Mutual Service Casualty Insurance v. McGehee
711 P.2d 826
Mont.
1985
Check Treatment

*1 INSURANCE COM MUTUAL SERVICE CASUALTY PANY, v. TIMOTHY W. Mс Respondent, Plaintiff GEHEE, Timothy McGehee, also known as also known Rauker, McGehee, Defendant, Defend a. Tim Walter Appellant. ant No. 85-187. 10, 1985.

Submitted on Briefs Oct. Dec. Decided 1985. Rehearing Denied Jan. 711 P.2d 826. Huntley Eakin, Eakin, Baker, Buelow, & City, Ira H.D. Miles defendant and Rauker. *2 & Monaghan,

Lucas Monaghan, City, plaintiff Thomas Miles for respondent. MR. JUSTICE Opinion GULBRANDSON delivered the of the Court.

Walter appeals County Rauker a Custer District Court order which granted summary judgment respondent Casualty to Mutual Service (Mutual Compаny Service) Insurance and ruled that Mutual Ser- vice’s policy insurance with Tim provide McGehee did not for appellant McGehee’s intentional assault of Rauker. The issue on appeal is summary whether judgment proper was where the insur- policy ance did not cover expected from Mc- standpoint Gehee’s and where McGehee intended to strike the vic- may tim but subjectively not have specific injuries. intended the affirm. appellant

McGehee and employed by were both an electrical con- Colstrip, tractor in superintendent Montana. McGehee was a had supervision some aрpellant. 11, 1982, of On November both men inwere a Colstrip. near McGehee states that he restaurant/bar exception took to a appellant remark that night. made that Mc- by deposition Geheе testified deliberately and admitted that he punched appellant face, twice in the that he appellant wanted to hit more, and that he waited appellant outside the establishment for appellant but up. did not show McGehee further stated that he did appellant only intend to hurt appellant up.” but Appel- to “shut

lant was seated a chair at the time of this attack and McGehee appellant stated that going up acted like get he was to start ‍‌​‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​​‌​​​​‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‍to just “I punches didn’t let him.” McGehee’s knocked floor appellant’s and broke places. left cheek bone in three

Appellant filed сomplaint against a criminal a and civil action Mc- Gehee. policy McGehee had an insurance with Mutual Service which stated, in part: relevant Company agrees pay

“This to on behalf of the Insured all sums which the legally obligated pay damages Insured shall become to bodily injury because of . . . caused an occurrence. This Com- pany seeking any against damages . . shall. defend suit Insured bodily injury on such . . . аccount of “EXCLUSIONS apply: does not

“This “. . bodily injury expected . . . . which is either or intended To standpoint of . . .” the insured declaratory brought judgment Service action Mutual County seeking rulings obliga- no Custer District that it had it appellant’s tion McGehee in civil and that had no to defend action appel- obligation any against pay judgment entered McGehee to summary judgment on lant’s moved for these action. Mutual Service summаry ruling that judgment two the court issues and exclusionary policy eliminated clause of the insurance appeals. McGehee’s actions. Rauker Summary only judgment proper standard of review is clear. 56(c), M.R.Civ.P.,

under that no Rule where the record discloses genuine moving party is issue of material exists and the entitled fact Highways v. Dept. State See, judgment e.g., matter of as a law. (Mont. Midland Materials 65,] P.2d [204 quoting Darrah v. Milbank Mutual Insurance Co. St.Rep. *3 (Mont. 1983), 374, St.Rep. 323,] P.2d 658 40 [202 overwhelming majority of courts have construed

The which provisions emphatically have held that identical or similar insurance A such as this. few insurance does not extend to situаtions (1985), Companies are; Shelter Ins. v. Smith 133 these cases v. Ins. Co. Mc CNA 635, 752, 365; Ill.App.3d Ill.Dec. N.E.2d 88 479 Ar, 689; State Farm Fire and (1984), 90, Ginnis 282 666 S.W.2d (Minn. 421; Cas. Transamerica 1984), Co. v. Williams 355 N.W.2d Quincy 351, 181; Ins. (1984), Group v. Meere Ariz. P.2d 143 694 907, (1983), Mass.App. Abernathy ‍‌​‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​​‌​​​​‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‍Mut. v. Ins. Co. 455 Fire 17 (La. 1983), 733; Roger Guilbeau v. 644; App. 443 So.2d N.E.2d v. (Minn. 1981), Jonеs Norval 202; Smith v. Senst 313 N.W.2d Ins. Republic v. Co. 549, 388; Pachucki (1979), 279 203 Neb. N.W.2d Ins. Co. v. 703, 898; Fire (1979), 2d 89 Wis. 278 N.W.2d Hartford (N.D. 649; 1977), Spreen (Fla.App. Hins v. Heer 343 So.2d 282, Behaeghe (1976), Butler 38; Colo.App. v. 548 259 37 N.W.2d (1975), Company v. Home Insurance Neilsen 934; 185 P.2d Casualty State & Oakes v. Farm Fire 445, 240; Ind.App. 332 N.E.2d v. McAn 102; Teritо (1975),137 365, Company N.J.Super. 349 A.2d drew agree these courts. (La.App.1971), 246 235. We with So.2d case, undisputed was entitled Under facts of this Mutual Service undisputed show the fol- judgment as a facts matter of law. in intentionally struck lowing. McGehee admits that he insur- appellant’s cheek bone. McGehee’s the face. The blows broke bodily respondent provide ance with does not standpoint. We hold expected from McGehee’s summаry in properly judgment Mu- that the Court District tual Service’s favor. question which

Appellant that there exists a factual contends in summary expected or precludes judgment; i.e. whether McGehee specific resulting injuries. We dis tended that the victim receive the Hins, Jones, Senst, Spreen Companies, Shelter Ins. agree. (cited above) another, person punching all result cases involved one bones, ex ing aggressor claiming broken he neither and the that pected in specific injuries. nor intended the All five cases involved surance clauses similar to the one here and in each case the court Jones, cоverage. In the Nebraska Su held there was no insurance Company, Allstate Insurance from Clark v. preme quoted Court (1975), 1195; Ariz.App. striking recognize in act of another the face is one which we

“[T]he particular as an act so certain to kind of harm that we can cause a say person harm, performed resulting who the act intended the contrary nothing and his statement to refute that rule of does Jones, Ins. Co. v. McGinnis see also CNA law.” N.W.2d at (Ark. 1984), (the Supreme ap- 666 S.W.2d at 691 Arkansas rule). provingly cites the same Where, here, intentionally agree. aggressively an assailant face, purposes

strikes another it is irrelevant for the of this insurance exclusion causes an different that assailant magnitude subjectively character or harm he intended. See from the (“It (Ariz.1984), Group Transamerica Ins. v. Meere 694 P.2d at 185 is, therefore, consequence may intended a differ- of no that he have in- injury. applies ent or lesser the insured ‍‌​‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​​‌​​​​‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‍The exclusion whenever Casualty Company Oakes v. State Farm Fire and injure.”); tends to apt (“. (N.J.App.1975), has 349 A.2d at 103 . . where the intentional injury, is differ- resultеd intended even where the inflicted denied.”), intended, coverage ent or more severe should be than was *4 Lyons Group (App. v. 1973), N.J.Super. Ins. citing 125 Hartford (Neb. 239, 485; 1979), and Jones v. Norval at 310 A.2d 279 N.W.2d (“. 392 . . if is more severe it makes no difference the actual intended.”). Furthermore, or of a different nature than the insurer; is, require impossible the that this Court will not the of the victim’s proving specifically that McGehee intended to break places by striking сheek in three him his fist. bone with agree require coverage in a situation such courts also that to bar, policies, the is a violation of one at under similar insurance policy public pro- that a policy. Supreme Court stated Arizona here, public policy vision the one “. . . articulates a which such as resulting person against indemnifying forbids contracts a loss Meere, 186. See also wrongdoing.” his own 694 P.2d at willful Spreеn, (“. ought permitted at 651 . . one not to be to 343 So.2d [torts].”) quoting indemnify against himself his intentional Willoughby (Fla.App. Leatherby Co. Insurance v. 315 So.2d “ Moreover, through if single ‘. . . insured is inten- a allowed by policy, consciously tional to control risks covered or reckless acts “ Meere, concept the of 694 P.2d at central insurance is violated.’ Practice, Law 186, Insurance Appleman, Section quoting 7A (1979). 4492.01 at 21

Affirmed. HARRI-

MR. JUSTICE and MR. JUSTICES CHIEF TURNAGE SON, concur. WEBER MORRISON HUNT,

MR. dissenting: JUSTICE aрpropriate I Summary judgment dissent and would reverse. in this case. Casualty Company (1979), v. Phalen Northwestern National

In a similar presented Court was with this exclusion. In Phalen a man was also involving type issue the same of Phalen involved in an altercation with another. William followed placed Thu his Vo and Vo’s Due Vo out of a bar. He arm around companion. disagreement female followed and he Some verbal by fell triрped struck ran Vo Vo who then and was another. pavement injuries. and civil ac- and suffered Criminal substantial brought seeking tions action declara- followed and Phalen’s insurer tory pay. It judgment obligated it or moved that was not defend District Court on summary judgment which was of exclusion. basis Phalen, applicability

In could this held that concerning the intention not be until issues determined the factual sep- expectation decided of Phalen as to ‍‌​‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​​‌​​​​‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‍Vo’s was summary judgment was granting arate tort action. held that Phalen, Phalen, improper. P.2d at 728. In there was therefore *5 significant question Phalen, hitting factual whether after and chas- Vo, ing expected by tripped that Vo would be another See, pavement and be Phalen crashed to the on his face. 597 P.2d at 726 and 727.

In present dispute. the case is Both there also a relevant factual parties аgree that McGehee struck Rauker the face and knocked him parties agree to the floor. Both that the blow or blows caused However, injury. expected it is not in- clear that McGehee or injuries tended the that resulted. present determinative matter in the case is factual nature. — legal

The true already issue has in Phalen there is a been decided applicable factual questioned policy distinction in the exclusion be- tween expectation intent to do an act and the or intention that that specific act shall standpoint cause from the of the insured. This Court held in Phalen stating that an insurance that it occurrences, will cover excluding expected for those where intended, or includes in long intentional acts as as the re- sulting injury is expected neither nor intended from the insured’s Phalen, standрoint. Phalen, In at 724. we said that an in- sured would not be covered in those cases where deliberate acts or assaults in injuries expected resulted which would be or intended as act, a result of the unexpеcted but where deliberate acts lead to or Phalen, unintended results will 597 P.2d at 724. exits. District Court the instant case concluded that McGehee did specifically resulting injuries yet, time, intend the at the same concluded thаt the harm expected inflicted was intended and standpoint coverage. McGehee. The District Court excluded Phalen,

As in clearly questionable where it was whether Phalen expected another, or tripped by intended that Vo be present suffered Rauker question also a factual of intent and ex- pectation. question precludes A summary judgment. of fact

I would reverse and remand to the District trial. SHEEHY, MR. JUSTICE ‍‌​‌​​‌‌​​‌​‌​‌​​‌‌‌​‌​​‌​​​​‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‍joining in dissent: I concur in foregoing dissent of Mr. Justice Hunt.