Auto Club Group Ins. Co. v. Burchell

Decision Date27 November 2001
Docket NumberDocket No. 222555.
Citation249 Mich. App. 468,642 N.W.2d 406
PartiesAUTO CLUB GROUP INSURANCE COMPANY, Plaintiff-Appellant, v. Robert Paul BURCHELL, Lori Abramson and Wanda Easley, Defendants-Appellees.
CourtCourt of Appeal of Michigan — District of US

Lanctot, McCutcheon, Schoolmaster, Taylor & Hom (by Joseph K. Bachrach) (Gross, Nemeth & Silverman, P.L.C. by Mary T. Nemeth, of Counsel), Detroit, for the plaintiff.

Hooper, Hathaway, Price, Beuche & Wallace (by Mark R. Daane), Ann Arbor, for Robert P. Burchell.

Before: HOOD, P.J., and WHITBECK and METER, JJ.

PER CURIAM.

In this declaratory judgment action, plaintiff Auto Club Group Insurance Company sought a ruling that it did not owe a duty to continue to defend or indemnify its insured, Robert Burchell, in an underlying civil action brought against Robert Burchell to recover for injuries sustained by third parties, defendants Lori Abramson and Wanda Easley, during a barroom brawl. Auto Club appeals by leave granted the order denying its motion for summary disposition. We reverse and remand.

I. Basic Facts And Procedural History
A. Overview

The issues in this case involve the intentional acts exclusion in Auto Club's homeowners' insurance policy, as well as the policy definition of "occurrence." Also at issue is the "criminal acts" exclusion within the policy. An understanding of the facts of the underlying action is thus important in order to determine whether the actions of the insured, Robert Burchell, were intentional or reasonably expected, whether an occurrence took place in order to trigger Auto Club's duty to defend, and whether Robert Burchell's actions constituted criminal acts. These issues arise out of an escalating barroom brawl in DeRosso's Pub, located in Iron County, Wisconsin, in mid-August of 1997. The parties' accounts of what happened at DeRosso's that evening vary significantly. We summarize the deposition testimony of the main participants below.

B. Wanda Easley

According to Easley's deposition testimony, she was working the night shift as a bartender at DeRosso's, a topless bar, on the night of the incident. Around 2:15 a.m., Easley turned the music down and called "last call." Easley served everyone their last drinks and began doing the dishes. Ten minutes after Easley had served the last round, a patron, later identified as Robert Burchell, began asking her for another drink. Easley refused and explained to him that it was 2:25 a.m., that she was done, and that "[w]e have to go, you know."

Easley turned around to put some glasses down after washing them and looked into the large mirror located behind the bar. She saw Robert Burchell reach over the bar, grab a bottle of alcohol, and start "chugging off it." Easley was "shocked"; she turned around, grabbed the bottle out of Robert Burchell's hand, and asked him "who he thought he was." Robert Burchell replied, "F___ you, bitch," and Easley said, "I don't need this" and "you've got to go ... you've got to go now." Robert Burchell then "railed off and nailed" Easley in the face "full fisted."

Easley jumped over the bar, grabbed Robert Burchell by the back of the pants and led him toward the front door. Robert Burchell then turned around, grabbed Easley, and "whipped" her over "like a sack of potatoes," throwing her into chairs and tables. Easley was on the floor and struggled to get up by kicking, punching, and pushing, while Robert Burchell hit her and "waled" on her.

A group of people pulled Robert Burchell off Easley; as a group they were able to escort Robert Burchell out the front door of the bar. At the same time, another man later identified as Patrick Burchell, brother of Robert Burchell, started to hit Easley. Easley was able to block Patrick Burchell from hitting her, but he then grabbed his beer mug and started to swing it at Lori Abramson, a bar patron. Easley grabbed the mug out of Patrick Burchell's hand and started to go behind the bar to call the police, but Patrick Burchell grabbed the beer mug and again attempted to swing it at Abramson. Easley believed that he intended to break the mug and then use it to cut Abramson. Patrick Burchell slammed the mug into the countertop of the bar, cracking the shellac finish. Easley again grabbed the mug out of his hand, and the crowd pushed both of the Burchells out the door just as the police were arriving. As the police arrived, Robert Burchell turned around and hit Easley again in the face, right in front of a police officer. The officer handcuffed Robert Burchell. Patrick Burchell then swung Abramson up against a utility pole, and another officer handcuffed him. The police then took both Robert and Patrick Burchell away. As a result of Robert Burchell's actions, Easley sustained bruises from head to toe, an injured hip, and a contused toe and has developed a twitch in her left eye.

C. Lori Abramson

According to Lori Abramson's deposition testimony, she was at DeRosso's Pub on the night of the fight and was severely injured. She suffers from facial injuries, neck injuries, and lower spine injuries and has nerve damage to both legs. Abramson was sitting at the end of the bar, talking to a friend, and saw Easley escorting Robert Burchell out. Abramson did not know the Burchells; she had noticed that they had come into the bar late in the night and overheard them demanding another round of drinks. She also overheard Easley saying "sorry" and "last call was 15 minutes ago" and that "everybody had to leave." Specifically, Abramson remembered Easley turning down the music and yelling "last call for alcohol." Soon after, she noticed Easley escorting Robert Burchell out. As Easley and Burchell approached the front door, one of the Burchells—Abramson was not sure which one—picked Easley up and "body slammed" her onto a table. It appeared to Abramson as though the man was "picking her [Easley] up and tossing her out of the way." At that point, Abramson jumped off her bar stool and went to assist Easley. "Immediately there following, the bar erupted into a big bar brawl." Abramson tried to pull Easley out of the situation, but the next thing she knew, she was grabbed and pushed up against the wall.

According to Abramson, someone struck her while she was inside the bar, although she did not know who; there were "hands and fists flying everywhere." Abramson did see Patrick Burchell shatter his beer mug on the bar, taking a "huge chunk of polyurethane" out of the bar countertop, and then try to shove the broken mug into her face. The Burchell brothers and their three or four friends were fighting Abramson, Easley, and the other customers. Finally, everybody "pushed out the front door," and three police officers arrived. Patrick Burchell then grabbed Abramson and spun her into a metal streetlight pole, although she could not remember actually hitting the pole. Abramson hit the pole, striking her cheek, and then "dropped" and rolled off to the side. Abramson then went home and slept for a few hours. When Abramson awoke, she was covered in black bruises and her left leg was swollen almost to twice its normal size. Abramson went to the emergency room, and a doctor later diagnosed her with internal bleeding, the result of being slammed against the steel pole.

Abramson, a bartender by trade, testified that in her opinion the problem was that both the Burchells had had too much alcohol, having been at a wedding rehearsal dinner before they arrived at the bar, and that the brawl would have never happened if they had not been consuming too much alcohol.

D. Robert Burchell

According to Robert Burchell's testimony, he was charged with assault and battery for the brawl that occurred at DeRosso's Pub. Robert Burchell had been to a rehearsal dinner earlier that evening because his sister was getting married. At the dinner, he drank scotch, wine, and an after-dinner drink of some type. Later, Robert Burchell went to the Horse's Corral, drank beer and played pool with his brother Patrick Burchell and his uncle Paul. The three then went to Mac's Bar and had a beer. On the way to still another bar, the topless entertainment at DeRosso's Pub "caught [their] eye," and they entered. Robert Burchell then had a beer at DeRosso's. It was about 1:45 a.m. because they weren't in DeRosso's very long before the bartender (Easley) yelled "last call," and Robert Burchell thought she yelled that at about 2:15 a.m. After the bartender called "last call," Robert Burchell, his brother Patrick Burchell, and his uncle Paul then "stood up from" their table. Paul and Patrick Burchell wanted to leave, but Robert Burchell wanted them to stay and have one more beer. Finally, the trio decided that Paul and Patrick Burchell would go get the car, Robert Burchell could have one more beer, and they would pick him up. Robert Burchell stood at the bar waiting for Easley to finish telling a story to other customers. Easley was having a "big time" with the other customers, and despite the fact that Robert Burchell was standing there "patiently" waiting for her to look at him, she did not. Meanwhile, Patrick Burchell reentered the bar and stood by the door. Patrick Burchell motioned to Robert Burchell and said, "Come on. Let's go." At that point, Robert Burchell grabbed an empty bottle from the bar by the neck, held it upside down, pointed to the label and motioned his brother to "just have one beer with" him because he "just wanted to spend more time with him." Robert Burchell was "trying hard to encourage everybody to stay a little longer." By Robert Burchell's own estimation, he was not actually "stumbling" drunk at that point, but he would not have driven a car.

As Robert Burchell lifted the empty bottle to show his brother, Easley suddenly swung around, grabbed it out of his hand, and "ripped [him] up and down with her comments."...

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