Allstate Ins. Co. v. Stamp, 89-349

• Decision Date: 22 March 1991
• Docket Number: No. 89-349,89-349
• Citation: 134 N.H. 59,588 A.2d 363
• Parties: ALLSTATE INSURANCE CO. v. Walter STAMP, Carol Stamp and Walter Robert Stamp, II.
• Court: New Hampshire Supreme Court

Page 363

588 A.2d 363

134 N.H. 59

ALLSTATE INSURANCE CO. v. Walter STAMP, Carol Stamp and Walter Robert Stamp, II.

No. 89-349.

Supreme Court of New Hampshire.

March 22, 1991.

Wiggin and Nourie, Manchester (Andrew L. Isaac, on the brief and orally), for plaintiff.

Perkins, Phillips & Waters P.A., Concord (Timothy P. Gurshin, on the brief and orally), for defendants.

PER CURIAM.

This declaratory judgment proceeding arose from an underlying tort action in which Hopkinton police officer Ira Migdal and his wife alleged that the minor defendant Bobby Stamp shot Officer Migdal in the leg, causing him serious bodily injury and his wife loss of consortium, and that the defendants Walter and Carol Stamp, Bobby's parents, also caused these injuries by negligently supervising Bobby. The plaintiff in this proceeding, Allstate Insurance Company, obtained a declaratory judgment from the Superior Court (Mohl, J.) that, with respect to the Migdals' allegations in the underlying tort action, Allstate was not obligated to provide the Stamps coverage under their Allstate homeowner's policy, from which the Stamps appealed. We affirm.

On the morning of May 17, 1986, Bobby Stamp, using his father's firearms and ammunition, fired hundreds of bullets from the Stamps' residence into the street. During the course of this incident, Officer Migdal, responding to a report of gunshots, arrived at the defendant's home and suffered a bullet wound to his left leg.

The Migdals subsequently sued not only Bobby Stamp but Walter and Carol Stamp, as well, for their negligent supervision of Bobby. Under their claim of negligent supervision contained in count I of the writ, the Migdals alleged that Bobby Stamp "fire[d] ... at [Officer] Migdal," and in count III they alleged that

"[Bobby Stamp] had a duty to conduct himself in a manner so as to not create an unreasonable risk of harm to others; that wholly unmindful of such duty, [Bobby] aimed a loaded firearm at the plaintiff Ira J. Migdal and caused it to discharge and the bullet therefrom struck the plaintiff in the left leg seriously injuring him."

The Stamps filed a claim under their Allstate policy, Section II, entitled "Family Liability and Guest Medical Protection," which provided coverage in the form of legal defense and indemnification as to certain suits brought against the insureds, but which excepted from such coverage suits involving "bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which in fact are intended by an insured person." The "Definitions" section of the policy further explained that, for coverage purposes, the "act ... of ... an insured person will be binding upon another ... insured person." There is no dispute that Walter, Carol and Bobby Stamp were all "insured persons" under this policy.

Citing the Section II coverage exception, Allstate denied the Stamps' claim and brought this action against them. The superior court, ruling on cross motions for summary judgment, found, inter alia, that the Migdals' writ had alleged an "intentional act" on the part of Bobby Stamp, "an insured" under the Stamps' Allstate policy, and that therefore Allstate was under no obligation to defend or indemnify the Stamps in the underlying suit.

The Stamps appealed the superior court's ruling on the following grounds: (1) the provision excepting coverage for the intentional or criminal acts of "an insured" person referred solely to the acts of the insured individual seeking coverage, and not, as the superior court found, to the acts of any insured, with the result that coverage for Walter and Carol Stamp under the negligent supervision count cannot be defeated by the character of Bobby's acts; (2) Bobby Stamp's acts as alleged in the Migdals' writ were not "intentional" within the meaning of the coverage exception; (3) since the court in the underlying tort action found that the Migdal writ sounded in "negligence," the superior court was precluded in this action from finding that the writ alleged "intentional acts" on the part of Bobby Stamp; (4) the superior court erred in failing to strike as inadmissible hearsay, N.H.R.Ev. 802, certain police reports submitted in support of Allstate's motion for summary judgment; and (5) a genuine issue of material fact existed as to Walter Stamp's reasonable expectations under the policy as a result of alleged representations made to him by his Allstate agent prior to his purchasing the policy.

In addressing the defendants' first contention, we take note of Pawtucket Mutual Insurance Co. v. Lebrecht, in which we examined an insurance policy similar to the one before us today and held that its coverage exception for the intentional or criminal acts of "the insured" did not refer to the insured seeking coverage, when the acts in question were committed not by him but by another individual insured under the same policy. Pawtucket Mut. Ins. Co. v. Lebrecht, 104 N.H. 465, 468, 190 A.2d 420, 422-23 (1963) (approved of in COMMERCIAL Union Assurance Cos. v. Town of Derry, 118 N.H. 469, 472-73, 387 A.2d 1171, 1172-73 (1978)). In construing the policy at issue in Pawtucket, we reasoned that

"when the [insurance] company used the definite expression 'the Insured' in certain provisions of the policy and the more indefinite or general expression 'any Insured' or 'an...