Western Agricultural Insurance v. Brown

985 P.2d 530, 195 Ariz. 45, 282 Ariz. Adv. Rep. 3, 1998 Ariz. App. LEXIS 198
CourtCourt of Appeals of Arizona
DecidedNovember 10, 1998
Docket1 CA-CV 97-0464
StatusPublished
Cited by6 cases

This text of 985 P.2d 530 (Western Agricultural Insurance v. Brown) 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
Western Agricultural Insurance v. Brown, 985 P.2d 530, 195 Ariz. 45, 282 Ariz. Adv. Rep. 3, 1998 Ariz. App. LEXIS 198 (Ark. Ct. App. 1998).

Opinions

OPINION

NOYES, Judge.

¶ 1 Dr. Michael Kogianes shot his wife and her companion a total of nine times, and he said to the dying companion, “This is the last marriage you’ll ever break up.” Kogi-anes was convicted of two counts of premeditated first degree murder by a jury that rejected his insanity defense. Kogianes and the victims’ survivors then sought insurance coverage from Western Agricultural Insurance Co. (“Western”), which insured Kogi-anes for liability from bodily injury. Western filed this action, seeking a declaration that its insurance policy did not cover Kogi-anes for these two murders. The trial court granted summary judgment to Western, and we affirm.

I.

¶ 2 Kogianes’s policy with Western provided primary liability coverage of $300,000 for each person and occurrence; an umbrella rider provided another $1 million in coverage. The policy required Western to defend a claim or suit against Kogianes for bodily injury or property damage caused by an “occurrence,” and to pay up to policy limits all damages for which he was legally liable. The policy defined “occurrence” as “an unexpected and unintended event ... which results in bodily injury or property damage during the policy period.” The umbrella de[47]*47fined “occurrence” as “an accident ... during the policy term, which results in personal injury or property damage neither expected nor intended by [the insured].”

¶ 3 The policy excluded coverage for bodily injury or property damage that “is intentionally caused by any insured” or “[a]ris[es] out of a violation of a criminal law, except traffic violations, if committed by any insured.” The umbrella excluded coverage for injury or damage “arising out of an intentional act committed by or at [the insured’s] direction.”

¶ 4 In granting summary judgment to Western, the trial court found “that A.R.S. 13-807 would preclude Dr. Kogianes from any sort of recovery against the Plaintiff and based upon the ‘standing in the shoes’ argument, the other Defendants have no greater right against the Plaintiff than Dr. Kogianes would have____” Kogianes did not appeal, but the victims’ survivors (“Appellants”) did. We have jurisdiction under Arizona Revised Statutes Annotated (“A.R.S.”) section 12-2101(B) (1994).

II.

¶ 5 The question is whether, as a matter of law, the intentional acts exclusion applies to these murders. We review this question of law de novo. See State ex rel. Miller v. Superior Ct. (Stephens), 189 Ariz. 228, 230, 941 P.2d 240, 242 (App.1997).

¶ 6 An intentional acts exclusion is based on the principle that insurance is intended to protect against risk that is beyond the control of the insured. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 355-56, 694 P.2d 181, 185-86 (1984). The intentional acts exclusion also “articulates a public policy which forbids contracts indemnifying a person against loss resulting from his own wilful wrongdoing.” Id. at 356, 694 P.2d at 186.

¶7 Although intentional acts do not trigger the exclusion unless harm is intended, see Republic Ins. Co. v. Feidler, 178 Ariz. 528, 531, 875 P.2d 187, 190 (App.1994), where an “act was intentional and there was either a subjective desire to cause some specific harm (intent) or substantial certainty (expectation) some significant harm would occur, the insured will not be heard to say that the exclusion does not apply because the injury was more severe or different from what was intended.” Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 191, 939 P.2d 1337, 1344 (1997) (citing Meere, 143 Ariz. at 359, 694 P.2d at 189). This presumed intent to harm, known as the Steinmetz-Clark presumption,1 is conclusive if it applies. See Meere, 143 Ariz. at 357-58, 694 P.2d at 187-88; St. Paul Property & Liab. v. Eymann, 166 Ariz. 344, 349, 802 P.2d 1043, 1048 (App. 1990). Thus, coverage is precluded “if the insured’s claim that he did not intend or expect the injury ‘flies in the face of all reason, common sense and experience.’ ” Henderson, 189 Ariz. at 191, 939 P.2d at 1344 (quoting Auto Club Group Ins. Co. v. Marzonie, 447 Mich. 624, 527 N.W.2d 760, 768 (Mich.1994)). Obviously, when the insured has knowingly fired nine bullets into two people, a claim that he intended no harm “flies in the face of all reason, common sense and experience.” See id.

¶8 Appellants claim that Kogianes was insane and so was not responsible for his actions. Kogianes raised an insanity defense at his criminal trial, and he presented expert and other testimony in support of that defense. The Steinmetz-Clark presumption does not apply where the insured lacks the mental capacity to act rationally and to form the subjective intent to harm. See Feidler, 178 Ariz. at 532, 875 P.2d at 191. In considering an insured’s insanity defense, we have adopted the test set forth in Ruvolo v. American Casualty Co., 39 N.J. 490, 189 A.2d 204 (N.J.1963), as follows:

[I]f the insured was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct [48]*48in accordance with reason and while in that condition [acted] on an irrational impulse ... his act cannot be treated as “intentional” within the connotation of defendant’s insurance contract.

Globe Am. Cas. Co. v. Lyons, 131 Ariz. 337, 340, 641 P.2d 251, 254 (App.1981) (quoting Ruvolo, 189 A.2d at 208-09) (emphasis added).

¶ 9 Appellants argue that Lyons controls. We disagree. The jury that convicted Kogi-anes of first degree murder necessarily decided that he did not act on an irrational impulse. A person commits first degree murder if, “[intending or knowing that the person’s conduct will cause death, such person causes the death of another with premeditation.” A.R.S. § 13-1105(A)(1) (Supp.1997). “‘Premeditation’ means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.” A.R.S. § 13-1101(1) (1989).

¶ 10 An act cannot be both premeditated and impulsive. See Moore v. State, 65 Ariz. 70, 82, 174 P.2d 282, 290 (1946) (The jury “must not be misled into thinking that an act can at the same time be ... impulsive, unstudied, and premeditated.”); State v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mein Ex Rel. Mein v. Cook
193 P.3d 790 (Court of Appeals of Arizona, 2008)
Williams v. Baugh
154 P.3d 373 (Court of Appeals of Arizona, 2007)
Picaso v. Tucson Unified School District
154 P.3d 364 (Court of Appeals of Arizona, 2007)
American Family Mutual Insurance v. White
65 P.3d 449 (Court of Appeals of Arizona, 2003)
Western Agricultural Insurance v. Brown
985 P.2d 530 (Court of Appeals of Arizona, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
985 P.2d 530, 195 Ariz. 45, 282 Ariz. Adv. Rep. 3, 1998 Ariz. App. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-agricultural-insurance-v-brown-arizctapp-1998.