Landry v. Dairyland Insurance Co.

Landry v. Dairyland Insurance Co.  (96-385); 166 Vt. 634; 701 A.2d 1035

[Filed 2-Jul-1997]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-385

                              APRIL TERM, 1997


Scott Landry, Administrator of the    }   APPEALED FROM:
Estate of Robb E. Landry              }
                                      }
     v.                               }     Washington Superior Court
                                      }
Dairyland Insurance Company           }
                                      }     DOCKET NO. S0325-93WnC

       In the above-entitled cause, the Clerk will enter:

       Plaintiff appeals from a summary judgment ruling that his insurance
  policy's uninsured motorist provision does not cover intentional harm by an
  uninsured motorist.  We hold that the conduct at issue was not an
  "accident" under that provision, and accordingly, affirm the decision
  below.

       The parties have stipulated to the following facts.  On June 19, 1990,
  plaintiff and his brother were driving in plaintiff's Chevette, while James
  Darrow and another man drove in Darrow's van.  A dispute arose between the
  occupants of the two vehicles as they drove on Interstate 89 and then on
  U.S. Route 2.  Darrow pulled to the side of the road and stood beside his
  vehicle.  He then intentionally threw a tire iron at plaintiff's car as it
  passed; the tire iron struck plaintiff's brother in the head, killing him.

       Defendant Dairyland Insurance Company had issued plaintiff an
  insurance policy that included uninsured motorist coverage, and plaintiff's
  brother was a covered person under that policy.  Darrow had no insurance. 
  Plaintiff, as administrator of his brother's estate, brought this action
  for compensation under the uninsured motorist provision of his Dairyland
  policy.

       This provision states that Dairyland will "pay damages which a covered
  person is legally entitled to recover from the owner or operator of an
  uninsured motor vehicle because of bodily injury: (1) Sustained by a
  covered person; and (2) Caused by an accident," where such damages "arise
  out of the ownership, maintenance, or use of the uninsured motor vehicle."

       Plaintiff maintains that Darrow's intentionally throwing the tire iron
  qualifies as an "accident" under his insurance policy.  We disagree.  We
  construe insurance contracts according to their terms and the parties'
  intent as shown by those terms.  Utica Mut. Ins. Co. v. Central Vt. Ry.,
  133 Vt. 292, 295, 336 A.2d 200, 203 (1975).  Since the policy does not
  define the word "accident," we presume the parties relied on the word's
  ordinary meaning.  We have previously noted that "`Accident'. . . in its
  common significance means an unexpected happening without intention and
  design," and held that an injury resulting from a willful act was no
  accident because the harm had been intended.  Anton v. Fidelity & Casualty
  Co., 117 Vt. 300, 305, 91 A.2d 697, 700 (1952) (considering whether
  insured's own intentional act fell within terms of his accident policy);
  see also Wendell v. Union Mut. Fire Ins. Co., 123 Vt. 294, 297, 187 A.2d 331, 332 (1963) (assault and battery not accident under homeowner's
  insurance policy).

       Following this definition, Darrow's throwing the tire iron cannot be
  characterized as an accident.  To the contrary, it is undisputed that he
  acted purposefully and intended to harm either the vehicle or its
  passengers.  Courts in other jurisdictions have reached the same conclusion
  in

 

  analogous cases.  See Bowen v. Lloyds Underwriters, 162 N.E.2d 65, 66
  (Mass. 1959) (bodily injuries caused by assault and battery not
  "accidental" under insurance policy); Petersen v. Croft, 447 N.W.2d 903,
  906-07 (Minn. Ct. App. 1989) (intentionally firing gun at house from
  uninsured car, unexpectedly killing victim outside, not accident under
  plaintiff's uninsured motorist policy); McCarthy v. Motor Vehicle Accident
  Indem. Corp., 224 N.Y.S.2d 909, 915-16 (N.Y. App. Div. 1962) (one insured
  motorist's deliberate collision with another, because intentional, not
  covered by tortfeasor's own accident insurance or plaintiff's uninsured
  motorist coverage), aff'd, 188 N.E.2d 405 (N.Y. 1963); Murray v.
  Landenberger, 215 N.E.2d 412, 415 (Ohio Ct. App. 1966) (because uninsured
  motorist intentionally and maliciously ran into plaintiff's vehicle with
  his own, not an accident).

       Plaintiff further argues that 23 V.S.A. § 941, the uninsured motorist
  statute, requires coverage in this case.  In support of his position,
  plaintiff cites other jurisdictions that have characterized mishaps as
  "accidents" under uninsured motorist provisions merely because they were
  unforeseen by the victim.  See Government Employees Ins. Co. v. Novak, 453 So. 2d 1116, 1118 (Fla. 1984) (accident where pedestrian shot insured
  driver, removed her from car, got in, and drove away); General Accident
  Ins. Co. v. Olivier, 574 A.2d 1240, 1242 (R.I. 1990) (accident where
  uninsured motorist shot and killed insured motorist after auto collision). 
  We do not find these decisions persuasive.  The word "accident" ordinarily
  implies lack of intent by the responsible parties, rather than the victim's
  lack of foresight.

       The purpose of § 941 is to "compensate accident victims for damages
  caused by uninsured motorists who are found or are conceded to have been
  negligent."  Bradley v. H.A. Manosh Corp., 157 Vt. 477, 484, 601 A.2d 978,
  983 (1991) (emphasis added).  The uninsured motorist provisions are
  intended to put a covered person in the same position as if the uninsured
  motorist had been insured.  Id.  A tortfeasor's insurance does not
  typically cover intentional acts.  We note that plaintiff's own insurance,
  in this case, explicitly excludes coverage of any person "[w]ho
  intentionally causes bodily harm or property damage."  Cf. McCarthy, 224 N.Y.S.2d  at 916; Murray, 215 N.E.2d  at 415.  Imposing coverage for
  intentional damage by other motorists would expand 23 V.S.A. § 941 beyond
  its intended scope.

       As we hold that Darrow's intentionally throwing the tire iron was not
  an "accident" under plaintiff's uninsured motorist provision, we do not
  consider whether Darrow's liability arose out of the ownership,
  maintenance, or use of the uninsured motor vehicle.

       Affirmed.


                              BY THE COURT:

                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice