719 P.2d 954 (Wash.App. Div. 2 1986), 7574-1, Western Nat. Assur. Co. v. Hecker

Docket Nº:7574-1-II.
Citation:719 P.2d 954, 43 Wn.App. 816
Opinion Judge:REED, Acting
Party Name:WESTERN NATIONAL ASSURANCE CO., Respondent, v. Lynn D. HECKER, a single woman, and Wayne T. Nuzum, Jr., a single man, Appellants.
Attorney:Robert W. Huffhines, Kelso, for Nuzum. Craig W. Weston, Walstead, Mertsching, Husemoen, Donaldson & Barlow, Longview, for Hecker. Dennis M. Hunter, William L. Dowell, Walker, Dowell, Hunter & Twining, Longview, for respondent.
Judge Panel:PETRICH and ALEXANDER, JJ., concur.
Case Date:May 27, 1986
Court:Court of Appeals of Washington
 
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Page 954

719 P.2d 954 (Wash.App. Div. 2 1986)

43 Wn.App. 816

WESTERN NATIONAL ASSURANCE CO., Respondent,

v.

Lynn D. HECKER, a single woman, and Wayne T. Nuzum, Jr., a

single man, Appellants.

No. 7574-1-II.

Court of Appeals of Washington, Division 2.

May 27, 1986

Page 955

Robert W. Huffhines, Kelso, for Nuzum.

Page 956

[43 Wn.App. 817] Craig W. Weston, Walstead, Mertsching, Husemoen, Donaldson & Barlow, Longview, for Hecker.

Dennis M. Hunter, William L. Dowell, Walker, Dowell, Hunter & Twining, Longview, for respondent.

REED, Acting Chief Judge.

Lynn Hecker and Wayne Nuzum appeal a declaratory judgment denying liability coverage under a homeowner's policy issued to Nuzum by Western National Assurance Co. (Western) for Hecker's claims against Nuzum. The trial court determined that Western had no duty to defend Nuzum and no duty to pay any recovery by Hecker in her action against Nuzum. We affirm.

In March 1983, Hecker commenced an action against Nuzum for personal injuries, emotional distress, and embarrassment resulting from "an intentional and/or negligent assault and battery" committed upon her by Nuzum. Her complaint did not specify the nature of the assault or [43 Wn.App. 818] of her injuries. In deposition testimony Hecker and Nuzum gave conflicting versions of the incident giving rise to Hecker's complaint.

In her deposition, Hecker stated that in the early morning of October 30, 1982, Nuzum went to her house for the purpose of a sexual encounter. Nuzum and Hecker's relationship had been predominantly sexual in nature. After initial reluctance on Hecker's part on this morning, they engaged in consensual intercourse. However, after Hecker told Nuzum she wanted to stop, Nuzum committed forcible anal intercourse. Hecker suffered physical injuries requiring medical treatment and surgery and emotional injuries requiring psychiatric treatment. Hecker explained that she did not file a rape charge because she was ashamed, embarrassed and afraid.

Nuzum contends that, on the morning in question, he had been drinking alcohol and smoking marijuana and that he did not intend to enter Hecker anally nor did he know he had done so.

On the date of the incident in question, Western insured Nuzum on a homeowner's insurance policy. That policy reads, in pertinent part, as follows:

LIABILITY COVERAGE SECTION PRINCIPAL LIABILITY AND MEDICAL PAYMENTS COVERAGES

Coverage L--Personal Liability

We pay, up to our limit of liability all sums for which any insured is legally liable because of bodily injury or property damage caused by an occurrence to which this coverage applies. We will defend any suit seeking damages, provided the suit resulted from bodily injury or property damage not excluded under this coverage....

Coverage M--Medical Payments to Others

We pay the necessary medical expenses incurred or medically determined within three years from the date of an accident causing bodily injury to which this coverage applies. This coverage applies only:

*

2. To a person away from the insured premises if the bodily injury:

* [43 Wn.App. 819] b. is caused by the activities of any insured;

*

General Policy Provisions

Definitions

10. Occurrence means an accident, including continuous or repeated exposure to substantially similar conditions.

*

EXCLUSIONS

1. Exclusions that Apply to Both Personal Liability and Medical Payments to Others. This policy does not apply to liability:

*

Page 957

h. caused intentionally by or at the direction of any insured ...

(Italics in original.)

In October 1983, Nuzum gave notice of Hecker's claim to Western. Western agreed to handle the claim and provide a defense on Nuzum's behalf, with a reservation of its right to have its duty under the policy determined at a later date. On November 4, 1983, Western exercised that right by filing a complaint for declaratory judgment against both Hecker and Nuzum, alleging that Nuzum's actions had been intentional and are therefore excluded from liability coverage under the terms of the policy. Western asked the court to determine that it had no duty to defend Nuzum against Hecker's claim and no duty to pay any sums recovered by Hecker in her action against Nuzum.

On November 16, 1983, Hecker took a voluntary nonsuit as to her claim for intentional assault and battery, thus leaving "negligent assault and battery" as the sole cause of action against Nuzum.

At the declaratory judgment hearing on December 5, 1983, the parties submitted the case upon an agreed set of documents, including the pleadings and depositions, and agreed that no live testimony would be heard. After hearing arguments of counsel, the trial court granted the relief prayed for in Western's complaint. In its written findings, the court found that Nuzum had intended specifically to enter Hecker anally and that he had had the mental capacity [43 Wn.App. 820] to form the requisite intent. The court concluded that Nuzum intentionally assaulted Hecker, that Hecker's injuries were neither unexpected nor unforeseen, and that the unambiguous exclusion in the insurance policy precludes liability coverage for Hecker's claim. The court therefore further concluded that Western had neither a duty to defend Nuzum nor a duty to pay any recovery by Hecker.

Nuzum argues first that the use of a declaratory judgment proceeding...

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