Present: Keenan, 1 Koontz, Lemons, Goodwyn, and Millette, JJ., and
Carrico and Lacy, S.JJ.
ADAM CHARLES COPP
OPINION BY
v. Record No. 090345 SENIOR JUSTICE HARRY L. CARRICO
April 15, 2010
NATIONWIDE MUTUAL
INSURANCE COMPANY, ET AL.
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M. D. Turk, Judge
In this appeal in a declaratory judgment proceeding brought
by Nationwide Mutual Insurance Company, the issue is whether the
circuit court erred in holding that Nationwide owed no duty to
defend Adam Charles Copp, one of its insureds, in a tort action
brought against him by Gregory M. Jacobson. Finding that the
circuit court did err in this respect, we will reverse its
judgment.
At the time of the incident in question, Copp was an
insured under a homeowner’s policy and an umbrella policy issued
by Nationwide to Copp’s parents. The homeowner’s policy
provided coverage for an “occurrence,” described as bodily
injury or property damage “resulting from an accident,” but
excluded coverage for liability “caused intentionally by or at
direction of an insured, including willful acts the result of
1
Justice Keenan participated in the hearing and decision of
this case prior to her retirement from the Court on March 12,
2010.
which the insured knows or ought to know will follow from the
insured’s conduct.”
The umbrella policy provided coverage for personal injury
and property damage arising from an “occurrence,” meaning an
“accident.” The umbrella policy contains one clause excluding
liability for “personal injury arising out of . . . willful
violation of a law by or with the consent of the insured” and a
second clause excluding liability for “bodily injury or property
damage intended or expected by the insured.” However, this
latter clause specifically provides that it “does not apply to
bodily injury or property damage caused by an insured trying to
protect person or property.”
BACKGROUND
In the hearing on the motion for declaratory judgment,
Nationwide introduced into evidence both insurance policies, the
motion for judgment filed by Jacobson against Copp, an
examination under oath of Copp, a deposition of Copp, and a
deposition of Jacobson. The parties had agreed and stipulated
to the use of these materials in the declaratory action.
Copp and Jacobson were not acquainted with one another
prior to the incident in question on May 5, 2002. From Copp’s
examination under oath and deposition, it appears that Copp and
Sean Manley, one of his roommates in an apartment at Blacksburg,
had just finished their final examinations at Virginia
2
Polytechnic Institute and State University and were celebrating
by playing a drinking game called “beer pong.” Two individuals
they “had never seen . . . before” entered the apartment through
a “cracked” door and asked if they could challenge Copp and
Manley to a game.
After about ten minutes of playing the game, one of the
newcomers, Carson Dugger, made a remark that offended Copp, who
then asked the two men to leave the apartment. When they did
not leave, Copp put his hand on Dugger’s arm, told him to “[g]et
out,” escorted him to the door, opened it, and pushed him into
the hallway. The two then engaged in an exchange of profanity
in loud voices.
Copp’s roommate, Manley, stepped between Copp and Dugger
and tried to get both to calm down. Manley got Copp back into
their apartment and locked the door. Dugger was “outside still
yelling” so Copp, angry by now, exited through another door of
the apartment to try to talk with Dugger to get him to leave.
When Copp opened the door, he was confronted with several people
who were attending a gathering on the floor above, had heard the
shouting between Copp and Dugger, and had come downstairs to
investigate. One of these individuals was Jacobson, who was a
friend of Dugger.
When Copp stepped out of the door, there were four or five
people between him and Dugger, including Jacobson. Copp tried
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to walk forward to get to Dugger but three of the people pushed
him back, wrestled with him, twisted his arm, and kept him “from
walking anywhere.” At one point, he was pinned against the
stairwell, but he was able to stand up and push one of the
people off of him and then “someone, one of those individuals
took a swing at [him] and [he] was able to duck [his] head and
dodge the swing.” He realized that he was “outnumbered” and
that his “safety definitely was in jeopardy,” and he was able to
get away from “the other individual” who was holding him and
free himself.
“[I]n the process of getting free,” Copp “swung [his] arm
[with his fist closed] over top of someone’s head, kind of like
a swim movement in football” and, “with that move,” Copp thought
he “possibly struck Gregory Jacobson unintentionally.”
Jacobson fell to the floor. Copp heard someone say
“[l]et’s beat the [expletive] out of him,” and he left
immediately, going to the apartment of a friend.
In Jacobson’s deposition, he stated that he did not
“remember any of [what happened at the apartment] except [his]
trying to tell [Copp] to calm down.” However, he did remember
getting between Copp and Dugger “because [Dugger was] his
friend.” He also remembered that he did not see anyone touch or
“take a punch at” Copp, that Copp was “throwing punches [in] the
air at people,” and that “Copp intentionally hit [him].”
4
Jacobson was knocked unconscious by the blow to his head
and did not regain consciousness until he was in an ambulance on
the way to a hospital. It was determined that his orbital
socket was fractured, requiring surgery on two occasions.
Copp was charged with assault and battery on Jacobson under
Code § 18.2-57, and he entered a plea of no contest to the
charge. He was ordered to enroll in an anger management class,
perform community service, serve a period of probation, and
reimburse Jacobson for his “initial hospital visit and ambulance
ride.” In addition, on the morning after the incident in
question, Copp went to the apartment above his “to apologize and
talk with Ryan Salomon,” who hosted the gathering
Jacobson was attending before the commotion occurred downstairs.
Copp felt he needed to apologize to Salomon “in part” for
disturbing “his peaceful party.” Salomon told Copp he would
“forward [Copp’s] apology” to “the person whom [Copp] had hit.”
Jacobson’s motion for judgment consisted of two counts.
Count I was a claim for compensatory damages for assault and
battery alleging that Copp “willfully and intentionally hit
[Jacobson]” and that Copp’s “actions were unjustified [and]
malicious.” Count II was a claim for punitive damages for
assault and battery with similar allegations of willful,
intentional, unjustified, and malicious conduct on the part of
Copp.
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Nationwide and Copp each filed a memorandum of law.
Nationwide argued that it did not have a duty to defend or owe
coverage for any of the intentional acts alleged in the motion
for judgment because they “cannot be considered an accident or
accidental under the terms of the policies.” Copp argued that
Nationwide owed him the duty to defend and provide coverage
based upon the limitation in the umbrella policy providing that
the exclusion of liability for bodily injury or property damage
intended or expected by the insured “does not apply to bodily
injury or property damage caused by an insured trying to protect
person or property.”
In a letter opinion, the circuit court stated that although
it had reviewed all the transcripts and the memoranda in
arriving at its decision, it felt compelled to resolve the issue
based on the pleadings, “ ‘and not by the testimony of witnesses
or other evidence’ ” (quoting Ted Lansing Supply Co. v. Royal
Aluminum & Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 230
(1981)). The court held that “[c]learly under the facts as
alleged, [Jacobson’s] claim against [Copp] is for an intentional
act” and that “[b]ased upon the language in the insurance
contract and the pleadings as set forth, . . . Nationwide is not
obligated to defend [Copp] in the underlying tort claim.”
While the court purported to quote all the exclusionary
clauses in the two policies, it omitted that part of the
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umbrella policy providing that the exclusion for intended or
expected bodily injury and property damage “does not apply to
bodily injury or property damage caused by an insured trying to
protect person or property.”
STANDARD OF REVIEW
The interpretation of a contract presents a
question of law subject to de novo review.
Additionally,
[c]ourts interpret insurance policies, like
other contracts, in accordance with the
intention of the parties gleaned from the
words they have used in the document. Each
phrase and clause of an insurance contract
should be considered and construed together
and seemingly conflicting provisions
harmonized when that can be reasonably done,
so as to effectuate the intention of the
parties as expressed therein.
Furthermore,
[i]nsurance policies are contracts whose
language is ordinarily selected by insurers
rather than by policyholders. The courts,
accordingly, have been consistent in
construing the language of such policies,
where there is doubt as to their meaning, in
favor of that interpretation which grants
coverage, rather than that which withholds
it. Where two constructions are equally
possible, that most favorable to the insured
will be adopted. Language in a policy
purporting to exclude certain events from
coverage will be construed most strongly
against the insurer.
Seals v. Erie Insurance Exchange, 277 Va. 558, 562, 674 S.E.2d
860, 862 (2009) (internal quotation marks and citations
omitted).
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[O]n appeal we are not bound by the trial court’s
interpretation of the contract provision at issue; rather,
we have an equal opportunity to consider the words of the
contract within the four corners of the instrument itself.
Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631,
561 S.E.2d 663, 667 (2002) (citation omitted).
ANALYSIS
[A]n insurer’s duty to defend . . . is broader than [the]
obligation to pay, and arises whenever the complaint
alleges facts and circumstances, some of which would, if
proved, fall within the risk covered by the policy.
. . . .
[T]he obligation to defend is not negated merely by the
unsuccessful assertion of a claim otherwise facially
falling within the risks covered by the policy. Various
defenses applicable to specific factual circumstances may
be successfully asserted against claims otherwise covered
by the policy. The insurer has the obligation to defend the
insured in such circumstances even though the obligation to
pay is not ultimately invoked.
Virginia Elec. & Power Co. v. Northbrook Property & Cas.
Insurance Co., 252 Va. 265, 268-69, 475 S.E.2d 264, 265-66
(1996) (internal quotation marks and citation omitted).
Nationwide contends that in determining whether an
insurance company has a duty to defend the insured under a
contract of insurance, the allegations in the underlying
complaint and the insurance policy are examined, and if the
complaint alleges facts and circumstances, some of which, if
proved, would fall within the risk covered by the policy, then
8
the obligation to defend arises. However, Nationwide maintains,
matters raised by the insured in defense of the claim are not to
be considered in evaluating whether there is a duty to defend.
Continuing, Nationwide submits that if “it appears clearly
that the insurer would not be liable under its contract for any
judgment based upon the allegations in the complaint (and not
considering the defenses), it has no duty to defend.” This
evaluation process, Nationwide asserts, is known as the “eight
corners rule” because the analysis concerns only the four
corners of the policy and the four corners of the complaint.
Here, Nationwide says, the four corners of the complaint
only alleged intentional torts, and the insurance policies
provided coverage only for an “occurrence,” which is defined as
“resulting from an accident.” Therefore, Nationwide concludes,
“there were no facts or circumstances alleged in the complaint
that would fall within the risk covered by the policy,” and “the
trial court could not consider Copp’s claim that his acts were
made in self defense, because matters raised by the insured in
defense of the claim are not to be considered in evaluating
whether there is a duty to defend.”
In several prior decisions in this type of case, we have
applied the rule that only the allegations in the complaint and
the provisions of the insurance policy are to be considered in
deciding whether there is a duty on the part of the insurer to
9
defend and indemnify the insured. Brenner v. Lawyers Title
Insurance Corp., 240 Va. 185, 189, 192, 397 S.E.2d 100, 102, 104
(1990); 2 Reisen v. Aetna Life & Cas. Co., 225 Va. 327, 331, 302
S.E.2d 529, 531 (1983); Travelers Indemnity Co. v. Obenshain,
219 Va. 44, 46, 245 S.E.2d 247, 249 (1978); Norman v. Insurance
Co. of North America, 218 Va. 718, 724, 239 S.E.2d 902, 905-06
(1978); London Guarantee & Accident Co. v. C. B. White & Bros.,
Inc., 188 Va. 195, 199-200, 49 S.E.2d 254, 256 (1948).
None of our prior decisions, however, has involved the type
of situation we have here, where in one of the four corners of
an insurance policy there is a provision specifically stating
that an exclusion “does not apply to bodily injury or property
damage caused by an insured trying to protect person or
property.” This provision must be considered and construed
2
Nationwide cites Brenner six times in its opening brief.
But the case is not as hidebound as Nationwide makes it out to
be. Although we said that an insured in this type of case is
limited to “the claim actually made” in the complaint and cannot
in a cross-bill add a claim “for which there may have been
coverage,”
240 Va. at 192, 397 S.E.2d at 104, we also stated as follows:
The duty to defend is to be determined initially from
the allegations of the complaint. But if it is doubtful
whether the case alleged is covered by the policy, the
refusal of the insurer to defend is at its own risk. And,
if it be shown subsequently upon development of the facts
that the claim is covered by the policy, the insurer
necessarily is liable for breach of its covenant to defend.
Id. at 189, 397 S.E.2d at 102 (citation omitted) (emphasis
added).
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together with each phrase of the umbrella policy. Seals v. Erie
Insurance Exchange, 277 Va. at 562, 674 S.E.2d at 862.
Nationwide opines that what Copp really wants this Court to
do is to “create an exception to [the] well settled law when the
insured intends to argue self defense.” But Copp has not asked
us to create any exceptions. He says that the exclusion of
coverage for “bodily injury or property damage intended or
expected by the insured . . . in fact contains an exception that
the Circuit Court wholly ignored,” i.e., the proviso that
“[t]his does not apply to bodily injury or property damage
caused by an insured trying to protect person or property.”
Copp asserts that “[i]f permitted to stand, the Circuit Court’s
ruling would have the effect of denying coverage in the only
circumstance in which the exception to the intentional acts
exclusion could ever apply.”
Although the circuit court stated in its opinion that it
had “reviewed all of the transcripts” of the parties, it did not
say that it had considered what was contained in the transcripts
in making its decision. To the contrary, it said it felt
“compelled to initially resolve this issue based on the
pleadings,” because “ ‘[t]he issues in a case are made by the
pleadings, and not by the testimony of witnesses or other
evidence’ ” (quoting Ted Lansing Supply Co., 221 Va. at 1141,
277 S.E.2d at 230). The underscoring was supplied by the
11
circuit court, not this Court. And the court made its decision
that Nationwide was not obligated to defend Copp in the
underlying tort action “[b]ased upon the language in the
insurance contract and the pleadings as set forth.”
We agree with Copp that the umbrella policy contains an
exception to the exclusion relating to “bodily injury or
property damage intended or expected by the insured.” The
exception is found in one of the four corners of the insurance
contract and stands on an equal footing with other provisions
thereof. It cannot be ignored or explained away on specious
grounds. And it requires consideration of an insured’s claim
that he or she caused bodily injury or property damage trying to
protect person or property in evaluating whether there is a duty
to defend in a given case.
We hold that this is such a case and that Nationwide has
the duty under its umbrella policy to defend Copp in the
underlying tort action. Copp’s version of events is not
inherently incredible, and Nationwide does not contend that it
is. The trier-of-fact could believe his version and return a
verdict in his favor or it could disbelieve him and return a
verdict against him. But the fact that the latter result might
occur does not negate Nationwide’s duty to defend in the first
instance. See Virginia Elec. & Power Co. v. Northbrook Property
& Cas. Co., 252 Va. at 269, 475 S.E.2d at 266.
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Nationwide argues, however, that “even assuming for the
purpose of argument that coverage were initially established by
Copp under the eight corners rule, there was more than
sufficient factual evidence for the trial court to conclude that
Copp’s acts were not caused by an insured trying to protect
person or property, and thus excluded under the terms of the
policy.” 3 But there was no such conclusion made by the circuit
court in this case, and whether Copp’s acts were or were not
caused by his trying to protect person or property must be left
to the fact-finder in the subsequent trial of the underlying
tort action. 4
CONCLUSION
Accordingly, we will reverse the judgment of the circuit
court and remand the case with direction to enter an order
declaring the rights and duties of the parties consistent with
the views expressed in this opinion.
Reversed and remanded.
3
Nationwide also argues that Copp’s actions caused “a
willful violation of the law” and that Copp’s “no contest” plea
“is prima facie evidence relevant to whether [Copp]
intentionally assaulted and battered Jacobson.” However, this
argument is defaulted. It is made for the first time on appeal,
and we will not consider it. Rule 5:25.
4
We do not decide whether Copp had coverage under the
homeowner’s policy. That question is not before us.
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