Grange Ins. Co. v. Brosseau, 55813-2

Citation113 Wn.2d 91,776 P.2d 123
Decision Date13 July 1989
Docket NumberNo. 55813-2,55813-2
PartiesGRANGE INSURANCE COMPANY, Respondent, v. Martin BROSSEAU, individually and d/b/a Longhorn Pak; Cynthia R. Anderson, successor in interest to the Estate of Lennis W. Anderson; and Steven Thayer, Guardian ad Litem for Nichole Anderson, a minor; Ginger Anderson, a minor; and Lenny Anderson, a minor, Appellants.
CourtUnited States State Supreme Court of Washington
Imperati, Barnett, Sherwood & Coon, P.C., Jeff C. Mapes, Tom Barnett, Portland, Or., for appellants

Bullivant, Houser, Bailey, Pendergrass & Hoffman, Douglas F. Foley, Vancouver, Bullivant, Houser, Bailey, Pendergrass & Hoffman, R. Daniel Lindahl, Portland, Or., for respondent.

BRACHTENBACH, Justice.

At issue is whether Grange Insurance Association has a duty to defend its insured in a wrongful death action where the insured allegedly killed the decedent in that action in self-defense. Under the particular circumstances of this appeal, this question depends upon the scope of coverage provided by the two insurance policies involved.

Martin Brosseau, doing business under the name Longhorn Pak, shot and killed Lennis W. Anderson with a shotgun. The shooting occurred at Brosseau's place of business The first of these policies is a general automobile liability policy with a manufacturer's liability rider. This policy provides coverage for bodily injury "caused by an occurrence ... and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury ... even if any of the allegations of the suit are groundless, false or fraudulent ...". Clerk's Papers, at 47. "Occurrence" is defined as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured ". Clerk's Papers, at 43.

                a meat cutting plant.   According to Brosseau, he was closing up the plant for the evening, accompanied by his niece, Anderson's wife, when Anderson attacked him with a knife.   Brosseau maintains that he acted in self-defense.   Anderson's wife and a guardian ad litem for Anderson's minor children sued Brosseau and Longhorn Pak for wrongful death.   Brosseau tendered defense of the suit to Grange Insurance Association (Grange), with whom he had two insurance policies
                

The second policy is a homeowner's policy. This policy provides coverage for bodily injury caused by an "occurrence"; here, "occurrence" is defined as "an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage." Clerk's Papers, at 61. This policy excludes coverage for bodily injury "either expected or intended from the standpoint of the insured." The homeowner's policy also sets forth Grange's right and duty to defend.

Grange brought a declaratory judgment action seeking a determination that it had no duty to defend Brosseau in the wrongful death action. Grange moved for summary judgment, arguing that it had no duty to defend because Brosseau's act of killing Anderson was intentional and therefore neither policy provided coverage. Grange also argued that even if Brosseau acted in self-defense, his act was still intentional and not accidental. The trial court Generally, insurers who have reserved the right and duty to defend must defend any suit where facts are alleged which, if proven, would render the insurer liable. Greer v. Northwestern Nat'l Ins. Co., 109 Wash.2d 191, 197, 743 P.2d 1244 (1987); State Farm Gen. Ins. Co. v. Emerson, 102 Wash.2d 477, 486, 687 P.2d 1139 (1984). Whether there is a duty to defend is normally determined from the complaint itself. Holland Am. Ins. Co. v. National Indem. Co., 75 Wash.2d 909, 911, 454 P.2d 383 (1969); Briscoe v. Travelers Indem. Co., 18 Wash.App. 662, 665, 571 P.2d 226 (1977). The two policies at issue here provide that Grange has the duty to defend even if the allegations of the suit are groundless, false, or fraudulent.

                granted Grange's motion for summary judgment, holding that there was no coverage and that Grange had no duty to defend.   Brosseau appealed.   The Court of Appeals certified the case to this court, which accepted certification.   We affirm.
                

The complaint in the wrongful death action alleged negligence on Brosseau's and Longhorn Pak's part. There is an apparent question as to whether the complaint sufficiently set forth facts giving rise to a duty to defend, and, if not, whether Grange otherwise had a duty to investigate the facts to determine if there was potential liability before it could decline to defend. See E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wash.2d 901, 908, 726 P.2d 439 (1986); Insurance Co. of North Am. v. Insurance Co., 17 Wash.App. 331, 334, 562 P.2d 1004 (1977). However, Brosseau has not raised as an issue on this appeal the question whether the complaint alone sufficiently alleges facts under which Grange would be liable. Instead, the parties focus solely on whether injury resulting from an insured's act of self-defense is covered and not excluded by the two policies involved, reasoning that if such coverage exists, Grange has a duty to defend Brosseau in the wrongful death action. We note that at oral argument before this In light of Brosseau's failure to raise the issue, we decline to discuss the sufficiency of the complaint, and instead reach the coverage question.

court counsel for Grange explained that it is defending Brosseau in the wrongful death action under a reservation of rights.

This matter is here on summary judgment. The trial court necessarily held as a matter of law that injury resulting from the insured's act of self-defense is not covered by either policy. We assume for purposes of this review that Brosseau acted in self-defense, an assumption supported by Brosseau's deposition testimony. Counsel for Grange agreed at oral argument that this assumption should be made, but correctly observed that the factual question would ultimately be for the trier of fact.

The issue we face is one of first impression in Washington. We examine several representative cases from other jurisdictions, but find relevant case law from our own state compelling.

Interpretation of an insurance policy is a question of law. Sears v. Grange Ins. Ass'n, 111 Wash.2d 636, 638, 762 P.2d 1141 (1988). The policy is construed as a whole, and "should be given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance." Sears, at 638, 762 P.2d 1141.

Here, both policies provide coverage for an "occurrence," where bodily injury results from "an accident." For insurance coverage, this court has said that "an accident" is an unusual, unexpected, and unforeseen happening. Tieton v. General Ins. Co. of Am., 61 Wash.2d 716, 721, 722, 380 P.2d 127 (1963); accord, Western Nat'l Assur. Co. v. Hecker, 43 Wash.App. 816, 822, 719 P.2d 954 (1986); Harrison Plumbing & Heating, Inc. v. New Hampshire Ins. Group, 37 Wash.App. 621, 624, 681 P.2d 875 (1984). Moreover, an accident is never present when a deliberate act is performed unless some additional unexpected, independent and unforeseen happening occurs which produces or brings about the result of injury or death. The means as well as the result must be unforeseen, involuntary, unexpected and unusual.

(Footnotes omitted.) Unigard Mut. Ins. Co. v. Spokane Sch. Dist. 81, 20 Wash.App. 261, 263-64, 579 P.2d 1015 (1978); accord, Detweiler v. J.C. Penney Cas. Ins. Co., 110 Wash.2d 99, 104, 751 P.2d 282 (1988); Johnson v. Business Men's Assur. Co. of Am., 38 Wash.2d 245, 249, 228 P.2d 760 (1951); Pierce v. Pacific Mut. Life Ins. Co., 7 Wash.2d 151, 162, 109 P.2d 322 (1941); Grange Ins. Ass'n v. Authier, 45 Wash.App. 383, 385, 725 P.2d 642 (1986), review denied, 107 Wash.2d 1024 (1987); Briscoe v. Travelers Indem. Co., supra, 18 Wash.App. at 666, 571 P.2d 226.

In his deposition testimony Brosseau explained that Anderson was coming at him with a knife, that Anderson was "going to gut" him, and that there was no doubt in his mind. He stated: "I shoved [Anderson's wife] to one side and I grabbed the slide on that pump gun, I pulled the trigger and I pumped it and I shot him right on that second button." Clerk's Papers 10, 27. Brosseau's statement establishes that he pumped the shotgun, aimed it at Anderson, and pulled the trigger. Brosseau's own words confirm that he deliberately fired the shotgun at Anderson. The fact that he claims to have done so in self-defense in no way negates the deliberate nature of his act.

Because Brosseau's act was deliberate, the next inquiry, in determining whether Anderson's death was the result of an "accident," is whether there was any additional unexpected, independent and unforeseen happening which caused the death. In Detweiler, this court in an exhaustive opinion surveyed our state courts' published opinions concerning this inquiry. Under the circumstances here we need not engage in the same extensive analysis; nothing in the Moreover, these policies do not cover bodily injury either expected or intended from the standpoint of the insured. We recognize that exclusionary clauses are strictly construed against the insurer, especially if they are of uncertain intent. Phil Schroeder, Inc. v. Royal Globe Ins. Co., 99 Wash.2d 65, 69, 659 P.2d 509 (1983), modified on reconsideration, 101 Wash.2d 830, 683 P.2d 186 (1984). This principle does not dictate a result in Brosseau's favor, however. Serious bodily injury, including death, was, from Brosseau's standpoint, obviously an expected result of his intentional act of shooting Anderson. Because the death was expected from Brosseau's standpoint, neither policy provides coverage. Grange has no duty to defend Brosseau in the wrongful death action.

record even remotely suggests that any additional unexpected, independent and unforeseen happening...

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