Auto-Owners Insurance v. Harrington

Kelly, J.

I respectfully dissent. I would reverse the Court of Appeals determination that plaintiff insurance company is not obligated to defend the claims brought in the underlying action.

An insurer’s duty to defend is distinct from its duty to indemnify. Allstate Ins Co v Freeman, 432 Mich 656, 662; 443 NW2d 734 (1989) (Riley, C.J.). The duty to defend is broader and extends to any allegations that arguably come within the policy coverage. Frankenmuth Mut Ins Co v Piccard, 440 Mich 539, *387546; 489 NW2d 422 (1992). Any doubt about the duty to defend must be resolved in the insured’s favor. Freeman, supra. In determining whether an insurer has a duty to defend, it is necessary to go beyond the terminology in the pleadings and look at the basis for the injury. Id. at 662-663.

This is the first time that this Court has decided whether acts of self-defense are excluded by an intentional-act exclusion in a homeowner’s insurance policy. Previously, we have discussed whether insurance coverage is precluded where bodily injury is caused by an insured who is mentally ill or intoxicated. Auto-Owners Ins Co v Churchman, 440 Mich 560; 489 NW2d 431 (1992); Group Ins Co of Michigan v Czopek, 440 Mich 590; 489 NW2d 444 (1992).

In Churchman, we concluded that, although a mentally impaired insured may be unable to form the requisite criminal intent for murder, he can intend or expect the damages he causes. Id. at 563. Similarly, in Czopek, we held that an assault by an intoxicated party was not an “occurrence” under the terms of the policy.

The defenses of mental illness and intoxication differ, of course, from the defense of self-defense. With regard to the former, while conduct when under their influence is legally excused, it is nonetheless culpable. By contrast, conduct in the nature of self-defense is legally justified.

Other jurisdictions have discussed the issue whether insurance coverage is precluded where bodily injury was caused by an insured who was acting in self-defense. In Transamerica Ins Group v Meere,1 *388Meere and a friend were confronted by several off-duty employees of the Arizona State Prison after leaving a bar. Pruitt, a prison guard, approached Meere. The two exchanged words, and Pruitt struck Meere. Meere put up his hands and said that he did not want to fight. Pruitt struck him again. The two then exchanged blows. The fight ended when Meere knocked Pruitt to the ground and kicked him as he attempted to get up and assault Meere again. Pruitt lost partial sight in one eye. Id. at 353.

He brought a tort action against Meere, who claimed self-defense. Id. Meere’s insurance company, Transamerica, brought a declaratory action to establish that it had no duty to defend or indemnify Meere, because its policy excluded coverage for intentional acts. Id. at 353-354.

The Arizona court ruled that Transamerica had a duty to defend Meere. It noted that insureds purchase insurance coverage to guard against risks outside their control. Id. at 355. The insurance company establishes its premium on the basis of actuarial calculations of the random occurrence of covered events in a given population. Id. at 356. The intentional-act exclusion enables insurance companies to set rates and supply coverage for unintentional and uncertain losses. If an insured is allowed through intentional acts to consciously control risks covered by the policy, a central concept of insurance is violated. Id., citing 7A Appleman, Insurance Law & Practice, § 4492.01, p 21. *389The court found that the clause is designed to exclude coverage when the insured suffers a loss resulting from the exercise of his own volition. Its purpose is not furthered by reading the provision to exclude coverage in self-defense situations, where the insured is not acting by conscious design, but is attempting to protect himself. Id. On the basis of that logic, the court found that the insurance company was required to defend Meere.

Other jurisdictions deciding this issue have recognized that, when an insured acts in self-defense, his primary intent is not to injure. Rather, he acts for the purpose of preventing injury to himself or others. Therefore, even though bodily injury is a result, it was neither expected nor intended within the terms of the policy. Allstate Ins Co v Novak, 210 Neb 184, 192-193; 313 NW2d 636 (1981); Mullen v Glens Falls Ins Co, 73 Cal App 3d 163; 140 Cal Rptr 605 (1977); Farmers Ins Exchange v Sipple, 255 NW2d 373 (Minn, 1977); Cowan v Ins Co of North America, 22 Ill App 3d 883; 318 NE2d 315 (1974).

I agree with the reasoning of the jurisdictions that have found a duty to defend where the insured acts in self-defense. Precluding coverage in this case would not further the purpose of the intentional-act exclusion. Moreover, Harrington reasonably could have expected that the homeowner’s HabUity policy would cover a tort claim that was unfounded because of a *390valid self-defense justification. Therefore, I would reverse the decision of the Court of Appeals.

Cavanagh, J., concurred with Kelly, J.

143 Ariz 351; 694 P2d 181 (1984).