Ohio Casualty Insurance v. Henderson

Court of Appeals of Arizona

Ohio Casualty Insurance v. Henderson

927 P.2d 815, 187 Ariz. 155, 217 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 116

CourtCourt of Appeals of Arizona

DecidedMay 28, 1996

DocketNo. 2 CA-CV 96-0122

StatusPublished

Cited by1 cases

This text of 927 P.2d 815 (Ohio Casualty Insurance v. Henderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ohio Casualty Insurance v. Henderson, 927 P.2d 815, 187 Ariz. 155, 217 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 116 (Ark. Ct. App. 1996).

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Opinions

OPINION

LIVERMORE, Judge.

Padriac Hill was murdered by one of three armed robbers. The parents of Hill made a claim against one of the robbers, Joel Henderson. Henderson was insured under the homeowner’s policy of his parents. Plaintiff, Ohio Casualty Insurance Company, brought this declaratory action to determine whether liability under its policy was prevented by the exclusion for bodily injury “expected or intended by the insured.” The parties stipulated that Henderson was not the killer and that he did not intend that Hill be shot. Nonetheless it was clear that Henderson was aware of the risk that a shooting could occur and that he was a willing participant in the armed robbery. The trial judge granted summary judgment to the insurer. We reverse.

There is no evidence that Henderson “expected or intended” the injury caused Hill. The exclusion, therefore, does not apply. It is immaterial that Henderson voluntarily engaged in criminal conduct or that such conduct was reckless with respect to the risk of serious injury. The exclusion does not apply to criminal conduct or to recklessness. See generally Phoenix Control Systems, Inc. v. Insurance Co. of North America, 165 Ariz. 31, 796 P.2d 463 (1990); Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984); Farmers Ins. Co. v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983); Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). That one is a co-conspirator does not, standing alone, make one liable for the foreseeable criminal acts of a co-conspirator. State ex rel. Woods v. Cohen, 173 Ariz. 497, 844 P.2d 1147 (1992). Even if it did, however, that would not establish that one intended a particular consequence.

The dissent is puzzling. If the issue were should homeowner’s insurance cover armed robbers, we would agree with it. That, however, is not the issue with which we are presented. The insurer agrees that an [156]*156armed robber is covered unless the resulting bodily injury is “expected or intended.” That a result is risked does not make it intended or expected. The exclusion at issue is a common one. If it is read to include risks of bodily injury, it might exclude coverage for recklessness such as is involved in a driving while intoxicated automobile accident. When the dissent conclusively presumes intent to injure, it is simply saying that it will treat as legally true what it knew to be factually false. This is done to save an insurance company from its own failure to exclude in policy language what it now wishes it had and to deprive an injured person of recompense.

Reversed.

CHARLES E. ARES, J. Pro Tern., concurs.

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OPINION

LIVERMORE, Judge.

Padriac Hill was murdered by one of three armed robbers. The parents of Hill made a claim against one of the robbers, Joel Henderson. Henderson was insured under the homeowner’s policy of his parents. Plaintiff, Ohio Casualty Insurance Company, brought this declaratory action to determine whether liability under its policy was prevented by the exclusion for bodily injury “expected or intended by the insured.” The parties stipulated that Henderson was not the killer and that he did not intend that Hill be shot. Nonetheless it was clear that Henderson was aware of the risk that a shooting could occur and that he was a willing participant in the armed robbery. The trial judge granted summary judgment to the insurer. We reverse.

There is no evidence that Henderson “expected or intended” the injury caused Hill. The exclusion, therefore, does not apply. It is immaterial that Henderson voluntarily engaged in criminal conduct or that such conduct was reckless with respect to the risk of serious injury. The exclusion does not apply to criminal conduct or to recklessness. See generally Phoenix Control Systems, Inc. v. Insurance Co. of North America, 165 Ariz. 31, 796 P.2d 463 (1990); Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984); Farmers Ins. Co. v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983); Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). That one is a co-conspirator does not, standing alone, make one liable for the foreseeable criminal acts of a co-conspirator. State ex rel. Woods v. Cohen, 173 Ariz. 497, 844 P.2d 1147 (1992). Even if it did, however, that would not establish that one intended a particular consequence.

The dissent is puzzling. If the issue were should homeowner’s insurance cover armed robbers, we would agree with it. That, however, is not the issue with which we are presented. The insurer agrees that an [156]*156armed robber is covered unless the resulting bodily injury is “expected or intended.” That a result is risked does not make it intended or expected. The exclusion at issue is a common one. If it is read to include risks of bodily injury, it might exclude coverage for recklessness such as is involved in a driving while intoxicated automobile accident. When the dissent conclusively presumes intent to injure, it is simply saying that it will treat as legally true what it knew to be factually false. This is done to save an insurance company from its own failure to exclude in policy language what it now wishes it had and to deprive an injured person of recompense.

Reversed.

CHARLES E. ARES, J. Pro Tern., concurs.

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Bluebook (online)

927 P.2d 815, 187 Ariz. 155, 217 Ariz. Adv. Rep. 42, 1996 Ariz. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-casualty-insurance-v-henderson-arizctapp-1996.

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