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; T h o m a s Monaghan, M i l e s C i t y ,
Montana
S u b m i t t e d on B r i e f s : Oct. 10, 1985
Decided: D e c e m b e r 31, 1 9 8 5
Clerk
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
appellant F.auker. The issue on appeal. is whether summary
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 specific injuries. We affirm.
McGehee and appellant were both employed by an
electrical contractor in Colstrip, Montana. McGehee was a
superintendent and had some supervision of appellant. On
November 11, 1982, both men were in a restaurant/bar near
Colstrip. McGehee states that he took exception to a remark
that appellant made that night. McGehee testified by
deposition and admitted that he deliberately punched
appellant twice in the face, that he wanted to hit appellant
more, and that he waited outside the establishment for
appellant but appellant did not show up. 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. Mutual Service moved
for summary 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 majority of courts which have
construed identical or 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 388; Pachucki v. ~epublic Ins. Co.
(Wis, 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 & Casualty
Company (N.J. App. 1975), 349 A.2d 102; Terito v. McAndrew
(La. App. 1971), 246 So.2d 235. We agree with these courts.
Under the undisputed facts of this case, Mutual Service was
entitled to judgment as a matter of law. The undisputed
facts show the following. McGehee admits that he
intentionally struck appellant in the face. The blows broke
appellant's cheek bone. McGehee's insurance policy with
respondent does not provide coverage for bodily injuries
intended or expected from McGehee's standpoint. We hold that
the District Court properly granted summary judgment in
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."
Jones, 279 N.W.2d a t 391, see a l s o CNA I n s . Co. v. McGinnis
(Ark. 1 9 8 4 ) , 666 S.W.2d. a t 691 ( t h e A r k a n s a s Supreme C o u r t
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 face, it is irrelevant for the purposes of this
insurance exclusion that the assailant causes an injury
different in character or magnitude from the harm he
s u b j e c t i v e l y intended. S e e T r a n s a m e r i c a I n s . Group v . Meere
(Ariz. 1984), 694 P.2d a t 185 ("It is, 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 . S t a t e Farm F i r e a n d C a s u a l t y Company
(N.J. App. 1975), 349 A.2d at 103 (". . . where the
intentional a c t has resulted i n intended injury, e v e n where
the injury inflicted 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
intended, coverage should be denied. ") , citing Lyons v.
H a r t f o r d I n s . Group ( N . J . App. 1 9 7 3 ) , 310 A.2d 485; a n d J o n e s
v. Norval (Neb. 19791, 279 N.W.2d a t 392 ( " . . . it makes no
difference if the actual injury i s more severe 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 courts a l s o agree t h a t t o require coverage i n a
situation such a s t h e one a t b a r , under 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
his own willful wrongdoing. '
I Meere, 694 P.2d at 186. See
also Spreen, 343 So.2d at 651 (I
'. . . one ought not to be
permitted to indemnify himself against his intentional
.
[torts] ' ) quoting Lea-therby Insurance Co.
I v. ~illoughby
(Fla.App. 1975), 315 So.2d 553. Moreover, " '. 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.'" Meere, 694 P.2d
at 186, quoting 7A Appleman, 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. Criminal and civil actions
followed and Phalen's 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. F e held
J
that granting summary judgment was therefore improper.
Phalen, 597 P.2d at 728. 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. The true legal issue has already been decided in
Phalen -- 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. Phalen,
597 P.2d at 724. In Phalen, we said that an insured would
not be covered 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 present a factual
question of intent and expectation. A 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.
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Justice
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