NO. 93-454
IN THE SUPREME COURT OF THE STATE OF MONTANA
DAVID SMITH, -
Plaintiff and Appellant,
v.
STATE FARM INSURANCE COMPANIES,
a non-resident corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Houtz, Attornl y at
e
Forsyth, ~ontana
For Respondent:
K. Kent Koolen, Moulton, Bellingham,
Longo & Mather, Billings, Montana
Submitted on Briefs: December 22, 1 9 9 2
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
David Smith appeals from the Sixteenth Judicial District
Court, Rosebud County, Montana, granting summary judgment to
respondent State Farm Insurance Companies, finding that State Farm
properly denied insurance coverage for injuries caused by Smith
because his conduct was an intentional act which the policy
excluded.
We affirm.
We restate the issue as follows:
Did the District Court err in granting summary judgment to
State Farm when it found that Smith's assault upon Charmaine
Kinsey, which he has no memory of, was an intentional assault, thus
precluding insurance coverage?
On September 30, 1990, Smith hired Charmaine Kinsey to
baby-sit his daughter. During an argument between Kinsey and
Smith, he hit Kinsey in the face with his fist, knocking her tooth
out, and cutting his knuckle by the blow. Smith contends that
Kinsey first hit him on the head with an unknown object, rendering
him momentarily unconscious, whereupon he hit her in response or in
a reflex action. Criminal charges were instituted against him, and
on May 20, 1991, he entered into a plea bargain, agreeing to plead
guilty to assault, a misdemeanor, believing he would be found
guilty. During court proceedings on May 28, 1991, Smith pled
guilty to misdemeanor assault, while maintaining that he was
unconscious during the act. However, the court questioned Smith
concerning his guilty plea, and Smith acknowledged that he knew
that he hit her and it was wrong to do so. Judgment was
subsequently entered with his sentence conditioned upon his payment
of Kinsey's medical expenses.
Smith did not pay Kinsey's medical expenses, and on July 19,
1991, Kinsey brought a civil action to recover damages sustained as
a result of her injuries. Smith submitted the defense of the suit
to his homeowner's insurance carrier, State Farm. In response to
State Farm's request for admission, Smith admitted that Vharmaine
Kinsey was injured as a result of Plaintiff [Smith] striking her in
the face with his fist." State Farm denied coverage referring to
the policy's exclusion for any "bodily injury which is either
expected or intended by an insured; or . . . which is the result of
willful and malicious acts of an insured." Smith settled the case
rather than go to trial.
On October 1, 1992, Smith filed a complaint in District Court
against State Farm for breach of contract and for violations of the
Unfair Claims Settlement Practices Act under 55 33-18-201(1), (4)
and (6) and -242, MCA. Smith requested recovery for Kinsey's
medical expenses, damages for costs incurred by State Farm's
refusal to cover the claim, and punitive damages. The District
Court granted summary judgment to State Farm, finding that Smith's
conduct was an intentional act which was excluded by the insurance
policy. Smith appeals.
Did the District Court err in granting summary judgment to
State Farm when it found that Smith's assault upon Charmaine
Kinsey, which he has no memory of, was an intentional assault, thus
precluding insurance coverage?
Summary judgment is properly granted where there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Rule 5 6 (c), M.R.Civ.P. If the movant
meets this burden, then the burden shifts to the non-moving party
to demonstrate a genuine issue of material fact. Thelen v. City of
Billings (1989), 238 Mont. 82, 776 P.2d 520. "Mere denial or
speculation will not suffice, the non-moving party must show facts
sufficient to raise a genuine issue.8v Thelen, 776 P.2d at 522
(quoting Gamble Robinson Co. v. Carousel Properties (1984), 212
Mont. 305, 312, 688 P.2d 283, 287). If no material facts are at
issue, then the court determines whether the moving party is
entitled to judgment as a matter of law. Lindey's, Inc. v.
Professional Consultants, Inc. (1990), 244 Mont. 238, 797 P.2d 920.
Smith argues that the District Court erred when it found that
his conduct was an intentional act. He argues that he was
unconscious when he hit Kinsey with his fist, and the act was an
accidental reflex to her initial assault upon him; therefore, the
court improperly granted summary judgment because factual questions
existed for a jury to decide as to whether Smith intentionally hit
Kinsey.
We disagree.
Before granting summary judgment, the District Court
considered whether factual questions were present. The court noted
that Smith pled guilty to misdemeanor assault charges, stating to
the court "I know that I hit her and it was wrong." The court also
considered Smith's response to State Farm's request for admission
where he admitted "that Charmaine Kinsey was injured as a result of
Plaintiff [Smith] striking her in the face with his fist." Upon
these facts, the court found evidence that Smith intentionally
injured Kinsey.
Striking another person in the face is an intentional act
because of the certainty of causing harm, and any argument stating
the opposite does not change this rule. American States Ins. Co.
v. Willoughby (1992), 254 Mont. 218, 222, 836 P.2d 37, 40 (citing
Mutual Service Cas. Ins. Co. v. McGehee (1985), 219 Mont. 304, 307,
711 P.2d 826, 828). In McGehee, the insured struck a person in the
face, breaking his cheek bone. The insured argued that the injury
was unintentional because he intended only to "shut him up." This
Court held that the act was intentional because where a person
aggressively and intentionally strikes another, it is irrelevant
that a different injury in character or magnitude resulted than
what he intended. McGehee, 711 P.2d at 828. Similarly, in
Willoushby, during an altercation where security officers were
attempting to restrain an insured, the insured bit, kicked, and hit
the security officers, and pushed or fell on one of the officers,
causing injuries to the officers. The insured argued that his
actions were accidental, therefore, the insurance exclusionary
provision was not applicable. This Court stated that biting,
kicking, and hitting are actions similar to the intentional acts in
McGehee; also, because the insured pled guilty to misdemeanor
5
assault, additional support was present to prove that the acts were
intentional, precluding insurance recovery. Willoushbv, 836 P.2d
at 40. Similarly, in the present case, Smith hit Kinsey in the
face with his fist and also pled guilty to misdemeanor assault.
Smith argues that neither McGehee nor Willoucfhbv apply in this
case because neither case involved facts where the insured claimed
to be unconscious during the offending act. We note that in
Northwestern Natal Cas. Co. v. Phalen (1979), 182 Mont. 448, 597
P.2d 720, the insured hit a man who then ran from him and was
tripped by another person, causing him to crash on the pavement on
his face. This Court stated that summary judgment would be
improper where questions remained as to whether the injuries were
inflicted by the insured when he hit the man, or whether the
insured intended or expected that the man would be injured by an
intervening cause of being tripped by an independent party.
Phalen, 597 P.2d at 726-27. In the present case, no questions of
causation are present, and Smith admits that he caused Kinsey8s
injury because he was the only other person present when she was
injured.
The applicability of an exclusion clause for intentional acts
is analyzed by using a two-pronged test in New Hampshire Insurance
Group v. Strecker (1990), 244 Mont. 478, 481, 798 P.2d 130, 132.
If either prong is satisfied, the acts fall within the exclusions
and preclude recovery. Willouahbv, 836 P.2d at 40. "The first
prong is satisfied if the injury was not caused by an accident. The
second prong is satisfied if the injury was either expected or
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intended from the standpoint of the insured." Strecker, 798 P.2d
at 132. In Willouahbv, this Court held that both prongs of the
test were met because the insured's acts "evince an intent to
injure by their very nature." Willouahbv 836 P.2d at 41. In
Strecker, this Court held that when the insured sexually molested
his daughter it was an intentional act, and intent to injure was
present, regardless of protests to the contrary. Strecker, 798
P.2d at 132. Likewise, Smith's conduct of hitting Kinsey with his
fist, by its nature, evinces an intent to injure, regardless of his
protests to the contrary.
We agree with the District Court's finding that:
Even taken as true, the fact that Plaintiff Smith does
not remember striking Kinsey does not render the act
accidental, any more than claiming not to remember
committing a sexual assault would somehow render that
assault accidental.
Public policy forbids indemnifying willful wrongdoing and
there is no insurance coverage for striking someone in the face.
McGehee, 711 P.2d at 828. Because State Farm properly denied
coverage, its conduct was not bad faith, nor did the conduct
violate the Montana statute. We hold that the District Court did
not err in granting summary judgment to State Farm when it found
that Smith's assault upon Charmaine Kinsey was an intentional
assault that precluded insurance coverage.
We copcur:
March 10, 1994
CERTIFICA'I'E OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
JOHN HOUTZ
Attorney at Law
P.O. Box 1230
Forsyth, MT 59327
K. Kent Koolen
MOULTON, BELLINGHAM, LONG0 & MATHER, P.C.
P.O. Box 2559
Billings, MT 59103
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA