Allstate Ins. Co. v. Steinemer

• Decision Date: 27 January 1984
• Docket Number: No. 83-3055,83-3055
• Citation: 723 F.2d 873
• Parties: ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Kenneth D. STEINEMER, Defendant, James A. Pattison, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 873

723 F.2d 873

ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. Kenneth D. STEINEMER, Defendant James A. Pattison, Defendant-Appellant.

No. 83-3055.

United States Court of Appeals Eleventh Circuit.

Jan. 27, 1984.

Paul B. Irvin, Winter Park, Fla., for defendant-appellant.

Richard G. Wack, Lora A. Dunlap, Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

The sole issue in this appeal is whether the district court erred in granting summary judgment to appellee, Allstate Insurance Co. (Allstate), on the ground that the conduct of Allstate's insured, Kenneth Steinemer, which led to appellant's, James Pattison's, injury, was intentional and thus excluded from coverage under the Allstate homeowner's policy. We hold that the district court erred, and therefore we reverse.

I. BACKGROUND

This appeal arises from a declaratory judgment action brought by Allstate in the United States District Court for the Middle District of Florida, Orlando division, to resolve uncertainty over Allstate's duty to defend and indemnify Steinemer for bodily injuries sustained by Pattison. All parties agreed on the relevant facts and moved for summary judgment on the insurance coverage question. The district court held a hearing, and after reviewing the case entered judgment for Allstate on December 20, 1982.

The facts are undisputed. On October 5, 1981, Steinemer fired a BB gun at Pattison, accidentally hitting Pattison in the eye, thereby causing him severe injury. At the time of the accident Steinemer, age 19, and Pattison, age 21, were good friends who had known each other for several years. During the week before the accident the two men, both of whom were unemployed, occupied much of their time playing with a BB gun owned by Pattison. The BB gun was a pump type gun, which used air to propel BB's. Each pump of the gun would increase the amount of air, and therefore the amount of force, used to propel a BB.

During the days before the accident, Steinemer and Pattison had been "playing around" with the gun by "shooting air," that is, using the gun without loading it with BB's. On the day of the accident Steinemer purchased the gun from Pattison for five dollars. As the two headed to Steinemer's house to complete their transaction, they stopped at a convenience store to buy some BB's. They then went behind the store, where Steinemer loaded the gun and fired it several times at leaves and other objects. This was the first time that Steinemer had had an opportunity to fire the gun while it was loaded.

After a few minutes Steinemer pumped the BB gun three times, held it at his waist in "gunslinger" style, and shot Pattison in the chest. In his deposition, Steinemer testified that Pattison then stated, "Ow, that hurt. You are only supposed to pump it up once." Pattison testified in his deposition that he told Steinemer that the first BB did not hurt and that he instructed Steinemer that "if you ever shoot anyone, just pump it up one time. It will just hit short and not very far and not hurt, too." The first shot did raise a small welt on Pattison's chest.

Approximately a minute later Steinemer pumped the gun only one time, and again shooting gunslinger style and aiming at Pattison's stomach, fired another BB at Pattison. This time the boys' "stupid game" ended in tragedy, as the BB struck Pattison in the eye, causing a severe injury. Steinemer stated that he had intended for Pattison to "feel [the BB], not to sting," and that he did not mean to "hurt" Pattison.

II. DISCUSSION

The issue before the district court was whether, as a matter of law, Steinemer's conduct was such as to fall within an exclusion in the Allstate homeowner's policy maintained by Steinemer's parents which stated, "We do not cover bodily injury or property damage intentionally caused by an insured person." The district court found that Steinemer's conduct fell within the exclusion, and therefore granted Allstate's motion for summary judgment. On appeal from the granting of a motion for summary judgment, we employ the same standard of review as used by the district court in the first instance. Our review encompasses two issues--whether there was a genuine issue of material fact and the propriety of the judgment as a matter of law.

Appellant, James Pattison, argues that although the facts were not in dispute, a jury issue existed over the inference those facts raised as to Steinemer's intent when he fired the BB gun at Pattison the second time. We agree. As discussed below, we hold that the undisputed facts are sufficient to raise an inference that Steinemer lacked the intent to harm Pattison. ¹ Therefore, we remand this action to the district court for trial.

To understand why the district court erred in concluding that no genuine issue of fact existed, we look at the requirements of Florida law. Although the Florida Supreme Court has yet to rule, we believe the standard enunciated by the lower courts of Florida adheres to the majority rule with respect to "intentional injury" exclusions. Under the majority rule the exclusion applies if the insured intended to do a particular act, and intended to do some harm, even if the harm actually done was radically different from that intended. See Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d Dist.Ct.App.1977) (no insurance coverage for man who intentionally struck another man in face with fist, causing severe injury, but intending only to do minor harm). On the other hand, an "intentional injury" exclusion will not apply if the insured intentionally does an act, but has no intent to commit harm, even if the act involves the foreseeable consequences of great harm or even amounts to gross or culpable negligence. Id. at 651; see, e.g., Phoenix Insurance Co. v. Helton, 298 So.2d 177 (Fla. 1st Dist.Ct.App.1974) (insurance exclusion does not apply where man injured member of crowd as he drove car slowly into crowd thinking crowd would disperse ²).

Allstate argues that this case is not one of gross negligence, in which Steinemer meant no harm to his companion but easily could have foreseen the injury had he thought about it. Rather, Allstate argues that Steinemer meant for Pattison to "feel" the second shot, and perhaps for it to "sting" him, and that therefore this case falls into the realm of intentional harm. ³ Allstate's argument is untenable.

First, we note that an intention for one to "feel" something is a far cry from an intention to harm or hurt someone, even slightly. One intends for another to "feel" a handshake or a hug or a tap on the shoulder, without intending any harm. Similarly, a baseball pitcher may intend for his catcher to "feel" a good hard pitch, and may even expect it to sting, but he does not intend harm. If harm should result from an overly effusive handshake or a particularly hard pitch, we are not prepared to hold that the harm falls within an insurance exclusion for intentional conduct.

In this case there is no direct evidence that Steinemer intended to harm his friend Pattison, even slightly. Steinemer may...