*1
Alonda because she acted either or criminally injuries expected and the victim’s were the result of Also, policy her acts. because the term insured” in "an the unambiguously insureds, "any” to "all” refers or the exclusion- ary precludes coverage clause for Marshall Freeman. duty provide underlying of to The an insurer a defense in an depends upon allegations complaint tort action the in the and allegations arguably policy to extends even come within coverage. than, duty The to defend is and broader not necessar- of, ily duty indemnify. conclusive the insurer’s to A court must pertaining duty resolve doubt to the to defend in favor of However, equally duty it the insured. is clear an insurer’s indemnify depend upon solely to and defend does not the terminology plaintiff’s Rather, pleadings. used in a it is neces- sary to focus on the basis of an and not the nomencla- underlying ture the claim of in order to whether determine coverage allegations exists. The must be examined to determine substance, form, opposed complaint. the to the mere of the proper requires The construction of an insurance contract first exists, regarding coverage a determination whether then and precludes coverage. an whether exclusion Boyle Bhickley Justices and concurred with Chief Justice Riley and Justice Gkiffin. DiCicco, exclusionary requires application II. In the clause of case, subjective a of standard review. the facts On of this duty DiCicco, Metropolitan although may to has a defend it Mr. indemnify liable to him. proper analysis duty A of whether an insurer has a to defend indemnify provisions and an insured under of the a homeown- policy requires coverage er’s a determination whether exists policy. coverage exist, under the If is found to a further regarding determination must be made whether an exclusion- ary applies. analyzed, stabbing clause So the incident coverage provision case anwas "occurrence” under the of the policy. exclusionary unambiguous clause is as a matter of law. "expected” synony- the While mous, terms "intended” and are not objective logically an standard of is not man- review Rather, language exclusionary the dated. under clear of the clause, subjective of mind determination insured’s state necessary. explicit is In the to the absence [July- Mich subjec- contrary, appropriate must be standard of review the may for either actions finder of fact exclude tive. The subjectively expected injury or loss or the in which insured subjective consequence the insured’s loss the where the is regard the itself the resultant both to act and intention with harm. defend, Thus, in this has a to while the insurer case emerge indemnify may yet it is not liable to insured. unambiguous language is The insurer bound underlying provide in the claim. If it to a defense underlying claim that the insured intended established victim, yet may expected injure to the insurer have insurer failed to estab- to indemnification. Because the defense part injure intent on the of the insured lish either an actual presume facts as would allow the court victim such law, injure trial court erred in intent as a matter of insurer, declaratory judgment granting and case proceedings. further must be remanded for Archer, Cavanagh, with Levin, Justices concurred Brickley. Boyle Justices DiCicco,affirmed.
Freeman, affirmed. Griffin, dissenting joined by Riley, in Justice Justice Chief objective. DiCicco, of the standard review should be stated that question ambiguous. policy in is not The terms used are The meaning clearly policy given are a either defined within the analysis usage. proper A in with their common of accordance duty indemnify has a to and an whether an insurer defend provisions policy requires under of a homeowner’s insured the coverage policy. whether exists under the If a determination of exist, coverage found to a further determination must be is regarding exclusionary applies. made an clause In this whether case, coverage injury policy provides for caused an the occurrence, bodily in defined as an accident which results construed, injury. Broadly the the incident which resulted in However, injury policy an the also excludes was occurrence. injury expected coverage bodily that is or intended. Accord- for subjective ingly, prove a intention on the the insurer need not that, part injury, to the but rather under of the insured cause standard, expected objective insured intended or the an the case, injury the result the acts. Under the facts of this to from granted disposition plain- properly summary the for trial court tiff. exclusionary in contrast to the
Justice Archer
stated
Allstate
Ins v Freeman
DiCicco,
exclusionary
clause in
in
clause
Freeman contains
explicit language regarding the
of
relevance
the reasonableness
requires
clearly
application
of the insured’s actions and
of an
objective
However,
standard,
standard of review.
under such a
provision
ambiguous.
synonymous
is
The term "an” is not
“any”; thus,
apply
with
"an insured” should
to Alonda Free-
man alone. Marshall Freeman
not have
should
been excluded
policy’s exclusionary
under
terms
clause.
Cavanagh, concurring
part
part,
dissenting
Justice
in
in
duty
stated that Allstate
a
has
to defend Marshall Freeman.
fact
in
mere
that the
this case was
caused
dispositive
question
duty
act
excluded
is not
of
of
Allstate’s
against allegations
negli-
to defend Marshall Freeman
that he
gently
dangerous instrumentality
entrusted a
to Alonda Free-
man.
policy
"an
The term
insured”
the Allstate
exclusion does
provide
finding
a basis for
that Marshall Freeman’s liabil-
ity
negligence
simply
for
is not covered
because
negligence
Alonda Freeman’s
is
excluded.
the context
exclusion,
ambiguous;
reasonably suscep-
is
the term
it is
meanings:
Also,
tible of two
the named insured or all insureds.
light
whole,
when read
of the contract as a
there is a
coverage provision
unambiguously
failure under the broad
to
negligent
liability
exclude the
entrustment
of an innocent co-
spouse.
principles
interpre-
insured
On the
basis
of contract
alone,
duty
tation
it should be concluded
Allstate
has a
to
duty
defend Marshall Freeman. The
rationale
Allstate’s
duty
defend Marshall is derivative of its
Alonda
defend
unpersuasive
negligent
on its merits. The tort of
entrustment
type
a
focuses on
of conduct different than that which Allstate
sought
separate
to exclude. Under the
has
duty
Thus,
distinct
to cover each insured.
decision
Appeals
regard
Court of
with
to Marshall Freeman
should
and the
reversed
case remanded to the trial court for considera-
duty
against
tion of the
insurer’s
defend Marshall Freeman
allegations
negligence.
Levin,
Justice
stated that
DiCicco the insurer
had
Freeman,
Appeals
affirming
to defend. In
the Court of
erred in
*4
summary disposition
the
in favor of Allstate on the issue
duty
indemnify
whether it was under
or
defend
Marshall
addition,
genuine
In
Freeman.
there was a
issue of material
regarding
intentionally
fact
whether Alonda Freeman acted
or
criminally and whether she shot the victim in
or mis-
valid
taken
fact that
was
of
self-defense. The
she
convicted
the
discharging
intentionally,
misdemeanor of
a firearm
with-
but
432 Mich
Riley, necessarily
malice,
injury
resulting
establish
does
out
expected by
or
the insured.
was intended
that
(1987)
App 349;
Sinas, & Brake), Reisig, (by R. defendant P.C. David for in DiCicco. James Gravenmier pur- cases, In consolidated for C.J. these Riley, poses ing appeal, mean- we are asked decide the coverage exclusionary provision and
of a two liability a homeowner’s insurance clauses within policy. Freeman, Ins Co v we hold
In requires application exclusionary of a two- clause part objective may relieve itself test. An insurer (1) indemnify if and insured its defend (2) intentionally criminally, and either acted resulting injuries natural, the foreseeable, occurred as anticipated
expected, result of an in- or criminal insured’s intentional acts. agree Appeals case, with the Court we stant precludes Alonda exclusion Freeman. acted find Alonda Freeman. We either ly’s injuries intentionally criminally Mary Kel- "expected” result Alonda
were
"an
acts. We also hold that
insured”
Freeman’s
"any”
unambiguously
to "all” or
insureds
refers
*5
Ins v Freeman
Opinion by Riley, J.
under
Therefore,
homeowner’s policy.
the ex-
clusion also excluded coverage for Marshall Free-
man. Accordingly, we affirm the decision of the
of Appeals
Court
in
App 349;
Freeman.
Mich
(1987).
In Metropolitan Property Liability & Ins Co v DiCicco, we hold that a proper of whether analysis an insurer has a duty to defend and an indemnify insured under a homeowner’s policy requires a determination coverage of whether exists under exists, if policy, and then there must follow a determination of whether the exclusion- applies. case, clause In ary present we find the claimed incident constituted an "occur- rence” under the coverage provision of in- However, sured’s policy. unlike a of this majority Court, that, we would in hold order to avoid its to duty exclusion, defend and under indemnify the insurer must show that an objective insured expected” "intended or to injury result from those case, intentional acts. In this we find that objective insured would expect injury to result from the stabbing incident. assuming Even we agreed with the majority applied a subjective standard of review to the expected” "intended or exclusion, we would conclude subjective insured would "expect” to result in the Therefore, instant case. we would reverse the deci- sion of the Court of Appeals in DiCicco and rein- state the decision the trial court.1 1Apparently, Boyle inadvertently Justice believes that we referred Metropolitan duty to the issue the instant case as "whether has a indemnify,” Post, duty p to and not "whether has a to defend.” [it] contrary, specifically distinguished concepts 701. On the we two Therefore, Metropolitan duty section i. because we hold that has no case, necessarily finding defend in obviates its instant follows that hand, duty indemnify DiCicco. if we had On other defend, Metropolitan held that incorrect to refer to had a then it would be Metropolitan’s duty indemnify. to defend or Mich 656 Riley,
I. INTRODUCTION summary reviewing grant or denial 2.116(C)(10), disposition we consider MCR under depositions, pleadings, admissions, affidavits, documentary favor evidence other *6 party opposing A motion for sum- motion. the mary plain-
disposition the factual basis tests only allegations may granted if "there and tiff’s is genuine any fact, and material no issue as to judgment moving party to as a entitled 2.116(C)(10); the matter of law.” MCR is v Bar-
Velmer aga 385, 390; 424 Schools, NW2d 430 Mich Area (1988). procedure may utilize this An 370 insurer declaratory whether action to determine in a provide indemnify a defense for an must e.g., underlying See, tort action. in an insured App Wright Park, 639; Mich 118 v White Birch (1982). 524 325 NW2d provide company duty to
The of an insurance depends upon underlying tort action in an defense allegations complaint to and extends in the allegations arguably come within which "even Michigan coverage.” Co v Detroit Edison App 136, 142; 301 Co, NW2d Mutual Ins 102 Mich (1980). duty than, and is broader 832 The to defend duty necessarily of, to an insurer’s not indemnify. taining conclusive per- resolve doubt The court must duty in favor of the to defend to Fidelity Industries, & Cas- Inc v insured. Guerdon ualty 12, York, 18-19; 123 371 Mich Co of New (1963); Employers of Wau- 143 Illinois Ins NW2d App Dragovich, 502; 139 Mich NW2d sau (1984). equally However, clear that an it is indemnify does not defend and insurer’s depend solely upon terminology in a used necessary plaintiff’s pleadings. Rather, "it is for the focus on the basis Ins v Freeman Riley, nomenclature of the claim order to underlying . . . determine whether exists. must [S]o allegations be examined to determine the sub- stance, form, opposed as to the mere of the com- Ins, Employers supra Shep- Illinois 507; plaint.” at Casualty ard Marine Construction Co v Maryland Co, (1976). 62; 73 Mich It App NW2d against backdrop that we must decide the cases before us today.
II. METROPOLITAN V DiCICCO INS
A. FACTS AND PROCEEDINGS trial parties stipulated judge would decide the case upon the basis briefs and deposition transcripts. adopt the facts as set We forth the trial court: dispute There is little what occurred on
February 1984. DiCicco and Gravenmier were *7 college residents of the same hall. Gra- residence girlfriend in hallway venmier was with his and a glue in They Graham Williamson. Gravenmier’s door lock and had discovered
suspected DiCicco had prank. They committed the knocked and kicked at door, DiCicco’s and when DiCicco came out there was a scuffle in the hall with first Williamson and then with Gravenmier. Both DiCicco and Graven- mier landed blows, extinguisher glass of a fire sepa- cabinet was broken. Gravenmier and DiCicco fight abrupt end. DiCicco rated and returned came to an to his room and Gravenmier started girlfriend down the hall with his and Williamson. Within a short again time DiCicco came from his room
holding hunting folding knife with the exposed. called Graven- three-inch blade DiCicco girlfriend and his names and Gra- mier venmier offensive respond. Gravenmier ob- returned knife, put up and told Di- served the his hands enough in if Cicco effect that he were dumb Mich Riley, J. stomach. enough to use it on Gravenmier’s brave chest poking at Gravenmier’s DiCicco commenced admonition, repeating his left hand with "don’t mess with me.” He backed Gravenmier by grabbing against DiCicco Cicco knife Gravenmier reacted wall. throat, turning, pushing Di- by the felt the against the wall. Gravenmier then being withdrawn from his stomach. knife, any intent to use the DiCicco denies get claiming merely that he went the knife persons to be a away scare threat. No one observed him make a moving The poking knowledge ing the other he considered gesture of though the knife as to stab Gravenmier. right held in his hand and the knife was left. DiCicco denies was done with his stabbing. Immediately in follow- fact stabbing, DiCicco looked shocked. Graven- obviously expect mier the knife or he would not have did not DiCicco would use
engaged his act of bravado.
Subsequently Gravenmier commenced a tort ac- In that tion. Grand Traverse File 84-2119-NO. against Gravenmier allegations action Di- makes negligence i of in the course of the Cicco Count dispute him. inadvertently in that DiCicco stabbed alleges intentionally In Count ii he DiCicco in- flicted the stab wound. dispute date of the
There is no that as of the incident David DiCicco an insured under a was Plaintiff, homeowner’s insurance issued Metropolitan Property Liability & Insurance Com- pany, parents. to David DiCicco’s charges prosecutor The filed criminal assault DiCicco, against but dismissed eventually prosecutor charges. plaintiff argues charges Gravenmier with- dismissed because cooperation, held his fearful that a criminal con- possibility would eliminate that DiCic- viction damages insurer would awarded a civil pay co’s *8 support no record Although plausible, suit. there is for this theory. Ins v Freeman Riley, against
Defendant Gravenmier filed a civil suit Metropolitan plaintiff provided DiCicco, has in defense for DiCicco the civil suit under a home- policy father. owner’s insurance issued to DiCicco’s pending That case remains in Grand Traverse Circuit Court. seeking suit,
Plaintiff filed the instant a declara- policy stabbing tion that does not cover the and, incident between DiCicco and Gravenmier therefore, it does not have a to defend or indemnify underlying in the tort action. DiCicco granted summary disposition in trial court plaintiff. favor of appealed, Appeals
Defendant and the Court remanding reversed, the case to the trial court to determine whether DiCicco intended to stab Gra- granted appeal venmier. This Court in leave consolidation with Allstate Ins Co v Freeman.2
B. ANALYSIS
Initially,
determining
ap
policy
whether a
plies,
policy
we first must determine
whether
unambiguous
is clear and
on its face. We look to
and we construe
ambiguity
DAIIE,
in favor of the insured.
Powers
(1986).3
602, 624;
427 Mich
NW2d
case,
instant
forth the
sets
essential
phrases
type
terms and
in bold-faced
under con
spicuously
"Coverages ii,”
marked sections entitled
applicable
"Definitions,” and "Exclusions
to sec
(section headings
tion ii”
are also
bold-faced
(1988).
666
type).4
(1982).
440
The terms
355, 363; 314 NW2d
Mich
the policy
defined within
clearly
are either
used
their
in accordance with
meaning
given
itself
Fund
Co Ex-Cell-O
Fireman’s
Ins
v
usage.
common
1988)
(ED
1323,
Mich,
1317,
n 7
Corp,
702 F
Supp
(the
a term with a
of a definition of
omission
necessarily
render
meaning
common
does
Therefore,
ambiguous).
we con
policy
insurance
Metropolitan
pol
in the
provisions
clude that
Jones v Farm
unambiguous.5
are clear and
icy
Co,
Ins
24; 431
Bureau Mutual
App
172 Mich
Ins Co v
Mary
American States
(1988);
242
NW2d
(ED Mich,
Co,
Casualty
land
Supp
587 F
1549
1984).
where none
ambiguity
We cannot create an
Warehouse,
Inc v United States
Edgar’s
exists.
Co, 375 Mich
598;
Guaranty
134 NW2d
Fidelity &
Co,
Life Ins
Patek v Aetna
362 Mich
(1965);
746
Dimambro-Northend
(1961);
292; 106
828
NW2d
Construction,
Inc, 154 Mich
United
Associates v
Farm Bureau
306,
(1986);
547
313; 397 NW2d
App
326, 332; 356
Hoag,
Mutual Ins Co v
App
136 Mich
(1984).
tempta
Similarly,
reject
630
we
NW2d
unambiguous
mean
plain
tion to rewrite the
guise
interpretation.
ing
under
4
perti
provided,
provision
coverages,”
entitled "section
The
ii
part: "Metropolitan
pay on behalf of the insured all sums
nent
which
will
obligated
pay
damages
property
legally
as
the insured shall become
persons
bodily injury
sustained
other
because of
applies,
damage,
Likewise,
caused
an occurrence.”
to which this insurance
an "occurrence” as an
the definitional section defined
bodily injury.”
. .
results ...
"accident.
5 Metropolitan
"occurrence” differs from numerous
definition of
Metropolitan
exclusionary
in the
which include the
others
policy
The two clauses differ
their definition of "occurrence.”
within
"bodily
Metropolitan
does not include
because the
language.
interpreted
expected
Courts have also
. . .
or intended”
Michigan
Bigelow-Liptak
unambiguous under
law.
as clear and
clause
1976).
(ED Mich,
Co,
F Supp
But
Corp
1276
see
v
Ins
417
Continental
(Me, 1981);
Dodge,
v
Plaintiff contends that
the language of the insur
requires
ance
contract
the
determination
the fighting
whether
incident constituted
an "oc
currence” under
the
before
addressing any
provisions. See Franken
applicable
exclusionary
v Kompus,
muth Mutual Ins Co
667;
135
App
Mich
Casualty
Surety
Western
&
(1984);
However, present the Court of Appeals 8As the American court found: States The term "occurrence” includes an "accident.” Accident has according usage. often been Black’s courts defined to common (5th 1979) Dictionary Law ed. defines accident as: circumstance, event, happening; fortuitous or an event "[A] happening agency, happening wholly without human or if partly through agency, or circumstances human an which event under the unexpected by person unusual unusual, happens; fortuitous, unexpected, whom unfore- event, occurrence; happening or seen sual or unlooked for or an unu- unexpected attending operation perfor- or result necessary event; mance of a usual or act or chance or contin- fortune; unexpected gency; mishap; some sudden and event instant, taking place expectation, upon without rather than continues, something happening sual, progresses develops; something or unforeseen, chance; something unexpected, unu- phenomenal, extraordinary taking place according things events, range the usual course of out calculations; ordinary abnormally, that which exists or occurs *12 Mich 656 432 Riley, Kompus ground distinguished that on
case psychiatrist’s "Kompus merely homo- that a held patients a his intentional as sexual acts on were Consequently, reasoned, the Court matter law.” provi- unnecessary the exclusion to reach it was sion of the insured’s psychiatrist’s since term as that was acts were not "occurrences” defined in the According policy. Court of to the Appeals, cannot be reached "[t]he same conclusion present a act [because] in the case . . . homosexual stabbing can be.” unintentional; never a can We interpretation Appeals disagree. adopted the Court of If we Kompus, we effec- then would tively "accident” "unin- restrict definition of Rather, do. we find This we decline to tentional.”9 that accurately Kompus definition the last sentence of the consti- summarizes those events which undesigned accident an tute an "accident”: "an contingency, happening by casualty, chance, a things, something unu- usual course out anticipated, naturally sual, fortuitous, and not not expected.” Accordingly, we find ascer- to be taining may determine the insured’s "intent” an "acci- the insured’s actions constituted whether necessarily dent,” that an but it does not follow unintentionally act an to be insured must act an "occurrence.”10 supra, Cannon, Ins Co v
We also find Allstate characterizing particularly an instructive when present policy as an "occurrence” under event brought language. Cannon, action declaratory judgment did have for duty indemnify its insured under a defend Co, F States Ins an uncommon occurrence.” [American Supp 1552.] upon Similarly, See, the words "caused generally, we reject Couch, DiCicco’s intentionally” Insurance, argument 2d (rev Kompus ed), we must §§ definition. 41:7 et focus seq. solely *13 Allstate Ins Freeman Opinion by Riley, J. homeowner’s with the in- same underlying volved in this case. in Plaintiffs the action, Dennis, Louise L. Jackson and Ernestine insured) (the sued Kenneth Cannon for the shoot- ing Larry wounding death of James and the David Dennis defendant Lance Rutland with a rifle which he obtained from Eddie defendant gave Gaines. Gaines Rutland wanted the rifle the to Cannon because
gun protection. for A verbal fight street ensued between Rutland and James. fight, up After Cannon broke the he and Rutland went to Cannon’s home. Cannon handed the knowing to loaded rifle gry. Rutland was an- Rutland fight Rutland returned to the scene of the and warning fired two shots and a third in self-defense. Although Rutland said he never the rifle at aimed anyone, Dennis, he killed James wounded a bystander. pleaded guilty second-degree Rutland to Judge murder. United States District Court Cohn held: Avern [S]ummary judgment ap- in favor of is propriate operative in this case. The is Can- act handing Indeed, non’s a loaded rifle to Rutland. custody Cannon had land. Cannon also rifle. angry. of the rifle on of Rut- behalf purchased ammunition the . fight . . Rutland had been and was left the fight gét He scene of the the rifle. Cannon knew that. Cannon also knew Rutland returning was fight the scene of the with the argue rifle. It is fatuous to from injuries the shootings the were "accidents” as defined Michigan Supreme Court. While D. Dennis’s accidental, wounding may certainly have been discharge the rifle was not accident. [Allstate Cannon, supra Ins Co v at 33.] Although Kompus we find Cannon and analo- gous agree they bar, case at to the we represent examples of situations in which there 432 Mich Riley, present "occurrence” under
was no
instant case
the claimed incident
language,
to make
enough
not
to allow us
clear cut
ad-
analyses
Under
we
similar determination.
present
cover-
today,
vance
we conclude
construed.12 There-
age provision11
broadly
must be
fore,
incident constituted
hold that
claimed
we
policy.
under the
an "occurrence”
Thus,
exclusionary
clause
we turn next
reads:
plaintiffs
policy.
provision
That
"[The
property
bodily
policy does
cover]
EXPECTED OR
WHICH IS EITHER
INTENDED
DAMAGE
There ÍS
FROM THE
OF THE INSURED.”
STANDPOINT
*14
jurisdiction
in this
which
precedential
authority
coverage
excepting
holds
an exclusion
that under
. .
or at the
intentionally
. caused
"injury
insured,”
subjec-
the
insured must
direction of
an
intend both his act and
resulting injury
tively
indemnify.
its
to defend and
in order to avoid
578, 583;
Morrill v
370
122
Gallagher,
Mich
NW2d
Zeluff,
(1963).
Putman v
553;
Mich
127
687
372
(1964).
Co v
See also Transamerica Ins
374
NW2d
Anderson,
(1987);
441;
159
407
27
App
Mich
NW2d
Burch,
Turner v
303; 401
355
App
156 Mich
NW2d
Berdish, 144 Mich
750;
v
Linebaugh
(1986);
App
Bureau Mutual Ins Co
Farm
(1985);
400
376
NW2d
Rademacher,
914
v
200; 351
App
135 Mich
NW2d
Pendleton, 62 Mich
Kermans v
(1984);
App
Mutual Ins Co
Vermont
580;
(1975);
We are convinced that the exclusion in the present case differs from the "caused intention- ally” plaintiff persuasively and, exclusion as the argues, require that the exclusion does not a deter- mination of whether DiCicco intended to stab Gra- plaintiff express Rather, venmier. contends, only requires of the exclusion a determi- "bodily injury nation of whether . . . is . . . either expected agree or intended.” We and we so hold.
Although jurisdictions other have not reached a agree uniform issue,13 conclusion on this we with plaintiff "expected” that the addition of the word expands meaning intentionally” of the "caused *15 language. persuaded present pol We are that the icy represents attempt by exclusion an insurers to avoid the harsh results of Morrill and similar Casualty Surety cases nationwide. Aetna & Co v Freyer, App 3d Dec 89 Ill 617; 44 Ill 791; 411 " (1980). Accordingly, NE2d '[n]o word in a 1157 rejected surplusage contract should be if it 13See, generally, McIntyre, State Auto Mutual Supp Ins Co v 652 F (ND Ala, 1987); 957; Appleman, 1177 31 ALR4th 7A Insurance Law & Practice, Couch, (rev seq.; Insurance, ed), 4492 et 12 §§ 2d 44:285 et §§ seq. 432 Mich 656
674
Riley, ”
Corp,
Ex-Cell-O
purpose.’
serves some reasonable
supra,
Fire &
v St Paul
Geerdes
1325-1326;
pp
Co,
Marine Ins
730, 734; 341 NW2d
App
128 Mich
Draper Nelson,
380, 383;
v
254 Mich
(1983);
195
Truck
(1931).
See also Associated
We where a excludes expected injuries, a distinction should intended or the terms "intentional” be drawn between liability ex "expected.” In to avoid for an order injury pected injury, must be shown natural, foreseeable, expected, and antici was the [Jenkins, supra pated result of intentional act. Emphasis 467-468.14 at added.] appellate stated: As an Illinois court in this did more than exclude intentional case bodily liability injuries. property for It excluded damage expected from "which is either intended standpoint . . . these words insured.” two [T]hat "expected” synonymous cannot treated as "intended” and they if be no reason for insurer were there would since adding "ex- the insurance clause word have modified damages accomplished pected.” are not Even where *16 Ins v Freeman 675 by Opinion Riley, J. respect, agree we with those courts which have held that the purposes of an exclusion "[f]or ary clause an insurance policy the word 'ex pected’ that denotes the actor knew or should have known that there was a substantial probability certain consequences will result from his actions.” City of Carter Lake v Aetna & Casualty Co, Surety (CA 1979).15 1052, 604 F2d 8, 1058-1059 We also reject defendant’s contention standard we adopt preclude will today negligent acts the insured. As the City of Carter Lake court stated, supra at 1059, n 4:
The difference
"reasonably
between
foreseeable”
and "substantial probability”
degree
is the
of ex-
pectability. A result
is reasonably
if
foreseeable
there are indications which would lead a reason-
ably prudent
particular
man to know that
results could follow from his acts. Substantial
probability is more than this. The indications must
strong enough
prudent
to alert a reasonably
man
only
to the possibility of the results
occurring
but
indications also must be suffi-
cient to forewarn him that
highly
the results are
likely to occur.
Moreover, we note that our decision
is in
today
accord with those Court of Appeals
decisions
(1)
plaintiff
have held that
must show:
(2)
insured acted intentionally,
the insured
"intended or expected” injury to result
from those
Jenkins,
acts. State Farm v
Crimmon,
supra; Yother Mc
v
130;
147 Mich App
126
NW2d
(not intended),
design
plan
they may
be of such a nature
they
reasonably anticipated (expected)
should have been
[Freyer, supra
the insured.
at 620.]
"expected” requires
We
into
also take
account
the fact that
degree
proof
Wilson,
Bay
lesser
Ill
than "intended.”
State Ins Co v
(1983).
492-494;
726;
Ill
2d
71 Dec
Finally, must that we defendants also contend expectations intentions the insured’s determine viewpoint subjective the exclu from his because standpoint expectation "from sion states they Basically, have construe would us insured.” require exclusionary as to an so the insurer prove "yes said, I insured my expected to result from or intended Unfortunately, majority of this intentional act.” Court agrees on this How with defendants issue. plaintiff argues opinion, persuasively ever, in our adopt objective one an standard. As that we should court recognized: 16 today supported by Similarly, other at least one our decision Michigan Berry, Appeals 123 Mutual v Millers Ins Court decision. (1983). Cannon, 634; supra App at 33-34. See also
Mich In 333 NW2d 640, supra Berry, intended at after the Court held that insured actions, exclusionary provision it that "the at issue in also stated his finding present require did not same as the case] this case [the undisputed Coverage evidence that excluded based on the intent. was (Emphasis expected property damage which occurred.” Robertson added.) holding today, emphasize trial under if the our even We coverage preclude result not for "intended acts which court does natural, foreseeable, injuries,” may expected, anticipated it also satisfy injuries preclude the exclusion for under injuries.” "expected definition of Court’s Ins v Freeman Opinion by Rimy, J.
Probing one’s state of mind is an elusive task at Supplanting objective best. standard with a subjective determining standard for whether the act or conduct of an insured is "intentional” or "expected purposes apposite assessing or intended” for coverage sions provi- would emasculate making impossible preclude coverage for intentional acts or conduct absent admissions specific injure. insureds of a intent to harm augers against any expecta- Human nature viable Exchange Ins tion of such admissions. [Truck (Mo Pickering, App, 1982).] SW2d issue, In deciding this we take into account exclusion, under intentionally” the "caused nu- Court Appeals panels merous have avoided potentially requiring absurd results a lit- *18 an finding "subjective eral insured’s intentions.” For some example, Appeals panels Court have that, require-, held under the "intent to injure” exclusion, ment of the "caused "in- intentionally” tended tortious acts and unintended re- tortious a a . . . .” sults without difference [is distinction] Berdish, Linebaugh supra v Moreover, at 756. panels finding some have stated that of an necessarily encompasses intentional act the corol- finding that insured lary injury. intended Burch, supra. Turner v several recent Similarly, Appeals Court of have a decisions achieved similar result under the "caused intentionally” to act” from the by inferring the insured’s "intent Pendleton; very nature of his actions. Kermans v Rademacher, supra. Lastly, Farm Bureau Ins Co v panels some have avoided such theoretical exer- equated cises and the "caused intention- simply ally” language "expected with the or intended” Anderson; Ins v Line- exclusion. Transamerica Co Berdish, baugh supra. v find cases per- We these suasive, in their theoret- engaging but rather than 656 432 Mich Riley, drawing questionable inferences ical exercises or expecta- "subjective the insured’s to determine "expected or intended” tion,” we hold that of an the basis must determined on exclusion objective v Parr- Ins Co Mutual standard. Shelter (Mo 1983); Pickering, App, ish, 659 SW2d App supra; Smith, 13 Ark Ins Co v Fireman’s (1985); Ins Co 253-254; CNA 683 SW2d 90, 93-94; 666 SW2d McGinnis, 282 Ark (1984).18 case, would we
Under the facts of the instant granted properly conclude that plaintiffs the trial court disposition. summary Sum- motion for appropriate mary disposition no there is is when 2.116(0(10). genuine of material fact. MCR issue party returned that DiCicco Neither his room after the brawl with Gravenmier Rather, contends
ended.
a
it
unrefuted that DiCicco obtained
folding hunting
opened it,
knife,
and returned
he
barrage
of verbal
confront Gravenmier with
threatening
the knife.
motions with
attacks and
facts,
that,
under these
We find
inconceivable
"expect” injury
person
objective
to re-
would not
hunting
stabbing
with a
from his
Gravenmier
sult
agree
Therefore,
the trial court
knife.
we
with
expected
injury to re-
have
serious
DiCicco must
sult.
assuming
agreed with the defen-
that we
Even
adopted
subjective
of review
standard
dant and
Boyle
distinguish
attempts
McGinnis and Smith on
Justice
interpretation
provision
ground
they
of a
involved the
*19
that
injuries,
coverage
"expected
intended”
without refer
for
or
excluded
ence to the
However,
"standpoint
a more careful
of the insured.”
precisely
they involved
the same
reveals that
of these cases
review
exclusionary provision
The dissent
in Smith
as in the instant case.
Talley
provision
interpreting
in
v MFA
the same
that it was
noted
(1981),
Co,
271;
to the resolution of their disagree Accordingly, we with the action. dissent that we must remand the case to trial court subjective analysis. for a determination a under opinion, In our instant facts case present would the ideal circumstances which a subjective trial court should infer the insured’s a intentions as matter of law. The the defendants denied fact mere expecta-
their intentions surprise obligate us, tions nor does not should plaintiff underlying to defend suit. Other- simply obligate wise, an insured could an insurer by denying expected to defend he intended injury to result. "subjec
Rather,
would
we
hold
defendant
tively expected”
though
result
even
he
any
injury.
recog
denied
nized the
intent
This
has
Court
difficulty
determining
an individual’s
"
"subjective
'Intent
intentions”:
is a secret of the
mind,’
he
defendant’s
can disclose
his
declarations or
his actions and 'his actions
speak
People
sometimes
than
louder
words.”
Strong,
App 442, 452;
143 Mich
We because it addresses the circumstances of the instant case. Although the defendant denies intent to in- speak jure, his actions than louder those words. determining case, the instant we note that expectations” "subjective requires defendant’s degree proof "subjective lesser than his inten- grabbed never tions.” DiCicco contested that he folding hunting opened room, it, his knife from confront Gravenmier with a bar- and returned
rage threatening of verbal attacks and motions *20 Mich 656 Riley, J. Boyle’s con-
with the knife.19 to Contrary Justice Boyle fight en Justice contends that this characterization larges toward the insurer. The favorably findings most the trial court’s construes the record declaratory parties instant submitted the briefs, judgment upon deposition preliminary examina action and Granted, rely testimony. "liberty” and to review tion upon fact distort what Rather, we took findings judge his those same the trial based documents that However, upon. way of the record in our "summarization” no did actually happened Gravenmier. between DiCicco and reviewing testimony preliminary of Gra examination venmier, supported: we find that recitation of facts is well the above one, here, Q. you Would number take the knife exhibit exactly holding you to show us his it when came back how he was doorway? this, holding approximately A. with the He was it towards his like down blade, sharp edge body. Q. The blade was extended then? it, A. the left Yes. He I was not sure if it was with extended right hand. He I close. had it extended time was So, Q. you actually I see. him the blade? watched extend Yes, pretty close, A. I can’t recall well. And, Q. Okay. approaching you he were him is when extended blade? A. Yes. indicated, record, you Q. Okay. Then that he have holding facing point was blade to with him and the the blade left, right? his pretty belly. had to A. Yes. He held it close his him, Q. holding He was it close to himself? A. Yes. Q. say anything Did he about the fact that he had a knife his hand? No, A. he did not. Q. you Was it—was it that he had the knife his obvious hand? A. Yes. And, Q. Okay. you approach then continued him and did what? things A. I told him one of the last that he needed that was enough stupid stupid really if he to do and was and it was gut, stupid enough my you got knife if he was here is And, happened.
go my nothing I hands and ahead. raised Q. pretty point? him at that You were close to A. two Within feet. you Q. happened you—after that to him? What after said me, just kept saying A. He "don’t mess with don’t fuck with shit,” me, Snger anymore pushed your kept poking want to take his J don’t couple my me a of times and I was into chest and Ins v Freeman Opinion by Riley, up against round, just the wall in this he turned me around literally. Q. Okay. became—your up against You back became the wall that was on . . . A. ... in between room doors. *21 Q. Okay. The hallway wall was on the same side of the your room and his room? A. Yes. And, Q. poking with, it, you he is I take his left hand at that point because he has the knife the other hand? pretty A. I don’t right know. I am sure it was his hand that poking he was with. Well, Q. Okay. poking he was with one hand and had the other, anyways. knife in the Yes, A. um-hum. And, Q. got you up against with one hand he the wall? Yes, hashing A. with the other he was the knife about. And, Q. during if period you of time were not—what were you doing, anything, physically to him? Nothing. just kept A. backing up. I was—I Q. go At point the time—let’s back to the and time where you you away stated that were two feet from him and told "look, you that, Dave stupid don’t thing need to do that is a do” or words to that effect. A. Yes. Q. right. standing All doorway, He was in his is that correct? A. Yes. And, Q. you standing, obviously, hallway? were in the A. Yes. Q. Now, your right down the Cindy, hall to is Graham and is right? A. Yes. And, Q. way you going were to exit the . . . yes. A. .. . Q. left, your there, it—your What is down to room is down right? A. Yes. Q. And, way is there an exit down that to? A. Two stairway. more doors and then there is a Q. Okay. opened This is also an exit that was at the time this happened? event A. Yes. Q. happened you up against What after he had the wall then? pushing put against A. He was my me and he his left arm couple just pushing chest a hashing of times me back and was my my body the knife around face and around and across. Most kept straight places of the time I so I can’t recall all of the [Emphasis knife went. added.] 432 Mich Riley, did elusion, that DiCicco believe that to claim we his result from "expect intend” " fact, face of all conduct, 'fl[y] does in ” Boyle, J., reason, experience.’ common sense 93). McGinnis, supra at There- post, p (citing circumstances, fore, we would even under these expected” "subjectively hold defendant injury to result. reverse the decision
Accordingly, we would trial court’s and reinstate the Appeals Court Metropolitan. order in favor of declaratory V FREEMAN ALLSTATE INS CO III.
A. PACTS AND PROCEEDINGS seeks Company, Allstate Insurance plaintiff, its to defend and obligation a determination *22 under a homeowner’s insurance indemnify a Alonda Freeman issued to Marshall and in defen- shooting incident which Alonda shot Kelly. The Freemans dant-appellant, Mary Helen away February lived houses from On Kelly. two home, 25,1984, shouting at Kelly stood outside her came out neighbor. another Alonda Freeman to shut her "damn Kelly her home told This between provoked argument mouth.” Freeman, during Alonda which Alonda Kelly and However, her Freeman went back into home. inside, remaining she retrieved safely rather than handgun .38 her kitchen a loaded caliber from immediately on the reappeared cabinet and almost that without front Alonda Freeman testified porch. warning, gun of a she aimed the issuing any type Although fired. Alonda direction and Kelly’s injure intend to Freeman stated she did Ins v Freeman Opinion by Riley, Kelly, only she also admitted that she stood three away Kelly to six feet from when she fired the gun. Kelly The shot hit in the shoulder. Au- On gust 16, 1984, Alonda Freeman was convicted of discharging intentionally, aiming a firearm with- injury. out malice and with 750.235; MCL MSA 28.432.20 July prior 13, 1984,
On a month to Alonda Kelly Freeman’s case, conviction the criminal against battery a filed tort action for assault and damages Marshall and Alonda Freeman for result- ing February, shooting. from the August plaintiff 7, 1984,
On filed the instant alleged Alonda Freeman that she acted in self-defense. While we recognize argument conflicting testimony that and the there is as to started the .who precise person said, nature of what each we are not persuaded by Alonda Freeman’s characterization that she acted in self-defense. Kelly began claimed that Alonda came out of her home and swearing Kelly. Although began walking at she towards the Free- house, Kefly alleged mans’ never into her any that she did not make threats and upon Rather, Alonda, property. encroached the Freemans’ went home, got handgun, out, Kelly. came back and shot Whereas, Kelly began Further, argument. Alonda claimed that Kelly she stated that threatened to kill Alonda and her children. Kelly began walking toward the Freemans’ house. Alonda went into house, handgun, reappeared retrieved porch. on her front Kelly lunged Alonda testified Although allegedly that she fired after at Alonda. thought Kelly object hands, first Alonda held an in her she anything stated that pulled trigger. she did not see when she testimony persuades Our review of the Appeals us that the Court of concluding upon was correct in testimony presented, the basis of the evidence and properly rejected the trial court Alonda Free- Appeals man’s claim of self-defense. As the Court of stated: reviewing grant summary disposition or denial of under 2.116(0(10), affidavits, pleadings, MCR this Court considers the depositions, documentary admissions and other evidence avail- gives able to it and the benefit of reasonable doubt and light views the party evidence most favorable to the *23 opposing Wright, [supra the Considering motion. at 646.] standards, reject evidence under these we must nonetheless argument. dispute Freemans’ self-defense . . . is still no [T]here pointed gun that she Kelly a loaded in the direction of and range. [Freeman, supra
fired it at her at close at 352-353.] Mich Riley, J. declaratory seeking judgment a determination suit obligation plaintiff pay to did have upon of the inten- the basis defend Freemans Kelly September 26, 1984, tional-act exclusion. On attempt original complaint to her in an amended claim damages negligence. 12, for October On against judgment 1984, the court entered a default appear or an file Freemans for failure setting stipulated of aside answer. Plaintiff judgments 1984, 17, these default on December summary January 25, 1985, on moved disposition, seeking no no a had determination obligation indemnify. There is defend dispute that on the the incident the Free- date of a mans were insureds under homeowner’s issued Allstate. February Wayne 22, 1985, Circuit Court
On
Judge
granted plaintiff’s
Reilly
Maureen P.
motion
regard
However,
Freeman.
she
with
to Alonda
prejudice,
judgment,
Mar-
as to
reserved
without
nonspecific
nature of
shall Freeman because of
the
allegations
against
alleged
him.
Marshall
tort
at
time of the
Freeman was not at home
shooting
Kelly
15, 1985,
filed
incident. On March
complaint
underlying tort
in the
second amended
action
argued
in which
that Marshall Freeman
she
independent duty
care,
es-
breached
negligent
sentially
en-
amounted to a claim for
1985,
trustment of the firearm. On October
Reilly granted plaintiff’s
Judge
sum-
motion for
disposition
plaintiff
mary
did not
held
indemnify
to defend or
Marshall
have
underlying
tort
Defendants
Freeman
action.
Ap-
joint
appeal
filed a
peals
claim
the Court of
Appeals
1, 1985. The
on November
Court
disposition.
summary
the orders
On
affirmed
granted
declaratory
22, 1988, this Court
March
defendants’
application
appeal
delayed
for leave to
*24
Ins v
Freeman
by
Opinion
Riley, J.
in consolidation with Metropolitan
Property &
(1988).
Liability Ins Co v DiCicco.
The Court of Appeals held that exclu- sion requires application of a two-part test.21 The exclusion in the Allstate policy provided:
Exclusions—Losses We Do Not Cover 1. We do not any cover bodily injury property or damage may reasonably expected to result from the intentional or criminal acts of an person insured insured or which is in fact intended person. [Emphasis added.] The Court of Appeals held that Allstate may obvi- ate its duty to defend and under indemnify (1) exclusion if it can prove that the insured acted either (2) intentionally criminally,22 and resulting injury was reasonably expected to result from such intentional or criminal conduct. How- ever, Alonda Freeman contends that under second prong, the Court of Appeals erred in not party Neither contends that section of the applies provided pertinent this case. part: That section Losses We Cover pay arising We will all sums from the same loss which an person legally obligated insured pay becomes damages as bodily injury property
because of damage covered this part policy. may investigate any We or settle claim or suit for covered damages against person. person an insured If an insured is damages, provide sued for these we will a defense with counsel choice, allegations of our even if the are not true. areWe obligated pay any judgment claim or or defend suit if we already liability have by paying judg- exhausted the limit of ments or settlements. We 22 applicability do not address the of the exclusion. injuries actually exclusion also excludes coverage for in implicate portion
tended. This case does not of the exclusion. 432 Mich Riley, in- prove Alonda Freeman requiring Allstate and, that her alternatively, to injure Kelly tended find neither expectation controls. We subjective persua- Alonda Freeman proffered by argument sive. first that neither contends party
We note to Alonda ambiguous applies the exclusion *25 conclusion. The agree Freeman.23 We with this entitled, provision, conspicuous heading under a Cover,” forth, Not sets "Exclusions—Losses We Do not find in test. We do plain English, two-part "intentional,” terms, expected,” "reasonably the Moreover, several recent ambiguous. or "criminal” exclusionary identical interpreting decisions ambigu- in find any clause this case have failed to Co, Ins ity. See Barton Allstate v 2d 524 So Talbot, (La Allstate Ins Co v 1988); 690 F App, Foster, Ins Co v Allstate (ND Cal, 1988); Supp 1988) (D Free- Nev, (citing Supp 693 F supra); Gilbert, man, Ins Allstate Co 852 F2d 449 1988). (CA 9, that we find exclusionary language
Applying case, we unambiguous to the facts are of that persuaded, Appeals, as was Court the first Alonda Freeman’s conduct satisfies ele- as either an exclusionary ment or criminal act. The uncontroverted intentional that Alonda left testimony showed Freeman fight her home. How- scene of the and reentered inside, ever, remaining safely rather than she gun fired with a loaded .38 caliber and reappeared Kelly approximately who was three towards stated, Appeals away. six feet As Court of dispute is ... no "there Freeman] [Alonda Kelly pointed gun a loaded the direction 23However, argues ambiguous Marshall Freeman m(c) applies of this him. address this issue in section as it We opinion. Ins v Freeman Riley, range.” supra fired it at Freeman, her at close at 356. circumstances, Under these we affirm the holding Appeals of the Court of that Alonda Free- intentionally.24 man acted argument,
In her second Alonda Freeman as- apply serts that the exclusion does not because she injure Kelly. e.g., did not intend See, Morrill, supra; supra. rejected argu- Putman, We the same involving slightly ment different exclusion supra. doing, distinguished DiCicco, In so we "ex- pected” injuries from "intended” within the con- injuries text of an exclusion which excluded "ei- expected ther intended,” and held that "ex- pected” required degree proof a lesser than Accordingly, "intended.” we held that an insurer satisfy "expected could portion either or intended” by proving
of the exclusion expected, "natural, resulted as foreseeable, anticipated result [the insured’s] intentional supra act[s].” Jenkins, 468; at Morelli; Yother; Wright, supra.
Similarly,
requires
the Allstate exclusion
*26
analysis
intentional or criminal act. We find our
of
"expected injuries”
equally applicable
in DiCicco
in Therefore,
context of this case.
we hold that
"expected,”
"reasonably
within the context of
be
expected,”
meaning
connotes the same
as it does
"expected
may
in
its
or intended.” An insurer
obviate
duty
indemnify
to defend and
under the exclu-
24Similarly,
agree
Appeals
we also
with the Court of
that Alonda
Freeman’s
discharging
conviction in the criminal case for
a firearm
intentionally
but without malice satisfies the "criminal
conduct”
aspect
750.235;
of the first element of the exclusion. MCL
MSA
(ND
Talbot,
1988)
Cal,
28.432.
(conviction
Supp
Allstate Ins Co v
690 F
specifically
of child molestation constituted criminal acts
coverage
from
excluded
under
the identical
involved in this
case). A
declaratory
criminal
conviction
admissible in a
action in
order to determine whether an insurer has a
to defend and
indemnify.
445;
Anderson,
App
Transamerica Ins Co v
159 Mich
444-
(1987); Yother, supra
sion in the the case if the anticipated expected, natural, foreseeable, or criminal conduct. result of intentional argues that we must Freeman further Alonda subjective "expectation” from her view- determine point. appears authority of While there is a line "expected support this to view under jurisdictions, do in other we or intended” exclusion Rather, find that not choose to follow it.25 we unambiguous, "reasonably expected” is and stan- be requires application objective therefore, of expectation. dard of support conclusion, find of this we that injuries also excludes "actu-
exclusion
ally
person.”
opin-
In our
intended
an insured
requires applica-
ion,
of the exclusion
this section
subjective
tion of a
standard. As we stated
give
DiCicco,
to
words in an
we will
effect
all
pur-
they
if
insurance contract
pose.
serve a reasonable
persuaded
are
included both
We
that Allstate
phrases
its
in order to reinforce
intent
exclude
"subjec-
expected injuries”
"objectively
both
agree
injuries.”
tively
Therefore, we
with
intended
Appeals that,
the Court of
exclusion,
under
preceding
"reasonably
immediately
he”
"expected,”
of "from
in addition to
omission
standpoint
requires applica-
insured,”
objective
"expectation.”
test
tion of an
agree
Appeals
Accordingly,
Court
we
with
person
expect injury would
a reasonable
shooting
As
result from the
the
principle
incident
case.
Appeals
agree
stated,
with the
Court
"we
nearly
.
. .
"are
cer-
'some acts
so
expectation
produce intent
tain to
’"
injure
should
inferred as a matter
law.”
supra
Freeman,
356;
Ins
MacKinnon v Hanover
at
(1984);
Co,
456, 460;
Similarly, shooting incident this case constitutes mony such act. The uncontroverted testi- fight Kelly
showed after the initial with ended, home, Alonda Freeman reentered her re- handgun, .38 trieved loaded caliber and returned Kelly. issuing Then, outside confront without warning, Kelly Alonda Freeman shot towards from disposition summary a is A close distance. motion for proper under the facts of the instant case. MCR 2.116(0(10). disingenuous patently It would say injury shooting reasonably expected would not be supra from Freeman, 356; incident. at Linebaugh, supra supra 760-761; Cannon, at 34. at
Therefore, above, for the reasons discussed we Appeals holding affirm the Court of that under the policy, intentional-act exclusion the Freemans’ indemnify Allstate had no to defend or Alonda Freeman.
C. SUMMARY DISPOSITION MOTION—MARSHALL
FREEMAN argument Next, we address Marshall Freeman’s *28 432 Mich Opinion Riley, J. against Kelly the him that Allstate must defend arguments. raises two Marshall Freeman suit. First, separate distinct has a that Allstate policy, and, duty under the cover each insured to depends solely upon duty therefore, its to defend language, second, And, that his conduct. ambiguous insured,” and, therefore, must be is "an The Court of in favor of insured. construed Appeals rejected and held that both contentions duty Marshall to defend Allstate did not have Freeman. argu- respect Freeman’s first to Marshall
With Appeals analyses agree ment, holding of with Court we agree Kelly with and the "[w]hile we policy, that, Allstate has a under Freemans separate duty of to cover each distinct agree insureds, with the trial court we nonetheless any duty to Marshall defend case solely derivative of the defend Freeman Alonda Freeman under the policy.” Freeman, su- Although pra the Court determined that at 357. against essen- Marshall Freeman was the claim tially negligent entrustment, of "where an one precludes policy exclusion for insurance particular injury, then it also excludes cover- negligent age for entrustment of the instrumental- injury. ity words, In other the we look that caused underlying cause determine to coverage specific theory liability.” and not Employers supra Freeman, Illinois at 357-358. See supra Shepard Dragovich, 507; at Ins Wausau v Marine Construction Maryland Casualty Co, Co v example, Michigan supra Mutual Ins 65. For at App Sunstrum, 98; 111 Mich NW2d Co (1981), injuries Timothy suffered severe Sunstrum riding in a truck in an accident while automobile by, his and driven owned Warren Priesman son, Although uninsured, Michael was Michael. Ins v Freeman Riley, Warren had automobile insurance the truck through Associated General Insurance Company, subsidiary Michigan Mutual Insurance Com- Michigan pany. also provided Mutual homeowner’s insurance for Warren Priesman’s residence. Timo- thy Sunstrum brought alleging action Warren Priesman negligently entrusted the truck of Appeals, supra to his son. The Court at 103-104 coverage holding: denied *29 jurisdictions
Other
coverage
have denied
have
so
concluding
negligent
done
after
that
en-
vehicle,
action,
of a
trustment
is
motor
cause
a
of
from
general concepts
derived
the more
of own-
ership,
operation
of
use
a motor vehicle. These
although
decisions have reasoned that
the act of
entrusting a
negligently
tial
motor
vehicle
an essen-
(if
tort,
not the
element
primary)
of the
liabil-
ity giving rise to
actually
the tort is not
triggered
until
motor
in
negligent
vehicle is
used
resulting
manner
in injury.
jurisdictions
These
have concluded that because the accident occurred
off
premises
the homeowner’s
and resulted from
operation
vehicle,
the use
of motor
the clear
the exclusionary
of
clause
cov-
disavows
omitted.26 See also Allstate Ins Co
erage.
[Citations
Goldwater,
App
649;
163 Mich
415
2
NW2d
Farm Fire & Casualty
(1987);
State
Co v Huyghe,
App 341;
144
(1985).]
Mich
ing
Buchtes sued
Goldwa-
their
bikes. The
dirt
They
operation
negligent
of a motor bike.
for
ters
also sued
negli-
under a
Ronald
father
Goldwater’s
theory.
gent-entrustment
Plaintiff, the Goldwater’s
(Allstate
Company), filed a de-
Insurance
insurer
seeking
claratory
action,
a determination
indemnify
duty to
the Goldwa-
no
defend and
had
Appeals
held:
ters. The Court
insurance] ex-
[The Goldwater’s homeowner’s
involving a
for an
motor-
accident
cludes
ized
public
away
designed
use off
for recreational
land vehicle
roads,
insured,
occurred
owned
premises.
from residence
plaintiff
duty
has
to defend
claim
Since
no
negligent
against
dirt
use of the
Ronald Goldwater
duty
bike, it
no
father on
has
defend his
negligent
649.]
entrustment.
at
the claim
[Id.
Ap-
Similarly,
case,
the instant
Court
peals
on
the exclusion focused
concluded
"bodily injury”
con-
and that Alonda Freeman’s
precluded coverage
policy. We
under
duct
duty
agree. Therefore,
Allstate has no
defend
de-
Freeman
it has no
Marshall
because
conduct.
Alonda Freeman’s
fend
*30
However,
also
Marshall Freeman
contends
ambiguous
applied
him
exclusion is
"that
could mean either
because "an insured”
insured,”
"any
insured,”
insured.”
"the
plaintiff
Whereas,
contends that
"an insured”
pro-
"any
exclusion
means
insured.”
part:
pertinent
vides,
"[w]e
in
do not cover
damage
bodily injury
property
may rea-
expected
sonably
to result from the intentional
person
Any
. .
an insured
.
.”
or criminal acts of
ambiguity
of the in-
must be construed
favor
agree
Thus,
if "an insured”
sured.
we
ambiguous,
Allstate must defend Marshall
then
693
Ins
Freeman
Opinion by Riley, Freeman because "the insured” or "that
insured”
would refer to criminal or intentional acts of that
particular
insured,
case,
Alonda Free
man.
888,
Borbor,
American States Ins Co v
826 F2d
(CA 1987);
Casualty
Surety
9,
894
Western
&
(CA
Aponaug Mfg Co,
673,
Co v
5,
197 F2d
1952);
Casualty
Arenson v Nat'l Automobile &
Ins
(1955); Unigard
Co,
81;
45 Cal 2d
The crux of Marshall Freeman’s adopts opinion reasoning dissenting asserted Appeals
in the
Freeman,
Court of
decision.
supra
Although
at 361.
Marshall Freeman cites no
directly
point,
argues
case law
that,
on
he
in the
adopt
case,
instant
we should
several
rules of
insurance contract construction which this Court
applied
has
in the context of an automobile acci-
policy.
supra
Powers,
dent
agree
at 623-631. While we
principles
generally applica-
these
are
present
extremely
case,
ble
we
find
also
persuasive
several decisions
other courts which
addressed this issue in the context of an identical
supra
Gilbert,
exclusion.27 Allstate Ins Co v
App
453-454;
Condon,
at
3d
Allstate Ins Co v
198 Cal
Rptr
(1988);
148;
243 Cal
Allstate Ins Co v
(D
Supp
1988);
Foster,
886,
693 F
Nev,
Travel-
(La App,
Blanchard,
ers Ins Co v
431 So 2d 913
1983).
supra,
Gilbert,
In Allstate Ins Co v
a fourteen-
year-old
against
minor
filed
tort action
Albert
Margaret
Gilbert. The
Court of
United States
Appeals for the Ninth Circuit affirmed the lower
court decision which held that Allstate did not
27Conversely,
equally
we also find
instructive cases which have
distinguished
"any
"the insured” from "an insured” and
insured.”
Green,
(CA
6, 1987);
Allstate Ins Co v
831 F2d
Ins Co
Safeco
America,
McKenna,
516;
(1977);
Inc v
90 NM
have a to defend Albert argued Margaret However, of a minor. molestation negli- against only that the claims her involved required gence,28 therefore, and, the Allstate underlying action. Allstate Further, her in the to defend argument to identical she advanced an namely, Freeman, "the term that Marshall singular, person’ not the 'an insured connotes plural, applies only to the insured and therefore supra committing Gilbert, 454. at the willful act.” rejected However, contention: the court her Recently, appellate court was faced California problem policy interpretation. awith similar Condon, [supra], Allstate Ins Co v an automobile coverage of certain auto- insurance excluded regular use mobiles or furnished for the "available ” person "a 'of a insured.’ The issue was whether interpreted person to mean insured” should be only named or to include additional insured court that "a policy. insureds under the held equivalent person functionally was to insured” insured,” "logi- "any terms insured” and "an and persons cally of all the insured refers one (as distinguished "the in- policy” under the from insured). particular sured” refers to a only . agree . . with "an insured” We Condon policy. refers to all insureds under the [Id.] adopt analysis and We the Gilbert court excluding by for hold "that insurance damage intentionally in- 'an caused person,’ unambiguously excluded sured coverage Allstate damages intentional
for caused "Margaret negligently complaint alleged Specifically, cared Margaret negligent supervised minor], for and failing was [the prevent steps molestation acts sexual take Albert’s propensity upon committing, that he had a when she knew [the minor] Gilbert, supra at 450 acts.” intended to commit such added). (emphasis Ins v Freeman *32 Riley, J. any wrongful act of policies.” insured under the supra Gilbert, (citations omitted). at While Justice attempts distinguish Archer Gilbert, per- his effort misses the mark. We are Gilbert, proper suaded that a the analysis cases relied, it upon which and a usage correct the English language adopt mandates that this Court the conclusion plaintiff. advanced by Gilbert Justice Archer contends that the g in American States Ins court reversed its holdin supra. Borbor, vCo We unten find this conclusion First, able for several reasons. Justice Archer Borbor uses following quote from out of con Gilbert, text: "Judge Thompson, who wrote stated American States intended that '[h]ad wrongful act of policy, insured would void the it could have drafted and included unambiguously ” Post, language such in the pp contract.’ 734-735. agree We quotation applied with this as in the Borbor, Borbor context of the opinion. In United Appeals States Court of the Ninth Circuit addressed the issue whether an insurance individuals, policy covered defendants part nership, or both. The court addressed the limited interpretation meaning insured,”29 of "the and concluded if the insurer intended "any it insured” could have unambiguously drafted such Borbor language. court, The it and the cases which never upon, distinguished, relied nor had reason to distinguish, the term "an insured” from in "any sured.”
The Gilbert court never contested the validity proposition. However, this Justice in his Archer, distinguish Gilbert, effort to extrapolates from arose out of 533 of the California Insurance Code. § interpret California courts if it an exclu insurance code as were Therefore, policy. analysis sion an insurance Borbor court’s applicable present "the insured” is in the case. 432 Mich Riley, also the conclusion opinion court’s
Borbor uncertainty that no court reasoned held that "[t]he if the policy existed would have ambiguity insured’ 'any referred exclusion would have ” Post, 735. dis- p We rather than 'an insured.’ supports agree remotely that Borbor even inference. fact, the Borbor authority cited only
court, relationship between analyzed insured,” distinguished "an insured” and "any "a,” or "an” insured "any,” "the insured” from and, therefore, advanced supports position added) Borbor, (emphasis at 894 plaintiff. supra Comment, as a bar Spouse’s fraud quoting *33 L 549- & R recovery, Mary insurance Wm (1979). to distin- If the Borbor court intended insured,” then guish "an insured” from "any citing authority than would have done so rather we equated Accordingly, the two terms. that the Gilbert disagree with Justice Archer in Borbor.30 position court retreated from its Rather, the con- supports we believe that Borbor in Gilbert. Judge Thompson clusion reached that "an insured” Justice Archer also concludes guidance ambiguous sought because Gilbert which, Condon, supra from Allstate Ins Co v turn, Califor- from a of the support provision drew Post, Although 734. we p nia Insurance Code. from Condon agree sought guidance that Gilbert from the insurance support and that Condon drew "an in- code, suggests that disagree we ambiguous. sured” is Condon, the insurance an exclusion in Appeals the Ninth Circuit the Court of The dissent notes that year and that one of each other issued Gilbert and Borbor within Judge Thompson Judge Thompson opinion cases. If the court in both wrote the argued Gilbert decision as intended to restrict case, easily could assume he instant then we the dissent have done so. Ins Freeman Opinion by Riley, precluded coverage for nonowned automobiles "
were 'available or furnished for the regular use (em- person Condon, of a insured.’” supra at 152 added). phasis rejected The court argu- the Condon person ment that "a insured” was ambiguous and held that unequivocally person "a insured” means "any insured” and not "the insured.”
However, Justice Archer finds "it instructive” the Condon court upon drew a statutory provision support holding its that "an insured” agree means insured.” "any We rely upon specific wording of the opinion Condon to deter- mine the significance of the court’s reference the insurance code. As the court stated: person "A insured” the Allstate policy has a
plural connotation similar to "any insured.” "A person the logical logically insured” refers to one of all persons insured under the policy. There is no phrase singling method construe the any particular out erage person insured within the cov- policy. (c)(8) 11580.1, Insurance Code section subdivision provides analogous [Condon, another definition. supra Emphasis at 153. added.] Thus, the court support drew from the insurance code after only already concluding in preced- ing paragraph person that "a unambigu- insured” ously meant insured.” "any find Accordingly, we *34 that the Condon court referred to the insurance purpose stated, code for the exactly which it "provide[d] that it namély, analogous another defi- nition.” assuming
Even agreed we with Justice Archer’s analysis interrelationship between Gilbert, Condon, code, and the insurance we dis- agree with the conclusions drawn from that rela- tionship. We note that part California code is
698 Mich Opinion by Riley, J. every in insurance written California "equivalent exclusionary in the to an clause omitted). (citations supra policy.” Borbor, at 894 omission of a defini- This Court has held that policy does not tion from an insurance render ambiguous. respect, note that we term many differs from insurance law other California including Michigan, states, the Cali- because many seemingly Code fornia Insurance codifies principles and well-established of insur- obvious ance adopted analysis law. If of Justice we preclude case, in the instant we would Archer drawing involving upon cases ourselves from interpretation merely provisions insurance Legislature the California codified because agree them. We that "an insured” is ambi- cannot guous Legislature the California defined a because equivalent in a term code which considers plaintiff policy exclusion, whereas, in the instant a unambiguous same, did terms. case not define agree Furthermore, those we with decisions by relying reach the conclusion as Gilbert same upon usage English language. a correct See supra Foster, Co v at 889. This case Ins particu present in which the does not situation meanings. question word in has several See lar App Co, 600, Shumake v Travelers Ins Mich (1985). Rather, 607-608; this case 383 NW2d interpretation involves the sources of word uniformly "an” as an indefinite define example, that, Foster court stated article. For " indefinite article often used '[a]’ or 'an’ is an applied 'any’ more than one the sense of object; 'the’ is article which individual whereas supra subject spoken particularizes Foster, of.” (5th ed); Dictionary Amer 889; at Black’s Law 1982). (2d Heritage Dictionary ed, See Brooks ican (1969); v Zabka, 268-270; P2d 653 168 Colo *35 Ins v Freeman 699 Opinion by Riley, People Enlow, v 249, 261-263; 135 Colo 310 P2d supra (1957); comment, 539 agree. at 551. We Strong public policy supports this decision. Adher- usage ence to a correct of the English language in insurance contract promotes construction a uni- form, reliable, and reasonable foundation upon which policyholders and insurers alike may rely they when enter into a agreement. contractual case, the instant if we place word "a” or "an” "insured,” in front of the word then we must conclude that "an insured” unambiguously means insured.”31 "any
Accordingly, we hold that
under
ex-
case,
clusion
the instant
"an insured” unambig-
uously refers
"any
insured.”32 As
previ-
we have
held: "The
ously
expectation
that a contract will
be enforceable other
according
than
to its terms
surely may not be said to be reasonable.” Raska v
supra
Klym
Co,
Farm Bureau
Nida,
Mutual Ins
362;
at
(1985).
App
713;
Mich
matical niceties should not be resorted to without it would be but extending liberality length to an unwarrantable persons confound the articles 'a’ and 'the.’ The most unlettered indefinite, understand that 'a’ is but 'the’ refers to a certain object.” [Id., p 1324.] 32 Accordingly, reject we also the defendant’s contention that "[i]f ” Post, 'any,’ 'any,’ p Allstate had meant it should have said not 'an.’ rejected argument stated, 736. The Condon court 'any person "because precise insured’ have been a more term to would describe designed persons policy, an exclusion to cover all under the arewe required exclusionary to construe the clause in favor of the Condons. agree. This contention is without merit.” Id. at 154. We Mich Riley, J. interpretation today upon our decision We base a factual upon policy the insurance under proper Summary disposition dispute. *36 2.116(C)(10). Therefore, MCR these circumstances. in Appeals Court of the decision of the affirm we Freeman with Freeman. regard to Marshall
IV. SUMMARY A Freeman, Ins Co v In Allstate hold that we requires application clause exclusionary Allstate’s relieve may An test. insurer two-part objective aof coverage if provide to defend and duty itself of its either crimi- (1) intentionally the insured acted (2) as the resulting occurred injuries nally, and foreseeable, anticipated re- natural, and expected, hold acts. We also intentional of an insured’s sult to "all” or unambiguously refers "an insured” that Ac- policy. homeowner’s under “any” insureds of the Court affirm the decision we cordingly, in Freeman. Appeals
B Liability Metropolitan Property Ins Co & DiCicco, consti- incident hold that the claimed we coverage provi- "occurrence” under tuted an hold that an We also policy. insured’s sion of the the insured acted prove need insurer duty its to defend to avoid intentionally order How- exclusion. present under indemnify Court, we would ever, of this majority unlike to defend and that, duty its in order to avoid hold exclusion, must the insurer under indemnify or ex- "intended insured objective that an show Therefore, those acts. to result from pected” the Court decision of reverse we would Ins v Freeman Opinion by Boyle, Appeals in DiCicco and reinstate the decision the trial court. J., C.J.
Griffin, Riley, concurred with agree analyses Boyle, J. I with the and conclu- Riley Freeman, sions of Chief Justice write but separately express my DiCicco, viz., views Metropolitan Property Liability Insur- Company facts, ance although has a to defend on these emerge may yet Metropolitan indemnify not liable to DiCicco.
i THE ISSUE initially We are faced with the most basic appellate discerning *37 tasks for court—that of pre- the issue before the Court. While the issue parties Metropolitan sented the is whether has duty appears opinion defend, a to it in often the of the Chief Justice that the issue is whether Metro- politan duty indemnify.1 explained a to has As one treatise:
A duty to defend is if contractual and there is no contract The ily giving to duty defend there is no to defend. policy forth duty primar- sets the to defend as expecta- rise to the insured’s reasonable Therefore, protection. tion of duty to defend may though exist even an exclusion would be sufficient Couch, pay to the duty bar insurer’s to a claim. [14 (rev Insurance, ed), 51:35, pp 2d § 444-445.] duty duty defend, Because the like the to in- demnify, contractual, delineation of the course, premature It is of to consider indemnification on these facts, liability yet part since no has been found on the of DiCicco in underlying the claim. 432 Mich Opinion by Boyle, J.
scope duty to of the defend without reference general- policy as a the itself must be viewed mere quoted may ity. Indeed, even the delineation above sweeping. too be importance distinguishing
However, be- the duty duty to indem- tween to defend and nify beyond analysis policy lan- extends may guage complaint against an itself. A insured coverage, policy state facts within outside coverage, coverage. partly partly or within or outside generally, Couch, Insurance, See, 2d (rev ed), pp Moreover, 51:44-51:47, §§ 458-487. emerge may well that a conflict will between alleged Again, explained the in the treatise: and known facts. as is, general The rule—that determina- against or not made tion whether insured is one which the insurer is facts stated the claim the terms the contract required depends upon the to defend petition complaint in the or in the into against action the insured—does take divergence possibility may exist account the that a petition alleged in the between the facts to, they the actual facts as are known ascertain- by, able existence of such not the insurer. few cases which divergence was discussed do of them a uniform result. Some take show allegations complaint petition view that remain the insurer’s determinative of though facts to the the not defend even contrary, opposite look or the actual are apparently other cases favor while hold the insurer view and should allegations complaint exclusively to the petition proceedings against insured in the *38 it guided by is to actual facts of which but has should be fixed learns from the sources. whenever the the knowledge. duty of insurer to defend by which the insurer the facts insured, complaint, the other or duty It the to defend its insured has give the rise to ascertains facts Thus, policy. liability the [potential] of under Ins v Freeman Boyle, comprehensive personal insurer under liability policy obligating alleging bodily it to defend suits injury excluding coverage but caused as to intentionally by obligated the insured to de- was alleging fend an action assault since intentional damages there was a possibility that obtained were indemnity provisions policy covered in negligent able injury the the injured allege party could have amended might conduct and insured have been to show a defense of self-defense so [Id., §51:51, was not willful and intended. pp 495-501.] complaint against Nevertheless, whether the scope insured states facts within or outside the coverage, pled dispositive whether facts are those eventually known,
or we return to the must language of the itself whether to decide very duty question there is a to defend.2 This basic public policy, is not one of has but whether the insurer contractually provide bound itself to a defense. public duty contrast, found, In policy once a to defend is upon duty by comes to bear exercise of the the insured: Under liability indemnity policies in which defending
the insurer duty assumes insured, settling obligation against suits or claims this requiring is one due care and a strict performance case, good utmost faith. such duty insurer owes the to exercise reasonable defense, conducting care in damages resulting and is liable for
to the insured reason of its unfortunate, given question, It is the contractual nature of this incorporate the answer has failed to the entire in its 2.113(F). pleadings required as now under the court rules. See MCR Webster, Martin, Michigan Cf. GCR 113.4. See also Dean & Practice, 2.112, 5, p declaratory R Court Rules comment to the 243. This prior judgment Michigan action was filed date effective deciding question stipulated portions only Court Rules. We are on Court, policy. deciding question In so before the we of position course take no policies may as to whether additional in other distinguish subsequent to defend in cases. *39 432 Mich Boyle, J. Couch, duty.
negligence Insurance, performing such [14 (rev 51:78, ed), pp 2d § 565-566.][3] easy particularly the in this case to blend It is duty indem- the to defend with contractual coverage nify, set forth are both forms of because language. policy noted: The trial court same date of the dispute that as of the There is no under a an insured David DiCicco was incident homeowner’s insurance Metropolitan Plaintiff, policy issued Insurance Com- Property Liability parents. & It is also undis- DiCicco’s pany, to David practice pointer one commentator: As in the of observed providing policy judgment against thought generally liability is of as While insured, it coverage, has been indemnity for a policy emphasized liability insurance well, protecting "litigation the insured from the insurance” as By defending brought against expense unequivocal the ing policy clear and insurer has assumed him. suits of language policies, in most relieving expense obligation of defend- its insured of the alleging seeking damages and within an action Thus, expect reasonably should .... insured investigative legal employ re- vast and the insurer will its both the the mutual benefit of to defeat the action for sources insurer and the insured. that a conflict arises noted in a number of cases It has been intentional insured under the between the insurer and the clause, escape liability injury if the insured’s acts would since the insurer exclusion intentionally are determined to have been punitive injury, in fact lead to an award done to cause damages against and insured, be most the insured would while "coverage” having and the cost of defense interested in the amount has been held that tual conflict of interest between circumstances, for both him, against judgment .... It if of a rendered deprived of his contrac- the insured is not provided by right when a the insurer to have a defense the described the two arises under suggested such a that when has been arises, informed of the the insured must be conflict of interest nature of the conflict and independent attorney accept right given an either to or to select selected the insurer defense; attorney choose his own if the insured elects to to conduct his himself attorney, the reason- the insurer must assume provided. Construction costs of the defense [Anno: able application expressly provision liability insurance insured, expected by ALR4th excluding injuries intended or 957, 976.] Freeman Ins Opinion by Boyle, part puted pertinent [specifies]: ii Section Coverages: liability
Coverage f—personal Metropolitan on of the insured pay will behalf *40 legally all sums obligated injury age, the insured shall become which bodily damages pay to because dam- by persons property other or sustained applies, by to this insurance caused which right the Metropolitan occurrence. duty, shall have attorneys expense, at to defend with its own compensated Metropolitan, any selected seeking damages on ac- against suit count of such even the insured damage bodily injury property or allegations if of the suit are of the . groundless, or fraudulent. . false applicable ii to section Exclusions Metropolitan does not insure: liability f—personal 1. . . . Under damage Bodily injury property f. is which EITHER EXPECTED OR FROM THE INTENDED STAND- OF THE POINT INSURED. through
Plaintiff advises the Court its brief that the further states:
Definitions: accident, including injuri means an Occurrence ous results, conditions, exposure during to damag term, bodily injury property
e.[4] undisputed duty this case is duty indemnify, defend is with the coextensive operative at least insofar as the facts are the same complete copy policy and The trial court was also without a of the additionally policy noted that the defendant had not admitted that above-quoted contained the definition of "occurrence.” How ever, appeal on has conceded that the definition is defendant policy. contained in the 432 Mich Boyle, coverages.5 operative However, facts
for both divergent, may quite in- because the liability demnify only found in the after arises underlying claim. judgment declaratory action of insurer presently concerned was tried
with which we are stipulation parties jury by on without transcripts deposition and the written the basis of although arguments Thus, our resolu- counsel. upon findings tion of this matter is based opinion court, of Chief the trial see Justice Riley, emerge p may yet ante, at trial different facts point, underlying on the only claim. At this we know "any has denied intent to use that DiCicco expect the knife” and that Gravenmier "did DiCicco would use the knife” an actual stab- p bing. opinion ante, See of Chief Justice Riley, 664. It this factual framework that we is within coverage question must resolve the limited duty to defend.
ii A. INTRINSIC ANALYSIS agree in the instant case is I that the incident cut” as to allow us to conclude that not so "clear Thus, I there was no "occurrence.” believe that logical step is to determine whether "such next bodily unambiguously injury” ex- falls within the note, on, my preface 5 I do not decision to the do but base applicable "Metropolitan to section n: does not insure.” exclusions Because the meaning indemnify common of "insure” is to or to secure (5th ed), 726; indemnity, Dictionary p see Black’s Law The Random Edition, English Language, Unabridged p Dictionary House arguable apply do not to the to defend. it is However, that the exclusions argued point, necessary it the defendant has not this nor is my decision. Freeman Ins v Boyle, 1(f).6 in this task I am assisted of elusion § at language the policy opinions Court’s own Co, Bureau Mutual Ins Raska v Farm issue. In (1982), we ex 355, 361-362; 314 NW2d Mich plained: valid as policy is in an insurance Any clause clear, not in contra- unambiguous and
long as it is public policy. vention of ambiguous when its be is said to A contract in different reasonably be understood may
words ways. contract of insur- reading of the entire If a fair is cover- there to understand ance leads one age and another circumstances particular under there is to understand reading it leads one fair of the same circumstances coverage under no construed ambiguous and should be contract against coverage. of and in favor its drafter or contract, inartfully worded Yet, however if a one inter- of but arranged, fairly admits clumsily or, ambiguous said to be may it be pretation indeed, fatally unclear._ opinion irony in the I find some the outset that observe at 6 I must it that Gravenmier’s insofar as holds Chief Justice of the constitutes "accident,” "occurrence,” yet within the rele falls or an Justice, adopts opinion it the Chief of As I read vant exclusion. the definition Supreme Court in as set forth of an "accident” York, Casualty 371 Mich Fidelity & Co of New Industries v Guerdon Appeals (1963), adopted by of 12, 18-19; the Court 123 NW2d 667, 678; App Kompus, 135 Mich Ins Co v Mutual in Frankenmuth " place (1984), without the 'anything . . . takes 354 NW2d design intentional expectation or foresight and without insured’s ” language reference part.’ exists without This on his causation "the issue. exclusion at standpoint critical the insured”—the Justice, "expected must or intended” by the Chief If asserted intended, i.e., reasonably expected meaning, given objective or "accident” "occurrence” appear the definition it would accept a method I find difficult candidate. be the better would foresight the insured’s "without interpretation or subjective the the words under which in the absence of expectation” to allow are deemed *42 expected intent, intended from or words "either while the preclude unambiguously standpoint deemed insured” are of subjective intent. of a in the absence even 432 Mich Boyle, To it emphasize policy language, the relevant ex- cludes: Bodily injury property damage which is ei- expected standpoint
ther the insured. or intended from the complex provisions There are no or contradictory Moreover, this exclusion. is difficult to justify provision a search for this as a ambiguity whole, since neither nor either of party the other opinions suggests might of the Court one which preclude coverage.7
The Chief Justice
reasons
the use of both
"intended”
"expected”
re-
unambiguously
quires
objective
"expected”
an
construction
order to avoid a superfluous
reading of the latter.
However,
this
reading ignores
phrase
"from
which,
standpoint
of the insured”
by the ab-
sence of a comma following "expected,” presum-
modifies
ably
"expected”
both
and "intended.”8 Cf.
Co,
Buntz v General American Life Ins
136 Pa
(1939).
284;
See,
Super
damage reasonably be may or criminal acts of an result from the intentional is in fact intended an person insured or which person. [Emphasis insured added.] exclusion, the of the word In addition the Allstate objective "reasonably” clearly imparts standard an contrast, "in intended.” in contrast to fact coupled "reasonably” with of the word absence modifying standpoint the in- clause "from imparts subjective clearly in the standard sured” Metropolitan exclusion. reading of the Metro- that a fair
I do not believe support objective politan stan- would exclusion lan- and therefore conclude dard 432 Mich Boyle, J. Moreover, subjective. guage unambiguously agree Court given that all members of this it is unambiguous, I believe that the exclusion is I there- point. to belabor would unnecessary plain easily fore the exclusion its apply Michigan Mutual sense. Wertman understood Liability Co, 508, 510; 255 267 Mich NW (1934). plain easily in its apply
To the exclusion sense, *44 whether only understood we need determine in- expected was either Gravenmier’s so, doing standpoint tended from the of DiCicco. we must the facts as found the trial apply Justice, ante, p opinion court. See the of the Chief regard following 664. relevant in this are the Most findings of the trial court: knife,
DiCicco denies intent to use the claiming get merely that he went to the knife to persons other he considered to be a away scare threat. No one observed gesture
him make moving The poking knowledge ing mier though the knife as to stab Gravenmier. right
knife in his hand and the was held left. DiCicco denies was done with his stabbing. Immediately follow- fact stabbing, DiCicco looked shocked. Graven- obviously expect did not DiCicco would use engaged in the knife or he would not have of bravado. his act require findings It is obvious that these will expected the conclusion that DiCicco or intended I to Gravenmier. therefore conclude injure plaintiff insurer has failed to establish that 1(f) bound, Metropolitan exclusion is relevant. § general coverage provision, unambigu- Ins v Freeman Opinion by Boyle, language policy, provide a defense of its own ous underlying in the claim.9 to DiCicco disposition Again, emphasize I declaratory judgment no determina- claim involves Metropolitan’s duty indemnify. If it is tion of established intended politan may underlying claim that DiCicco injure expected Gravenmier, Metro-
yet defense to indemnification. have a
B. EXTRINSIC ANALYSIS
drafting
long held,
has
insurers
As this Court
policies
which is clear
must use
e.g.,
laymen. See,
Wadsworth v
understandable to
240,
Co,
259; 84
York Life Ins
349 Mich
New
(1957); Century Indemnity Co v
NW2d
(1958).
Schmick,
627;
further However, parties expected both have to stab Gravenmier. tended present premise appeal the trial fact to their on no court’s been content relief, requested principally finding. Metropolitan either has findings. involving alternatively, a remand for further 432 Mich Boyle, Metropolitan to
I have failed concluded that duty clearly preclude draft its exclusion so as to Indeed, to defend the insurer to I have concluded DiCicco. requires policy clearly unambiguously provide Thus, these facts. a defense on there is no need to extrinsic evidence to resort meaning Id., 15:57, § ascertain the of the exclusion. (Since pp prior negotiations 298-302. are as- all merged contract, sumed to policy the written itself the contract between constitutes parties, meaning and, clear, if the it alone must is construction.)10 assuming However, be looked to in arguendo ambiguity that an and therefore exists admissible, I that extrinsic evidence is would nev- Metropolitan ertheless hold that defend under this has a policy. Perhaps the most common of extrinsic aids to concluding, In so I am mindful of Professor Corbin’s admonition: holding Before that the words of a written contract are so "plain interpreta- and clear” that in aid of extrinsic evidence admissible, tion is not the court’s attention should be calléd to holding substituting linguistic the fact that in so it is is own experience contracting parties. education and such contract for the for that cases, says the court often that "a court can not make a parties”; parties but when it holds the bound meaning "plain in accordance with a that seems and clear” to convincing parties the court and excludes gave evidence that meaning, doing exactly the words a different it is what making that it declares can not do: court is contract for Corbin, parties they did not themselves make. [3 Contracts, 542, pp § 111-112.] But Professor also observed: Corbin doubt, clients, supporting Without a the interests of their urge upon interpretations counsel often the court of the lan-
guage of a contract that are far removed from common and
ordinary usage,
producing any
without
substantial evidence
party
gave
that
meaning
the other
the transaction
the unusual
suppose
to the
or had
reason to
that the
judge
justified
party
first
did so. In such cases the harassed
plain
saying
interpretation.
justify
are too
and clear to
the words
such an
[Id., p
112.]
*46
Ins v Freeman
Opinion by Boyle, policy or other
of an insurance
the construction
pp
usage
id.,
§
and custom. See
15:60,
contract are
supra,
pp
Corbin,
§
228-239. It is
307-308; 3
large
light
number of
I have reviewed the
par-
foreign jurisdictions
cited
cases from
reasoning
possible
is,
course,
of
It
that the
ties.
of
insight into relevant
courts would also add
other
methods of intrinsic
possi-
analysis. Moreover, it is
may
weight
authority
of use in
of
ble that
resolving
ambiguity.11 However,
the sheer
ambiguity
weight
authority
cannot create an
of
meaning
policy
plain
ordinary
the
language
none would otherwise
exist.
where
knowledge
charge
Again,
the insured
we
with
charge
provisions.
in-
do not
We
knowledge of a law
the accumulated
sured with
explained by
library.
Corbin:
As
Professor
profession
of a trade or
makes
When a member
member,
usage
a contract with one who is
operative against the latter unless
or custom is not
it
has such reason to know
he
fact knows
that he
reasonably
believes
member
though the transaction
knows it. This is true even
is one that
profession.
the trade or
regularly
occurs within
Corbin,
557, p
supra, §
248.]
[3
Here,
that the insured in fact
there is no evidence
usage apart
know of a
from
knew or had reason to
the
plain
ordinary meaning
the words of the
reviewing
Thus,
as to
in
assuming arguendo
the case law
exclusion.
usage,
only
both that
I am
11This,
course, additionally
the cases have con
assumes
Unfortunately,
policy language.
of cases
in a number
strued the same
Justice,
significantly.
policy language
varies
cited
the Chief
McGinnis,
(1984);
90;
See, e.g.,
282 Ark
policy of interpretation it to the relevant language in this case. policy Archer, in of Justice explained opinion As to 1966 included language prior standard which was coverage bodily property for or injury post, Archer, opinion "accidental.” See of Justice cover- to exclude pp interpreted 723-725. This was two but age "expected injury, or intended” problems arose. in- or problem "expected
The first with the it be was whether should interpretation tended” or standpoint injured party viewed from the of the from of As one commentator has the insured. explained: prior to the 1966 split authority A existed happening as to whether of an acci- revisions dent standpoint of determined from the must be standpoint from the of the victim.
the insured or Where the question from the of accident is viewed victim, standpoint of the it seems obvious that personal injury property or almost all instances of damage appear to be The victim would accidents. personal injury property or of an assault or other expect damage generally does not intend or supra, expected Exclusion happen. [Rynearson, personal injury property damage or or intended deñnition of the standard under occurrence comprehensive general liability policy. 19 Forum (1984). Liability insur- 521-522 See also anno: ’’accident,” injuries, as an or there- ance: Assault sustained, ”accidentally” from as within clause, 1090, 4, p 72 ALR3d § 1100.] language to interpretation of the Obviously, in- "expected require only standpoint injured party” of the tended from expanded liability insurer. greatly second, relatively problem, A minor arose Ins v Freeman Boyle, language regarding pre-1966 interpretations of the inju- expected "accidental, or intended” whether or the result. As the act ries must be measured explained by Rynearson: ques- split authority involved primary not an insured would be barred tion of whether consequences "expected” by the "foreseeable” or A was made be- distinction his act or conduct. tween intentional with the results, acts and intentional result, being on the and not the emphasis Thus, one had brought about the result. act which foreseen or intended the results to have either coverage. his to bar act order The term "ex- *48 equated pected” necessarily with the term was not degree could denote a different "foreseeable” and particular anticipation damage from a course of of action. of supra, 19 Forum 518. Empha- [Rynearson, sis added.] Rynearson’s discussion, al-
As can be seen from though may "intended” acts denote "foreseen” and anticipation, may degrees of either different split standpoint A the of the insured. viewed from developed authority over the of use of a had nevertheless objective subjective test. or an clearly designed to 1966 revisions were The authority split remedy as to whether the the of injury be measured nature of the was to accidental standpoint or from that of of the insured from the injured party: the 1966, language employed to achieve Prior to been, gener- objective had
a similar "exclusion” ally, damage property caused "bodily injury or direction of the insured.” intentionally by or at the this experienced difficulties with courts had being language as it was used latter insofar or "accidental concepts of "accident” clarify policies means,” concepts appeared as those that "caused intention- prior to 1966. The view Mich Boyle, J. that ally,” amplification as an of the circumstances means,” "accidental constituted an "accident” or signified from to be prospective was [sic] victim, rejected, for standpoint had been of the the reason that it is the state of the will person caused agency whose was injured person which rather determines whether than that of the injury was accidental. However, approach characterized was wrongdoer, ig- punishment form of and is for the benefit nored the fact that insurance also of reason, injured victims of accident. For this resulting injury from the others considered the victim, point of view of the and if it was accidental view, point from that be covered of the loss would liability to the actor. insurance issued change appeared It now emerged the 1966 scrutiny, under from undertaking, to this "revision” had reference agreement perspective, that one of its as to concept purposes specific was to make more "accident” contained in the definition of "occur- phrasing It "from the rence.” was stressed that the standpoint designed of the Insured” seemed plain component make the "accident” of an perspec- "occurrence” is to be evaluated from the injured of the insured rather than of the tive victim. application Construction and [Anno: provision liability policy expressly insurance insured, excluding injuries expected by intended or (acts 31 ALR4th 972. See also 34 ALR4th 761 exclusion), of self-defense as within the same *49 (criminal falling 35 ALR4th 1063 conviction as exclusion).] within the same revision, adopting language While the 1966 split in this dispute proceeding, resolved to the of the or authority viewpoint injured insured, nothing it did to resolve the insurer’s a problem subjective objective as to whether Indeed, it made employed. standard should be as to latter As I position insurer’s less tenable. Ins v Freeman Opinion by Boyle, part analysis n, have discussed intrinsic of the phrase standpoint "from the of the insured” im- parts subjective meaning "expected a to the words or intended.”
Parenthetically, might argued be prepositional phrase, standpoint "from the of the modify insured,” should be read to the antecedent (rev ed), Couch, Insurance, "intended.” See 2 2d pp expected might § 15:13, Thus, 156-157. the word given objective meaning be in contrast to "in- "reasonably expected.” tended,” i.e., However, un- reading, "expected” might yet der such a the word standpoint injured be viewed from the of the party. Indeed, had the insured insisted that phrase qualifying applied only "intended,” viewing "expected” standpoint from the of the injured party appear would to be the most reason- reading able of the modified exclusion in an intrin- analysis. say, reading sic Needless to it is not a suggested appear the insurer has nor does it prefer. to be one that Therefore, the insurer would light even evidence, of the extrinsic I would adopt phrase reading a of the exclusion under which the standpoint quali-
"from the of the insured” "expected” fies both and "intended.” Clearly, analysis extrinsic establishes that phrase standpoint "from the of the insured” was principally convey intended the insurer to a subjective However, standard. it must be conceded split that ity regarding the insurer was aware of the of author- subjective objective standard. Subsequently, adopted by was in- surer which solved one while issue weak- ening position the insurer’s is, as to another. That accepted imparting subjec- the insurer a clause clarify tive standard in order to the acciden- tal nature of the must from the be viewed standpoint light, insured. the contin- *50 432 Mich Opinion by Boyle, J. argument employ objec- to an intent
uing as commensurately is weakened. tive standard is further argument weakened insurer’s alternative when is considered position as to placed have them in better might the lan- coverage questions, by as illustrated both companion case. Allstate guage employed by distinguishable There two classes presently are used of cases under the standard exclusion First, of cases Metropolitan. there is the class involving act, unintended injury: an intended but have jurisdictions The courts in a number damage adopted injury or view meaning of an intentionally” within the "caused pre so injury exclusion clause intentional clude coverage if the the act and insured intended damage bodily or injury some kind of to cause ., . the insurer will not be . with result that obligations liability policy its under a relieved of containing the unless the insurer acted exclusion specific . . . is authority
with such
intent.
[T]here
supporting the
once it is found
explicitly
view that
intended,
that harm was
it is immaterial
that the
or
actual harm caused was of a different character
magnitude
from that
intended
the insured
....
ALR4th at
[31
973.][12]
"expected
or
Utilizing
subjective standard
intended,”
there
cover
courts have found that
was
burning
property,
when the intentional
but
age
damage,
or
without
the intent
cause
injure
See, e.g., Aetna Ins
damages.
caused
fact
Janson, 60 Ill
Co v
957;
143;
18 Ill Dec
App
3d
(1978).
coverage has
Similarly,
been
NE2d
guns
intentionally
in which
found
cases
were
striking
pointed,
discharge
but
21
observes,
Thus,
post, p
11,
n
the insured
as Justice Archer
bodily injury
in order to fall
intend the actual
inflicted
need
under
exclusionary
clause.
Ins v Freeman
Boyle, injured party
e.g.,
See,
was unintentional.
Van-
guard
App
Cantrell,
Ins
486;
Co v
18 Ariz
503 P2d
*51
(1972);
(La
Lajaunie,
962
Jackson v
253 So 2d 540
1971),
App,
grounds,
part
part
aflPdin
in
and rev’d
on other
(1972).
181;
264 La
270 So 2d 859
Another class of cases involves an intentional
injury
only
act, the result of which
can
occur.13
quite reasonably
cases,
these
presumed
some courts have
injury
Thus,
that the
was intentional.
in
App
Smith,
Fireman’s Ins Co v
13 Ark
253-
(1985),
254;
that the
was intended and cover-
age
Similarly,
Cavanagh
was excluded.
in
v Ohio
App
Co,
Farmer
38;
Ins
20 Ariz
P2d
(1973),
injure
presumed
an intent
to
was
from the
to the
placed
gun
fact that
the insured
a loaded
pulled
trigger.
victim’s
head
Presumed
intent can also be
in
found
CNA Ins Co v McGin-
(1984),
nis,
90;
282 Ark
McGinnis, that the insured did claim injury "flies the face of all to cause in or intend reason, experience.” Id. at 93. common sense in this case. While cannot be said same intentionally the knife and did brandish DiCicco further "poked” with his Gravenmier the chest apparently hand, own Gravenmier’s other was preceded immediately act of injury. bravado While it is emerge may yet true facts underlying claim which establish would actually expected or intended to stab that DiCicco (as opposed to Gravenmier acciden- Gravenmier cut), present tally being say I cannot on the facts injure "flies in that the denial of an intent experience” reason, sense and face of all common presumed. injure may I cannot so that intent to say injury—that brandishing always a knife results *52 preclude coverage as
DiCicco’s actions of law.14 matter assuming arguendo Therefore, that extrinsic analysis necessary, my conclusion that is is judgment improperly granted trial court action, I reverse its insurer in this and would 14Again, emphasized findings of it must that the trial court’s be based, fact, upon appeal specify only insured’s knife, claiming any intent to that he DiCicco denies use persons merely away get the to scare the other
went to he considered gesture moving knife to a threat. one observed him make a No though as to the knife stab Gravenmier. poking right held in hand and the was done with knife was his left. DiCicco denies his stabbing. knowledge of in fact Immedi- following stabbing, ately shocked. Graven- DiCicco looked obviously expect the knife or he mier did not DiCicco would use engaged not have in his act of bravado. would challenged clearly findings erroneous These have not been insurer, requested any inadequate by plaintiff has the nor insurer relief, for further as a demand to trial court alternative findings. such findings inappropriate to trial court’s It is reach behind the might supported the have the record for evidence which search favorably positions toward and construe the record most insurer’s insured. Ins v Freeman Archer, J. judgment. again emphasize However, I would necessarily position I politan take no toas whether Metro- eventually indemnify
must DiCicco for injuries caused Gravenmier.
CONCLUSION The insurer has failed to establish either an injure actual intent to Gravenmier or such acts as presume would allow the court an intent injure as a matter of law. The trial court therefore granting judgment declaratory in erred for the in I insurer this action. would remand this matter proceedings opin-
for further consistent with this ion. J., J.
Brickley, Boyle, concurred with (concurring part dissenting in Archer, part).
INTRODUCTION respectfully opinion’s I dissent from the lead application Metropolitan Property Liability & objective DiCicco, Ins Co v of an standard to an exclusionary regarding coverage insurance clause "bodily of an insured’s behavior which results damage property which is either ex- pected standpoint or intended from the Freeman, insured.” In Allstate Ins Co I concur opinion with the conclusion of the lead *53 exclusionary applica- clause at issue mandates the objective tion review, of standard of thus reliev- ing duty against of insurer to defend Alonda However, Freeman’s actions. I from dissent its finding the insurer does not have a defend Marshall Freeman on the of basis a co- Accordingly, insured’s intentional I acts. would Mich Archer, in Metro- Appeals of Court of result affirm the Co v DiCicco. I Liability & Ins politan Property the Court of affirm the decision of also would Co v Freeman with regard in Allstate Ins Appeals However, I would reverse to Alonda Freeman. regard to Appeals with Court decision Freeman, portion this of the and remand Marshall on the trial court for consideration case for Mar- liability of the insurer’s separate question alleged negligence. shall Freeman’s CO V DlCICCO I. INSURANCE METROPOLITAN in the accept opinion I the recitation lead giving to the instant case. background factual rise
A Co, Ins Michigan Mutual In Fresard Millers (1982), 686, 693-695; 414 Mich 327 NW2d this rules concern stated the oft-cited succinctly Court provisions: ing of insurance construction "[a]ny reiterated that clause recently This Court long is as it is valid as in an insurance clear, unambiguous not in contravention Mutual Ins public policy.” Raska v Farm Bureau 355, 361-362; 314 Michigan, 412 Mich NW2d Co of (1982). only majority that the The Raska noted 440 pertinent question exclusionary "whether was ambiguous, if it is clause in ambiguous contract it.” to enforce we are constrained examining of this When we are mindful of several policy, other insurance rudimentary as principles so other construction to be axiomatic: viewed as a whole.
The contract should be given parties effect. The intent of should *54 Ins v Freeman by Opinion Archer, J. interpretation An of the contract which would render it unreasonable should be avoided.
Meaning given should be to all terms.
Ambiguities should not be forced. among
Conflicts clauses should harmonized. The contract should be viewed from the stand- point of the insured. The insurer proving should bear the burden of coverage. an absence of policies presents The use of a unique standard precise situation in which the asked to courts in other language we are analyze already interpreted has been jurisdictions. The of existence so many opinions is an advantage both and a disad- vantage. course, benefit, The of insight is the provided by jurists learned in other states and in danger the federal courts. The weight is that unfairly may be a merely accorded view because it period has withstood attack for a of time or be- it cause is embraced majority jurisdic- of tions. construction, of these
Mindful first to the itself. rules we turn development exclusionary clause industry employed insurance has standard general policies liability ized insurance for over supra Fresard, four decades.1 691. at The instant exclusionary product sweeping clause is Wendorff, comprehensive general See also The new standard Ins, liability policy, Neg, Comp insurance ABA Section on & Law (1966 Proceedings), pp 250-251. Underwriters, Casualty rating The National Bureau of a organization composed companies, of stock insurance and the Bureau, Rating rating organization Mutual posed Insurance com- companies, developed through of mutual insurance have joint co-operation Underwriting efforts of their Policy general liability Forms Committees so-called “standard” policies companies and automobile required standpoint which their member are policies to use. These are not from "standard” being statutory policy, policies. such the fire companies which Insurance rating are members of either of these organizations course, may, prepare own their 432 Mich Archer, J. general liability policies in standardized
revisions of com Upon 1966. examination undertaken with its intro mentary contemporaneously issued duction, was provision primarily clear *55 concerning the controversy designed resolve general then-prevalent liability under requirement policies, bodily injury property or insurance 2 However, damage "by accident.” be caused defined rarely policy, term "accident” was in the contradictory constructions producing thus alleged of an intentional behav instances insured’s result, on alternatively As a the courts focused ior. standpoint from the presence an accident’s either victim, not public policy in furtherance of of the tortious ac an insured for intentional reward tions, from the of the insured standpoint party, or penalize injured party not order insurance cov purposes the remedial of effectuate erage. judicial impasse concerning to the response "accident,” the 1966 construction term to defend and premised duty an insurer’s
drafters con- coverage upon expansive the more to provide which, correctly noted of an "occurrence” cept com- only is inclusive of the majority, "accident,” meaning but also understood monly However, actions.3 the drafters also of intentional property loss provided physical However, policies pro- the "standard” which have been forms. mulgated by rating organizations their the two under National Program Policy have become a standard Provisions Standard policies. [M]any comparison . . . other "nonstandard” general independent use the "standard” insurers nonbureau policies liability with little or no variation. and automobile 2 WendorfF, comprehensive Tarpey, policy: supra; n 1 The new See Obrist, (1966); changes, J Ins New of the Coun Some (Defense policy, pp general liability comprehensive insurance 6-7 1966). Institute, Research ante, pp 668-672. See Ins v Freeman Archer, J. expected must neither be nor intended from the standpoint language of the insured. While this question perspective answered the from considered, which an occurrence was to be the and "from the "expected” inclusion of the terms standpoint exclusionary of the insured” within the provision left unresolved the two issues before us today.4 pre-1966 First, whether the construction of applica- exclusionary insurance clause provision. Second, to the ble instant whether ex- objec- amination of the instant clause entails an subjective tive or standard of review.5
B I concur that an insurer’s to defend is triggered by the determination of whether an present. concept occurrence is occurrence is fact of an appropriately broadly construed, *56 accept I that in the instant case an occurrence is present purposes Metropolitan’s in fact for of in- policy. However, surance while I also find that the 4 Even, corporate administrator—problems See insurance with (1968), liability policy, the 1966 revised 3 Forum 95 for an overall criticism of the 1966 standardized revisions. 5 924, Kemper Kasper, 926; See Iowa Ins Co v 419 Mich 355 NW2d (1984) J.): (Levin, excluding coverage This Court has held . . . that a clause intentionally "caused or at direction insured” does not exclude for intentional acts with unintended results. exclusionary pertains injuries The instant clause to that were "expected,” question as well as those "intended.” The is change language justifies departure whether this in a from this Court’s earlier construction. . . . objective may appropriate While an standard be for tort liability, construing necessarily appropriate it is not when or context, applying policy. expectations an In insurance material; person may and intentions of a reasonable arguably only not be subjective expectations the actual and intentions of the insured should be considered. 432 Mich Archer, J. a unambiguous as is clause exclusionary
instant law, to the conclusions disagree I matter nonambiguity:6 from its be drawn "ac- of the instead word The word "occurrence” that the word insuring clause means in the cident” than the word broader is fact "occurrence” by the insurer. and is so intended "accident” case, policy is to insure the intent of the such insured, including his or omissions of acts acts, excluding only those in which intentional intended expected or resulting injury is either standpoint. from the insured’s therefore, would that the insured here It is clear where coverage in those cases from be debarred injuries or assaults resulted his deliberate acts by him to expected intended which would But what about acts. from his deliberate result coverage deliberate) (even though the results of his acts where not intended unexpected or are provi- under which insured? The answer (2) (1) occurrence; since is that the event is sion accident under bodily injury it is an it results (3) since policy, the definition the cover- unexpected, it is within unintended or policy. age of the policy is of the insurance Such a construction forced, interpreta- is an but rather
not strained
tion of the
meaning
popular
plain, ordinary and
finding
jurisdiction
of an
has criticized
6 I note that at least one
provision’s ambiguity
See Transamer
as result orientated.
insurance
(1984):
Meere,
355;
Group
Ariz
694 P2d
ica Ins
course,
easy way
finding
ambiguity
since it
is the
out
Of
and.
permits
version of the contract
court to create its own
find,
justify
find,
ambiguity in
an almost
order
to
predetermined
or fail
approach
we have
This is an
result.
v Universal Underwriters
Darner Motor Sales
abandoned. See
*57
(1984).
proper
Co,
383;
believe
140 Ariz
provision
to be
ambiguous;
possibility
bodily
of unintended
injury brings that
cover
result within the
Phalen,
age
Casualty
....
Nat'l
[Northwestern
(1979).
448, 455-456;
Em
Mont
As noted in the lead to the intro- revisions, required duction of the 1966 this Court involving injury under or loss property insured,” incurred or at the direction of "by showing subjective both of intention to commit in question comparable act and a state of mind to the harm requirement inflicted. be- Clearly, in unnecessary espoused comes under the standard the lead which the bod- opinion is satisfied where damage need reach a ily property injury only consequence.7 threshold of natural and foreseeable However, I interjection must dissent from the opinion the lead of an standard of reason- objective approach The use of the "natural and foreseeable” was also used pre-1966 judicial attempting parameters decisions to define for Even, supra term n 4 “accident.” See at 101: however, split authority, There is a definite acts as what negligence liability
of
policy.
liability
gence
since
result
covered
the terms of such a
policies
Some courts have held
do not cover
that such
probable consequences
negli-
for the natural and
agent.
of the insured or his
These courts reason that
everyone
responsible
probable
is
for the natural and
acts,
consequences
damage
injury
is the
his
probable consequences
negligence
itself
natural and
not caused
of the
is
negligence-
accident. These courts conclude
damage
caused
unprecedented
is not caused
accident unless an
or con-
or unforeseeable event is an immediate
current cause of the loss so that the loss
natural
difficulty
probable consequence
this
negligent
with
act. The
interpretation
greatly
the insurer’s
is that
it so
restricts
valueless,
meaning-
liability
less;
as to render the
and even
predicate
any likely
and denies
what is
liability against the insured.
*58
Mich 656
432
Archer, J.
ability
so dictat-
in the
of clear
absence
Corp
ing.
e.g.,
v St
See,
Care & Retirement
Health
Supp
Co,
155, 161
621 F
& Marine Ins
Paul Fire
1985):
(W Va,
respect
to intentional
majority rule with
[T]he
applies if
is that
the exclusion
injury exclusions
act,
particular
the
intended to
intended to do
insured
harm,
if the harm
do some
even
from the
radically different
actually done was
Yet,
hand, an inten-
on the other
harm intended.
if the in-
apply
will not
tional
exclusion
act,
no intent
intentionally does an
but has
sured
harm,
if
act
involves the
to commit
foreseeable
amounts to
out such a
even
great
even
consequences of
harm or
negligence.
. . .
gross
culpable
With-
distinction,
policy language
refer-
ring
standpoint of the insured” is rendered
to "the
meaningless.
[Emphasis added.]
agree
Further,
I
with the observations
while
opinion
the terms "intended” and
the lead
"expected”
synonymous,
this does not
are not
objective
logically
of review8
mandate an
standard
"expected” may be defined
to the extent
degree of
anticipation and that a lesser
terms of
expectation
proof may
required to establish
However,
reject
than to establish intent.
view that
we
objec-
expectation
judged
to be
on an
is not em-
tive standard. The word "reasonable”
question,
reject
and we
ployed in the exclusion in
plea that
read
company’s]
we
insurance
[the
reasonableness
It was
insurance
standard.
[the
if it
wanted
company] which drafted
ante,
suggest
pp
that while the terms
676-678. I would further
See
accept
position
synonymous,
that the inclusion of
I cannot
are not
speaking
conjunction
the remainder of the exclusion
this term in
with
enlarged
scope
standpoint,
exclusion
the insured’s
has so
to
so as to merit
of insurance. Accord Patrons-Oxford
standard in the context
the encroachment of a tort-like
Dodge,
A2d
272;
Co v
Mutual Ins
Muth,
(Me, 1981);
Casualty
190 Neb
Farm Fire &
Co v
888
"intended,” I find that objective of an standard of review *59 position redacting in standpoint this Court the of the "from the of the insured” from exclusionary the instant clause. This Court is language by exclusionary bound the of the clause concepts and should be reticent to introduce of the arena of foreseeability, appropriate in more tort actions than in the realm of insurance. opinion
I would also note that the lead a cites Appeals, number of decisions the Court of jurisdictions, addition to decisions from other unnecessary have which found certain factual engage subjective analysis situations to a expectation have inferred either an intent or disagree injure However, as a matter of law. I that import the gagement of these constitutes an en decisions seeking
in theoretical to avoid a exercise subjective determination of an insured’s intent 0 Upon decisions, ions.1 examination of I these the observe and certain violent assaultive within areas of child molestation
actions, because of , itself, the nature of the act a number of courts acknowledge 9 I ratification of a uniform insurance time-consuming process only provision is a four evidenced policies major revisions undertaken in standardized since 1940. See Fresard, However, supra industry capable at 691. it is obvious the drafting language provision such as evidenced considered in Allstate Ins Co Freeman. subjective necessarily of a standard does not The advocation imply adoption inference of an intent as a matter of an insured’s Co, 460-461; of law. See MacKinnon v Hanover Ins A2d 1166 NH (1984), subjective example jurisdiction applying a for an of a review, yet rejecting expectation an inference of intent or standard as a matter of law. 432 Mich Opinion by Archer, within instant have found that the insured fell exclusionary nearly impossible, as it clause was subjective standard, even under a party find expected intended could not have either or However, the harm had been inflicted. while may which there are limited scenarios which factual arguably determination, lend themselves to such language does not erase the clear remaining exclusionary multitude of clause in instances in which determination of the necessary. subjective Fur sured’s ther, state of mind is authority opinion to cite lead fails that these are indicative of an unworka decisions subjective approach standard, that its is an ble exception engulf the rule. threatens
Accordingly,
explicit
in the
absence
contrary,
to the
I would hold that
appropriate
to construe the
standard
review
exclusionary
subjective:
must
instant
clause
decide that
"exclusion” from the foun-
[W]e
personal
Dodge
liability
dational
afforded
*60
policy,
his
as the
is
in the
exclusion
stated
language "bodily injury . . .
is
ex-
which
either
standpoint
pected or intended from the
of the
the
Insured,”
only
injury
bodily
refers
to
("intended”)
subjectively
insured in fact
wanted
subjectively
a result of his
or in fact
be
conduct
practically
("expected”) to
foresaw as
certain
be
Mutual
Ins
result
Co v
his conduct. [Patrons-Oxford
(Me,
Dodge,
1981).]
426 A2d
892
Casualty, supra;
also
Ala
See
Northwestern Nat'l
Dyer,
Farm Bureau Ins
454 So 2d 921
bama
v
(1984);
Corp
Health
&
v St Paul
Care Retirement
Vanguard
supra;
Co,
v
Fire & Marine Ins
Ins Co
(1972);
App
Cantrell,
486;
Ariz
c I concur with the statement in the lead opinion appropriate of the standard of review this grant Court of the trial court’s of declaratory judgment Upon favor of the insurer.12 review of record, lower court is clear the trial court applied an objective standard of review to the instant exclusionary clause: appears panels
There [by conflict Appeals] specific Court of showing whether there need be a injure regardless of intent of which used.[13] type language of contract is Faced with the conflict, prefers choice of this soning this Court rea Kompus of Frankenmuth Mutual Ins Co v 667; App (1984)], Mich NW2d and its [135 progeny. guage excluding coverage apparent The intent of the lan expected
for intended or subjective analysis to avoid the inherent question in the whether there was an actual intent to injure. 11 Iwish to make it clear that the insured need not intend the bodily injury
actual inflicted order to fall within the instant exclusionary clause. It is sufficient that the factfinder conclude subjectively expected type reasonably insured able Court of DiCiccointended to stab Gravenmier. some of harm foresee standpoint. Accordingly, from the I insured’s would reverse the question Appeals remand to the trial court on the whether case, parties stipulated 12 Inote that in the instant both had to the nonjury solely determination of the case the information contained within the trial. trial on the basis deposition prior to obtained referred to the trial court includes that at issue in the instant injury relieves an insurer for case exclusions which *61 "caused or at the direction of the insured.” 432 Mich Archer, explicitly eschewed below trial court
As the subjective review, application I of standard of a apply the must the trial court hold that would opinion. espoused If there is a within standard question expectation intention or to the of fact as subjective part stand- from a of the insured on point, grant verdict or sum- of a directed either Accordingly, clearly disposition I mary incorrect. by the Court of reached the result affirm would Appeals the trial case to remand the and would with this not inconsistent for reconsideration court opinion. CO V FREEMAN II. ALLSTATE INS A part reached I with the result concur iii(b) duty opinion had no the insurer the lead to the exclu- contrast Alonda Freeman. defend sionary Metropolitan Ins Co v at issue clause exclusionary contains DiCicco, clause the instant relating explicit the relevance clearly actions and of the insured’s reasonableness objective application standard dictates an review.14
B respectfully conclu- from the However, I dissent opinion no that Allstate had in the lead sion Freeman. Marshall to defend analysis regard Initially, of the lead to the with examining underlying opinion of ac- cause coinsured’s of the instant determinative tion as disagree coverage, the de- I with entitlement piction negligent entrust- of action of a cause See text ante, p 685. *62 Allstate Ins v 733 Freeman Opinion Archer, J. constituting ment a derivative action. It is well negligent settled that a cause of action for entrust- separate negligence ment is a cause of action in prevent dangerous for the defendant’s failure to falling instrumentalities from under the control of persons incapable proper usage.15 2See Restate- pp Torts, 2d, ment § 390, 314-318, and Prosser & (5th ed), pp Keeton, § 33, Torts 197-203. irrespective alleged However, of the action against question Freeman, Marshall here upon exclusionary turns whether the instant per- clause’s reference to the acts of "an insured clearly subject son” is understandable and not interpretation reasonable variances in so that a lay equate insured would the term "an” with "any” any and would conclude that the acts of person insured under the would serve to relieve the insurer from a to defend all the remaining Although insured individuals. I concur with the Court, observation that this in an exami- provision, nation of an insurance should decline to ambiguity create an exists, where none unlike the opinion, provision lead I do not find that unambiguous as a matter of law and decline to 15 opinion The lead Appeals cites the decision of the Court of in Michigan Sunstrum, App 98; Mutual Ins Co v 111 Mich 315 NW2d (1981), support 154 injury in of the idea that the cause of is control ling spousal coverage in the determination under homeowners insurance. Sunstrum, Appeals coverage the Court of denied to a father alleged negligently where it was his son. that he had entrusted his truck to However, the Court held that the clear of the exclusionary away operation coverage clause disavowed where an accident occurred premises from the homeowner’s and resulted from the use or bar, of a motor vehicle. Unlike the case at in this prevented coverage bodily arising use, etc., case of for out of the " 'any operated by, to, motor vehicle owned or or rented or loaned any unambiguous. "Any Insured.”’ Id. at 101. These words are obviously operating insured” Therefore, means each insured a motor vehicle. distinguishable I supportive find Sunstrum to be and not respect majority’s interpretation exclusionary with present clause in the case. 432 Mich Archer, unambigu- its that "an insured”
adopt conclusion excluded dam- ously means was wrongful act of caused intentional ages Marshall).16 (either insured Alonda or found opinion adopts The lead the result (CA Gilbert, 9, 1988), Ins Co v F2d Allstate its of the instant exclu- support construction turn, Gilbert, on sionary clause. relied Condon, 153; 243 198 Cal 3d Cal App Ins Co (1988), in that "an insured” determining Rptr policy. to all under the The Condon refers insureds *63 held: court person any one logically "A insured” refers to of persons distin- policy all the insured under the [as only to
guished "the refers from insured” which particular insured.] [Id.] decision, However, prior one Gilbert year Borbor, 888, F2d in American States Ins Co v 826 (CA 1987), Judge Thompson, who wrote Gilbert, States in- stated that American "[h]ad any that act insured would wrongful tended policy, unambiguously it could have void Insurance, 15:84, Couch, pp 416-419: See § determining applied by The test the court in whether ambiguity is not the insurer intended its words to there mean, what reasonably prudent person applying but what have them to mean. The criterion insurance would is a understood standpoint layman, ambiguity that from the of a not from lawyer. jurisdictions The fact courts the several have arrived meaning of to the the words in a at different constructions as policy, in provision even instances or exclusion of a some views, opposite have taken almost terms is some indication ambiguous. are However, reject, ambiguity, question of I would in aside from the contrary, holding language an individual absence of clear the coinsured independent intentional acts. liable for another’s Ins v Freeman Archer, J. drafted and included such in the con- tract.” The result was that an spouse innocent was not excluded because of the wrongdo- intentional ing of her husband. The court reasoned that no uncertainty or ambiguity would have existed if the policy exclusion would have in- "any referred to sured” rather than "an insured.” Accordingly, provision was construed favor of the insured.17 Condon,
One later year the California Su- preme Court support drew from the California (West Code, Insurance 1988), Supp, § codified the definition of "an insured” as meaning insured,” "any in an attempt to construe import these modifiers. (c)(8) 11580.1, Insurance Code section subdivision
provides reads, analogous another definition. The section pertinent part: "The term 'the paragraphs insured’ as used in (4) (1), (2), (3), and shall only mean insured against under particular whom the claim brought. is made or suit The term 'an (5) (6) paragraphs insured’ as used in mean shall insured under the . . . .” Thus, referring "an insured” is defined as to all insureds under the policy, contrasted to one in- person sured when identified as "the insured.” *64 It is true the policy Allstate herein to "a refers person ifiers; analogous insured.” "A” and "an” are mod- dependent upon one or the other is used it begins whether the word modifies awith conso- nant or a consonant beginning vowel sound. Words with are properly sounds modified "a.” "An” precede beginning is used to words with If vowel sounds. Allstate had used the term "an insured,” person provision the would have exclusionary It should he noted that the clause in Borbor referred the "the to lead actions of insured.” 826 F2d 890. We note also that opinion similarly persuasive discussing finds decisions the dis tinctions between "the insured” versus "a” or "an” insured. See lead ante, opinion p 27. n Mich Archer, J. proper incorrect. Because grammatically
been pre- from grammar this deviation necessitated purposes for statutory language, cise section 11580.1, (c), person "a insured” subdivision is person.” The analog of "an insured functional Insurance Code thus defines person "a as insured” [Condon, policy.” under "any person insured supra at 153-154.] primarily I the decision find it instructive it opinion necessary found upon by relied the lead sought guidance an opinion to draw from comparable statutory provision from order unambigu- is today construe what characterized I adhere to the language. Accordingly, ous would an Borbor court insurer admonition using language, may policy by appropriate void a i.e., insured,” in its exclusion. 826 F2d "any have "any,” 894. If Allstate had meant should engage not Rather than in an "any,” said "an.” semantics, I "an” not find that exercise with and conclude that "an "any,” synonymous Freeman should to Alonda alone. apply insured” Thus, been Marshall Freeman should have policy’s under terms of the exclusion- excluded ary clause.
CONCLUSION DiCicco, I Metropolitan Ins Co v Accordingly, of Appeals, of the Court would affirm result trial the case to the court would remand against DiCicco alleged consideration of the action an- pursuant to the standard review subjective in this Ins Co opinion. nounced Freeman, I would affirm decision the Court regard with denying of Appeals objective stan- Freeman on the basis of Alonda However, I dard of review. would reverse *65 Ins v Freeman Opinion Cavanagh, J. Appeals regard decision of the Court of with Marshall Freeman and remand the case to the negligence trial court for consideration of the ac- against tion him. (concurring part dissenting J. in
Cavanagh, part). Metropolitan, accept In I the conclusion Metropolitan Property Liability "that Insur- Company duty ance facts, has a to defend on these although may yet emerge Metropolitan that is indemnify DiCicco,” liable to for the reasons by my sister, Boyle.1 stated Justice accept analyses Freeman, I and conclu- majority affirming holding sions of the Appeals respect the Court of man, age with to Alonda Free- namely, precludes the exclusion cover- agree for her Yet, intentional acts.2 I do not majority duty with the that Allstate has no separately defend Marshall Freeman. I write be- I cause am convinced that the term "an insured” in the Allstate exclusion does not mean that negligence liability Marshall Freeman’s is not cov- simply liability ered because Alonda’s for the same of insurance injury Simple principles is excluded. accepts, majority construction,
clause which the naturally lead to this obvious conclusion.
Moreover, under exclusion, the Allstate Mary Kelly mere fact was (i.e., caused an excluded act Alonda’s act of her) intentionally shooting dispositive is not question of Allstate’s to defend Marshall against allegations negligently Freeman that he dangerous instrumentality entrusted a wife, to his majority authority Alonda. The has found no clearly controlling, persuasive, reaching 1 Ante, p 701.
2 Ante, p 660. Mich Cavanagh, *66 an unam- that Allstate has drafted conclusion biguous exclusion. i THE PACTS accept forth in the I of facts set statement opinion are lead in v Freeman.3 There Allstate relating to for facts Marshall’s claim additional coverage, however, After the that deserve mention. original Mary Kelly, defendant, filed the amended arising complaint negligence damages from Marshall’s 1984, September 26, a second on complaint 1985, filed on March amended was pertinent part: alleged in which carelessly That the defendant Marshall Freeman placed, permitted negligently and/or and allowed unregistered pistol, fully illegal and loaded bullets, to be to his wife and with assessable [sic] household, Alonda Freeman in their defendant knowing purchased and weapon illegally said was non-registered, fully possessed, unlawfully loaded his wife defendant Alonda Freeman training in had or to use said fire- no skills how arm; ably having plaintiff been reason- all harm caused by defendant Marshall Freeman foreseeable carelessly care in having placing exercised unreasonable illegal weapon his household. said allege pleadings adequately that Marshall These separate duty of care in allow- Freeman violated a ing despite loaded his to access to a firearm wife have training or to use lack skills how her instrumentality. dangerous
ii THE ISSUE to Allstate has issue whether ante, pp See 682-685. Ins Freeman Cavanagh, defend Marshall against allegations that he negligently Alonda, entrusted the firearm to otherwise was negligent supervising the fire- arm, which she used intentionally injure Mary Kelly.
The question presented requires this Court proper determine interpretation of an insur- ance contract provides, in relevant part:
Losses we cover: pay arising
We will all sums from the same loss person which an legally obligated insured becomes pay damages of bodily injury because damage property part covered of the policy. *67 may investigate We or settle claim or suit damages against for person. covered an If insured person damages, an insured is sued for these we provide choice, will a defense with counsel of our allegations even if the obligated are not true. We are not pay any to judgment claim or or defend any suit if already we have exhausted the limit of liability by paying judgments or settlements. we
Exclusions—Losses do not cover 1. any bodily injury We do not cover or property damage may reasonably expected be to result from the intentional or criminal of an acts person insured or which is fact intended person. insured
The lead opinion correctly states the two issues raised Freeman under Marshall language. Marshall has claimed:
First, separate that Allstate has and distinct and, duty policy, to each under cover insured the therefore, duty depends solely upon its to defend his conduct. insured,”
[S]econd, policy language, the "an 432 Mich Cavanagh, and, therefore, ambiguous must be construed insured.[4] favor of the
ill HISTORY PROCEDURAL AND ANALYSES OF COURTS BELOW negli- analyzed trial court the defendants’ derivative of the gence against claim Marshall granting plaintiffs against claim Alonda. disposition, motion the trial court summary for following duty found no to defend for reason: itself, damages Kelly’s injury, claim for [T]he triggered exclusionary was what clause. Be- expected injury reasonably cause result from could act, Freeman’s intentional re- Alonda gardless . . . injure of intent to was not negligent if Marshall Freeman was covered even in leaving weapon in the Freeman home. [160 (1987), 352; 408 App Mich NW2d 153 summa- reasoning.] rizing the trial court’s affirmed, The Court of in a two to one Appeals Judge writing majority, decision. Hood, plain language exclusionary found that duty clause makes Allstate’s defend Marshall on negligent solely the claim of entrustment deriva- defend Alonda. Id. at 357. The tive *68 upon rule for "inten- interpreting relied majority tional that was exclusionary acts” clauses stated terms, general being than rooted in the rather clause of the Allstate exclusionary policy: precludes an insurance exclusion
[W]here 4 Ante, p 690. 741 Freeman Ins v Cavanagh, then it also particular injury, coverage for the negligent coverage entrustment excludes instrumentality In other injury. that caused
words,
cause of the
underlying
to the
we look
spe-
not to the
to determine
complaint.
liability alleged
theory of
cific
Dragovich, 139
Employers Ins of Wausau
Illinois
502,
(1984); Shepard
507; 362
App
NW2d
Mich
Co,
Casualty
Maryland
Co v
Marine Construction
(1976)
. . .
65;
App
250 NW2d
73 Mich
Sunstrum, 111 Mich
Michigan Mutual
Ins Co v
(1981),
IV METHOD OF CONTRACT INTERPRETATION opinion method of inter- has stated a The lead preting clause at issue the insurance contract apply yet prevailing law, those does not but is the principles. very Thus, to state it is useful same inter- contract rules of insurance those established ought they pretation to be the outset because at deciding to in this case. adhered opinion the exclu- First, the lead concludes accepts yet "bodily injury,” focuses on sion ambiguous can if "an insured” this is rendered insured the named read to mean both agree Second, in the abstract on we insureds.6 guide interpre- our that must of construction rules Freeman, supra 359. at See 6Ante, p 692. *69 742 432 656 Mich by Opinion Cavanagh, J. Third,
tation of the here.7 exclusion at issue opinion accepts principles lead that the. applied by this insurance contract construction accident Court in the context of an automobile policy, 602, 623-631; DAIIE, see Powers v 427 Mich (1986), present apply 398 411 in the NW2d also Mutual Ins case. See also Raska v Farm Bureau Co, Finally, (1982).8 363; 412 Mich 314 NW2d following agreement we are in on specific we must rules of construction under which interpret exclusion. the Allstate "intentional acts” (1) principles strictly These are that exclusions are (2) against pol- insurer, construed icy because and, exclusion, must "make clear” the (3) consequence, accept a liberal the insurer must interpretation it favors the insured where employed plainer generous could have use of words that would have removed the and more
ambigu- ity.9 clearly
analysis: does Allstate EXCLUDE COVERAGE FOR ENTRUSTMENT NEGLIGENT
BY SPOUSE? AN INNOCENT COINSURED
A. INTRODUCTION issue, I the central whether Allstate now reach negligent unambiguously excluded Marshall’s has liability entrustment under above definition. ante, p "[a]ny ambiguity See 692 which states that must be in favor of the insured.” construed 666) (ante, opinion p by and Justice Raska is cited lead 707-708). Boyle (ante, pp Powers, 623-631, supra principles directly from These are taken at Raska, supra at 361-363. ante, 665-666, citing pp Raska I infer also and Powers. from See opinion accepts in the the citation of Raska principles majority. lead other interpretation contract stated of insurance the Raska v Freeman Ins Cavanagh, ambiguity majority in the All- has found no put acts” exclusion and has "intentional state English gram- forth, fact of as an incontrovertible usage, argument the term "an *70 mar necessarily to all I dis- refers insureds. insured” agree meaning plain The this conclusion. with of unambiguously means both the term "an insured” "any Indeed, "the named insured.” insured” and may "a, an,” "the” all the indefinite articles "insured” to mean either all be used before Therefore, the Court or the one insured. insureds ambiguity—that from the arises must construe meanings plausible indefinite arti- these two they modify "insured”— the term cles create when liberally in favor of the insured. IS
B. THE TERM "AN” INSURED AMBIGUOUS meaning is the indefinite article "an” accepted English gram- ambiguous rules of under usage. article some- "An” is the indefinite mar and times used place "an of "a.”10 The term according ambiguous technical, to a is insured” meaning common-sense, of the term read well as a policy exclusion. This in the context of the Allstate ambiguity in the use of the indefinite is inherent prob- creates a "an” a noun which article before gives poten- interpretation it noun since lem of meanings. tially two different Law of the word "an” Black’s The definition ed) (5th why Dictionary this indefi- demonstrates (which family adjectives) is nite article has this effect: meanings and uses. varying "a” has The word emphatically "any,” but less
"A” means "one” "an,” Freeman, Judge supra 363. Theiler concluded at See ambiguous. policy, the Allstate is in the context of read 432 Mich Cavanagh, one is may only than either. It mean one where intended, great of a may or it mean one singular placed It number. is before nouns of number, denoting object quality an individual individualized, [yet] "a” is not neces- article [t]he singular term; sarily a often used in the sense is than one "any” applied and is then to more meaning depends object individual . . . [b]ut on context. [Citations omitted.] "an,” it is Given the above definition of the word exclu- clear the Allstate "intentional acts” of two sionary susceptible clause is reasonably meanings.11 different ambiguous in the
The term "an insured” it can be context of the Allstate exclusion because or all taken to mean either the named insured Thus, average insureds. ordinary layman exclu- intelligence easily could read the Allstate *71 sion as follows: Losses we cover: loss, pay arising the same We will sums from person legally a named insured becomes which damages obligated pay bodily as because damage part of property or covered policy. Exclusions: bodily injury property or dam- We do not cover reasonably expected to result
age from the intentional or criminal may which acts of a named acts) (who person commits those insured by that named is in fact intended insured._ (W 12, Va, Co, Tri-County Bonding Huggins 337 SE2d 17-18 See 1985). ambiguous (Language when it is in an insurance exclusion is meanings "reasonably susceptible or is of such doubt of two different disagree might meaning as minds be uncertain or ful that reasonable omitted.) meaning.” "an insured” is also The term Citations to its "ambiguity.” meaning For ambiguous sense under a common (1974), Collegiate Dictionary example, defines New the Webster’s "capable meaning "ambiguous” or uncertain” and both "doubtful as possible being in or more senses.” understood two Ins v Freeman Opinion by Cavanagh, light ambiguity, of this I must dissent.12 analyses I have chosen not to follow the opinion cases cited in the lead which contain policy. ante, similar to the Allstate See pp citing discussing 693-699, cases, two All- App Condon, 148, state Ins 152; Co v 198 Cal 3d (1988), Rptr 243 Cal and Allstate Ins Co v 1988). (CA Gilbert, 9, 852 F2d 449 These cases hold unambiguous. the term "an insured” is analysis simply persua- in these two cases is not required sive, and this Court is not it.13 follow simply These courts cept have adhered to the con- ambiguity that an must be found where a phrase plausible meaning has more than one when according accepted English usage. read rules of C. THE THE AMBIGUITY IN TERM "AN INSURED” CAN
BE SEEN BY THE A READING CONTRACT AS WHOLE disagree majority I with the additional policy reason that it fails to look at the insurance its reference and person” strained tated” the use of the term "an indicated the could have drafted the could mandated term "a.” reasoning that insured.” Id. at 151. sured”] provision meaning of the indefinite article concluding, coverage insureds under the Such Similarly, Thus, For See "[t]here have reasoning ignores also, ante, p as as a matter of example, reasoning of the in that is flawed. Id. at 153. I also singling "any person "We been the decision plural no is policy. agree grammatically drafted the court policy.” when case connotation of *72 logical 736. out with Condon that accepted English usage, Indeed, in any particular insured” for the the fact that method to construe the concludes that Gilbert, at issue in Condon to be both insert either at insured,” "an” Condon, correct, my reasoning least "any supra shows reject insured.” To see how Allstate two insured read the supra at "proper grammar 'an insured’ refers to all disputed opposed otherwise. the term ways that court’s conclusion with at the Condon court’s person exclusion at issue disputed coverage to the word "a unpersuasive phrase respect "any would have relies within the to the statutorily plural ["an necessi- insured person upon in in 432 656 Mich Cavanagh, policy, Allstate, of this drafter
as a whole.14 meaning clarify term of the chose to under- should be "insured” in its third exclusion plural acts” in The "intentional stood exclusion that we must similarly sense.15
interpret, however, is not meaning.16 in its clear "any” "in- before The insurer’s failure to insert indi- in exclusion sured” the "intentional acts” per- "any insurer intended insured cates son” and "an insured” to have meanings. different policy whole to determine We must the intent as a read parties—at it can least insofar as of the of the contract.17 be ascertained from opinion The lead “the omission of a definition concludes that ambiguous.” policy from an (Ante, does not render term insurance 698.) Yet, p term nowhere Allstate’s use of the discusses person” policy. "any in the discus insured in the third exclusion See sion below. "any third in the the word The exclusion uses person,” ambiguous term "an insured.” insured exclusion states: instead we do not Exclusions—Losses cover person bodily injury any eligible to 3. We do not cover required person voluntarily provided provided receive to be benefits any compensation, under workers’ non- insured occupational disability occupational disease law. employs interpreting "an insured” The exclusion we are term of insured to describe whose persons is limited when one the class an "intentional or criminal act[ ].” commits (rev See, Couch, Insurance, ed), 15:29, pp generally, 2 2d 216- § explains: 227. The Couch treatise parties The intent of the is to be ascertained from the
language tion with the risk or and tract. read and The intent by as a in connec- of the entire considered whole words, parts, subject . . . matter its [a]ll provisions together as must be construed one entire con- part All of each should be of the terms conditions parts. interpreted together light of all the other ascertained, contracting parties is to be process phrases of dissection in which words or are context, process synthe- but from a isolated from their rather given meaning phrases are sis which the words purpose the obvious of the insurance contract accordance with as a whole. 216-226. omitted.] at Citations [Id. *73 747 Allstate Ins v Freeman by Opinion Cavanagh, J. D. THE INSURER COULD USE PLAIN LANGUAGE TO CLEARLY EXCLUDE FROM COVERAGE MARSHALL’S LIABILITY
NEGLIGENT ENTRUSTMENT term "an insured” could have been made if had unambiguous separate included a term, making definition of that clear that (insured) noun it modifies refers named if Conversely, insured.18 Allstate had used the term "the clarity, insured” to achieve necessary negligent then Marshall’s entrustment liability clearly would be covered under and not scope Unigard within of the exclusion. Dist, Spokane Mutual Ins v 20 Co School Wash 261; (1978), 579 1015 App P2d the Court stated the view, accepted namely, coverage and exclusion is defined [W]here insured,”
terms of "the
courts
uniformly
have
considered the contract between the insurer and
insureds,
separable,
several
to be
rather
than
i.e.,
joint,
separate
there are
contracts with each of
insureds.[19]
If the Allstate
exclusion used the term "the in-
sured,”
argue
the insurer
could
this
term
refers to all
grammatical
argument
insureds. This
"a,
supported
an,
theory
and the”
are all articles which render
the noun they modify
subject
meanings.
At
potential
two
least one
learned jurist
upon
argument,
has relied
this
lend-
ing support
to the common-sense notion
even
the term
ambiguity
"the” can create
in the noun it
18See,
America,
McKenna,
e.g.,
516;
Co of
Inc
90
Safeco Ins
NM
(1977);
Lebrecht,
modifies.20 the insurer insurer, however, fail it would because negligent unmistakably clearly exclude must liability insur- from its broad entrustment claims ance contract.21 always
Thus, in claim- win insured will ing *74 exclusion. intentional acts under the "y” merely "an,” the word If Allstate had added to negli- "any give insured,” to gence liability us then Marshall’s clearly sum, In be would excluded.22 negli- unambiguously has to exclude Allstate failed gent liability of innocent co- entrustment spouse, Freeman, Marshall either insured such as provision coverage the "inten- in its or in broad tional acts” exclusion.
VI THAT THERE IS NO PRECEDENT CONTROLLING THE TO BE READ ONLY TERM "AN INSURED” REQUIRES ALL
TO INSUREDS MEAN upon majority primarily relies cases that meaning interpreted motor vehicle have general liability insurance con- exclusions negligent dissenting). of motor vehicle Barker opinion Indiana See See State relied of the United States People entrustment claims (Docket Farm Fire & on the exclusion in a homeowner’s Enlow, No. IP principle 135 Colo Casualty 83-561C). District Court for the Southern District from broad 249; Co v Teresa insurers must the context liability policies: P2d liability Lather, 539 clearly (1957) policy, Judge construing unpublished (Day, exclude J., negligent company] intended If insurance to exclude [the supervision coverage, negligent its from entrustment must state "clearly unmistakenly.” at that exclusion [Id. 14.] See Freeman, supra at 364. Allstate Ins v Freeman Cavanagh, tracts.23 These cases for any general do stand principle applicable to the construction "intentional acts” exclusion for the obvi- meaning ous reason that construe they different language.24 contractual case,
To decide this has extracted a majority principle from inapposite these cases that is totally to the particular language of the Allstate "inten- tional acts” exclusion: precludes an insurance policy exclusion [W]here
coverage particular for injury, then it also negligent excludes instrumentality entrustment of the injury.[25]
that caused the rule, such Any abstract which runs contrary our established rules of contract interpretation, must Boyle: rejected for the reasons stated Justice defend, duty like the [Since] *75 contractual,
indemnify,
is
any delineation of the
scope
to defend without reference to
23See, e.g., Michigan
Sunstrum,
98;
App
Mutual Ins Co v
111 Mich
(1981);Shelby
25Freeman, Ante, supra p at 357. 690. 432 Mich Cavanagh, generality policy mere itself viewedas a
the must be .[26] assuming validity
But, the the of abstraction arguendo, upon analysis majority is the relies language of the flawed its own terms. The on provi- dramatically from the Allstate sions of the homeowner’s differs policies liability from gleans majority rule abstract which the the above interpreta- exclusion clause of insurance contract tion. Given plain differences of obvious language Allstate "intentional acts” between the by the exclusion and the exclusions construed apparent majority relies, it is on cases that these age dispute which the precedents inapplicable. The cover- are conceptually lin- here is
involved guistically have distinct from the issue courts exclusionary construing the motor faced in vehicle bodily injury clauses. The Allstate related to excludes insured on the basis of acts committing person mind of those acts. state of Yet, it un- exclusion leaves negligence is clear of a coinsured whether negligent act is a cause covered when that injury, there cause of the same but is a concurrent act of another traceable to the intentional excluded). (whose clearly insured acts are claims insureds who seek
Those cases involve negligent entrustment an automo- despite bile, motor exclu- existence of a vehicle general liability interpretation present policy. They in the sion concep- an issue of contract tually is in this distinct from issue case. vehicle exclusion issue there is whether motor excluding interpreted unambiguously all can injury way causally related to the vehicle), (i.e., object a motor use of an inanimate *76 26Ante, pp 701-702. Ins v Freeman by Cavanagh, excluding
or whether it also can be viewed as not negligent injuries loaning by en- caused See West American Ins trustment the vehicle. 1988) (CA Hinze, 263, 7, 843 F2d 267-268 Co (holding negligent supervision that the of child is scope not within the of the motor vehicle exclusion negligent clause no acts were committed because handling respect of, to, in the instrumentality). or with the excluded By contrast, the "intentional exclusion acts” product injury relates to is the of the acts of particular one insured behavior is of a whose intentional). (i.e., type Thus, certain interpret is we must clearly spell
an exclusion does injury out whether all is excluded from by when the is caused both the intentional negligent merely of one acts acts of another. insured and key The difference between the two exclusions is clearly the motor vehicle exclusions exclude negligence liability to the of the all motor vehicle.27The "intentional acts” related use
exclusion, negli- plainly contrast, does not exclude gence liability.
Only by a strained construction exclusion gives possible interpre- priority that tations of the term "an to one of two
insured,” at can one arrive negligent liability the conclusion that entrustment unper- coverage. Thus, I is excluded from am 27 Hinze, supra pointed at the Seventh Circuit out obvious fact that ity policies the motor vehicle exclusions in homeowner’s liabil range negligent are intended to exclude a whole acts: theory, recognized "instrumentality” to the extent it is construing scope the context of of motor vehicle exclu-
[in sions in negligent gent contracts], clearly liability insurance limited to a negli- explicit entrustment action for the reason that finding negligence entrustment includes definition a with the entrusted instrument. *77 656 432 Mich 752 Cavanagh, J. upon majority’s the motor reliance suaded support the conclusion to cases
vehicle exclusion that Allstate duty Marshall to defend has no negligent against entrustment.28 the claim theory upon liability Thus, derivative duty namely, majority relies,29 Allstate’s duty of its to defend derivative Marshall is defend inapplicable plainly Therefore, the here. Alonda, is theory support would of that cited in cases control, applied they this to decide if could be even theory.30 under the derivative case keep issue is in mind that the first also We must duty Marshall to defend has a Allstate whether policy, interpreting Allstate meaning Freeman. When attempt would what to discern we must Judge policy.31 purposes of the the broader serve why Dragovich,32 indicates in his dissent Wahls, policies, liability language as such of insurance the the Allstate policy here, create often
homeowner’s
duty
duty
than the
is broader
to defend
28
But,
ante, pp
least five
I
note that courts
at
690-691.
do
See
language
motor vehicle exclu
similar to the
other states have found
ambiguous.
interpreted by
On
Sunstrum Court to be
sion clause
exclusion,
finding
ambiguity in the
of the
the basis of
these courts have concluded
duty
the insured a
that the insurer owed
arising
negligent
from the use
against
actions
entrustment
to defend
Co,
Douglass
602
981
operation
v Hartford Ins
motor vehicle. See
of a
(CA
Day,
10, 1979);
Casualty
v
657 P2d
United Fire &
Co
F2d 934
(Colo
1982);
Guaranty
App,
Fidelity
Farm Mutual
&
Co v State
U S
(1982); Upland
Co,
190;
App
663
Ill
3d
437 NE2d
Ins
107
Automobile
Mutual
(1974); Republic
Ins,
Noel,
145;
214
Under Allstate has a clear broad obligation against to defend Marshall Freeman allegations Mary Kelly negligently that he dangerous entrusted his wife with a instrumental- pleadings clearly imply ity. The facts that would duty indemnify. make Allstate liable under its Thus, the to defend in this case extends at up point summary judgment, to the since least *78 might that would establish cov- facts be available erage during process Dragovich, discovery. supra dissenting).34 J., I at 508 would (Wahls, Judge apply approach that followed to Wahls the case at bar.35 provided contractually
Allstate has a broad “all 33 against negligent per said that it will defend has " premises if sonal acts of an insured on the the of the household 'even ” ante, allegations p are not true.’ See 739. 34Judge approach, apply duty which I would to the Wahls’ bar, explained further as follows: defend issue at was analysis convincing majority The would more if the issue policy coverage duty claim.
were rather than to defend the party prove negligence necessarily ability of a Where adversary, turns on facts in the control of an fairness the claim considerations of require potential liability with defend that an insurer through discovery process. Summary judgment is inappropriate where an insufficient factual basis exists to de ques policy in fact covered in cide whether claims are Silo, Co, Maryland Casualty tion. Reurink Bros Star Mich Inc v 131 (1983). 139, 147; App 345 NW2d at [Id. 509-510.] here, Judge reasoning applied even if the should be Wahls’ "simply negligence has labeled claim as a count to avoid insured the [her] Dragovich, contract.” exclusions of insurance [intentional-acts] supra at 508. approach given unambiguously contrac- This is a fair one broad voluntarily duty that Allstate has assumed contract tual and inconsistent with the construing generally, to defend ambiguous policy find otherwise would be its exclusion. To policy language, have found as other courts See, liability policies. in homeowner’s under a homeowner’s similar exclusions Milliken, Coverage policy third- for accident, arising party J claims out of an automobile Ins Couns (1986). 146, 150 432 Mich Cavanagh, liability, coverage for a homeowner’s
risk” form coverage attempt to exclude cannot now negligent precisely is claims the kind of exclusionary designed lan- clause to cover. ambiguous, guage only with a but it conflicts is easy provision. coverage case This is broad ambiguities are to be exclusion since construed insured—especially
in favor of provision duty to defend is a broad there where the policy.
VII
conclusion in reli- case must be decided The issue this interpretation principles alone. contract on ance principles following By of insurance established interpretation reach the Court should contract Mar- covers the Allstate conclusion negligent acts. shall’s majority upon which the rationale
The alternate duty namely, Mar to defend relies, that Allstate’s Alonda, is of its to defend is derivative shall accept unpersuasive To Allstate’s on its merits. purely derivative view, Marshall’s *79 liability, or other tort intentional of Alonda’s (as well a matter of tort law incorrect as would be under rules of contract interpretation).36 36 theory liability a Marshall’s tort under Allstate contends "triggered” only by negligent intentional acts of entrustment is (which coverage). from are excluded Alonda negligent were entrustment of the tort of The basic elements explained article: in a recent law review (1) person Negligent elements: a relin- entrustment has three (2) another; instrumentality dangerous
quishes of a control person have known that entrustee knows or should the first is involving instrumentality likely an unreasonable to use (3) by others; injury must be caused of harm to risk entrustor [Note, of automobile related Exclusion and entrustee. Ins v Freeman Opinion by Cavanagh, negligent The tort of entrustment focuses on a type sought different of conduct than Allstate exclusionary poli- exclude cy.37 of its negli- Thus, I must conclude that Marshall’s gent liability separate entrustment is a and inde- pendent liability clearly source of tort ex- policy. cluded policy, the Allstate At least under this separate duty
"Allstate has a and distinct to cover each of the insureds . . . .”38 Since I conclude that Allstate has a shall Freeman to defend Mar- against Mary Kelly’s second complaint, amended I too "would reverse the deci- liability policy, under a homeowner’s insurance 9 U of Hawaii 345, 353, (1987), (5th citing Keeton, L R n 53 & Prosser Torts ed), 33, pp Í97-203; Leitner, Negligent § entrustment of a motor policy, vehicle and Q the homeowner’s 35 Fed’n of Ins Couns (1985). 335, ante, pp Archkr, (opinion See also 732-733 J.). explained The elements of this tort were in Perin v Peuler (On 531, Rehearing), 539-540; (1964).] 373 Mich NW2d negligent depends A upon finding of claim of entrustment that the proximate tortious damages acts of Alonda were the See cause Perin, ("In alleged. supra negligent at 538-540. all cases [of plaintiffs . . proxi- . the cause of entrustment] must be mately negligent connected to some act or omission for which either legally responsible.”) the entrustor or the entrustee is Yet, legal liability only "triggered” Marshall’s is when he acts negligently. prevent danger- His failure to the foreseeable misuse of a instrumentality necessarily precedes ous the actual misuse of the firearm Alonda. Moreover, negligent liability irrespective his entrustment exists (in firearm) dangerous case, instrumentality whether the used in an tortious, intentionally merely negligent, or a manner. significant 37 Ifind it that Marshall Freeman can be held liable in negligence intentionally. whether or not Alonda acts Under a differ exclusion, very context, ent but in a similar factual the West Virginia Supreme pointed Court out: negligent critical element of a [T]he entrustment cause of improper loaning vehicle—improper action is the initial given person in the sense that it is to a who is known to likely [Hug- to cause an unreasonable risk of harm to others. gins Co, (W Tri-County Bonding Va, 1985), 337 SE2d alia, citing, Torts, 2d, 308; inter Restatement Prosser & § (5th Keeton, ed), Torts § 73.] 38Freeman, supra at 357. *80 432 656
756 Mich Levin, J. regard Appeals with to Mar- the of sion of Court Freeman, [Allstate Co and remand Ins shall the issue Freeman] to the trial court” consider duty to Marshall Freeman defend Allstate’s of against negligence.39 allegations the part dissenting (concurring in in Levin, join Metropolitan, part). I In with Justices Cav- concluding the in that and Archer anagh, Boyle, duty to and in affirm- had a defend DiCicco insurer reversing ing Appeals the Court the decision granting dispo- summary decision the court’s trial insurer. sition agree Allstate, I with Justices Cavanagh Appeals that the Court of erred in affirm- Archer
ing summary disposition in favor the trial court’s it was under a on the issue whether of Allstate indemnify duty to defend or Marshall Freeman. separately genuine I because there was write question of material fact on whether issue criminally intentionally acted Freeman Alonda Mary specifically, and, whether she shot more Kelly in or mistaken self-defense. valid Helen i opinion in a The states footnote lead persuaded by signers "are not Alonda Freeman’s in she acted self-defense”2 characterization reviewing testimony of Alonda Free- and, after Mary Kelly, Helen Court man and p Ante, 722. question whether insurer has to defend an insured self-defense, and, where the insured acted the insured acted where self-defense, indemnify despite insured mistaken act, language excluding injury caused an intentional or criminal opinions justices. disposition The factual addressed unnecessary majority of Alonda Freeman’s claims made it question. majority legal to consider this Ante, p n 20. Ins v Freeman *81 Opinion Levin, J. Appeals correctly court concluded that trial rejected properly the claim of self-defense. opinion opinion quotes in the of lead statement " Appeals still no dis- 'there is the Court pute gun pointed in the [Freeman] a loaded ”3 range.’ Kelly fired it close direction and at deposition that on Alonda Freeman testified "[y]ou Mary Kelly bitch, I’m tired Helen said put fucking going y’all to I’m to an end me. with going your you At bitch, it. I’m kill and kids. to began porch point, leaped off her and this she hollering coming my home. was still towards She screaming going to kill me.” she was and Kelly further testified that Alonda Freeman "kept point, my coming. At kids were on hollering, screaming hollering. She was still and going into kill Freeman that she was to went us.” gun. kitchen removed a a cabinet her and hollering, screaming and Freeman’s "kids were coming [Kelly] and she was even worse. She was hollering, going to kill I her she us. could still hear going to the to I returned back was kill us. When way my walkway, door, like a she was all the my porch. this, like as if foot from She to do went going step my porch her foot she was on with to up I and shot her.” was that she
Freeman said her state of mind My defending my "[a]nd was children. herself everything. me said, kill As I she stated she would my children.” response question Kelly was
In to the whether weapon, any "[w]hen said armed with Freeman something leaped porch, have she off her she did happened it, Now, to between in her hand. what sight my house, it, I house because her lost Kelly really focusing point.” When I was on one 3Ante, p n 20. 432 Mich Levin,
stepped up, porch, on the her "balled fists were "[streaming clenched” and she was ing.” and holler- Kelly Freeman fired three when was between away. and five feet response question to the whether when she trying get away Kelly,
fired she was from responded get away trying Freeman "[m]ore so Trying my children, from me. keep to defend me and killing us, her from which she stated she would do.”
Kelly right was hit in the shoulder. Freeman said she "didn’t intend for it to hit certain place.”
ii inquiry summary deposi- The on the for motion tion was not whether the of this Court members persuaded by would be Alonda Freeman’s charac- terization that she whether, in acted self-defense or even justices sitting
if the were as triers persuaded, any fact, we would be so but whether juror might persuaded. reasonable of be so Questions credibility jury are, course, for the and not for the court. genuine
There was a issue of material fact on question whether Alonda Freeman acted self-defense.
hi Group Meere, In Transamerica 143 Ariz Ins (1984), Supreme 351, 356; 694 P2d Court of construing exception public liability Arizona, coverage injury 'expected
for in- "which is by insured,” tended’ said that the principles public policy of contractual "intent” and Freeman Ins v Levin, coincide; exception from cover- provision [the acting age] designed prevent an insured from is knowing that his security wrongfully with piper” company "pay the insurance will by interpreting damages. design is not served That coverage in self-defense provision to exclude acting con- the insured is not situations where "calam- design attempting to avoid a but is scious him. ity” which has befallen continued:
The court the finder of fact is evidence from which [T]here with a risk may decide that Meere was confronted may not he had little control. His blow over which his cognitive process, and have been the result of a Although "voluntary.” may action not have been intentional, conse- its natural his act was quence injury, his basic desire was to cause . . purpose injure. . may not have been to supports analysis. such an authority Substantial Court, analyzing a Supreme after Nebraska number of cases concluded: cited, cases, already
"The evidenced those point in self-defense out that when one acts acting purpose of generally for the actor is not rather, but, intending injury to another prevent acting purpose attempting to for the It said that such easily to himself. can another, act, though resulting bodily injury *83 expected intended within was neither nor resulting from injury .... An terms of the is an act committed an insured self-defense not, law, expected an or intended as a matter of . .” act. Novak, 210 Neb Company
Allstate Insurance
v
636,
(1981);
184, 192-93;
see also
313 NW2d
640-41
Dodge
Co v
Mutual Insurance
Patrons-Oxford
[426
Exchange
(Me, 1981)];
A2d 888
Farmers Insurance
(Minn, 1977); Hanover
Sipple, 255
373
v
NW2d
Cameron,
51;
Super
298
Group
122 NJ
Insurance
760
432 Mich 656
Levin, J.
]
(1973).[4
pp
Emphasis
A2d 715
358-359.
[Id.,
original.]
IV
following
Freeman
convicted
a
Alonda
was
discharging
bench trial
of
misdemeanor
resulting
intentionally
firearm
but without malice
authority
injury.5
body
There is a substantial
having
committed
conviction of the insured of
respect
for
criminal offense in
to the incident
public
sought,
liability
which
insurance
necessarily
injury
re
does
establish that
sulting from
was in
commission
offense
expected by
or
tended
the insured.6
4
Nebraska, Maine,
cases,
policies
In the
and Minnesota
ex
cepted injury
point
injury
expected
from the stand
"which is either
or intended
case,
exception
Jersey
was for
the Insured.”
the New
"intentionally by
of the Insured.”
caused
or at the direction
5
750.235;
MCL
MSA 28.432.
rendering
for
See anno: Criminal conviction as
conduct
provision
liability
insured convicted within
insurance
ex
expected
pressly excluding coverage
damage
intended
insured,
1068;
35 ALR4th
Patrons-Oxford Mutual
Ins Co v
1981).
(Me,
Wilson,
Dodge,
Bay
But
Ins Co v
A2d
see
State
487;
(1983);
726;
Ill 2d
Farm Fire &
71 Ill Dec