American Family Mut. Ins. Co. v. Franz

• Decision Date: 15 September 1998
• Docket Number: No. WD,WD
• Citation: American Family Mut. Ins. Co. v. Franz, 980 S.W.2d 56 (Mo. App. 1998)
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent, v. Barbara FRANZ, Defendant, and Cellie Dudley, by and through her Guardian ad litem, Harrison Dudley, Appellant. 54813.
• Court: Missouri Court of Appeals

Page 56

980 S.W.2d 56

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent, v. Barbara FRANZ, Defendant and Cellie Dudley, by and through her Guardian ad litem Harrison Dudley, Appellant.

No. WD 54813.

Missouri Court of Appeals Western District.

Sept. 15, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 27, 1998.

Application for Transfer Denied Dec. 22, 1998.

Scott W. Turner, Kansas City, for Appellant.

Ben T. Schmitt, Kansas City, for Respondent.

Before HOWARD, P.J., and BRECKENRIDGE and SPINDEN, JJ.

HOWARD, Presiding Judge.

American Family Mutual Insurance Company ("American Family") brought a declaratory judgment action, seeking a determination of whether the conduct of its insured, Barbara Franz, was covered by her homeowner's insurance policy. The trial court sustained American Family's motion for summary judgment, and Dudley now appeals, claiming that the trial court erred by finding there was no coverage because of an exclusionary clause in the policy.

Affirmed.

The facts of this case are relatively simple, and involve a dispute between neighbors. Franz and the Dudley family lived in the same apartment complex in Blue Springs, Missouri. Six-year-old Cellie Dudley and her parents would walk the family dog around the complex, and Franz became upset that the dog was defecating near her apartment.

On the morning of October 17, 1994, Cellie Dudley was walking the dog and Franz observed the dog defecating near her front door. Franz grabbed a can of hairspray, emerged from her apartment, and sprayed the dog. The dog ran away, and Franz told Cellie Dudley that she wanted the dog's feces cleaned up immediately. When Cellie appeared to be resisting her demand, Franz grabbed her wrist and, by her own admission, intentionally pushed Cellie's hand into the feces.

Franz then attempted to pull Cellie in the direction of her apartment, but released her when the apartment complex's maintenance man observed the conflict and began shouting at her. Meanwhile, Cellie's mother, Leisa Dudley, heard her daughter's screams and saw some of the altercation from her apartment window. She hurried to her daughter's aid, but the incident was over by the time she got there.

Six months later, the Dudleys brought a civil action against Franz, alleging that she committed the torts of assault, battery, intentional infliction of emotional distress, and false imprisonment against Cellie Dudley, and that she committed the tort of negligent infliction of emotional distress against Cellie's mother, Leisa Dudley. American Family then filed its declaratory judgment action, claiming that Franz' actions were specifically excluded from her homeowner's insurance policy by a provision which stated that the policy's coverages for personal liability and medical expense "do not apply to bodily injury ... which is expected or intended by the insured."

The trial court granted declaratory relief to American Family, finding that Franz' actions were not covered by the policy. The trial court also found that Leisa Dudley did not have a claim for negligent infliction of emotional distress because she did not allege that she was in a zone of danger, and this latter finding is not challenged on appeal.

Dudley's sole point on appeal claims that the trial court erred by concluding that the policy exclusion barred coverage in this case. Dudley contends there was no showing that Franz intended for her conduct to injure the child.

In considering policy clauses like the one here, which excludes coverage for bodily injury "which is expected or intended by the insured," Missouri courts will find that coverage is barred by that specific language if it is shown that (1) the insured intended the acts causing the injury, and (2) injury was intended or expected from these acts. American Family Mut. Ins. v. Pacchetti, 808 S.W.2d 369, 371 (Mo. banc 1991). The burden is on the insurer to establish that an exclusion bars coverage. American Family Mut. Ins. Co. v. Lacy, 825 S.W.2d 306, 314 (Mo.App. W.D.1991).

Dudley does not dispute that Franz intended the act which is at issue here, namely, the pushing of the child's hand into dog droppings. Dudley does contend, however, that American Family failed to show that Franz intended the act to harm or injure the child, and therefore the second part of the Pacchetti test was not met. Dudley notes that the only direct evidence of Franz' intent is her deposition testimony, in which she states that her intent was "to make a point to the child" rather than to harm the child. According to Dudley, Franz' intent was to benefit the child by teaching her a lesson.

Courts in numerous jurisdictions have confronted exclusion clause cases such as this, where the insured claims that there was a benign intent behind a harmful act, but the nature of the act itself indicates otherwise. See generally Note, Intentional Injury Exclusion Clauses--What is Insurance Intent?, 32 Wayne L.Rev. 1523 (1986). Particularly where the nature of the act itself is outrageous or egregious, courts are reluctant to rely solely upon an insured's own self-serving testimony about the intention behind the act, since such an approach would render the exclusion meaningless without an insured's admission...