Allstate Insurance v. Worthington

DAUGHERTY, District Judge,

dissenting.

I must respectfully dissent. As indicated in the majority opinion, the applicable section in the policy at issue in the case at bar covers “damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident ...” (emphasis added). The section specifically excludes coverage for injuries resulting from “[a]n act or omission intended or expected to cause bodily injury or property damage. This exclusion applies even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected ...” (emphasis added). It is my opinion that the injuries at issue in the lawsuit against Karen Worthington could not be considered to have arisen from an “accident” in any logical or reasonable sense of the word, whether one looks to the conduct that caused the injury, as did the Idaho Supreme Court in Mutual of Enumclaw v. Wilcox, 123 Idaho 4, 843 P.2d 154 (1992), or the allegations asserted against Karen Wor-thington herself.

The word “accident” is defined by Webster’s Unabridged Dictionary as “an event or condition occurring by chance or arising from unknown or remote causes; lack of intention or necessity; an unforeseen, unplanned event or condition ...” Webster’s Third New International Dictionary 11 (1981). Black’s Law Dictionary states that the word “accident” denotes “any unexpected personal injury resulting from any unlooked for mishap or occurrence ... An event that takes place without one’s foresight or expectation; an undesigned, sudden and unexpected event.... A more comprehensive term than ‘negligence,’ and in its common signification the word means an unexpected happening without intention or design.” Black’s Law Dictionary 15 (6th ed. 1990). An insurance law treatise defines the concept of “accidental” as “happening by chance or unexpectedly taking place, not according to the usual course of things; fortuitous; befalling by chance out of the regular course of-things; ...” Couch on Insurance 2d (Rev. ed.) § 41:19. The Utah Supreme Court has stated that “a person is a victim of an accident when, from the victim’s point of view, the occurrence causing the injury or death is not a natural and probable result of the victim’s own acts.” Hoffman v. Life Insurance Co. of North America, 669 P.2d 410, 416 (Utah 1983).

The above definitions consistently define accident in the same general terms. It is apparent that when such definitions are applied to the facts of the case at bar, neither the results flowing from the conduct of Richard Worthington, the perpetrator of the crime, or the conduct of his then wife Karen Worthington should be properly considered accidental.

Applying the rationale used in the Enum-claw case cited above, the focus is placed on the actions which actually cause the underlying injury, in this case the deliberate and intentional criminal conduct of Richard Wor-thington. It is undisputed that Richard Worthington’s intentional conduct is not covered by the homeowner’s policy and, under the theory of Enumclaw, though Karen Wor-thington did not commit the acts which caused the injuries, the homeowner’s policy should provide no coverage to her as well. I find such an approach to be well-reasoned and sound, and disagree with the majority that such approach would necessarily relieve an insurer from providing a defense to any nonacting insured.

In any event, I am also of the opinion that the allegations made against Karen Wor-thington individually do not constitute the occurrence of an accident pursuant to the terms of the Allstate homeowner’s policy. Karen Worthington is claimed to have acted negligently in giving Richard Worthington access to his firearms when he was obviously agitated and unstable and when she knew of his threats of bodily harm to her doctor and personnel at the hospital, and having such knowledge, in failing to warn the hospital and the authorities of his intent to do violence at the hospital. Applying Utah’s definition of an accident as “an unlooked-for mishap which is not expected or designed,” Hoffman, 669 P.2d at 416 (Utah 1983), citing Schmidt v. Industrial Commission of Utah, 617 P.2d *1012693 (Utah 1980), I fail to see how such definition could encompass the allegations made against Karen Worthington in the Utah state cases. Given Karen Worthington’s awareness of her husband’s mental state, the threats he had made and her knowledge that he was bound for the hospital with an arsenal of firearms, the death of Karla Roth and the injuries sustained by the other Defendants should be deemed “naturally and probably expected or anticipated,” Hoffman, 669 P.2d at 416, as she furnished the weapons to her husband and then failed to warn.

Moreover, I do not agree with the majority that the reference in the pertinent section of the Allstate policy to “an insured person” is ambiguous. It should be noted that the pertinent family liability section of the policy uses the phrase “an insured person” five times during the explanation of included and excluded losses. The phrase “the insured person” is used only once, and that use occurs at the end of the liability section and understandably applies only to the insured who is actually charged with a crime. As a result, when the liability section is construed as a whole, I am of the opinion that the language used by Allstate in this section of its policy is not ambiguous but “is sufficient to demonstrate that the intentional act of any insured negates coverage for claims brought against another insured.” Allstate Insurance Co. v. McCranie, 716 F.Supp. 1440, 1448 (S.D.Fla.1989), aff'd, 904 F.2d 713 (11th Cir.1990). See also, Allstate Ins. Co. v. Gilbert, 852 F.2d 449 (9th Cir.1988); Allstate Ins. Co. v. Roelfs, 698 F.Supp. 815 (D.Alaska 1987); Allstate Ins. Co. v. Foster, 693 F.Supp. 886 (D.Nev.1988); State Farm Fire and Casualty Co. v. Davis, 612 So.2d 458 (Ala.1993); Allstate Ins. Co. v. Freeman, 432 Mich. 656, 443 N.W.2d 734 (1989); Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 581 N.Y.S.2d 142, 589 N.E.2d 365 (1992).

The alternative determination of the district court to allow insurance coverage for Karen Worthington was on the basis that she was an innocent co-insured under the rule enunciated in Error v. Western Home Ins. Co., 762 P.2d 1077 (Utah 1988). Such determination is clearly erroneous considering the allegations made against her in the Utah state eases and the requirement of the Courts who have embraced this rule that such a co-insured must have no involvement in the events which caused the damage. Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 326 N.W.2d 727 (1982); Auto-Owners Ins. Co. v. Eddinger, 366 So.2d 123 (Fla.1979); Economy Fire and Casualty Co. v. Warren, 71 Ill.App.3d 625, 28 Ill.Dec. 194, 390 N.E.2d 361 (1979). Karen Worthington admittedly gave her husband the firearms and failed to warn the hospital of his intentions. Thus, she was not an innocent co-insured but was a co-insured involved in the events bringing about the damage complained of by the Defendants. The majority did not treat with this alternative finding, but in dissent I should. I would find the fire insurance case of Error, in which the eo-insured wife was completely innocent in that she was not in any way involved in the act of arson committed by her co-insured husband, to be not applicable to the facts of this case and the alternative finding to be erroneous. Karen Worthington was not innocent but was involved.

In summary, it seems clear to me that the allegations made against Karen Worthington in the Utah state cases concerning her furnishing her husband his weapons and with knowledge of his threats of violence failing to warn the hospital or authorities of his intent in going to the hospital describe deliberate conduct on her part with expected consequences of violence. Such conduct does not constitute an accident as required by the applicable section of the insurance policy for it to afford coverage to her. As stated above, the relevant section specifically excludes coverage for injuries resulting from an act (furnishing firearms) or omission (failing to warn) expected to cause bodily injury, even though not of a precise kind or degree or sustained by a different person than that intended. Such conduct also does not sustain an accident under Utah law, which requires a result not expected or anticipated. It also seems clear to me that the use of the words “an insured person” in the relevant liability section means any insured person, thus excluding Karen Worthington from coverage on this basis as well. The briefs cite four federal and at least six state eases to this effect *1013and they also find no ambiguity in this meaning and intent. As a question of law for the Court, I would find no ambiguity in the liability section. The innocent eo-insured rule used in Error is inapplicable tp the admitted facts of this case. I would therefore reverse the district court’s holding that Allstate has the duty to defend and indemnify its insured, Karen Worthington Brown, as to the suits brought against her by the Defendants.