Dakota Fire Insurance Company, Respondent, vs. Mary J. Falkowski, Respondent, Jeffrey D. Forslund, Appellant (C0-00-729), Respondent (C7-00-730), Healthcare Recoveries, Inc., Respondent, Walmont, Inc., d/b/a Tiffany Sports Bar & Grille, Respondent (C0-00-729), Appellant (C7-00-730).

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-729

C7-00-730

 

Dakota Fire Insurance Company,

Respondent,

 

vs.

 

Mary J. Falkowski,

Respondent,

Jeffrey D. Forslund,

Appellant (C0-00-729),

Respondent (C7-00-730),

Healthcare Recoveries, Inc.,

Respondent,

Walmont, Inc., d/b/a Tiffany Sports Bar & Grille,

Respondent (C0-00-729),

Appellant (C7-00-730).

 

Filed December 5, 2000

Affirmed

Mulally, Judge*

 

Hennepin County District Court

File No. 0014607

 

Gregory A. Wohletz, Timothy P. Tobin, Gislason & Hunter, L.L.P., P.O. Box 5297, Hopkins, MN 55343 (for Dakota Fire Insurance Company)

 

Robert Joseph Kolstad, Anderson & Kolstad, 2919 East 42nd Street, Minneapolis, MN 55406 (for Mary J. Falkowski)

 

Richard S. Eskola, Moore, Halsey & Eskola, L.L.C., 7260 University Avenue Northeast, PACO Office Center, Suite 160, Fridley, MN 55432 (for Jeffrey D. Forslund)

 

Gregory P. Bulinski, Bassford, Lockhart, Truesdell & Briggs, P.A., 33 South Sixth Street, 3550 Multifoods Tower, Minneapolis, MN 55402 (for Healthcare Recoveries, Inc.)

 

Steven E. Tomsche, Susan A. Miller, Tomsche, Sonnesyn & Tomsche, P.A., Ten South Fifth Street, 888 Lumber Exchange Building, Minneapolis, MN 55402 (for Walmont, Inc.)

 

            Considered and decided by Stoneburner, Presiding Judge, Foley, Judge,**and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N

 

MULALLY, Judge

Respondent insurance company commenced a declaratory judgment action to determine whether it must defend and/or indemnify its insured, who was sued after a gun the insured was holding discharged under disputed circumstances, causing physical injuries.  The district court granted summary judgment on the ground that the incident fell within the intentional act exclusion of the homeowner's policy.

FACTS

Mary J. Falkowski and her boyfriend, Jeffrey D. Forslund, have lived together in a home in south Minneapolis since 1992.  Dakota Fire Insurance Company (Dakota) insures their home.

On October 11, 1998, Forslund was watching television with two friends and Falkowski spent time gardening and then joined the group watching television.  All four people were consuming alcohol; Falkowski consumed at least 12 beers.  In the mid-afternoon, the group decided to go to Tiffany's Sports Bar & Grille where they continued to drink; Falkowski had at least six additional drinks.  At Tiffany's, Falkowski met a woman named Kimberly Rowley, whom she had not known previously.  Over Forslund's objection, Falkowski invited Rowley back to her house to continue drinking.  Forslund remained at the bar while the others returned to the house. At the house, they drank wine and listened to music.

When Forslund returned, he and Rowley began to argue.   Forslund wanted Rowley to leave.  Falkowski intervened and attempted to stop the argument but she was unsuccessful.  She went to the bedroom that she and Forslund shared and obtained Forslund's .22 caliber handgun.  The parties dispute what happened thereafter.  Falkowski testified in her deposition that she aimed the gun at the floor while Forslund was three to four feet away and shot, which resulted in Forslund being hit in the hip by a ricocheted bullet.

Forslund claims he was standing only one to two feet away from Falkowski.  He says he asked her to surrender the gun and, in an effort to protect himself and the others in the house, attempted to retrieve the gun from Falkowski, and that when he grabbed Falkowski's hands, the gun accidentally discharged.

Admission records from Hennepin County Medical Center indicate that Forslund had petechia (multiple small-red bumps) and powder burns on his left forearm, which indicate that Forslund was in very close proximity to the gun when it was fired. The Ramsey County Medical Examiner submitted an affidavit on behalf of Forslund opining that the muzzle of the firearm was held in close proximity to Forslund's forearm and left hip region at the time of discharge.

Falkowski testified that she remembers neither going to get the gun, pulling the trigger (nor even the discharge of the gun).  She testified that she did not wish to cause fear, but only to stop the argument.  Three years earlier, Falkowski had similarly shot a gun into the floor, but without causing any injury.  Based upon that prior experience, she stated, she did not feel that to shoot a gun again would result in any injury.

A neighbor called the police, and Falkowski and Rowley were arrested when they arrived at the house.  On January 27, 1999, Falkowski pleaded guilty to the charge of second degree assault in Hennepin County District Court, admiting that she fired the gun intentionally, but not necessarily with intent to injure.

D E C I S I O N

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the lower court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Whether to apply the inferred intent doctrine is a legal issue for the court to decide.  See R.W. v. T.F., 528 N.W.2d 869, 872 (Minn. 1995) (intent may be inferred "as a matter of law").

I.

Forslund argues that the court improperly inferred Falkowski's intent in this case.  The contractual provision at issue excludes coverage for bodily injury that is "expected or intended" by one or more insureds.  In Minnesota, an intentional act exclusion only applies in situations where the insured acts with the specific intent to cause bodily harm.  Id. (citation omitted).  The requisite intent demands that the insured intended more than just to commit the act; the insured must have intended the harm itself.  Id. (citing Caspersen v. Webber, 298 Minn. 93, 99, 213 N.W.2d 327, 330 (1973)).

The intent itself need not be proven directly, but may be inferred as a matter of law when "the nature and circumstances of the insured's act were such that harm was substantially certain to result."  Id.  This determination results from a case-by-case factual inquiry and not a bright line rule of law; the most significant facts are those indicating the likelihood of harm.  Id. at 873 ("[T]he greater the likelihood of the harm occurring, the more reasonable it is to infer intent.").

Where, as here, the conduct at issue is the intentional misuse of a firearm, intent to cause injury will almost always be inferred.  Donovan v. Commercial Union Ins. Co., 493 N.W.2d 581, 583 (Minn. App. 1992) ("Where the conduct at issue is the intentional misuse of a firearm, we believe it will be a rare case in which an intent to cause injury will not be inferred.").  In several cases, Minnesota appellate courts have addressed this issue, and have always concluded that intent should be inferred.  See, e.g. Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn. 1980) (insured fired armor piercing bullets at security guards' truck); Continental W. Ins. Co. v. Toal, 309 Minn. 169, 177-78, 244 N.W.2d 121, 126 (1976) (armed robbery); Petersen v. Croft, 447 N.W.2d 903, 906-07 (Minn. App. 1989) (drive-by shooting), review denied (Minn. Jan. 12, 1990); Auto-Owners Ins. Co. v. Smith, 376 N.W.2d 506, 510 (Minn. App. 1985) (insured fired shots into darkened first floor of house), review denied (Minn. Jan. 17, 1986); Donovan, 493 N.W.2d at 581-82 (insured fired gun to scare wife into leaving home).

In articulating the rationale for specific application of the doctrine, courts have taken several approaches.  Older cases focused on the extent to which the act was remorseless and calculated.  See, e.g., Toal, 309 Minn. at 177, 244 N.W.2d at 125-26; Woida, 306 N.W.2d at 573-74; Smith, 376 N.W.2d at 510.   More recently, courts have also inferred the intent to injure by merging an insured's intent to frighten with the inherently dangerous nature of the weapon.  Donovan, 493 N.W.2d at 583.

In the present case, Falkowski left the argument to retrieve a gun which she knew to be loaded.  She returned to the scene and fired the gun in close proximity to others with the intent of stopping the argument.  Forslund selectively notes that Falkowski testified that she fired the gun to "stop the arguing," and not to cause "fear," but ignores the testimony of Falkowski that she thought that firing the gun would achieve her goal by scaring Forslund and Rowley.  The gun drew the attention of the arguing parties because of its inherently violent nature.  The court did not err in inferring that Falkowski intended to cause fear.

Forslund also argues that the testimony permits an inference that the bullet ricocheted off the floor and into him.  He notes that Falkowski testified that "[t]he ricochet of the bullet could not be controlled," and argues that the fortuitous nature of the ricochet permits it to be covered under the insurance policy.  But the unpredictability of the bullet's path is exactly the reason for applying the inferred intent doctrine in handgun cases.  As this court stated in Donovan:

Sound public policy concerns are served by the conclusion that appellant's conduct was "expected or intended" and, thus, beyond the scope of coverage in his homeowner's policy.  Reckless or intentional misuse of a handgun creates an inherently dangerous situation.  To hold that the exclusionary clause of the policy did not apply [when a gun is fired intentionally, but has an unintended result] would be, in effect, to extend to the insured a license to permit wanton and malicious acts.

Id.  In Donovan, a man pointed a gun at a wallhanging intending to scare his wife into leaving the house.  Id. at 582.  As he was shooting the gun, his wife unexpectedly moved in front of the line of fire and was struck in the elbow.  Id.  Here, although Falkowski did not know that substantial harm would result from firing the gun, the discharge of the weapon was completely reckless, and the fact that she could not control the ricochet underscores the utter recklessness of the act.  Even assuming Forslund was stuck by a ricochet, the ricochet does not transform an intentional act into one that is fortuitous.

Forslund also argues that Falkowski's actions were not calculated and remorseless because she did not plan or intend to hurt anyone.  This argument is completely without merit.  First of all our cases do not require calculated and remorseless behavior.  See id. at 583 (inferring intent when act was intended to cause fear and involved an inherently dangerous instrument).  But even if Donovan did not articulate a separate basis for inferring intent, then it necessarily defined "calculated and remorseless" to include the intent to cause fear with an inherently dangerous instrument.

In the present case, Falkowski intended to scare Forslund and Rowley.  She fired an inherently dangerous loaded handgun at, by her own admission, extremely close range. 

II.

Forslund argues that summary judgment was inappropriate because there is a material question as to whether the gun was discharged intentionally, but with unintended results, or if the discharge of the gun itself was unintentional.  Although Falkowski testified that she intentionally discharged the gun into the floor, Forslund submitted an affidavit indicating that he reached for the gun and that it discharged as he tried to take the weapon from her.  In support of this position, Forslund points to medical reports that indicated he was close to the gun when it discharged.

But Forslund's affidavit does not raise a material question of fact.  Even assuming Forslund reached for the gun and grabbed Falkowski's hands, the district court was correct to infer intent.  Although this court has stated that "[i]t is possible that no intent to injure would be inferred if, for example, a gun were fired accidentally,"  id. at 582-83 (emphasis added), no Minnesota court has elaborated on what would qualify as "accidental."  Here, in suggesting that intent should not be inferred because Forslund might have grabbed for the gun, Forslund misses the point this court and the supreme court have reiterated time and time again: a handgun is an inherently dangerous instrumentality.  Id.  Part of this danger is that a gun causes fear out of which unexpected results occur.  See id. (merging intent to cause fear with use of handgun to infer intent when fear caused by display of handgun caused unintended target to move into the line of fire).  As Forslund states in his own affidavit, he attempted to retrieve the gun from Falkowski "as a defensive and reflexive action."  When Falkowski brought the weapon into the argument, she created several risks of injury. 

III.

Forslund also suggests that Falkowski's intoxication established the existence of a factual question dispute precluding summary judgment.  However, this court has rejected an insured's contention that voluntary intoxication could be used as a defense to a denial of coverage, noting that it was

not inclined to create a situation where the more drunk an insured can prove [herself] [himself] to be, the more likely [she] [he] will have insurance coverage.  We hold, therefore, that voluntary 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.

American Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn. 1987).

Forslund argues that Peterson is not on point because in Peterson, the insured was using his intoxication to challenge directly the intentional nature of the act, whereas in the present case, Forslund is denying the inference of intent indirectly by asserting that Falkowski's intoxication affects her ability to recall the events. As noted above, exactly how the gun discharged is largely irrelevant.  Falkowski brought the gun out to stop a fight and in doing so (especially in her intoxicated state), her intent is inferred.

Affirmed.

 

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

** Retired judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.