Auto-Owners Insurance v. Churchman

489 N.W.2d 431, 440 Mich. 560

• Court: Michigan Supreme Court
• Decided: September 9, 1992
• Docket: 88923, (Calendar No. 10)
• Status: Published

Opinions

Mallett, J.

This is a declaratory action to determine the insurer’s duty to defend or indemnify its insured for the murder of Gary Churchman.

We granted leave to consider whether insurance coverage is precluded as a matter of law because of an exclusion for bodily injury coverage when "expected or intended by an insured person” and the insured is mentally ill or insane.

We find that the Court of Appeals erred in holding that an insane or mentally ill person cannot intend or expect the consequences of his actions as required by the exclusion of plaintiff’s homeowner’s policy. We conclude that, while an insane or mentally ill insured may be unable to form the criminal intent necessary to be charged with murder, such an individual can still intend or expect the results of the injuries he causes.

I

On May 30, 1987, Henry Gordon Frost, Jr., and Mary Churchman had an argument. According to Mrs. Churchman, they often argued about Gary Churchman having legal custody of her children. She and Mr. Frost had had plans to marry, but on that night, Mary Churchman told him that she could not go through with the wedding while her ex-husband, Gary Churchman, had custody of the children.

Mr. Frost became furious. He told Mrs. Churchman that he had taken his revolver and was going to kill her ex-husband. Then he said that he would kill himself.

Mary Churchman was not worried by this because she had heard him make similar threats in the past. Usually, Mr. Frost went for a drive to cool off.

On that day, however, Mr. Frost did go to Gary Churchman’s house. According to Leslie Kalchik, Gary Churchman’s girlfriend, she and her son were lying on the floor watching television when a car pulled into the driveway and someone knocked on the door. Mr. Churchman went to answer it. A few seconds later, Ms. Kalchik heard a shot and Gary Churchman came running up the steps saying he had been shot. Leslie Kalchik saw Mr. Frost at the door and then grabbed her son. She and her son quickly left the house and ran into the woods next door.

Mr. Frost followed Mr. Churchman up into the living room area and shot him at least three more times. The final shot he fired into Gary Churchman was into the back of his head. Before Mr. Frost left the house, he threatened to kill Beulah Churchman, Gary Churchman’s mother. Mr. Frost then walked from the house to the garage, put the gun in his mouth and committed suicide.

It has been said that Henry Gordon Frost was a paranoid schizophrenic for most of his life; however, because of the limited procedural development of the record below, no evidence was presented on this point.¹ Nonetheless, at the time of his death, according to Sgt. Scott Croton of the Michigan State Police, Mr. Frost was not receiving treatment of any kind for any physical or mental illnesses immediately before his death.

This declaratory judgment action arises from two lawsuits that are the result of the tragic murder/suicide committed by Mr. Frost. The first was filed by Beulah Churchman, as personal representative of the estate of Gary Churchman, as well as next friend of the three Churchman children. The second was brought by Leslie Kalchik, Churchman’s girlfriend, for herself and as next friend of Todd Ferguson, her son. Ms. Kalchik stated that at the time of Gary Churchman’s murder, they were engaged to be married.

Henry Gordon Frost was the named insured of a homeowner’s policy provided by plaintiff in the instant action, Auto-Owners Insurance Company.

Auto-Owners brought this declaratory action in Emmet Circuit Court in September of 1987. Trial court Judge Richard M. Pajtas held that although Michigan case law did not address the issue, a majority of jurisdictions found an exclusionary clause in an insurance policy inapplicable if the insured did not have the mental capacity to intend or expect'his actions. He then denied plaintiff’s motion for summary disposition and encouraged Auto-Owners to appeal. In the meantime, two decisions regarding this question were issued by the Court of Appeals. Each panel came to a different conclusion.

Plaintiff Auto-Owners applied to the Court of Appeals for leave to appeal, which was granted on January 5, 1989. The Court affirmed the decision of the trial court in an opinion per curiam, 184 Mich App 699; 459 NW2d 24 (1990), concluding that, because of the difference of opinion between the previous panels, it was impossible to conclude that the trial court’s ruling was erroneous. Id. at 702. Plaintiff filed a timely application for leave to appeal in this Court.

ii

We granted leave to consider whether insurance coverage is precluded as a matter of law because of an exclusion providing no coverage for bodily injuries caused by an insured that were expected or intended by the insured where the insured is insane or mentally ill. The policy in this case stated:

COVERAGE E — PERSONAL LIABILITY

We will pay all sums which an insured person becomes legally obligated to pay as damages because of bodily injury, personal injury (libel, slander or defamation of character, false arrest, detention or imprisonment or malicious prosecution; invasion of privacy, wrongful eviction or wrongful entry) or property damage covered by this policy.

If a claim is made or suit is brought against the insured person for liability under this coverage, we will defend the insured person at our expense, using lawyers of our choice. We are not obligated to defend after we have paid an amount equal to the limit of our liability. We may investigate or settle any claim or suit as we think appropriate.

* *

EXCLUSIONS

Under Personal Liability Coverage and Medical Payments to Others Coverage we do not cover:

7. bodily injury or property damage expected or intended by an insured person. [Emphasis added.]

An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962). Accordingly, the court must look at the contract as a whole and give meaning to all terms. Fresard v Michigan Millers Mut Ins Co, 414 ; 327 NW2d 286 (1982). Further, "[a]ny clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy.” Raska v Farm Bureau Mut Ins Co of Michigan, 412 Mich 355, 361-362; 314 NW2d 440 (1982). This Court cannot create ambiguity where none exists. Edgar’s Warehouse, Inc v United States Fidelity & Guaranty Co, 375 Mich 598, 602; 134 NW2d 746 (1965).

Exclusionary clauses in insurance policies are strictly construed in favor of the insured. Shelby Mut Ins Co v United States Fire Ins Co, 12 Mich App 145, 149; 162 NW2d 676 (1968). However, coverage under a policy is lost if any exclusion within the policy applies to an insured’s particular claims. Fresard, supra at 695. Clear and specific exclusions must be given effect. It is impossible to hold an insurance company liable for a risk it did not assume. Kaczmarck v La Perriere, 337 Mich 500, 506; 60 NW2d 327 (1953).

In the instant case, the insurance policy contained an exclusionary clause that excluded coverage for bodily injuries caused by an insured that were expected or intended by the insured.

III

In order to avoid its duty to defend and indemnify, plaintiff must show that the insured subjectively intended and expected injury to result from his intentional act.

This Court considered similar policy language in Metropolitan Property & Liability Ins Co v DiCicco, 432 Mich 656; 443 NW2d 734 (1989), and found that because the policy language included the phrase " 'from the standpoint of the insured,’ ” subjective intent was required. Id. at 708. The policy language in this case, "expected or intended by an insured person,” is unambiguous and requires a subjective intent; thus, the exclusion must be applied in its plain and easily understood sense. Wertman v Michigan Mut Liability Co, 267 Mich 508, 510; 255 NW 418 (1934).

Looking at the available facts of this case, we know that Mr. Frost left his home, stating his intentions. We also know that he drove to Gary Churchman’s house, knocked on his door, and shot him numerous times. He then threatened Beulah Churchman, left the house, and killed himself.

It is apparent from these facts that Mr. Frost intended to injure Gary Churchman and expected at least to seriously harm him. No other interpretation is possible. Therefore, we find that Henry Gordon Frost indeed intended or expected the resulting harm he caused. We further find that the pertinent exclusion applies to the facts of this case.

iv

Therefore, the next question for us to determine is whether an insane or mentally ill person is capable of intending or expecting the consequences of his actions. We must determine if Mr. Frost knew what he was doing when he shot and killed Gary Churchman. We conclude that he did. While Mr. Frost may not have been criminally liable for his acts, he was capable of foreseeing their consequences and understanding what he was doing, i.e., ending another human being’s life. Criminal intent is not required in these circumstances.

The ability of a mentally ill or insane person to distinguish right from wrong is not implicated in this situation. Criminal responsibility for those actions is not part of the necessary analysis in cases like the one before us today. Because we have determined that Henry Gordon Frost intended to take a gun and shoot Gary Churchman, the exclusionary clause of the instant insurance contract applies and there is no coverage.

In Transamerica Ins Corp of America v Boughton, 177 Mich App 253; 440 NW2d 922 (1989), defendant Michael Boughton was found not guilty by reason of insanity after he killed his estranged wife. The estate of Joni Boughton filed a wrongful death action against the defendant, for which he sought coverage under his homeowner’s insurance policy. However, Transamerica denied it had a duty to defend Boughton because of the policy exclusion of coverage for a claim of bodily injury or property damage that was expected or intended by the insured, and sought declaratory judgment.

On appeal, the Court of Appeals held that "the acts of a person deemed insane may be intentional within the meaning of an 'intentional and expected’ acts exclusion.” Id. at 258-259. The panel went on to say, "[f]ailure to prove sanity beyond a reasonable doubt and ability to prove by a preponderance of the evidence that an insured intended and expected injury are not necessarily contradictory propositions.” Id. at 260.²

We agree with this reasoning and conclude that an insane or mentally ill person can intend or expect the results of his actions within the meaning of an insurance policy’s exclusionary clause. Further, we do not believe that it is appropriate or necessary to find that someone found not criminally liable by reason of insanity cannot be found to have intended his actions and to have expected their consequences.

Foreign jurisdictions are in agreement with these principles. In Johnson v Ins Co of North America, 232 Va 340; 350 SE2d 616 (1986), a mentally ill friend of the plaintiff shot the plaintiff in his home, injuring him severely. On the day in question, the plaintiff’s friend had specifically planned to kill him, telling police that he simply wanted to shoot him, so he did.

Here, when Davis aimed the pistol at Johnson, he knew that he was shooting a human being. Acting deliberately and methodically, Davis had searched for and found a pistol, loaded it, travelled to the victim’s home, waited for him, begun talking with him, and shot him from close range. He acted with resolve and determination, not knowing that what he was doing was wrong because God had ordered him to act. In pointing the pistol at Johnson, Davis did not think, for example, that he was peeling a banana; he was not psychotic to an extreme degree, as the victim readily recognizes when he notes that Davis "did have this minimal degree of awareness of his actions.” That is sufficient. The shooting was not accidental, a risk insured against, but intentional. [Id. at 347-348.]

The Johnson court concluded that a finding of not guilty by reason of insanity does not negate intent, it merely excuses the act of the individual committing the crime. An individual can have every intention of performing an act and fully intend or expect the consequences that occur. Id. at 348. However, the punishment is not required upon a showing that the person was not guilty by reason of insanity. A finding of not guilty by reason of insanity does not mean lack of intent. This allows an exclusionary clause in an insurance policy to apply to these facts.³

In Rajspic v Nationwide Mut Ins Co, 110 Idaho 729; 718 P2d 1167 (1986), Grace Rajspic shot William Brownson during an altercation. Rajspic was acquitted of assault with a deadly weapon because of mental disease or defect excluding responsibility. The Rajspics had an insurance policy with Nationwide Mutual, which excluded acts caused intentionally by or at the direction of the insured. The court found that it. was possible for an insane person to not be criminally liable for the acts, but still intend them as required under an insurance policy._

The court agreed with the general proposition that "a person who is considered insane may still be capable of entertaining the intent to commit certain tortious acts even though he entertains that intent as a consequence of his delusion or affliction.” Id. at 732. (Citations omitted.)

In Colonial Life & Accident Ins Co v Wagner, 380 SW2d 224 (Ky App, 1964), Warren Shockley walked into a Lexington, Kentucky, hotel and shot and killed the defendant’s decedent. Shockley was found guilty of voluntary manslaughter. The decedent’s insurance policy contained a provision that excluded coverage when the insured’s death or other loss was caused by " 'injuries intentionally inflicted upon the Insured Employee by any other person.’ ” 380 SW2d 225. The defendant claimed that Warren Shockley was mentally ill at the time of the murder and, therefore, he was unable to intentionally commit the crime. Shockley admitted that, at the time of the shooting, he intended to injure Mr. Wagner. The court found that, although an individual may be excused from punishment for his act if he is mentally ill, the intent behind the act is not retrospectively expunged. Id. at 226. An insane person can intend the consequences of his acts. Under the terms of the policy, the court held that Shockley’s acts were intentional and fell within the exclusion. Id. at 227.

Therefore, we conclude that Henry Gordon Frost was capable of intending or expecting the results of his actions as required by the exclusionary language in the homeowner’s policy. Thus, coverage is precluded.

V

In conclusion, we hold that it is possible for an insane or mentally ill person to intend or expect the injuries he causes within the meaning of the insurance policy language. This is not to say that the insured is necessarily criminally liable for his acts. We find that an insane or mentally ill individual can still form the requisite intent to injure another and yet may not be considered criminally culpable. We also conclude that under the facts of this case, Henry Gordon Frost intended or expected the results of his acts. He purposely went to Gary Churchman’s house and shot him four times at close range. Further, the exclusionary clause in plaintiff’s policy is applicable, and plaintiff is relieved of its duty to defend and indemnify under the policy. Thus, we reverse the decision of the Court of Appeals.

Cavanagh, C.J., and Brickley and Boyle, JJ., concurred with Mallett, J.

1 Although the parties stipulated at one point in the lower court proceedings that Mr. Frost was mentally incapacitated, it is clear that they did so for purposes of the summary disposition motion only. Further, upon remand of the case by this Court to clarify that stipulation, the trial judge concluded that Mr. Frost did not have the requisite mental capacity to form criminal intent to commit murder. However, that is not to say, nor did the trial judge conclude, that he did not have the necessary intent to kill Gary Churchman for purposes of the instant contractual language.

2 In n 23 of his dissent, Justice Levin quotes the Boughton Court out of context. Post, p 588. In order to put this quote in context, we feel it necessary to provide the rest of the text:

Defendants argue that, because Boughton was adjudicated to be insane at the time of the shooting, he could not intend or expect to cause his wife’s death. Cases involving a policy which excludes both intentional and expected injuries hold that, in order to avoid liability through the exclusion for expected injury, the insurer must show that the injury was the natural, foreseeable, expected, and anticipatory result of an intentional act. [177 Mich App 255-256.]

3 In his dissent, Justice Levin discusses Johnson, supra. Post, p 588. In order to provide a clearer picture of what the court said in this case, we feel it necessary to quote from the opinion:

On the surface, there appears to be a blatant inconsistency in concluding, as we do, that a person may be criminally insane when shooting another, and thus avoid full criminal sanctions, and yet that same individual can be denied insurance coverage because he "intended” to shoot his victim. A more careful analysis, however, will reveal there is no inconsistency at all.

In the law, there are many situations in which a person may intentionally injure or kill another and not be subject to criminal punishment. For example, an individual may kill in self-defense. The executioner may kill with the sanction of the State. A soldier may injure or kill under rules of combat. This conduct is intentional, but it is also excusable. Likewise, an individual may be excused from penalty if he is insane at the time he commits a criminal act. As here, he may do the act with every intention of consummating it, but when it is shown that he was mentally ill, he is excused from the imposition of the usual sanctions. "The absence of punishment, however, does not retrospectively expunge the original intention.” Colonial Life & Accident Ins Co [v Wagner], 380 SW2d [224] 226 [Ky App, 1964].

In sum, we hold, in the words of the trial judge, that Davis "intended to shoot Kevin Johnson and he did so.” The insurer carried the burden to establish that Davis was aware of what he was doing and that he intended injury to Johnson. Therefore, the exclusion applies. [232 Va 348.]