(concurring) — I concur because the majority arrived at the correct result, but its analytical approach to the coverage for Milton King’s conduct creates a potential for future misinterpretations of the law on accident and criminal conduct. No average purchaser of liability insurance would be confused by the issues in this case. Milton King committed a heinous criminal act and did so volitionally. There is no coverage under the Kings’ homeowners liability insurance policy.
The insuring clause of a liability insurance policy is the starting place for any coverage discussion. Allstate Insurance Co. (Allstate) agreed to cover the Kings for accidents:
Losses We Cover. Allstate will pay all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury . . . covered by this part of the policy.
Clerk’s Papers at 340. While the policy did not define “accidental loss,” “accident” has a very specific meaning in Washington’s insurance law. An accident is generally an event unexpected from the standpoint of the insured. See, *482e.g., Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wn.2d 99, 104, 751 P.2d 282 (1988). In Grange Insurance Co. v. Brosseau, 113 Wn.2d 91, 96, 776 P.2d 123 (1989), we described an accident as an event that is unexpected, independent, and unforeseen. This analysis is an objective one: could any reasonable person reach the conclusion that the harm was the unforeseen result of the insured’s acts? See Detweiler, 110 Wn.2d at 108.
This discussion has its roots in the very essence of a liability policy. A policy of liability insurance covers fortuities. As distinct from an indemnity policy that covers all situations within the policy’s terms, a liability policy does not afford coverage in the absence of an accident or an “occurrence.” See Truck Ins. Exch. v. Rohde, 49 Wn.2d 465, 477, 303 P.2d 659 (1956) (Rosellini, J., dissenting).
To emphasize the policy provides coverage only for fortuitous events, Allstate’s policy in this case had two express exclusions that must be read in pari materia. The policy excluded coverage for bodily injuries “which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person.” Clerk’s Papers at 340.
With respect to the criminal acts exclusion, there is no question but that Milton King committed criminal acts. He killed his neighbor Candy Johnson and her daughter Cheryl Raynor before killing himself. In Allstate Insurance Co. v. Peasley, 131 Wn.2d 420, 932 P.2d 1244 (1997), we upheld the enforceability of such an exclusion in a homeowners liability policy. We noted there that such an exclusion was not limited to intentional crimes. See also Cary v. Allstate Ins. Co., 130 Wn.2d 335, 922 P.2d 1335 (1996) (exclusion for criminal acts or situations where person found not guilty by reason of insanity).
The principal problem with the majority’s analysis is its decision to rewrite the express policy language to transform an exclusion for the insured’s “criminal acts” to one for the insured’s “serious criminal acts,” citing Van Riper v. Constitutional Government League, 1 Wn.2d 635, 96 P.2d 588 *483(1939). Majority at 477. Apart from the fact the policy language does not so state, the majority injects uncertainty into this area of law. Does the majority mean to say only those crimes described as “serious” or “most serious” in RCW 9.41.010(12) and RCW 9.94A.030(25) are excluded? Or does the majority intend the courts to decide this issue anew in each case? The majority simply fails to demonstrate that the term “criminal acts,” as set forth in the Allstate policy, is somehow ambiguous or violative of public policy so that it is not enforceable as written.
The plaintiffs contend any criminal acts exclusion is inapplicable because Milton King could not form the necessary intent to commit a crime. As the majority correctly discerns, Milton King was not insane at the time he committed these crimes. To establish insanity, RCW 9A.12.010(1) requires:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
Even the plaintiffs expert, Dr. G. Christian Harris, who had never treated or met Milton King, did not testify King was insane:
Raynor’s expert witness, Dr. G. Christian Harris, indicated that he “would not go so far as to say that [Milton] didn’t understand the general nature of his acts” and that he saw “nothing in the record to indicate that [Milton] wouldn’t have a basic idea of what was right and what was wrong.” Furthermore, there was no evidence in the record “that suggested delusional thinking, hallucinatory deficits that would ordinarily be necessary to sustain a feeling that the person was disturbed to the extent that he couldn’t understand the wrongfulness of his actions” or that Milton suffered from “a psychotic illness that would remove him from understanding the nature of his act or its wrongfulness.”
*484Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 494, 969 P.2d 510, 975 P.2d 517, 980 P.2d 765 (1999) (alterations in original).
As the majority notes, even if King were able to prove diminished capacity in the criminal setting were he alive and charged with a crime, such a defense might be successful in forestalling his conviction for premeditated murder, but not lesser included offenses of homicide such as manslaughter. See, e.g., State v. Eakins, 127 Wn.2d 490, 902 P.2d 1236 (1995); State v. Ellis, 136 Wn.2d 498, 963 P.2d 843 (1998). Indeed, as we noted explicitly in State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987), a condition of diminished capacity is not a valid defense to a crime based on criminal negligence. In this case, King could have been convicted of murder in the second degree, or manslaughter, based on a diminished capacity argument. But in either instance, a crime was committed and the policy’s exclusion for criminal acts applies.
Turning next to the intentional acts exclusion, the plain import of Allstate’s intentional acts exclusion is that no coverage is available if the injury was the reasonably expected result of the insured’s intentional act or if the insured in fact intended to cause the injury. For either of these aspects of the exclusion, the insured must intend the act which caused the injury. Taking Dr. Harris’ testimony at its most favorable to King, there is no support in his testimony for the view King acted under delusion. He did not believe he was using a toy gun to shoot at cardboard cutouts. He knew he was using a real gun to shoot real bullets at real people. He acted volitionally. As such, King’s acts fell within the policy’s intentional act exclusion. See N.Y. Underwriters Ins. Co. v. Doty, 58 Wn. App. 546, 794 P.2d 521 (1990).
The events in this case are tragic, given the loss of three lives over a minor neighborhood dispute. That a man of Milton King’s disposition had a firearm is very difficult to understand; he should never have had the weapon. But whether a homeowners liability insurance policy provides *485coverage for an insured’s homicidal rage is entirely a different issue. It does not because such conduct is not an accident—the conduct is intentional or criminal, as I expect nearly all average reasonable purchasers of liability insurance would understand.
Justice Philip Talmadge is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. IV, § 2(a).