Hochheim Prairie Casualty Insurance Co. v. Appleby , 2008 Tex. App. LEXIS 3271 ( 2008 )

Dissenting Opinion by

REBECCA SIMMONS, Justice.

The estate of Margaret Ann Sundby sued Stephen Seffel, a fellow resident at a nursing home diagnosed with dementia and Alzheimer’s disease, for an assault resulting in Sundby’s death. Sundby’s family also sued Charles Appleby, both individually and as Seffel’s guardian. The issue on appeal is whether the allegations in the petition against Seffel triggered a duty to defend on the part of Hochheim Prairie Casualty Insurance Company (“Hochheim”). Because I disagree with the majority’s conclusion that Hochheim has a duty to defend, I respectfully dissent to the denial of Hochheim’s motion for en banc reconsideration.

The standards for determining whether an insurer has a duty to defend are well-settled and set forth in the majority’s opinion. Here, Seffel’s policy provides coverage for “bodily injury” caused by an “occurrence,” which is defined in the policy as an “accident.” Because the policy does not further define “accident,” the term must be given its generally accepted or commonly understood meaning. Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex.2007).

An “accident” is commonly understood to be “an unintentional and unfortunate happening” or “something that happens unexpectedly.” Webstee’s DictionaRY 5 (4th ed.); see also Lamar Homes, 242 S.W.3d at 8 (“An accident is generally-understood to be a fortuitous, unexpected, and unintended event.”). As the Texas Supreme Court recently stated, “a claim does not involve an accident or occurrence when ... circumstances confirm that the resulting damage was the natural and expected result of the insured’s actions, that is, was highly probable whether the insured was negligent or not.” Id. at 9; see also Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 155 (Tex.1999) (holding that injury is “accidental” when it is “not the natural and probable consequence of the action or occurrence which produced the injury ... or would not ordinarily follow from the action or occurrence which caused the injury”) (internal quotation omitted); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827-28 (Tex.1997).

Sundby’s petition alleges Seffel assaulted her. The petition describes a pattern of “impulsive and aggressive behavior” by Seffel (including discharging a firearm at another person) that harmed or threatened to harm others. After he was placed in an assisted living facility, Sundby’s petition alleges, Seffel continued this pattern by “physically assaulting] other residents and caregivers.” Finally, the petition alleges that Seffel “knocked [Sundby] down” causing head contusions, and that three days later he “again knocked Mrs. Sundby to the ground, this time causing her to suffer an intracerebral hemorrhage,” resulting in her death some two weeks later.

“Assault” is, by definition, intentional or volitional — there is no such thing as a “negligent assault.” See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 n. 2 (Tex.App.-San Antonio 1999, no pet.). And the natural and probable consequence of “knocking someone down” is that the person “knocked down” may be injured, perhaps even fatally. Accordingly, Sundby’s allegations that Seffel “negligently assaulted” her do not allege an “accident” for purposes of Hochheim’s duty to defend. We must look elsewhere for facts describing an accident.

In assessing whether the “four corners” of Sundby’s live pleading potentially describe an “accident,” the majority focuses on the following allegations:

(1) Seffel was diagnosed with dementia and Alzheimer’s and began to engage in impulsive and aggressive behavior; (2) Seffel became unable to care for his person or financial affairs and became a danger to himself and others; (3) a temporary guardian of Seffel’s person and estate was appointed by the probate court; and (4) Seffel twice, over a period of three days, “knocked [Sundby] down.”

These allegations, the majority concludes, trigger the duty to defend because they arguably raise the “question of whether Seffel unintentionally knocked Sundby down, causing her injury.” (emphasis added). Yet none of the Sundby’s pleadings describe Steffel’s actions as accidental. Implicit in the majority’s conclusion is a determination that allegations of the insured’s diminished capacity necessarily entail the contention that the insured was incapable of “intending” his acts and that incapacity alone can convert an otherwise intentional act into an “accident” as that term is used in a liability policy. Based on the pleadings in this case, I disagree.

Texas courts have rejected claims that a defendant’s lack of capacity is dispositive of issues regarding the defendant’s ability to “intend” his actions. Although not a duty to defend case, in Bailey v.C.S., 12 S.W.3d 159 (Tex.App.-Dallas 2000, no pet.), the court of appeals held that a child’s minority status does not mean the child lacked the capacity to form the requisite intent to commit an intentional tort. In Bailey, the plaintiff sued for battery after being injured while babysitting a four-year-old child who unexpectedly struck her in the throat. Id. at 161. The appellate court reversed the trial court’s grant of summary judgment holding that the child's minority standing alone was insufficient to establish, as a matter of law, that he lacked the requisite intent to commit a battery. Id. at 162.

Similarly, in Wessinger v. Fire Ins. Exch, 949 S.W.2d 834 (Tex.App.-Dallas 1997, no writ), after consuming too much alcohol, Wessinger inexplicably and repeatedly struck the plaintiff in the face several times. Wessinger claimed that his conduct was “accidental” because he did not remember striking the plaintiff and never intended to injure him. Id. at 835-36. The court rejected Wessinger’s argument, noting that there was no evidence that Wessinger slipped, fell or reached out causing his fist to mistakenly come into contact with the victim’s face. Id. at 838. Wessinger’s impaired capacity to form an intent had no bearing on the issue of whether he “intended” to strike the plaintiff, and because the plaintiffs injuries naturally resulted from that conduct, the act was not “accidental” for purposes of insurance coverage. Id.; see also Metro. Prop. & Cas. Co. v. Murphy, 896 F.Supp. 645, 648 (E.D.Tex.1995) (holding that while an insured’s addictions may explain why he drilled holes in bedroom and bathroom walls to observe a female houseguest, these diseases or addictions do “not change the fact that [the houseguest’s] causes of action are based upon [the insured’s] voluntary and intentional conduct” of invading her privacy by looking at her through holes in the walls).

Here, like in Wessinger, the petition lacks any allegations that Seffel knocked Sundby down because, for example, he slipped, was pushed by another, was in the throws of impulsive behavior or even that he could not help himself because of his dementia. Seffel’s diminished mental capacity might explain why he twice knocked Sundby down, and it might mean that he should not be held culpable for those assaults, but, without more, it does not mean that those assaults were “arguably accidental.” Just as the child’s age in Bailey and the insured’s intoxication in Wessinger did not make their conduct “unintentional,” Seffel’s dementia or Alzheimer’s alone does not mean Seffel lacked intent to “knock [Sundby] down.” Nothing else in the four corners of the Sundby’s pleading suggests that Seffel’s conduct was accidental.

There may be public policy reasons for holding that an assertion of involuntary diminished capacity converts an intentional act into an accident for purposes of an insurer’s duty to defend, but such policy should be identified and addressed. Under even the most liberal reading of Sund-by’s petition, the allegations state that Sef-fel intended the act of assaulting Sundby and the damages alleged are the natural consequences of that act. Under Texas law, that means Seffel’s conduct was not an “accident” under the policy, and the trial court erred in rendering summary judgment that Hochheim had a duty to defend. I would, therefore, grant the Motion for En Banc Reconsideration, sustain Hochheim’s issues on appeal and reverse the trial court’s summary judgment.