McAndrews v. Farm Bureau Mutual Insurance Co.

McCORMICK, Justice

(dissenting).

I agree with the court that an insurer has a duty to defend whenever there is possible liability to indemnify the insured based on the facts appearing at the outset *121of the litigation. I disagree with the court’s holding that facts showing a triable issue of self-defense do not establish possible liability under a comprehensive personal liability policy excluding coverage for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

Cases from other jurisdictions are divided on the issue. The court chooses to follow one line of authority, but I believe the opposing cases are more persuasive and would follow them. The opposing cases include Mullen v. Glens Falls Insurance Co., 73 Cal.App.3d 163, 140 Cal.Rptr. 605 (1977), Group Insurance Co. v. Morelli, 111 Mich.App. 510, 314 N.W.2d 672 (1981), Kermans v. Pendleton, 62 Mich.App. 576, 233 N.W.2d 658 (1975), Farmers Insurance Exchange v. Sipple, 255 N.W.2d 373 (Minn.1977); Allstate Insurance Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981), and Raday v. Board of Education, 130 N.J.Super. 552, 328 A.2d 17 (1974).

It is well established that when an insurance policy is susceptible to two constructions the policy will be construed in a light most favorable to the insured. Exclusions are thus construed strictly against the insurer. State Farm Automobile Insurance Co. v. Malcolm, 259 N.W.2d 833, 836 (Iowa 1977).

The cases demonstrate that the policy in the present case is reasonably susceptible to a construction favoring coverage. As observed by the Nebraska court in Novak:

The cases ... point out that when one acts in self-defense the actor is not generally acting for the purpose of intending any injury to another but, rather, is acting for the purpose of attempting to prevent injury to himself. It can easily be said that such act, though resulting in bodily injury to another, was neither expected nor intended within the terms of the policy.

210 Neb. at 192-93, 313 N.W.2d at 640-41.

This reasoning is consistent with the purpose of a comprehensive personal liability insurance policy. Through broad terms the policy covers the insured’s liability for harm caused by unpredictable happenings of daily life. It is logical to exclude coverage for the insured’s intentional torts because the harm from those acts is controllable and therefore predictable from the standpoint of the insured. The harm from an assault and battery is thus the kind of expected or intended harm that is within the exclusion. In contrast, a harm resulting from reactive or defensive conduct is not the predictable kind of harm associated with intentional torts. Even though bodily injury or property damage may result from acts done in self-defense, the harm is incidental to the intentional defensive acts rather than an expected or intended result.

I would hold that the language selected by the insurer is susceptible to a construction providing coverage in the present facts. Under this construction the facts ascertained by the insurer at the outset of the litigation established a possible duty to indemnify the insured. Therefore a duty to defend existed, and the trial court was correct in ordering Farm Bureau to indemnify McAndrews for his costs of defense.