Morris v. Farmers Insurance Exchange
771 P.2d 1206
Wyo.
1989
Check Treatment

*1 jury, warranty liability or claims

See W.R.C.P. MORRIS, Ray Leopoldo

Marion Sanchez, Dorothy

Sanchez (Defendants),

Appellants EXCHANGE, INSURANCE

FARMERS (Plaintiff). Appellee

No. 87-187. Wyoming. Court of

Supreme 22, 1989.

March Hamp- Hampton of Honaker &

David A. ton, J. Reese of Springs Rock Robert River, appel- Mathey, Green Reese & lants. Vlastos, Henley of I. Brooks

John P.C., Casper, appellee. Henley, CARDINE, C.J., Before MACY, THOMAS, URBIGKIT, and JJ. J., BROWN, Retired.* URBIGKIT, Justice. neighbor, Leo- his

Marion Morris called Sanchez, out into the street between poldo words, and, houses almost without their * 30, 1988. Retired June *2 magnum a shot him near dead with .357 had homeowner’s liability insurance cover- appeal summary a

pistol. age, This is from wife, Sanchez and his filed suit on company in the insurance declar- May against Morris, alleging negli- lawsuit, atory judgment which followed an gence and battery, assault and with addi- negligence injury initial and intentional tort tional claims for infliction of emotional and company action. The insurance contested mental distress wife, to both husband and liability the homeowners’ insurance and punitive damages. and for allegations The duty coverages, to defend and the decision also characterized Morris’ action as one of injured party by appli- was adverse willful, reckless, and disregard. wanton policy cation exclusion intention- Responsive to that litigative proceed- first al conduct. ing, undertaking after the defense under a of rights, Insurance, reservation Farmers We reverse. pursuant to the policy, homeowners' com- by appellants, Leopoldo Issues raised and menced this declaratory judgment proceed- Sanchez, Dorothy in conflict with the insur- ing. This second lawsuit was instituted company, ance Farmers Insurance Ex- against Morris as well Leopoldo as both (Farmers Insurance) change appellee, and Dorothy Sanchez to obtain authentica- (1) assert that the district court in erred tion of the intentional coverage conduct duty denial of a defend their insured provided exclusion in policy. Farmers liability Morris as the defendant ac- requested Insurance prayer that: tion; (2) granting summary judgment, and (1) Court declare as follows: [T]he holding that Farmers Insurance no had ob- coverage injuries for the alleged in the ligation provide liability coverage under complaint complaint and amended of Leo- policy its insurance which would afford in- poldo Dorothy and Sanchez ex- does not demnity in the event that Sanchez should ist under the insurance issued proceeding. recover the initial

Defendant Morris by Plaintiff Farmers Exchange; (2) FACTS duty that a defend Defendant Morris does not exist 8, 1985, August Sanchez, On following a regard action initiated meeting, study home Bible a saw friend to complaint complaint and amended of Leo- car, parked then, his street curb and as the * * poldo Sanchez; Dorothy *. departed, car received a call from across as, reported the street from “Hey, counterclaimed, Morris Sanchez prayer with the Leo, I you.” want to talk to including request Sanchez a poli- that the insurance turned across the street and walked toward cy provide coverage liability declared Morris, standing yard. who was in his On duty pending and a to defend Morris approach parties, of the two Morris liability they raised action which had filed. magnum pistol a .357 and shot Sanchez in judgment proceeding, the face.1 segments depositions participants wound, Surviving the bullet psychologists then affidavits of were tendered having apparently concluded that Morris both Farmers Insurance and Sanchez.2 pleading 1.The yard, characterization of the events is 3.Morris had been in his front but out, generally by eyewitness confirmed affidavit: after he called he walked toward Sanchez feet, approximately and at a distance five 8, 1985, August 1. That about I wit- gun, raised his hand in which he a had San- River, a nessed in Green Sweetwater his chez raised yelled hands in front his face and County, Wyoming. “No, no," shot, and Morris fired one day, looking my 2. That on that I was out fell, Sanchez and Morris turned and walked Street, front door 50 East Third Green up ciga- next his wife’s car lit over River, victim, Wyoming, and observed the rette. talking man the name of Sanchez to some- away, one in a car. As the car drove heard 2. A criminal action had been instituted gun yell later man who fired "Leo.” except Sanchez with undefined results as ex- time, plained At that Leo turned argument. Sanchez and started in oral The factual scenario out, walking perceived summary judgment man who toward the had called both the from argument sug- whose was Morris. name record and those oral comments subject proper subject declaratory judgment issue was the At factual of Morris to shoot or to implicit intention prior pending. if a action even drunkenly scare, he and acci- or whether Auto-Owners Insurance Com Mathis v. neighbor. to his dentally injury caused the 166, 168 (Ala.1980); pany, 387 So.2d Fidel Morris was degree of intoxication of Casualty Co. New ity & York Envi controversy, with Sanchez con- clearly Inc., rodyne Engineers, Ill.App.3d tending that intoxication existed *3 850-51, 471, 848, 461 N.E.2d 77 Ill.Dec. forming spe- incapable of the Morris made (1983), seek 473-74 insurer can a declarato intent, argu- Farmers Insurance cific and ry issue judgment to decide a factual rele ing sobriety. defend, duty to to issue is vant the in a of the facts detail After review of not “crucial determination letter, trial page opinion court fifteen Here, however, underlying ap lawsuit.” dispositive provided: order argue third-party that pellants as a benefi summary judgment granted [Pjlaintiff be they appeal ciary can raise the issue on to defendants, for the reasons against the summary judgment seek reversal genuine any no issues of there are that against Although the entered Morris. ar is that entitled plaintiff fact and material gument academically is constructed with a of law. judgment as matter to ingenuity, logic precedent some we find or IS THEREFORE entered JUDGMENT lacking appeal op can an litigant that one plaintiff, Farmers Insurance on behalf litigant’s posing denied insurance carrier defendants; Exchange, against it is and obligation for defense.3 of the judgment and is declared herein, In- plaintiff Fanners Court only person The general rule is a obligation or Exchange no surance judgment aggrieved by who is a can take * * indemnify or defen- * duty to either defend appeal Essentially from it. Ray regard to Marion Morris with dant standing. as rule is one of Just alleged by claims action initiated standing requirement requires complaint complaint and/or amended recognized legally a interest one have Leopoldo Dorothy San- Sanchez and permitted bring is to before one to chez, shooting inju- arose from the which interest, per- too a protect that so must Sanchez, ry Leopoldo which occurred adversely son an interest affected 8, August on or about judgment appeal able to be counterclaim was denied with Sanchez judgment. prejudice. Martineau, Practice, Appellate Modern R. ap- Leopoldo Dorothy Sanchez Only Appeals and State Civil 5.2 72 Federal § not. pealed, Morris did Parr (footnotes omitted). (1983) See DUTY TO DEFEND States, 513, 516, 351 76 United U.S. S.Ct. 912, 915, 1377, reh’g L.Ed. denied 352 100 cognizant that contro We are a 21, 1 L.Ed.2d 69 duty may be 77 S.Ct. concerning a to defend U.S. versy litigant criminally and the gesting San- district court decision in- that Morris had accused However, grand- appeal. Morris’ a sexual offense with the issue chez of sured’s failure judicial process, Lacking upon faith meaningless, child. singularly since seems be accidentally, intentionally, drunk- or or Morris enly, unlikely remand it is that Farmers Insurance self-help personal as retribution. invoked permit feel free to a default against charges dis- Sanchez were Criminal against upon be awarded their insured hearing preliminary of evi- lack missed liability might pursued thereafter be on carrier dence, attempted charges homicide litigatively finalized issue of fact and amount. awith nolo con- Morris were concluded portend Experience would a continued defense suspended plea sentence. and a tendere right status. What will be under reservation special interroga- determined tort case law, general recognize, in accord with 3. We Sanchez, verdict, adverse to tories unless duty more extensive than to defend problematical juncture of course at this indemnify, sub- requirement but does not litigation. princi- stantively any application of the consider judicata pal now in res case where settled to this

1209 Supreme The United States Court enunci against Morris and in favor of Farmers May, 72, -, Karcher ated in U.S. Insurance on the duty to defend S.Ct. L.Ed.2d claim. (1987): applied have consistently gener [W]e INDEMNITY party

al rule that who one is not or has Appellants posture present argu- this party not been judg treated to a procedure ment two bases: right substan- appeal ment has no therefrom. law. procedural context, tive Jack, ex United States rel. Louisiana v. they con- 397, 402, 605, 607, tend this action premature 244 U.S. in liti- 37 S.Ct. (1917); gating the parte Ex L.Ed. 1222 same issues Tobac prin- included in Leaf Trade, Board co cipal case proceeding U.S. before the first L.Ed. parte Ex S.Ct. terminated. Secondly, they claim that a Cockcroft, (14 Otto) 104 U.S. 26 factual issue was created relative to the parte Ex L.Ed. Cutting, *4 application of the policy exclusion so that (4 14, Otto) 20-21, U.S. 24 L.Ed. 49 summary judgment improvident was or un- (1877). justified as legal a substantive decision. Dispositively, Supreme the United States Court held the controversy that the over Prematurity 1. Jersey New moment of silence statute We at note the outset that a declar losing when party “ended the New —the atory judgment action can be beneficial as Legislature Jersey pursue its —declined frequently used when the effect of insur Karcher, appeal.” 108 S.Ct. at 395. questioned. are Poling v. ance contracts Although Morris and Sanchez were Co., North American Casualty Life caption declaratory named the of the (Wyo.1979); 593 P.2d 568 Mountain West action, judgment they were not both treat- Co., Farm Bureau Mutual Insurance Inc. parties ed the judgment respect Co., v. Hallmark Insurance 706, 561 P.2d duty Clearly, appellants the to defend. (Wyo.1977); Comment, 711 The Declarato parties are not real in interest on de- the ry Judgment and the Insurance Con fense-duty controversy they where are not tract, (1936). 46 L.J. Consequent Yale 286 adversely by judgment. affected the It is ly, our we confine decision facts of irrelevant to who In- them fuels Farmers judg the case at hand where a declaratory litigative surance’s resistance. This issue ment is company instituted an insurance is similar to one faced the of Court injured party’s after the action was started Georgia in Wilmington Cabi- Appeals of and remains undetermined. Co., Autry, net Inc. v. 93, Ga.App. 169 311 litigation, policy coverage Within it is (1983). case, S.E.2d 519 In property possible to differentiate in the case law owner sued both contractor and subcon- questions those where the claimant is clear for allegedly

tractor fire losses caused ly coverage and the for the is in insured act improper of installation the kitchen vent question disputes any from whether insur trial, hood. At the of close contractor Navajo exists ance claimant. verdict, granted was directed subse- Lines, Freight Liberty Inc. v. Mutual Ins. quently jury returned a verdict favor Co., 424, 12 Ariz.App. 309, 471 P.2d 311 property owner. The subcontractor (1970). litiga category this second argue tried to directed verdict for tion, dispute some facts extrinsic to the improper. the contractor was That court liability in underlying joint action establishes held that since this was not a cause coverage. an Western Casual action, absence of standing no subcontractor had Teel, ty Surety v. 764, Co. complain 391 of the F.2d directed verdict (10th Cir.1968); Wilmington Nationwide Mutu 765-66 Cabinet another defendant. Inc., Co., al Insurance v. Farm 93, Co. State Mutual Ga.App. 169 311 at S.E.2d Co., case, Auto Insurance F.Supp. 216, 522. Like no 312 217 Sanchez here has capacity (W.D.Va.1970). to appeal example One where 1210 187, 355 Peppers, 64 Ill.2d the contract so insurer is v. N.E.2d 24

insured breached Shel duties, (1976), grounds by Company modified on other Insurance of its relieved Bailey, Waldroup, 462 ter Mutual Insurance Co. 160 America v. North 76, 146, (D.Ga.1978); 112 N.E.2d Barnes 161, Ill.App.3d Ill.Dec. 513 F.Supp. 162 Co., Equipment Supreme 490 Court of Illinois Scaffolding and 41 Waco 505, of discretion 423, 506 held it was an abuse Colo.App. 589 P.2d Ins. v. Cum declaratory trial entertain the Policyholders’ Co. court American Co., 247, Storage 373 A.2d judgment which determined that in- berland Cold Insurance intentionally injury caused the when Employers’ Fire (Me.1977); sured 250 Beals, action had filed personal-injury A.2d been Co. v. 103 R.I. declara- (1968), simply more than four months before the another Maryland Casualty Com tory judgment. the event. not in at the time of was effect pany, 355 N.E.2d That court found Policyholders’ Ins. See American question of intent was one Ins. Co. v. 250; Fire Connecticut A.2d at upon recovery 952, ultimate facts Williams, A.D.2d N.Y.S.2d predicated underlying and that the (1959). Similarly noted is Aetna Life declaratory judgment simply inap- Hartford, Connecticut v. Insurance Co. of Also see Brohawn v. procedure. propriate Haworth, 300 U.S. S.Ct. Company, Transamerica 617, reh’g denied 300 L.Ed. U.S. (1975), 347 A.2d where Md. (1937), 81 L.Ed. 889 where the S.Ct. Maryland Appeals found an Court Supreme Court held that a United States in granting of discretion a declarato- abuse declaratory appropri judgment action was *5 ry judgment where the issue be resolved lapsed policy if had ate determine the pending the ultimate issue in the suit premiums. pay because of a failure to exposed po- the insured would be since from those status This case is dissimilar punitive damages the insurer tential of cases because here the insurance Thus, proved the conduct was intentional. presents in applied and exclusion defense injured person court noted that the is happened and precisely issue what factual proceed- position only into of not forced very is the substance of why, which then ing against injuring party but also de- the damage recovery litigation and as claim “against fending resources and vast coverage an decision. act expertise try- of insurer who would be her authority split there is a on While ing prove which its contractual properly be decided in a what issues Brohawn, disprove.” 347 A.2d at duty to declaratory long as the judgment action as see Auto result, with 849. accord this pending, underlying is still ma “[t]he Moore, 235 Indemnity v. Mutual Co. Ala. * * * jority the most recent cases Burns v. Hartford 426, 179 (1938); So. 368 declaratory judgment should held that Co., 157 So.2d 84 Indemnity & Accident resolu depends if it on the not be entered Indemnity Co. Associated (Fla.App.1963); disputes issue in that are at tion of factual America, v. North Insurance Co. of 68 Windt, underlying A. Insur action.” N.E.2d Ill.App.3d 25 Ill.Dec. 386 at Disputes 8.04 325 ance Claims and § Casualty (1979); State Automobile & 529 Further, see Nationwide Mutual (1982). Gardiner, v. Kan. Underwriters 189 Co., 217-18; F.Supp 312 at Insurance Fidelity (1962); United States 91 370 P.2d Co., Policyholders’ Ins. American 373 Guaranty v. Kenosha Investment Co. Huntington v. 250-51; Town at A.2d Co., (1963); N.W.2d 190 369 Mich. 120 Group, 69 A.D.2d Insurance Hartford v. Port American Home Assurance Co. (1979); Na 415 N.Y.S.2d Jersey, Authority New York and New Dennis, Insurance Co.v. tionwide Mutual (1979); 269, 412 N.Y.S.2d 605 A.D.2d 188, 217 681-82 N.Y.S.2d A.D.2d Co. v. Mutual Insurance Preferred (1961). 78, 491 N.E.2d Thompson, 23 Ohio St.3d Liability Employers Mutual the in- 688 amazingly point A case with Bluhm, Company Insurance Co. Wisconsin Maryland Casualty stant one Employers’ P.2d company; Or. the insurance under those cir- Fire 397; cumstances, 240 A.2d obtaining rather than Farmers Tennessee Mutual Insurance Co. company’s benefit of the resources and Hammond, expertise defending against in plain- Tenn. S.W.2d tiff, resources, those for which the in- bargained, sured had would be turned here, presented judge As the trial in this against the help insured and used to es- subsequent declaratory judgment action is his her liability. tablish or placed position trying now of first Windt, (footnotes supra, omitted). A. at 326 underlying question case as a of wheth- declaratory judgment The institution of the er shot intentionally Morris Sanchez—the as in action the case at bar results a race very dispute pending issue tort judicata to res or at least estop collateral Additionally, case. both suits institut- pel, which improper. 6A Moore’s Feder court,4 ed in potential state there is no Practice, (1987); Annotation, al 1157.08[5] conflict between federal state court Principles Extent to Which Res Judica- systems might otherwise exist. Applicable ta Are to Judgments in Ac justifications six taking There are Declaratory tions For Relief, 10 A.L.R.2d utilizing more restrictive view of declarato- (1950). Furthermore, Wyoming ry judgments under facts similar to the legislature expressly recognized po instant ones: problem estoppel tential with collateral declaratory judgment 1. The action was declaratory judgment by providing part: not intended to be used to force declaratory sought, When relief is all to have a insured “dress rehearsal” persons parties shall be made who have be issue to tried in the main case claim any interest holding declaratory judg- declaration, and no dec- affected might inappropriately ment action collat- prejudice laration rights shall erally estop parties to the main ac- persons parties not proceeding. tion as to certain factual issues added). (emphasis 1-37-113 W.S. For a a proceeding 3. Such would unduly bur- estoppel generally, discussion of collateral improperly den the insured and allow Corporation see Texas West Oil and Gas *6 litigation insurer to wrest control of the Casper, v. First Interstate Bank 743 of injured from party (1987), P.2d 857 reconfirmed 749 P.2d 278 a declaratory judgment 4. Such would (Wyo.1988). Clearly, Sanchez aas named principle judicial violate economy defendant could bound on issue of be 5. an action Such would constitute an intentionally whether Morris him shot or unwarranted interference with another not, by declaratory the determination in the proceedings court’s Thus, judgment filing action. of the judg- 6. To declaratory the extent the declaratory judgment procedur- amounts to might adversely ment resolve issue to fencing company, al the insurance which insured, it inherently would be improper, proce- unfair is an distorted use of litigate foil, Practice, force insured as a dure 6A Moore’s Federal Anderson, Declaratory Judgments Ordinarily 4. See 1 W. it be as would uneconomical well (2nd 1951) proceed vexatious for federal in a court § 209 at 448-49 ed. for the universal declaratory judgment another where rule be that both actions must under the same pending presenting suit is in a state court states, sovereignties, legal jurisdictions, or issues, law, governed by same federal not parties involving be between same same parties. between the inter- same Gratuitous issues, one action to bar the For a other. comprehensive orderly ference disposition involving pending discussion of situations state litigation of a state court should judg- declaratory suits and the institution of be avoided. court, ment in federal see Brillhart v. Ins. Excess Note, Availability Declaratory Judg- also See aof America, 491, 495, 1173, Co. 316 62 U.S. S.Ct. Pending, 51 ment When Another Suit is Yale L.J. 1175-76, 1620, reh’g L.Ed. 86 denied 317 U.S. Morrison, (1942) Application 511 704, 23, (1942), 87 63 S.Ct. L.Ed. 562 Declaratory Judgment For Insur- Federal Act Life states: Cases, (1937). ance 23 A.B.A.J. 788 1212 Keeton, 57-207; on ment first and that this second action at R. Basic Text

supra (1971), Law 508 or as an im- abeyance should held in until the issues declaratory judgment determined, proper of the principal use case are first company allow the insurance forum if pursued, appropriate.5 as then to be shop. National Union Fire Insurance Bros., Lippert v. Pittsburgh, Co. Pa. Summary Judgment (D.Neb.1964). Inc., 650, F.Supp. 656 233 dispositive, Equally is our further long Wyoming held that a declarato judgment im finding only action should be main ry granted. providently pur where it serve a useful tained found, question of The district court as a Q. pose. Beatty Chicago, v. B. R. ap- law the insurance exclusion (1935); Wyo. Holly 52 P.2d 404 determination, tor- plied by factual that the Fritzler, v. Sugar Corporation Wyo. fre- tious act was intentional.6 We have Note, 296 P. Basic entry quently re-emphasized the test

Misconceptions Declaratory Judg summary judgment as whether reason- Law, Wyo. ment L.J. person that an issue able could have found duplicate litigation is not discem Benefit of fact existed as determinable within liability re when the of the insurer able Gosar, 719 reasonable doubt. Cordova v. contingent mains never material Blue (Wyo.1986); P.2d 625 Weaver v. indemnity payment. ize for Allstate Ins. P.2d Wyoming, Shield Cross-Blue Liability Employers Assurance Co. A read- (Wyo.1980). 986-87 detailed (5th Cir.1971); Corp., 445 F.2d ing testimony of Morris’ reveals an actual Varkalis, Insurance Co. Gibraltar If con- conflict from what he said. not Ill.2d N.E.2d Na event, time of Morris was Gaskins, fused at the Savings Insurance Co. v. tional to a certainly contradictory and confused (Tex.App.1978). 572 S.W.2d Con degree testimony in his so that a available sequently, we find that the trial court clearly intent allowing defined determination of his its discretion the declar abused proceed possible.7 atory judgment judg action to was not 6. "Under Section 5. We do not consider proceeding will bodily injury *7 ed original.] or issue sudden ment action. exposure you that? home? ing nor intended specific findings, A. No. A. Q. Q. A. A. Bourbon. Q. A. Q. Q. preclusion were event, including You were Probably. No, —prior No, Well, Did Had [******] [******] day— sir. sir. you drinking. you you've property to or collateral II— same start been drinking that the insured." heard Liability, nor on this conditions, resulting drinking time? drinking any, Do continuous damage address what effect your bourbon? you disagree estoppel a made in the first declaratory accident means a wife neither after anything [Emphasis or testify repeated you got decision expect- judg- with dur- drinking hol influence of alcohol that disagree influence, dent with Mr. Sanchez? much home. A. I couldn’t A. Q. Had A. Yes. Q. A. Q. Even after A. Even after Q. Q. A. To some Q. A. A. IA. Q. A. 80 Q. Q. Q. to some I, Several? Were I’d How Why I, And did Your wife When did Do up through [******] drank. I didn’t care about with he’s proof you don’t that way do you many you degree? under that? you recall what to you I understand you degree, yes. had more than one drink? recall the say. under the influence felt you just just disagree and until the drinks had all I could think were continue to drink the influence. start one one drink? Several. you you drunk. Would evening? drink. drinking with it. time. type it, counting them. were under were under you say. if a of bourbon? After I had? person’s of alco- pretty inci- day? you got what was just Certainly I on in ry- pretty big had would be he was that heinous crime? there was no making it? system made that statement were harm today member half? half Would over. fied she anywhere between an hour and an hour and a call a drink? How much is a drink? than ten drinks? dent? A. A. A. Irrational? Q. A. Q. A. A. Yes. Q. A. At the time I had A. Yes. Q. And A. Q. You A. It’s—I Q. Q. A. Yeah. Q. Q. Angry to the A. It could have been a half. Q. A. A. Out of the bottle. Q. A. It wouldn’t be over. A. Ten drinks? A. Q. Would Q. Out of the bottle. Q. Out of a shot Q. Q. Q. hour, what, happened. pint going *8 Well, No, you may Right. Well, you Right. That What were And that —she No, I do your Well, And Hour, possibly Mr. Sanchez? Straight. And ****** It could have been a half a How were ****** [******] Over what time [******] [******] I’m you disagree guilty? thought you’d your saying two word. That going just no you thought you’ve positive you maybe don’t mind it to kill Mr. Sanchez. Do is it guess you say you hours, you might your wouldn’t. You couldn’t punishment mind, work, punishment what I was didn't believe that the testified not. think that to her? tell me then what was possible on in No one know. you drinking during you doing? heard her [his point not have been clear to me you it’s I Well, he’d of that. mind he had committed before the at the time he was glass? did don’t— hour and a half. you might possible. period covers a lot my consumed a half probably were irrational? get where Well, what do that you have consumed that you? would that? to fit that crime. mind, too had less or more doing. off? That’s, you don’t remember period you would your you great. it? shooting thought told wife] you have had a understand I could have wanted to pint? wife testi- guess. It wasn’t that’s a of time. you judicial her you want to territo- until testify There going shot, pint. inci- you say, re- it I were try grandson I don’t—I wound to that. you recall—strike that. actual mind, Sanchez? that cally getting mind ing him? ing mind, ing Mr. Sanchez? you going to harm Mr. Sanchez? be. house. be killed? didn’t want to had to didn’t show house? terrible guess probably I didn’t understand what was going A. A. I A. At the time told MR. REESE: Q. Q. A. Confused Q. Q. A. A. A. Q. Q. A. A. It—I don't —I Q. Q. Q. Q. A. Whatever did A. I wasn’t sure what was A. I Q. Q. What was A. A. No. A. I recall Q. Q. Q. Q. shoot a fatally wound him? to—Did sent way. necessary for her to see. going (No response.) I can’t—I can’t I can’t—I can’t—I Did You If Well, I, Like.you You don’t to shoot him. Or You don’t remember Why Do hurt Mr. Sanchez In other I don't Why? [******] ****** Do Why Did You don’t recall on in [******] Ray? Were I’ve shot, go him. guess don’t, thought I—It’s a terrible you things near fatal wound. her into the you and— person. And a you you inside the house because he had to you don’t think didn’t know what always do you her did what was my no. know. I shot remember I don’t think telling think — tell try words, gun know that you say recall whether said, indicate to her that anything. know in mind. That’s recall that was the Objection. He didn’t going you and concerned I felt, her, happen you don’t believe it’s a happen him. kill Mr. Sanchez? want her to her to recall Consciously you lifting making you on in house? show her—I feel that I wouldn’t, going her to that? wanting confused? step. Do telling your can’t remember person in their your terrible you don't I to a kid. necessarily wanted her in the evening by I lifting you your go going I didn't think it place on inside go planned one of might happen. I’ve gun that statement? mind that were you recall in the house. to shoot it was in in the house wouldn’t do recall thing mind when about always I and shoot- for her to go you ever—Do going didn’t—I the most wife she him? gun. happen. specifi- meant fatally it. shoot- to want- right your were you Mr. felt my do, dispute presented so trial court most With intent his own accu- Morris’ statements, required judge-the to rately veracity trial resolution of the individuals. application of the insurance Credibility determine the at of the witnesses was case, making summary exclusion. judg- heart of this Williams, Greaser inappropriate. ment give all favorable inferences to Since we (Wyo.1985); P.2d 10A C. motion, Cordova, party opposing Kane, Wright, A. M. Miller and Federal Jagusch, 639; P.2d at Bancroft Practice Civil 2d and Procedure: § (Wyo.1980), psycho- find the P.2d 819 we credibility Simply put, is to “[w]hen logical intention analysis of the factor as tested, testify be should witnesses conflicting sepa- affidavits of afforded Cordova, trial.” P.2d at 639. presented psychologists rate also an issue creating at least a standoff be- fact as problem Another is created the intoxi participants. tween these forensic Conse- capacity cation factor it relates to the Insurance, movant, quently, Farmers necessary meet the form intent insur genuine of a prove did not the lack issue policy intentional-injury ance exclusion.8 concerning fact intent which material Co., Parkinson Ins. v. Farmers Ariz. summary judgment. would warrant (1979); Transamerica 594 P.2d 1039 Inc., Thrift-Mart, Co. v. Separately implicated proceeding (1981); Badger Ga.App. 285 S.E.2d 566 of the appropriateness is the finder of fact Murry, Mutual Insurance Co. v. 54 Ill. grant summary judgment when the case App.3d 12 Ill.Dec. hinges analysis event for intent N.E.2d 295 on factual Burd v. Mutual Ins. Sussex experts conclusions. The witnesses and dispute Garden State N.J. 267 A.2d 7 whose affidavits were should be frighten frighten; Sanchez, hindsight says, "Hey, back in the tions were. you chez didn’t intend to shoot can't, have, I—I— shot him? against her car. your A. No. A. No. A. It A. A. I can’t—At A. Q. That wasn’t Q. Q. A. It’s clear in Q. Q. Q. A. I’m not Q. A. It’s a terrible Q. could retrieve it and you across mind? did Yes, (Shakes You never You don’t recall Is it You didn’t So Do I can’t—I You're not sure what [******] [******] [******] Mr. Sanchez were the might did you you a loaded you I remember that. the street so pickup and went over and leaned your testimony It's unclear to you? have a recollection that do recall sure what I—I’m head) have entered don’t know what put have—At that the time of my one who shot had a your plan? gun.” telling that’s a hell of a mind with the whether thing Mr. you then gun plan Sanchez? me. could shoot him? was solicit Mr. San- my you use to shoot police time Mr. Sanchez? I not sure. the truck go through. going put you really mind, my wanted of a you did way officer inten- on in gun? gun Mr. you had but so 8. The competency, rence irrational. At just said judgment. what, want to member much to control? at Mr. Sanchez? consumed? that much alcohol that night? thing you call mind. A. Or Q. A. Q. A. I'm A. Q. A. I Q. And Q. A. A. I Q. Q. Has it ever been clear in enormity perforce much going recall, No, Well, My judgment Well, No, Your Or After what I did. to do with alcohol [******] would have to don’t believe put pulling what drink, that. what sure I must I can’t. consumed that I you is it your you testimony do it. can’t—That’s not clear in your issue, however, demonstrates of the they they conscious intent. You said not that much think that you to be don’t your family truck to I can’t. said I did. However is that I hadn’t had that say you trigger think absurdity it testimony you actually consciously have been to out of control. say night. went in the has. you night, might consumption you that there that Morris was get did? didn't consume I of the were firing thought you your gun? house, do, capacity, don’t re- out occur- wasn’t mind? some- to do shot you my my re- do *9 v. Casualty Keefe, Fire & Co. Appellee event, for any N.J.Su in resulting in 718, per. yet 410 A.2d certification denied appeal. another 420 A.2d 317 United N.J. Since judge retired, initial trial Fidelity Guaranty States & Ins. Co. v. responsibility continued for the case is Brannan, Wash.App. 589 P.2d 817 vested in present judge, active pursu Griffin, Kenna v. 4 Wash.App. 1—106(f), ant to W.S. though even 6— (1971). Thus, 481 P.2d 450 the issue of prior judge has retained been on a retired- whether Morris too drunk to form was recognized active status. It is requisite a intent is material issue. This first trial as a decision may merits inquiry specifically addressed any inquiry resolve this any case. For Georgia Supreme very in a Court similar further proceedings in declaratory judg summary judg circumstance in reversal ment, non-reassignment will resolve the ment received the homeowner’s insur process constitutional and due concerns ar ance carrier after death where gued by Haskins, State v. litigants. the court considered whether intoxication (1986). 220 Mont. 714 P.2d 119 person incapable render forming Summary judgment is reversed as to expectation an intent injuring or anoth Leopoldo Dorothy and Sanchez and the er. case is proceedings remanded for further question expectation The of intent or accord herewith. uniquely pattern here fits of those issues of material fact which are not CARDINE, C.J., dissenting filed appropriate for summary judg- issues opinion, BROWN, J., with whom ment are decided but trier of fact. Retired, joined. State Morgan, Farm Fire Cas. Co. v. CARDINE, Justice, dissenting, Chief (1988). 258 Ga. 368 S.E.2d BROWN, Justice, Retired, with whom Note, Injury The Intentional Exclu- See joins. sion: No When is There Intent Behind Intention?, 11:3 Am. J. Trial Advoc. object summary judgment The of a mo tion is separate pretended merely preclusion

Issue and certainty disputes genu factual formal from those which are Thus, necessary justify ine and are substantial. bare asser regard not in this tion demonstrable record. that an issue exists with some material fact should insufficient to RIGHT TO A DIFFERENT JUDGE Soulis, defeat such a motion. Johnson v. REMAND UPON (Wyo.1975). 542 P.2d Neither conclusory purely should statements con change A request judge of trial cerning suffice ultimate facts to raise a appellate addressed brief: genuine trial; party resisting issue for Appellants respectfully request reversal, challenge the motion must the movant’s change judge remand because of allegations specific forth by setting facts the fact that substantial and material permit infer the fact finder to those case, issues of fact exist this and that facts. Blackmore Davis Oil ultimate opinion letter, judge, the trial in his clear Ban 334,336-37 (Wyo.1983); 671 P.2d ly would stated that he rule in the favor Jagusch, (Wyo. 611 P.2d croft Appellee matter this were tried be 1980). fore the Court. evidence Alleging of its substantially record Court is that it was relieved duties before the indemnify by policy provi- present to defend same evidence would be matter, any excluding coverage sion for Morris’ inten- ed at trial this and it acts, miscarriage company justice tional the movant insurance be a that Morris intend- litigants waste of set forth facts to show time for Those facts indi- judiciary for case to be ed assault Sanchez. this remanded prior commenced judge the same who would cated that such intent trial then find *10 expressed contin- Morris doubts Sanchez consumption of alcohol and Morris’ suggested punished and he would would be fell on his the hammer unabated until ued to take that matter into his own offered, in re- handgun. Sanchez magnum she hands. His wife became so alarmed possibility that merely chimeric sponse, the daughter sought the assistance of their to commit not form the intent Morris could him from Sanchez. distract drunk to battery he was too because Sanchez offered evi- have done so. While finishing evening time his Some after affected to meal, outside, that Morris had been by dence his Morris went followed drinking, he offered daughter. his some extent He told his wife that wife show, killed, of much evi- and or- nothing in the face Sanchez would have to be family house. suf- dered his to return contrary, that Morris was dence to the police. In the mean- His wife called the destroy his ficiently so as to intoxicated time, magnum Morris took a .357 revolver requisite intent. ability to form the truck, pickup from his called Sanchez from judgment is purpose summary of a whole and, his home across the street when San- trans- party permitted defeated approached distance of chez to within a categorical assertion of ultimate form his feet, him in approximately five shot genuine issue without some facts into a face with the revolver. Morris then re- support. evidentiary Maxted Pacific truck, gun to his leaned turned the Co., 527 P.2d Foundry &Car car, cigarette, lit and waited for his wife’s (Wyo.1974). During police to arrive. all of the genuine and In order to show that a events, evening’s witnesses observed noth- regard to Mor issue exists with substantial signs of Morris’ ing but minor and isolated injuries capacity expect or intend the ris’ Indeed, that, Morris intoxication. admitted caused, than a must raise more he Sanchez bourbon, though effects of the he felt the capacity that such metaphysical doubt clearly The record indi- he was not drunk. Though he is entitled to the bene present. throughout his cates conversations doubt, every he is not fit of reasonable wife, daughter, and the re- with his his by raising prevail merely entitled officers, sponding police appeared Morris Gosar, 719 slight doubt. See Cordova v. lucid, unimpaired. rational (Wyo.1986). He must set P.2d plainly the intentional Such facts show reasonable minds forth facts from which Only by purely conduct. nature of Morris’ incapable that Morris was could conclude could a speculation reasonable unbridled 639; forming a tortious intent. Id. at mind conclude otherwise. Sanchez Brodie, (Wyo. Fegler v. 574 P.2d drinking. that Morris was merely shown 1978). record in this case will Because the of material fact which Sanchez The issue support a conclusion that not reasonable purportedly is not Morris raises whether unintentional, I dissent Morris’ acts were alcohol, whether that was affected but an is majority’s conclusion that from the great effect so that Morris acted with- coverage regard to sue of fact exists with undisputed so. The out the intent to do policy. under this insurance presented facts on the that, The record for some two establishes present not an issue. Mor- motion do even prior evening of the shoot- months ris neither extreme intoxication exhibited distraught ing, had over his Morris been cognitive inability nor an to control his His grandchild’s molestation Sanchez. Thus, suggested functions. Sanchez has evening anguish aggravated that grounds had been no reasonable conclude hearing unintentional, and he by the imminence of Sanchez’s Morris’ conduct was respect to perception has not carried his burden with that matter and his that Sanchez affirm. appellee’s motion. would go unpunished. At some time be- evening 4:30 and 5:30 that Morris tween

began drinking. the next hour and Over half-pint roughly one

half he consumed time, he During but before

bourbon. 6:45, down for dinner at

and his wife sat