Physicians Insurance v. Swanson

Alice Robie Resnick, J.

The issue presented in this case is the application of a provision in a contract of insurance excluding coverage for injuries expected or intended by the insured. We begin our analysis by reviewing the language of the two provisions involved.

The PICO insurance policy issued to appellants contains the following:

“Part I, Exclusions to Part G and Part H
“1. Part G, Personal Liability Coverage and Part H, Medical Payments to Others does [sic] not apply to bodily injury or properly damage:
“a) which is expected or intended by the insured[.]”

Appellants’ policy with Cincinnati states as follows:

“PART I—DEFINITIONS
“1. Personal Injury means:
“A. bodily harm * * * to others caused by an accident;
*191“3. Accident means an event or series of unrelated events that unexpectedly, unintentionally and suddenly causes personal injury or property damage during the policy period.
“PART IV—WHAT IS NOT COVERED-EXCLUSIONS
“8. We will not cover Personal Injury or Property Damage caused intentionally.”

I

While the insurance policy issued by Cincinnati contains language different from that in the PICO policy, both policies are the same in effect: neither policy provides coverage for intentional or expected personal injuries caused by the insured. The difference is that one policy achieves this result by way of an express exclusion for such injuries (PICO), whereas the other policy does so by way of definition and an exclusion (Cincinnati). Since the effect of both policies is the same, we will treat the respective policy provisions in like manner.

Relying heavily on our decision in Gill, supra, the court of appeals concluded that both policies excluded coverage for the injury suffered by Todd Baker. When construing these policy provisions, the appellate court read Gill as focusing on the intentional nature of the act, rather than the result of the act, i.e., the injury. The court of appeals went on to note that the trial court specifically found that Bill intentionally fired the gun in the direction of Todd and the others at the picnic table. Thus, applying the above standard to the trial comb’s findings of fact and conclusions of law, the court of appeals held that the exclusions applied because the insured had acted intentionally.

In Gill, we held that “the insurer has no duty to defend or indemnify its insured where the insurer demonstrates in good faith in the declaratory judgment action that the act of the insured was intentional and therefore outside the policy coverage.” Id. at paragraph two of the syllabus. However, the fact pattern in Gill is markedly different from that of the present case. The insured in Gill had pleaded guilty to aggravated murder with specifications for killing an eleven-year-old girl. While applying a policy exclusion nearly identical to that in the PICO policy to that fact pattern, we stated, “* * * where the conduct which prompted the underlying wrongful death suit is so indisputably outside coverage, we discern no basis for requiring the insurance company to defend or indemnify its insured * * Id. at 113, 30 OBR at 428-429, 507 N.E. 2d at 1123. After noting that an essential element of aggravated murder is that the perpetrator intend to cause death, the Gill court concluded that “Kerri’s death was clearly ‘expected or intended by the insured’ and therefore the policy does not provide coverage for whatever personal liability Gill [the insured] may have.” Id. at 115, 30 OBR at 430, 507 N.E. 2d at 1124.

Thus, our holding that there was no coverage in Gill was premised on the facts that the insured intended to cause the injury of another person, and that this intent was conclusively established by the insured’s plea of guilty to aggravated murder. Stated otherwise, our decision was based on a finding that the insured intended to cause an injury, i.e., the death of an eleven-year-old girl. While Gill used language regarding the intentional act or conduct of the insured, Gill actually stands for the proposition that it is the resultant injury which must be intended for the exclusion to apply to deny coverage.

*192II

Provisions contained in an insurance policy excluding intentional or expected injuries have been the subject of an extensive body of case law. See 12 Couch, Insurance (2 Ed. 1981) 184-193, Section 44A:133; Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected By Insured (1984), 31 A.L.R. 4th 957. Our current interpretation of GiU, is consistent with the majority rule that has emerged from the case law on this issue in other jurisdictions. In State Farm Mut. Auto. Ins. Co. v. Worthington (C.A. 8, 1968), 405 F. 2d 683, the insured had fatally wounded a young boy who he thought had tried to steal his watermelons. The insured had fired a .22 caliber rifle in an attempt to scare the young man. In holding that an intentional injury exclusion did not preclude coverage, the court stated that “[t]he preponderance of the evidence in this case indicates that while the discharge of the firearm was intentional the fatal wounding * * * was not intentional but accidental.” Id. at 686. The court went on to note that “[a]lmost all acts are intentional in one sense or another but many unintended results flow from intentional acts.” Id. at 688.

While interpreting an exclusion for “property damage caused intentionally by or at the direction of the insured,” the Supreme Court of Pennsylvania stated that “the vast majority of courts which have considered such a provision have reached the conclusion that before the insurer may disclaim liability, it must be shown that the insured intended by his act to produce the damage which did in fact occur. Annot., 2 A.L.R. 3d 1238 (1965). We subscribe to such a view. There is a very real distinction between intending an act and intending a result and the policy exclusion addresses itself quite clearly to the latter.” Eisenman v. Hornberger (1970), 438 Pa. 46, 49, 264 A. 2d 673, 674. The court concluded that while the insured intentionally had broken into the home of another to steal liquor, there was no evidence that a fire caused by the insured had been intentional. The insured minor boy had been using matches to see, and had dropped them as they burnt down to the stem. The court held that absent evidence of an intent to cause the resulting damage (in that case a fire), the exclusion was not applicable.

More recently, a federal court of appeals interpreting Florida law has stated that “* * * we believe the standard enunciated by the lower courts of Florida adheres to the majority rule with respect to ‘intentional injury’ exclusions. Under the majority rule the exclusion applies if the insured intended to do the particular act, and intended to do some harm ****** Qn the other hand, an ‘intentional injury’ exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence.” Allstate Ins. Co. v. Steinemer(C.A.11, 1984), 723 F. 2d 873, 875. The court went on to hold that the evidence created a genuine issue of fact as to whether the insured intended harm when he fired a BB gon at his friend.

Likewise, in Farmers Ins. Group v. Sessions (1980), 100 Idaho 914, 607 P. 2d 422, the court held that for an exclusion for injuries intentionally caused to operate, the insurance company must demonstrate that the insured acted “* * * for the purpose of causing injury in the person or property in which it resulted.” Id. at 918, 607 P. 2d at 426. In so holding, the court rejected the insurer’s argument that the policy *193requires nothing more than an intentional act for the exclusion to operate. The court stated as follows:

“* * * Such an interpretation would radically alter the scope of insurance company liability. On an exclusion such as this one, the company would have no liability for the baseball intentionally thrown which accidentally breaks the neighbor’s window, the intentional lane change which forces another driver into the ditch, or the intentionally started trash fire which spreads to the adjacent lot. Countless other examples are imaginable, in all of which the insurance company could rely on such an exclusion to avoid liability because the course of conduct of the insured involved intentional acts. * * *” Id. at 917, 607 P. 2d at 425.

In Colonial Penn Ins. Co. v. Hart (1982), 162 Ga. App. 333, 291 S.E. 2d 410, the evidence presented at trial showed that the insured had fired at a vandal in an attempt to frighten him. The court framed the issue as follows: “* * * the issue in the instant case was not whether Mr. Rice intentionally fired the shotgun. This fact is uncontroverted. Rattier, ‘[t]he only issue .. . was whether the [bodily injury] was “either expected or intended from the standpoint of [Mr. Rice]” * * *’ Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 881 (285 S.E. 2d 566) (1981).” (Emphasis sic.) Id. at 335, 291 S.E. 2d at 412. The court upheld the jury’s finding that the injury to the vandal was not intentional, and thus the exclusion was inapplicable.

The Supreme Judicial Court of Massachusetts “* * * consistently has stated that the resulting injury which ensues from the volitional act of an insured is still an ‘accident’ within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.” Quincy Mut. Fire Ins. Co. v. Abernathy (1984), 393 Mass. 81, 84, 469 N.E. 2d 797, 799.

From the above case law, it can be seen that other jurisdictions require that in order for an exclusion of this nature to apply, an insurer must demonstrate not only that the insured intended the act, but also that he intended to cause harm or injury. The rationale for this rule of law is twofold. First, the plain language of the policy is in terms of an intentional or expected injury, not an intentional or expected act. Were we to allow the argument that only an intentional act is required, we would in effect be rewriting the policy. Second, as the courts above have noted, many injuries result from intentional acts, although the injuries themselves are wholly unintentional. See State Farm Mut. Ins. Co. v. Worthington, supra, and Farmers Ins. Group v. Sessions, supra.

Ill

In the case at bar, the trial court found that while the insured intentionally fired a BB gun in the direction of the injured person, the injury itself was neither intended nor substantially certain to occur. Rather, the finder of fact conclusively found that the injury was accidental. Based on our interpretation of Gill, supra, and the persuasive reasoning of the courts in other jurisdictions, we find the court of appeals erred by requiring that only the act of the insured need be shown to have been intentional.

Therefore, we hold that in order to avoid coverage on the basis of an exclusion for expected or intentional injuries, the insurer must demonstrate that the injury itself was expected or intended. It is not sufficient to show merely that the act was intentional. In this case the exclusion is inapplicable because the trial court’s determination *194that Todd Baker’s injury was not intentionally inflicted or substantially certain to occur is supported by competent, credible evidence.1 Therefore, the insurers are obligated to defend and indemnify the appellants. The decision of the court of appeals is reversed.

Judgment reversed.

Sweeney, Douglas and H. Brown, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.

The court of appeals specifically rejected the insurance companies’ argument that the trial court’s findings were against the manifest weight of the evidence.