*1 CLEMENS, Respondent, Dean WILCOX, al., Troy Respondents, et Casualty
State Farm Fire and
Company, Petitioner,
Appellant.
No. C6-85-636.
Supreme Court of Minnesota.
Aug. 1986. Blanchard, R.D. Gayle C. Hendley-Zap- pia, Minneapolis, Rehearing appellant. Sept. Denied Moeller,
David Minneapolis, G. for re- spondent Troy Wilcox.
Tanya Bradford, M. Minneapolis, for re- spondent Douglas Clemens.
KELLEY, Justice. Appellant State Farm Fire and Casualty Company (State Farm) issued a home- owner’s insurance policy Doug- las Clemens. The excluded from * * * coverage “bodily injury expected or intended the insured.” Clemens was by Cheryl sued Wilcox who claimed that “attempted to inflict * * * plaintiff in fear of an immediate and harmful Clemens tendered the defense of that ac- which, tion to State Farm after an investi- gation, declined to afford a defense or to indemnify Clemens. He then commenced a action Farm. State Farm contend- ed Clemens had no because of the and, therefore, policy, exclusion company had no to either defend or indemnify him in the Wilcox suit. The declaratory judgment action was tried be- fore the suit of Wilcox Clemens. The trial court refused to submit to the jury the issue of “bodily injury.” sustained a After a finding verdict that Clemens did not or intend to cause Wilcox, the trial court held the exclusion *2 inapplicable. shouted, rolled policy The court down the window and “If State Farm’s ruling appeals of affirmed court’s you again, you do I'll after again.” come claim.1 reverse. Cheryl on Wilcox’s We Allegedly, response Troy’s was that he would sue he was a minor because and the wife of On March Clemens, adult, an could not legally touch pick to up him their two Clemens asked him. neighbor- children of two the children and a family Bloomington grade ing Meyer Approximately later, minutes Ms. Also, pick up was Clemens to Bob- school. Wilcox, mother, Cheryl Troy’s came to Cle- stop at a bus and a Meyer, block bie mens’ house. She asked Clemens if he was Meyer, home. half from his Bobbie gentlemen up the who beat son. Cle- High Oak eighth grader at Grove Junior deny mens did this and invited not her into School, parents told his that another living his She asked for room. his name Wilcox, boy, Troy eighth grade wanted to gave telephone and number. He her a fight parents him. Bobbie’s had in- with telephone piece paper directory and a on fight not to he had structed him because long began which to Before the write. two They arrange- on his teeth. made braces argue yell to at each other. and Clemens pick up to at his ments for someone Bobbie during admits this time he that swore at day was to do stop. bus On Clemens language. her and used foul Ms. Wilcox so. upset, telephone became the threw book Chicago drove down Avenue As Clemens room, paper living stomped and across the stop, he saw Bobbie walk- towards the bus out of the house and slammed the door car. ing rapidly towards the Behind Bob- behind her. Wilcox, Troy boy, who was bie was another and Subsequently, Ms. Wilcox her son pushing shoving After Bobbie. sued Clemens. The first three counts of car, stopping approached Clemens complaint amended five-count are immediately boys. two Bobbie entered the by Troy claims Troy Wilcox. sued for as- and shut the door. Clemens’ car Clemens battery, sault infliction of emotional and, grabbed holding by him Troy Wilcox negligent distress conduct. His boy to the side jacket, his maneuvered claimed consisted of a bruise on his grabbed Troy by of the car. Then Clemens face and cut on the back of his He head. banged against his head the hair and physician treated for his shouting, you fight?” “Do car like to while injuries. The final two counts of the com- it, Although Troy Clemens denies claims Wilcox, plaint, Cheryl allege behalf him Clemens next struck with a fist caus- negligence complaint The and assault. ing on his cheek. still hold- a bruise While allege any physical does not contact be- ing Troy’s jacket, Clemens knocked next tween and Ms. Wilcox. Instead boy’s legs from underneath him caus- states, “Defendant, his with lan- abusive ground. ing Troy him to fall to the did not guage threatening gestures, attempted fight Troy back. When tried to raise his bodily injury upon plaintiff inflict to with head, boy’s Clemens slammed the head Plaintiff was put unlawful force and against times, pavement asking several fear an immediate and harmful him, you like it?” “Do car, re-entered After Clemens his Bobbie Clemens tendered the defense the Wil- opined really get that he “would it.” Cle- cox Based corner, upon claims to State Farm. its spotting mens drove around the events, investigation other Troy boys. with some Farm re- son, expect Cheryl Troy Wilcox and her mination that Clemens did not or intend Both Troy against bodily injury brought to The claims Clemens. The trial cause Wilcox. appeals court as a matter entered in favor of Clemens in held of law court obligation applied Farm had exclusion to his claims Clemens. that State Casualty indemnify Fire and defend and both claims. The Clemens v. State Farm (Minn.App.1985). overruled the deter- N.W.2d 68 trial court's tender, jected whereupon Clemens insti- was instructed to assume Wil- tuted this cox bodily injury.3 sustained pronged: first, The insurer’s defense is two found Clemens did not it asserts its that homeowner’s does cause Wilcox. The arising not cover claims from the intention- adopted trial court jury finding. Sub- second, al torts of battery, assault and sequently, it denied State Farm’s motions its apply does not to claims *3 judgment for notwithstanding verdict, physical which do not include some injury.2 for findings, amended conclusions of law or, and order judgment for in the alterna- declaratory No witness at the trial of this tive, for a new trial. judgment action testified that Cheryl Wil- appeals court of cox affirmed any bodily injury. sustained Although . court’s finding of no injure Cheryl intent to present she was at all times in the court- Wilcox. It likewise room, affirmed the trial, trial during the she was not called to court’s not to submit to the testify. There medical or other issue of Wilcox sustained any to substantiate of bodily claim bodily injury. presented evidence, State Farm un- rebutted, that she did not sustain bodi- In the court of respon- here ly injury. attorney Neither the for the question dents contend the of bodily injury Wilcoxes attorney nor the for Clemens inappropriate is declaratory presented any contrary. evidence to the action because the issue will be decided in Thereupon, State Farm moved for a direct- hand, main action. On the other appel- verdict, ed contending the purpose evidence conclu- lant contends the of the declarato- sively ry judgment procedure, established that the minimal bodily cases of this kind, injury is by Troy sustained to resolve insurance coverage ques- Wilcox was ex- tions pected before the trial of the main by or intended Clemens at the time assault, of the and there was no evidence We analysis commence our with reit bodily injury Cheryl establish Wilcox. long-standing eration of our policy of en argued Counsel for the Wilcoxes couraging resolution of insurance proper factual issue for resolution this disputes separate declaratory judgment declaratory judgment action was whether See, e.g., actions. Paul St. School District expected Clemens or injury intended an Transit, 41, v. 321 Columbia N.W.2d 47 agreed. either Wilcox. The trial court (Minn.1982); Grain Dealers Mutual Insur words, other the trial court did not allow 247, Cady, ance Co. v. 318 N.W.2d 249 n. 3 question resolution of the of whether (Minn.1982); Miller Shugart, v. 316 or not Ms. “bodily 729, (Minn.1982); Wilcox had sustained N.W.2d 733 Prahm v. injury.” form, special 389, On the Rupp verdict 277 Construction N.W.2d ****** provisions policy bearing upon 2. Relevant of the provide: these assertions EXCLUSIONS Coverage Liability 1. L—Personal and Cover- DEFINITIONS age Payments M—Medical to Others do not harm, “Bodily injury” bodily 1. means sick- apply to: disease, care, including required ness or loss Bodily injury property damage a. or resulting of services and death therefrom. expected by or intended the insured. ****** COVERAGEIMPERSONALLIABILITY special interrogatory 3. The relevant verdict was: brought against If a claim is made or a suit is Assuming "bodily injury” was sus- insured for because of by Cheryl tained did property damage or to which this cov- “bodily injury” or intend to cause erage applies, we will: Cheryl Wilcox? Pay up liability a. to our limit of for the question A similar on intent was asked concern- damages ble; legally for which the insured is lia- However, ing Troy Wilcox’s claim. indicated 1, in footnote that issue is not before expense b. Provide defense at our now. counsel of our choice. physical Kemper policy limits covered to (Minn.1979); Insur harm n. 2 Iowa Stone, harm); 888 n. 5 269 N.W.2d Fire & Marine Insur ance v. Bituminous Co.
(1978). Inc., Izzy 493 F.2d ance v. Rosen’s Co. Cir.1974) (6th (“bodily injury” in 260-61 recognized we have While occasion contemplates injury of proper are for insurance issues that not all nature; did not cover physical action, in a arrest, imprisonment false or mali false that where the issue have likewise held we Apple also prosecution.) See T.A. main cious the same as precisely is not Practice, declaratory judg- man, Law in a 7A Insurance & its resolution (1979). appropriate. Grain Dealers ment action is 4501.14 § Cady, Co. Mutual Insurance complaint, Cheryl In the Wilcox makes (Minn.1982).4 N.W.2d having allegation physical sustained contentions of Our of the examination Instead, charges injuries. she in this case leads parties facts “attempted injury” to inflict *4 “bodily injury” question the us to conclude an immediate harmful bodi- “in fear might it in the exactly the same as be is not ly Assuming charges such could appropriate it is main action. Therefore action, legally they in the proven be main declaratory judgment in this for resolution nothing than amount to more an assault. Here, resolution would issues for physical is a mental rather than a Assault “bodily in be, first, meaning injury” the leading authority As one has ex- invasion. and, second, Ms. Wilcox whether the plained, recoverable for an as- scope the any within suffered are those for the claimant’s mental sault contrary, meaning. To the the main fright, arising from humiliation disturbance plaintiff is Ms. will action in which Wilcox like, including physical illness and the any nature and extent com- address the from D. may result them. See including claims personal mon law Owen, Dobbs, D. R. Keeton and Prosser scope of the outside the “bodi- may be Torts, (5th ed.1984). 10 and Keeton on § policy. in the ly injury” language as used Thus, assuming prevails Farm in its “personal inju- State Farm asserts that injury,” “bodily determi- interpretation a scope ry” as in tort is broader used law that Ms. suffered no such nation Wilcox as “bodily injury” used than term the necessarily pre- bodily injury would not policies case in- liability insurance law establishing personal inju- clude her from law, policies. In insurance terpreting those disturbance, ries, at the such as mental physical injury “bodily injury” means main on the merits. trial harm such as nonphysical does include to incomplete record here is The suffering mental and emotional distress. “bodily Ms. Wilcox sustained See, e.g., County Rolette Western Casu- F.Supp. injury.” Because we conclude alty Surety & (use “bodily appropriate was in this declar- (D.N.D.1978) injury" of that issue term However, court, argument oral before for Cady, at this insured Di Ioias not covered the fleeing suggested if a under insurance he was his first time counsel that in the Clemens, joint of an undisclosed venture. tripped, member trial had sustain- from Ms. Wilcox declaratory judgment re- a action court in Normally, ing injury. consider we would not at the time the However, fused to determine whether allegation made in this manner. not a member claim Di Ioias was or was arose trial, judge proof the denied counsel’s offer of joint though of a Even there was venture. bodily inju- Wilcox that Ms. had sustained some might joint re- possibility issue be venture Although ordinarily ry. we would not consider action, might not have solved in the main it also fairness, allegation, counsel this late Therefore, court's been. we trial reversed proof, permitted he been to make offer of back for trial as determination sent it allege might to "facts" that have been able declaratory judgment action. Id. 251. of the establish the existence of some would stands, 5. As now it is devoid of the record physical injury to Ms. Wilcox. evidence of atory However, date, in the claim. because Wilcox to incomplete, necessary record we deem it passed upon question court has wheth- to remand to the trial court a factual for duty er State Farm has the pay to on this determination issue. legal expenses presenting this declarato- ry judgment remand, case. On should the connection, argu- In this reject we trial “bodily court find there was to injury” of the ment counsel for that resolu- course, Ms. State Farm would tion of that issue here an “un- place would obligation and, have the to defend if ulti- burden fair” on him because would re- mately necessary, indemnify to expert quire medical as to testimony any damages assessed him. alleged nature extent of his client’s However, even the absence of such so; injuries. Not all that he has estab- finding possibly might there exist bodily inju- lish is that she sustained some Farm provide of State defense did, ry. inapplicable. If she the exclusion is costs not for defense Ms. Wil- testimony No extensive medical is neces- claims, cox’s but also Clemens’ costs sary ques- resolution of this narrow prosecuting declaratory judgment ac- tion, nor is necessary produce any issue, however, tion. That is not before monetary on the of the value al- Respondent this court. Clemens did not leged injuries. properly it before raise the court of Respondent Clemens contends that liti- nor this court. before See Minn.R.Civ. “bodily inju- gating existence or lack of App.P. 106,128.02. Accordingly, we do not ry” action cre- remand, address it. On should the be issue par- conflict of ates a interest between *5 court, raised the trial before it should ad- placed He ties. asserts that he would be light dress its in the v. Miller position conceding “intolerable” (Minn.1982). Shugart, N.W.2d 729 “bodily injury” that Ms. had sus- Wilcox remanded. prevail order to claim for Reversed and tained on his coverage, only insurance a collat- to face SIMONETT, J., AMDAHL, C.J., dis- estoppel argument attempting eral when part, part. sent in concur personal defeat claim of argument in the main trial. This COYNE, J., took no in the considera- In proceeding, untenable. court Cle- of this tion or decision case. mens, oath, under truth. He must tell the SIMONETT, (concurring Justice lie, has license to to alter shade his or to part). dissenting testimony depending upon role he which Moreover, litigation. in the agree majority assumes court I and with rever- with sal, governing our rules and except try court rules law- I see need to this case yers professional prohibit again. Clemens’ conduct attorney assisting from him in acts At insurer trial the issue whether
amounting upon to fraud courts. bodily injury, the claimant had sustained 3.1, Minn.R.Civ.P. Minn.R.Prof.Cond. coverage. necessary prerequisite to In evi- 3.3(a)(2), 3.3(a)(1), 3.3(a)(4),3.4(b). dence as an admission interest was personal injury complaint for Clemens in briefs filed
Counsel Wilcox which both court of showed that Wilcox was not claim- argues ing any injury. that State Farm its insur- bodily breached Clemens and Wilcox in declining proof. ance contract to defend Cle- made no effort to rebut this Wil- court, “by way Of cox’s did tell the mens Wilcox claims. counsel course, if I ultimately proof, it is that offer of have reason to believe that established testify under facts and circumstances this Mrs. Wilcox will that she did sustain provide coverage Farm case State must course that event.” compa- conclusionary policy, its it follows that But this assertion does under bland ny qualify proof. an offer of would have the to defend not Minn.R. (the the excluded 103(a) substance
Evid. al., JACOBSEN, et offered); Earl D. Minn.R.Civ.P. testimony must be Respondents, Plaintiffs, specific). (offer be must 43.03 instead, position the took the v. successfully they immaterial issue was ANHEUSER-BUSCH, court to the trial from obtained INCORPORATED, Appellant. effect. plaintiffs to show It was incumbent No. C7-85-2105. court outside least to the injury, at Minnesota. Supreme Court not want they if did hearing of the Com know about Aug. Cardinal, Minn. pare Radmacher (1962). Plain 72, 78, 117 N.W.2d 30, 1986. Oct. Rehearing Denied they cannot blame to do so and tiffs failed court, failure on their do. it to plaintiffs asked
did what court was argument in this oral
Not until afterthought, suggested, almost as tripped after her and after she was
altercation with incident, This Clemens’ house.
outside the occurred, may not have been may or
if it may conduct to Clemens’
attributable in'bodily injury. resulted may
or not have (1) event, this was remains: the fact evidence; (2) it was newly discovered presented been that should have plaintiff's under trial court even
to the case; (3) is evi- theory of the
erroneous keep from the plaintiffs chose to
dence *6 notwithstanding there was
court and record of in the trial (4) is frus-
injury; and it is evidence vague highly vulnerable
tratingly
impeachment. requires fairness
There are times when theory of the by their
parties be bound make, and they elect to and the record case hold as a I would is such an instance. record, law, there is no on this
matter claim. Al- Wilcox’s Clemens, I have requested by
though not wheth- to consider objection to a remand Clemens’ attor- pay
er the insurer should ac- in this
ney fees
tion. (concurring in
AMDAHL, Justice Chief dissenting part).
part and concurrence join
I Simonett.
dissent Justice