Mitchell Kelleher v. American Standard Insurance Company of Wisconsin, Member of American Family Insurance Group, Madison, Wi

• Court: Court of Appeals of Iowa
• Decided: April 30, 2014
• Docket: 13-1132
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1132 Filed April 30, 2014

MITCHELL KELLEHER, Plaintiff-Appellant,

vs.

AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Member of AMERICAN FAMILY INSURANCE GROUP, Madison, WI, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.

Mitchell Kelleher appeals from a declaratory judgment of no insurance

coverage. AFFIRMED.

Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for

appellant.

Scott K. Green, West Des Moines, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2

DANILSON, C.J.

This is a declaratory judgment action to ascertain whether there is

insurance coverage for Mitchell Kelleher’s injuries. The insurance policy

excludes intentional acts. We conclude the district court did not err in

determining coverage does not exist as the injuries were caused by an

intentional act. We affirm.

This case arises from incidents occurring in May 2005. Jeremy

Schaufenbuel and a group of friends were involved in ongoing conflict with

Mitchell Kelleher and his friends. In the early morning hours of May 14, 2005,

Schaufenbuel—after a night of using his vehicle as a weapon, hitting other cars,

including Kelleher’s, and using his vehicle to trap a person against a wall so

others could hit that person—drove at Kelleher, who was on foot. Kelleher ran

out of the way. Schaufenbuel put his car in reverse, punched the gas, and

backed over Kelleher. Kelleher suffered a compound fracture of his right leg.

Schaufenbuel was charged with willful injury causing serious injury, but

later entered an Alford plea to serious injury by vehicle.1 The offense of serious

injury by vehicle does not require a finding of intent to injure. See Iowa Code

§ 707.6A(4) (2005).

Kelleher filed a personal injury suit against Schaufenbuel. The two

entered into a settlement whereby Schaufenbuel assigned to Kelleher all his

rights against his insurer, American Standard Insurance Company of Wisconsin.

American denied coverage to Schaufenbuel under the intentional acts exclusion

1 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”). 3

of the policy: “This coverage does not apply to: . . . (2) Bodily Injury or Property

Damage caused by an intentional act of, or at the direction of an insured person

even if the actual injury or damage is different than that which was expected or

intended.”

Kelleher filed a declaratory judgment action requesting a finding that

Schaufenbuel was covered under the American policy. At trial, Kelleher testified

about the various altercations that had occurred between the two groups, but

testified he was injured accidentally when Schaufenbuel was attempting to “get

away from a fight that was fixing to happen, so I think he was just trying to get

away after he hit my car.“ Other evidence admitted at trial was Schaufenbuel’s

September 8, 2008 deposition; an incident narrative authored by Deputy Sheriff

Reed H. Palo; the insurance policy; and the May 19, 2006 deposition of Trevor

Thein, who was at the scene.

The district court entered an order of declaratory judgment, concluding:

Based on the evidence presented, it is clear that Schaufenbuel intended to strike Kelleher with his vehicle. While he may not have intended to cause the serious injuries that resulted, he intended to run him over. The parties were at the locker that evening to fight. Schaufenbuel had earlier trapped McCully with his car and t-boned Kelleher’s car. He had chased Kelleher earlier and finally ran him over when he “punched the accelerator” and cranked the wheel towards him. Because Schaufenbuel’s actions were clearly intentional, he has no coverage under the American Family Policy for any compensable damages he may owe Kelleher. As Kelleher stands in Schaufenbuel’s shoes, Kelleher has no right of recovery from American Family. 4

The district court’s findings are supported by substantial evidence.2 The

court was not bound by the elements of the offense to which Schaufenbuel

tendered an Alford plea. We therefore affirm without further opinion pursuant to

Iowa Rule of Appellate Procedure 6.1203(a) and (d).

AFFIRMED.

2 Kelleher argues that because no rulings on objections were made, this action was tried in equity and our review is de novo. See Iowa R. App. P. 6.907. But the action was for interpretation of coverage under an insurance contract for which the court entered an order, not a decree. These factors indicate the matter was considered as an action at law. See Van Sloun v. Agans Bros. Inc., 778 N.W.2d 174, 178-79 (Iowa 2010); Sutton v. Iowa Trenchless, L.C., 808 N.W.2d 744, 748 (Iowa Ct. App. 2011). In any event, our conclusion would be the same even if under de novo review.