Fremont Mutual Insurance v. Wieschowski

451 N.W.2d 523, 182 Mich. App. 121

• Court: Michigan Court of Appeals
• Decided: September 25, 1989
• Docket: Docket 113045
• Status: Published

Opinion

Per Curiam.

On June 6, 1988, plaintiff Fremont Mutual Insurance Company filed this declaratory action in the Alpena Circuit Court claiming it had no duty to defend its insured, defendant Michael R. Wieschowski, because of a policy exclusion for bodily injury "expected or intended from the standpoint of the insured.” The circuit court granted plaintiffs motion for summary disposition under MCR 2.116(0(10). Defendant George Morasky appeals as of right and we affirm.

We have reviewed defendant Morasky’s claims of error pursuant to the established standards for summary disposition under MCR 2.116(0(10), see Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988), lv den 431 Mich 877 (1988), and Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988), and find no error. The trial court correctly found that Wieschowski’s admittedly intentional assault and beating of Morasky resulted in injury which was the natural, foreseeable, expected and anticipated result of the insured’s intentional act. See Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989). Wieschowski’s assault on Morasky unambiguously falls within the insurance policy’s exclusion. This is so even though Wieschowski may not have intended to injure Morasky in the particular manner, or as extensively, as he did. See State Farm Fire & Casualty Co v Groshek, 161 Mich App 703, 709; 411 NW2d 480 (1987). Once intended harm is established, the fact of an unintended injury is irrelevant. Freeman, supra, p 718 (opinion of Boyle, J.). We therefore reject Morasky’s contention that his hip injury, and the particular manner in which it was injured, was neither expected nor intended by the insured so as to avoid the exclusion.

Although count two of defendant Morasky’s complaint may allege negligence, gross negligence and wilful and wanton misconduct by Wieschowski, arising from Wieschowski’s attempt to pull Morasky out from beneath an automobile, this characterization does not control the applicability of the exclusionary clause. See Freeman, supra, and Tobin v Aetna Casualty & Surety Co, 174 Mich App 516, 518; 436 NW2d 402 (1988). There arises no duty to defend or provide coverage where the complaint is merely an attempt to trigger insurance coverage by characterizing allegations of intentionally tortious conduct as negligent activity. Tobin, supra; Iowa Kemper Ins Co v Ryan, 172 Mich App 134, 137; 431 NW2d 434 (1988). The record supports the trial court’s conclusion that no genuine issue of material fact remains and that plaintiff need not defend or indemnify Wieschowski, as a matter of law.

Affirmed.