American Family Mutual Insurance Co. v. Pacchetti

808 S.W.2d 369, 1991 Mo. LEXIS 62, 1991 WL 70124

• Court: Supreme Court of Missouri
• Decided: May 3, 1991
• Docket: 73041
• Status: Published

Opinions

BLACKMAR, Chief Justice.

On June 29, 1984, Derek Anderson, 16 years old, was visiting in the home of Charles Pacchetti. Pacchetti asked Derek to join him in his bedroom and then, after showing him some guns, asked “Have you ever heard of anybody opening on cocaine?” When Derek said, “No” Pacchetti showed him a blue plastic bottle and said “This stuff is almost pure. It doesn’t do anything to me.” He then injected Derek with cocaine, or assisted him in injecting cocaine, or furnished him cocaine knowing that he proposed to inject it. Derek collapsed and soon died from an overdose of cocaine.. Derek’s parents claimed damages from Pacchetti, who was covered by a homeowner’s policy issued by American Family Mutual Insurance Company. The policy insured Pacchetti against liability for personal injury and property damage for which he was legally responsible, but excluded bodily injury “which is expected or intended by any insured.”

The insurer brought a declaratory judgment action contending that the misfortune which befell Derek was within the exclusion, so that it was not covered by insurance. Pacchetti and Derek’s parents were named as defendants.

The trial court entered judgment for the defendants, concluding that the claim was within the coverage of the policy. The court entered the following findings (labeled “Conclusions of Law”):¹

5. There is insufficient evidence that Charles Pacchetti intended or expected to cause the bodily injury (death) of Derek Anderson and insufficient evidence to infer that he intended or expected to cause injury to Derek Anderson.

6. The Court cannot say as a matter of law that because cocaine caused the harm to Derek Anderson, intent to harm can be inferred or established from the instrumentality itself.

7. The surrounding circumstances of the incident are insufficient to infer intent to harm or to expect harm to occur.

The insurance company appealed. The court of appeals reversed, concluding that “as a matter of law, the injury to Derek was expected.” We granted transfer because of the widespread use of an exclusion for injuries intended or expected in liability insurance policies. We affirm the judgment of the trial court, finding that the injury was within the liability coverage of the policy. The burden is on the insurer to establish that an exclusion bars coverage. Farmers and Merchants Ins. Co. v. Cologna, 736 S.W.2d 559, 562 (Mo.App.1987).

It may be argued that by using two words, “intended” and “expected,” different meanings were indicated.² We could note many examples of legal parlance in which studied redundancies are used, but there are many suggestions of a shade of difference in the meaning of the two terms. Whether the insured expected or intended injury, however, is essentially a question of fact.

The insurer places strong reliance on Hanover Insurance Company v. Newcomer, 585 S.W.2d 285 (Mo.App.1979), in which the insured flourished a ceremonial machete and struck a woman with whom he had been arguing. Although the insured claimed that he had no purpose of injuring the claimant, the trial court found that the resulting injury was expected or intended and that there was no coverage. The court of appeals affirmed this holding. The case does not completely answer the problem now before us, however, because there the trial court’s finding was in favor of the insurer.

In Steelman v. Holford, 765 S.W.2d 372 (Mo.App.1989), an instructive case on most of the points involved here, the insured fired a shot out the window of a moving truck, and the plaintiff was injured. There was no showing, however, that the insured fired the shot with the purpose of injuring the plaintiff or anybody else. The court of appeals concluded that there was a fact question as to whether the injury was expected or intended, Id. at 377, and affirmed the trial court’s finding of coverage.

The insurer points to the federal and state statutes which show consensus about the harmful effects of cocaine.³ We take judicial notice of those statutes. The insurer also offered the testimony of an expert witness on the harmful effects of cocaine. The trial court held that this deposition was not admissible. We have it in the record and of course are able to note its contents to the extent that they bear on the issue before us. The trial judge also had recourse to the deposition, and it seems very unlikely that she would have altered her clear and detailed findings and conclusions on account of the information in the deposition. The insurer, furthermore, does not automatically bring the exclusion into play simply by showing that cocaine is harmful, or that the insured’s acts in providing it to Derek were intentional. Many intentional acts are within the coverage of liability insurance policies, even with this standard exclusion.⁴ It must be shown not only that the insured intended the acts causing the injury, but that injury was intended or expected from these acts. See Steelman v. Holford, 765 S.W.2d at 377.

We also reject the suggestion that a showing that the insured acted recklessly compels a finding that injury was expected. Although recklessness is sometimes the legal equivalent of intention, liability insurance would be of scant value if coverage were to turn on a jury’s finding that the insured acted recklessly rather than negligently. Steelman v. Holford, supra, expressly held that a showing of reckless behavior does not bring the standard exclusion into effect.

It remains for the insurer to show that this particular insured expected or intended the result which occurred. The record does not compel a finding that he did. It is just as likely that Pacchetti, in his perverted way, might have thought that Derek would derive some transitory pleasure or benefit from what apparently would be his initial experience with cocaine.

What Pacchetti intended or expected is a question of fact for the trial court. This holding is supported by our own case law, and we do not find it necessary to discuss the numerous cases from other states. In some, the insured’s act could only cause injury even though the resulting injury was more extensive than expected.⁵ In others, the trial court’s findings favored the exclusion.⁶ We cannot say that the trial judge’s findings and conclusions are not supported by the evidence.

The order appealed from is affirmed.

RENDLEN, HIGGINS and COVINGTON, JJ., concur. ULRICH, Special Judge, dissents in separate opinion filed. ROBERTSON and HOLSTEIN, JJ., dissent and concur in dissenting opinion of ULRICH, Special Judge. BILLINGS, J., not sitting.

1 . The labeling is without significance. Steelman v. Holford, 765 S.W.2d 372, 377 (Mo.App.1989).

2 . See Hanover Insurance Company v. Newcomer, 585 S.W.2d 285 (Mo.App.1979) and Truck Insurance Exchange v. Pickering, 642 S.W.2d 113 (Mo.App.1982), for general discussions distinguishing levels of proof required for "expected” and "intended" injuries.

3 .See e.g., 21 U.S.C. § 812(c)(a)(4) and § 195.017.4(l)(d), RSMo 1986, defining cocaine as a Schedule II drug with high potential for abuse and possible severe psychological or physical dependence. See abo 21 U.S.C. § 812(b)(2) and § 195.017.3, RSMo 1986.

4 . See e.g., Curtain v. Aldrich, 589 S.W.2d 61 (Mo.App.1979).

5 . See, e.g., Western National Assurance Co. v. Hecker, 43 Wash.App. 816, 719 P.2d 954 (1986).

6 . See e.g., Poston v. U.S. Fidelity & Guarantee Co., 107 Wis.2d 215, 320 N.W.2d 9 (App.1982) and Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985).