Espinet v. Horvath , 157 Vt. 257 ( 1991 )

Johnson, J.

Defendant challenges a trial court summary judgment ruling that State Farm Insurance Company (State Farm) has no contractual obligation to defend or indemnify him in connection with injuries sustained by plaintiff whom defendant shot in the head. On appeal, defendant contends first that summary judgment was inappropriate because a genuine issue of material fact exists as to whether he intended or expected to injure plaintiff, and second that the injury was covered by his State Farm policy because he acted in self-defense. We reverse and remand with respect to the first issue, but affirm with respect to the second.

Defendant shot plaintiff after a long evening of heavy drinking. He alleges that during the course of an argument, plaintiff lunged towards him with a letter opener and that he became frightened, reached for his handgun and shot. He claims that he did not intend to hit plaintiff but rather aimed above his head hoping that “the big bang would straighten [the] flaky bastard out.”

In the ensuing action by plaintiff against defendant, defendant called upon State Farm to defend him. Defendant’s State Farm policy covers liability for damages arising from bodily injury and requires State Farm to provide a defense when a claim is brought for such damages. Coverage does not extend to a “bodily injury ... which is expected or intended by an insured.” The trial court ruled that, as a matter of law, defendant expected or intended to injure plaintiff, granted summary judgment, relieving State Farm from a duty to defend and indemnify, and entered final judgment dismissing State Farm from the case. This appeal followed.

When reviewing a motion for summary judgment, we apply the same standard the trial court used in ruling on the motion. To prevail, the moving party must satisfy a two-part test. It must establish that no genuine issues of material fact exist, and that the motion rests on a valid legal theory that entitles it to judgment as a matter of law. Both in the trial court and on appeal, the moving party bears the burden of proof.

Kelly v. Town of Barnard, 155 Vt. 296, 299, 583 A.2d 614, 616 (1990) (citations omitted). In determining whether a genuine issue of material fact exists, a court must give the nonmoving party “the benefit of all reasonable doubts and inferences.” Price v. Leland, 149 Vt. 518, 521, 546 A.2d 793, 796 (1988). But ‘“[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no “genuine issue for trial.”’” Kelly v. Town of Barnard, 155 Vt. at 305 n.5, 583 A.2d at 619 n.5 (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The trial court acknowledged that, under Vermont law, whether defendant expected or intended the injuries is a subjective inquiry, but applied an objective standard, holding that the conduct in question was “so inherently dangerous that an intent to harm [could] be inferred as a matter of law.” In State v. Glens Falls Insurance Co., 137 Vt. 313, 404 A.2d 101 (1979), we construed language similar to that in question here. We held that although an insured must be taken to have intended an injury where the circumstances indicate that he knew his act would damage the injured party, in equivocal circumstances subjective testimony may be relied on by the trier of fact. Id. at 317, 404 A.2d at 104. The issue is whether the circumstances in this case are equivocal or whether they are such that no rational person could doubt defendant knew he would hit plaintiff.

Defendant testified in his deposition that he was heavily intoxicated at the time of the incident. He calculated that plaintiff was eight to ten feet away from him, but coming towards him. He admitted that he intended to cock the pistol, point the gun in plaintiff’s direction, and pull the trigger but stated that he aimed over plaintiff’s right ear expecting to shoot about a foot or more over his head. Plaintiff was struck on the skull near the right eye at the tear duct. Defendant claimed he was very shocked that he hit plaintiff as he is an expert marksman who habitually competes in marksmanship with friends; he surmised that his drinking might have affected his aim. Defendant personally called the state police and explained what had occurred.

In Otterman v. Union Mutual Fire Insurance Co., 130 Vt. 636, 642, 298 A.2d 547, 551 (1972), we upheld a trial court finding that the defendant did not expect or intend to injure a victim when the defendant fired into a darkened room. The bullet went through a wall hitting a police officer in a contiguous room. The circumstances in Otterman are more equivocal than those in the case at hand. Nevertheless, giving defendant the benefit of all reasonable doubts and inferences, we cannot say that the circumstances conclusively indicate defendant knew he would hit and injure plaintiff. Accordingly, summary judgment in State Farm’s favor was inappropriate.

Moreover, we reject the trial court’s rationale that defendant’s intent can be inferred as a matter of law because he engaged in an inherently dangerous activity. The State Farm policy excludes only coverage for expected or intended injuries. It does not exclude coverage for injuries caused by the insured’s inherently dangerous activities. “[Disputed contract language, if clear and unambiguous, must be given force and effect in its plain, ordinary, and popular sense.” Glens Falls Ins. Co., 137 Vt. at 319, 404 A.2d at 105. Had State Farm wished to exclude from coverage injuries caused by inherently dangerous activities, it could have included an appropriate provision in the contract.

Defendant argues also that the court erred in ruling the contractual provision excludes from coverage intended or expected injuries resulting from acts taken in self-defense. Although defendant’s claim that he acted in self-defense may be relevant to the issue of his expectation and/or intention in shooting, it does not bring him within the coverage of the policy. The contractual language excludes any bodily injury intended or expected by the insured. Though justified, an injury inflicted by an act taken in self-defense may be expected and/or intended. To accept defendant’s theory that injuries inflicted in the course of self-defense are included in coverage, we would be forced to read into the policy that only injuries inflicted wrongfully are excluded. We may not read such a requirement into the contract. See State Farm Fire & Casualty Co. v. Marshall, 554 So. 2d 504, 505-06 (Fla. 1989) (per curiam) (refusing to rewrite the policy, agreed to by the parties, to cover intentional acts taken in self-defense); Lockhart v. Allstate Ins. Co., 119 Ariz. 150, 152-53, 579 P.2d 1120, 1122-23 (Ct. App. 1978) (no coverage under a policy excluding coverage for injuries expected or intended by insured where insured shot the victim in self-defense and testified he intended to hit him). Accordingly, we affirm the trial court’s ruling that defendant cannot rely on his claim of self-defense to defeat the plain language of the exclusion.

Affirmed in part, reversed and remanded in part.