Norris Ex Rel. Thomas v. State Farm Fire & Casualty Co.

16 S.W.3d 242, 341 Ark. 360, 2000 Ark. LEXIS 245
CourtSupreme Court of Arkansas
DecidedMay 18, 2000
Docket99-1115
StatusPublished
Cited by63 cases

This text of 16 S.W.3d 242 (Norris Ex Rel. Thomas v. State Farm Fire & Casualty Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norris Ex Rel. Thomas v. State Farm Fire & Casualty Co., 16 S.W.3d 242, 341 Ark. 360, 2000 Ark. LEXIS 245 (Ark. 2000).

Opinions

RAY Thornton, Justice.

The issue in this case is whether stice. issued by the appellee, State Farm Fire & Casualty Company, excludes coverage of unintended or accidental results of its insured’s actions. The trial court granted State Farm’s summary judgment motion, finding that coverage was excluded. Because we have determined that State Farm’s policy language is ambiguous, we reverse and remand.

On May 17, 1996, fifteen-year-old Skye Thomas, the son of appellant, Mrs. Jeannie B. Norris, was walking home from school when Zack Rogers, aged fifteen, and two other boys confronted him. Skye “smarted off’ to Zack, who then hit Skye on his right jaw. Skye fell face first, without breaking his fall, onto the concrete pavement, fracturing the base of the skull and the bones around his left eye.

Zack and the other boys helped Skye up and walked with him to the nearby house of another friend. Skye’s left eye began to blacken and swell shut. When they arrived at the friend’s house, Zack gave Skye some pain medication and an ice pack for his eye. Zack, a small boy for his age, stated in his deposition that he did not intend to hit Skye so hard as to knock him over or cause him to hit the pavement.

Within a few hours, Skye was rushed to the hospital where he was diagnosed with mild to moderate brain damage. Skye sustained fractures to the base and roof of the left orbit, the left maxillary sinus, and the base of the skull. Dr. Charles Teo, the chief of pediatric neurosurgery at Arkansas Children’s Hospital, reviewed Zack’s deposition and formed an opinion within a reasonable degree of medical certainty that Skye’s injuries were caused by his head hitting the pavement and not by Zack’s punch to the right jaw. Four months later, Dr. Carolyn Patterson of Arkansas Children’s Hospital performed a neuropsychological evaluation, and determined that Skye suffered from long-term sequelae from the injury. Dr. Patterson diagnosed Skye with mild diffused inefficiency in the operations of the brain, short-term and long-term memory loss, and emotional instability.

Appellant filed an action against Zack Rogers through his mother, Zenda Griebel, who was insured under a homeowner’s policy written by State Farm. When State Farm contended it was not required to defend the litigation, or provide liability coverage for the injuries sustained by Skye Thomas, appellant filed an action for declaratory judgment against State Farm to have the trial court interpret the coverage language of the policy including its exclusionary provisions.

Appellant contended that State Farm owed a duty to defend and to provide liability coverage for the underlying tort action. State Farm was granted summary judgment on the basis of the exclusionary language. In reviewing summary judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1999); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Appellant brings this appeal from the grant of summary judgment, contending that the exclusionary language is ambiguous and against public policy.

Our law regarding the construction of an insurance contract is well setded. The language in an insurance policy is to be construed in its plain, ordinary, popular sense. CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984). Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates the coverage. Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993).

We first consider the language of the policy that extends coverage to the insured. The policy defines “insured” as “you and residents of your household, any other person under the age of 21 who is in the care of a person described above.” The policy also defines “occurrence” as “an accident which results in: (a) bodily injury; or (b) property damage, during the policy period.” (Emphasis added.) The policy then provides, among other coverages, as follows:

COVERAGE M — MEDICAL PAYMENTS TO OTHERS. We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury. (Emphasis added.)

It is apparent that the policy language clearly extends coverage for an accident causing bodily injury.

We next consider whether coverage is excluded for unintended or accidental results from an occurrence that is (a) expected or intended, or (b) willful and malicious. We addressed the question whether insurance coverage for unexpected or accidental results could be excluded by language stating that the policy did not cover an injury which is expected or intended in Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), and concluded that accidental or unintended results from intentional acts were not excluded.

In Talley, an altercation arose between a sixteen-year-old boy, Tony Davis, and two eighteen-year-old boys. The three boys attended a party. Davis consumed a considerable amount of alcohol, left the party late that evening, got a shotgun, and returned to the party. Davis shot out the rear windows of the two boys’ cars. He drove around the block and shot at the cars a second time. A third time, he shot toward the cars. The two boys were hit by the shotgun blast; one was totally blinded, and the other was partially blinded. Id.

Davis, the insured, had a homeowner’s policy that provided liability coverage for bodily injury caused by the insured. The exclusionary language stated that the policy did not cover “bodily injury . . . which is either expected or intended from the standpoint of the insured.” Id. We stated:

Many acts are intentional in one sense or another; however, unintentional results often flow from intentional acts (Emphasis added.)

Id. In Talley, we quoted 10 Couch on Insurance 2d § 41.6 (2d ed. 1985), which provides:

It is only the intended injuries flowing from an intentional act that are excluded . . . and a homeowner’s policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended.
For the purposes of determining whether recovery can be had under an ‘accident’ provision of a liability policy, the resulting damage can be unintentional and therefore accidental even though the original acts were intentional....

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Bluebook (online)
16 S.W.3d 242, 341 Ark. 360, 2000 Ark. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norris-ex-rel-thomas-v-state-farm-fire-casualty-co-ark-2000.