dissenting:
I respectfully dissent. This court should reverse the trial judge’s conclusion that Smith intended to cause bodily injury as a matter of law.
The two cases cited by the majority opinion as controlling are both I believe distinguishable on their facts. In Continental Western Insurance Co. v. Toal, 309 Minn. 169, 244 N.W.2d 121 (1976), the two insureds and their accomplices entered a 24 hour bowling alley with loaded weapons. Although the participants did not specifically intend to shoot anyone during the robbery, they did intend to threaten people they knew would be inside the alley and use the weapons if it became necessary to accomplish their planned robbery. Id. 309 Minn, at 171, 244 N.W.2d at 123.
In Woida v. North Star Mutual Insurance Co., 306 N.W.2d 570 (Minn.1981) (en banc) plans were made by the insured and several friends to drive to a powerline construction site to harass the guards. Upon their arrival they fired several shots at a vehicle they knew was occupied because an interior dome light exposed the men inside. Id. at 573.
To infer an “intention to inflict an injury as a matter of law” both the Toal and Woida courts required the acts of the insureds to be calculated and unremorseful in their character. Toal, 309 Minn, at 177-178, 244 N.W.2d at 126; Woida, 306 N.W.2d at 573-574. Here although Smith’s conduct may be characterized as grossly negligent, it does not reach that level of conduct which could be characterized as calculated and unremorseful so as to require an inference of intent to inflict bodily injury. Unlike the participants in Toal and Woida Smith had neither a plan to injure nor did he aim at that part of the Dupey home he knew to be occupied by people.