Auto Club Group Insurance v. Marzonie

v MARZONIE INSURANCE COMPANY AUTO CLUB GROUP (Calendar 4). 4, Argued No. Decided No. 96828. October Docket J., 13, February by Levin, 1994. filed December Dissent 1995. brought Company Group action Auto Club Insurance an the Court, seeking is a determination Genesee Circuit personal policy injuries result- homeowner’s liable under a occupied by ing firing shotgun of a an insured at an from the property only and dam- intent to scare cause vehicle with the Freeman, J., court, coverage age. R. The Donald held that precluded did because intentional acts exclusion not not the apply, not whether there was an occurrence but did address Instead, injure policy. no actual intent to under the it found expectation certainty no the extent that an and of injure Court inferred as a matter law. The could be Cavanagh JJ., Appeals, P.J., Schaefer, and Jansen, and P. D. curiam, finding unpublished opinion per an affirmed an shooting undesigned noting occurrence the was an and anticipated naturally contingency that was not 132237). (Docket plaintiff appeals. No. The Boyle opinions by joined by Riley, In Justice Justices and joined Griffin, by Chief Mallett, and Justice Justice Cavanagh Supreme Brickley, Justice the Court reversed judgment Appeals. Court of the Boyle joined Riley, Mallett, Justice Justices stated policy must be determined constru- under ing perspective injured of the term "accident” from person. question is trier of and cannot be The for the fact However, exclusionary resolved as a matter law. lan- guage precludes coverage policy law as a matter of expected bodily injury to have the insured should have firing shotgun occupied resulted his at an vehicle. from "occurrence,” provides coverage policy issue for an bоdily injury defined as an accident that results Michigan damage. "Accident” is not defined. accord with precedent, respect perspective, where a silent with is must be from nature of an event evaluated accidental injured perspective. person’s the basis of the lan- On case, injured person’s guage in this evaluated ACGIC v Marzonie perspective, may an accident include an unforeseen conse- quence of an intentional act of the insured. Generally an event deemed accident where the i.e., injured party provokes injury, aggressor blameworthy. otherwise is The facts and circumstances as a applying whole must be in considered the definition of accident: injury injured person’s whether the foreseen from was the case, perspective. culpable In this there was conduct on both facts, disputed coverage sides. Given the whether there was be cannot resolved as a matter of law and is for the trier of fact. Coverage precluded nonetheless is as a matter of law under exclusionary language policy. the of the The insured should expected bodily injury firing have to have resulted from the of shotgun occupied Any his at the vehicle. contention to the contrary reason, sense, flies in the face of all common and experience. Cavanagh joined by Griffin, Justice Chief Justice and Jus- Brickley, concurring part dissenting part, tice and stated that, law, discharge aas matter of the insured’s intentional grill and, a firearm at the the car was not an accident consequently, meaning not an occurrence within the of the thus, policy; unnecessary applicability it is to consider the exclusionary the clause. pоlicy An is occurrence defined in the an as accident that bodily injury property damage. bodily injury results or While case, resulted the events in this whether the act event or causing injury the was an accident must be viewed from the insured, perspective of the not the claimant. Where an insured damage personal injury, to coverage intends cause or denied, irrespective resulting injury should of whether the is Similarly, injury different than the an intended. where in- harm, sured’s intentional acts create a direct risk of there can coverage any resulting damage injury, despite be no or the injure. lack of actual intent to or Reversed and remanded. Levin, dissenting, Justice stated that it was for the trier of fact, Supreme law, and not Court the as matter of decide to discharge on the basis of the facts and circumstances of the insured, by expected the firearm the he or whether intended to personal victim, injury cause the suffered the and thus whether what occurred was accidental and covered plaintiff. issued general policy, liability revision of the standard issue, adopted provides coverage in the for an accident expected nor bodily neither intended. that results from the stand- are to be decided exclusion Both person. insured, injured point than of the of the rather that liability giving is not insured rise The act or conduct of the an, the, An act or conduct insured’s in itself or occurrence.' only if it was an And whether accident. becomes occurrence was an turns on whether insured’s or conduct accident act consequence, injury—not conduct—was ex- the act or consequences pected of intentional or Unintended intended. expected consequenсe or are covered unless such acts is The focus not intended from the insured. conduct, consequence gave rise on the but on whether expected liability part on the insured was intended. single may give rise to A act of an insured conse- volitional unexpected/unintended. quences expected/intended both case, questions intent focus on conse- In such a because about acts, quences, turns whether conduct is an accident on intended, consequence necessarily gives single volitional act rise an accident follows unexpected/unintended, consequence and to a where the happening is not an accident where conse- event expected/intended. quence is is whether conduct an Because expected consequence on whether the is accident turns intended, expected/intended results in when the conduct both unexpected/unintended consequences, there is no more and reason to conclude that the conduct is not an accident than it To is the is. conclude otherwise to focus on conduct consequence expected than the is or intended. rather say injured person unpro- the are To that the insured and by coverage tected for the kind of loss involved in insurance comparatively case insured minor this because the intended truly automobile form the victim’s elevates over coverage comparatively Defeating minor substance. because reading property damage cramped is a of was intended "occur- preced- judicial rence”/"accidental” inconsistent with decisions purpose ing drafting history the 1966 the and revision and of the revisiоn. (i) Because before the revision it was well established coverage consequences provided for unintended of was hence, acts, and, was intentional intentional conduct acci- (ii) unintended, questions injury where dental was about (iii) acts, purpose consequences, not intent focus on and provide coverage revision was where conse- intended, quences they expected were as well as where were ACGIC Opinion by Riley, J. change consequences not to and focus from the to the act or insured, inexplicable injury conduct that an neither expected yet accident, nor intended an becomes not comparatively injury accident because another minor in- was question injury

tended. meritorious is whether the suffered expected standpoint the victim intended the insured. Cooper Garan, Lucow, Miller, Seward, Becker, & Rochkind), (by Gault, Davison, P.C. Rosalind (by Bowers, Hill, Parker & McAra Edward B. Davison) plaintiff. for the Jakeway Kelly Edwin W. and Michael for defendant Marzonie. H.

Edwin Rabin for defendant Oaks. case, J. In this we must construe a home- Riley, owner’s insurance to determine whether coverage exists or the intentional acts exclusion precludes coverage. Specifically, we must decide confronting firing whether the insured’s act of shotgun occupied at an vehicle admit- only ted intent age, to scare and cause dam- consequence personal but with the actual driver, to the is covered insurance where occurrence, covers acts caused but damage resulting excludes from acts either or intended from coverage may the insured. We conclude that while provision exist under the occurrence the test herein, on disсussed the instant facts is for the trier of fact and cannot be resolved as a Nonetheless, of matter law. we because find that precluded under the intentional acts duty exclusion, Auto Club no has defend indemnify. judg- We therefore would reverse the Appeals. ment Court Riley,

I plaintiff sought case, a determina- In the instant does not cover its insurance tion possible liability resulting suit from the tort against brought by Vernon Michael Marzonie parents’ Oaks, policy. homeowners’ under his insured stipulated parties the facts The testimony from an automobile insur- taken earlier case, the record in this ance trial would serve as acting judge the trier with the trial as of fact. that an alterca- Review of that record indicates occupants tion two vehicles arose between respectively. Oaks, Al- Marzonie and driven though conflicting testimony record, there is apparently somebody in Marzonie’s or Oaks’ either gesture to the vehicle an obscene other while made stopped any event, Marzonie at an intersection. urged occupants stepped out of his vehicle and fight. lengthy, This to a of the Oaks vehicle led high-speed throughout City of Flint. chase During chase, Marzonie and friends threw beer occasion, and, bottles at the vehicle on one Oaks through open tossed a side bottle window. ran, until drove home and chase continued Oaks along occupants vehicle, his into with the other pursuit, Marzonie house. Still arrived stopped leaving house, his in front the Oaks engine running. apparently inside, be-

While heard bottles Oaks driveway.1 ing at his house Neverthe- thrown calling police, less, shotgun a instead of Oaks retrieved gun bedroom, his he had never from vehicle, fact, Jeffrey Dingo, pаssenger in Marzonie’s contests Indeed, head him with no however. recollection of the because left Marzonie’s evening, Dingo only person Jeffrey was the evening testify regarding question. Marzonie’s vehicle ACGIC 629 Opinion by Riley, J. proceeded fired,2 and to outside confront and scare Upon arriving outside, off Marzonie and friends. evidencing street, he saw Marzonie’s vehicle in the attempt premises. Indeed, no of to leave the instead

leaving, Oaks testified that Marzonie’s vehicle "crept” slowly causing direction,3 in drove his respond by firing aiming gun Oaks to at grill of Marzonie’s vehicle. Because this shot discharge, shot, did actually he not fired a second which seeing any

hit However, Marzonie.4 not vehicle, visible to the Oaks believed he began missed, and, had as Marzonie’s vehicle to up, attempted back shot, Oaks to fire another gun time again rear tire of vehicle. When the striking misfired, shot, Oaks fired a final one departed, of the rear tires. Marzonie’s vehicle then Dingo Jeffrey taking control of the vehicle driving hospital. Marzonie to As a result pleaded guilty events, Oaks these of careless discharge of a firearm.5

Despite guilty plea, pur- his Oaks testified for poses civil actions that he did not to intend noting easily Marzonie, hit that he could have shot him, Marzonie when he was in front of but instead grill. simply shot at the Oaks maintained that he stop police to wanted the vehicle so the could be called.6 argument record, oral

After and review of the pre- the trial court held that was cluded because the intentional not did acts exclusion Although

apply. properly raised the com- 2 gun question, Oaks testified that he had fired the never but had shotguns prior fired similar on occasions. Dingо Mr. also contested this fact. incident, eye, hearing As a result of this Marzonie lost his left lost ear, places. neck his left and his was broken two 28.436(21). 752.861; MCL MSA 6 However, attempted police Oaks admitted that he never call the retreating once to his house. Mich Riley, first

plaint, addressed never the court Instead, coverage, i.e., occurrence? there an language, exclusionary court relying on certainty injure and no intent found no actual expectation injure could that an so of inferred as a of law. matter Appeals appeal, in an affirmed the Court On May opinion, 21, per unpublished issued curiam 132237). (Docket reviewing the record In No. 1993 review, noting clearly standard erroneous under a occurrence, there to be an Court found contingency undesigned shooting "an naturally expected.” anticipated or was not which Turning op Slip acts the intentional 2. then to at preclu- it not exclusion, likewise found the Court Using subjective coverage. standard, sive Court held Marzonie, anticipated injure intend that Oaks did "the nor was the intentional act Oaks.” result of Slip op at 2. plaintiff’s application granted

This Court April appeal 20, 1994.7 on leave to

ii attempt policy, interpreting we an insurance reviewing parties by first intent of the to effect the language. policy v Ins Co Auto-Owners Churchman, (1992). 560, 566; 489 NW2d 431 440 Mich unambigu- language is clear

When pubic policy, not offend we on its face and does ous simply apply 567; Id. at the terms as written. Czopek, Group 590, 596; 489 440 Ins Co v Mich (1992); Ins Co v Freeman 444 Allstate NW2d Liability Metropolitan Property Ins v Di- & Co (1989). Cicco, 656, 667; 443 432 Mich NW2d ambiguity exists, Moreover, it is resolved if an 7445 Mich 862. ACGIC Riley, J. coverage. insured, i.e.,

favor of the Powers v (1986). DAIIE, 624; NW2d simply policy However, because a does not define a ambiguous. term does not render the Fire Corp, Supp Fund man’s Ins Co v 702 F Ex-Cell-O (ED 1988). 1317, 1323, Mich, n 7 Instead, absent a "given meaning definition, terms are usage.” DiCicco, accordance with their common supra 666. at

Similarly, construing pro- exclusionary when language "strictly vision, the must be construed against Czopek, supra the insurer.” at 597. How- language specific, simply ever, if the is clear and applied. Indeed, must be tenance this Court will not coun-

holding company "an insurance liable for supra Churchman, it did a risk 567; not assume.” Perriere, Kaczmarck v La 337 Mich (1953). NW2d 327 presented case, In the instant arewe with two questions: interpreting scope the first of cover- age, i.e., accident, an occurrence or and the latter construing exclusionary language, i.e., the inten- tional acts exclusion. This Court has determined proper mode of construction first ad- coverage dresses whether exists then turns to exclusionary language necessary. if See Di- supra Accordingly, Cicco, 667-668. at we must first shooting decide whether this rence. constitutes an occur-

in policy, In Auto Club’s occurrence is defined as bodily "accident . . . ... in which results in- jury property damage.” However, Nevertheless, DiCicco, not define in does accident. usage supra, applying Court, common its language, identical held that "an accident is Riley, J. undesigned contingency, casualty, happen- a a ing by something chance, out of the usual course things, anticipated, unusual, fortuitous, of not

naturally expected.” to be Id. 670. While agreed test, this Court on the statement of this a majority yet fully develop of this Court has workings scope of this definition. provided part only DiCicco,

In we of the answer by observing that accidents are not limited to applying Yet, unintentional acts. Id. at 670. definition to the facts of the in the we held that the case, enough” record was not "clear cut to conclude that occurrence, i.e., there was no whether the insured any using had intention of a knife or whether the perceived Indeed, victim it as such. Id. at 672. any DiCicco, the insured disavowed intent to use allegedly harboring knife, the order to scare instead knife away During skirmish, his victim. however, the knife entered the victim’s stomach. construing broadly, Thus, the term "accident” possible to find the actual use of the knife specifically Nevertheless, accidental. we noted that appropriate preclude situations "we do not possibility may that an incident not be considered coverage an 'occurrence’ under the policy.” section of the Id. at n 12. setting hand,

On the other we found the factual Czopek, supra, appropriate to be one of these Czopek, circumstances. ally injured the insured intention- police during two officers an at- tempted police sought compen- arrest. The officers injuries, sought sation for their declaration that there was no and the insurer

coverage. This Court held that no existed because the act of forcibly resisting arrest did not constitute an oc- Indeed, DiCicco, currence. unlike this Court found enough permit finding the record clear of no Czopek, supra occurrence. at 598. ACGIC Riley, Czopek in did a

However, in DiCicco nor neither specifically majority of this Court address from the insured’s should be viewed the accident person’s ‍​‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‌​​‌​​​‌‌‌‌​​​‌​‌​‌‌​‌​​‌​​‌‌‍perspective,8 injured how the or the resulting injury affect a court’s view conduct and of the accident. Piccard, 440 Mutual Ins Co v

In Frankenmuth (1992), three 539, 549-550; 489 NW2d agreed accident, that of the Court members differently although than in the instant defined person’s injured the case,9 perspective. viewed from should be although majority in Moreover, Boyle’s Czopek issue, this Justice did not address policy language explained that under concurrence case, where to that in the instant identical perspective designate in the does not insurer policy, the in- viewed from the accident must be party’s perspective. However, jured Id. at 608-612. majority yet on to achieve a Court has this parties presented by case: the this issue perspective arguing is that the insured’s Auto Club contending controlling the in- and Marzonie perspective jured person’s is controlling._ DiCicco, Indeed, from no occasion ... to determine had "[w]e perspective of the event was to be accidental nature whose viewed.” J.). Boyle, supra (opinion Czopek, controlling argues Czopek partial dissent Justice Griffin’s implicitly an accident from the existence of determines and the insured’s same, language perspective. While perspective. of this fact is Evidence did not decide the issue Court demonstrated 440 Mich Piccard, by reviewing Ins Co v Mutual Frankenmuth (1992), day. the same which was issued 489 NW2d 422 Brickley joined my opinion, There, which lead Justices Mallett controlling. Notably, person’s perspective Justice injured found the Czopek, joined by majority opinion Chief authored the Mallett Cavanagh Brickley, Riley, Griffin. This and Justices Justice fallacy conten- inconsistency of Justice Griffin’s demonstrates tion. accident, in as "an defined "occurrence” Mutual Frankenmuth conditions, repeated exposure which results cluding continuous intended nor bodily injury neither at 547. the insured.” Id.

634 447 Mich 624 Opinion Riley, J.

Turning jurisdic- first to case law from other split authority, tions, we note that there is a of at respect regarding assaults, least with perspectivе to whose controlling.10 survey Indeed, our perspectives the cases reveals that both can be important public policies, said to further with the injured party’s perspective promoting compensating persons for their losses and the perspective deterring persons insured’s from en- gaging Czopek, in intentional or criminal conduct. J.). supra (opinion at 608-609 While we Boyle, competing policy are sensitive to these considera- tions, policy language our review of the instant Michigan precedent and relevant leads tous con- injured person’s perspective clude that is con- trolling. policy language,

From our review of the we glean any respect perspec cannot intent with simply tive because it is hot addressed. Accord ingly, respect where the is silent with perspective, we would hold that the accidental nature of the event must be evaluated from the injured party’s standpoint. Oil, See Ashland Inc v See 72 ALR3d 1090. Insurance ed), 41:8, pp 11-12: accident § In Guerdon 12, 18; in a (2d ed), 41:6, 123 NW2d 143 liability policy. Industries v § p 27, Fidelity (1963), Therein, now at 10 & this Court considered the term Casualty this Court Couch, Insurance, Co of New quoted York, 2d Couch, (rev 'accident,’ "An meaning policies within the of accident insurance, may anything be, begins happens, anticipated that unexpected by is a result which is not and is unforeseen and person injured is, thereby—that or affected place foresight takes expectation without the insured’s design part.” without or intentional causation on his However, even that statement does not resolve the instant injured person’s standpoint evinced, because in one breath the while perspective. edition, in another it is the insured’s In the revised however, explicitly states that "a determination of whether an 'accident’ has occurred must be made from the ACGIC Riley, (CA Purchasing Co, 678 F2d Miller Oil J.).12 (opinion 1982); supra Czopek, at 609 Boyle, perspective designating words, In other ambiguous policy, would construe we in the language against hold that the insurer and would perspective injured party’s Di controls.13 supra Cicco, 665. injured viewing from the

Moreover, the accident however, language, policy we 13. Under the instant Id. at insured.” reject that contention. 12 personal expected or intended Rynearson, Exclusion of See also damage deñnition of the property under occurrence injury standard 513, general liability policy, 521- comprehensive 19 Forum (1984). controls, perspective assuming Justice the insured’s that Even rejects construction apparently rules of traditional dissent Griffin’s anything new, interpretation than imposes more favorable and intended from the insurance a gleaned reasonably anything by that could the drafters policy Griffin states: itself. Justice principled can be drawn distinction that a I submit determining examining consequences of the action consequences insured were intended either whether such expected the direct reasonably because of have been should or risk [Post intentionally by the insured’s actions. created of harm at 648-649.] protect primarily liability policies intended to are The contention given to the insurer. construction is once this broad the insured is lost Indeed, ambiguity language any gives applying policy, the insurer the benefit of he the "occurrence” and construes than the insured rather specifi- provision broadly the insurer that the in favor of so conduct, i.e., type excluding the intentional cally this directed meaninglеss. exclusion, virtually acts The intentional becomes acts exclusion which is Insured.” "bodily injury precludes either It is well established standpoint of the from the or intended Michigan jurisprudence that this subjective part v. policy-blended test. See requires application a however, that the intentional .the so Griffin, rewrites Justice coverage would be needed because never be acts exclusion would language, using to a test almost identical occurrence under the barred Freeman, language interpreted broader, exclusionary objective policy, a view is untenable interpreting such supra. the instant In Accordingly, I submit unsupported by that test is itself. law or case distinction,” creating "principled Justice Griffin’s a instead interpretations contrary clearly unprincipled, to traditional contrary obviously the stricture of policies, to insurance policy itself. Mich Riley, J. person’s standpoint Michigan accord with precedent that construed the term accident under policy. an automobile insurance See State Farm App Coon, Mutual Automobile Ins Co v 46 Mich (1973). plaintiff- Coon, 208 NW2d 532 In sought duty insurer a declaration had no indemnify the insured for his intentional act of hitting person However, his vehicle. Appeals duty Court of held that the insurer had a finding defend, the accident should be injured person’s perspective. determined from the Id. at 505-508. reaching Appeals

In conclusion, the Court of Casualty relied on New Amsterdam Jones, Co v (CA 1943). F2d 191 Jones, the insured person during dispute. business owner shot a person That sued the business owner and won a judgment. injured person sought Thereafter, judgment by garnishing collect on the the insur- company. ance appeal, Appeals

On the United States Court of meaning for the Sixth Circuit had to construe the policy. accident the It first noted that Michi- gan many jurisdictions other have held the intentional except infliction of to be an accident injured person responsible when the is for aggressor it, i.e., an or one who is otherwise blame- worthy injuries. citing for the 193, Id. at Furbush Maryland Casualty Co, v 234, 131 237-238; Mich 91 (1902) ("The NW 135 admit that text-books have been slow to

[an intentional homicide] accidental, majority adjudicated but the cases hold that responsible is where the deceased is in no wise for it”). justify result, To this the court reasoned that the accident must "be determined from the stand- point suffering it, of the one rather than from the inflicting agree. of the one it . . . .” We

Plaintiff, however, maintains that Coon and 637 ACGIC Riley, J. distinguishable Michigan precedent be other suffering persons the cases the those cause e.g., Ripley injuries See, v the insureds. were also Passengers Railway Co, 20 823 Assurance F Cas 1870) (WD (coverage Mich, for exists an insured although policy because, life under a intentionally insurance by another, from killed when viewed accident); perspective, Peterson v it was his Co, 531; Life 292 Mich 290 NW Aetna Ins (1940) pol (coverage life insurance exists under a injured icy death, when viewed from the because perspective, person/insured’s accidental with him). regard have reviewed these authori We acknowledge distinction, the do but we ties and dispositive. Rather, find we find the distinction depart persuasive from reason well-estab no Michigan broadly precedent con that has lished persons seeking except accidents, when strued coverage responsible indemnity are somehow Michigan Moreover, courts the events. while directly where have not injured extended par persоn are different insured jurisdictions precedent ties, find other we any persuasive.15 event, ab that have done so injured policy,16 some indication sent appears majority person’s perspective to be the Assurance see also language the contractual policy dispositive. an accident ambiguity is Moreover, simply 15See, 14 See also Reed v Mutual Benefit Health We perspective, injured 586, 590-591; rather Ashland again generally, against Co, The insurer could occurred. person’s standpoint construed 318 Mich note that than an language but chose Oil, supra 72 ALR3d 76 NW2d because insurer, against 384, automobile or life insurance the insurer if it so desired. not to at 1320. 390-391; have see the insurer. instant controls when (1956); Hooper v DiCicco, supra do Rynearson, made could so. 28 NW2d case It Thus, have did addresses necessary & Accident not, n 12 construing determining explicitly State Mutual (1947). and therefore supra policy is not distinction we find at Ass’n, ambiguous designated indemnity 521-522; Life any Mich Riley, injured person’s per- Therefore, rule.17 we find the spective controlling. reaching

Furthermore, conclusion, we acknowledge reject but that contention possi- itself, conduct of its without consideration result, ble should be determinative of the acciden- holding tal nature of the Such event. a would be contrary Michigan precedent. Indeed, "we estab- possible [DiCicco] lished in have cause of action where the intentional conduct will unexpected injury result in unintended and thus constituting policy an 'accident’ under lan- guage.”18 supra (opinion Piccard, at 548-549 J.), citing supra DiCicco, Therefore, at 670. Riley, that, we reiterate under instant lan- guage, person’s injured and evaluated from the perspective, may an accident include an unfore- consequence seen of an act intentional of the insured.

IV Finding injured party’s perspective that the con- inquiry. trols, however, end does not our As noted precedent Michigan throughout above, generally United States will deem refuse to Oil, 1320, supra In Ashland the Court noted that "[t]his aligned majority decision Louisiana with the view held which that the damages determination are caused 'accident’ must be damaged party made from the that of the rather than from party committing the tort.” 18Indeed, very policies the instant case is different from other specifically determining example, conduct make factor. For St 1012, 1013, McBrayer, Paul Fire Marine & Ins Co v 801 F2d n 2 (CA 1986), "bodily policy covering the court construed tangible resulting from an event.” accidental The explained further . . . "accidental event must be something you expect happen.” didn’t or intend to court held "policy unique that the definition of the term 'accidental event’ is liability avoid calculated to Specifically, based on intentional Id. at conduct.” 1014. policy requires the court noted that that the event be accident, resulting injury. not also the Id. ACGIC Opinion by Riley, injured pro- party event an accident where the injury, aggressor i.e., vokes the is an or is other- blameworthy.19 part public wise on the basis of policy, precedent simply recognizes facts and circumstances as a whole must be consid- applying ered in accident, i.e., the definition of case, under the facts of the was the foreseen injured party’s perspective: from the "An insured who meets death in affray in aggressor which he was the cannot ordinarily be said to have injuries suffered his as the result of accident, for he must be held to have foreseen wrongful [Peterson, result of his acts.” supra 535, quoting at Interstate Business Men’s Accident (CA Lester, 8, Ass’n v 1919).] F 225 certainly culpable case,20 In the instant there Beginning conduct on both sides. with the initial somebody encounter, the record indicates that in gesture one of the vehicles made an obscene to the resulting high-speed other, throughout in a chase Marzonie City point, of Flint. At one while Furbush, supra therein; Peterson, See at 237-238 and cases cited supra 534-536; 1090, 5, pp at 72 ALR3d 1104-1107. § 20 Marzonie disregard maintains that this Court should and not apply precluding finding the case law of an accident where the injured person aggressor essence, was the or otherwise blameful. In Marzonie contends that this issue raised below and therefore preserved appeal. is not Wayne on v Swickard Co Medical Examiner, (1991). 438 Mich 475 NW2d 304 Our review of supports theory the record Marzonie’s that this issue was not raised However, injured person’s below. we note that consideration of the perspective squarely presented Michigan jurisprudence was first 1992, shortly argument Appeals. before oral in the Court of Plaintiff arguments by supplemental addressed these brief the Court of Appeals, essentially perspective but contended that the insured’s control, basing argument controls or should on the lack of majority supplemental in this Court. Marzonie did not file a brief on Indeed, Appeals this issue. the Court of did not rule on the issue of perspective. the case adoption party’s perspective Given our of the insured record, bar at and the contested we do not decide this issue Nonetheless, regarding as a matter of law. sionary language our conclusion exclu inquiry unnecessary. makes further remand on Riley, J. stеpped stopped out intersection, Marzonie at the engage urging vehicle, and friends to his Oaks of in a occupants fight. Furthermore, of the Marzonie throwing beer bottles admitted automobile Oaks automobile traveling through during chase, one bottle window of vehicle. the side culpable is found once Marzo- conduct Further house. Oaks indicated arrived at the Oaks nie driveway, his house and thrown at bottles were Dingo disputes Jeffrey this contention. whereas he came out- Moreover, that when Oaks testified crept gun, vehicle Marzonie’s side with rolled Dingo him, that testified towards whereas happened. Nonetheless, Marzonie did this never reappeared immediately retreat after Oaks not shotgun. until after Not the house with the from the first and second shots Marzonie

were fired did put the car reverse. given disputed that,

Therefore, we conclude law, cannot, of decide that facts, as a matter we blameworthy for the events that Marzonie was so developed undesigned shooting happening by contingency, casualty, chance, out of things, fortuitous, unusual, the usual course expected. naturally anticipated, to be and not high-speed dangerous Certainly nature of this fight, chase, the admitted throw- the invitation to ing vehicle, the failure of bottles at Oaks reappeared immediately retreat once Oaks against finding gun, an accident. the However, all dictate question is for the the resolution of this normally would of fact. remand trier While necessary fact, turn this we to resolve language exclusionary to determine first to the precluded. coverage nonetheless v coverage "bodily excludes Auto Club’s ACGIC Riley, injury which is either ex- pected from the or intendеd supra, majority DiCicco, of this Insured.” language unambiguous Court found the clear "expected language and held that the requires intended” application policy-blended subjec- of a reaching conclusion, tive test.21 In this we noted "expected” the words "intended” and were designed expand policy beyond mere in- injuries.22 Accordingly, Id. at 673. tended coverage language precludes now for both in- expected injuries. tended and previously coverage Court, As construed injuries if is barred for intended the insured in- type injury, tends some albeit the actual magnitude injury was of a different character or C.J.) DiCicco,supra (opinion ("[although at 679 Riley, any injure, speak defendant denies [his] intent his actions louder than J.) 718, 12, words”); (opinion ("[t]hus, id. at n and 720 of Boyle, observes, 731, 11, p post, n as Justice Archer intend the actual exclusionary insured’s claim that insured need not bodily injury inflicted order to fall under the if the words, expect precluded clause.” In other "did not or intend to cause he 'flies ” reason, experience’ in the face of all common sense and [citation J.) ("I omitted]); (opinion id. at n 11 wish to make Archer, bodily injury clear that the insured need not intend the actual exclusionary inflicted in sufficient that pected standpoint” [emphasis 576-577 the order fall within instant clause. It is subjectively the factfinder conclude the insured ex reasonably type some of harm foreseeable from the insured’s Churchman, original]). supra See also at Piccard, (opinion J.); supra (opinion of at 549-550 of Riley, J.) standard, ("using policy-blended subjective ... we look Riley, perspective at the insured’s conduct from his intent to cause some awareness that harm was intentional and evaluate either his or his of his type injury party of to an innocent third likely performance to follow from the act”). J.). 676-678, rule in this where objectively. While I follow this See also state, I contended that an insured’s intent must be reviewed I still adhere to Churchman, policy-blended subjective supra my opinion at 573, n ^[1] test as the DiCicco, (opinion of Riley, supra majority at 22 See, e.g., Gallagher, 370 122 687 Morrill v NW2d (1963) (Where " coverage injury policy excludes for or destruction ” insured,’ intentionally by or at the direction of the 'caused injury). must an intentional act and an intentional insurer show both Mich 624 642 447 Riley, supra Churchman, at 577 See than that intended. J.); supra (opinion Piccard, at of Riley, 549-550 J.). coverage (opinion precluded However, is also of Riley, injuries expected for where the insured likely from harm was to follow "aware[ ] was that performance Piccard, act.”23 of his intentional J.). (opinion supra words, of In other at 550 Riley, precluded if the insured’s claim that he " expect injury 'flies did not intend face experience.’ reason, and of all common sense ’,24 supra (opinion DiCicco, C.J.). J.); (opinion of id. at of Boyle, Riley, agree case, In this we that Oaks intended damage, subjectively cause but did not injury meaning type intend some within of exclusionary language. per- However, are the suaded that Oaks injury we

did or should have accordingly actions and to follow his coverage precluded find a matter of as law. calling The record indicates that instead police, a shot- Oaks returned from his house with gun, weapon previously fired, a that he had never directly confronted the Marzonie vehicle. With occupied directly him, in front of this vehicle Oaks grill car, then fired at the with the unfortu- hitting nate light cially Marzonie in the head. result inexperience firing gun, espe- of his aiming target only at a left when margin persuaded error,25 small Oaks should have we are expected there sub- " alternatively, "expected” Stated 'the word denotes that actor knew or should have known that probability there was a substantial ” actions,’ consequences that certain will result from his " 'natural, foreseeable, so that can be declared the ex ” DiCicco, supra pected, anticipated result of an intentional act.’ (citations omitted). at 674-675 encompass This statement of the test would a realization that “ ” DiCicco, speak 'actions sometimes louder than words.’ insured’s omitted). J.) (citation (opinion emphasis Riley, supra at night, headlights We note that this event occurred at with the shining directly the Marzonie vehicle at Oaks when he fired. With ACGIC Riley, might grill stantial likelihood that he miss the and occupant hit an of the Marzonie vehicle.

Moreover, we note that Oaks did have some experience guns presumably with other had knowledge' regarding operation some and me- gun, including chanics its ammunition. In this shotgun case, Oaks admitted that he loaded the slugs with both and bird However, shot shells. he shooting indicated that at the time of the not know what order the shells were he did

arranged. persuaded fact, Given this knowledge we are that Oaks’ gun that the was also loaded with bird "expected” language shot shells26 satisfies the because he should have likely spray larger some of the shells were radius than the intended in an

target, grill, i.e., likely occupants thus hit one of the of the vehicle. actually injured by The fact that Marzonie was slug change rather than a bird shot shell does not shooting the fact that he should have known that shotgun, slug this shells, both and bird shot occupied likely at the front of this vehicle wаs bodily injury simply result in damage. rather than words, facts, other on these we conclude that expect the contention that Oaks did not intend reason, "flies the face of all common experience.” inexperience sense and His and train- ing gun, margin given with this the small for error position vehicle, the use of both bird slug shells, shot and aiming and the overall intention in occupied persuade at this vehicle us that precluded as a matter of law.27_ obstacle, aiming hitting this added the likelihood of not target intended increases. adequately The record indicates that Oaks knew the difference slug only projectile between a that releases one and a bird shot that numerous, projectiles. releases small "thought Oaks testified that he the shell had either went [sic] Griffin, J.

VI question, respect the first sum, with bodily shooting, which resulted this policy, injury, hold we the insurance is covered construing coverage determined must be that the term "accident” person’s injured from the perspective. instant test and on the Under this question for the trier of facts, however, is left this matter resolved as a cannot be fact and therefore of law. language exclusionary of this

Nevertheless, coverage policy precludes law and as a matter of coverage makes further consideration thus Using policy-blended unnecessary. subjective test, have find that Oaks should we firing bodily injury expected shotgun to result occupied Any vehicle. con- at Marzonie’s expect bodily did not intend that he tention simply all "flies in the face of to result experience.” Accord- reason, ingly, and common sense of the Court reverse the decision we would proceed- Appeals the case for and would remand opinion. ings with this consistent Boyle JJ., Riley, Mallett, with concurred J. dissenting (concurring part J. Griffin, opinion’s Although agree

part). the lead I of the Court of the decision ultimate reversal Appeals, holding respectfully from its I dissent may at issue constitute the incidents over, everything had or it over the whole car or had went over went admission, along . . . This the cement off and skidded over marksman, expert acknowledgment that he is not a with Oaks’ shooting occupied at an vehicle our conclusion that further buttresses precluded potential occupants of ‍​‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‌​​‌​​​‌‌‌‌​​​‌​‌​‌‌​‌​​‌​​‌‌‍fire should be are in a line where from policy language. coverage under the instant ACGIC v Marzonie Opinion by Griffin, occurrence under the terms of the liability policy. I would hold matter of as a law that the insured’s discharge intentional of a grill firearm Marzonie’s car not an accident. Consequently, "occurrence,” no within meaning of the liabil- ity policy transpired, has and it is unnecessary consider applicability exclusionary clause.

An analysis of insurance must neces- sarily begin with the relevant contractual lan- guage. provisions The applicable state: agrees

This Company pay to on behalf of the Insured all legally obligated which sums the shall Insured become damages to pay as because of bodily injury property or . . . caused by an [Emphasis occurrence. added.] An "occurrence” is defined as "an accident . . . which ... in results or bodily injury damage.” No one disputes that bodily injury re- sulted from the unfortunate events of the night giving rise to this case. key question is whether these events can aptly be characterized as an "accident” under the terms of the policy.

Since policy "accident,” the fails to define the opinion lead . . insurer .

Recognizing primarily liability insurance is insured, as intended to evidenced benefit payment premiums, I inimical believe his injured’s theory to to contract conclude determining controlling perspective 2 Ante at 684. 3 Law, Jerry, Understanding p See Insurance 15. 4 (rev Insurance, ed), 44:1, Couch, p 185; Appleman, 11 2d 7A § 4491, Practice, p & 4. § Insurance Law 5 Couch, 44:3, p supra, n 187. § ACGIC Opinion by Griffin, an "accident” has occurred under the insurance contract. I would conclude that the contractual policy compels nature us to view the action perspective.6 or event from the insured’s agree opinion’s Moreover, I do not with the lead Michigan precedent” sup- assertion that "relevant ports adoption "injured” perspective its approach. A closer examination of "relevant Mich- igan precedent” only reveals that confusion has abyss attended our recent excursions into the insurance "occurrences.” opinion

The lead asserts that neither in DiCicco nor in [Group Czopek, v Ins 489 NW2d 444 (1992)] did a majority of this Court specifically address whether the acci- dent should be viewed from the insured’s or the injured person’s perspective .... [Ante 633.] suggest reading opinion Yet I a careful of the lead Czopek perspective discloses that the insured’s controlling: deposition, his Mr. Smith admit- [the insured] ted that he prevent intended to the arrest. His actions, biting swinging his legs, arms and were intended to make it impossible for the offi- get cers to easily him squad into the car and on way his police to the station. Because of Arthur Smith’s deposition, admission his we are unwill- ing to arrest, conclude that resisting his which injuries resulted in policemen, to the was an "acci- dent.” It clearly undesigned was not an contin- gency something happened by chance. [Id. at 598. Emphasis added.] major- On the basis of the admissions, insured’s Sherburn, law, See Sosin Wayne & Insurance LR (1994). by Opinion Griffin, J. injury-causing

ity this Court concluded his Al "accident.” not deemed an could actions Czopek expressly though majority in did not perspective was control that the insured’s declare adoption perspective ling, implicit was of the insured’s impetus provided analysis in its n.7 concurring opinio the contractual Since Czopek language language in is identical to the opinion position bar, at of the lead the case cannot be reconciled Czopek. I continue to Czopek correctly decided, and would was believe apply it to the case before us.8 analyze this case from the insured’s

I would perspective, focusing injury-causing act or on the resulting property its to the event and relation personal injury. Despite the connota- recognized "accident,” we have tions of that an insured need word unintentionally not act for an act to be an "occurrence.”9 Conse- order quently, problem attempting to distin- arises guish be classi- between intentional acts that can I "accidents” and those that cannot. submit fied as that a principled be drawn distinction can examining determining consequences action consequences such either

whether reasonably intended the insured should were risk have been because the direct (Boyle, J., concurring). See id. at 602 separately con- I write to state that because the insurance require nature tract does not an examination the accidental perspective event insured’s to determine bodily an "accident” that resulted the officers’ occurrence, injuriеs the accidental of the event nature perspective. viewed must be from the officers’ 8Moreover, I note that this Court’s decision in Frankenmuth Mu Piccard, (1992), 539; does Ins Co v 440 Mich 489 NW2d 422 tual opinion, only support the conclusion of the lead since three members perspective. "injured” embraced of the Court Piccard, Freeman, supra supra at 670. ACGIC Griffin, intentionally harm created the insured’s ac- intending tions. When an insured acts to cause property damage personal injury, liability or cov- erage irrespective denied, of should whether the resulting injury is different from the in- Similarly, I tended. would hold that when an insured’s intentional actions create direct risk of liability coverage any harm, resulting damage there can be no for despite injury, or of lack an injure.10 actual to intent comport rules These with the contractual nature liability policy recognize of a its inherent protect function to an insured from the un- unexpected consequences intended and of his ac- Liability tions. insurance does not exist to insulate an insured from the ramifications of his inten- designed reasonably expected tional actions to property damage personal injury. cause Addi- support tionally, these rules find in our decision Czopek, signed by which was five members apply reasons, I Court. For these would these rules to case bar.

Oaks did testified he not intend to shoot grill only Marzonie, but intended hit to stop Marzonie’s car in order to it and call to police. Oaks’ assertion that he not did intend to to shoot Marzonie should remove the bar coverage arising from his admitted intent cause damage. resulting That the nature harm differed from the intended harm is irrele- coverage. purposes for vant I would hold thаt Oaks’ actions cannot be characterized as acci- consequently, dent, and there has been no occur- Accordingly, coverage liability rence. is no there injuries. resulting for the

I would reverse the decision the Court of Piccard, (Cavanagh, supra C.J., dissenting). at 557 Levin, J. Dissenting Appeals "oc- has not been an there and conclude currence.” J., C.J., concurred Brickley,

Cavanagh, J. Griffin, Supreme following opinion the Clerk of the was filed with 13, 1995, opinion February of the the release on after Court 1994—Reporter. on Court December Group (dissenting). Auto Club Plaintiff Levin, Company an insurance Insurance issued providing Clifton Vernon Oaks defendant liability "occurrence,” defined caused bodily injury "accident,” that results mean an "expected” from the stand- nor "intended neither point of insured.” the question presented a de- in this action for

The claratory judgment Auto is sub- Club might liability damages ject to for be assessed personal injury against defen- for suffered Oaks Marzonie, II, as a of the Michael W. result dant discharge by of a Oaks firearm. justices a is no as

Six rule there rule, Three not because matter of law. intended or Marzonie, so Oaks bodily injury expected to cause to expected because he "should have but firing shotgun bodily injury at to result from added) (emphasis occupied Marzonie’s vehicle”1 opinion,2 though, he fired as stated in their even only scare cause the intent to and "with admitted justices . . . .”3 The other three intersection near speed parents’ came embroiled in a Marzonie, 3 Id., p 627. Marzonie Ante, chase house, p 644, stopped ensued. Oaks Vernon and entered Riley, J., Flint. After dispute Oaks, front of Boyle drove the and heated house. November, 1986, and his the house, Mallett, vеhicle into words were occupants and JJ., began throwing of their vehicles be- while the exchanged, concurring. driveway stopped a bottles at an high- his ACGIC Dissenting Opinion by Levin, do not reach the whether Oaks intended bodily injury to cause to Marzonie. They so as a rule matter of law Auto Club they liability because conclude that Oaks’ to Mar- zonie was not caused an "occurrence”/”acci- they dent”; conclude, so not dis- because Oaks charged intentionally, the firearm but because he driveway. shotgun, at house Oaks retrieved which he Marzonie, hoped claims he scare and went outside. began creep up driveway. Marzonie’s vehicle Oaks aimed the gun preventing said, grill hope, at vehicle’s and fired a shot in the he approaching the vehicle from closer. After the shot first fire, again. failed to Oaks fired Oaks did see the second hit shot vehicle, Oaks, thought had he missed. Unbeknownst to began up, shot had struck Marzonie. Marzonie’s vehicle to back turned, away. and then started to move Oaks at aimed third shot stop the rear tires in an effort to shot vehicle. This did not fire. Finally, Oaks a fourth shot that one fired hit of the rear tires. action, seeking Club Auto commenced this a declaration that cover- age The ted to the Mich NW2d parents under a homeowner’s issued to Oaks’ was excluded. parties stipulated testimony that the and other evidence submit- (Marzonie Ass’n, jury in a related v case Auto Club Ins 441 483 522, 523-526; [1992],rev’g App NW2d 193 Mich [1992]) judge, would be the record on which circuit as fact, questions trier of would decide the factual in this action. The Marzonie, judge coverage; found for there was he said: "[i]t certainty produce injury cannot be concluded there was a which require expectation wоuld an inference there be an would to cause firing weapon not, that result. The in this case could standpoint, insured’s cause the which came about.” Court The Appeals Marzonie, Group unpublished of opinion per Auto affirmed. Club Ins Co v (Docket curiam, 132237): May issued No. Appeals Court said: shooting undesigned contingency of Marzonie was an [T]he anticipated naturally expected. which was not tional unexpected rence within the plaintiff. Oaks’ inten- shooting in an car resulted unintended and Marzonie, thereby injury constituting to an occur- by the terms of homeowner’s issued subjective by The Court the added under standard enunciated DiCicco, Metropolitan Property Liability this Mich Court & Ins Co v 432 656; (1989), 734 443 NW2d and followed in Frankenmuth Mutual (1992), Piccard, 539; Group v Ins Co 440 Mich 489 422 Co of NW2d Ins 590; (1992), Michigan Czopek, v 440 Mich 489 444 NW2d and Auto- Churchman, (1992), Owners Ins Co v 440 Mich 431 489 NW2d the trial court’s conclusion that cle, to vehi Oaks intended shoot Marzonie’s Marzonie, clearly but not was not erroneous. Mich 624 652 Dissenting Levin, J. damage

discharged the intent firearm with Marzonie’s automobile.4 personal injury that whether

I would hold intended, or was Marzonie suffered accidental, from the decided should be depends and, on Oaks, insured, because that discharge by and circumstances of the facts firearm, can- the meritorious Oaks not be decided of pected Since the trier as a matter of law. injury neither ex- 6that the fact decided5 injury Oaks, the awas nor intended although the dis- result of an occurrence/accident charge and firearm was intentional Oaks and Marzonie’s automobile intended damage. cause hence

i general Before the 1966 revision the standard policies provided liability policy, coverage generally liability personal by an for caused "acci- dent.”8 was not defined in the Because "accident” developed judicial policy, definitions. There courts many designed implement were definitions7 principle provides fundamental that insurance cov- erage for fortuitous losses.8

It became well established that where conse- quences unintended, of intentional acts were accidental, and, hence, loss was there was insur- resulting coverage for unintended ance losses 4Ante, 649, Griffin, J., Cavanagh, C.J., Brickley, pp 645 and J., concurring. 3. See n 12,14 ns 16. pre-1966 policies specifically Some excluded loss intentionally by "caused or at direction the insured.” See (1963); Gallagher, 583; 122 Morrill v Putman v 370 Mich NW2d (1964). Zeluff, 553, 555; 127 372 Mich NW2d 374 accompanying See n text. Law, Widiss, 5.3, p 475. Keeton & Insurance § ACGIC 653 Dissenting Opinion Levin, J. explains A intentional conduct.9 treatise that be- "[f]ortuity, primarily thereof, cause or the lack "questions intent,” law, matter of insurance consequences, on the about intent focus not the (Emphasis original.)10 acts.” Although concept fortuity generally in- analysis volves an insured "intended consequences,”11 many courts concluded that whether there was an should accident standpoint injured be decided from the of the person.12

A industry accepted judicial The insurance policies provide liability coverage construction that consequences acts, for unintended of intentional judicial provided coverage but not decisions that "expected” consequences courts were prepared actually to find were intended. Nor accept industry judicial did decisions determin- ing coverage injured from the person. part comprehensive As of a revision of the general liability policy, the standard was coverage revised in 1966 to exclude where the 9 Accordingly, ascertaining we find that the insured’s "intent” may determine whether the insured’s actions constituted an "accident,” necessarily but it does not follow that an insured unintentionally must act for an act be an "occurrence.”10 10See, (rev Couch, Insurance, generally, ed), 10 2d 41:7 et §§ seq._ Freeman, 656, 670; Ins Co v [Allstate (1989) 432 Mich 443 NW2d 734 C.J.). Riley, (opinion Emphasis added.] Piccard, Riley, supra, J.), p (opinion opinion, n the lead signed by justices, may three said that there "where the unexpected intentional conduct will result in unintended and constituting thus .” an 'accident’ . . . Widiss, supra. Keeton & n 8 11Id. (rev Couch, ed), Insurance, 44:288, p 12 11 2d 444. § Dissenting Opinion Levin, J. injury, consequences conduct, the of the insured’s actually "expected” it was as well as where injury was intended, expected whether the and to determine standpoint of the the or intended from injured standpoint the of the rather than insured person.13 Insuring to revised in 1966 read:

The Clause was of the Insured Company pay "The will on behalf legally shall all sums which the Insured become damages bodily obligated pay to as because damage this insurance property or to which injury applies .... by caused an occurrence " to mean: 'Occurrence’ is defined accident, injurious exposure to including ... conditions, during period, the policy results which bodily injury property damage in pected Insured.”[14] or neither ex standpoint from the the nor intended policy by Auto insurance issued Club The substantively 1966 the same as the revi- Oaks is sion of general policy. liability The standard provides policy pay it will on Auto Club the insured be- behalf of insured sums damage legally obligated pay as because comes of term "occurrence” is defined dent” that bodily injury by "caused occurrence.” "an mean acci- during

"results, term, separate property damage.” bodily injury or In a coverage "bodily clause, injury for excludes property damage is either ex- which (Boyle, J., concurring). Czopek, p supra, 3n n 10 See comprehensive policy: changes, Tarpey, The new Some of (1966). Ins J Couns repeated” or later substitutes "continuous or Another version Couch, "injurious,” policy period.” "during n eliminates 44:285, expected supra, p Rynearson, Exclusion or in- § personal injury the occurrence under tended liability comprehensive general policy, 19 of the standard definition (1984). Forum 513 ACGIC v Marzonie by Dissenting Levin, from pected standpoint intended insured.”15

B The 1966 provides coverage revision for injury " 'Occurrence’ means caused an "occurrence.” ‍​‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‌​​‌​​​‌‌‌‌​​​‌​‌​‌‌​‌​​‌​​‌‌‍added.) Thus, an accident.” (Emphasis coverage is provided for injury caused accident.

It then provided that a covered accident is one "which results ... . . . neither ex- nor pected intended Thus, provided,

insured.” somewhat caused circularly, for an injury an accident results in an injury neither nor intended.

Eliminating circularity, coverage provided is 15 provides: policy The Auto Club

COVERAGES COVERAGE E—PERSONAL LIABILITY Company agrees pay This to on behalf of the Insured all legally obligated which pay

sums as the Insured shall become to damages bodily injury property damage, because of applies, which this insurance caused an . . . occurrence. accident, "[Ojccurrence”: including injurious expo- means an conditions, results, during term, policy sure to which bodily injury property damage. EXCLUSIONS apply: This does not Coverage Liability Coverage 1. Under E-Personal F-Med- Payments

ical to Others: bodily injury f. to which is either ex- pected or intended the insured. Mich 624 656 Levin, Dissenting Opinion bodily nei- that results for an acсident ther nor intended. components of the a number of

There were judicial constitutes definitions what various concept including "accident,” accident in time is a event which identifiable "sudden place defining .” include . . . In "accident” and "injurious exposure conditions,” the 1966 revi- accepted judicial that elimi- sion also nated able-in-time-and-place requirement.16 decisions sudden-and-unexpected-event-identifi- components judicial still other There were Some definitions exclude definitions accident. consequences, but, because foreseeabil- foreseeable ity generally might

equates negligence, this coverage negli- no mean that gent there would be for liability result in a conduct "would significant of no value to insured.”17 Piccard, 440 Mutual v Frankenmuth Ins Co (1992) (opinion 539, 547; Mich 489 NW2d J.), opinion18 in the the lead observed Riley, opinion19 Freeman, Ins v lead Allstate Co (1989) (opinion NW2d Riley, C.J.), meaning Court of "acci- considered the 16Wendorff, comprehensive general liability The new standard (1966 Ins, Neg Comp proceedings), pp policy, on ABA Section & Law 250, 253. 17Rynearson, supra, p n 14 515. negli liability policies provide It fundamental gent or conduct of insured. Cross Zurich Accident acts v General (CA Co, 7, 1950). Liability & Ins F2d strong reasonably enough be to alert a "The indications must

prudent only possibility occurring man the results not of but the indications must be to forewarn him that also sufficient highly accompa- likely [Freeman, are to occur.” text results 675, 19, nying p quoting City of v n Carter Lake Aetna (CA 1979). 1052, 1059, Co, 8, Casualty Surety n 4 & 604 F2d Emphasis added.] 18Signed by justices. three 19Signed by justices. two ACGIC v Marzonie Dissenting Levin,

dent,” "occurrence,”20 used to define as and the following definition was offered: undesigned contingency, is an accident a [A]n chance, a

casualty, happening something of out fortuitous, things, unusual, the usual course not anticipated, not naturally expected.[21] and to be Since under policies occurrence-based finding "accident,” is on a predicated it is un- derstandable that courts continue to address is there an "occurrence”/"acci- dent,” as well as whether the injury was is intended. This nevertheless somewhat circu- lar because is difficult injurious conceive of an case, companion Metropolitan Property Liability In the & Ins Co v DiCicco. Czopek, supra, p quoted fully n In this Court more Industries, Fidelity Casualty York, Guerdon v Inc & ofCo New 12, 18; (1963), quoted 123 NW2d 143 the source of the definition in Freeman/DiCicco and Piccard: meaning policies An "accident” within of accident may be, anything begins happens, insurance anticipated that is a result which not and is unforeseen and unexpected by person injured is, thereby—that or affected place foresight expectation takes without without insured’s design part. or intentional causation on other his

words, undesigned casualty, contingency, an accident a chance, happening by something out of the usual course of things, unusual, fortuitous, anticipated, naturally and not expected. to be (2d Couch, ed), The Guerdon definition taken from 10 Insurance 41:6, 27, p opinion, Smith, which Justice Otis M. § author 18) said, (Guerdon, supra, p vintage ofwas "1962 and reflects what is currently a noted injured person policy,” understood word 'accident’ as used such a comprehensive general liability policy. and automobile It will be speaks standpoint the definition both from the and the of the insured. construing There are four decisions of this Court the 1966 revision general liability policy. Marzonie, of the standard case instant Freeman/DiCicсo, Piccard, companion case of DiCicco in Czopek. justices signed case, opinion Three the lead in the instant Marzonie, Freeman/DiCicco, Piccard, signed signed two three five, signed Czopek. majority, Mich Dissenting Opinion Levin, J. expected consequence that intended nor neither meaning within the not be an accident would coverage. the expected injury nor intended is "an neither

An happening undesigned contingency, casualty, something by chance, course of out of the usual anticipated, things, fortuitous, not unusual, naturally expected.” to As stated three not be p may supra, justices Piccard, there be coverage will re the intentional conduct "where unexpected injury thus sult constituting unintended (Emphasis . . . .” an 'accident’ added.) finding or neither A conclusion would, not an I nor accident intended focusing misanalysis venture, stem on act injuri- rather than the or conduct the insured22 consequence, contrary and would ous "questions principle that about in- insurance law consequences, focus on the the acts”23 tent (Emphasis original.)

Focusing on act or conduct would also be language contrary policy. act giving liability rise to is not conduct in itself insured an, the, act occurrence. An insured’s only if it was an conduct becomes an "occurrence” And whether the insured’s act or conduct accident. on accident turns conse- quence, injury—not act or conduct—was expected or intended._ acknowledge concerning 22 1 reasonable inferences in may be acts or

sured’s intent drawn from conduct. his n 10. One commentator stated: "The new under the has been broadened [Wendorff, supra, p Emphasis an 'occurrence’ n 252. basis.” added.] ACGIC v Marzonie Dissenting Opinion by Levin,

II justices opinion Three are of the the "acci- inquiry dent” should Continue to be from decided standpoint injured person. the the This view or reading language policy contrary of the of the is purpose coverage the 1966 revision’s to determine standpoint from the of the insured not and the standpoint injured person. of the

The of the drafters 1966 revision not did intend injury that, while the was expected or intended be would determined from standpoint insured, of the there would con- separate preceding inquiry be a tinue to there whether from the was an "occurrence”/"accident”

standpoint injured person.24 of the aAs adopted revision, result of the 1966 in the Auto policy, coverage ques- Club both the and exclusion standpoint are to tions be decided of the standpoint injured insured, rather than the of the person. justices similarly opin-

Another three are of the separate ion that there should continue to be a preceding inquiry whether there was an "oc- They currence”/"accident” that was an accident. conclude where the intentional conduct re- justices Those three would read the definition of "occurrence” in following the 1966 revision as if the words underlined in the revision of that definition were added: accident, including injurious exposure conditions, ... standpoint person suffering loss, determined from the of the during policy period, bodily injury

which results property damage expected neither nor intended from the stand- point of the Insured. acknowledge "bodily injury property damage I words expected standpoint neither set nor intended from the of the insured” are forth the Auto Club in an rather exclusion than in the change definition of occurrence. That locational difference does not meaning сoverage provided. Czopek, or the But see (Boyle, J., supra, pp concurring). n 13 Dissenting Opinion Levin, J. unexpected/ expected/intended both suited consequences, was not unintended ’’ I un- / am "accident. "occurrence’’ caused pre- purpose agree. 1966 revision’s able coverage cluding an unintended conse- where expected quence the conse- precluding well as where as quence intended, include did consequences simply unexpected be- consequences that were there were other cause expected or intended. long decided, 1966, that it was before

When consequences of intentional acts were unintended unless, revision, the unin- covered tended since expected consequence or intended from was insured, it was decided the the focus consequence

should on whether liability giving intended, rise to and not the insured’s conduct. give single may of an

A volitional act insured consequences expected/intended and rise to unexpected/unintended. both case,

In such because "questions golden thread in insurance law is that consequences, intent on the about focus (emphasis original),25 in and whether conduct acts” consequence whether is an accident turns on is expected though necessarily follows, intended, it al- might intuitively otherwise,

one that feel single gives of the rise volitional act insured consequence is unex- an "accident” where pected/unintended, happening to a and event consequence not an where the that is "accident” is expected/intended.26_ n 10. Piccard, 18, opinion accompanying supra, p The lead text n stating that "the 'accident’ occurred when Deane [fireman] store,” recognizes unexpectedly from of Piccаrd’s fell the roof music might that more than one effect "occurrence”/"accident” seen Piccard, arising singular from as torching conduct insured—in the the and, falling building, separately, fireman ACGIC v Marzonie Dissenting Opinion Levin, J.

Since whether conduct is an accident turns on consequence expected intended, whether the is expected/ when the conduct results in both unexpected/unintended and conse- intended quences, there is no more reason to conclude that the conduct is not accident than that is. To conclude otherwise is to focus on the conduct consequence rather than or intended. many, possibly most, cases, there will be but consequence conduct,

one insured’s not both unexpected/unintended consequences ex- pected/intended consequences. Denying coverage unexpected/unintended consequences where adventitiously expected/intended ‍​‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‌​​‌​​​‌‌‌‌​​​‌​‌​‌‌​‌​​‌​​‌‌‍there is conse- quences line-drawing is unexamined unrelated to any purpose history adjudi- 1966 revision or the gave cation that rise to the 1966 revision. truly say

It form elevates over substance injured person unpro- the insured and the tected are coverage insurance for the kind of devas- tating loss involved in the instant case comparatively because the insured intended minor damage age Defeating to Marzonie’s automobile. cover- comparatively

in the instant case because cramped minor was intended is a reading of "occurrence”/"accidental” inconsistent judicial preceding decisions the 1966 revision drafting history purpose of the 1966 revision. (i)

Having revision, mind before the provided it was well established that consequences acts, for unintended of intentional and, hence, intentional conduct was acciden- (ii) injury unintended, tal where the was "questions consequences, about intent focus on the store; case, damage roof of the in the instant to Marzonie’s auto- mobile, and, separately, physical injury to Marzonie. 447 Mich Dissenting Levin, J. (iii) original), (emphasis the acts”27 not provide purpose cover- towas of the 1966 revision expected consequences age well as were where change they intended, and not to where were as consequences act or to the the focus inexplicable that an insured,28 it is conduct injury yet expected not an intended nor neither an- because accident, not an accident or becomes compara- particularly injury, one, here, as other tively was intended. minor

iii injury question is whether The meritorious expected or intended was suffered Marzonie Oaks, Three the insured. from the expected justices conclude that question intended, three do not reach they no occurrence/ that there was because decide accident. Co, 447 Mich v Allstate Ins Buczkowski (1994), day after Marzo- decided the

526 NW2d decided, a decision of this Court affirms nie was duty Appeals Allstate had a the Court indemnify injuries Bucz- insured for suffered its shotgun fired kowski when the insured his hitting Buczkowski’s truck but the intent of majority and hit Buczkowski. bullet ricocheted opinion, Appeals, unreported of the Court injury "may reasonably that whether the found the insured’s actions to result” from meaning in the Allstate of an exclusion within policy29 fact for the was a jury._ n 10. I, part immediately following paragraph n 23. See the last in Freeman and Buczkowski was not The Allstate involved policy, the words "occurrence” or did nоt use an occurrence-based "accident,” incorporate language of 1966 revision of did ACGIC by Dissenting Opinion Levin, J. jus- Buczkowski,

This affirmed in three Court agreeing reasoning with tices of the Court of Appeals, justice concurring one in that result. signed opinions signed I- concurring opinion both for affirmance. I agreed I

because with the con- curring justice "highly likely”30 that it was provided general liability policy, the pay but standard that Allstate would obligated person legally pay all sums that an insured becomes to damages damage bodily injury property as of or with because following exclusion: any bodily injury We do not cover or which may reasonably expected result from the intentional or person criminal acts an insured which inis fact intended person. an insured 30 appears general agreement injury It that there is that is expected Buczkowski, "highly likely.” accompanying when text Boyle, J., supra, opinion J., p 672; opinion Brickley, p 676; n 29 Freeman, supra. Casualty Co, 1084, In Bolin v State Farm Fire & 557 NE2d (Ind 1990), App, appellate distinguished an Indiana court between expected injury intended and in a firearm case: "Intended” has been as a with defined volitional act con- (see bring

scious desire about certain results Ins Co Allstate (1990) Ind., 844, citing v Herman 551 NE2d Home Ins Co v App 445; (1975)]) Neilsen Ind 332 NE2d 240 and "ex- [165 pected” slightly category as a broader which includes conscious practically that awareness desired results are certain to occur. [Emphasis added.] Dodge, See also Patrons-Oxford Mutual Ins Co v 426 A2d 1981). (Me, (Ind Graham, In Indiana Farmers Mutual Co v Ins 537 NE2d 510 1989), App, appellate another Indiana court earlier considered the "bodily injury property damage exclusion for expected which is either intended from of the insured” in an policy. quarantined farm occurrence-based The insureds’ because hog their herd had become the broker, infected. insureds sold infected quarantine animals with notice of the disease and resold to a who them, quarantine, without notice of the disease or to the plaintiff was held infected animals within the underlying action, in the herd infected. It whose had become "expect” damage the insureds did not sale of meaning exclusionary clause they consciously resulting prop- absent were aware evidence that the plaintiff underlying erty damage "practically in the action was they certain” when herd to occur sold the to the broker with disclo- quarantine. sure of the herd’s infection and Mich Dissenting Opinion Levin, discharge firearm aimed at Bucz- per- unoccupied truck would result kowski’s opinion signed injury. I I the lead because sonal agree signers opinion the other ordinarily Appeals that the Court of insured, or intended what subjectively objectively, assessed by trier fact.31 should be decided of distinguishable are on Buczkowski and Marzonie un- in Buczkowski was the basis that the vehicle occupied and the vehicle in Marzonie was occu- important, pied. factual difference is While this likely personal injury is, indeed, and it more that firing gun occupied result from the of a at an will unoccupied may vehicle, than at an a court vehicle not in effect direct a verdict for the insurer declar- ing that there is no unless—where the (as question Czopek, DiCicco, arises in Piccard and question The whether the insured or intended to cause Marzonie, Freeman, DiCicco, Czopek, injury and in Piccard was decided Churchman, questions supra, n 3 is the as law. Buczkowski justices, opinion, recognize first the in which three in the lead that case by question generally one of fact to be decided the trier of fact. (In DiCicco, 711, supra, p recognized disposition n 20 it was that the declaratory judgment did not involve a determination of of the action duty indemnify.) the insurer’s questions Although declaratory judgment, action for a this is an 2d, 22A fact are to be decided Declaratory a trier of fact. See Am Jur 228-230, Judgments, pp 867-872. In Brohawn v Trans- §§ Co, (1975), 396; Maryland’s highest Ins 276 Md 347 A2d 842 america where the ultimate issue would be decided in a court said that brought by party, inappropriate grant pending action a third “it is declaratory judgment.” opinion in the instant case of Marzonie would hold that The lead injured party’s, party’s, perspective rather than the insured facts, cannot, controls, "given disputed that we as a concludes law, blameworthy matter of events that decide that Marzonie was so developed shooting undesigned that was an contin- chance, happening by gency, casualty, out of the usual course of unusual, fortuitous, things, anticipated, naturally and not to be However, question expected. . . . of this is for the trier the resolution added.) Riley, J., ante, p (Emphasis language fact.” 640. The of the of test or standard followed definition opinion in the on the Guerdon lead based Freeman/DiCicco, adopted Czopek. n 21. Piccard and ACGIC Dissenting Opinion Levin, Marzonie32) language under the occurrence-based general of the 1966 revision of the standard liabil- ity policy—all persons agree reasonable must personal injury subjectively33 expected was or in- (as tended, or—where the arises Free- Buczkowski) policy— man and under the Allstate persons agree personal all reasonable must objectivеly34reasonably expected. was to be policy Churchman, 566, The supra, p Auto-Owners n 31 policy. not an occurrence-based As in the Allstate considered in (see 29), Freeman and Buczkowski n neither "occurrence” nor "acci policy incorporate dent” was used. Nor language did the general 1966 revision liability policy. of the standard provided pay person Auto-Owners will all sums that an insured legally obligated pay becomes bodily injury, because of but cover age bodily injury "expected was excluded for or intended person.” insured clearly subjective This is at least as as the 1966 general liability policy. revision of the standard 33Freeman, supra (opinion Riley, C.J., p opinion Boyle, 709). J., p 34Freeman, Boyle, J., 709-710). supra (opinion pp Churchman, supra, p majority DiCicco, n 31 considered that standpoint said that this Court policy language similar to that in Churchman "and found policy language phrase because the included the '"from the ’ insured,” subjective of required. the intent was Id. at 708.” concurring opinion Churchman, In a supra, (opinion in n 31 of Riley, J., 579), p opinion signed by justices, two declared that in DiCicco, adopted "policy-blended subjective this Court a standard” requires only that that "the insurer need establish that the insured type harm, intended to cause the victim specifi- some of not that he cally citing injury consequence action,” intended to cause the as a of his opinions case, the signed by several in that none of which were justices. more than two adopted "policy-blended The view that subjective this Court test” opinion in DiCicco is reiterated in the lead in the instant case Riley, J., ante, 21). (opinion 635, 13, 641, p p n n Piccard, Riley, J., supra (opinion 549-550), pp the view was expressed applying “policy-blended subjective the standard” perspective "we look at the insured’s conduct from his and evaluate type injury either his intent to cause some to an innocent third party Hkely or his awareness that harm was to follow from the performance opinion of his intentional act.” The lead concluded that property damage "Piccard’s intent to cause is irrelevant” and that any suggestion "the record is devoid of that Piccard intended to injure” Piccard, firefighter. supra, p n 18 553. commencing paragraph part ii, For reasons stated with the third agree I do not should be denied because the insured 447 Mich Dissenting Opinion by Levin, jurisdictions generally

Courts other have held dispute, that where facts are or where differing may reasonably inferences be drawn from undisputed injury facts, the expected by intended is to be decided a trier by fact and not the court as a matter of law.35A holding injuries number of cases so caused involved discharge of firearms.36 type expected intended "to cause the victim some of harm” unless he consequence gave or intended to cause the harm or rise claims in suit. (1985) Sparks, 738; App Allstate Ins Co v 63 Md 493 A2d 1110 (destruction ignited gas of a mill when the insured fumes while attempting gas); Phalen, Casualty to steal Northwestern Nat’l Co v (1979) 448; (injuries 182 Mont 597 P2d 720 suffered when insured face). tripped the victim and he crashed on his Both cases were policies excluding recovery expected occurrence-based intended from the for loss of the insured. Indiana Farmers Mutual (discussed supra; Ins Co v Graham in n 30 the exclusion was stated in cases, language preceding report the same indicate whether the as the two but does not occurrence-based); Caspersen was v Web (the ber, 93; (1973) pushed 239 Minn 213 NW2d 327 insured girl, causing hatcheck against intentionally her to lose her balance and strike her back message rack; injury a metal excluded caused insured). (the Dodge, supra Patrons-Oxford Mutual Ins Co v n 30 insured shotgun aggravated shot the victim with a and was convicted of having jury assault—held not barred from determine whether the intended); Alabama Farm Bureau Mutual 1984) (the (Ala, Casualty Dyer, fatally Ins v 454 So 2d 921 insured suicide); Talley shot his brother and then committed v MFA Mutual (1981) Co, (the 269; Ins 273 Ark 620 SW2d 260 victim was hit when he traded a round of shots with the insured as the insured circled the block, windows). shooting out vehicle These cases were occurrence- policies based with the same exclusion as the instant case. Lyons 239; Group, Super v Hartford Ins 125 NJ 310 A2d 485 (1974) (1973), (a 322; warning cert den 64 NJ 315 A2d 411 shot was automobile); Casualty fired at an insured Garden State Fire & Keefe, 53; (1980), Super 389; Co v 172 NJ 410 A2d 718 cert den 84 NJ (1980) (a gun frighten, injure); Vanguard 420 A2d 317 was used to not Cantrell, App 486; (1972), v Ins Co 18 Ariz 503 P2d 962 aff’d 110 Ariz (1973) (a 184; gun robbery frighten, 516 P2d 320 was used in a harm); Hart, App Colonial Penn Ins Co v Ga 291 SE2d 410 (the (1982) judgment pellets court affirmed for the insured who fired frightening victim); Barry Romanosky, with the intent of v (1989) (the 605; AD2d 538 NYS2d 14 insured shot at the door of a injured person inside); Physicians dance club and a Ins Co of Ohio v Swanson, (1991) (the 189; 58 Ohio St 3d 569 NE2d 906 insured shot a ACGIC v Marzonie Dissenting Opinion by Levin, Since it appears that a subjective standard37 is stated in the Auto Club’s policy and an objective standard in the Allstate one policy, would think there is decide, less reason to as a matter of law, question whether Oaks in- expected tended injure to Marzonie than whether McKay expected or intended to injure Buczkowski.

I would hold it fact, was for the trier of law,38 for Court as a matter of to decide on basis the facts and circumstances discharge by firearm, Oaks39 of the whether Oaks gun group purpose scaring, at a with the bb and the victim hit was insured); Horvath, Espinet when 257; he turned toward the v 157 Vt (1991) (the 597 of long evening A2d 307 insured shot the victim after а drinking during argument); Sportsmen’s an Stidham v Millvale Club, (1992) Super 548; (shooting 421 Pa during 618 A2d 945 argument NYS2d 639 the insured lar 30 criminal truck); tavern); Co, 871; in a v Green Allstate Ins 177 AD2d (1991) (coverage found, despite guilty plea, when recklessly slingshot particu- fired a into a crowd with no purpose); Co, Casualty Bolin v State Farm Fire & in n discussed supra (coverage pleaded guilty was found where the insured firing gun recklessness at the rear of the victim’s Zuk, 41; 1035; Allstate Ins Co v 78 NY2d 574 NE2d (1991) (coverage though NYS2d 429 was found even the insured pleaded guilty of reckless crime where the victim was killed when a gun accidentally discharged being insured); while cleaned State Muth, Casualty Farm Fire & vCo 190 Neb 207 NW2d 364 (1973) (insured gun vehicle, injuring shot a bb at the victim’s eye). victim’s 37But see n 34. 38 is, again, noteworthy, justices It that while six rule that there is law, only justices no that Oaks as a matter three so rule on the basis expected intended—or, precisely, more "should have expected”—to bodily injury. justices signed cause One of three opinion question lead fact to be decided in Buczkowski which found that the was one of the trier of fact. justices coverage, The other three rule that there is no as a matter law, of charge automobile. Those ‍​‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‌​​‌​​​‌‌‌‌​​​‌​‌​‌‌​‌​​‌​​‌‌‍three opinion because there was no "occurrence”/"accident” since the dis- of the firearm was with the intent Marzonie’s justices, including signed opinion two who the lead Buczkowski, reach, on, express do not bodily injury. whether Oaks or intended to cause credibility shotgun of Oaks’ assertion that he retrieved the Marzonie, frighten and fired to forestall Marzonie’s vehicle proceeding injure Marzonie. The up driveway, further and that he did not intend Marzonie, was resolved the trier of fact for Oaks and judge’s findings clearly were not erroneous. Mich Dissenting Opinion Levin, J. personal injury

expected or intended to cause the by Marzonie, аnd thus what suffered occurred was accidental and covered of insurance issued Auto Club. notes the definition "accident” adopted Court in by this Ins Co Allstate v Free- man, 656, 670; (1989), Mich NW2d applies.1 opinion The lead concludes "the instant policy language and relevant Michigan us to precedent” direct view the event from the injured’s in perspective determining whether there 1 Freeman, "accident” was defined in this context as: undesigned contingency, casualty, happening "an chance, a a unusual, something things, of the out usual course of fortuitous, anticipated, naturally expected.” not and not to be Opinion by Griffin, agree. I I cannot believe has been an "accident.”2 policy compels tous nature of the the contractual perspective in the from the insured’s view event determining it "accident.” constitutes Michigan approach relevant This precedent is accord with does not subvert intent contracting parties. generally can defined as a contract Insurance be (the party parties, in- one between two which surer) agrees party to the risk another assume insured) (the exchange consideration, distributing accepted risk across the insurer group respect persons similarly to situated with risk It is the insured whom the insured.3 protect; it not in- is intended benefit directly claimant.4 5Asone tended leading benefit on has noted: commentator insurance may though Even the existence of injured] probable make more will [the injured person is payment, able receive in the "beneficiary” neither "insured” nor meaning those technical insurance-contract . is, specific of a contract terms. That absence provision, person actually injured statutory insured, rights, legal no party and has interest, against equitable, any title or ,[5]

Case Details

Case Name: Auto Club Group Insurance v. Marzonie

Court Name: Michigan Supreme Court

Date Published: Feb 13, 1995

Citation: 527 N.W.2d 760

Docket Number: 96828, (Calendar No. 4)

Court Abbreviation: Mich.