244 N.W.2d 121 (Minn. 1976), 45813, Continental Western Ins. Co. v. Toal

Docket Nº:45813, 45833.
Citation:244 N.W.2d 121, 309 Minn. 169
Opinion Judge:The opinion of the court was delivered by: Maclaughlin
Party Name:CONTINENTAL WESTERN INSURANCE COMPANY, Respondent, v. Darryl TOAL, a.k.a. Tony Johnson, et al., Appellants, Beatrice E. Erickson, Individually and as Trustee for the Heirs and Next of Kin of Daniel Paul Erickson, Deceased, Appellant, and TRAVELERS INSURANCE COMPANY, Respondent, v. James Edwin ROSS, Appellant, Beatrice E. Erickson, Individually and
Attorney:MacIntosh, Commers & Rex, Lawrence Commers, Bruce P. Barten, Cragg & Bailly, Robert S. Cragg, and Donald H. Nichols, for appellants.
Case Date:June 18, 1976
Court:Supreme Court of Minnesota
 
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Page 121

244 N.W.2d 121 (Minn. 1976)

309 Minn. 169

CONTINENTAL WESTERN INSURANCE COMPANY, Respondent,

v.

Darryl TOAL, a.k.a. Tony Johnson, et al., Appellants,

Beatrice E. Erickson, Individually and as Trustee for the

Heirs and Next of Kin of Daniel Paul Erickson,

Deceased, Appellant,

and

TRAVELERS INSURANCE COMPANY, Respondent,

v.

James Edwin ROSS, Appellant,

Beatrice E. Erickson, Individually and as Trustee for the

Heirs and Next of Kin of Daniel Paul Erickson,

Deceased, Appellant.

Nos. 45813, 45833.

Supreme Court of Minnesota.

June 18, 1976

Page 122

Syllabus by the Court

[309 Minn. 169] 1. A jury instruction that 'it is the law that one is charged [309 Minn. 170] with intending the natural and probable consequences of his willful acts and with expecting the foreseeable results of such acts' is improper when interpreting a liability insurance policy which excludes from coverage bodily injury 'expected or intended from the standpoint of the insured.'

2. Where facts show that the insureds intentionally prepared themselves to inflict serious injury in order to facilitate an armed robbery, and a killing occurs in the course of that robbery, an intent to injure may be inferred as a matter of law.

MacIntosh, Commers & Rex Lawrence Commers and Bruce P. Barten, Minneapolis, for Toal.

Donald H. Nichols, Minneapolis, for Ross.

Cragg & Bailly and Robert S. Cragg, Minneapolis, for Erickson.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II, and Thomas L. Adams, Minneapolis, for Cont. Western.

Richards, Montgomery, Cobb & Bassford and Lynn G. Truesdell III, Minneapolis, for Travelers Ins. Co.

Heard before SHERAN, C.J., OTIS, KELLY, MacLAUGHLIN, and BREUNIG, JJ., and considered and decided by the court en banc.

MacLAUGHLIN, Justice.

These are declaratory judgment actions by respondents, Continental Western Insurance Company and Travelers Insurance Company, seeking a determination of no insurance coverage for a killing which occurred during the course of an armed robbery by their insureds. A jury returned a special verdict finding that the killing was 'expected or intended from the standpoint of (the insureds)' who were willing participants in the armed robbery. The trial court ordered declaratory judgment in favor of the insurance companies. We affirm.

On August 6, 1972, a group of individuals attempted an armed robbery of the Stardust Lanes bowling alley in Minneapolis. The participants included James Edwin Ross, Darryl Toal (also known as Tony

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Johnson), Noah Lindsey, Wade Russell, Isaac Russell, Tommy Russell, and Renee Huggar. Ross was the 'chief planner' of the armed robbery. Ross talked Toal into joining in the robbery because Toal was 'good as a pistol man' and had previously participated in other armed robberies. Ross diagramed the layout of the bowling alley for Toal and explained to Toal that his assignment was to go in and get the money and come out. When Toal expressed concern about his safety, Ross said he would provide Toal with a gun. Subsequently, Ross gave him a .38-caliber handgun, loaded it, and told Toal 'all you got to do is pull the trigger.' Toal was taken to a firing range to 'check * * * his accuracy' with a gun. Ross also supplied Isaac Russell, another participant in the robbery, with a loaded .38-caliber pistol.

It is clear from the testimony that while Ross and Toal did not specifically intend to shoot anyone during the robbery, they did intend to threaten people with the guns and to use them if it became necessary to accomplish the robbery. Ross knew that at least four of the participants were carrying guns. He claimed that it never entered his mind that anyone would be shot, although he admitted that it was no 'great surprise' or 'shock' when the robbers discovered that someone had been shot. Toal [309 Minn. 172] conceded that before the robbery he was afraid somebody might get hurt or killed.

During the robbery, Toal entered the bowling alley, went to the counter, and pulled his gun. He pointed his loaded .38-caliber pistol at the employee behind the counter, Mr. Daniel Erickson, saying, 'This is a stickup.' When Erickson responded, 'This must be a joke of some kind,' Toal struck him in the head with the butt of the gun, causing the gun to discharge. Erickson stumbled, but had not been hit by the bullet. As Toal reached the cash register, he heard two more shots. He turned around to see Wade Russell leaning over the counter and Erickson lying on the floor. Wade Russell had apparently shot...

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