ALLSTATE INSUR CO V ROBERT DANIEL MCCARN
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
ALLSTATE INSURANCE COMPANY,
Plaintiff-Appellee,
v
No. 122849
ROBERT DANIEL MCCARN, ET AL.,
Defendants-Appellants,
and
NANCY S. LABELLE, personal representative
of the estate of KEVIN CHARLES LABELLE,
deceased,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
AFTER REMAND
This
case
is
before
us
for
the
second
time.
In
Allstate Ins Co v McCarn, 466 Mich 277; 645 NW2d 20 (2002)
(McCarn
I),
we
held
that
the
shooting
death
of
Kevin
LaBelle was “accidental” and, thus, an “occurrence” within
the meaning of the insurance policy at issue.
Because the
shooting was an “occurrence” covered under the policy, it
gave
rise
to
Allstate’s
potential
liability.
However,
because the Court of Appeals had not addressed whether the
criminal-acts exception in the policy precluded coverage,1
we remanded the matter to that Court.
On remand, the Court
of Appeals held that the criminal-acts exception precludes
coverage
in
this
case.2
We
disagree
decision of the Court of Appeals.
and
reverse
the
We remand to the trial
court for further proceedings.
I.
FACTS
AND
PROCEEDINGS
We set forth the facts in our previous opinion:
This case arises out of the death of
sixteen-year-old Kevin LaBelle on December 15,
1995, at the home of defendants Ernest and
Patricia McCarn, where their grandson, then
sixteen-year-old defendant Robert McCarn, also
resided. On that day, Robert removed from under
Ernest’s bed a shotgun Robert’s father had given
him the year before.
The gun was always stored
under Ernest’s bed and was not normally loaded.
Both Robert and Kevin handled the gun, which
Robert believed to be unloaded. When Robert was
handling the gun, he pointed it at Kevin’s face
from approximately one foot away.
Robert pulled
back the hammer and pulled the trigger and the
gun fired, killing Kevin.
Nancy LaBelle, representing Kevin’s estate,
brought the underlying action against Robert and
his grandparents, Ernest and Patricia McCarn, who
had a homeowners insurance policy with plaintiff
1
Unpublished opinion per curiam, issued October 3,
2000 (Docket No. 213041).
2
Unpublished opinion per curiam, issued November 15,
2002 (Docket No. 213041).
2
Allstate.
Allstate brought the present action,
seeking a declaratory judgment that it had no
duty to indemnify defendants Robert, Ernest, or
Patricia McCarn.
Plaintiff and defendants moved for summary
disposition in the declaratory action. The trial
court granted defendants’ motions for summary
disposition and denied plaintiff’s, holding that
the events constituted an “occurrence” within the
meaning of Allstate’s policy.
The trial court
also held that Robert McCarn’s conduct was not
intentional or criminal within the meaning of
Allstate’s policy.
Allstate appealed to the Court of Appeals,
which reversed the trial court in an unpublished
opinion.1 The Court attempted to apply our recent
decisions in Nabozny v Burkhardt2 and Frankenmuth
Mut Ins Co v Masters3 and concluded that “Robert’s
intentional actions created a direct risk of harm
that precludes coverage.” [McCarn I at 279-280.]
1
Issued October 3, 2000 (Docket No. 213041).
2
461 Mich 471; 606 NW2d 639 (2000).
3
460 Mich 105; 595 NW2d 832 (1999).
This
Court
reversed
the
decision
of
the
Court
of
Appeals, holding that the “accident” was an “occurrence” as
defined in the insurance policy at issue, thus giving rise
to Allstate’s potential liability.
Id. at 291.
Once a
court decides that liability may exist under an insurance
policy, it may then determine whether coverage is precluded
by an exception.
Allstate Ins Co v Freeman, 432 Mich 656,
668; 443 NW2d 734 (1989).
Because the Court of Appeals
originally found no liability, it did not determine whether
the criminal-acts exclusion precluded coverage under the
3
policy.
Because the Court of Appeals had not addressed
this exclusion, we remanded the issue to that Court to
determine if it applied.
McCarn I at 291.
On remand, the Court of Appeals, in a split opinion,
applied
the
two-pronged
test
from
Freeman
and
concluded
that Robert acted criminally under the first prong of the
test because his actions constituted manslaughter under MCL
750.329.
Slip op at 2-4.
The Court of Appeals determined
that the applicability of the exclusionary clause “turns on
whether LaBelle’s death was reasonably expected to result
from Robert’s criminal act.”
concluded
that
“a
person
Slip op at 3.
who
points
a
The panel then
gun
at
another
person’s face and intentionally pulls the trigger without
checking to see whether the gun is loaded can reasonably
expect
that
dissenting
injury
judge
will
also
result.”
applied
the
Slip
op
at
two-pronged
4.
The
test
from
Freeman, but concluded that “reasonable minds could differ
regarding whether Kevin’s death occurred as the natural,
foreseeable, expected, and anticipated result of Robert’s”
acts. Slip op at 3 (White, J., dissenting).
defendants’ application for leave to appeal.
We granted
469 Mich 947
(2003).
II.
To
determine
STANDARD
whether
OF
REVIEW
Allstate
is
obligated
to
indemnify the McCarns, we examine the insurance policy at
4
issue.
Issues
involving
the
proper
interpretation
insurance contracts are reviewed de novo.
of
Cohen v Auto
Club Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001).
An insurance policy must be enforced in accordance with its
terms, which are given their “commonly used meaning” if not
defined in the policy.
Frankenmuth Mut Ins Co v Masters,
460 Mich 105, 112, 114; 595 NW2d 832 (1999).
III. ANALYSIS
When this case was last before us, in interpreting the
following
arising
language,
from
an
“Allstate
occurrence,”
will
we
pay
damages
concluded
that,
.
on
.
.
the
basis of undisputed facts, the shooting was an accident
triggering Allstate’s liability.
Justice Cavanagh, writing
for the Court, said:
[T]his case does not present a question of
fact. The fact that Robert believed the gun was
unloaded is a matter about which there is no
genuine issue of material fact. This is because
there is nothing in the record to reasonably
support a conclusion that, contrary to Robert's
testimony that he believed the gun was unloaded,
he consciously believed the gun was loaded, or
even contemplated that there was any possibility
that it was loaded when he pulled the trigger.
Even plaintiff, the insurer, acknowledged that
Robert believed the firearm was unloaded when he
pulled the trigger . . . .
[McCarn I, supra at
285-286.]
To this set of facts we then applied the requisite
subjective
test
and
concluded
that
Robert’s
expectation
that no bodily harm would result from an unloaded gun was
5
reasonable.
Id. at 291.
The wisdom of shooting even an
unloaded gun at another in the first place was, and is, not
before us.
In
this
case,
we
deal
with
other
policy
language,
which is commonly described as the criminal-acts exclusion.
It states:
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
capacity to govern his or her conduct;
mental
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.
This language directs us to apply a two-pronged test.
There is no insurance coverage if, first, the insured acted
either
intentionally
or
criminally,
and
second,
the
resulting injuries were the reasonably expected result of
an insured’s intentional or criminal act.
We agree with
the Court of Appeals that the first prong of this test—that
there was an intentional or criminal act—has been met.
6
Answering the second prong of the test, whether the
resulting injury was the reasonably expected result of this
criminal act, requires this Court to engage in an objective
inquiry.
Allstate Ins Co v Freeman, 432 Mich 656, 688; 443
NW2d 734 (1989) (opinion by Riley, J.).
determine
totality
whether
of
the
a
reasonable
facts
That is, we are to
person,
possessed
expected the resulting injury.
by
possessed
Robert,
of
would
the
have
This requirement to base
the objective reasonability test on all the facts has been
discussed by scholars of tort law:
“The conduct of the
reasonable person will vary with the situation with which
he is confronted.
The jury must therefore be instructed to
take the circumstances into account . . . .”
Prosser &
Keeton,
have
Torts
(5th
ed),
§
32,
at
175.
We
held
similarly in our cases, “[T]he reasonable person standard
examines the totality of the circumstances to ensure a fair
result.”
Radtke v Everett, 442 Mich 368, 391; 501 NW2d 155
(1993).
This means that here we must consider not just
that
Robert,
as
the
Court
of
Appeals
described
it,
“point[ed] a gun at another person’s face and intentionally
pull[ed]
the
trigger,”
but
also,
as
Allstate
itself
acknowledges, that Robert thought the gun that he pointed
was unloaded.
Slip op, November 15, 2002, p4; McCarn I,
7
supra at 286.3
Thus, we are called on to determine if a
reasonable person would have expected bodily harm to result
when the gun, in the unloaded state Robert believed it to
be, was “fired.”
The answer is no because, obviously, an
unloaded gun will not fire a shot.
As this Court explained
in McCarn I, supra at 290-291:
[No] bodily harm could have been foreseen
from Robert’s intended act, because he intended
to pull the trigger of an unloaded gun, and,
thus, it was not foreseeable, indeed it was
impossible, under the facts as Robert believed
them to be, that shot would be discharged.
To recapitulate, the proper test is that we are to
first determine what Robert actually believed about the gun
being loaded, not what a reasonable third party would have
believed
on
that
issue.
Then,
using
that
belief
as
a
starting point, we are to determine in the second step if a
reasonable person, possessed of Robert’s belief, would have
expected bodily harm to result from pulling the trigger.
In fact, because reasonable minds could not differ that an
3
That Robert believed the gun was unloaded is
uncontested. Allstate has never argued, as it might have,
that Robert did not believe the gun was unloaded.
To the
contrary, Allstate’s brief in support of its motion for
summary disposition notes that Robert pulled the trigger
even though “he thought the gun was unloaded.”
Even when
arguing most recently before this Court, counsel for
Allstate said, “It is a fact that he subjectively believed
that the gun was unloaded,” and, “Subjectively he believed
it wasn’t loaded.”
Because Allstate did not contest this
issue, there is no disputed issue of fact regarding his
belief.
8
unloaded gun will not fire a shot, it is appropriate under
MCR
2.116(C)(10)
to
grant
summary
disposition
to
defendants.
IV. RESPONSE
TO DISSENTS
The dissent of Justice Weaver is predicated on the
notion that insurance policies should not cover the acts of
foolish,
reckless,
or
even
lawless
people.
This
is
a
peculiar view because these are among the very people that
society wishes to be insured and, in some circumstances,
such
as
insured.
motor
vehicle
MCL 500.3101.
insurance,
even
requires
to
be
She seems to regard insurance as
solely benefiting the insured and thus when it pays out it
is a form of reward.
This overlooks, however, the societal
benefit that insurance provides to those injured or damaged
by
the
acts
individuals.
of
insured
but
otherwise
uncollectible
The true beneficiary of liability insurance
is not the insured, but his injured victim.
The Court of
Appeals said this aptly twenty years ago:
[I]t is unlikely that [an] insured [is]
induced to engage in the unlawful conduct by
reliance upon the insurability of any claims
arising therefrom or that allowing insurance
coverage
. . . would induce future similar
unlawful conduct . . . . Nor does it appear that
the policy was obtained in contemplation of a
violation of the law. Furthermore, coverage does
not allow the wrongdoer unjustly to benefit from
his wrong.
It is not the insured who will
benefit, but the innocent victim who will be
provided
compensation
for
her
injuries.
9
[Vigilant Ins Co v Kambly, 114 Mich App 683, 687;
319 NW2d 382 (1982) (citations omitted).]
As for Justice Young’s dissent, he posits that the
majority opinion is based on the majority’s public policy
notions.
We
disagree.
Rather,
our
decision
is
based
entirely on the language of the insurance policy at issue
here.
The policy excludes coverage of injuries which “may
reasonably be expected to result from the intentional or
criminal
acts”
of
the
insured.
Because
one
would
not
reasonably expect injury to result from pulling the trigger
of an unloaded gun, coverage is not excluded.
He further indicates that the majority has conflated
the subjective and objective inquiries called for by the
policy
and
insurer.
has
gutted
the
We again disagree.
exclusion
of
any
use
to
the
We have simply drawn the line
the policy calls for between what the insured believed at
the point of the intentional or criminal act and applied to
that belief what a reasonable person could expect to result
from that act.
Thus if, as here, an insured believes a gun
is unloaded, and in this case it is conceded by the insurer
that Robert indeed did believe that, then no reasonable
person could believe, given that starting point, that a
shot would come from the gun when fired.
On the other
hand, if an insured believes a gun is loaded and operable
when he points it at someone and pulls the trigger but, for
10
whatever reason, expects no shot to come from it and thus
does not expect harm to result, there would be no coverage
because a reasonable person would expect a shot to come
from a loaded, operable gun and that harm would result from
that.4
The point is the insured’s expectations of what will
result from his act are irrelevant.
It should also be pointed out that we believe that the
effect of Justice Young’s position would be that if a harm
or injury results from an intentional or criminal act it
will
almost
exclusion.
case.
never
be
covered
under
a
policy
with
this
This result can be seen in his approach to this
Because he can reason back and know that the gun was
loaded,
he
concludes
that
the
policy
that there is no insurance coverage.
exclusion
dictates
Yet, we believe such
hindsight reasoning is an improper mode of analysis for
this accident.
In hindsight, an insurer might always be
able
backwards
to
reason
from
an
accident
and
conclude
that, by definition, a reasonable person would not have
done whatever precipitated such accident.
The
dissents’
approaches
would
eviscerate
insurance
policies of much of their value to insureds, leaving only
“occurrences
McCarn
4
I,
that
supra
were
at
289.
truly
Yet,
unexplainable”
unforeseen,
unfortunate
This is essentially what happened in Freeman.
11
covered.
consequences
of
explicable
or
even
intentional
“the very purpose of insurance . . . .”
acts
are
Id. at 288.
As
this Court stated in McCarn I, supra at 288, “We must be
careful not to take the expectation of harm test so far
that we eviscerate the ability of parties to insure against
their
own
coverage
Id.
negligence.”
for
negligence
“Otherwise,
would
seem
liability
to
become
insurance
illusory.”
“The problem, as we see it, with the dissent’s opinion
is that it undermines the ability of insureds to protect
themselves against their own foolish or negligent acts.”
Id.
“However, the impetus for insurance is not merely, or
even principally, to insure oneself for well thought out
and reasoned actions that go wrong, but to insure oneself
for foolish or negligent actions that go wrong.
Indeed, it
is obviously the latter that are more likely to go astray
and to precipitate the desire for insurance.”
Id.
extent
ability
that
insureds
family
the
to
dissents
protect
would
themselves
members’—foolish
or
erode
against
stupid
the
To the
theirs—or
acts,
they
of
their
would
eviscerate insurance contracts of much of their purpose and
value.
approach
This is simply to say that with Justice Young’s
there
intentional
or
would
be
criminal
resulting from the act.
insurance
in
such
seemingly
act
no
where
coverage
there
was
for
any
injury
This would narrow those having
circumstances
12
greatly
and
perhaps
entirely.
policy
This
disturbing
provision
intended,
outcome
cannot
nor
it
is
be
what
what
the
this
policy
language calls for.
V.
CONCLUSION
We hold that there is no question of fact whether
Kevin’s
death
Robert’s act.
was
the
reasonably
expected
result
of
Accordingly, we reverse the judgment of the
Court of Appeals and remand to the trial court for further
proceedings.
Clifford W. Taylor
Marilyn Kelly
Stephen J. Markman
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
13
S T A T E
O F
M I C H I G A N
SUPREME COURT
ALLSTATE INSURANCE COMPANY,
Plaintiff-Appellee,
v
No. 122849
ROBERT DANIEL MCCARN, ET AL,
Defendants-Appellants,
and
NANCE S. LABELLE, personal representative
of the estate of KEVIN CHARLES LABELLE,
deceased,
Defendants-Appellants.
WEAVER, J. (dissenting).
I would hold that the intentional and criminal acts
exclusion
of
the
homeowner’s
insurance
policy
at
issue
excludes coverage in this case.
I would remand this case
to
of
the
trial
defendant.
court
for
entry
summary
judgment
for
I, therefore, dissent from both the result and
reasoning of the lead opinion.
After
sharing
intentionally
aimed
a
a
bowl
of
shotgun
marijuana,
at
Kevin
Robert
LaBelle’s
without checking whether the shotgun was loaded.
McCarn
face
McCarn’s
testimony revealed that he was horse playing, but intended
to frighten LaBelle into sharing some crackers with him.
When
McCarn
pulled
LaBelle was killed.
the
trigger,
the
gun
discharged
and
McCarn pleaded nolo contender to a
charge of manslaughter, MCL 750.321.
The
intentional
or
criminal
acts
exclusion
of
the
policy now at issue unambiguously states:
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
capacity to govern his or her conduct.
mental
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.
Unambiguous insurance policy language must be enforced as
written.
Farm Bureau Ins Co v Nikkel, 460 Mich 558, 570;
596 NW2d 915 (1999).
This Court addressed a similar exclusionary clause in
Allstate Ins Co v Freeman, 432 Mich 656, 685; 443 NW2d 734
(1989).
The exclusion at issue in Freeman provided:
We do not cover any bodily injury or
property damage which may reasonably be expected
to result from the intentional or criminal acts
2
of an insured person or which is in fact intended
by an insured person. [Freeman at 685.]
Freeman held that the exclusionary clause at issue in that
case relieved the insurer of liability if “(1) the insured
acted
either
intentionally
or
criminally,
and
(2)
the
resulting injuries occurred as the natural, foreseeable,
expected,
and
anticipated
result
intentional or criminal acts.”
of
an
insured’s
Id. at 700 (emphasis in
original).
Though
similar
to
the
policy
at
issue
in
Freeman,
there are important differences to the policy language at
issue in this case.
The criminal acts exclusion of the
homeowner’s
policy
broader
insurance
than
subsections
exclusion.
that
that
in
at
issue
Freeman.
expressly
in
It
expand
the
this
case
includes
scope
is
three
of
the
Relevant to this case, subsection b provides
“[t]his exclusion applies even if . . . Such
bodily injury or property damage is of a
different kind or degree than intended or
reasonably expected. . . .”
Subsection b applies because “even if” indicates that the
subsections
exclusion.
are
included
Thus,
in
and
consideration
help
of
define
the
the
policy
specific
policy
language at issue in this case requires some adjustment to
Freeman’s second prong for this case.
Subsection b shifts
the inquiry away from the actual injury that resulted from
intentional
or
criminal
actions,
3
to
whether
any
bodily
injury or property damage could be reasonably expected to
result from the actions.
Nevertheless, to the extent the policy at issue in
this case is similar to the policy at issue in Freeman,
Freeman’s
Freeman,
two-pronged
supra
at
700,
objective
test
correctly
is
instructive.
identified
the
first
question under policy language before the Court as whether
“the insured acted either intentionally or criminally.”
I
agree with the lead opinion that the policy requirement
that
McCarn
acted
intentionally
or
criminally
is
met.
McCarn acted intentionally when he pulled the trigger of a
gun while pointing it at LaBelle’s face.
As correctly
explained by the Court of Appeals, McCarn’s actions were
also criminal.
Regarding whether it was reasonable to expect injury
or property damage would result from the intentional or
criminal act, it is the consensus of this Court Freeman
correctly employed an objective inquiry.
The dispositive
question under the language of this policy and the facts of
this case should be, therefore, whether a reasonable person
would expect bodily injury or property damage to result
when a person points a gun at another person’s face without
determining whether the gun was loaded and then pulls the
trigger.
4
While the lead opinion acknowledges that the language
“may
reasonably
standard,
ante
be
at
7,
expected”
the
pretends to be objective.
lead
dictates
opinion’s
an
objective
rationale
only
By focusing on McCarn’s belief
that the gun was unloaded, ante at 7, the lead opinion
abandons the objective standard in favor of the subjective
belief
of
a
Fortunately,
teenager
under
the
opinion’s
lead
the
influence
rationale
of
marijuana.
will
not
bind
future decisions, because it was joined by only two other
justices.
only.
One justice joins the lead opinion in result
Three
incorrectly
justices
transforms
agree
the
that
objective
the
lead
standard
opinion
into
a
subjective standard.
An established rule in construing insurance contracts
is that “[a]n insurer is free to define or limit the scope
of coverage as long as the policy language fairly leads to
only
one
reasonable
interpretation
contravention of public policy.”
and
is
not
in
Heniser v Frankenmuth Mut
Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995).
The lead
opinion implies that it is against public policy to deny
coverage in this case.
Ante at 8.
To indirectly support
this suggestion, the lead opinion vaguely alludes to the
no-fault act, MCL 500.3101 et seq.
Ante at 8.
However,
the lead opinion utterly fails to understand that the no-
5
fault act is irrelevant to this case because there is an
important
difference
homeowner’s
Legislature
between
insurance.
expressly
no-fault
In
requires
insurance
the
no-fault
that
the
and
act,
insurer
MCL
There is no such requirement imposed on
homeowner’s insurance providers by any statute.
Legislature
the
provide
residual coverage for intentionally caused damages.
500.3135(3)(a).
the
intended
to
require
homeowner’s
Had the
insurance
providers to cover criminal and intentional acts it could
have done so.
Thus the lead opinion has not established
that the homeowner’s insurance policy exclusion at issue is
against
1
public
policy.1
The
lead
opinion
twists
the
Not only is the no-fault act irrelevant to the this
case, the lead opinion’s citation of Vigilant Ins Co v
Kambly, 114 Mich App 683, 687; 319 NW2d 382 (1982) is also
entirely irrelevant and inapplicable.
Vigilant involved
whether a medical malpractice insurer was required to
provide coverage for a malpractice claim against a doctor
who engaged in sexual activity with a patient under the
guise of medical treatment.
It should be noted that
medical malpractice is governed by different statute than
homeowner’s insurance. Moreover, the malpractice insurance
policy in that case contained no criminal or intentional
acts exclusion. Thus, the Court of Appeals panel declined
to read a criminal and intentional acts exclusion into the
policy.
The panel concluded, supra at 687-688, that the
doctor’s actions were a covered form of malpractice and
noted “[i]n this instance, there is great public interest
in protecting the interests of the injured party.”
Nevertheless, the panel noted, id at 687, that there are
“public policy considerations raised by [the medical
malpractice insurer] which prohibit the insurability of
criminal or intentionally tortuous conduct” which were not
present on the facts of that case. Thus, Vigilant does not
support the lead opinion’s policy-making intentions.
6
objective
standard
required
by
the
policy
exclusion
at
issue in this case into a subjective standard in order to
justify holding “an insurer liable for a risk it did not
assume.”2
In this case, interpreting the unambiguous terms of
this homeowner’s insurance policy exclusion, the relevant
focus is on whether any bodily injury or property damage
could reasonably be expected from the McCarn’s intentional
or
criminal
act.
The
intentional
and
criminal
acts
exclusion of the homeowner’s insurance policy at issue in
this case plainly and unambiguously excludes coverage under
these facts since bodily injury can reasonably be expected
to result when, without first determining that a gun is
unloaded, a person points the gun at another person and
pulls the trigger.
For these reasons, I dissent from the lead opinion and
would affirm the decision of the Court of Appeals excluding
coverage under the intentional and criminal acts exclusion
of the home owner policy at issue.
Elizabeth A. Weaver
Maura D. Corrigan
2
Farm Bureau, supra at 568, citing Auto-Owners Ins Co
v Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992).
7
S T A T E
O F
M I C H I G A N
SUPREME COURT
ALLSTATE INSURANCE COMPANY,
Plaintiff-Appellee,
v
No. 122849
ROBERT DANIEL MCCARN, ET AL,
Defendants-Appellants,
And
NANCY S. LABELLE, personal representative
of the estate of KEVIN CHARLES LABELLE,
deceased,
Defendants-Appellants.
_______________________________
YOUNG, J. (dissenting).
I concur fully in the dissenting opinion of Justice
WEAVER,
but
write
separately
Justice TAYLOR’S lead opinion:
to
highlight
the
import
of
Today, the members of the
lead opinion,1 for unarticulated policy reasons of their
own, ignore the explicit contract language at issue and
obliterate the distinction recognized in our law between
1
I note that the lead opinion has garnered only three
votes for its rationale; Justice CAVANAGH has concurred only
in the result. Therefore, the lead opinion has no
precedential value.
People v Jackson, 390 Mich 621, 627;
212 NW2d 918 (1973).
subjective and objective standards in insurance exclusion
provisions.2
In an apparent policy-driven view that even the most
fanciful
beliefs
merit
insurance
coverage,
the
standard
articulated by the lead opinion conflates any meaningful
distinction between a subjective and objective contractual
standard.
The lead opinion cites no precedent or other
legal authority for its position.
There is none.
The new
alleged “objective standard” announced in the lead opinion
today leaves an insurer unable to exclude even the most
dangerous intentional or criminal behavior from coverage as
a matter of law, so long as an insured claims to believe
that something innocuous would result from his dangerous
conduct.3
The policy language of exclusion at issue here
2
I can only hope that this departure from the general
principle that contracts are to be enforced as written is a
limited one that will not recur. Compare, Wilkie v AutoOwners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003),
wherein this Court reinforced the “bedrock principle of
American contract law that parties are free to contract as
they see fit, and the courts are to enforce the agreement
as written absent some highly unusual circumstance, such as
a contract in violation of law or public policy.”
3
I do not believe that it is possible for Allstate to
disprove Robert’s claimed beliefs regarding the status of
the gun. Allstate could prove that the belief was not
reasonable under the circumstances, but I am unsure how
they could prove that the belief did not in fact exist.
Moreover, the evidence does not support a finding that
Allstate conceded that Robert thought the gun was unloaded.
2
could
not
more
explicitly
intentional or criminal
preclude
coverage
conduct of an insured.
for
the
I believe
it to be the view of those joining the lead opinion that it
would violate an as yet unarticulated “public policy” if an
insurer could by contract preclude coverage under the facts
of
this
case.
Indeed,
the
lead
opinion
(and
its
bastardization of the traditional objective standard that
should be applied here) seems driven by its concern that
“an intentional or criminal act
. . . will almost never be
covered by a policy with this exclusion”.
My response is
that I am prepared to enforce the contract the parties have
made as written.4
Insurance
against
expressly
contracts
injuries
exclude
caused
generally
by
coverage
provide
indemnity
“accidents”.
When
for
caused
injuries
they
by
At most, Allstate merely agreed that Robert said he
believed the gun to be unloaded.
Conceding that Robert
made a statement and conceding that his statement was true
are entirely different matters.
4
The lead opinion suggests that I conclude that an
intentional or criminal act “will almost never be covered
under a policy with this exclusion”.
I do not.
I do
believe that each case will turn on its facts and that what
is “reasonable” may have to be determined by a trier of
fact.
I am agnostic regarding whether all, a majority or
no cases involving a criminal act are covered under policy
language at issue here so long as the policy language is
given meaning. I will not, as the lead opinion does, ignore
the contract language and “direct the verdict” as a matter
of law by manipulating the traditional objective standard
of review.
3
intentional
or
criminal
behavior
as
determined
by
a
“reasonable person” objective standard, I am prepared to
apply
the
Michigan
traditional,
courts
have
unvarnished
employed
in
objective
assessing
standard
whether
the
injury was “reasonably expected”.
The
intentional
or
criminal
acts
exclusion
of
the
policy at issue precludes coverage for injuries or damage
“which
may
reasonably
be
expected
to
result”
from
the
intentional or criminal acts or omissions of an insured.
For time out of mind until now, common law courts have
understood the distinction between subjective and objective
standards.5
5
An objective test assesses what a reasonable
For an example of
the reasonable person
Radtke v Everett,
442
166 (1993) describes the
how we have consistently described
objective standard in Michigan,
Mich 368, 390-391, 501 NW2d 155,
standard as follows:
As described by Dean Prosser, the reasonable
person standard has been carefully crafted to
formulate one standard of conduct for society:
The standard of conduct which the community
demands must be an external and objective one,
rather than the individual judgment, good or bad,
of the particular actor; and it must be, so far
as possible, the same for all persons, since the
law can have no favorites.
* * *
The courts have gone to unusual pains to
emphasize the abstract and hypothetical character
of this mythical person. He is not to be
identified with any ordinary individual, who
might occasionally do unreasonable things; he is
4
person
would
have
believed,
while
a
subjective
test
is
concerned about determining what the actual actor believed.
In this context, where all members of this Court agree the
contract requires application of an objective standard, I
contend that what may “reasonably be expected to result”
from
an
person
insured’s
reaches
acts
after
is
the
examining
conclusion
all
information available to the insured.
of
a
reasonable
the
pertinent
See footnote 5.
The
belief of the insured, on the other hand, is the subjective
conclusion
reached
information.
by
the
insured
armed
with
the
same
While the belief of the insured may be a
a prudent and careful person, who is always up to
standard.... He is rather a personification of a
community
ideal
of
reasonable
behavior,
determined by the jury's social judgment. The
chief advantage of this standard is that it
enables triers of fact to look to a community
standard rather than an individual one, and at
the same time to express their judgment of what
that standard is in terms of the conduct of a
human being.’ Furthermore, the reasonable person
standard
examines
the
totality
of
the
circumstances to ensure a fair result. Hence, the
reasonable
person
standard
is
sufficiently
flexible to incorporate gender as one factor,
without destroying the vital stability provided
by uniform standards of conduct (Emphasis added;
internal citation omitted).
Justice Taylor approvingly cited to this passage in
his concurring statement in Sidorowicz v Chicken Shack,
Inc, 469 Mich 912; 673 NW2d 106 (2003). Thus, his position
in the present case is hard to reconcile with his previous
position regarding the correct application of the objective
reasonable person standard.
5
fact, it is not an ultimate fact6 essential to determining
what may reasonably be expected to result from an insured’s
actions.
The
lead
opinion
errs
in
using
the
insured’s
subjective belief (purportedly) “as a starting point,” then
insisting
that
determining
the
whether
“objective”
a
evaluation
reasonable
proceed
person,
sharing
by
the
insured’s subjective belief, would expect the same result.
Requiring
that
the
reasonable
person
take
as
a
determinative fact the insured’s subjectively beliefs about
his acts violates every known formulation or application of
the traditional objective standard.
The majority cites no
authority for its contrary and idiosyncratic formulation of
its “objective” standard.
contexts,
this
Court
It is noteworthy that, in other
has
expressly
repudiated
similar
efforts to make subjective an objective standard.7
Thus, it is unclear why (and on what authority) the
lead opinion concludes that a reasonable person should be
required
to
possess
the
same
(and
entirely
subjective)
belief as the insured.
6
Black’s Law Dictionary defines ultimate facts as
those “facts essential to the right of action or matter of
defense; facts necessary and essential for decision by
court.”
7
See, Radtke v Everett, 442 Mich 368; 501 NW 2d 155
(1993).
6
As I argued in McCarn I, a reasonable person could
certainly come to a different belief regarding the expected
consequences under the known and undisputed facts of this
case.8
Under the standard announced by the lead opinion, I
cannot
envision
a
single
scenario
where
a
“reasonable
person” expectation could ever diverge from the insured’s
expectation.9
More critically, I am at a loss to determine
any difference, much less a qualitative one,
purported
objective
standard
articulated
between the
in
the
lead
opinion today and the policy exclusion language found to
8
It is important to recall that all of the facts and
circumstances known about this shooting were provided by
McCarn’s deposition testimony. McCarn owned the shotgun and
admitted that he did not check to see whether the gun was
loaded before he deliberately pulled the trigger when the
barrel of the gun was one foot away from his friend’s face.
He also admitted to being the last person to use the gun,
and could not recall whether he unloaded the gun on that
occasion because he put the gun away “hot” — hurriedly in
order to avoid being caught using the weapon without adult
supervision. He further admitted to intentionally pulling
the trigger of the gun in an effort to frighten the victim
into sharing crackers. According to the lead opinion, none
of these undisputed facts provided by McCarn himself are
relevant in evaluating how a reasonable person would have
assessed the circumstances of the shooting because it
concludes that the only relevant fact is the insured’s
stated subjective belief that his gun was unloaded.
9
Indeed, the lead opinion incentivizes insureds to
manufacture their “beliefs” about insurance controversies
because, no matter how incompatible with the circumstances
or logic, the insured’s belief is the one that must be
assumed by the “reasonable person” when applying the lead
opinion’s so-called “objective” test.
7
require a subjective determination in Metropolitan Ins v
DiCicco.10
There, a policy which excluded damage “expected
or intended from the standpoint of the insured” was found
to require a subjective standard of expectation.11
I
note
that,
had
the
views
of
the
lead
opinion
garnered majority support, the subjective standard
have
become
the
uniform
standard
for
all
would
insurance
policies, no matter what language was actually used.
Under
the standard articulated by the lead opinion, an insurance
company would be required to provide coverage even where,
for example, an insured believes that his gun was magical
and would only play “The Star Spangled Banner” when the
trigger was pulled.
belief
as
a
expect
that
After all, using the insured’s claimed
starting
bodily
point,
harm
no
would
rendition of our national anthem.12
10
reasonable
result
person
from
a
would
rousing
I invite those Justices
432 Mich 656; 443 NW2d 734 (1989).
11
Id., 672. Had the policy language in this case been
similar to that found in DiCicco, I might agree with the
lead opinion’s resolution.
12
The majority disclaims that its new objective test
is anything novel and that all it is doing is drawing a
“line … between what the insured believed at the point of
the intentional or criminal act and applied it to what a
reasonable person could expect to result from that act.”
8
joining the lead opinion to explain why its analysis today
would permit a contrary result.
For these reasons, I would affirm the judgment of the
Court of appeals.
Robert P. Young, Jr.
Maura D. Corrigan
Ante at 11 (emphasis added).
In actuality, the lead
opinion is not considering what a reasonable person would
expect to result from the insured’s act, but the insured’s
stated subjective belief about the consequences of his act.
This is the “Russian Roulette” theory of objective
standards: “if I think the bullet is in another chamber,
I’m covered.”
Consequently, I see nothing inconsistent with my
hypothetical example (using an insured’s absurd belief that
his gun would play the national anthem when discharged as a
basis for recovery under this policy) and the lead
opinion’s application of its so-called objective standard
to the known facts of this case. Id. And the lead opinion
is especially hard pressed to explain why an insured’s
absurd beliefs should not be given absolute credence when
it applies its version of the objective standard when the
insured says he thought the gun was inoperable, unloaded,
or simply magical.
9
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