Fire Insurance Exchange v. Berray

694 P.2d 191, 143 Ariz. 361, 1984 Ariz. LEXIS 325
CourtArizona Supreme Court
DecidedDecember 20, 1984
Docket16564-PR
StatusPublished
Cited by15 cases

This text of 694 P.2d 191 (Fire Insurance Exchange v. Berray) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fire Insurance Exchange v. Berray, 694 P.2d 191, 143 Ariz. 361, 1984 Ariz. LEXIS 325 (Ark. 1984).

Opinions

FELDMAN, Justice.

Fire Insurance Exchange petitions this court for review of the majority decision of the court of appeals (Fire Insurance Exchange v. Berray, 143 Ariz. 429, 694 P.2d 259 (1983)), which found that Fire Insurance Exchange had a duty to defend its insured, Tom Berray, in a tort action brought against Berray by Raul Rodriguez. We have jurisdiction under Ariz.Const., art. 6, § 5(3) and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.; we granted review in this case and in Transamerica Insurance Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1983) to settle a conflict in the decisions of the court of appeals (Rule 23(c)(4)) concerning the scope of the intentional act exclusion. See Lockhart v. Allstate Insurance Co., 119 Ariz. 150, 579 P.2d 1120 (1978).

FACTS

At mid-afternoon on April 9, 1980 defendant and Raul “Rudy” Rodriguez left Berray’s place of employment in Phoenix, Arizona to play pool at a bar across the street. They played pool, betting on the outcomes, into the evening. They bet substantial sums and a dispute arose concerning the bets. They left the bar separately and drove away in their respective vehicles. At the intersection of Grand and 19th Avenues both stopped at a red light. Rodriguez caught Berray’s attention and the two exchanged words. They agreed to pull into a vacant service station to further discuss their disagreement. According to Berray’s deposition, Rodriguez punched him in the face causing him to bleed and fall against his van. Berray got up and, after a moment, began to straighten his glasses. Rodriguez grabbed the glasses and threw them to the ground. Rodriguez then hit Berray, knocking him against the step of his van and causing the back of Berray’s head to bleed. Seeking to avoid the blows, Berray clambered into his van, kicking at Rodriguez. Lying across the front seat, Berray grabbed a .357 Magnum from the backseat. He turned, pointed the gun at Rodriguez, and told him to get away.

At that point he [Rodriguez] took a step towards me and I just fired. Aimed and, you know, I just fired the gun.
Q. But you fired it in his direction? A. Yes.
Q. Would it be fair to say that after this assault on you, that you were fearful for your life?
A. Very definitely.

Berray deposition, p. 26.

Rodriguez sustained serious injuries and filed a tort action against Berray, alleging in Count IV

That on or about April 11, 1980, the plaintiff Raul Rodriguez, received grievous bodily injury as a result of grossly negligent and/or willful and wanton and/or malicious assault and battery by the defendant with a deadly weapon____

And in Count VII: .

That as a direct and proximate result of the grossly negligent, intentional, willful, wanton and malicious conduct of the defendant, plaintiff is entitled to punitive damages____

[363]*363Berray’s contention is that the shooting was essentially a reflex reaction undertaken in self-defense.

Q. All right. Did you at that time consciously decide that you were going to shoot Rudy?
A. I don’t believe I ever done that. Just a reaction.
* * * * * *
Q. All right. Did you ever at anytime intend to shoot Rudy?
A. Prior to the happening?
Q. Yes. Before the firearm went off, did you intend to shoot Rudy?
A. No.
Q. Did you intend to kill him?
A. No way.
Q. Did you want to?
A. No way.
* * * * # *
Q. Really, did you ever really intend to shoot Rudy?
A. I never really intended to shoot Rudy, you know, until it happened.
Q. So it was just some sort of a reflex?
A. When he came at me, definitely.
[Berray deposition pp. 48-50, 56]

THE COVERAGE

At the time of the incident Berray was insured under a homeowner’s liability policy issued by Fire Insurance Exchange, a division of Farmers Insurance Group. Berray tendered the defense to Fire Insurance Exchange. The policy provides coverage for “all damages from an accident which an insured is legally obligated to pay because of bodily injury or property damage covered by this policy.” Fire Insurance Exchange initiated this declaratory judgment action, claiming that an “intentional acts” exclusion in the policy relieved it from the “duty to defend” Berray in the underlying action brought by Rodriguez. The exclusion states:

We do not cover bodily injury or property damage:

* * * * * *

3. Arising as a result of intentional acts of an insured.

The trial court entered summary judgment in favor of Fire Insurance Exchange. The court of appeals reversed, one judge dissenting. Fire Insurance Exchange v. Berray, supra. The majority found that the only inference to be drawn from Berray’s testimony concerning his conduct in aiming a loaded gun and pulling the trigger was that he “intended the resulting harm despite his statements to the contrary.” Id. at 431, 694 P.2d at 261. We agree with regard to the insured’s immediate intent. With respect to the immediate intent which accompanies the intentional act, the conclusion of the trial court was consistent with Steinmetz v. National American Insurance Co., 121 Ariz. 268, 589 P.2d 911 (App.1978) and Clark v. Allstate Insurance Co., 22 Ariz.App. 601, 529 P.2d 1195 (1975). However, as we stated in Meere, 143 Ariz. at 358, 694 P.2d at 188, the Steinmetz-Clark presumption does not apply to the language of an “intentional acts” exclusion clause when an insured acts in self-defense or with some other justification. In such cases, the question of intent must be resolved by a determination of the basic purpose or desire underlying the insured’s conduct. 143 Ariz. at 359-360, 694 P.2d . at 189-190; Allstate Insurance Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981); see also Farmers Insurance Company of Arizona v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983). We therefore agree also with the conclusion of the court of appeals “that an act committed in self-defense should not be considered an ‘intentional act’ within the meaning of the exclusion.” Berray, 143 Ariz. at 431, 694 P.2d at 261. As the court of appeals explained

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Fire Insurance Exchange v. Berray
694 P.2d 191 (Arizona Supreme Court, 1984)

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Bluebook (online)
694 P.2d 191, 143 Ariz. 361, 1984 Ariz. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fire-insurance-exchange-v-berray-ariz-1984.