dissent.
I cannot agree with the majority, that Norman is precluded by collateral estoppel from asserting his right to coverage under his liability insurance policy.
In Wilson v. Norman, in which we denied a writ of error (1977. unreported), the motion for judgment alleged that Norman willfully and maliciously shot Wilson with a pistol. Norman admitted shooting the pistol, but contended that to forestall an attack by Wilson he fired at the floor without removing the weapon from his pocket, and the bullet ricocheted and struck Wilson. (In his brief in opposition to Norman’s petition for a writ of error, Wilson stated that without removing the pistol from his pocket Norman fired the bullet which injured him.)
Norman is bound by findings without which the judgment against him could not have been rendered in Wilson v. Norman, and he cannot maintain the present action against his insurer if any such finding is fatal to his recovery. See Clinchfield Railroad Co. v. United States F. & G. Co., 263 F.2d 932 (6th Cir. 1959); Annot., 24 A.L.R.2d 329, 330 (1952).
At trial of the action the instruction on assault and battery placed the burden on Norman to prove “legal justification or excuse” for wounding Wilson. The jury verdict awarding Wilson compensatory and punitive damages shows conclusively that Norman failed to carry the burden of proof imposed upon him by the instruction. But does it show conclusively that the issue of intent, within the meaning of the insurance policy, was decided? I think not.
If Norman fired his pistol with the intent only to frighten Wilson, he could, nevertheless, have been found liable to Wilson for injuries unintentionally inflicted. Restatement of Torts § 13(a). I do not agree with the majority that the jury verdict shows that an expected and intended injury was inflicted on Wilson. The verdict necessarily shows only that the jury believed that Norman intentionally fired the pistol and that he did not have legal justification or excuse for doing so. .
Grenga v. National Surety Corporation, 113 R.I. 45, 317 A.2d 433 (1974), relied upon by the majority, is not inconsistent with this view. The court in that case agreed that the exclusionary language of the insurance policy, applying to harm “intentionally” caused, should not apply “where an insured’s *731intentional act results in unintentional harm.” 317 A.2d at 436. The court observed also that the complaint filed by the injured plaintiff against the insured alleged intentionally inflicted injuries, which allegations, under Rhode Island law, conclusively relieved the insurer of any duty to defend the insured. Holding that the verdicts returned on the plaintiffs complaint and the insured’s counterclaim clearly established intentional harm, the court concluded that this finding precluded recovery by the insured against the insurance carrier.
Norman’s policy covered injuries caused by an “occurrence,” which is defined as “[a]n accident.. . which results ... in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.” Construing this provision against the insurer, I conclude that Norman has alleged facts sufficient to withstand the insurer’s demurrer. He has alleged an intentional act resulting in unintentional harm. If he can prove this allegation, he is entitled to coverage under his insurance policy. Accordingly, I would reverse the judgment of the trial court and remand the case for trial on the merits.