Allstate Insurance v. McCarn

683 N.W.2d 656, 471 Mich. 283

• Court: Michigan Supreme Court
• Decided: July 30, 2004
• Docket: 122849. Calendar No. 8
• Status: Published

Opinions

AFTER REMAND

Taylor, J.

This case is before us for the second time. In Allstate Ins Co v McCarn, 466 Mich 277; 645 NW2d 20 (2002) (McCarn I), we held that the shooting death of Kevin LaBelle was “accidental” and, thus, an “occurrence” within the meaning of the insurance policy at issue. Because the shooting was an “occurrence” covered under the policy, it gave rise to Allstate’s potential liability. However, because the Court of Appeals had not addressed whether the criminal-acts exception in the policy precluded coverage,¹ we remanded the matter to that Court. On remand, the Court of Appeals held that the criminal-acts exception precludes coverage in this case.² We disagree and reverse the decision of the Court of Appeals. We remand to the trial court for further proceedings.

I. FACTS AND PROCEEDINGS

We set forth the facts in our previous opinion, McCarn I at 279-280:

This case arises out of the death of sixteen-year-old Kevin LaBelle on December 15, 1995, at the home of defendants Ernest and Patricia McCarn, where their grandson, then sixteen-year-old defendant Robert McCarn, also resided. On that day, Robert removed from under Ernest’s bed a shotgun Robert’s father had given him the year before. The gun was always stored under Ernest’s bed and was not normally loaded. Both Robert and Kevin handled the gun, which Robert believed to be unloaded. When Robert was handling the gun, he pointed it at Kevin’s face from approximately one foot away. Robert pulled back the hammer and pulled the trigger and the gun fired, killing Kevin.

Nancy LaBelle, representing Kevin’s estate, brought the underlying action against Robert and his grandparents, Ernest and Patricia McCarn, who had a homeowners insurance policy with plaintiff Allstate. Allstate brought the present action, seeking a declaratory judgment that it had no duty to indemnify defendants Robert, Ernest, or Patricia McCarn.

Plaintiff and defendants moved for summary disposition in the declaratory action. The trial court granted defendants’ motions for summary disposition and denied plaintiffs, holding that the events constituted an “occurrence” within the meaning of Allstate’s policy. The trial court also held that Robert McCarn’s conduct was not intentional or criminal within the meaning of Allstate’s policy.

Allstate appealed to the Court of Appeals, which reversed the trial court in an unpublished opinion.¹ The Court attempted to apply our recent decisions in Nabozny v Burkhardt2 and Frankenmuth Mut Ins Co v Masters³ and concluded that “Robert’s intentional actions created a direct risk of harm that precludes coverage.”

This Court reversed the decision of the Court of Appeals, holding that the “accident” was an “occurrence” as defined in the insurance policy at issue, thus giving rise to Allstate’s potential liability. Id. at 291. Once a court decides that liability may exist under an insurance policy, it may then determine whether coverage is precluded by an exception. Allstate Ins Co v Freeman, 432 Mich 656, 668; 443 NW2d 734 (1989). Because the Court of Appeals originally found no liability, it did not determine whether the criminal-acts exclusion precluded coverage under the policy. Because the Court of Appeals had not addressed this exclusion, we remanded the issue to that Court to determine if it applied. McCarn I at 291.

On remand, the Court of Appeals, in a split opinion, applied the two-pronged test from Freeman and concluded that Robert acted criminally under the first prong of the test because his actions constituted manslaughter under MCL 750.329. Slip op at 2-4. The Court of Appeals determined that the applicability of the exclusionary clause “turns on whether LaBelle’s death was reasonably expected to result from Robert’s criminal act.” Slip op at 3. The panel then concluded that “a person who points a gun at another person’s face and intentionally pulls the trigger without checking to see whether the gun is loaded can reasonably expect that injury will result.” Slip op at 4. The dissenting judge also applied the two-pronged test from Freeman, but concluded that “reasonable minds could differ regarding whether Kevin’s death occurred as the natural, foreseeable, expected, and anticipated result of Robert’s” acts. Slip op at 3 (White, J., dissenting). We granted defendants’ application for leave to appeal. 469 Mich 947 (2003).

II. STANDARD OF REVIEW

To determine whether Allstate is obligated to indemnify the McCarns, we examine the insurance policy at issue. Issues involving the proper interpretation of insurance contracts are reviewed de novo. Cohen v Auto Club Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001).

An insurance policy must be enforced in accordance with its terms, which are given their “commonly used meaning” if not defined in the policy. Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 112, 114; 595 NW2d 832 (1999).

III. ANALYSIS

When this case was last before us, in interpreting the following language, “Allstate will pay damages . .. arising from an occurrence,” we concluded that, on the basis of undisputed facts, the shooting was an accident triggering Allstate’s liability. Justice CAVANAGH, writing for the Court, said:

[T]his case does not present a question of fact. The fact that Robert believed the gun was unloaded is a matter about which there is no genuine issue of material fact. This is because there is nothing in the record to reasonably support a conclusion that, contrary to Robert’s testimony that he believed the gun was unloaded, he consciously believed the gun was loaded, or even contemplated that there was any possibility that it was loaded when he pulled the trigger. Even plaintiff, the insurer, acknowledged that Robert believed the firearm was unloaded when he pulled the trigger .... [McCarn I, supra at 285-286.]

To this set of facts we then applied the requisite subjective test and concluded that Robert’s expectation that no bodily harm would result from an unloaded gun was reasonable. Id. at 291. The wisdom of shooting even an unloaded gun at another in the first place was, and is, not before us.

In this case, we deal with other policy language, which is commonly described as the criminal-acts exclusion. It states:

We do not cover any bodily injury or property damage intended by, or which may reasonably he expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:

a) such insured person lacks the mental capacity to govern his or her conduct;

b) such bodily injury or property damage is of a different kind or degree than intended or reasonably expected; or

c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.

This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

This language directs us to apply a two-pronged test. There is no insurance coverage if, first, the insured acted either intentionally or criminally, and second, the resulting injuries were the reasonably expected result of an insured’s intentional or criminal act. We agree with the Court of Appeals that the first prong of this test — that there was an intentional or criminal act— has been met.

Answering the second prong of the test, whether the resulting injury was the reasonably expected result of this criminal act, requires this Court to engage in an objective inquiry. Allstate Ins Co v Freeman, 432 Mich 656, 688; 443 NW2d 734 (1989) (opinion by Riley, J.). That is, we are to determine whether a reasonable person, possessed of the totality of the facts possessed by Robert, would have expected the resulting injury. This requirement to base the objective reasonability test on all the facts has been discussed by scholars of tort law: “The conduct of the reasonable person will vary with the situation with which he is confronted. The jury must therefore be instructed to take the circumstances into account. . . .” Prosser & Keeton, Torts (5th ed), § 32, at 175. We have held similarly in our cases, “[T]he reasonable person standard examines the totality of the circumstances to ensure a fair result.” Radtke v Everett, 442 Mich 368, 391; 501 NW2d 155 (1993). This means that here we must consider not just that Robert, as the Court of Appeals described it, “point[ed] a gun at another person’s face and intentionally pull[ed] the trigger,” but also, as Allstate itself acknowledges, that Robert thought the gun that he pointed was unloaded. Slip op, November 15, 2002, p 4; McCarn I, supra at 286.³ Thus, we are called on to determine if a reasonable person would have expected bodily harm to result when the gun, in the unloaded state Robert believed it to be, was “fired.” The answer is no because, obviously, an unloaded gun will not fire a shot. As this Court explained in McCarn I, supra at 290-291:

[No] bodily harm could have been foreseen from Robert’s intended act, because he intended to pull the trigger of an unloaded gun, and, thus, it was not foreseeable, indeed it was impossible, under the facts as Robert believed them to be, that shot would be discharged.

To recapitulate, the proper test is that we are to first determine what Robert actually believed about the gun being loaded, not what a reasonable third party would have believed on that issue. Then, using that belief as a starting point, we are to determine in the second step if a reasonable person, possessed of Robert’s belief, would have expected bodily harm to result from pulling the trigger. In fact, because reasonable minds could not differ that an unloaded gun will not fire a shot, it is appropriate under MCR 2.116(C)(10) to grant summary disposition to defendants.

IV RESPONSE TO DISSENTS

The dissent of Justice WEAVER is predicated on the notion that insurance policies should not cover the acts of foolish, reckless, or even lawless people. This is a peculiar view because these are among the very people that society wishes to be insured and, in some circumstances, such as motor vehicle insurance, even requires to be insured. MCL 500.3101. She seems to regard insurance as solely benefiting the insured and thus when it pays out it is a form of reward. This overlooks, however, the societal benefit that insurance provides to those injured or damaged by the acts of insured but otherwise uncollectible individuals. The true beneficiary of liability insurance is not the insured, but his injured victim. The Court of Appeals said this aptly twenty years ago:

[I]t is unlikely that [an] insured [is] induced to engage in the unlawful conduct by reliance upon the insurability of any claims arising therefrom or that allowing insurance coverage.. . would induce future similar unlawful conduct .... Nor does it appear that the policy was obtained in contemplation of a violation of the law. Furthermore, coverage does not allow the wrongdoer unjustly to benefit from his wrong. It is not the insured who will benefit, but the innocent victim who will be provided compensation for her injuries. [Vigilant Ins Co v Kambly, 114 Mich App 683, 687; 319 NW2d 382 (1982) (citations omitted).]

As for Justice Young’s dissent, he posits that the majority opinion is based on the majority’s public policy notions. We disagree. Rather, our decision is based entirely on the language of the insurance policy at issue here. The policy excludes coverage of injuries which “may reasonably be expected to result from the intentional or criminal acts” of the insured. Because one would not reasonably expect injury to result from pulling the trigger of an unloaded gun, coverage is not excluded.

He further indicates that the majority has conflated the subjective and objective inquiries called for by the policy and has gutted the exclusion of any use to the insurer. We again disagree. We have simply drawn the line the policy calls for between what the insured believed at the point of the intentional or criminal act and applied to that belief what a reasonable person could expect to result from that act. Thus if, as here, an insured believes a gun is unloaded, and in this case it is conceded by the insurer that Robert indeed did believe that, then no reasonable person could believe, given that starting point, that a shot would come from the gun when fired. On the other hand, if an insured believes a gun is loaded and operable when he points it at someone and pulls the trigger but, for whatever reason, expects no shot to come from it and thus does not expect harm to result, there would be no coverage because a reasonable person would expect a shot to come from a loaded, operable gun and that harm would result from that.⁴ The point is the insured’s expectations of what will result from his act are irrelevant.

It should also be pointed out that we believe that the effect of Justice YOUNG’s position would be that if a harm or injury results from an intentional or criminal act it will almost never be covered under a policy with this exclusion. This result can be seen in his approach to this case. Because he can reason back and know that the gun was loaded, he concludes that the policy exclusion dictates that there is no insurance coverage. Yet, we believe such hindsight reasoning is an improper mode of analysis for this accident. In hindsight, an insurer might always be able to reason backwards from an accident and conclude that, by definition, a reasonable person would not have done whatever precipitated such accident.

The dissents’ approaches would eviscerate insurance policies of much of their value to insureds, leaving only “occurrences that were truly unexplainable” covered. McCarn I, supra at 289. Yet, unforeseen, unfortunate consequences of explicable or even intentional acts are “the very purpose of insurance . ...” Id. at 288. As this Court stated in McCarn I, supra at 288, “We must be careful not to take the expectation of harm test so far that we eviscerate the ability of parties to insure against their own negligence.” “Otherwise, liability insurance coverage for negligence would seem to become illusory.” Id. “The problem, as we see it, with the dissent’s opinion is that it undermines the ability of insureds to protect themselves against their own foolish or negligent acts.” Id. “However, the impetus for insurance is not merely, or even principally, to insure oneself for well thought out and reasoned actions that go wrong, but to insure oneself for foolish or negligent actions that go wrong. Indeed, it is obviously the latter that are more likely to go astray and to precipitate the desire for insurance.” Id. To the extent that the dissents would erode the ability of insureds to protect themselves against theirs — or their family members’ — foolish or stupid acts, they would eviscerate insurance contracts of much of their purpose and value. This is simply to say that with Justice YOUNG’s approach there would be seemingly no coverage for any intentional or criminal act where there was injury resulting from the act. This would narrow those having insurance in such circumstances greatly and perhaps entirely. This disturbing outcome cannot be what this policy provision intended, nor is it what the policy language calls for.

V CONCLUSION

We hold that there is no question of fact whether Kevin’s death was the reasonably expected result of Robert’s act. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings.

Kelly and Markman, JJ., concurred with Taylor, J. CAVANAGH, J., concurred in the result only.

1 Unpublished opinion per curiam, issued October 3, 2000 (Docket No. 213041).

2 Unpublished opinion per curiam, issued November 15, 2002 (Docket No. 213041).

1 Issued October 3, 2000 (Docket No. 213041).

2 461 Mich 471; 606 NW2d 639 (2000).

3 460 Mich 105; 595 NW2d 832 (1999).

3 That Robert believed the gun was unloaded is uncontested. Allstate has never argued, as it might have, that Robert did not believe the gun was unloaded. To the contrary, Allstate’s brief in support of its motion for summary disposition notes that Robert pulled the trigger even though “he thought the gun was unloaded.” Even when arguing most recently before this Court, counsel for Allstate said, “It is a fact that he subjectively believed that the gun was unloaded,” and, “Subjectively he believed it wasn’t loaded.” Because Allstate did not contest this issue, there is no disputed issue of fact regarding his belief.

4 This is essentially what happened in Freeman.