Allstate Insurance v. McCarn

Weaver, J.

(dissenting). I would hold that the intentional and criminal acts exclusion of the homeowner’s insurance policy at issue excludes coverage in this case. I would remand this case to the trial court for entry of summary judgment for plaintiff. I, therefore, dissent from both the result and reasoning of the lead opinion.

After sharing a bowl of marijuana, Robert McCarn intentionally aimed a shotgun at Kevin LaBelle’s face without checking whether the shotgun was loaded. McCarn’s testimony revealed that he was horse playing, but intended to frighten LaBelle into sharing some crackers with him. When McCarn pulled the trigger, the gun discharged and LaBelle was killed. McCarn pleaded nolo contendere to a charge of manslaughter, MCL 750.321.

The intentional or criminal acts exclusion of the policy now at issue unambiguously states:

We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her conduct.
b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or
c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

Unambiguous insurance policy language must be enforced as written. Farm Bureau Ins Co v Nikkel, 460 Mich 558, 570; 596 NW2d 915 (1999).

*296This Court addressed a similar exclusionary clause in Allstate Ins Co v Freeman, 432 Mich 656, 685; 443 NW2d 734 (1989). The exclusion at issue in Freeman provided:

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. [Freeman at 685.]

Freeman held that the exclusionary clause at issue in that case relieved the insurer of liability if “(1) the insured acted either intentionally or criminally, and (2) the resulting injuries occurred as the natural, foreseeable, expected, and anticipated result of an insured’s intentional or criminal acts.” Id. at 700 (emphasis in original).

Though similar to the policy at issue in Freeman, there are important differences to the policy language at issue in this case. The criminal acts exclusion of the homeowner’s insurance policy at issue in this case is broader than that in Freeman. It includes three subsections that expressly expand the scope of the exclusion. Relevant to this case, subsection b provides

“[t]his exclusion applies even if... Such bodily injury or property damage is of a different kind or degree than intended or reasonably expected .. ..”

Subsection b applies because “even if” indicates that the subsections are included in and help define the policy exclusion. Thus, consideration of the specific policy language at issue in this case requires some adjustment to Freeman’s second prong for this case. Subsection b shifts the inquiry away from the actual injury that resulted from intentional or criminal actions, to whether any bodily injury or property damage could be reasonably expected to result from the actions.

*297Nevertheless, to the extent the policy at issue in this case is similar to the policy at issue in Freeman, Freeman’s two-pronged objective test is instructive. Freeman, supra at 700, correctly identified the first question under policy language before the Court as whether “the insured acted either intentionally or criminally.” I agree with the lead opinion that the policy requirement that McCarn acted intentionally or criminally is met. McCarn acted intentionally when he pulled the trigger of a gun while pointing it at LaBelle’s face. As correctly explained by the Court of Appeals, Mc-Carn’s actions were also criminal.

Regarding whether it was reasonable to expect injury or property damage would result from the intentional or criminal act, it is the consensus of this Court Freeman correctly employed an objective inquiry. The dis-positive question under the language of this policy and the facts of this case should be, therefore, whether a reasonable person would expect bodily injury or property damage to result when a person points a gun at another person’s face without determining whether the gun was loaded and then pulls the trigger.

While the lead opinion acknowledges that the language “may reasonably be expected” dictates an objective standard, ante at 290, the lead opinion’s rationale only pretends to be objective. By focusing on McCarn’s belief that the gun was unloaded, ante at 290-291, the lead opinion abandons the objective standard in favor of the subjective belief of a teenager under the influence of marijuana. Fortunately, the lead opinion’s rationale will not bind future decisions, because it was joined by only two other justices. One justice joins the lead opinion in result only. Three justices agree that the lead opinion incorrectly transforms the objective standard into a subjective standard.

*298An established rule in construing insurance contracts is that “[a]n insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy.” Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995). The lead opinion implies that it is against public policy to deny coverage in this case. Ante at 290-291. To indirectly support this suggestion, the lead opinion vaguely alludes to the no-fault act, MCL 500.3101 et seq. Ante at 291. However, the lead opinion utterly fails to understand that the no-fault act is irrelevant to this case because there is an important difference between no-fault insurance and the homeowner’s insurance. In the no-fault act, the Legislature expressly requires that the insurer provide residual coverage for intentionally caused damages. MCL 500.3135(3)(a). There is no such requirement imposed on homeowner’s insurance providers by any statute. Had the Legislature intended to require homeowner’s insurance providers to cover criminal and intentional acts it could have done so. Thus the- lead opinion has not established that the homeowner’s insurance policy exclusion at issue is against public policy.1 The lead opinion twists the objec*299tive standard required by the policy exclusion at issue in this case into a subjective standard in order to justify holding “an insurer liable for a risk it did not assume.”2

In this case, interpreting the unambiguous terms of this homeowner’s insurance policy exclusion, the relevant focus is on whether any bodily injury or property damage could reasonably be expected from McCarn’s intentional or criminal act. The intentional and criminal acts exclusion of the homeowner’s insurance policy at issue in this case plainly and unambiguously excludes coverage under these facts since bodily injury can reasonably be expected to result when, without first determining that a gun is unloaded, a person points the gun at another person and pulls the trigger.

For these reasons, I dissent from the lead opinion and would affirm the decision of the Court of Appeals excluding coverage under the intentional and criminal acts exclusion of the homeowner’s policy at issue.

Corrigan, C.J., concurred with Weaver, J.

Not only is the no-fault act irrelevant to this case, the lead opinion’s citation of Vigilant Ins Co v Kambly, 114 Mich App 683, 687; 319 NW2d 382 (1982), is also entirely irrelevant and inapplicable. Vigilant involved whether a medical malpractice insurer was required to provide coverage for a malpractice claim against a doctor who engaged in sexual activity with a patient under the guise of medical treatment. It should he noted that medical malpractice is governed by different statute than homeowner’s insurance. Moreover, the malpractice insurance policy in that case contained no criminal or intentional acts exclusion. Thus, the Court of Appeals panel declined to read a criminal and intentional acts exclusion into the policy. The panel concluded, supra at 687-688, that the doctor’s actions were a covered form of malpractice and noted “[i]n this instance, there is great public interest in protecting the interests of the injured party.” Nevertheless, the panel noted, id. at 687, that there are *299“public policy considerations raised by [the medical malpractice insurer] which prohibit the insurability of criminal or intentionally tortuous conduct” which were not present on the facts of that case. Thus, Vigilant does not support the lead opinion’s policy-making intentions.

Farm Bureau, supra at 568, citing Auto-Owners Ins Co v Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992).

I note that the lead opinion has garnered only three votes for its rationale; Justice Cavanagh has concurred only in the result. Therefore, the lead opinion has no precedential value. People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973).