Espinet v. Horvath

ENTRY_ORDER.93-146; 161 Vt. 598; 657 A.2d 168

[Filed 21-Dec-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-146

                             DECEMBER TERM, 1993


 Frank Espinet                     }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Chittenden Superior Court
                                   }
                                   }
 Peter Horvath                     }
                                   }          DOCKET NO. S540-88CnC


              In the above entitled cause the Clerk will enter:


      This matter is back before this Court on appeal after remand to the
 Chittenden Superior Court.  The issue both in the original and the current
 appeal centers on a provision in the defendant's homeowners insurance
 policy, underwritten by intervenor State Farm Fire and Casualty Company,
 which excludes coverage for "bodily injury . . . which is expected or
 intended by an insured."  In his first appeal, plaintiff Frank Espinet
 challenged the Chittenden Superior Court's grant of State Farm's motion for
 summary judgment and subsequent dismissal from the action on the ground that
 defendant Peter Horvath's action in shooting plaintiff in the eye was
 intentional as a matter of law.  We reversed the court's ruling of law, and
 remanded for consideration of the facts.  See Espinet v. Horvath, 157 Vt.
 257, 260-61, 597 A.2d 307, 309-10 (1991).

      On remand, the trial court found that defendant's action was
 intentional, and therefore concluded that his actions were excluded from
 coverage under the State Farm policy.  Plaintiff now appeals, alleging error
 in the trial court's failure to make findings concerning plaintiff's theory
 that defendant was negligent in the storage of his handgun and that this
 negligence was the proximate cause of plaintiff's injuries.  This theory, if
 accepted, would ground the underlying suit on negligence and allow plaintiff
 to avoid the State Farm policy exclusion.  We, however, find no merit to the
 plaintiff's theory and thus affirm.

      Plaintiff contends that defendant's failure to store his handgun so
 that it would have been inaccessible to him when the sudden urge arose was a
 proximate cause of plaintiff's injuries.  As the argument runs, but for the
 defendant's "negligent storage" of the handgun, the gun would not have been
 within reach of defendant, and plaintiff would not have been shot.

      Plaintiff's theory is that a person can be negligent by creating an
 unreasonable risk to another through an expectable action, even if that
 expectable action constitutes an intentional tort, or even a crime.  See

 

 Restatement (Second) of Torts { 302(b).  What plaintiff overlooks, however,
 is that the intentional conduct that must be anticipated is the intentional
 conduct of the person injured or a third person.  See id. { 302B.  There is
 no support for the proposition that a defendant can be negligent for failing
 to anticipate and prevent his own intentional conduct.  Plaintiff's argument
 would allow a negligence theory in every intentional tort situation, the
 negligence being defendant's failure to avoid the circumstances that enabled
 him to commit the intentional tort.

      Moreover, plaintiff's argument does not address the policy exclusion.
 The policy excludes coverage for "bodily injury . . . which is expected or
 intended by an insured."  Plaintiff has not appealed the trial court's
 finding that his injury was expected or intended.  His claim is that
 defendant was also negligent in bringing it about.  Defendant's additional
 negligence, even if we recognized it, would not change the finding of an
 intentional act and would not take this case out of the policy exclusion.
 See Levesque v. Saba, 402 So. 2d 266, 273 (La. Ct. App. 1981) (under similar
 policy exclusion fact that defendant, after shooting plaintiff, was
 negligent in failing to summon medical help for plaintiff does not avoid
 exclusion of coverage because defendant expected to injure plaintiff).

      Because of our disposition, the failure of the trial court to address
 plaintiff's negligence theory in its findings and conclusions was harmless.


                                    BY THE COURT:




                                    Frederic W. Allen, Chief Justice


 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice