Allstate Insurance v. Freeman

Hood, P.J.

Defendants appeal as of right from two orders granting summary disposition pursuant to MCR 2.116(0(10) on plaintiffs declaratory action concerning its duty to defend its insureds, Marshall and Alonda Freeman, under their homeowner’s policy. In the still pending underlying tort action, Mary Helen Kelly sued the Freemans for injuries sustained in a shooting by Alonda Freeman on the Freemans’ premises. When defense of the tort suit was tendered to plaintiff, it sought a determination of liability coverage available to the Freemans under the policy. Plaintiff alleged that the following exclusionary provision in the policy was a bar to coverage:

We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person. [Emphasis added.]

While there are minor discrepancies between the Freemans’ account of the shooting and Kelly’s version, and while Alonda Freeman stated on deposition that she did not intend her shot to "hit any certain place,” she did agree with Kelly that she was firing in Kelly’s direction. Alonda Freeman was ultimately convicted in a criminal case of discharge of a firearm intentionally but without malice, MCL 750.235; MSA 28.432. Marshall Freeman was not home at the time of the shooting, but in Kelly’s amended complaint, she alleged that he was negligent in leaving a dangerous instrumentality in the house so that Alonda Freeman had access to it.

The trial court initially granted plaintiffs motion as to Alonda Freeman only, holding that coverage was excluded by the policy language cited by the plaintiff. Subsequently, the trial court ruled that plaintiff also had no duty to defend Marshall Freeman because the claim itself, damages for Kelly’s injury, was what triggered the exclusionary clause. Because the injury could reasonably be expected to result from Alonda Freeman’s intentional act, regardless of intent to injure, the trial court reasoned that the injury was not covered even if Marshall Freeman was negligent in leaving the weapon in the Freeman home. The defendants’ appeal challenges both grants of summary disposition.

As to the question of plaintiffs duty to defend Alonda Freeman, the Freemans argue that the trial court erred because Ms. Freeman negligently fired the gun in the direction of Kelly under the belief that she was acting in self-defense and without intent or expectation that she would cause personal injury. Defendant Kelly urges that the trial court erred in finding no duty to defend Alonda Freeman because the judge mistakenly applied an objective test instead of a subjective test to whether Ms. Freeman expected or intended the injury to defendant Kelly. Our review persuades us that both arguments are flawed under the facts presented in this summary disposition motion.

In reviewing a grant or denial of summary disposition under MCR 2.116(0(10), this Court considers the pleadings, affidavits, depositions, admissions and other documentary evidence available to it and gives the benefit of any reasonable doubt and views the evidence in a light most favorable to the party opposing the motion. Wright v White Birch Park, Inc, 118 Mich App 639, 646; 325 NW2d 524 (1982). Considering the evidence under these standards, we must nonetheless reject the Freemans’ self-defense argument. Assuming arguendo, for the purposes of this motion, that Alonda Freeman did not intend to injure Kelly, but merely intended to frighten her away, there is still no dispute that she pointed a loaded gun in the direction of Kelly and fired it at her at close range.

Defendants cite a number of cases for the principle which they claim controls the instant case, that an insurance policy clause which excludes intentional injury does not exclude intentional acts with resulting unintentional injury. Putman v Zeluff, 372 Mich 553; 127 NW2d 374 (1964) (boy, camping with friends, shot and killed valuable hunting dog that he mistakenly believed was wild dog that was menacing him); Morrill v Gallagher, 370 Mich 578; 122 NW2d 687 (1963) (insured threw cherry bomb into room where the plaintiff was working to frighten him, causing serious hearing impairment and nervous disorder); Vermont Mutual Ins Co v Dalzell, 52 Mich App 686; 218 NW2d 52 (1974), lv den 392 Mich 803 (1974) (seventeen-year-old son of insured threw pumpkin off overpass in order to frighten motorist who was instead struck, suffering serious facial and eye injuries); Hawkeye Security Ins Co v Shields, 31 Mich App 649; 187 NW2d 894 (1971) (third person’s intent to injure when he kicked injured in groin not to be imputed to insured who was also involved in a street fight with the injured where insured did not direct that the injury be done); Connecticut Indemnity Co v Nestor, 4 Mich App 578; 145 NW2d 399 (1966) (because of his tender years, 8 Vi year old who set fire to neighbor’s house did not intend damage which followed). However, each of these cases involved language in the insurance policy that excluded coverage "to injury caused intentionally by or at the direction of the insured.” In the instant case, the trial judge specifically ruled that her holding was based not on the "intentional” language, but on the "reasonably expected” clause in the exclusion.

Plaintiff correctly points to several of this Court’s more recent cases which recognize the distinction between injuries which are covered by a policy distinguishing "intentional” and "expected” acts. For example, in Group Ins Co of Michigan v Morelli, 111 Mich App 510; 314 NW2d 672 (1981), the insured was found liable for the intentional tort of assault and battery when he kicked a man in the face, breaking the man’s nose. The policy of insurance excluded bodily injury "expected or intended from the standpoint of the insured.” Citing Kermans v Pendleton, 62 Mich App 576, 580; 233 NW2d 658 (1975), this Court contrasted the cases drawing a distinction between intended tortious acts and unintended tortious results, held the distinction was without a difference, and found the injury to be the "natural, foreseeable, expected and anticipatory result of the intentional act of Morelli.” Interpreting a similar exclusion in Wright v White Birch Park, Inc, supra, this Court adopted the opinion of the trial court, wherein it was stated that "a reasonable person could 'expect’ injury to a person that repeatedly receives blows from fists thrown to a point where that person states he 'had enough.’ ”

More recently, in State Farm Fire & Casualty Co v Jenkins, 147 Mich App 462; 382 NW2d 796 (1985), the insured, who had pled guilty to second-degree murder in the placement of an explosive on the transmission of the plaintiffs decedent’s car, contended that the insurer had a duty to defend him because he only intended to frighten the decedent. This Court affirmed the trial court’s grant of summary disposition in favor of the insurer. The Court held that "where a policy excludes coverage for intended or expected injuries, a distinction should be drawn between the terms 'intentional’ and 'expected’.” Id. at 467-468. Citing the above-quoted language from Morelli, supra, this Court concluded that death or serious injury was the natural, foreseeable, expected, and anticipated result of the insured’s intentional act of placing the explosives. The Court was further persuaded that the insured’s guilty plea to second-degree murder conclusively established that he, at minimum, expected death or serious bodily harm to result.

Most squarely on point with respect to the instant case is Yother v McCrimmon, 147 Mich App 130; 383 NW2d 126 (1985). In Yother, we held that an injury resulting from the defendant’s hitting the plaintiff with a tire iron was not covered under the insurance policy even though the defendant alleged self-defense and claimed not to have intended to injure the plaintiff. The facts showed that, following a short exchange of words, the plaintiff grabbed the defendant by the shirt and pushed him against a wall, whereupon the defendant threw the plaintiff to the ground and grabbed a tire iron and struck the plaintiff on the head as the plaintiff got to his feet. The defendant pled guilty to a charge of aggravated assault. Construing a policy exclusion for bodily injury which is "either expected or intended” from the standpoint of the insured, this Court affirmed the lower court’s grant of summary judgment because the injury sustained by the plaintiff was "the natural, foreseeable, and 'expected’ result of defendant’s intentional act of wielding a tire iron.” Id. at 134.

In this case, as in Yother, Alonda Freeman was convicted of a criminal offense arising out of the incident. Under these circumstances we cannot possibly construe her actions to be in self-defense. Alonda Freeman acknowledged that she fired the handgun in the direction of Kelly, and under Freeman’s version, Kelly was only three to six feet away when she fired. While it might conceivably be argued that she did not intend to injure, to say that there was no expectation of injury is patently disingenuous. Although in Linebaugh v Berdish, 144 Mich App 750, 760-761; 376 NW2d 400 (1985), this Court was quoting from a New Hampshire case that allowed coverage in the particular circumstances of that decision, in this case we agree with the principle that "some acts . . . 'are so nearly certain to produce injury that intent or expectation to injure should be inferred as a matter of law.’ ” MacKinnon v Hanover Ins Co, 124 NH 456, 460; 471 A2d 1166 (1984).

Based on this same principle, defendant Kelly’s argument that an insured’s expectation of coverage must be determined by the insured’s subjective expectation of the policy rather than an objective standard is without merit. Moreover, defendants’ reliance upon remarks in Justice Levin’s dissent from the Supreme Court’s denial of leave in Iowa Kemper Ins Co v Kasper, 419 Mich 924; 355 NW2d 109 (1984), reconsideration den 419 Mich 927 (1984), to support their argument is misplaced. Justice Levin’s dissent in Kasper has no precedential value since the majority chose not to grant leave to review the case. In Kasper, this Court, in an unpublished per curiam opinion, affirmed a trial court’s finding that the defendant expected or intended injury when he beat a man with his fist and that the insurance company was absolved from coverage. Furthermore, the language in the insurance policy in Kasper was significantly different from the language in the instant case.

For these reasons, we find that the trial court was correct in finding no duty to defend Alonda Freeman in the underlying tort suit. The trial court’s grant of summary disposition against Alonda Freeman is affirmed.

We also agree with the trial court’s conclusion that, by the plain language of the exclusionary clause, Allstate has no duty to defend Marshall Freeman against the Kelly suit. While we agree with Kelly and the Freemans that, under the policy, Allstate has a separate and distinct duty to cover each of the insureds, we nonetheless agree with the trial court that in this case any duty to defend Marshall Freeman is solely derivative of the duty to defend Alonda Freeman under the policy. The claim in this case against Marshall Freeman may essentially be categorized as a negligent entrustment claim.

The tort of negligent entrustment is comprised of two basic elements. Perin v Peuler (On Rehearing), 373 Mich 531, 537-539; 130 NW2d 4 (1964). First, the entrustor is negligent in entrusting the instrumentality to the entrustee. Second, the en-trustee must negligently or recklessly misuse the instrumentality. The triggering element is such misuse of the item, for even if the entrustment was negligent no cause of action could arise without an injury caused by negligent use of the instrumentality. But, where an insurance policy exclusion precludes coverage for the particular injury, then it also excludes coverage for negligent entrustment of the instrumentality that caused the injury. In other words, we look to the underlying cause of the injury to determine coverage and not to the specific theory of liability alleged in the complaint. Illinois Employers Ins of Wausau v Dragovich, 139 Mich App 502, 507; 362 NW2d 767 (1984); Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62,65; 250 NW2d 541 (1976).

The best case to illustrate this proposition is Michigan Mutual Ins Co v Sunstrum, 111 Mich App 98; 315 NW2d 154 (1981), lv den 414 Mich 890 (1982). In Sunstrum, which involved an automobile accident, one of the theories was that Sunstrum was entitled to recover on the insured’s homeowner’s insurance policy on the basis that the insured had negligently entrusted his truck to his son. This Court found the applicable language of the homeowner’s policy motor vehicle exclusion clearly precluded coverage of the claim of negligent entrustment.¹

Likewise, in the case at bar, the trial court recognized that it is the claim, Kelly’s injury, which controls and not each tort defendant’s conduct. The plain language of the exclusionary clause provides that the insurer does not cover Kelly’s injury because that bodily injury may reasonably be expected to result from the intentional or criminal acts of Alonda Freeman or that bodily injury was in fact intended by Alonda Freeman. Because this underlying claim is not covered, Marshall Freeman’s negligence is irrelevant.

For the foregoing reasons, the decision of the trial court that Allstate had no duty to defend Alonda Freeman or Marshall Freeman in the underlying tort suit is affirmed.

T. M. Burns, J., concurred.

1 The Sunstrum Court was careful to distinguish Shelby Mutual Ins Co v United States Fire Ins Co, 12 Mich App 145; 162 NW2d 676 (1968), which concluded that the plaintiff insurance company was required to provide coverage despite a homeowner’s policy motor vehicle exclusion because that case involved the parental liability statute. This Court’s unpublished decision in Allstate Ins Co v York, decided February 13, 1985 (Docket No. 77870), relied upon by the appellants, is distinguishable on similar grounds.