*1
AUTO-OWNERS INSURANCE COMPANY v CHURCHMAN
(Calendar
10).
8, 1992
Argued January
Docket No. 88923.
No.
Decided
9,
September
1992.
Company brought
declaratory
Auto-Owners Insurance
action in
against
Churchman, per-
the Emmet Circuit Court
Beulah M.
Churchman,
representative
Gary
sonal
of
of
estate
W.
deceased,
others, seeking
duty
and
determine its
defend
insured,
Frost, Jr.,
indemnify
Henry
its
G.
under a home-
court,
policy murdering
owner’s
the deceased. The
Richard
J., granted
defendants,
Pajtas,
summary disposition
M.
for the
finding
exclusionary
inapplica-
clause in
was
ble
because
insured did not have the
expect
Appeals,
intend or
P.J.,
his actions. The Court of
Brennan,
Kelly
JJ.,
and Michael
Cynar,
and
affirmed in an
opinion
curiam,
per
concluding
contrary
that because
of
holdings
previous panels,
impossible
it
of
to conclude that
(Docket
111038).
ruling
the trial court’s
was erroneous
No.
plaintiff appeals.
opinion by
joined by
In an
Mallett,
Justice
Chief Justice
Brickley
Supreme
Cavanagh,
and Justices
and
Boyle,
Court held:
may
While an insane or
ill
be
insured
unable to
murder,
necessary
charged
form the criminal intent
with
expect
injuries
insured still can intend or
the results of
purposes
applying
exclusionary
caused for
of
clause in the
plaintiff’s
policy.
homeowner’s
Because the insured intended or
acts,
the results
clause is
applicable,
coverage precluded.
is
1. An insurance
is a
contract.
order to effectuate
parties,
intent of the
the contract must be examined
aas
_the
References
2d,
708,
Am Jur
Insurance
709.
§§
Liability
incapacity
insurance: intoxication or other mental
avoid-
ing application
liability policy specifically exempting
of clause in
damage
intentionally by
caused
or at
direction of insured. 33 ALR4th 983.
application
provision
liability
Construction and
policy expressly
sured. 31 ALR4th 957.
injuries
excluding
expected by
intended or
in-
given
Any
its
as
to all
terms.
clause
valid
whole and
clear, unambiguous,
long
not in contravention
it is
public policy; ambiguity may
none
not be created where
exists.
strictly
*2
Exclusionary
in favor of the
are to be
construed
clauses
given
insured;
specific
An
must be
effect.
clear and
exclusions
company may
a
it did not
not be held liable for
risk
insurance
case,
policy
the
that ex-
In this
contained
clause
assume.
bodily injuries
by
that
caused
an insured
for
cluded
expected
by
or
the insured.
were
intended
duty
indemnify,
and
an
to
its
to defend
2. In order
avoid
subjectively intended and
show that the insured
insurer must
apparent
expected injury
act. It is
to result from an intentional
injure the decedent
in
that
the insured intended to
this case
thus,
caused;
expected
resulting
he
the exclusion
and
the
harm
applies.
doing
he
and
knew what he was
when
shot
3. The insured
criminally
may not have been
the
While he
killed
decedent.
acts,
capable
foreseeing
their conse-
for his
he was
liable
doing.
understanding
quences
It is neither
what he was
and
necessary
guilty
appropriate
find that someone found not
nor
to
by
insanity
to
cannot be found
have intended actions
reason of
injury
expected
consequences. An
to
their
that caused
and
have
expect
mentally
person
can
or
the results
ill
intend
insane
meaning
policy’s
personal
the
an
actions within
exclusionary clause.
concurring,
Riley,
Griffin,
joined
stated
Justice
Justice
and
to be inferred from the nature
that an insured’s intent is
loss;
necessary
prove
leading
type
to
it is not
to
of conduct
the
person
specifically
to
harm the
the insured intended
that
measuring
capac-
injured.
appropriate
the
for
mental
The
test
requisite
ity
intent must be consistent
of an insured to form the
exclusion, i.e.,
purpose of the
deterrence of
with the understood
only
need
that the
conduct.
insurer
establish
intentional
harm,
type of
not
to cause the victim some
insured intended
injury
specific
to cause
there was a
intent
the
that
case,
consequence
insured’s intent to
action. In this
the
the
may
from the
be inferred
deliberate
murder the decedent
type
the
of conduct that
led to
the intentional
nature and
insured,
insane,
killing.
to kill the
while
intended
Because the
decedent,
precludes
provision
policy
exclusionary
of the
the
coverage.
Reversed.
Appeals
dissenting,
Levin,
that
the Court of
stated
Justice
holding
the
the insured lacked
did not err
where
expect
consequences
capacity
of his
intend or
the
mental
Opinion of the Court
actions,
injuries
expected
for
exclusion
duty
indemnify
does not relieve the insurer of
to defend
its
actions,
underlying
affirming
insured in
or in
judge’s ruling
evidentiary
circuit
that on the
of the
basis
record
genuine
is a
there
issue of material fact whether the insured
capacity
expect
lacked
mental
to intend or
the conse-
quences
of his
within
actions
of the
exclu-
sion,
disposition
summary
may
and that
therefore
not be
for the
entered
insured.
applying
injury
exclusion
or intended
person,
expectation
an insured
or intention of the insured
subjective point
is to be considered from the insured’s
of view.
person
Where
insane or
ill
act that
commits an
results
does not have the mental
appreciate
wrongfulness
form
acts or
requisite
assault,
commit murder or an
cover-
age
precluded,
under this
not
clause is
and the
obligated
indemnify
insurer
to defend and
the insured. The
case,
tried,
facts
which has not
been
have
been
sufficiently
law,
developed
determine,
aas matter of
whether
incapacity
prevented
Frost’s mental
him
would have
from
*3
wrongfulness
appreciating
forming
acts or
from
requisite mental intent to murder.
(1990)
App 699;
184 Mich
Insurance Policies Homeowner’s Clauses Criminal Intent. mentally may expect An insane or ill insured intend or injuries personally purposes results caused for of an policy, clause in homeowner’s insurance even (cid:127) though may requisite insured be form unable to intent criminally to be held liable. Cooney, & Plunkett P.C. (by Robert G. Kamenec Gano), H. Charles for plaintiff. Stroup, Tresidder, & Johnson P.C. (by Stephen Tresidder), for defendant M. Beulah Churchman. Spanos George Spanos)
Burns & D. (by for de- fendant Frost Estate. J. This a declaratory is action to deter-
Mallett, op the Court duty indemnify its to defend or insurer’s mine the Gary the murder of Churchman. insured for granted whether We leave consider coverage precluded a matter of law because as bodily injury "ex- when an exclusion person” pected and the an insured or intended mentally ill or insane. insured is Appeals erred the Court We find mentally holding ill that an insane consequences expect of his intend or cannot plaintiff’s required by the exclusion of actions policy. that, conclude while We homeowner’s may unable to ill insured be insane charged necessary to the criminal form murder, still intend or individual can such an with injuries expect he causes. results of the
I Henry May Jr., Frost, 30, 1987, Gordon On argument. According Mary had an Churchman Gary they argued Churchman, often about Mrs. legal having custody of her children. Churchman plans marry, had but on and Mr. Frost had She that could not ex-husband, night, Mary him that Churchman told she wedding
go through her while with custody Gary Churchman, had children. told Mrs. Church-
Mr. became furious. He Frost going and was he had taken his revolver man that to that he would kill Then he said her ex-husband. kill himself. *4 by
Mary was not worried this be- Churchman him make similar threats she had heard cause the past. Usually, Mr. Frost for a drive went off. cool go Gary day, however, Mr. Frost did
On that
According
Kalchik,
to Leslie
house.
Churchman’s
This action arises from tragic two lawsuits that are the result of the murder/suicide committed Mr. Frost. The first by personal repre- filed Churchman, Beulah 1Although parties stipulated point at one in the lower court proceedings they mentally incapacitated, that Mr. Frost was it is clear that purposes did so for summary disposition only. motion Further, upon clarify remand of the case this Court stipulation, requisite judge the trial concluded that Mr. Frost did not have the to form criminal intent to commit murder. However, say, judge conclude, is not to nor did the trial that he necessary did not have Gary pur to kill Churchman for poses of language. the instant contractual *5 Auto-Owners Opinion of Court Gary Churchman, as well estate of of the
sentative children. three Churchman next friend brought by Kalchik, Leslie was girlfriend, second The and as next herself for Churchman’s Ferguson, Ms. Kalchik her son. of Todd friend Gary Churchman’s the time of that at stated murder, engaged they married. to be were of a Henry insured the named Frost was Gordon plaintiff provided by policy in the homeowner’s Company. Insurance action, Auto-Owners instant declaratory brought action this Auto-Owners September 1987. Trial Court Emmet Circuit although Pajtas Judge held that M. Richard court Michigan issue, the exclusionary did not address case law jurisdictions majority found inapplicable if the in an insurance clause capacity to intend have the insured did not plaintiff’s expect'his He then denied actions. or encouraged disposition summary motion for appeal. meantime, two In the question regarding were issued decisions panel Appeals. to a differ- came Each the Court of ent conclusion. applied the Court
Plaintiff Auto-Owners granted appeal, Appeals January on which was for leave the decision 5, The Court affirmed 1989. per opinion curiam, 184 in an of the trial court (1990), concluding App 699; 459 NW2d Mich opinion between that, of the difference because impossible panels, previous conclude it ruling Id. at was erroneous. court’s the trial timely application leave to for filed a 702. Plaintiff appeal in this Court.
ii granted consider whether leave to We coverage precluded matter of law because as a op the Court providing bodily inju- an exclusion no ries caused an insured that were by the insured where the insured is insane ill. in this case stated:
COVERAGE LIABILITY E—PERSONAL pay person
We will all sums which an insured obligated becomes legally pay damages be- (libel, bodily personal cause of der or defamation of injury, slan- character, arrest, false deten- imprisonment tion or invasion of entry) prosecution; or malicious privacy, wrongful wrongful eviction or damage property or policy. covered If a brought against claim is made or suit is person liability coverage, insured under this we will expense, defend the insured at our using lawyers obligated of our choice. We are not paid to defend after we equal have an amount the limit of our liability. may investigate We or any appropriate. settle claim or suit as think we
[*] [*] EXCLUSIONS
Under Payments Liability Coverage Personal and Medical Coverage
to Others we do not cover: 7. bodily injury property damage expected person. [Emphasis an insured added.] policy any An insurance is much the same as agreement other contract. It an between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Eghotz Creech, 527, 530; v 365 Mich 113 (1962). Accordingly, NW2d 815 the court must look give meaning at the contract as a whole and to all Michigan Co, terms. Fresard v Millers Mut Ins 414 567 Churchman v op the Court (1982). Further, 686, 694; 327 NW2d Mich policy "[a]ny is valid as clause unambiguous long not in contra- clear, as it is public policy.” Bureau v Farm Raska vention Michigan, 355, 361-362; 412 Mich Mut Ins Co of (1982). cannot create This Court 314 NW2d Edgar’s Warehouse, ambiguity exists. where none Fidelity Guaranty Co, 375 & v United States Inc (1965). 598, 602; 134 NW2d Mich policies Exclusionary are in insurance clauses Shelby strictly the insured. in favor of construed Co, 12 Mich Fire Ins United States Mut Ins Co v (1968). App However, 145, 149; 162 NW2d any if exclusion under a is lost particular policy applies to an insured’s within the specific supra Fresard, 695. Clear and at claims. impossible given It is must effect. exclusions company it did for a risk liable hold an insurance Perriere, 337 Mich v La assume. Kaczmarck (1953). 500, 506; 60 NW2d case, con- the insurance In the instant *7 excluded cover- clause that tained an injuries by age bodily an insured caused expected the insured. or intended were III duty defend and indem- to avoid its order subjec- plaintiff nify, tively insured must show that expected injury to result from and his intentional act. language policy in similar
This Court considered Liability Metropolitan Property v Di- Ins Co & and 656; 443 Cicco, 432 Mich NW2d language included found that because the ” " standpoint phrase insured,’ 'from the required. subjective 708. The Id. at was "expected language case, or intended in this Opinion op the Court person,” unambiguous and re- an insured is quires subjective thus, intent; the exclusion must applied plain easily understood sense. its Michigan Liability Co, Mut 267 Mich Wertman v (1934). 508, 510; 255 NW Looking case, at the available facts of this we stating home, that Mr. Frost left his his know intentions. Gary also know that he drove to We house, door, knocked on his and shot Churchman’s him numerous times. He then threatened Beulah Churchman, house, left the and killed himself. apparent
It is from these facts that Mr. Frost injure Gary expected intended to at Churchman and seriously interpre- harm him. least No other possible. Henry Therefore, tation is we find that Gordon Frost indeed intended or resulting harm he caused. We further find that the pertinent applies exclusion to the of this facts case.
iv question Therefore, the next for us to determine mentally person is whether an insane or capable ill is intending expecting consequences of his actions. We must determine if Mr. Frost doing he knew what when he shot and killed Gary Churchman. We conclude that he did. While may criminally Mr. Frost not have been liable for capable foreseeing acts, he was their conse- quences understanding doing, what he was ending being’s i.e., human another life. Criminal required intent is not in these circumstances. ability ill of a or insane distinguish right wrong implicated from responsibility this situation. Criminal for those *8 part necessary analysis actions is not today. cases like the one before us Because we Opinion of the Court Henry in- Frost Gordon that have determined tended the Gary gun Churchman, and shoot to take a insurance of the instant clause coverage. applies there is no and contract Bough Corp America v Ins In Transamerica App 253; 440 NW2d ton, Mich guilty Boughton found not was Michael defendant estranged insanity killed his after he reason wrongful Boughton a filed of Joni wife. The estate against defendant, he for which action death sought policy. coverage his homeowner’s under it a had However, denied Transamerica Boughton duty because of to defend injury bodily a claim of for exclusion or expected damage property intended that was declaratory judgment. sought insured, and Appeals appeal, that "the held the Court of On may person intentional insane of a deemed acts and ex- 'intentional of an within the panel pected’ 258-259. The Id. at acts exclusion.” prove sanity beyond say, to "[f]ailure on to went prepon- ability prove by a and reasonable doubt that an insured of the evidence derance necessarily expected injury contradic- are not and tory propositions.” 260.2 Id. at reasoning agree and conclude this
We with ill can intend an insane or expect mean- within the of his actions the results Boughton dissent, quotes Court In n 23 of his Justice Levin context, Post, put quote in we 588. In order p out of context. necessary provide text: the rest of the feel it that, adjudicated Boughton argue was because Defendants shooting, not intend or he could at the time of the
be insane
involving
which
expect
Cases
to cause his wife’s death.
that,
expected injuries
hold
intentional
excludes both
through
liability
the exclusion
to avoid
order
injury,
foreseeable,
natural,
insurer must show
anticipatory
expected,
an intentional
result of
App
act.
Mich
255-256.]
[177
*9
Foreign
jurisdictions
are
in agreement with
Johnson v Ins Co of North
these
In
principles.
America,
340;
(1986),
232 Va
Here, Johnson, pistol when Davis aimed the at he shooting being. knew that he was a human Acting deliberately and methodically, Davis had it, pistol, searched for and found a to the loaded travelled home, him, begun victim’s waited for talk- him, ing with range. and shot him from close He determination, acted with knowing resolve and not doing wrong what he was was because God the pointing had ordered him to act. In pistol at Johnson, think, example, Davis did not that he peeling banana; was a he was not psychotic to an degree, extreme as the readily recognizes victim when he notes that Davis "did have this minimal degree of awareness of his actions.” That is suffi- shooting accidental, cient. The was not a risk against, insured but intentional. at [Id. 347-348.] The Johnson court concluded that a of finding guilty not reason of insanity negate does not intent, it merely excuses the act of the individual committing the crime. An individual can have every performing intention an act and fully that occur. Id. expect intend or the consequences However, at 348. punishment required not upon showing was not guilty by Churchman v Opinion op the Court guilty by finding insanity. A
reason insanity of intent. mean lack does not reason This policy in an insurance clause allows an apply to these facts.3 Co, Rajspic 110 Idaho Mut Ins Nationwide v Rajspic shot Wil- Grace P2d 1167 Rajspic during an altercation. Brownson liam acquitted weapon deadly because of assault with excluding responsibil- or defect mental disease Rajspics ity. with had an insurance *10 caused Mutual, excluded acts which Nationwide intentionally by of the insured. the direction or at possible insane for an that it. was The court found person criminally acts, for the but liable to not be required under an insurance intend them as still policy._ 3 Johnson, Post, p dissent, supra. 588. In Justice Levin discusses picture in this provide what the court said clearer of
In order to opinion: case, necessary quote it from we feel
because when concluding, intentionally criminal self-defense. State. A soldier analysis, nial Life & individual time he commits with conduct is that the does not App, 1964]. he "intended carried the burden fore, On In the was yet usual sanctions. "The absence he was the exclusion every sum, shooting doing that same individual can he "intended” to law, however, punishment. retrospectively surface, to shoot Kevin Johnson may we Accident Ins Co intention intentional, as we The executioner mentally there are injure hold, and that another, be excused may injure there a criminal act. will do, applies. to establish in the words of or kill another that a ill, For reveal there is many appears to be a blatant consummating but it is also and thus avoid he intended expunge he [232 example, from [v shoot his victim. or kill under rules is excused from may person may situations which Wagner], Va 348.] that Davis was penalty be denied insurance of the trial As kill with and he did so.” an individual no here, original excusable. it, and not be 380 SW2d full criminal punishment, inconsistency if he is insane at the but when be he to Johnson. criminally judge, intention.” A more careful inconsistency may of sanction aware of what imposition [224] Likewise, combat. The insurer may person may it do that Davis subject sanctions, however, coverage at all. 226 the act insane kill There- shown Colo This [Ky in the Court agreed general proposition The court with the person may that "a who is considered insane still capable entertaining the intent to commit though certain tortious acts even he entertains consequence intent as a of his delusion or omitted.) (Citations affliction.” Id. at 732. Wagner, In Colonial Life & Accident Ins Co v 1964), App, (Ky Shockley SW2d Warren Lexington, Kentucky, walked into a hotel and shot Shockley and killed the defendant’s decedent. was guilty voluntary manslaughter. found The dece- provision dent’s insurance contained a excluded when the insured’s death or "by 'injuries intentionally other loss was caused upon Employee by any inflicted the Insured other ” person.’ 225. SW2d The defendant claimed Shockley that Warren ill at the time and, therefore, of the murder he was unable intentionally Shockley commit the crime. admitted shooting, that, at the time of the he intended to injure Wagner. although Mr. that, The court found may punishment an individual be excused from mentally ill, his act if he is the intent behind the retrospectively expunged. act is not Id. at 226. An consequences insane can intend the of his *11 policy, acts. Under the terms of the the court held Shockley’s that acts were intentional and fell within the exclusion. Id. at 227. Henry
Therefore, we conclude that Gordon Frost capable intending expecting of or the results required by exclusionary of his actions as the language policy. in Thus, the homeowner’s cover- age precluded. is
V possible conclusion, In we hold that it is for an expect insane or ill to intend or by Riley, J. injuries the of the he within causes the say policy language. This is not to necessarily criminally for his liable insured is the mentally ill indi- insane or We find that an acts. requisite injure the can still form vidual criminally yet may not be considered and another culpable. the facts of that under We also conclude Henry case, or ex- Frost intended this pected Gordon purposely went to acts. He the results of his Gary times and shot him four Churchman’s house range. exclusionary Further, in the clause close at plaintiff’s
policy applicable, plaintiff re- is and indemnify duty and under of its to defend lieved policy. of the Thus, reverse the decision we Appeals. Court of Brickley JJ., C.J.,
Cavanagh,
Boyle,
and
J.
Mallett,
concurred with
(concurring).
exclusionary
lan-
Riley,
guage
by
in
used
insurer
the insured’s
provides
precluded
will be
where
"bodily injury
expected
or
an
[is]
person.”1
language
Because this
is analo-
insured
gous
Metropolitan
to that
the insurer in
used
unchanged
My
in
views on this
those I set forth
matter are
from
my separate opinion Metropolitan Property
Liability Ins Co v
&
(1989). DiCicco,
DiCicco,
656, 676-678;
I
432 Mich
As indicated trial court plaintiff’s summary disposition, denied motion finding preclude the exclusion did not cover- age because the insured could not be found to have intended or to kill the decedent and frighten family. Appeals The Court of af- granting appeal, firmed.2 Before leave to we or- judge scope dered the trial to ascertain the stipulation content of the that was made parties purpose plaintiff’s for the At motion. hearing, the conclusion of the the trial court opined scope stipulation "that was that Mr. Frost was insane and did not have the mental appreciate wrongfulness of his acts requisite to form the to commit type granted murder or some of assault.” We leave appeal.3
I
majority
has identified the numerous rules
of insurance contract construction on which the
rely
interpret
Court must
an insurance con-
It
tract.4
is safe to assume that
these rules of
proinsured, procoverage bias,
construction have a
2 184 Mich
4 Mallett,
reflecting situation in the that a belief opposed private a busi individual, to a where purchasing in entity, from an insurance ness surer, strength. bargaining equal parties not share do the 602, 608; 398 DAIIE, 427 Mich v Powers C.J.). (1986) Nevertheless, (Williams, 411 NW2d consistently rule of the followed have also we temptation rejects rewrite to the that construction meaning policy unambiguous plain of a the interpretation. guise not We will of under Upjohn ambiguity Co none exists. where create Hampshire 197, 206-207; Co, 438 Mich Ins v New J.).5 (1991) (opinion Riley, 392 476 NW2d approach expansive Contrary in evaluat- to the fairly language,6 ing have taken we exclusionary interpreting approach lan- to narrow guage supra DiCicco, at contracts. placed heavy in- on the burden have 672. We lan- in clear clauses surer to draft guage lay persons comprehensible an exclu- for to against DiCicco, operative the insured. to be sion supra Upjohn, short, supra 206. In at at 5 previously stated: As we have interpreted policy be is a contract and should "An insurance meaning. rule plain mindful of the
according
The court is
to its
policy
provisions
are
an insurance
of law that where
uncertain or
terms should be
clear,
meaning
ambiguous,
that those
is not
or the
interpretation
given
as is
or construction
such
mean,
how-
This rule does
to the insured.
plain
most favorable
ever,
per-
meaning
plain
be
words should
verted,
phrase,
which is
word or
or that a
given
recognized,
alien con-
specific
some
should
and well
benefiting
insured.”
merely
purpose
struction
612, 615;
Co, 288 Mich
Mut Life Ins
v John Hancock
[Wozniak
II incorporate exclusionary provisions Insurers consciously deter intentional losses that are deliberately brought about the insured.7 The presents opportu- instant case nity the Court with the explore the one limitation on the require- acts,8 i.e., exclusion for intentional intentionally ment the insured must cause party.9 difficulty to a third in this *14 stipulated insured, case is that the who was to be committing insane at proven act, the time of the must be requisite to have had the purpose to commit an intentional act for the summary disposition. adopted subjective DiCicco, we standard
to measure the intent of the insured where the precludes coverage "bodily injury exclusion [is] where expected standpoint from subjective the insured.”10 standard, however, The applied. strictly applied was not Had the Court a purely subjective standard, the exclusion would only apply when the insured committed the act resulting specific in a loss with the actual intent to 7 Widiss, Law, 5.4(d), Couch, p See Keeton & Insurance 10 § (rev Insurance, ed), 41:672, pp 2d 681-682. § 8 is, course, "intending” There a distinction between the result of act, “expecting” consequence completing one’s volitional deliberate act. I would only hold that the insured’s intent is inferred announcing intention, driving from the nature of the his home act — gun, driving house, deceptively to obtain his over to Churchman’s calling porch, following through him out on his him the house to complete job, telling they ought keep quiet, the witnesses that to finally killing himself —and that we need not reach the issue "expected” whether he kill Churchman. 9 (rev Couch, Insurance, ed), 41:676, pp 686-688; 41:684, 10 pp 2d § § 694-695. n 1. See Riley, wisely bring Court, however, This that loss. about pure subjective and, instead, rejected standard policy- subjective requirement with a blended (opin supra approach. DiCicco, at 679, based C.J.) ("[although de the defendant ion of Riley, speak any injure, louder intent actions nies words”). (opin 718, n id. also at [his] than See J.) ("[t]hus, ob as Justice Archer ion of Boyle, p post, serves, not 731, n insured need 11, bodily inflicted in order actual intend the clause”), exclusionary 731, n id. at fall under J.) ("I (opinion Archer, it clear wish to make bodily the actual that injury insured need intend the instant inflicted order to fall within that the fact- clause. It is sufficient subjectively finder conclude the insured reasonably type from the of harm foreseeable some original). standpoint”) (emphasis The insured’s approaches on turns difference between these specific the insured had intended whether injury occurred, the in in fact or whether that possessed general to intend some sured intent general injure injury. is best charac (1) requiring: the insured intended terized as injury, of an the act as well as the infliction both (2) harm was that once it is found that some and intended, harm
it is the actual immaterial *15 magnitude of a different character caused is approach, in intended. Under our than that type from the nature and intent is inferred sured’s necessary It that led to the loss.11 is of conduct adopt objective that I the Court Under the standard advocated 676-678, DiCicco, presumed supra to have intended at the insured Thus, objective consequences activity. his standard do an applies insured intended to to the determination whether resulted, subjective injury purely from or loss act which had conscious focus on the insured would whether standard resulting bring his objective fact from about the or loss in conduct. Riley, prove specifically that the insured intended to harm the individual. majority’s application
The of the facts to the above-quoted rule is in accord with the DiCicco principle. Although insane, the insured intended to kill the decedent because home,
we know that Mr. stating Frost left his intentions. We also know that he Gary drove to house, door, Churchman’s knocked on his and shot him numerous times. He then Beulah threatened. Churchman, house, left the and killed himself. apparent
It is from these facts that Mr. Frost injure Gary expected Churchman and at least to seriously harm him. interpre- No other possible. Therefore, tation is we find that Henry Gordon Frost indeed intended or J., ante, resulting [Mallett, harm he p caused. 568.] agree I with this observation. The insured’s intent to murder Churchman is inferred from the type deliberate nature and the intentional of con- summary duct that led to Therefore, his death. disposition plaintiff in favor of the insurer must be entered. adoption dissent, Justice Levin advocates the per finding rule,
of a se if an insane individ- capacity ual does not have the mental to commit law, murder under the criminal is not capable intending expecting consequences purpose his actions for the language post, used J., Auto-Owners. Levin, p agree argument. 584. I cannot with this appropriate measuring test for the mental requisite of the insured to form the purpose must be consistent with the understood exclusion, not the criminal law. As we stated *16 579 . Riley, opinion, underlying purpose of in the earlier compensa- exclusionary clause is not to afford injury at the suffered who tion hands of the culpability the insured. Nor is moral purpose dispositive Rather, is to deter issue. expressly conduct that the insurer the intentional coverage.12 precludes from subjective given addition, the nature of the measuring the intent of the insured of standard adopted in the insured need we DiCicco—that bodily injury inflicted —the intend the actual adopted. by Justice cannot be rule advanced Levin analysis, would the Court Under Justice Levin’s pure subjective adopting In Di- standard. be unanimously rejected standard, Cicco, we only establish concluded that insurer need the victim some the insured intended cause that type specifically harm, not that he of consequence action. as a his cause C.J.); (opinion supra DiCicco, 679, 682 at Riley, J.); (opinion 718, 731, n 12 id. at id. at n Boyle, J.). (opinion Justice Levin Because Archer, adopt persuasive reason to has not offered pure subjective individuals, standard insane policy-blended any from the reason to retrench adopted subjective argument DiCicco, we standard that rejected. also must
III goal true of the intentional act exclusion language used Given the deterrence. application policy- by Auto-Owners, unanimously subjective we standard that blended adopted DiCicco, that while must conclude we kill insane, Churchman. the insured intended 41:684, Insurance, (rev ed), 41:676, 686-688; Couch, pp pp § § 2d 694-695. Dissenting Opinion Levin, J. Accordingly, exclusionary provision of Auto- policy precludes coverage.13 *17 Owners J., J. Griffin, Riley, concurred with (dissenting). question presented Levin, The is stipulated, whether, where, as the insured was capacity insane and did not the have mental to appreciate wrongfulness the of his acts or form the requisite mental commit to murder or an by assault, the caused the insured was "expected meaning or intended” within the of an liability policy. exclusion to a homeowner’s Appeals I would hold that the Court of did not holding err in that where the insured lacked the capacity expect mental quences intend the conse- policy actions,
of his the exclusion for "expected injuries or intended” does relieve duty indemnify the insurer its to defend and the underlying insured in the actions. Appeals
I would further hold that
the Court of
affirming
judge’s ruling
did not
in
err
the circuit
evidentiary
that on
basis of
the
so
record
far
genuine
made
is a
there
issue of material
fact
whether the insured
lacked
expect
consequences
intend or
of his actions
agree
majority
13 I
with the
is
there
no conflict in the Court of
Appeals regarding
Mallett,
J., ante, pp
this issue.
569-570. As we
DiCieco,
language
stated in
sion,
we must first evaluate the
of the exclu
apply.
language
and then determine which
standard
used
by
Corp
Boughton,
the insurer in
Transameriea Ins
America v
177
(1989),
App 253;
required
Mich
subjective
language
case, and, therefore,
NW2d
Court
use the
evaluating
Boughton
in
standard
the facts in that case. The
analogous
language
by
to the
used
the insurer
in this
opinion.
the result
is consistent with this
How
ever,
language
by
Miller,
used
the insurers
Allstate
Co v
v
Ins
515;
(1989),
(On
App
175 Mich
I Harry Frost, Jr., that he announced Gordon Gary Churchman, then kill to kill intended himself. Frost proceeded to then Churchman’s him, shot and home, killed and then shot and were commenced Actions tort killed himself. against the shoot- estate for loss caused Frost’s ing. insured under a homeown-
Frost is the named Insur- issued Auto-Owners er’s Company. commenced de- ance *18 contending claratory judgment it that was action obliged provide coverage. to not paranoid appears schizo- that Frost was a It purposes phrenic life. For the this most of his only, declaratory judgment action stipulated: Churchman did not have the mental Frost was insane and wrongfulness capacity appreciate the acts to requisite mental to commit or form the murder type some of an assault.[1] case, grant deciding appeal to in this this Court After to leave hearing clarify scope court for a to remanded case to trial parties. stipulation by the of the entered into and content summary disposition judge denial on his characteriza- The based parties’ stipulation as which he described follows: tion of motion, parties stipulated purposes have that For Frost, capacity
Henry Jr. did have the mental Gordon expect” his "intend or acts. parties’ apparently an of the This was overbroad characterization arguments listening stipulation. reviewing records and After counsel, scope stipulation judge that of the the circuit found as set forth in text. Dissenting Levin, disposition summary Auto-Owners moved for contending genuine there was not a issue of concerning material fact of the expectation the nature and character shooting incident, and that Frost’s intent or bodily
to cause harm could be inferred from his actions as a of law. matter judge, finding binding Michigan
The after no deciding issue, case law examined case law in adopted "majority states, other standard,” disposi- summary denied Auto-Owners’ motion for disposition summary tion and entered the defendants who are the in favor of
plaintiffs in the tort Appeals actions.2 The Court of affirmed.3
II
policy obligates
pay
The
the insurer to
all sums
obligated
legally
pay
that Frost becomes
cause of
be
"bodily injury,”
bodily
but does not cover
injury "expected
or intended”
Frost.4
judge granted
summary disposition.
Churchman’s motion for
Later,
judge,
reconsideration,
on a motion for
vacated the sum
mary
Churchman,
disposition
finding
in favor of
there was a
genuine issue of material
fact whether Frost
lacked the mental
expect
to intend
Churchman’s death within the
exclusion.
(1990).
3 184Mich
COVERAGE E—PERSONAL LIABILITY pay We will all sums which an insured becomes legally obligated personal injury pay damages bodily injury, because of *19 (libel, character, slander or defamation of false arrest, imprisonment prosecution; detention or or malicious privacy, wrongful wrongful invasion of entry) eviction or or property damage by policy. covered brought If a against claim is made or suit is the insured person liability coverage, for under this we will defend the person expense, using lawyers insured at our of our choice. We obligated paid are not equal to defend after we have an amount liability. may to the limit investigate of our any We or settle appropriate. claim or suit as we think Churchman v Dissenting by Levin, policy. policy based” is not an "occurrence The stipu- thus, is, the facts no issue whether There policy. The under the an "occurrence” lated are only assuming presented the whether, is issue stipulated, incapacity the of the mental facts as might preclude applying for exclusion the insured injuries. expected or applying majority agree that I with the by "expected injury or intended for exclusion expectation person,” intention or insured the insured’s is considered from the insured subjective to be point is with This consistent of view. Property Liability Metropolitan Ins Co v Di & where Cicco, 432 Mich 443 NW2d language majority ruled that the of this Court unambiguously exclusionary re a similar clause5 quired subjective standard. majority disagree
I with the decision capable ill or if an insane intending consequences expecting or although then, lacks, reason of actions, insanity, he appreciate requisite wrongfulness to form of his acts or exclusionary murder, "ex- to commit coverage applies language pected intended” or under the is precluded._ EXCLUSIONS Payments Coverage Liability Personal Coverage Medical
Under
do not cover:
Others
we
damage expected
property
bodily injury
or intended
7.
person.
an insured
stated
clause at issue DiCicco
damage
property
"bodily
which
provide
did not
is either
III question Most courts that have considered the person have ruled that an insane cannot intention- ally injury resulting cause so as to exclude the loss from ing under an insurance contain- expected” injury
an "intentional or exclusion. These courts have observed that such an exclu- sionary provision, strictly which is to be construed against preclude persons insurer, seeks to from benefiting financially they deliberately when cause injury. person A who lacks the to conform acceptable his behavior to standards will not be exclusionary "expected deterred or in- language. tended” Some of these cases have said person that an "insane cannot commit an inten- tional act within the of the intentional cases, exclusion clause.”6 In all these it was question of fact whether the was indeed so insane. Casualty In Ruvolo v Co, American 490; 39 NJ
"rendered him incapable
distinguishing
right
6
Casualty Co,
See Ruvolo v American
490;
39 NJ
from defective, possessed with delusions that he was know he not at the time did persecution, and and lacked quality acts the nature at conduct.” capacity to control his [Id. 494-495.] *21 the Jersey rejected Court of New Supreme resulting for the coverage that argument
insurer’s because the precluded actions was death wrongful the victim’s death. caused intentionally insured The court said: however, provision, exclusionary the applying In accident, policy, life, liability or fire
whether in a
accepted that
commonly
where
it
the death or
come to be
has
involved,
or
it of the insured
loss
be
insured,
product
an insane
the
of
by the
is
caused
act,
context,
In this
...
recovery is not barred.
however,
critical,
problem
the
precise,
or
is
the
incapacity neces-
the mental
or extent of
nature
in-
the
the act
sary to
character
transmute
insane.
from intentional
to
volved
an
if a homicidal act of
no doubt that
We have
him from
as to excuse
is
such character
insured
i.e.,
insanity,
responsibility because
criminal
he did
at the time of its commission
because
the nature
capacity to understand
have the mental
act,
distinguish
to
to
of his
be able
quality
it,
respect
wrong with
right and
between
"intentional”
killing
not be considered
should
policy.
of the defendant’s
[Id.
within
at 496-498.][7]
Lyons,
Co v
Casualty
American
Globe
insured,
337, 343;
Ariz who. ill, caused” an auto- "intentionally was light that court said collision. The mobile "[i]n of the insured’s case for trial on issue The court remanded the exclusionary purposes insanity clause. for Mich by Dissenting Opinion Levin, J. overwhelming testimony [the insured] the unable
to act accordance with reason at coverage collision,” time of under precluded by was not clause. The explained: court hold, argues, To [the insurer] purposes determining
illness is irrelevant for whether with act is an "intentional” is inconsistent long standing policy in insur- considerations Exclusionary provisions strictly ance law. are to against Furthermore, construed deny . . . insurer. for acts caused an individual lacking the mental rationally to act primary purpose incorpo- inconsistent with a rating policies, intentional exclusions into insurance i.e., preclude individuals from benefit- ing financially they deliberately when cause injury. . An . . individual who the capacity lacks acceptable to conform his behavior standards will not be deterred existence non- *22 coverage existence of insurance for the conse- quences his acts. at [Id. 339-340.][8] Supreme addition Court of New Jersey9 Arizona,10 and courts in courts in California,11 Colorado,12 Connecticut,13 Florida,14 8 declaratory judgment There was a trial on in the merits this ,to judge intentionally action. The found that the insured acted so as judge cause the collision. The concluded because an individual is presumed tions, ordinary consequences voluntary intend of his ac precluded. reversed, appeals stating court of that such an does inference not address the effect of mental illness. 9 Ruvolo, supra. See 10 Co, Casualty supra, See Globe American v Parkinson Farm rule). Co, supra (recognizing ers Ins n 6 11 Co, supra; v Congregation See Clemmer Hartford n 6 Ins of Rodef Co, 690; App Sholom v American Motorists 91 Cal 154 Ins 3d Cal (1979). Rptr 348 12 Mangus Co, supra. Casualty Surety See Western v & n 6 13 Liberty Co, supra (apparently applying See Rosa v Mut n 6 Ins law). Connecticut 14 Stone, George Arkwright-Boston See v Manufacturers Mut Ins Co 587 Dissenting Opinion Levin, J. Kentucky,17 Louisiana,18 Ohio,19
Illinois,15 Indiana,16 similarly held that where have and Washington20 may not insane, be treated his actions the insured is purposes of the for the as intentional clause.21
IV
Appeals
on this issue.22
has divided
The Court of
Mautino,
Dunkel,
supra.
n 6
Ins Co v
v
and Northland
15
Casualty
Surety
&
Casualty
Dichtl and Aetna
&
Co v
See Aetna
rule).
(recognizing
Freyer,
supra
Surety
vCo
n 6
16
(Ind
McGhee,
App,
110
530 NE2d
West American Ins Co v
See
1988).
1988)
17
(CA 6,
May,
F2d 219
Fire Ins Co v
860
Nationwide Mut
See
law).
(apparently
Kentucky
applying
18
Co,
supra.
Ins
n 6
Paul Fire & Marine
See von Dameck v St
73;
Turner,
App
Co
29 Ohio
3d
Mut Fire Ins
v
See Nationwide
(1986).
V sum, I would hold that where an insane or found to injury have intended purposes to cause for the of the exclusionary clause. Corp Transamerica Ins liability through states that "to avoid expected injury, exclusion for the insurer must show that the natural, foreseeable, expected, was the anticipatory result of an objective standard, intentional act.” Id. at 255-256. This to determine whether the insured injury, expressly rejected by DiCicco,supra, this Court in which was decided the month after Transamerica was decided. Corp The issue in Transamerica Ins was whether "an intentional acts policy precludes exclusion in a homeowner’s for a person previously acquitted charges by insanity criminal reason of . . . .” Id. at 257. policy, was an separate occurrence-based with a exclu injuries "expected sion for standpoint or intended from the insured.” acknowledged possible The court inconsistency” "blatant finding person insane, criminally yet denying him insurance cover age acts,” because he "intended his but found the situation like others (killing self-defense, war, where an intentional act or in or as an executioner) sanctions, is excused from criminal but is nevertheless "intentional.” Id. at 348. *24 Dissenting Opinion Levin, J. act that results ill an commits parties stipulated
injury, here and —as —did appreciate the mental not have wrongfulness requisite form the acts or of his assault, murder or to commit mental coverage is not clause under obligation precluded, insurer has and that indemnify insured. defend and case, of this the facts hold I would also suffi- tried, have not been has not been which developed law, ciently determine, as matter incapacity would have Frost’s mental whether wrongfulness appreciating prevented from him requisite forming the or from acts intent to murder. decision of Court
I affirm the would Appeals, circuit court the case and remand for trial.