31 Va. Cir. 306 | Greene Cir. Ct. | 1993
The Travelers Indemnity Company has demurred to the “Amended Complaint” in which the plaintiff William Morris seeks declaratory relief regarding insurance coverage under a policy issued by Travelers Indemnity Company.
Procedural History
This declaratory judgment action was filed in the Circuit Court of Greene County <?n April 20, 1992, against Travelers Indemnity Company. Travelers removed the case to the United States District Court for the Western District of Virginia on May 22, 1992. On July 29, 1992, Arbutus Morris, wife of the late Edward Morris, intervened and
Statement of Facts
The plaintiffs amended complaint incorporates by reference the amended motion for judgment filed in the case of William Morris v. Arbutus Morris, Administratrix of the Estate of Edward Morris, Law No. 1208, pending in the Circuit Court of the County of Greene. The amended complaint incorporates the Travelers insurance policy which William Morris contends provided coverage to Edward Morris at the time of the shooting.
The facts as pleaded by William Morris are that on February 11, 1991, William Morris, the Sheriff of Greene County, and a deputy accompanied Mrs. Arbutus Morris to her residence to recover her car. She had left the car there the prior evening after a heated dispute with her husband, Edward Morris.
In Count I of the Amended Motion for Judgment, Sheriff Morris contends that the wild firing of the shotgun was done “consciously in disregard” of Sheriff Morris’ rights or was done “with a reckless indifference to the consequences” to Sheriff Morris and that Edward Morris should have realized “from his knowledge of existing circumstances and conditions that there was a strong probability that his conduct might result in injury to another.” Sheriff Morris describes Count I as an action for “willful and wanton negligence.” Count II alleges the same facts but seeks recovery under a theory of “gross negligence.”
Decision
By filing a demurrer, the defendant challenges whether the plaintiff’s amended complaint which incorporates the amended motion for judgment filed in Morris v. Morris states a cause of action upon which relief can be granted. Grossman v. Saunders, 237 Va. 113 (1989). The defendant’s demurrer admits all well-pleaded facts, as well as facts that are fairly inferred or implied from the facts that are alleged. Duggin v. Adams, 234 Va. 221 (1987). However, the court is not bound by conclusory allegations when the issue to be decided involves a mixed question of fact and law. Russo v. White, 241 Va. 23, 28 (1991). Thus, the fact that the plaintiff alleges that the shooting of Sheriff Morris was “an accident” is not of itself sufficient to overrule the defendant’s demurrer.
The thrust of Travelers’ demurrer is that the factual allegations in Count I of the amended motion for judgment in Morris v. Morris allege an intentional tort of assault and battery, and since the cause of action is for assault and battery, the claim falls outside the provisions of the Travelers policy issued to Edward Morris. Travelers relies on Norman v. Insurance Co. of North America, 218 Va. 718 (1978), and Bannister v. Mitchell, 127 Va. 578 (1920). While language in both cases tends to support Travelers’ demurrer, the holdings of the cases do not dictate
Norman argued that the allegations in his complaint alleging that he did not aim the pistol at the tenant when it was fired meant that the claim was covered since he “neither expected nor intended the injury to the tenant.” The Supreme Court rejected this argument on the ground that the jury verdict and the punitive damage award against Norman in the civil suit established that Norman had committed an intentional assault and battery in the shooting of the tenant. The Court found that Norman was collaterally estopped from relitigating the question of whether the shooting was or was not an intentional assault and battery. Since that matter had already been resolved, the Court held as a matter of law that the shooting was not an accident within the meaning of the insurance policy. 218 Va. 723-725.
Bannister v. Mitchell, supra, also involved a civil action for assault and battery. Appealing a verdict for the plaintiff, the defendant contended that when he cut the plaintiff with a knife across her cheek and ear, he was trying to cut the plaintiff’s brother and that the plaintiff “got in the way.” 127 at 584. The court held that a specific intent to injure a particular individual was not a necessary element in a civil action for assault and battery where the act constitutes a wanton, reckless, and dangerous act which could result in injury to one of a member in a group “such as shooting into a crowd.” Id.
What distinguishes Norman and Bannister from this case is that Count I does not allege a cause of action for assault and battery. The plaintiff contends that the wild shooting by Edward Morris constituted willful and wanton negligence. There can no longer be any serious
There is a substantial difference between willful and wanton conduct, on the one hand, and intentional misconduct on the other. An actor guilty of intentional misconduct must intend to cause harm to another. See, e.g., Johnson v. Insurance Co. of No. America, 232 Va. 340, 350 S.E.2d 616 (1986) (actor understood nature and consequences of his conduct and had purpose and volition to cause injury). An actor guilty of willful and wanton conduct intends his act, but not the resulting harm. See, e.g., [Booth v. Robertson, 236 Va. 269 (1988)] (drunken driver guilty of willful and wanton conduct even though lacking ill-will, malice, or intention to cause harm). 239 Va. at 582.
Here, Sheriff Morris does not contend that Edward Morris intended to shoot him at the time Sheriff Morris was shot. Sheriff Morris contends that the shooting was done “wildly.” While the willful component of the cause of action means that it is alleged that the conduct of the firing of the gun was intentional, it does not follow that Edward Morris intended to shoot Sheriff Morris causing him bodily injury.
Characterizing the plaintiff’s cause of action in Count I as a claim for willful and wanton negligence does not resolve the matter. The issue here is one of insurance coverage and more particularly whether the facts set forth in Count 1, regardless of the character of the tort, are
The precise issue here is whether an “accident” includes conduct committed by an actor where the actor is guilty of willful and wanton conduct but does not necessarily intend the harm that results from the conduct. The answer is found in the Travelers policy clause where it states that the policy does not apply to injuries which are “expected or intended” by the insured. In paragraph 7 of Count I of the Amended Motion for Judgment, Sheriff Morris alleges that when Edward Morris fired wildly outside, “Edward Morris should have realized, from his knowledge of existing circumstances and conditions, that there was a strong probability that his conduct might result in injury to another.” There is no allegation here that the injuries were “intended.”
However, the policy excludes coverage for acts committed where bodily injuries are “expected.” Obviously injuries that are expected are different from injuries that are intended. To “expect” a happening is “To look forward to the probable occurrence of. To consider reasonable or due.” The American Heritage Dictionary of the English Language, p. 232. Sheriff Morris contends that Edward Morris should have known there was a “strong probability that his wild shooting would cause injury to another. To this court, that is the same as saying that Edward Morris should have expected that his wild shooting would cause injury to Sheriff Morris or to anyone else who may have been in the line of fire. This court sees no difference between a probability of injury and an expectation of injury where the conduct is alleged to have been done wantonly or willfully.
Accordingly, the demurrer of Travelers is sustained.
An amended complaint is the plaintiffs operative pleading as this case was before the United States District Court for the Western District of Virginia at the time the amended complaint was filed. The defendant’s demurrer was filed after the matter was remanded to the Circuit Court of Greene County.
The United States District Court declined to exercise jurisdiction pursuant to 28 U.S.C. § 2201. Relying on Mitcheson v. Harris, 955 F.2d. 235 (4th Cir. 1992), the federal court concluded that it would be preferable for this court to resolve the coverage question since the underlying personal injury case was also pending in this court.
The fact that the plaintiff, William Morris, has the same last name as Arbutus Morris and her deceased husband, Edward Morris, is coincidental.
Count II was previously dismissed for reasons unrelated to the insurance coverage question involving Count I. The demurrer only involves Count I, the count alleging willful and wanton negligence.
In Norman v. Insurance, supra, the case principally relied upon by Travelers, the Supreme Court distinguished the case of State Farm Mutual Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968), on the basis that the cause of action in Worthington did not involve an intentional assault and battery. The insured in Worthington fired a shotgun in the general direction of several boys when the insured thought they were stealing watermelons. One of the boys was killed. The facts in Worthington are closer to the allegations here. The Supreme Court distinguished Norman from Worthington in finding that “the firing of the gun by Norman and the wounding of Wilson as a result thereof were allegedly intentional and malicious.” 218 Va. 718, 724.
