Group Insurance v. Czopek

489 N.W.2d 444, 440 Mich. 590

• Court: Michigan Supreme Court
• Decided: September 9, 1992
• Docket: 90390, (Calendar No. 11)
• Status: Published

Opinions

Mallett, J.

This is an action for declaratory judgment, seeking to determine the insurer’s obligation to defend or indemnify its insured for his liability for injuries he inflicted upon two police officers when he resisted arrest.

We are called upon to consider whether the injuries caused by defendant Arthur Smith’s assault on two police officers constituted an "occurrence” as required by plaintiff’s homeowner’s policy. We also consider whether intoxication can turn an intentional act into an accidental one under the insurance policy language.

I

On New Year’s Eve, 1983, eighteen-year-old Arthur Smith went out with a friend, bought a twelve-pack of beer, and drove around awhile drinking. Smith drank six of the twelve beers in approximately thirty to forty-five minutes.

Smith and his friend then went to a New Year’s Eve party where Smith drank two more beers and a pint of peppermint schnapps, except for four shots drunk by a friend.

About 11:00 p.m., Smith left the party and began walking home. He knew that he was drunk and that his speech was slurred. Officer Czopek, a defendant in the instant action, testified that he saw Smith walking down the center of Gudith Road, weaving from side to side. As a result, Smith was interfering with traffic and putting himself at great risk.

Officer Czopek stopped his car, turned around, and drove back down the road. He pulled up next to Smith and tried to talk him into getting off the road. Smith refused and became belligerent. Czopek then made a u-turn, radioed for back-up assistance, and watched Smith.

Smith turned off the road and began to walk across a field to avoid the traffic light at the corner of West and Gudith Roads. He then tried to cross West Road. As he started to cross the street, he dove or fell into the westbound lane of traffic. Officer Czopek drew even with Smith and again told him to get out of the road. Smith again began shouting at the officer.

Czopek turned into a nearby driveway near Smith, got out of the car, and called to Smith. Instead of listening to the officer, Smith stopped and, as Czopek approached, began shouting that he had to go home because his father was going to kill him. Officer Czopek tried to calm him down, but Smith grabbed him by the lapels. Czopek then realized that Smith was extremely drunk.

When Corporal Herdis Petty arrived on the scene, Smith became hostile and belligerent. The two policemen tried to handcuff Smith. The struggle which ensued lasted nearly one hour. Smith lay on the ground and kicked and swung his legs. As the two police officers tried to put him into the police car, he wrapped one leg around part of the car while still kicking with the other. Each time they got him partially in the car, Smith tried to get out.

As a result of their struggle with Smith, Officers Czopek and Petty suffered injuries. Officer Czopek suffered frostbite on one of his hands; Officer Petty had some ribs broken where Smith kicked him. Smith also bit his hand.

Smith admitted that he knowingly resisted arrest because he did not want to go to jail. However, he did not recall kicking or hitting anyone and, because of this, did not think he harmed either officer. He admitted, however, that he intended to resist arrest.

Smith was charged with assault and battery, and was fined $250 at his criminal trial.

The officers filed a civil suit against Smith’s parents. Group Insurance Company of Michigan (gicom) was the parents’ homeowner’s insurer. It filed the instant action, asking the court to declare that it was not required to defend or indemnify Arthur Smith. Trial judge Richard Hathaway granted gicom’s motion for summary disposition. The Court of Appeals affirmed the lower court’s decision in an unpublished opinion per curiam.

In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of Metropolitan Property & Liability Ins Co v DiCicco, 432 Mich 656; 443 NW2d 734 (1989), and to discuss whether forcibly resisting arrest can be considered an "occurrence” within the policy language, regardless of whether the injury was intended or expected from the standpoint of the insured.

On remand, the Court of Appeals again found in an unpublished opinion per curiam in favor of gicom. According to the panel, there was no "occurrence” within the meaning of the policy. Further, the panel found that even in light of the DiCicco "intended or expected” language, the incident fell within the exclusionary clause of the policy.

Officers Czopek and Petty filed an application for leave to appeal in this Court on November 16, 1990. We granted leave to determine whether the injuries suffered were the result of an occurrence. Further, we consider whether an intoxication can vitiate making the insured’s actions "accidental” under the policy.

We find that Arthur Smith’s actions were intentional, and therefore there was no "occurrence” as defined within the policy. Further, we find that an intoxicated person can intend the results of his actions. Thus, an intoxicated person’s actions need not be considered "accidental” under the policy. We affirm the decision of the Court of Appeals in favor of plaintiff gicom.

II

The first step in determining if an insurance policy applies is to determine whether the policy is clear and unambiguous on its face. If an ambiguity exists, the policy must be construed in favor of the insured. Powers v DAIIE, 427 Mich 602, 624; 398 NW2d 411 (1986). Under the heading Coverages, the policy at issue states:

COVERAGE E — PERSONAL LIABILITY

This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.

The next heading in the policy is "Exclusions,” under which the following appears:

This policy does not apply:

1. Under Coverage e — Personal Liability and Coverage f — Medical Payments to Others:

f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.

On the same page, under the heading "Additional Definitions,” the policy provides:

5. "occurrence”: means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.

The terms used in an insurance policy either are clearly defined within the policy or are given their commonly used meaning. Fireman’s Fund Ins Co v Ex-Cell-O Corp, 702 F Supp 1317, 1323, n 7 (ED Mich, 1988). Omitting the definition of a word that has a common usage does not create an ambiguity within the policy. We conclude that the provisions in the gicom policy are clear and unambiguous. We cannot create ambiguity where none exists. Edgar’s Warehouse, Inc v United States Fidelity & Guaranty Co, 375 Mich 598, 602; 134 NW2d 746 (1965). It is also improper for us to rephrase or interpret the clear and unambiguous language of the policy. Instead, we must enforce the language of this contract as it is written. Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962).

Further, the exclusions to the general liability in a policy of insurance are to be strictly construed against the insurer. Francis v Scheper, 326 Mich 441, 448; 40 NW2d 214 (1949). Clear and specific exclusions must be enforced. An insurance company cannot be found liable for a risk it did not assume. Illinois Employers Ins of Wausau v Dragovich, 139 Mich App 502, 507-508; 362 NW2d 767 (1984); Kaczmarck v La Perriere, 337 Mich 500; 60 NW2d 327 (1953).

III

We must consider whether Arthur Smith’s assault on officers Petty and Czopek constituted an "occurrence” under the policy. We find that it did not. The policy language supplied coverage on behalf of the insured for all of the bodily injuries caused by the insured that constituted an occurrence. An occurrence is defined by the policy as "an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage.” The meaning of "accident” in insurance policies has been defined as:

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. In other words, 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. [Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12, 18-19; 123 NW2d 143 (1963).]

In his deposition, Mr. Smith admitted that he intended to prevent the arrest. His actions, biting and swinging his arms and legs, were intended to make it impossible for the officers to easily get him into the squad car and on his way to the police station. Because of Arthur Smith’s admission in his deposition, we are unwilling to conclude that his resisting arrest, which resulted in injuries to the policemen, was an "accident.” It clearly was not an undesigned contingency or something that happened by chance. Guerdon, supra. Unlike the Court in DiCicco, we do not find that the factual situation in this case is so unclear as to allow us to say that there was an occurrence. Accordingly, we agree with the Court of Appeals that forcibly resisting arrest is not an "accident” within the meaning of the insurance policy’s definition of "occurrence,” thus coverage for the officer’s injuries is barred under the policy.

IV

The next question before us is whether intoxication can vitiate intent so that the actor’s acts can be considered accidental under the policy. We believe that an intoxicated actor can be liable for his actions, and that such actions might be said to be unintentional for purposes of insurance policy language.

Defendant Arthur Smith consumed a substantial amount of alcohol before he assaulted the police officers. Yet, he admitted in a deposition that he knew he was resisting arrest and that two men were trying to get him into a police car. This shows that Smith was capable of forming some intent even though he was significantly intoxicated. Further, he resisted arrest for nearly an hour. Again, it is evident that Arthur Smith was capable of expecting his actions to harm the officers. Mr. Smith’s resisting arrest was not rendered accidental simply because he happened to be intoxicated.

The Court of Appeals recently looked at the question of voluntary intoxication in terms of insurance policies and determined that intoxication is not a factor mitigating intent. In Allstate Ins Co v Hampton, 173 Mich App 65; 433 NW2d 334 (1988), the plaintiff sought declaratory judgment to establish that it did not have a duty to provide coverage for the defendant under a homeowner’s policy. Defendant James Hampton allegedly engaged in sexual relations with his adopted twelve-year-old daughter, and she sued to recover under his homeowner’s policy. The policy language excluded coverage for bodily injury that could reasonably have been expected to result from the intentional or criminal acts of the insured or that were intended by the insured.

Defendant Hampton argued that his voluntary intoxication should vitiate intent. The Court of Appeals found that "[wjhere an insured voluntarily ingests alcohol, he may not, as a defense to an exclusionary clause in an insurance policy such as the one at bar, assert that he lacked the capacity to form the intent to act or harm.” Id. at 67.

The panel found support for its position in Allstate Ins Co v Sherrill, 566 F Supp 1286 (ED Mich, 1983), where the plaintiff sought declaratory judgment to determine if it was required to provide coverage under a homeowner’s policy for a series of outrageous acts committed by the insured. Richard Sherrill’s policy contained language that excluded coverage for bodily injury that was expected or intended from the standpoint of the insured.

Richard Sherrill walked into a convenience store with a gun, robbed the cashier, abducted her, and then violently sexually assaulted the woman. He pled nolo contendere to the charges. However, he claimed that because he had ingested three "hits” of mescaline (an hallucinogen), approximately one and one-half bottles of schnapps, and several bottles of beer, and had smoked two or three marijuana cigarettes before he walked into the store, he could not form the intent necessary to be convicted of the crimes. Sherrill claimed he had no recollection of the crimes he committed that night, that his acute intoxication prevented him from being able to form the intent to harm, and that he lacked the capacity to intentionally act. Id. at 1287.

The court did not agree. It stated that public policy required that "a voluntary departure of one’s good judgment and rational decision-making abilities should not permit the insured to abrogate his financial responsibility to those he brutally injures.” Id. at 1288.

The court held that "where an insured voluntarily ingests alcohol or drugs he may not assert a defense to an exclusionary clause such as the one at bar based on his lack of capacity to form the intent to act or harm, where the defense is based solely on the effects of the alcohol and/or drugs.” Id.¹

We find the reasoning applied by the Courts in Sherrill and Hampton persuasive. An intoxicated person is responsible for his actions, even though he may have voluntarily ingested intoxicating substances. In the case before us, Arthur Smith, of his own accord, consumed a significant amount of alcohol. He admits that he remembers some of what occurred between him and the police officers. The fact that Smith drank eight beers and a bottle of schnapps does not excuse the fact that he resisted arrest and assaulted two policemen.

The precedent of self-immunity that such a policy would create would allow commission of a crime without the requisite responsibility. Further, to allow voluntary intoxication as a defense in a civil action is also unjust. Where an insured willingly consumes an intoxicating substance, he may not use that consumption as a defense to the requirement of intent in an insurance policy. To allow such a defense would be to create the ability to act unwisely without the requisite financial responsibility. Arthur Smith’s actions are not covered under his parents’ homeowner’s policy because they cannot be considered accidental.

V

We find that, because there was no occurrence resulting from Mr. Smith’s actions, coverage for the injuries suffered by the officers is barred. Further, it is possible for an intoxicated individual to form the requisite intent to purposely injure others. Intoxication does not vitiate or mitigate that intent. Arthur Smith intended to injure officers Petty and Czopek in some manner when he resisted arrest, and therefore, because there was no occurrence, coverage under the gicom policy is barred.

We therefore affirm the Court of Appeals resolution of this case.

Cavanagh, C.J., and Brickley, Riley, and Griffin, JJ., concurred with Mallett, J.

1 See Justice Levin’s dissent, post, p 630, n 27. In Sherrill, the court followed an established legal principle. Because no Michigan law existed on the topic, the federal court was required to determine what a Michigan state court would do when confronted with a similar case. The court stated:

Recognizing the lack of judicial guidance on this issue, the Court believes that if confronted with this question the Michigan Courts would be constrained to hold that such a defense is not available to one whose alleged incapacity results solely from a voluntary ingestion of alcohol or drugs. [566 F Supp 1288.]