Arkwright-Boston Mfrs. Mut. Ins. Co. v. Dunkel, ARKWRIGHT-BOSTON
| Decision Date | 17 October 1978 |
| Docket Number | Nos. 77-799,77-801 and 77-976,ARKWRIGHT-BOSTON,s. 77-799 |
| Citation | 363 So.2d 190 |
| Parties | MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellant, v. Diane DUNKEL, Laura Cestone, Appellees. Diane DUNKEL, Individually, Appellant, v.MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Stephens, Schwartz, Lynn, Chernay & Brandy, Joe N. Unger, Miami, for Arkwright.
Nachwalter, Christie & Falk and Jay M. Levy, Miami, for Dunkel.
Rossman & Baumberger and Robert D. Peltz, Miami, for Cestone.
Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
This is a consolidated appeal taken by appellant-defendant Arkwright-Boston Manufacturers Insurance Company (hereinafter referred to as Arkwright) from a final judgment and amended final judgment rendered pursuant to a jury verdict in favor of appellee-plaintiff Diane Dunkel, individually, and as administratrix of the Estate of Blanche Dunkel, deceased; and appellee-defendant, cross-plaintiff Laura Cestone, as administratrix of the Estate of Thomas Maguire, deceased. The judgments appealed from found insurance coverage in favor of appellees under a homeowner's liability insurance policy issued by Arkwright. Additionally, Diane Dunkel has taken an appeal from an order granting Arkwright's motion to set aside an award of attorney's fees previously entered in the final judgment but deleted from the amended final judgment. For the reasons that follow, we affirm all judgments.
This cause commenced with a complaint filed by appellee Diane Dunkel, individually, and as Administratrix of the Estate of Blanche Dunkel, deceased, against Laura Cestone, as Administratrix of the Estate of Thomas Maguire, deceased, and Arkwright. The complaint alleged that Maguire was the brother of Blanche, that Diane was the daughter of Blanche and niece of Maguire, and that all three resided in the same household in Miami, Florida. The complaint further alleged that on December 21, 1973, Maguire fatally shot Blanche, seriously wounded Diane, and then shot himself to death. It was also alleged in the complaint that at the time of the shooting, Maguire "was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason." By virtue of a homeowners liability insurance policy written by Arkwright in favor of those who resided in Blanche's home and protecting those residents against liability caused by their acts, Diane sought damages against both the Estate of Maguire, as a direct beneficiary of the policy, and Arkwright, as the insurer.
Appellant Arkwright answered the complaint, Inter alia, denying coverage based upon an "intentional act" exclusion found in the policy. Said exclusion stated that coverage did not apply ". . . to bodily injury or property damage which is either expected or intended from the standpoint of the insured."
Appellee Cestone answered and filed a cross-claim against Arkwright asserting that at the time of the shooting, Maguire was insured under the homeowner's policy and that Arkwright had wrongfully denied coverage. Arkwright denied liability in the cross-claim, again alleging that Maguire's actions were excluded from coverage as being either "expected or intended from his standpoint."
Subsequently, Arkwright filed a "motion for separate trial" seeking a bifurcated proceeding in which the issue of insurance coverage would be tried prior to a trial on the merits. Said motion was granted and the case thereupon proceeded to jury trial on the issue of coverage at which time the jury heard the following testimony: that on December 21, 1973, Maguire, who had lived with Diane and her mother for approximately four years, beginning shortly after Diane's father's death, attacked the two, shooting to death Blanche and seriously wounding Diane. During his four year stay at Blanche's home, Maguire had never unpacked his suitcases, rarely ventured out of his room and spent a great deal of his time, with the lights turned off, reading medical books by flashlight. When Maguire did venture forth for short walks down the street he carried a stick or baseball bat for protection. All of his meals were served to him in his room, with Blanche always setting a tray outside his room. The tray would be taken by Maguire only after his sister Blanche (whom he apparently believed to be his mother) had departed.
It was reported to the jury that Maguire's personal hygiene was, by all standards, atrocious. While in the home he wore only pajamas, refusing to have them cleaned. Additionally, he would not permit Blanche to enter his room and change the sheets or pillow cases. Maguire bathed only once a month and then only in oatmeal. Prior to the time he shot his sister and niece, Maguire possessed a long and complicated history of medical ailments all relating to stress. Such ailments dictated twelve separate hospitalizations. While the original intendment was for Maguire to live with his sister, go to work and help the family financially, the record reveals that he had never possessed a job since his arrival at Blanche's home. He had always been verbally abusive to his sister and niece, referring to the latter (whom he had on a prior occasion attempted to stab with a butcher knife) as that "little Nazi bastard."
The jury heard two physicians testify as to Maguire's mental capacity at the time of the shootings. Dr. Frederick Poppe, a specialist in internal medicine and Maguire's treating physician during some of his hospital stays, concluded that he was not insane, possessing sufficient mental capacity to understand that pointing a gun, pulling a trigger and by so doing releasing bullets into Blanche and Diane would cause personal injury, and possible death. Dr. Poppe readily admitted, however, that his opinion must be tempered by the fact that he is not a psychiatrist.
Dr. Harry Graff, psychiatrist, was called as a witness for appellee, Diane. While Dr. Graff had never seen or examined Maguire, he was asked a...
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