(dissenting). Plaintiff Auto Club Group Insurance Company issued an insurance policy to defendant Vernon Clifton Oaks providing coverage for liability caused by an "occurrence,” defined to mean an "accident,” that results in bodily injury neither "expected” nor "intended from the standpoint of the insured.”
The question presented in this action for a declaratory judgment is whether Auto Club is subject to liability for damages that might be assessed against Oaks for personal injury suffered by defendant Michael W. Marzonie, II, as a result of the discharge by Oaks of a firearm.
Six justices rule that there is no coverage as a matter of law. Three so rule, not because Oaks intended or expected to cause bodily injury to Marzonie, but because he "should have expected bodily injury to result from firing this shotgun at Marzonie’s occupied vehicle”1 (emphasis added) even though, as stated in their opinion,2 he fired "with the admitted intent only to scare and cause property damage . . . .”3 The other three justices *651do not reach the question whether Oaks intended or expected to cause bodily injury to Marzonie. They so rule as a matter of law for Auto Club because they conclude that Oaks’ liability to Marzonie was not caused by an "occurrence”/”accident”; they so conclude, not because Oaks discharged the firearm intentionally, but because he *652discharged the firearm with the intent to damage Marzonie’s automobile.4
I would hold that whether the personal injury suffered by Marzonie was expected or intended, or accidental, should be decided from the standpoint of Oaks, the insured, and, because that depends on the facts and circumstances of the discharge by Oaks of the firearm, the meritorious question cannot be decided as a matter of law. Since the trier of fact decided5 6that the injury was neither expected nor intended by Oaks, the injury was a result of an occurrence/accident although the discharge of the firearm was intentional and Oaks intended to damage Marzonie’s automobile and hence cause property damage.
i
Before the 1966 revision of the standard general liability policy, liability policies generally provided coverage for personal injury caused by an "accident.”8 Because "accident” was not defined in the policy, courts developed judicial definitions. There were many definitions7 designed to implement the fundamental principle that insurance provides coverage for fortuitous losses.8
It became well established that where the consequences of intentional acts were unintended, the loss was accidental, and, hence, there was insurance coverage for unintended losses resulting from *653intentional conduct.9 A treatise explains that because "[f]ortuity, or the lack thereof, is primarily a matter of intent,” in insurance law, "questions about intent focus on the consequences, not the acts.” (Emphasis in original.)10
Although the concept of fortuity generally involves an analysis whether the insured "intended the consequences,”11 many courts concluded that the question whether there was an accident should be decided from the standpoint of the injured person.12
A
The insurance industry accepted the judicial construction that liability policies provide coverage for unintended consequences of intentional acts, but not judicial decisions that provided coverage for "expected” consequences that the courts were not prepared to find were actually intended. Nor did the industry accept judicial decisions determining coverage from the standpoint of the injured person. As part of a comprehensive revision of the general liability policy, the standard policy was revised in 1966 to exclude coverage where the *654consequences of the insured’s conduct, the injury, was "expected” as well as where it was actually intended, and to determine whether the injury was expected or intended from the standpoint of the insured rather than the standpoint of the injured person.13
The Insuring Clause was revised in 1966 to read:
"The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by an occurrence ....
" 'Occurrence’ is defined to mean:
... an accident, including injurious exposure to conditions, which results during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.”[14]
The insurance policy issued by the Auto Club to Oaks is substantively the same as the 1966 revision of the standard general liability policy. The Auto Club policy provides that it will pay on behalf of the insured sums that the insured becomes legally obligated to pay as damage because of bodily injury "caused by an occurrence.” The term "occurrence” is defined to mean "an accident” that "results, during the policy term, in bodily injury or property damage.” In a separate clause, the policy excludes coverage for "bodily injury or property damage which is either ex*655pected or intended from the standpoint of the insured.”15
B
The 1966 revision provides coverage for injury caused by an "occurrence.” " 'Occurrence’ means an accident.” (Emphasis added.) Thus, coverage is provided for injury caused by accident.
It is then provided that a covered accident is one "which results ... in injury . . . neither expected nor intended from the standpoint of the insured.” Thus, coverage is provided, somewhat circularly, for an injury caused by an accident that results in an injury neither expected nor intended.
Eliminating the circularity, coverage is provided *656for an accident that results in bodily injury neither expected nor intended.
There were a number of components of the various judicial definitions of what constitutes an "accident,” including the concept that an accident is a "sudden event which is identifiable in time and place . . . .” In defining "accident” to include "injurious exposure to conditions,” the 1966 revision also accepted judicial decisions that eliminated the sudden-and-unexpected-event-identifiable-in-time-and-place requirement.16
There were still other components in judicial definitions of accident. Some definitions exclude foreseeable consequences, but, because foreseeability generally equates with negligence, this might mean that there would be no coverage for negligent conduct and "would result in a liability policy of no significant value to the insured.”17
In Frankenmuth Mutual Ins Co v Piccard, 440 Mich 539, 547; 489 NW2d 422 (1992) (opinion of Riley, J.), the lead opinion18 observed that in the lead opinion19 in Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989) (opinion of Riley, C.J.), this Court considered the meaning of "acci*657dent,” as used to define "occurrence,”20 and the following definition was offered:
[A]n accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.[21]
Since coverage under occurrence-based policies is predicated on a finding of "accident,” it is understandable that courts continue to address the question whether there is an "occurrence”/"accident,” as well as whether the injury was expected or intended. This is nevertheless somewhat circular because it is difficult to conceive of an injurious *658consequence neither expected nor intended that would not be an accident within the meaning of the coverage.
An injury neither expected nor intended is "an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” As stated by three justices in Piccard, supra, p 548, there may be coverage "where the intentional conduct will result in unintended and unexpected injury thus constituting an 'accident’ . . . .” (Emphasis added.)
A finding or conclusion that an injury neither expected nor intended is not an accident would, I venture, stem from misanalysis focusing on the act or conduct of the insured22 rather than the injurious consequence, and would be contrary to the insurance law principle that "questions about intent focus on the consequences, not the acts”23 (Emphasis in original.)
Focusing on the act or conduct would also be contrary to the language of the policy. The act or conduct of the insured giving rise to liability is not in itself an, or the, occurrence. An insured’s act or conduct becomes an "occurrence” only if it was an accident. And whether the insured’s act or conduct was an accident turns on whether the consequence, the injury—not the act or conduct—was expected or intended._
*659II
Three justices are of the opinion that the "accident” inquiry should Continue to be decided from the standpoint of the injured person. This view or reading of the language of the policy is contrary to the 1966 revision’s purpose to determine coverage from the standpoint of the insured and not the standpoint of the injured person.
The drafters of the 1966 revision did not intend that, while the question whether the injury was expected or intended would be determined from the standpoint of the insured, there would continue to be a separate and preceding inquiry whether there was an "occurrence”/"accident” from the standpoint of the injured person.24 As a result of the 1966 revision, adopted in the Auto Club policy, both the coverage and exclusion questions are to be decided from the standpoint of the insured, rather than the standpoint of the injured person.
Another three justices are similarly of the opinion that there should continue to be a separate and preceding inquiry whether there was an "occurrence”/"accident” that was an accident. They conclude that where the intentional conduct re-*660suited in both expected/intended and unexpected/ unintended consequences, the injury was not caused by an "occurrence’’ / "accident. ’’ I am unable to agree. The 1966 revision’s purpose of precluding coverage where an unintended consequence is expected as well as where the consequence is intended, did not include precluding coverage for unexpected consequences simply because there were other consequences that were expected or intended.
When it was decided, long before 1966, that unintended consequences of intentional acts were covered unless, since the 1966 revision, the unintended consequence was expected or intended from the standpoint of the insured, it was decided that the focus should be on whether the consequence giving rise to liability was expected or intended, and not the insured’s conduct.
A single volitional act of an insured may give rise to consequences both expected/intended and unexpected/unintended. In such a case, because a golden thread in insurance law is that "questions about intent focus on the consequences, not the acts” (emphasis in original),25 and whether conduct is an accident turns on whether the consequence is expected or intended, it necessarily follows, although one might intuitively feel otherwise, that the single volitional act of the insured gives rise to an "accident” where the consequence is unexpected/unintended, and to a happening or event that is not an "accident” where the consequence is expected/intended.26_
*661Since whether conduct is an accident turns on whether the consequence is expected or intended, when the conduct results in both expected/ intended and unexpected/unintended consequences, there is no more reason to conclude that the conduct is not an accident than that it is. To conclude otherwise is to focus on the conduct rather than whether the consequence is expected or intended.
In many, possibly most, cases, there will be but one consequence of the insured’s conduct, not both unexpected/unintended consequences and expected/intended consequences. Denying coverage for unexpected/unintended consequences where there is adventitiously expected/intended consequences is unexamined line-drawing unrelated to any 1966 revision purpose or the history of adjudication that gave rise to the 1966 revision.
It truly elevates form over substance to say that the insured and the injured person are unprotected by insurance coverage for the kind of devastating loss that is involved in the instant case because the insured intended comparatively minor damage to Marzonie’s automobile. Defeating coverage in the instant case because comparatively minor property damage was intended is a cramped reading of "occurrence”/"accidental” inconsistent with judicial decisions preceding the 1966 revision and the drafting history and purpose of the 1966 revision.
Having in mind that (i) before the 1966 revision, it was well established that coverage was provided for unintended consequences of intentional acts, and, hence, that intentional conduct was accidental where the injury was unintended, and (ii) "questions about intent focus on the consequences, *662not the acts”27 (emphasis in original), and (iii) the purpose of the 1966 revision was to provide coverage where the consequences were expected as well as where they were intended, and not to change the focus from the consequences to the act or conduct of the insured,28 it is inexplicable that an injury neither expected nor intended is yet not an accident, or becomes not an accident because another injury, particularly one, as here, comparatively minor was intended.
iii
The meritorious question is whether the injury suffered by Marzonie was expected or intended from the standpoint of Oaks, the insured. Three justices conclude that the injury was expected or intended, and three do not reach that question because they decide that there was no occurrence/ accident.
In Buczkowski v Allstate Ins Co, 447 Mich 669; 526 NW2d 589 (1994), decided the day after Marzonie was decided, this Court affirms a decision of the Court of Appeals that Allstate had a duty to indemnify its insured for injuries suffered by Buczkowski when the insured fired his shotgun with the intent of hitting Buczkowski’s truck but a bullet ricocheted and hit Buczkowski. The majority of the Court of Appeals, in an unreported opinion, found that whether the injury "may reasonably be expected to result” from the insured’s actions within the meaning of an exclusion in the Allstate policy29 was a question of fact for the jury._
*663This Court affirmed in Buczkowski, three justices agreeing with the reasoning of the Court of Appeals, and one justice concurring in that result. I- signed both opinions for affirmance. I signed the concurring opinion because I agreed with the concurring justice that it was not "highly likely”30 *664that the discharge of the firearm aimed at Buczkowski’s unoccupied truck would result in personal injury. I signed the lead opinion because I agree with the other signers of that opinion and the Court of Appeals that ordinarily the question what is expected or intended by the insured, whether assessed subjectively or objectively, should be decided by the trier of fact.31
Buczkowski and Marzonie are distinguishable on the basis that the vehicle in Buczkowski was unoccupied and the vehicle in Marzonie was occupied. While this factual difference is important, and it is, indeed, more likely that personal injury will result from the firing of a gun at an occupied vehicle than at an unoccupied vehicle, a court may not in effect direct a verdict for the insurer declaring that there is no coverage unless—where the question arises (as in Czopek, DiCicco, Piccard and *665Marzonie32) under the occurrence-based language of the 1966 revision of the standard general liability policy—all reasonable persons must agree that personal injury was subjectively33 expected or intended, or—where the question arises (as in Freeman and Buczkowski) under the Allstate policy— all reasonable persons must agree that personal injury was objectively34 reasonably to be expected.
*666Courts in other jurisdictions have generally held that where the facts are in dispute, or where differing inferences may reasonably be drawn from undisputed facts, the question whether injury is expected or intended is to be decided by a trier of fact and not by the court as a matter of law.35 A number of cases so holding involved injuries caused by the discharge of firearms.36
*667Since it appears that a subjective standard37 is stated in the Auto Club’s policy and an objective standard in the Allstate policy, one would think that there is less reason to decide, as a matter of law, the question whether Oaks expected or intended to injure Marzonie than whether McKay expected or intended to injure Buczkowski.
I would hold that it was for the trier of fact, and not for this Court as a matter of law,38 to decide on the basis of the facts and circumstances of the discharge by Oaks39 of the firearm, whether Oaks *668expected or intended to cause the personal injury suffered by Marzonie, and thus whether what occurred was accidental and covered by the policy of insurance issued by Auto Club.
Ante, p 644, Riley, J., Boyle and Mallett, JJ., concurring.
Id., p 627.
Marzonie, Vernon Oaks, and the occupants of their vehicles became embroiled in a dispute in November, 1986, while stopped at an intersection near Flint. After heated words were exchanged, a high-speed chase ensued. Oaks drove his vehicle into the driveway of his parents’ house, and entered the house.
Marzonie stopped in front of the house, and began throwing bottles *651at the house and driveway. Oaks retrieved a shotgun, with which he claims he hoped to scare Marzonie, and went outside.
Marzonie’s vehicle began to creep up the driveway. Oaks aimed the gun at the vehicle’s grill and fired a shot in the hope, he said, of preventing the vehicle from approaching closer. After the first shot failed to fire, Oaks fired again. Oaks did not see the second shot hit the vehicle, and thought he had missed. Unbeknownst to Oaks, the shot had struck Marzonie. Marzonie’s vehicle began to back up, turned, and then started to move away. Oaks aimed a third shot at the rear tires in an effort to stop the vehicle. This shot did not fire. Finally, Oaks fired a fourth shot that hit one of the rear tires.
Auto Club commenced this action, seeking a declaration that coverage under a homeowner’s policy issued to Oaks’ parents was excluded. The parties stipulated that the testimony and other evidence submitted to the jury in a related case (Marzonie v Auto Club Ins Ass’n, 441 Mich 522, 523-526; 495 NW2d 788 [1992], rev’g 193 Mich App 332; 483 NW2d 413 [1992]) would be the record on which the circuit judge, as trier of fact, would decide the factual questions in this action. The judge found for Marzonie, and that there was coverage; he said: "[i]t cannot be concluded there was a certainty to produce injury which would require an inference there would be an expectation to cause that result. The firing of the weapon in this case could not, from the insured’s standpoint, cause the injury which came about.” The Court of Appeals affirmed. Auto Club Group Ins Co v Marzonie, unpublished opinion per curiam, issued May 21, 1993 (Docket No. 132237):
The Court of Appeals said:
[T]he shooting of Marzonie was an undesigned contingency which was not anticipated or naturally expected. Oaks’ intentional shooting at the car resulted in an unintended and unexpected injury to Marzonie, thereby constituting an occurrence within the terms of the homeowner’s policy issued by plaintiff.
The Court added that under the subjective standard enunciated by this Court in Metropolitan Property & Liability Ins Co v DiCicco, 432 Mich 656; 443 NW2d 734 (1989), and followed in Frankenmuth Mutual Ins Co v Piccard, 440 Mich 539; 489 NW2d 422 (1992), Group Ins Co of Michigan v Czopek, 440 Mich 590; 489 NW2d 444 (1992), and Auto-Owners Ins Co v Churchman, 440 Mich 560; 489 NW2d 431 (1992), the trial court’s conclusion that Oaks intended to shoot Marzonie’s vehicle, but not Marzonie, was not clearly erroneous.
Ante, pp 645 and 649, Griffin, J., Cavanagh, C.J., and Brickley, J., concurring.
See n 3.
See ns 12,14 and 16.
Some pre-1966 policies specifically excluded coverage for loss "caused intentionally by or at the direction of the insured.” See Morrill v Gallagher, 370 Mich 578, 583; 122 NW2d 687 (1963); Putman v Zeluff, 372 Mich 553, 555; 127 NW2d 374 (1964).
See n 21 and accompanying text.
Keeton & Widiss, Insurance Law, § 5.3, p 475.
Accordingly, we find that ascertaining the insured’s "intent” may determine whether the insured’s actions constituted an "accident,” but it does not necessarily follow that an insured must act unintentionally for an act to be an "occurrence.”10
10 See, generally, 10 Couch, Insurance, 2d (rev ed), §§ 41:7 et seq._
[Allstate Ins Co v Freeman, 432 Mich 656, 670; 443 NW2d 734 (1989) (opinion of Riley, C.J.). Emphasis added.]
In Piccard, n 3 supra, p 548 (opinion of Riley, J.), the lead opinion, signed by three justices, said that there may be coverage "where the intentional conduct will result in unintended and unexpected injury thus constituting an 'accident’ . . . .”
Keeton & Widiss, n 8 supra.
Id.
11 Couch, Insurance, 2d (rev ed), § 44:288, p 444.
See Czopek, n 3 supra, p 609, n 10 (Boyle, J., concurring).
Tarpey, The new comprehensive policy: Some of the changes, 33 Ins Couns J 223 (1966).
Another or later version substitutes "continuous or repeated” for "injurious,” and eliminates "during the policy period.” See Couch, n 12 supra, § 44:285, p 437; Rynearson, Exclusion of expected or intended personal injury or property damage under the occurrence definition of the standard comprehensive general liability policy, 19 Forum 513 (1984).
The Auto Club policy provides:
COVERAGES
COVERAGE E—PERSONAL LIABILITY
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 or property damage, to which this insurance applies, caused by an occurrence. . . .
"[Ojccurrence”: means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.
EXCLUSIONS
This policy does not apply:
1. Under Coverage E-Personal Liability and Coverage F-Medical Payments to Others:
f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.
Wendorff, The new standard comprehensive general liability policy, ABA Section on Ins, Neg & Comp Law (1966 proceedings), pp 250, 253.
Rynearson, n 14 supra, p 515.
It is fundamental that liability policies provide coverage for negligent acts or conduct of the insured. Cross v Zurich General Accident & Liability Ins Co, 184 F2d 609, 611 (CA 7, 1950).
"The indications must be strong enough to alert a reasonably prudent man not only to the possibility of the results occurring but the indications also must be sufficient to forewarn him that the results are highly likely to occur.” [Freeman, text accompanying n 19, p 675, quoting City of Carter Lake v Aetna Casualty & Surety Co, 604 F2d 1052, 1059, n 4 (CA 8, 1979). Emphasis added.]
Signed by three justices.
Signed by two justices.
In the companion case, Metropolitan Property & Liability Ins Co v DiCicco.
In Czopek, n 13 supra, p 597, this Court quoted more fully from Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12, 18; 123 NW2d 143 (1963), the source of the definition quoted in Freeman/DiCicco and Piccard:
An "accident” within the meaning of policies of accident insurance may be anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected by the person injured or affected thereby—that is, takes place without the insured’s foresight or expectation and without design or intentional causation on his part. In other words, an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.
The Guerdon definition was taken from 10 Couch, Insurance (2d ed), § 41:6, p 27, which Justice Otis M. Smith, the author of the opinion, said, (Guerdon, supra, p 18) was of "1962 vintage and reflects what is currently understood by the word 'accident’ as used in such a policy,” a comprehensive general and automobile liability policy. It will be noted that the definition speaks both from the standpoint of the injured person and the standpoint of the insured.
There are four decisions of this Court construing the 1966 revision of the standard general liability policy. The instant case of Marzonie, the companion case of DiCicco in Freeman/DiCicco, Piccard, and Czopek. Three justices signed the lead opinion in the instant case, Marzonie, two signed Freeman/DiCicco, three signed Piccard, and five, a majority, signed Czopek.
1 acknowledge that reasonable inferences concerning the insured’s intent may be drawn from his acts or conduct.
See n 10.
One commentator stated:
"The coverage under the new policy has been broadened to an 'occurrence’ basis.” [Wendorff, n 16 supra, p 252. Emphasis added.]
Those three justices would read the definition of "occurrence” in the 1966 revision as if the words underlined in the following revision of that definition were added:
... an accident, including injurious exposure to conditions, determined from the standpoint of the person suffering loss, which results during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.
I acknowledge that the words "bodily injury or property damage neither expected nor intended from the standpoint of the insured” are set forth in the Auto Club policy in an exclusion rather than in the definition of occurrence. That locational difference does not change the meaning of the policy or the coverage provided. But see Czopek, n 13 supra, pp 596, 612 (Boyle, J., concurring).
See n 10.
The lead opinion in Piccard, text accompanying n 18, supra, p 553, in stating that "the 'accident’ occurred when [fireman] Deane unexpectedly fell from the roof of Piccard’s music store,” recognizes in effect that more than one "occurrence”/"accident” might be seen as arising from singular conduct of the insured—in Piccard, the torching of the building, and, separately, the fireman falling from the *661roof of the store; in the instant case, damage to Marzonie’s automobile, and, separately, the physical injury to Marzonie.
See n 10.
See the last paragraph of part I, immediately following n 23.
The Allstate policy involved in Freeman and Buczkowski was not an occurrence-based policy, did not use the words "occurrence” or "accident,” did not incorporate the language of the 1966 revision of *663the standard general liability policy, but provided that Allstate would pay all sums that an insured person becomes legally obligated to pay as damages because of bodily injury or property damage with the following exclusion:
We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.
It appears that there is general agreement that an injury is expected when it is "highly likely.” Buczkowski, text accompanying n 29 supra, opinion of Brickley, J., p 672; opinion of Boyle, J., p 676; Freeman, supra.
In Bolin v State Farm Fire & Casualty Co, 557 NE2d 1084, 1089 (Ind App, 1990), an Indiana appellate court distinguished between intended and expected injury in a firearm injury case:
"Intended” has been defined as a volitional act with conscious desire to bring about certain results (see Allstate Ins Co v Herman (1990) Ind., 551 NE2d 844, citing Home Ins Co v Neilsen [165 Ind App 445; 332 NE2d 240 (1975)]) and "expected” as a slightly broader category which includes conscious awareness that desired results are practically certain to occur. [Emphasis added.]
See also Patrons-Oxford Mutual Ins Co v Dodge, 426 A2d 888, 892 (Me, 1981).
In Indiana Farmers Mutual Ins Co v Graham, 537 NE2d 510 (Ind App, 1989), another Indiana appellate court earlier considered the exclusion for "bodily injury or property damage which is either expected or intended from the standpoint of the insured” in an occurrence-based policy. The insureds’ farm was quarantined because their hog herd had become infected. The insureds sold the infected animals with notice of the disease and quarantine to a broker, who resold them, without notice of the disease or quarantine, to the plaintiff in the underlying action, whose herd had become infected. It was held that the insureds did not "expect” damage from the sale of infected animals within the meaning of the exclusionary clause absent evidence they were consciously aware that the resulting property damage to the plaintiff in the underlying action was "practically certain” to occur when they sold the herd to the broker with disclosure of the herd’s infection and quarantine.
The question whether the insured expected or intended to cause injury was decided in Marzonie, Freeman, Czopek, DiCicco, Piccard and Churchman, n 3 supra, as questions of law. Buczkowski is the first case in which three justices, in the lead opinion, recognize that the question is generally one of fact to be decided by the trier of fact. (In DiCicco, n 20 supra, p 711, it was recognized that the disposition of the declaratory judgment action did not involve a determination of the insurer’s duty to indemnify.)
Although this is an action for a declaratory judgment, questions of fact are to be decided by a trier of fact. See 22A Am Jur 2d, Declaratory Judgments, §§ 228-230, pp 867-872. In Brohawn v Transamerica Ins Co, 276 Md 396; 347 A2d 842 (1975), Maryland’s highest court said that where the ultimate issue would be decided in a pending action brought by a third party, “it is inappropriate to grant a declaratory judgment.”
The lead opinion in the instant case of Marzonie would hold that the injured party’s, rather than the insured party’s, perspective controls, and concludes that "given the disputed facts, we cannot, as a matter of law, decide that Marzonie was so blameworthy for the events that developed that the shooting was an undesigned contingency, casualty, happening by chance, out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected. . . . However, the resolution of this question is for the trier of fact.” Riley, J., ante, p 640. (Emphasis added.) The language of the test or standard followed in the lead opinion is based on the Guerdon definition adopted in Freeman/DiCicco, Piccard and Czopek. See n 21.
The Auto-Owners policy in Churchman, n 31 supra, p 566, was not an occurrence-based policy. As in the Allstate policy considered in Freeman and Buczkowski (see n 29), neither "occurrence” nor "accident” was used. Nor did the policy incorporate the language of the 1966 revision of the standard general liability policy. The policy provided that Auto-Owners will pay all sums that an insured person becomes legally obligated to pay because of bodily injury, but coverage was excluded for bodily injury "expected or intended by an insured person.” This is at least as clearly subjective as the 1966 revision of the standard general liability policy.
Freeman, supra (opinion of Riley, C.J., p 688; opinion of Boyle, J., p 709).
Freeman, supra (opinion of Boyle, J., pp 709-710). In Churchman, n 31 supra, p 567, a majority said that in DiCicco, this Court considered policy language similar to that in Churchman "and found that because the policy language included the phrase '"from the standpoint of the insured,” ’ subjective intent was required. Id. at 708.”
In a concurring opinion in Churchman, n 31 supra, (opinion of Riley, J., p 579), an opinion signed by two justices, declared that in DiCicco, this Court adopted a "policy-blended subjective standard” that requires that "the insurer need only establish that the insured intended to cause the victim some type of harm, not that he specifically intended to cause the injury as a consequence of his action,” citing the several opinions in that case, none of which were signed by more than two justices.
The view that this Court adopted a "policy-blended subjective test” in DiCicco is reiterated in the lead opinion in the instant case (opinion of Riley, J., ante, p 635, n 13, p 641, n 21).
In Piccard, supra (opinion of Riley, J., pp 549-550), the view was expressed that in applying the “policy-blended subjective standard” "we look at the insured’s conduct from his perspective and evaluate either his intent to cause some type of injury to an innocent third party or his awareness that harm was Hkely to follow from the performance of his intentional act.” The lead opinion concluded that "Piccard’s intent to cause property damage is irrelevant” and that "the record is devoid of any suggestion that Piccard intended to injure” the firefighter. Piccard, n 18 supra, p 553.
For reasons stated commencing with the third paragraph of part ii, I do not agree that coverage should be denied because the insured *666intended "to cause the victim some type of harm” unless he expected or intended to cause the harm or consequence that gave rise to the claims in suit.
Allstate Ins Co v Sparks, 63 Md App 738; 493 A2d 1110 (1985) (destruction of a mill when the insured ignited gas fumes while attempting to steal gas); Northwestern Nat’l Casualty Co v Phalen, 182 Mont 448; 597 P2d 720 (1979) (injuries suffered when the insured tripped the victim and he crashed on his face). Both cases were occurrence-based policies excluding recovery for loss expected or intended from the standpoint of the insured. Indiana Farmers Mutual Ins Co v Graham (discussed in n 30 supra; the exclusion was stated in the same language as the two preceding cases, but the report does not indicate whether the policy was occurrence-based); Caspersen v Webber, 239 Minn 93; 213 NW2d 327 (1973) (the insured pushed a hatcheck girl, causing her to lose her balance and strike her back against a metal message rack; the policy excluded injury caused intentionally by the insured).
Patrons-Oxford Mutual Ins Co v Dodge, n 30 supra (the insured shot the victim with a shotgun and was convicted of aggravated assault—held not barred from having the jury determine whether the injury was expected or intended); Alabama Farm Bureau Mutual Casualty Ins v Dyer, 454 So 2d 921 (Ala, 1984) (the insured fatally shot his brother and then committed suicide); Talley v MFA Mutual Ins Co, 273 Ark 269; 620 SW2d 260 (1981) (the victim was hit when he traded a round of shots with the insured as the insured circled the block, shooting out vehicle windows). These cases were occurrence-based policies with the same exclusion as in the instant case.
See Lyons v Hartford Ins Group, 125 NJ Super 239; 310 A2d 485 (1973), cert den 64 NJ 322; 315 A2d 411 (1974) (a warning shot was fired by the insured at an automobile); Garden State Fire & Casualty Co v Keefe, 172 NJ Super 53; 410 A2d 718 (1980), cert den 84 NJ 389; 420 A2d 317 (1980) (a gun was used to frighten, not injure); Vanguard Ins Co v Cantrell, 18 Ariz App 486; 503 P2d 962 (1972), aff’d 110 Ariz 184; 516 P2d 320 (1973) (a gun was used in a robbery to frighten, not harm); Colonial Penn Ins Co v Hart, 162 Ga App 333; 291 SE2d 410 (1982) (the court affirmed judgment for the insured who fired pellets with the intent of frightening the victim); Barry v Romanosky, 147 AD2d 605; 538 NYS2d 14 (1989) (the insured shot at the door of a dance club and injured a person inside); Physicians Ins Co of Ohio v Swanson, 58 Ohio St 3d 189; 569 NE2d 906 (1991) (the insured shot a *667bb gun at a group with the purpose of scaring, and the victim was hit when he turned toward the insured); Espinet v Horvath, 157 Vt 257; 597 A2d 307 (1991) (the insured shot the victim after a long evening of drinking and during an argument); Stidham v Millvale Sportsmen’s Club, 421 Pa Super 548; 618 A2d 945 (1992) (shooting during an argument in a tavern); Green v Allstate Ins Co, 177 AD2d 871; 576 NYS2d 639 (1991) (coverage was found, despite a guilty plea, when the insured recklessly fired a slingshot into a crowd with no particular purpose); Bolin v State Farm Fire & Casualty Co, discussed in n 30 supra (coverage was found where the insured pleaded guilty of criminal recklessness for firing a gun at the rear of the victim’s truck); Allstate Ins Co v Zuk, 78 NY2d 41; 574 NE2d 1035; 571 NYS2d 429 (1991) (coverage was found even though the insured pleaded guilty of reckless crime where the victim was killed when a gun accidentally discharged while being cleaned by the insured); State Farm Fire & Casualty Co v Muth, 190 Neb 248, 272; 207 NW2d 364 (1973) (insured shot a bb gun at the victim’s vehicle, injuring the victim’s eye).
But see n 34.
It is, again, noteworthy, that while six justices rule that there is no coverage as a matter of law, only three justices so rule on the basis that Oaks expected or intended—or, more precisely, "should have expected”—to cause bodily injury. One of the three justices signed the lead opinion in Buczkowski which found that the question was one of fact to be decided by the trier of fact.
The other three justices rule that there is no coverage, as a matter of law, because there was no "occurrence”/"accident” since the discharge of the firearm was with the intent to damage Marzonie’s automobile. Those three justices, including two who signed the lead opinion in Buczkowski, do not reach, or express an opinion on, the question whether Oaks expected or intended to cause bodily injury.
The credibility of Oaks’ assertion that he retrieved the shotgun to frighten Marzonie, and fired it to forestall Marzonie’s vehicle from proceeding further up the driveway, and that he did not intend to injure Marzonie, was resolved by the trier of fact for Oaks and Marzonie. The judge’s findings were not clearly erroneous.