Auto Club Group Insurance v. Marzonie

527 N.W.2d 760, 447 Mich. 624

• Court: Michigan Supreme Court
• Decided: February 13, 1995
• Docket: 96828, (Calendar No. 4)
• Status: Published

Opinions

Riley, J.

In this case, we must construe a homeowner’s insurance policy to determine whether coverage exists or the intentional acts exclusion precludes coverage. Specifically, we must decide whether the insured’s act of confronting and firing a shotgun at an occupied vehicle with the admitted intent only to scare and cause property damage, but with the actual consequence of personal injury to the driver, is covered by insurance where the policy covers acts caused by an occurrence, but excludes coverage for damage resulting from acts either expected or intended from the standpoint of the insured. We conclude that while coverage may exist under the occurrence provision and the test discussed herein, on the instant facts this question is for the trier of fact and cannot be resolved as a matter of law. Nonetheless, because we find that coverage is precluded under the intentional acts exclusion, Auto Club has no duty to defend or indemnify. We therefore would reverse the judgment of the Court of Appeals.

I

In the instant case, plaintiff sought a determination that its insurance policy does not cover the possible liability resulting from the tort suit brought by Michael Marzonie against Vernon Oaks, an insured under his parents’ homeowners’ policy. The parties stipulated that the facts and testimony taken from an earlier automobile insurance trial would serve as the record in this case, with the trial judge acting as the trier of fact.

Review of that record indicates that an altercation arose between the occupants of two vehicles driven by Marzonie and Oaks, respectively. Although there is conflicting testimony in the record, apparently somebody in either Marzonie’s or Oaks’ vehicle made an obscene gesture to the other while stopped at an intersection. In any event, Marzonie stepped out of his vehicle and urged the occupants of the Oaks vehicle to fight. This led to a lengthy, high-speed chase throughout the City of Flint. During the chase, Marzonie and friends threw beer bottles at the Oaks vehicle and, on one occasion, tossed a bottle through an open side window. The chase continued until Oaks drove home and ran, along with the other occupants of his vehicle, into the house. Still in pursuit, Marzonie arrived and stopped in front of the Oaks house, leaving his engine running.

While inside, Oaks apparently heard bottles being thrown at his house and driveway.¹ Nevertheless, instead of calling the police, Oaks retrieved a shotgun from his bedroom, a gun he had never fired,² and proceeded outside to confront and scare off Marzonie and friends. Upon arriving outside, he saw Marzonie’s vehicle in the street, evidencing no attempt to leave the premises. Indeed, instead of leaving, Oaks testified that Marzonie’s vehicle "crept” or drove slowly in his direction,³ causing Oaks to respond by aiming and firing the gun at the grill of Marzonie’s vehicle. Because this shot did not discharge, he fired a second shot, which actually hit Marzonie.⁴ However, not seeing any visible damage to the vehicle, Oaks believed he had missed, and, as Marzonie’s vehicle began to back up, Oaks attempted to fire another shot, this time at the rear tire of the vehicle. When the gun again misfired, Oaks fired a final shot, striking one of the rear tires. Marzonie’s vehicle then departed, with Jeffrey Dingo taking control of the vehicle and driving Marzonie to the hospital. As a result of these events, Oaks pleaded guilty of careless discharge of a firearm.⁵

Despite his guilty plea, Oaks testified for purposes of the civil actions that he did not intend to hit Marzonie, noting that he easily could have shot Marzonie when he was in front of him, but instead shot at the grill. Oaks maintained that he simply wanted to stop the vehicle so the police could be called.⁶

After oral argument and review of the record, the trial court held that coverage was not precluded because the intentional acts exclusion did not apply. Although properly raised in the complaint, the court never addressed the first question of coverage, i.e., was there an occurrence? Instead, relying on the exclusionary language, the court found no actual intent to injure and no certainty of injury so that an expectation to injure could be inferred as a matter of law.

On appeal, the Court of Appeals affirmed in an unpublished per curiam opinion, issued May 21, 1993 (Docket No. 132237). In reviewing the record under a clearly erroneous standard of review, the Court found there to be an occurrence, noting that the shooting was "an undesigned contingency which was not anticipated or naturally expected.” Slip op at 2. Turning then to the intentional acts exclusion, the Court likewise found it not preclusive of coverage. Using a subjective standard, the Court held that Oaks did not intend to injure Marzonie, nor was the injury "the expected or anticipated result of the intentional act of Oaks.” Slip op at 2.

This Court granted plaintiff’s application for leave to appeal on April 20, 1994.⁷

ii

In interpreting an insurance policy, we attempt to effect the intent of the parties by first reviewing the policy language. Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). When the language is clear and unambiguous on its face and does not offend pubic policy, we simply apply the terms as written. Id. at 567; Group Ins Co v Czopek, 440 Mich 590, 596; 489 NW2d 444 (1992); Allstate Ins Co v Freeman and Metropolitan Property & Liability Ins Co v DiCicco, 432 Mich 656, 667; 443 NW2d 734 (1989). Moreover, if an ambiguity exists, it is resolved in favor of the insured, i.e., coverage. Powers v DAIIE, 427 Mich 602, 624; 398 NW2d 411 (1986). However, simply because a policy does not define a term does not render the policy ambiguous. Fireman’s Fund Ins Co v Ex-Cell-O Corp, 702 F Supp 1317, 1323, n 7 (ED Mich, 1988). Instead, absent a policy definition, terms are "given a meaning in accordance with their common usage.” DiCicco, supra at 666.

Similarly, when construing an exclusionary provision, the language must be "strictly construed against the insurer.” Czopek, supra at 597. However, if the language is clear and specific, it simply must be applied. Indeed, this Court will not countenance holding "an insurance company liable for a risk it did not assume.” Churchman, supra at 567; Kaczmarck v La Perriere, 337 Mich 500; 60 NW2d 327 (1953).

In the instant case, we are presented with two questions: the first interpreting the scope of coverage, i.e., an occurrence or accident, and the latter construing exclusionary language, i.e., the intentional acts exclusion. This Court has determined that the proper mode of construction first addresses whether coverage exists and then turns to the exclusionary language if necessary. See DiCicco, supra at 667-668. Accordingly, we must first decide whether this shooting constitutes an occurrence.

in

In Auto Club’s policy, occurrence is defined as an "accident . . . which results ... in bodily injury or property damage.” However, the policy does not define accident. Nevertheless, in DiCicco, supra, this Court, applying its common usage to identical policy language, held that "an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” Id. at 670. While this Court agreed on the statement of this test, a majority of this Court has yet to fully develop the workings and scope of this definition.

In DiCicco, we provided only part of the answer by observing that accidents are not limited to unintentional acts. Id. at 670. Yet, in applying the definition to the facts of the case, we held that the record was not "clear cut enough” to conclude that there was no occurrence, i.e., whether the insured had any intention of using a knife or whether the victim perceived it as such. Id. at 672. Indeed, in DiCicco, the insured disavowed any intent to use the knife, instead allegedly harboring the knife in order to scare away his victim. During a skirmish, however, the knife entered the victim’s stomach. Thus, construing the term "accident” broadly, it was possible to find the actual use of the knife accidental. Nevertheless, we specifically noted that in appropriate situations "we do not preclude the possibility that an incident may not be considered an 'occurrence’ under the coverage section of the policy.” Id. at 672, n 12.

On the other hand, we found the factual setting in Czopek, supra, to be one of these appropriate circumstances. In Czopek, the insured intentionally injured two police officers during an attempted arrest. The police officers sought compensation for their injuries, and the insurer sought a declaration that there was no coverage. This Court held that no coverage existed because the act of forcibly resisting arrest did not constitute an occurrence. Indeed, unlike DiCicco, this Court found the record clear enough to permit a finding of no occurrence. Czopek, supra at 598.

However, neither in DiCicco nor in Czopek did a majority of this Court specifically address whether the accident should be viewed from the insured’s or the injured person’s perspective,⁸ or how the conduct and resulting injury affect a court’s view of the accident.

In Frankenmuth Mutual Ins Co v Piccard, 440 Mich 539, 549-550; 489 NW2d 422 (1992), three members of the Court agreed that an accident, although defined differently than in the instant case,⁹ should be viewed from the injured person’s perspective. Moreover, although the majority in Czopek did not address this issue, Justice Boyle’s concurrence explained that under policy language identical to that in the instant case, where the insurer does not designate the perspective in the policy, the accident must be viewed from the injured party’s perspective. Id. at 608-612. However, this Court has yet to achieve a majority on the issue presented by the parties in this case: the Auto Club arguing that the insured’s perspective is controlling and Marzonie contending that the injured person’s perspective is controlling._

Turning first to case law from other jurisdictions, we note that there is a split of authority, at least with respect to assaults, regarding whose perspective is controlling.¹⁰ Indeed, our survey of the cases reveals that both perspectives can be said to further important public policies, with the injured party’s perspective promoting the policy of compensating persons for their losses and the insured’s perspective deterring persons from engaging in intentional or criminal conduct. Czopek, supra at 608-609 (opinion of Boyle, J.). While we are sensitive to these competing policy considerations, our review of the instant policy language and relevant Michigan precedent leads us to conclude that the injured person’s perspective is controlling.

From our review of the policy language, we cannot glean any intent with respect to perspective because it simply is hot addressed. Accordingly, where the policy is silent with respect to perspective, we would hold that the accidental nature of the event must be evaluated from the injured party’s standpoint. ¹¹ See Ashland Oil, Inc v Miller Oil Purchasing Co, 678 F2d 1293 (CA 5, 1982); Czopek, supra at 609 (opinion of Boyle, J.).¹² In other words, by not designating the perspective in the policy, we would construe this ambiguous language against the insurer and would hold that the injured party’s perspective controls.¹³ See DiCicco, supra at 665.

Moreover, viewing the accident from the injured person’s standpoint is in accord with Michigan precedent that construed the term accident under an automobile insurance policy. See State Farm Mutual Automobile Ins Co v Coon, 46 Mich App 503; 208 NW2d 532 (1973). In Coon, the plaintiff-insurer sought a declaration that it had no duty to indemnify the insured for his intentional act of hitting a person with his vehicle. However, the Court of Appeals held that the insurer had a duty to defend, finding that the accident should be determined from the injured person’s perspective. Id. at 505-508.

In reaching this conclusion, the Court of Appeals relied on New Amsterdam Casualty Co v Jones, 135 F2d 191 (CA 6, 1943). In Jones, the insured business owner shot a person during a dispute. That person sued the business owner and won a judgment. Thereafter, the injured person sought to collect on the judgment by garnishing the insurance company.

On appeal, the United States Court of Appeals for the Sixth Circuit had to construe the meaning of accident in the policy. It first noted that Michigan and many other jurisdictions have held the intentional infliction of injury to be an accident except when the injured person is responsible for it, i.e., an aggressor or one who is otherwise blameworthy for the injuries. Id. at 193, citing Furbush v Maryland Casualty Co, 131 Mich 234, 237-238; 91 NW 135 (1902) ("The text-books have been slow to admit that [an intentional homicide] is accidental, but the majority of adjudicated cases hold that it is where the deceased is in no wise responsible for it”). To justify this result, the court reasoned that the accident must "be determined from the standpoint of the one suffering it, rather than from the standpoint of the one inflicting it . . . .” We agree.

Plaintiff, however, maintains that Coon and other Michigan precedent is distinguishable because the persons in those cases suffering the injuries were also the insureds. See, e.g., Ripley v Railway Passengers Assurance Co, 20 F Cas 823 (WD Mich, 1870) (coverage exists for an insured under a life insurance policy because, although intentionally killed by another, when viewed from his perspective, it was an accident); Peterson v Aetna Life Ins Co, 292 Mich 531; 290 NW 896 (1940) (coverage exists under a life insurance policy because death, when viewed from the injured person/insured’s perspective, was accidental with regard to him). ¹⁴ We have reviewed these authorities and acknowledge the distinction, but we do not find the distinction dispositive. Rather, we find no persuasive reason to depart from well-established Michigan precedent that has broadly construed accidents, except when the persons seeking coverage or indemnity are somehow responsible for the events. Moreover, while Michigan courts have not directly extended this policy where the injured person and the insured are different parties, we find precedent from other jurisdictions that have done so persuasive.¹⁵ In any event, absent some indication in the policy,¹⁶ the injured person’s perspective appears to be the majority rule.¹⁷ Therefore, we find the injured person’s perspective controlling.

Furthermore, in reaching this conclusion, we acknowledge but reject the contention that the conduct by itself, without consideration of its possible result, should be determinative of the accidental nature of the event. Such a holding would be contrary to Michigan precedent. Indeed, "we established in [DiCicco] that it is possible to have a cause of action where the intentional conduct will result in unintended and unexpected injury thus constituting an 'accident’ under the policy language.”¹⁸ See Piccard, supra at 548-549 (opinion of Riley, J.), citing DiCicco, supra at 670. Therefore, we reiterate that, under the instant policy language, and evaluated from the injured person’s perspective, an accident may include an unforeseen consequence of an intentional act of the insured.

IV

Finding that the injured party’s perspective controls, however, does not end our inquiry. As noted above, precedent in Michigan and throughout the United States generally will refuse to deem an event an accident where the injured party provokes the injury, i.e., is an aggressor or is otherwise blameworthy.¹⁹ In part on the basis of public policy, this precedent simply recognizes that the facts and circumstances as a whole must be considered in applying the definition of accident, i.e., under the facts of the case, was the injury foreseen from the injured party’s perspective:

"An insured who meets death in an affray in which he was the aggressor cannot ordinarily be said to have suffered his injuries as the result of an accident, for he must be held to have foreseen the result of his wrongful acts.” [Peterson, supra at 535, quoting Interstate Business Men’s Accident Ass’n v Lester, 257 F 225 (CA 8, 1919).]

In the instant case,²⁰ there certainly is culpable conduct on both sides. Beginning with the initial encounter, the record indicates that somebody in one of the vehicles made an obscene gesture to the other, resulting in a high-speed chase by Marzonie throughout the City of Flint. At one point, while stopped at the intersection, Marzonie stepped out of his vehicle, urging Oaks and friends to engage in a fight. Furthermore, occupants of the Marzonie automobile admitted throwing beer bottles at the Oaks automobile during the chase, with one bottle traveling through the side window of the vehicle.

Further culpable conduct is found once Marzonie arrived at the Oaks house. Oaks indicated that bottles were thrown at his house and driveway, whereas Jeffrey Dingo disputes this contention. Moreover, Oaks testified that when he came outside with the gun, Marzonie’s vehicle crept or rolled towards him, whereas Dingo testified that this never happened. Nonetheless, Marzonie did not immediately retreat after Oaks reappeared from the house with the shotgun. Not until after the first and second shots were fired did Marzonie put the car in reverse.

Therefore, we conclude that, given the disputed facts, we cannot, as a matter of law, decide that Marzonie was so blameworthy for the events that developed that the shooting was an undesigned contingency, casualty, happening by chance, out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected. Certainly the dangerous nature of this high-speed chase, the invitation to fight, the admitted throwing of bottles at the Oaks vehicle, and the failure to immediately retreat once Oaks reappeared with the gun, all dictate against finding an accident. However, the resolution of this question is for the trier of fact. While remand would normally be necessary to resolve this question of fact, we turn first to the exclusionary language to determine whether coverage is nonetheless precluded.

v

Auto Club’s policy excludes coverage for "bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” In DiCicco, supra, a majority of this Court found the language clear and unambiguous and held that the "expected or intended” language requires the application of a policy-blended subjective test.²¹ In reaching this conclusion, we noted that the words "intended” and "expected” were designed to expand the policy beyond mere intended injuries.²² Id. at 673. Accordingly, the policy language now precludes coverage for both intended and expected injuries.

As previously construed by this Court, coverage is barred for intended injuries if the insured intends some type of injury, albeit that the actual injury was of a different character or magnitude than that intended. See Churchman, supra at 577 (opinion of Riley, J.); Piccard, supra at 549-550 (opinion of Riley, J.). However, coverage is also precluded for expected injuries where the insured was "aware[ ] that harm was likely to follow from the performance of his intentional act.”²³ Piccard, supra at 550 (opinion of Riley, J.). In other words, coverage is precluded if the insured’s claim that he did not intend or expect the injury " 'flies in the face of all reason, common sense and experience.’ ’,²⁴ See DiCicco, supra at 720 (opinion of Boyle, J.); id. at 682 (opinion of Riley, C.J.).

In this case, we agree that Oaks intended to cause property damage, but did not subjectively intend some type of injury within the meaning of the exclusionary language. However, we are persuaded that Oaks did or should have expected injury to follow from his actions and accordingly find coverage precluded as a matter of law.

The record indicates that instead of calling the police, Oaks returned from his house with a shotgun, a weapon that he had never previously fired, and directly confronted the Marzonie vehicle. With this occupied vehicle directly in front of him, Oaks then fired at the grill of the car, with the unfortunate result of hitting Marzonie in the head. In light of his inexperience in firing this gun, especially when aiming at a target that left only a small margin for error,²⁵ we are persuaded that Oaks should have expected that there was a substantial likelihood that he might miss the grill and hit an occupant of the Marzonie vehicle.

Moreover, we note that Oaks did have some experience with other guns and presumably had some knowledge' regarding the operation and mechanics of a gun, including its ammunition. In this case, Oaks admitted that he loaded the shotgun with both slugs and bird shot shells. However, he indicated that at the time of the shooting he did not know what order the shells were arranged. Given this fact, we are persuaded that Oaks’ knowledge that the gun was also loaded with bird shot shells²⁶ satisfies the "expected” language in the policy because he should have expected that some of the shells were likely to spray in an larger radius than the intended target, i.e., the grill, and thus likely hit one of the occupants of the vehicle. The fact that Marzonie was actually injured by a slug rather than a bird shot shell does not change the fact that he should have known that shooting this shotgun, with both slug and bird shot shells, at the front of this occupied vehicle was likely to result in bodily injury rather than simply property damage.

In other words, on these facts, we conclude that the contention that Oaks did not intend or expect this injury "flies in the face of all reason, common sense and experience.” His inexperience and training with this gun, the small margin for error given the position of the vehicle, the use of both bird shot and slug shells, and the overall intention in aiming at this occupied vehicle persuade us that coverage is precluded as a matter of law.²⁷_

VI

In sum, with respect to the first question, whether this shooting, which resulted in bodily injury, is covered by the insurance policy, we hold that coverage must be determined by construing the term "accident” from the injured person’s perspective. Under this test and on the instant facts, however, this question is left for the trier of fact and therefore cannot be resolved as a matter of law.

Nevertheless, the exclusionary language of this policy precludes coverage as a matter of law and thus makes further consideration of the coverage question unnecessary. Using the policy-blended subjective test, we find that Oaks should have expected bodily injury to result from firing this shotgun at Marzonie’s occupied vehicle. Any contention that he did not intend or expect bodily injury to result simply "flies in the face of all reason, common sense and experience.” Accordingly, we would reverse the decision of the Court of Appeals and would remand the case for proceedings consistent with this opinion.

Boyle and Mallett, JJ., concurred with Riley, J.

1 Jeffrey Dingo, a passenger in Marzonie’s vehicle, contests this fact, however. Indeed, because Marzonie’s head injury left him with no recollection of the evening, Jeffrey Dingo was the only person from Marzonie’s vehicle to testify regarding the evening in question.

2 Oaks testified that he had never fired the gun in question, but had fired similar shotguns on prior occasions.

3 Mr. Dingo also contested this fact.

4 As a result of this incident, Marzonie lost his left eye, lost hearing in his left ear, and his neck was broken in two places.

5 MCL 752.861; MSA 28.436(21).

6 However, Oaks admitted that he never attempted to call the police once retreating to his house.

7 445 Mich 862.

8 Indeed, in DiCicco, "[w]e had no occasion ... to determine from whose perspective the accidental nature of the event was to be viewed.” Czopek, supra at 607 (opinion of Boyle, J.).

Justice Griffin’s partial dissent argues that Czopek is controlling and that it implicitly determines the existence of an accident from the insured’s perspective. While the policy language is the same, this Court did not decide the issue of perspective. Evidence of this fact is demonstrated by reviewing Frankenmuth Mutual Ins Co v Piccard, 440 Mich 539; 489 NW2d 422 (1992), which was issued the same day. There, Justices Mallett and Brickley joined my lead opinion, which found the injured person’s perspective controlling. Notably, Justice Mallett authored the majority opinion in Czopek, joined by Chief Justice Cavanagh and Justices Brickley, Riley, and Griffin. This inconsistency demonstrates the fallacy of Justice Griffin’s contention.

9 Frankenmuth Mutual defined "occurrence” as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Id. at 547.

10 See 72 ALR3d 1090.

11 In Guerdon Industries v Fidelity & Casualty Co of New York, 371 Mich 12, 18; 123 NW2d 143 (1963), this Court considered the term accident in a liability policy. Therein, this Court quoted 10 Couch, Insurance (2d ed), § 41:6, p 27, now at 10 Couch, Insurance, 2d (rev ed), § 41:8, pp 11-12:

"An 'accident,’ within the meaning of policies of accident insurance, may be anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected by the person injured or affected thereby—that is, takes place without the insured’s foresight or expectation and without design or intentional causation on his part.”

However, even that statement does not resolve the instant question because in one breath the injured person’s standpoint is evinced, while in another it is the insured’s perspective. In the revised edition, however, it explicitly states that "a determination of whether an 'accident’ has occurred must be made from the standpoint of the insured.” Id. at 13. Under the instant policy language, however, we reject that contention.

12 See also Rynearson, Exclusion of expected or intended personal injury or property damage under the occurrence deñnition of the standard comprehensive general liability policy, 19 Forum 513, 521-522 (1984).

13 Even assuming that the insured’s perspective controls, Justice Griffin’s dissent apparently rejects traditional rules of construction and imposes a new, more favorable interpretation than anything intended by the drafters or anything that could reasonably be gleaned from the insurance policy itself. Justice Griffin states:

I submit that a principled distinction can be drawn by examining the consequences of the action and determining whether such consequences either were intended by the insured or reasonably should have been expected because of the direct risk of harm intentionally created by the insured’s actions. [Post at 648-649.]

The contention that liability policies are primarily intended to protect the insured is lost once this broad construction is given to the insurer. Indeed, in applying the policy, he gives the insurer the benefit of any ambiguity rather than the insured and construes the "occurrence” language so broadly in favor of the insurer that the provision specifically directed at excluding this type of conduct, i.e., the intentional acts exclusion, becomes virtually meaningless. The intentional acts exclusion precludes coverage for "bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” It is well established in Michigan jurisprudence that this requires an application of a policy-blended subjective test. See part v. Justice Griffin, however, rewrites .the policy so that the intentional acts exclusion would never be needed because coverage would be barred under the occurrence language, using a test almost identical to the broader, objective exclusionary language interpreted in Freeman, supra. In interpreting the instant policy, such a view is untenable and unsupported by case law or the policy itself. Accordingly, I submit that instead of creating a "principled distinction,” Justice Griffin’s test is clearly unprincipled, contrary to traditional interpretations of insurance policies, and obviously contrary to the stricture of the policy itself.

14 See also Reed v Mutual Benefit Health & Accident Ass’n, 345 Mich 586, 590-591; 76 NW2d 869 (1956); Hooper v State Mutual Life Assurance Co, 318 Mich 384, 390-391; 28 NW2d 331 (1947).

15 See, generally, 72 ALR3d 1090; Rynearson, n 12 supra at 521-522; see also Ashland Oil, supra at 1320.

16 We again note that the insurer could have explicitly designated the perspective, but chose not to do so. Thus, construing ambiguous language against the insurer, see DiCicco, supra at 665, we find that the injured person’s standpoint controls when determining whether an accident occurred.

Moreover, simply because the instant case addresses an indemnity policy rather than an automobile or life insurance policy is not dispositive. The insurer could have made the necessary distinction in the contractual language if it so desired. It did not, and therefore any ambiguity is construed against the insurer.

17 In Ashland Oil, supra at 1320, the Court noted that "[t]his decision aligned Louisiana with the majority view which held that the determination of whether damages are caused by 'accident’ must be made from the standpoint of the damaged party rather than from that of the party committing the tort.”

18 Indeed, the instant case is very different from other policies that specifically make conduct the determining factor. For example, in St Paul Fire & Marine Ins Co v McBrayer, 801 F2d 1012, 1013, n 2 (CA 8, 1986), the court construed a policy covering "bodily injury or damage to tangible property resulting from an accidental event.” The policy further explained that the "accidental event . . . must be something you didn’t expect or intend to happen.” The court held that the "policy definition of the term 'accidental event’ is unique and calculated to avoid liability based on intentional conduct.” Id. at 1014. Specifically, the court noted that the policy requires that the event be an accident, not also the resulting injury. Id.

19 See Furbush, supra at 237-238 and cases cited therein; Peterson, supra at 534-536; 72 ALR3d 1090, § 5, pp 1104-1107.

20 Marzonie maintains that this Court should disregard and not apply the case law precluding the finding of an accident where the injured person was the aggressor or otherwise blameful. In essence, Marzonie contends that this issue was not raised below and therefore is not preserved on appeal. See Swickard v Wayne Co Medical Examiner, 438 Mich 536, 562; 475 NW2d 304 (1991). Our review of the record supports Marzonie’s theory that this issue was not raised below. However, we note that consideration of the injured person’s perspective was first squarely presented in Michigan jurisprudence in 1992, shortly before oral argument in the Court of Appeals. Plaintiff addressed these arguments by supplemental brief in the Court of Appeals, but essentially contended that the insured’s perspective controls or should control, basing the argument on the lack of majority in this Court. Marzonie did not file a supplemental brief on this issue. Indeed, the Court of Appeals did not rule on the issue of perspective. Given our adoption of the insured party’s perspective in the case at bar and the contested record, we do not decide this issue as a matter of law. Nonetheless, our conclusion regarding the exclusionary language makes further inquiry on remand unnecessary.

21 See DiCicco, supra at 679 (opinion of Riley, C.J.) ("[although the defendant denies any intent to injure, his actions speak louder than [his] words”); id. at 718, n 12, and 720 (opinion of Boyle, J.) ("[t]hus, as Justice Archer observes, post, p 731, n 11, the insured need not intend the actual bodily injury inflicted in order to fall under the exclusionary clause.” In other words, coverage is precluded if the insured’s claim that he "did not expect or intend to cause injury 'flies in the face of all reason, common sense and experience’ ” [citation omitted]); id. at 731, n 11 (opinion of Archer, J.) ("I wish to make it clear that the insured need not intend the actual bodily injury inflicted in order to fall within the instant exclusionary clause. It is sufficient that the factfinder conclude the insured subjectively expected some type of harm reasonably foreseeable from the insured’s standpoint” [emphasis in original]). See also Churchman, supra at 576-577 (opinion of Riley, J.); Piccard, supra at 549-550 (opinion of Riley, J.) ("using the policy-blended subjective standard, ... we look at the insured’s conduct from his perspective and evaluate either his intent to cause some type of injury to an innocent third party or his awareness that harm was likely to follow from the performance of his intentional act”).

While I follow this policy-blended subjective test as the majority rule in this state, I still adhere to my opinion in DiCicco, supra at 676-678, where I contended that an insured’s intent must be reviewed objectively. See also Churchman, supra at 573, n 1 (opinion of Riley, J.).

22 See, e.g., Morrill v Gallagher, 370 Mich 578, 583; 122 NW2d 687 (1963) (Where the policy excludes coverage for injury or destruction " 'caused intentionally by or at the direction of the insured,’ ” the insurer must show both an intentional act and an intentional injury).

23 Stated alternatively, " 'the word "expected” denotes that the actor knew or should have known that there was a substantial probability that certain consequences will result from his actions,’ ” so that the injury can be declared the " 'natural, foreseeable, expected, and anticipated result of an intentional act.’ ” DiCicco, supra at 674-675 (citations omitted).

24 This statement of the test would encompass a realization that an insured’s “ 'actions sometimes speak louder than words.’ ” DiCicco, supra at 679 (opinion of Riley, J.) (citation and emphasis omitted).

25 We note that this event occurred at night, with the headlights of the Marzonie vehicle shining directly at Oaks when he fired. With this added obstacle, the likelihood of not aiming and hitting the intended target increases.

26 The record adequately indicates that Oaks knew the difference between a slug that releases only one projectile and a bird shot that releases numerous, small projectiles.

27 Oaks testified that he "thought the shell had either went [sic] over or had went over, over the whole car and everything or it had went off and skidded over the cement . . . This admission, along with Oaks’ acknowledgment that he is not a expert marksman, further buttresses our conclusion that shooting at an occupied vehicle where the occupants are in a potential line of fire should be precluded from coverage under the instant policy language.