Auto-Owners Insurance v. Harrington

538 N.W.2d 106, 212 Mich. App. 682
CourtMichigan Court of Appeals
DecidedAugust 18, 1995
DocketDocket 156446
StatusPublished
Cited by11 cases

This text of 538 N.W.2d 106 (Auto-Owners Insurance v. Harrington) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auto-Owners Insurance v. Harrington, 538 N.W.2d 106, 212 Mich. App. 682 (Mich. Ct. App. 1995).

Opinions

Jansen, P.J.

This is a declaratory judgment. action brought by plaintiff to determine whether it is liable to provide insurance coverage to James and Marion Harrington under their homeowner’s insurance policy. The trial court declared that plaintiff was liable to defend and indemnify under the policy in a wrongful death action resulting from James Harrington’s shooting of Brian Tew. We reverse and remand.

On August 1, 1989, in the City of Fair Haven, James Harrington shot and killed Brian Tew. [684]*684Brian, who was staying with the Harringtons’ neighbor, was allegedly intoxicated and had engaged in aggressive and erratic behavior throughout the afternoon of August 1. Brian had been shooting an automatic gun into the area of Lake St. Clair, and had made threats toward the Harringtons and their children. James was frightened and retrieved his 12-gauge shotgun from the garage. During the evening, Brian was seen by Marion heading toward the Harringtons’ garage. James then saw Brian close to a window where the Harrington children were located. James "assumed” that Brian had the gun and was going to do something to his family. James then aimed his shotgun at Brian and shot him in the stomach. Brian died as a result of the shooting. Brian did not have a gun when he was shot.

The St. Clair County prosecutor apparently determined that James was acting in self-defense and no charges were ever brought against James in connection with his shooting of Brian. However, James did testify at his deposition that he intended to shoot Brian.

On November 20, 1989, Sydney Tew, Brian’s father, brought a wrongful death action against James and Marion Harrington. On February 26, 1990, plaintiff brought the present declaratory judgment action. Plaintiff claimed that it was not under a duty to defend because there was an exclusion in the homeowner’s policy that denied coverage for "bodily injury or property damage expected or intended by an insured person.”

On June 30, 1992, defendants brought a motion for summary disposition pursuant to MCR 2.116(C) (8) and (10). The trial court granted the motion and ruled that plaintiff was obligated to defend and provide coverage to the Harringtons under the homeowner’s insurance policy.

[685]*685The question presented in this case is one of first impression: whether an act of self-defense is an intentional act within the meaning of the exclusion providing no coverage for bodily injury expected or intended by an insured. We hold that even if James Harrington was acting in self-defense, his action was still intentional and expected and the exclusion under the insurance policy precludes coverage in this case.

Coverage for personal liability was covered in the policy as follows:

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 insuréd 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.

The exclusion in question provides:

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.

An insurance policy is an agreement between the parties in which a court must determine what [686]*686the agreement was and effectuate the intent of the parties. Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992). The court must look at the policy as a whole and give meaning to all terms. Id. Any clause in an insurance policy is valid as long as it is clear, unambiguous, and not in contravention of public policy. Id., p 567. An ambiguity will not be created where none exists. Id.

Exclusionary clauses in insurance policies are to be strictly construed in favor of the insured. Id. However, there is no coverage under a policy if any exclusion in the policy applies to an insured’s particular claims. Id. Clear and specific exclusions must be given effect because an insurance company cannot be liable for a risk it did not assume. Id.

In order to avoid its duty to defend, plaintiff must show that James Harrington intended and expected injury to result from his intentional act. That is, because the policy language is "expected or intended by an insured person,” it is unambiguous and requires a subjective intent on behalf of the insured. Id., pp 567-568.

The facts of this case are that Brian Tew was acting in an aggressive and erratic manner during the date in question. There is also evidence that he was intoxicated and was shooting a gun. During the evening, Marion saw Brian approach her house and James had a shotgun with him. Brian was scaling up the side of the house by the kitchen window. At that point, James shot Brian. In his deposition, James testified that he pointed the gun at Brian, that he intended to stop Brian, and that he intended to shoot Brian. James did not call the police before shooting Brian and Brian was not armed when he was shot. It is apparent from these facts that James intended to shoot Brian and [687]*687certainly expected to harm him. Therefore, James intended or expected the resulting harm that he caused. Thus, the exclusion applies to the facts of this case.

However, we must next determine whether a person acting in self-defense intends or expects the consequences of his actions. While James Harrington may not have been criminally liable for his act of shooting Brian Tew, he stated that he intended to shoot Brian and he certainly was capable of foreseeing the consequences. That is, James knew that intentionally shooting at Brian would result in serious bodily harm or death.

The precise issue before us has not been decided in this state. This Court has held that an insured’s guilty plea to a specific intent crime is dispositive in determining the applicability of an intentional acts exclusion in an insurance policy. Vanguard Ins Co v Bolt, 204 Mich App 271, 275; 514 NW2d 525 (1994); State Farm Fire & Casualty Co v Johnson, 187 Mich App 264, 266-267; 466 NW2d 287 (1991). Further, an insured’s conviction of a specific intent crime may conclusively establish the requisite intent for the application of the insurer’s exclusionary intentional acts clause. State Farm Fire & Casualty Co v Fisher, 192 Mich App 371, 376-378; 481 NW2d 743 (1991). Our Supreme Court has also held that an insane or mentally ill insured may intend or expect the result of the injuries personally caused for purposes of an exclusionary clause in a homeowner’s insurance policy, even if the insured is not criminally liable. Churchman, supra, pp 572-573. Similarly, an intoxicated person may form the intent necessary to intentionally injure another so as to exclude coverage under a homeowner’s insurance policy.

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Auto-Owners Insurance v. Harrington
538 N.W.2d 106 (Michigan Court of Appeals, 1995)

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Bluebook (online)
538 N.W.2d 106, 212 Mich. App. 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-owners-insurance-v-harrington-michctapp-1995.