Auto Club Group Ins. Co. v. Marzonie

• Decision Date: 13 February 1995
• Docket Number: O,No. 96828,No. 4,96828,4
• Citation: 527 N.W.2d 760,447 Mich. 624
• Parties: AUTO CLUB GROUP INSURANCE COMPANY, Plaintiff-Appellant, v. Michael W. MARZONIE II and Vernon Clifton Oaks, jointly and severally, Defendants-Appellees. Calendarct. Term.
• Court: Michigan Supreme Court

Page 760

527 N.W.2d 760

447 Mich. 624

AUTO CLUB GROUP INSURANCE COMPANY, Plaintiff-Appellant, v. Michael W. MARZONIE II and Vernon Clifton Oaks, jointly and severally, Defendants-Appellees.

No. 96828.

Calendar No. 4, Oct. Term.

Supreme Court of Michigan.

Argued Oct. 4, 1994.

Decided Dec. 29, 1994.

Dissenting Opinion Filed Feb. 13, 1995.

Gault, Davison, Bowers, Hill, Parker & McAra, Edward B. Davison, Flint, co-counsel, for plaintiff-appellant.

Rosalind Rochkind, Detroit, for appellant.

Edwin H. Rabin, Flint, for appellee Oaks.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., Rosalind Rochkind, Detroit, for plaintiff-appellant.

Edwin W. Jakeway, Michael J. Kelly, Grand Blanc, for appellee Marzonie.

RILEY, Justice.

In this case, we must construe a homeowner's insurance policy to determine whether coverage exists or the intentional acts exclusion precludes coverage. Specifically, we must decide whether the insured's act of confronting and firing a shotgun at an occupied vehicle with the admitted intent only to scare and cause property damage, but with the actual consequence of personal injury to the driver, is covered by insurance where the policy covers acts caused by an occurrence, but excludes coverage for damage resulting from acts either expected or intended from the standpoint of the insured. We conclude that while coverage may exist under the instant facts this question is for the trier of fact and cannot be resolved as a matter of law. Nonetheless, because we find that coverage is precluded under the intentional acts exclusion, Auto Club has no duty to defend or indemnify. We therefore would reverse the judgment of the Court of Appeals.

I

In the instant case, plaintiff sought a determination that its insurance policy does not cover the possible liability resulting from the tort suit brought by Michael Marzonie against Vernon Oaks, an insured under his parents' homeowners' policy. The parties stipulated that the facts and testimony taken from an earlier automobile insurance trial would serve as the record in this case, with the trial judge acting as the trier of fact.

Review of that record indicates that an altercation arose between the occupants of two vehicles driven by Marzonie and Oaks, respectively. Although there is conflicting testimony in the record, apparently somebody in either Marzonie's or Oaks' vehicle made an obscene gesture to the other while stopped at an intersection. In any event, Marzonie stepped out of his vehicle and urged the occupants of the Oaks vehicle to fight. This led to a lengthy, high-speed While inside, Oaks apparently heard bottles being thrown at his house and driveway. ¹ Nevertheless, instead of calling the police, Oaks retrieved a shotgun from his bedroom, a gun he had never fired, ² and proceeded outside to confront and scare off Marzonie and friends. Upon arriving outside, he saw Marzonie's vehicle in the street, evidencing no attempt to leave the premises. Indeed, instead of leaving, Oaks testified that Marzonie's vehicle "crept" or drove slowly in his direction, ³ causing Oaks to respond by aiming and firing the gun at the grill of Marzonie's vehicle. Because this shot did not discharge, he fired a second shot, which actually hit Marzonie. ⁴ However, not seeing any visible damage to the vehicle, Oaks believed he had missed, and, as Marzonie's vehicle began to back up, Oaks attempted to fire another shot, this time at the rear tire of the vehicle. When the gun again misfired, Oaks fired a final shot, striking one of the rear tires. Marzonie's vehicle then departed, with Jeffrey Dingo taking control of the vehicle and driving Marzonie to the hospital. As a result of these events, Oaks pleaded guilty of careless discharge of a firearm. ⁵

chase throughout the City of Flint. During the chase, Marzonie and friends threw beer bottles at the Oaks vehicle and, on one occasion, tossed a bottle through an open side window. The chase continued until Oaks drove home and ran, along with the other occupants of his vehicle, into the house. Still in pursuit, Marzonie arrived and stopped in front of the Oaks house, leaving his engine running.

Despite his guilty plea, Oaks testified for purposes of the civil actions that he did not intend to hit Marzonie, noting that he easily could have shot Marzonie when he was in front of him, but instead shot at the grill. Oaks maintained that he simply wanted to stop the vehicle so the police could be called. ⁶

After oral argument and review of the record, the trial court held that coverage was not precluded because the intentional acts exclusion did not apply. Although properly raised in the complaint, the court never addressed the first question of coverage, i.e., was there an occurrence? Instead, relying on the exclusionary language, the court found no actual intent to injure and no certainty of injury so that an expectation to injure could be inferred as a matter of law.

On appeal, the Court of Appeals affirmed in an unpublished per curiam opinion, issued May 21, 1993 (Docket No. 132237). In reviewing the record under a clearly erroneous standard of review, the Court found there to be an occurrence, noting that the shooting was "an undesigned contingency which was not anticipated or naturally expected." Slip op. at 769. Turning then to the intentional acts exclusion, the Court likewise found it not preclusive of coverage. Using a subjective standard, the Court held that Oaks did not intend to injure Marzonie, nor was the injury "the expected or anticipated result of the intentional act of Oaks." Slip op. at 769.

This Court granted plaintiff's application for leave to appeal on April 20, 1994. ⁷

II

In interpreting an insurance policy, we attempt to effect the intent of the parties by first reviewing the policy language. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 566, 489 N.W.2d 431 (1992). When the language is clear and unambiguous on its face and does not offend public policy, we simply apply the terms as written. Id. at 567, 489 N.W.2d 431; Group Ins. Co. v Similarly, when construing an exclusionary provision, the language must be "strictly construed against the insurer." Czopek, supra, 440 Mich. at 597, 489 N.W.2d 444. However, if the language is clear and specific, it simply must be applied. Indeed, this Court will not countenance holding "an insurance company liable for a risk it did not assume." Churchman, supra, 440 Mich. at 567, 489 N.W.2d 431; Kaczmarck v. La Perriere, 337 Mich. 500, 60 N.W.2d 327 (1953).

Czopek, 440 Mich. 590, 596, 489 N.W.2d 444 (1992); Allstate Ins. v. Freeman and Metropolitan Property & Liability Ins. v. DiCicco, 432 Mich. 656, 667, 443 N.W.2d 734 (1989). Moreover, if an ambiguity exists, it is resolved in favor of the insured, i.e., coverage. Powers v. DAIIE, 427 Mich. 602, 624, 398 N.W.2d 411 (1986). However, simply because a policy does not define a term does not render the policy ambiguous. Fireman's [447 Mich. 631] Fund Ins. Co. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1323, n. 7 (E.D.Mich.1988). Instead, absent a policy definition, terms are "given a meaning in accordance with their common usage." DiCicco, supra, 432 Mich. at 666, 443 N.W.2d 734.

In the instant case, we are presented with two questions: the first interpreting the scope of coverage, i.e., an occurrence or accident, and the latter construing exclusionary language, i.e., the intentional acts exclusion. This Court has determined that the proper mode of construction first addresses whether coverage exists and then turns to the exclusionary language if necessary. See DiCicco, supra, 432 Mich. at 667-668, 443 N.W.2d 734. Accordingly, we must first decide whether this shooting constitutes an occurrence.

III

In Auto Club's policy, occurrence is defined as an "accident ... which results ... in bodily injury or property damage." However, the policy does not define accident. Nevertheless, in DiCicco, supra, this Court, applying its common usage to identical policy language, held that "an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected." Id. at 670, 443 N.W.2d 734. While this Court agreed on the statement of this test, a majority of this Court has yet to fully develop the workings and scope of this definition.

In DiCicco, we provided only part of the answer by observing that accidents are not limited to unintentional acts. Id. at 670, 443 N.W.2d 734. Yet, in applying the definition to the facts of the case, we held that the record was not "clear cut enough" to conclude that there was no occurrence, i.e., whether the insured had any intention of using a knife or whether the victim perceived it as such. Id. at 672, 443 N.W.2d 734. Indeed, in DiCicco, the insured disavowed any intent to use the knife, instead allegedly harboring the knife in order to scare away his victim. During a skirmish, however, the knife entered the victim's stomach. Thus, construing the term "accident" broadly, it was possible to find the actual use of the knife accidental. Nevertheless, we specifically noted that in appropriate situations "we do not preclude the possibility that an incident may not be considered an 'occurrence' under the coverage section of the policy." Id. at 672, n. 12, 443 N.W.2d 734.

On the other hand, we found the factual setting in Czopek, supra, to be one of these appropriate circumstances. In Czopek, the insured intentionally injured two police officers during an attempted arrest. The police officers sought compensation for their injuries, and the insurer sought a declaration that there was no coverage. This Court held that no coverage existed because the act of forcibly resisting arrest did not constitute an occurrence. Indeed, unlike DiCicco, this Court found the record clear enough to permit a finding of no occurrence. Czopek, supra, 440 Mich. at 598, 489 N.W.2d 444.

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