.E.2d 1084, 1086 (Ind. Ct. App. 1990); Quincy Mut. Fire Ins. Co. v. Abernathy,
393 Mass. 81, 86, 469 N.E.2d 797, 800 (1984).
The majority holds that summary judgment is inappropriate because the
insured disavowed an intent to injure plaintiff. The insured stated in his
deposition that his intention was to frighten plaintiff: "I was acting with
the concept in mind that the big bang would straighten this flaky bastard
out." He stated that he did not mean to aim at plaintiff, but rather
"inches or feet" above his ear. For the majority, these ex post statements
render defendant's actions equivocal. Although I would agree that these
statements create a genuine issue of material fact as to the insured's
intentions, I disagree that they create a genuine issue of material fact as
to his expectations.
The insured's own account of the shooting is as follows. After a
period of time during which plaintiff "appeared to be quite out of control,"
the insured perceived plaintiff lunging toward a letter opener lying on the
kitchen table separating them. The insured was in fear of plaintiff, and
felt that plaintiff was going to attack him. The insured reached for his
.22 calibre revolver, which was on top of the refrigerator behind him, and
in one continuous motion discarded the holster with a flick of his right
hand while cocking the gun with his left, fully extended his arms, and
squeezed the trigger. At that point plaintiff was eight to ten feet away
from insured and moving towards him. The bullet struck plaintiff near the
tear duct of his right eye. The insured admitted that he intended to cock
the gun, extend his arms, point the gun in the direction of plaintiff, pull
the trigger, and fire a bullet. He maintained that he was a good marksman,
and that the gun was accurately sighted.
On these facts, I would grant summary judgment on the ground that no
reasonable finder of fact could conclude other than that the insured must
have expected injury to result from his actions. The insured did not point
the gun away from plaintiff. He did not point it straight up or straight
down. Rather, he pointed it at the plaintiff's head and pulled the trigger.
Despite his contention that he intended to aim "inches or feet" above
plaintiff's ear, the insured certainly cannot contest that the gun was
actually pointed at the center of plaintiff's head from a distance of eight
to ten feet, as this is where the bullet lodged. As the majority concedes,
these actions are more unequivocal than those in Otterman v. Union Mutual
Fire Ins. Co., 130 Vt. 636, 642, 298 A.2d 547, 551 (1972) (affirming trial
court's finding that injury was neither "expected or intended" where insured
fired a shot into a dark room which passed through a wall and hit the
victim). Whatever the insured's intentions in this case, he must have been
aware that injury was substantially certain to result from his actions.
I find ample support for this view in cases from other jurisdictions.
In State Farm Fire & Casualty Co. v. Victor, 232 Neb. 942, 442 N.W.2d 880
(1989), the court affirmed a grant of summary judgment to the insurer where
the insured fired a .357 magnum at the doorway in which the victim was
standing. The insured's subjective intent was not resolved. The court held
that from the insured's actions, "it can only be concluded that as a matter
of law [insured] expected or intended to injure [decedent]." Id. at 946,
442 N.W.2d at 883. In Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570
(Minn. 1981) (en banc), the court upheld summary judgment for insurer
despite plaintiff's arguments that a specific intent to injure had not been
shown. In Woida, the insured and several friends drove to a construction
site to harass the guards. Where high-powered rifles with armor-piercing
bullets were fired "through the windshield of the [guards'] vehicle knowing
that someone could be seriously injured," the court found an intent to
injure as a matter of law. Id. at 573-74; cf. Travelers Ins. Co. v. Cole,
631 S.W.2d 661, 664 (Mo. Ct. App. 1982) (affirming trial court's finding
that injury was "intended or expected" where "insured's actions in
discharging a gun at [victim] in insured's residence was a dangerous act
from which harm was almost certain to result").
I find a statement in Tobin v. Williams, 396 So. 2d 562 (La. Ct. App.
1981), particularly apt. The court quoted the trial judge:
"[Insured] drew a loaded .357 magnum pistol, and thrust
it in the direction of the plaintiff, causing it to
discharge. Given this conduct, any reasonable person
would have to conclude that injuries were almost certain
to result from such a dangerous course of action. A
person who points a loaded pistol at someone and pulls
the trigger should not be absolved from liability simply
by claiming: 'I only meant to scare him.'"

Id. at 564; cf. Draffen v. Allstate Ins. Co., 407 So. 2d 1063, 1065 (Fla.
Dist. Ct. App. 1981) (insured, after committing robbery, fired six shots in
direction of pursuers whom he could not see, hitting with four of the shots;
holding injury "expected or intended," court noted that "[i]f Appellant had
intended merely to frighten his pursuers, he could have fired at the ground
or into the air. He did neither. Instead he fired in the direction of his
pursuers with what in different circumstances might be termed commendable
accuracy.").
Actions can speak louder than words. See Allstate Ins. Co. v. Freeman,
432 Mich. 656, 679, 443 N.W.2d 734, 745 (1989) (Riley, C.J., concurring in
part and dissenting in part). I would hold that the insured's actions were
such that he must have been aware that injury was substantially certain to
result, despite his later self-serving statements that he meant only to
frighten plaintiff. Because injury was substantially certain to result from
the insured's pulling the trigger of the gun while it was aimed at another
from close range, the injury was expected. Accordingly, summary judgment in
favor of State Farm was appropriate, and I would affirm the order of the
trial court.

Chief Justice

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