American Family Mut. Ins. Co. v. White

• Decision Date: 20 March 2003
• Docket Number: No. 1 CA-CV 01-0517.,1 CA-CV 01-0517.
• Citation: 204 Ariz. 500,65 P.3d 449
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellee, v. Bryan J. WHITE, Defendant-Appellant.
• Court: Arizona Court of Appeals

65 P.3d 449

204 Ariz. 500

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff-Appellee, v. Bryan J. WHITE, Defendant-Appellant.

No. -0517.

Court of Appeals of Arizona, Division 1, Department B.

March 20, 2003.

Mariano & Allen, P.L.C. by Lynn M. Allen, Phoenix, for Plaintiff-Appellee.

Murphy, Lutey, Schmitt & Beck, P.L.L.C. by Robert E. Schmitt and Dan A. Wilson, Prescott, for Defendant-Appellant.

OPINION

NOYES, Judge.

¶ 1 To stop Appellant from assaulting a smaller third person, Travis Wilde hit Appellant in the head with a metal pipe. Travis later pleaded guilty to aggravated assault, and Appellant later sued Travis and his parents ("the Wildes"). The Wildes' insurance carrier, Appellee ("American Family"), then filed this declaratory judgment action and moved for summary judgment, arguing that coverage for Appellant's claims was barred by the "violation of law" exclusion in the Wildes' homeowner's policy. The trial court granted summary judgment to American Family. We affirm.

I.

¶ 2 The grand jury indicted seventeen-year-old Travis Wilde on two counts of aggravated assault. The State prosecuted him as an adult. Count I alleged that Travis "intentionally, knowingly or recklessly caused physical injury to Bryan White, using a deadly weapon or dangerous instrument, to-wit: metal pipe, in violation of A.R.S. §§ 13-1204(A)(2), 13-1203(A)(1), 13-701, 13-702, 13-801 and 13-604." Prison is mandatory on conviction of this class three dangerous felony; the presumptive term is 7.5 years. See Ariz.Rev.Stat. ("A.R.S.") §§ 13-604(I) (2001), -1204(B) (Supp.2002); see also State v. Burge, 167 Ariz. 25, 28, 804 P.2d 754, 757 (1990)

. Count II alleged that Travis "intentionally, knowingly or recklessly caused physical injury to Bryan White, using any means of force which caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part, in violation of A.R.S. §§ 13-1204(A)(11), (B), 13-1203, 13-701, 13-702 and 13-801." Because the State apparently did not allege that Count II was a "dangerous offense" pursuant to A.R.S. § 13-604, it appears that prison was not mandatory on conviction of this class four felony.

¶ 3 To avoid the mandatory prison term that would result if he went to trial and the jury rejected his claims of self defense and defense of others and found him guilty as charged on Count I, Travis accepted the State's offer to plead guilty to Count II as a "reckless" aggravated assault, a nondangerous offense for which probation was both possible and recommended by the State. During the change of plea proceeding, when the trial court asked what he had done to commit an aggravated assault, Travis said, "I hit Mr. White with a pipe to the head." The court then asked, "Did you understand, in striking Mr. White, that there was a significant risk that he could suffer a number of damages by you striking him with that pipe?" Travis responded, "Yes, sir." The trial court accepted the guilty plea and dismissed Count I. At sentencing, Travis received probation and a jail term.

¶ 4 Appellant's personal injury action alleged that his injuries were caused by the negligence of Travis, that this negligence should be imputed to the Wildes under A.R.S. § 12-661 (Supp.2002), and that the Wildes negligently supervised Travis.

¶ 5 American Family's declaratory judgment action was based on the following exclusion in the Wildes' homeowner's policy: "Violation of Law. We will not cover bodily injury or property damage arising out of... violation of any criminal law for which any insured is convicted...." (Boldface omitted infra.) In opposition, Appellant argued that the exclusion applied only to intentional acts, and that Travis acted recklessly rather than intentionally. Appellant also argued that the exclusion was contrary to public policy, unconscionable, and contrary to an insured's reasonable expectations. On the negligent supervision claim, Appellant argued that the exclusion was inapplicable because the Wildes were not convicted of violating any criminal law. The trial court rejected all of these arguments. So do we.

¶ 6 Our jurisdiction of this appeal is pursuant to A.R.S. § 12-2101(B) and (F)(1) (1994). Our review is de novo. See Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 46, ¶ 11, 13 P.3d 785, 788 (App.2000) ("Interpretation of an insurance contract is a question of law which we review de novo.").

II.

¶ 7 We first address Appellant's argument that, even if the "violation of law" exclusion is enforceable, the phrase "any criminal law" is ambiguous and thus must be construed to apply only to intentional criminal acts.

¶ 8 Insurance contracts are interpreted "according to their plain and ordinary meaning." Id. When policy language is unambiguous, the court does not create ambiguity to find coverage. Sec. Ins. Co. v. Andersen, 158 Ariz. 426, 428, 763 P.2d 246, 248 (1988). The exclusion in question applies to "violation of any criminal law for which any insured is convicted." In our opinion, the phrase "any criminal law" plainly includes all criminal laws, not just those in which "intent" is an essential element. See Allstate Ins. Co. v. Peasley, 131 Wash.2d 420, 932 P.2d 1244, 1247-49 (1997)

(stating that interpreting "criminal acts" to include unintentional crimes "is supported by nearly every jurisdiction in our country which has examined that phrase").¹

¶ 9 In interpreting an insurance policy we attempt to harmonize and give effect to all provisions so that none is rendered meaningless. See Nichols v. State Farm Fire & Cas. Co., 175 Ariz. 354, 356, 857 P.2d 406, 408 (App.1993)

. In addition to the "violation of law" exclusion, the policy in question also contains an "intentional acts" exclusion.² To interpret the "violation of law" exclusion as applying only to intentional criminal acts would be to render it meaningless, given the presence of an exclusion that applies to "intentional acts" (whether criminal or not). See Juniel, 931 P.2d at 515 (stating that requiring intent in the criminal acts exclusion would make that exclusion redundant to the intentional acts exclusion). See also Brown, 16 F.3d at 225 ("An act is intentional if it is willfully or volitionally performed ... and an act is criminal if it violates the State's criminal code."); Schurtz, 112 Cal.Rptr.2d at 553 (determining that "the criminal act exclusion is independent of the intentional act exclusion").

¶ 10 Because the "violation of law" exclusion unambiguously includes all criminal acts that result in conviction, it applies to Travis Wilde's conviction for "reckless" aggravated assault.

III.

¶ 11 Appellant acknowledges that public policy proscribes indemnification of persons for losses resulting from their own willful wrongdoing. See Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 190, 939 P.2d 1337, 1343 (1997); Transam. Ins. Group v. Meere, 143 Ariz. 351, 356, 694 P.2d 181, 186 (1984). Nevertheless, Appellant argues that coverage should be found in the present case because one purpose of liability insurance is to afford protection against certain negligent acts, see, e.g., Young, 658 So.2d at 753

, and public policy favors protecting the interests of injured victims. St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 567, 720 P.2d 540, 542 (App.1986). We agree with those general principles, and we conclude that the "violation of law" exclusion in question does not violate them. See Schmitt, 570 A.2d at 493-94 (finding no public policy against excluding coverage for injuries resulting from aggravated assault committed recklessly or other criminally reckless conduct).³

¶ 12 Appellant argues that the "violation of law" exclusion is too broad because it "applies to any criminal law violation, no matter how trivial, irrespective of an insured's intent or culpability and no matter that such a violation may also arise from mere negligence or inadvertence." He contends that the exclusion could be applied to any accident with "criminal consequences in the eyes of some state prosecutor," or in which the insured violated "de minimis, technical or obscure" laws, such as OSHA regulations, environmental protection laws, or city ordinances.⁴ Any validity to this argument is dwarfed by the fact that the exclusion applies only when "any insured is convicted." Given that limitation, the exclusion is obviously "not so broad as to render the insurer's risk a nullity." See Andersen, 158 Ariz. at 430,

763 P.2d at 250.

¶ 13 We note, as did the Andersen court, that "[w]e might reach a different result if a policy excluded coverage `in all cases where any violation of any [] regulation is involved,'" id. at 430-31, 763 P.2d at 250-51, because an insurance policy has to be reasonably interpreted. See Allstate Ins. Co. v. Powers, 190 Ariz. 432, 435, 949 P.2d 521, 524 (App.1997)

(stating that in interpreting an insurance policy, a court should give its terms a practical and reasonable construction). We conclude, however, that, although some examples cited by Appellant would not pass a reasonableness test, a conviction for aggravated assault certainly does so, and we therefore have no present need to search for the outer limits of reasonableness in a "violation of law" exclusion.

¶ 14 Appellant also complains that the "violation of law" exclusion forces an accused to waive insurance coverage in the civil case to accept a favorable plea bargain in the criminal case. He maintains that, because the "violation of law" exclusion is predicated on a conviction that results from discretionary charging decisions by the State, it would be bad public policy to deny insurance coverage. We conclude that it would be worse public policy to encourage people to think that a homeowner's policy with a "violation of law" exclusion includes coverage for acts that result in an insured's conviction of aggravated assault. An insurer has no more control over...