Mutual of Enumclaw Ins. Co. v. Cross

10 P.3d 440
CourtCourt of Appeals of Washington
DecidedOctober 6, 2000
Docket46038-2-I
StatusPublished
Cited by12 cases

This text of 10 P.3d 440 (Mutual of Enumclaw Ins. Co. v. Cross) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mutual of Enumclaw Ins. Co. v. Cross, 10 P.3d 440 (Wash. Ct. App. 2000).

Opinion

10 P.3d 440 (2000)
103 Wash.App. 52

MUTUAL OF ENUMCLAW INSURANCE COMPANY, Respondents,
v.
Kirk CROSS and Kimberly Cross, Defendants,
Casey Dalton and James Hines, Appellants.

No. 46038-2-I.

Court of Appeals of Washington, Division 1.

September 18, 2000.
Publication Ordered October 6, 2000.

Michael Schein, Ron Perey, Seattle, for Appellants.

Harold Field, Theodore Bryant, Seattle, for Respondents.

Kimberly C. Berry, Pro se.

APPELWICK, J.

Mutual of Enumclaw Insurance Company (MOE) brought a declaratory action against the insured claiming that a homeowners insurance policy exclusion for the intentional acts of "an insured" precluded coverage. Insured wife argued that the policy severability clause establishes separate coverage for her, despite the policy's exclusion for the intentional acts of the insured husband. The trial *441 court granted MOE's summary judgment motion, finding that the intentional acts of "an insured" was unambiguous and excluded coverage for all insureds. We hold that a severability clause does not make an unambiguous policy exclusion ambiguous. We affirm.

FACTS

On April 14, 1994, Dirk Dalton was voluntarily placed in the temporary foster care of Kirk and Kimberly Cross. Kimberly Cross took the four-year-old boy to the hospital four times in the next two weeks. Dalton was treated for severe bruises, cuts and a head injury. On May 1, 1994, Kimberly Cross went to church, leaving Dalton in the care of Kirk Cross. An emergency medical team (EMT) responded to a call from Kirk Cross and found Dalton dead. The physicians who attempted to revive him noted that there were unexplained bruises covering Dalton's body and head and numerous other secondary findings of trauma.

On December 2, 1994, a jury convicted Kirk Cross of homicide by abuse for the death of Dalton. Kimberly Cross was charged with rendering criminal assistance, but the charge was dropped. She was never convicted of any crime. The Crosses were named insureds under a Mutual of Enumclaw Insurance Company (MOE) homeowners insurance policy. On April 25, 1997, Casey Dalton, Dirk's biological mother, brought an action for damages against Kimberly Cross. Casey Dalton alleged that Kimberly Cross "failed to protect Dirk Dalton from the abuse he sustained from her former husband, Kirk Cross, and failed to notify Child Protective Services of her concern for Dirk Dalton's welfare, and possible physical abuse."

On August 4, 1998, MOE brought a declaratory action in the King County Superior Court against the Crosses asking for a judgment that MOE was not obligated to indemnify or defend the Crosses, Casey Dalton or James Hines, Dalton's biological father (the defendants). A default judgment was entered against Kirk Cross.

On March 26, 1999, MOE moved for summary judgment based on the policy intentional acts exclusion. The court granted the motion on July 16, 1999. The parties then filed a statement of grounds for direct review to the Washington Supreme Court. That petition was rejected and this appeal followed.

ANALYSIS

Standard of Review

In reviewing a summary judgment order, the Court of Appeals engages in the same inquiry as the trial court, evaluating the matter de novo. Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993). The appellate court considers the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Kruse, 121 Wash.2d at 722, 853 P.2d 1373.

The issue here is whether the MOE homeowners insurance policy provides coverage given the intentional acts exclusion in the policy. The defendants contend that the MOE homeowners policy provides coverage in the underlying action.[1] They argue that the policy exclusion for the intentional acts of "an insured" does not preclude coverage because the severability clause in the policy establishes coverage to Kimberly Cross, or at least makes the contract ambiguous and unenforceable.

The pertinent contract language in the MOE homeowners policy reads:

SECTION II—EXCLUSIONS

1. Coverage E Personal Liability and Coverage F Medical Payments to Others do not apply to bodily injury or property damage:

a. which is expected or intended by the insured;
...
*442 HOMEOWNERS AMENDATORY ENDORSEMENT
Section II—Exclusions
Exclusion 1a. is replaced by:
a. which is expected or intended by an insured;
...
SECTION II—CONDITIONS

1. Severability of Insurance. This insurance applies separately to each insured. This condition will not increase our limit of liability for any one occurrence.

We must determine whether the policy exclusion of intentional acts by "an insured" makes coverage contingent upon the actions of any one insured, i.e., whether the intentional acts of one insured precludes coverage for all insureds. In Farmers Ins. Co. of Washington v. Hembree, 54 Wash.App. 195, 200-01, 773 P.2d 105 (1989), the Court of Appeals examined an exclusion based on the intentional acts of "an insured" and held that this language excludes coverage for all insureds when the intentional acts of an insured gave rise to the injury or damage. Here, the intentional acts of Kirk Cross, "an insured," invoke the policy exclusion, and, standing alone, preclude coverage for Kimberly Cross.

The defendants, however, contend that the policy exclusion should not stand alone. They claim that the severability clause effectively creates separate contracts for each insured and that by reading the policy exclusion and the severability clause together, the contract is ambiguous and summary judgment dismissal is inappropriate.

In Caroff v. Farmers Ins. Co. of Washington, 98 Wash.App. 565, 989 P.2d 1233 (1999), this court decided a case with substantially similar facts. In that case, Kris Trenouth, the teenage son of Roland and Bonnie Trenouth, sexually molested Arthur Caroff, the three-year-old son of Robert and Maria Caroff, and pled guilty to indecent liberties. The Caroffs brought a negligence action against the Trenouths. The Trenouths sought defense from the Farmers Insurance Company (Farmers) with which they held a homeowners insurance and umbrella policy. Farmers refused to tender a defense of the Trenouths, based on the policy exclusions for intentional acts and child molestation by "an insured" and "any insured." Caroff, 98 Wash.App. at 567, 989 P.2d 1233.[2]

The trial court granted Farmers' cross motion for summary judgment.

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10 P.3d 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mutual-of-enumclaw-ins-co-v-cross-washctapp-2000.