MUT SERVICE CASUALTY INS CO v M
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No. 85-187 I N THE SUPREME COURT OF THE STATE OF MONTANA 1985 MUTUAL S E R V I C E CASUALTY INSURANCE COMPANY, P l a i n t i f f and R e spondent , TIMOTHY W. McGEHEE, a l s o k n o w n as TIMOTHY McGEHEE, a l s o k n o w n a s T I M McGEHEE Defendant, , and WALTER A. RAUKER, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C u s t e r , T h e H o n o r a b l e A. B. M a r t i n , Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : H u n t l e y & E a k i n ; Ira E a k i n , ( R a u k e r ) , B a k e r , Montana H.D. B u e l o w , M i l e s C i t y , Montana For R e s p o n d e n t : L u c a s & Monaghan; Montana T h o m a s Monaghan, M i l e s C i t y , S u b m i t t e d on B r i e f s : Decided: Clerk Oct. 10, 1985 D e c e m b e r 31, 1 9 8 5 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Walter Rauker appeals a Custer County District Court order which granted summary judgment to respondent Mutual Service Casualty Insurance Company (Mutual Service) and ruled that Mutual Service's insurance policy with Tim McGehee did not provide coverage for McGehee's intentional assault of The issue on appeal. is whether summary appellant F.auker. judgment was proper where the insurance policy did not cover injuries intended or expected from McGehee's standpoint and where McGehee intended to strike the victim but may not have subjectively intended the McGehee and specific injuries. appellant were both We employed electrical contractor in Colstrip, Montana. affirm. by an McGehee was a superintendent and had some supervision of appellant. On November 11, 1982, both men were in a restaurant/bar near Colstrip. that McGehee states that he took exception to a remark appellant deposition and made that admitted McGehee night. that he testified deliberately by punched appellant twice in the face, that he wanted to hit appellant more, and that he waited outside the appellant but appellant did not show up. establishment for McGehee further stated that he did not intend to hurt appellant but only to "shut appellant up." Appellant was seated in a chair at the time of this attack and McGehee stated that appellant acted like he was going to start to get up and "I just didn't let him." McGehee's punches knocked appellant to the floor and broke appellant's left cheek bone in three places. Appellant filed a criminal complaint and a civil action against McGehee. McGehee had an insurance policy with Mutual Service which stated, in relevant part: This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury caused by an occurrence. This Company shall defend any suit against the Insured seeking damages on account of such bodily injury ... ... ... EXCLUSIONS This policy does not apply: To bodily injury which is either expected or intended from the . standpoint of the Insured ... ... . . Mutual Service brousht a declaratory judgment action in the Custer County District Court seeking rulings that it had no obligation to defend McGehee in appellant's civil action and that it had no obligation to pay any judgment entered zgainst McGehee in appellant's action. for summary Mutual Service moved judgment on these two issues and the court granted summary judgment ruling that the exclusionary clause of the insurance policy eliminated coverage for McGehee's actions. Rauker appeals. The standard of review is clear. Summary judgment is only proper under Rule 56(c), M.R.Civ.P., where the record discloses that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See, e.g.,State Dept. of Highways v. Midland Materials (Mont. 1983), 662 P.2d 1322, 40 St.Rep. 666, quoting Darrah v. Milbank Mutual Insurance Co. (Mont. 1983), 658 P.2d 374, 40 The overwhelming construed identical or majority of courts which have similar insurance provisions have emphatically held that insurance coverage does not extend to situations such as this. A few of these cases are; Shelter Ins. Companies v. Smith (Ill. App. 1985), 4 7 9 N.E.2d 365; CNA Ins. Co. v. McGinnis (Ark. 1984), 666 S.W.2d 689; State Farm Fire and Cas. Co. v. Williams (Minn. 1984), 355 N.W.2d 421; Transarnerica Ins. Group v. Meere (Ariz. 1984), 694 P.2d 181; Quincy Mut. Fire Ins. Co. v. Abernathy (Ma.ss. App. 1983), 455 N.E.2d 644; Guilbeau v. Roger (La. App. 1983), 443 So.2d 773; Smith v. Senst (Minn. 1981), 313 N.W.2d 202; Jones v. Norval (Neb. 1979), 279 N.FJ.2d (Wis, 388; Pachucki v. ~epublic Ins. Co. 1979), 278 N.W.2d 898; Hartford Fire Ins. Co. v. Spreen (Fla. App. 1977), 343 So.2d 649; Hins v. Heer (N.D. 1977), 259 N.W.2d 38; Eutler v. Behaeghe (Colo. App. 1976), 548 P.2d 934; Home Insurance Company v. Neilsen (Ind. App. 1975), 332 N.E.2d 240; Oakes v. State Farm Fire Company (N.J. App. 1975), 349 A.2d (La. App. 1971), 246 So.2d 235. & Casualty 102; Terito v. McAndrew We agree with these courts. Under the undisputed facts of this case, Mutual Service was entitled to judgment as a matter of law. facts show the following. McGehee admits intentionally struck appellant in the face. appellant's cheek bone. McGehee's The undisputed that he The blows broke insurance policy with respondent does not provide coverage for bodily injuries intended or expected from McGehee's standpoint. We hold that summary judgment in the District Court properly granted Mutual Service's favor. Appellant contends that there exists a factual question which precludes summary judgment; i.e. whether McGehee expected or intended that the victim receive the specific resulting injuries. We disagree. The Shelter Ins. Companies, Hins, Jones, Senst and Spreen cases (cited above) all involved one person punching another, resulting broken bones, and the aggressor claiming that he neither expected nor intended the specific injuries. All five cases involved insurance clauses similar to the one here and in each case the court held there was no insurance coverage. In Jones, the Nebraska Supreme Court quoted from Clark v. A l l s t a t e I n s u r a n c e Company, (Ariz. 1 9 7 5 ) , 529 P.2d "[Tlhe a c t of s t r i k i n g another i n t h e f a c e i s o n e which w e r e c o g n i z e a s a n a c t s o c e r t a i n t o cause a p a r t i c u l a r kind of harm t h a t w e ca.n s a y a p e r s o n who performed t h e a c t i n t e n d e d t h e r e s u l t i n g harm, and h i s s t a t e m e n t t o t h e c o n t r a r y d o e s n o t h i n g t o r e f u t e t h a . t r u l e o f law." 279 N.W.2d Jones, (Ark. see a l s o CNA I n s . Co. v. McGinnis a t 391, a t 691 ( t h e A r k a n s a s Supreme C o u r t 1 9 8 4 ) , 666 S.W.2d. a p p r o v i n g l y c i t e s t h e same r u l e ) . W e agree. Where, a s h e r e , an a s s a i l a n t a g g r e s s i v e l y and i n t e n t i o n a l l y s t r i k e s a n o t h e r in the it face, is insurance exclusion different in irrelevant that character 1984), 694 or the assailant purposes causes magnitude from of an the this injury harm he S e e T r a n s a m e r i c a I n s . Group v . Meere s u b j e c t i v e l y intended. (Ariz. the for P.2d a t ("It is, 185 therefore, of no c o n s e q u e n c e t h a t h e may h a v e i n t e n d e d a d i f f e r e n t o r l e s s e r injury. The e x c l u s i o n a p p l i e s whenever t h e i n s u r e d i n t e n d s t o i n j u r e . " ) ; Oakes v . (N.J. App. 1975), S t a t e Farm F i r e a n d C a s u a l t y Company 349 A.2d at 103 . . where (". intentional a c t has resulted i n intended injury, the injury intended, inflicted coverage difference should be App. denied. ") the actual , citing Lyons v. 1 9 7 3 ) , 310 A.2d 485; a n d J o n e s (Neb. 19791, 279 N.W.2d if e v e n where i s d i f f e r e n t o r more s e v e r e t h a n was H a r t f o r d I n s . Group ( N . J . v. Norval the . . it a t 392 ( " . injury i s more severe makes no or of a d i f f e r e n t nature than t h e injury intended."). Furthermore, t h i s Court w i l l n o t r e q u i r e t h e impossible o f the insurer; t h a t i s , p r o v i n g t h a t McGehee s p e c i f i c a l l y i n t e n d e d t o b r e a k t h e v i c t i m ' s c h e e k bone i n t h r e e p l a c e s by s t r i k i n g him w i t h his fist. The situation courts such a s a l s o agree t h a t t o require t h e one a t b a r , under coverage i n a similar insurance policies, is a violation of public policy. The Arizona Supreme Court stated that a policy provision such as the one here, " . . . articulates a public policy which forbids contracts indemnifying a person against loss resulting from I his own willful wrongdoing. ' Meere, 694 P.2d at 186. also Spreen, 343 So.2d at 651 permitted to indemnify (I '. himself . . one against ought not to be his . I [torts] ' ) quoting Lea-therby Insurance Co. (Fla.App. 1975), 315 So.2d 553. See intentional v. Moreover, " ~illoughby '. i f a single insured is allowed through intentional or reckless acts to consciously control risks covered by policy, the central concept of insurance is violated.'" at 186, quoting 7A Appleman, Meere, 694 P.2d Insurance Law and Practice, Affirmed. / / We concur: Justices / Mr. Justice William E. Hunt, Sr., dissenting: I dissent and would reverse. Summary judgment is not appropriate in this case. In Northwestern National Casualty Company v. Phalen (1979), 182 Mont. 448, 597 P.2d 720, this Court was presented with a similar issue involving the same type of exclusion. In Phalen a man was also involved in an altercation with another. William Phalen followed Thu Duc Vo out of a bar. He placed his arm around Vo and Vo's female companion. Some verbal disagreement followed and he struck Vo who then ran and was tripped by another. Vo fell to the pavement and suffered substantial injuries. followed and Phalen's Criminal and civil actions insurer brought action seeking declara-tory judgment that it was not obligated to defend or pay. It moved for summary judgment which was granted by the District Court on the basis of policy exclusion. In Phalen, this Court held that the applicability of coverage could not be determined until the factual issues concerning the intention and expectation of Phalen as to Vo's injuries was decided in the separate tort action. that granting summary Phalen, 597 P.2d at 728. judgment was therefore F e held J improper. In Phalen, there was a significant factual question whether Phalen, after hitting and chasing Vo, intended or expected that Vo would be tripped by another and be crashed to the pa-vement on his face. See, Phalen 597 P.2d at 726 and 727. In the present case there is also a relevant factual dispute. Both parties agree that McGehee struck Rauker in the face and knocked him to the floor. Both parties agree that the blow or blows caused the injury. However, it is not clear that McGehee expected or intended the injuries that resulted. The determinative matter in the present case is factual in nature. Phalen -- The true legal issue has already been decided in there is a factual distinction applicable in the questioned policy exclusion between intent to do an act and the expectation or intention that that act shall cause a specific injury from the standpoint of the insured. This Court held in Phalen that an insurance policy stating that it will cover for occurrences, excluding those where injury is expected or intended, includes in coverage intentional acts as long as the resulting injury is neither expected nor intended. from the insured's standpoint. 597 P.2d at 724. not be covered Phalen, In Phalen, we said that an insured would in those cases where deliberate acts or assaults resulted in injuries which would be expected or intended as a result of the act, but where deliberate acts lead to unexpected or unintended results coverage will exist. Phalen, 597 P.2d at 724. The District Court in the instant case concluded that PllcGehee did not specifically intend the resulting injuries yet, at the same time, concluded that the harm inflicted was intended and expected from the standpoint of McGehee. The District Court excluded coverage. As in Phalen, where it was clearly questionable whether Phalen expected or intended that Vo be tripped by another, the injuries suffered by Rauker also question of intent and expectation. present A a factual question of fact precludes summary judgment. I would reverse and remand to the District Court for trial. Xr. Justice John C. Sheehy: I concur in the foregoing dissent of Mr. Justice Hunt. -- .. ' Justice ' j , ) '' "7
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