Auto-Owners Ins. Co. v. Harrington

• Citation: 565 N.W.2d 839,455 Mich. 377
• Decision Date: 29 July 1997
• Docket Number: AUTO-OWNERS,No. 7,Docket No. 104155,7
• Parties: INSURANCE COMPANY, Plaintiff-Appellee, v. James HARRINGTON and Marion Harrington, Defendants-Appellants. Calendar
• Court: Supreme Court of Michigan

Page 839

565 N.W.2d 839

455 Mich. 377

AUTO-OWNERS INSURANCE COMPANY, Plaintiff-Appellee, v. James HARRINGTON and Marion Harrington, Defendants-Appellants.

Docket No. 104155.

Calendar No. 7.

Supreme Court of Michigan.

Argued April 9, 1997.

Decided July 29, 1997.

Gross, Nemeth & Silverman, P.L.C. by Mary T. Nemeth, Detroit, for plaintiff-appellee.

Fletcher, DeGrow by Gary A. Fletcher and John D. Tomlinson, Port Huron, for defendants-appellants.

WEAVER, Justice.

Whether an exclusion of liability coverage for bodily injury "expected or intended by an insured person" encompasses bodily injury caused by an insured's act of self-defense is a question of first impression for this Court. The defendants-appellants, James and Marion Harrington, argue that the Court of Appeals incorrectly reversed the trial court's grant of summary disposition for them. We disagree and hold that the Court of Appeals correctly reversed the decision of the trial court because the intentional-act exclusion of this homeowner's insurance policy applies to intentional acts taken in self-defense. Accordingly, we affirm the Court of Appeals in its decision to reverse the trial court and remand this matter to the trial court for entry of summary disposition in favor of plaintiff-appellee pursuant to MCR 2.116(C)(8), (10).

I

On August 1, 1989, James Harrington shot and killed Brian Tew. Tew, who at that time was residing with the Harringtons' neighbor, was allegedly intoxicated that afternoon and evening. The Harringtons saw Tew acting aggressively and erratically. They were also informed by their nephew, who was visiting them that day, that Tew had told him that he could kill the nephew with his bare hands. About eleven o'clock that evening, Tew shot an automatic weapon into Lake St. Clair and threatened "to kill someone." At that point, James Harrington, who had become alarmed at Tew's behavior during the course of the afternoon and was feeling very frightened at Tew's threat to harm someone, retrieved his twelve-gauge shotgun from his garage.

Harrington did not use the gun until later that evening when Marion Harrington saw Tew scaling up the Harringtons' garage and approaching the window to the room where she and the children were. Harrington did not actually see Tew's weapon, but erroneously assumed that Tew still had the automatic weapon and was going to use it to harm his wife and children. Harrington got his twelve-gauge shotgun, aimed at Tew, and shot him in the stomach. Tew died as a result of the shooting.

Despite the fact that Tew was unarmed when Harrington shot and killed him, the St. Clair County prosecutor never brought charges against Harrington for the shooting.

On November, 20, 1989, Tew's father filed a wrongful death action against the Harringtons. Defendant-appellees insurer, Auto-Owners Insurance Company, brought the instant declaratory judgment action, requesting that the court find that it had no legal duty to defend the Harringtons because James Harrington's intentional shooting of Tew fell within the intentional-act exclusion of the insurance policy. Despite deposition testimony by James Harrington that he intended to shoot Tew, the trial court granted the Harringtons' summary disposition motion under MCR 2.116(C)(8) and (10), and found that the insurer had to provide coverage and a defense for the Harringtons.

The Court of Appeals reversed and held that the policy exclusion language regarding acts "expected or intended by an insured person" was unambiguous and required the insured's subjective intent to injure. ¹ In this case, the Court of Appeals majority found it apparent from the facts that Harrington intended to shoot and injure Tew. It concluded that Harrington's actions, therefore, fell squarely within the intentional-act exclusion to coverage. ²

We granted leave to appeal and now affirm the decision of the Court of Appeals.

II

This Court must decide whether the insurer has a duty to defend the Harringtons under the terms of their insurance contract.

This Court has stated that an insurer's duty to defend can be broader than the duty to indemnify, and extends to any allegations contained in the underlying complaint that even "arguably come within the policy coverage...." Frankenmuth Mut. Ins. Co. v. Piccard, 440 Mich. 539, 546, 489 N.W.2d 422 (1992) (Riley, J., plurality opinion). For the following reasons, we find the exclusion at issue to be unambiguous, and we further find that Harrington's actions taken in self-defense fall squarely within the plain language of the exclusion.

Resolution of the matter before us turns on our interpretation and application of the insurance contract and, specifically, on our interpretation of the "expected or intended" language in the intentional-act exclusion at issue. ³ An insurance policy is an agreement between parties that a court interprets "much the same as any other contract" to best effectuate the intent of the parties and the clear, unambiguous language of the policy. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 566, 489 N.W.2d 431 (1992). To do so, the court looks to the contract as a whole and gives meaning to all its terms. Id., citing Fresard v. Michigan Millers Mut. Ins. Co., 414 Mich. 686, 694, 327 N.W.2d 286 (1982).

Interpretation of an insurance policy ultimately requires a two-step inquiry: first, a determination of coverage according to the general insurance agreement and, second, a decision regarding whether an exclusion applies to negate coverage. This Court has held that an insurance policy provision is valid " 'as long as it is clear, unambiguous and not in contravention of public policy.' " Id., quoting Raska v. Farm Bureau Mut. Ins. Co. of Michigan, 412 Mich. 355, 361-362, 314 N.W.2d 440 (1982). The Harringtons' homeowner's insurance policy provided, in relevant part:

COVERAGE E --- PERSONAL LIABILITY

We will pay all sums which an insured person becomes legally obligated to pay as damages because of bodily injury, personal injury (libel, slander or defamation of character; false arrest, detention or imprisonment or malicious prosecution; invasion of privacy, wrongful eviction or wrongful entry) or property damage covered by this policy.

If a claim is made or suit is brought against the insured person for liability under this coverage, we will defend the insured person at our expense, using lawyers of our choice. We are not obligated to defend after we have paid an amount equal to the limit of our liability. We may investigate or settle any claim or suit as we think appropriate. [Emphasis added.]

In this case, Harrington's fatal shooting of Tew clearly falls within the policy's definition of bodily injury. ⁴

However, this coverage is limited by an intentional-act exclusion, which reads as follows:

Under Personal Liability Coverage and Medical Payments to Others Coverage we do not cover:

* * * * * *

bodily injury or property damage expected or intended by an insured person. [Emphasis added.]

Such an exclusion is to be strictly construed in favor of the insured to the extent possible. Churchman, 440 Mich. at 567, 489 N.W.2d 431.

In this case, the Court of Appeals found that the exclusion language regarding expected or intentional injury was unambiguous. We agree. In fact, this Court has repeatedly held that the "intended or expected" language that is used in the policy exclusion is "clear and unambiguous" as applied to a variety of similar factual contexts. Metropolitan Property & Liability Ins. Co. v. DiCicco, 432 Mich. 656, 679, 443 N.W.2d 734 (1989) (Riley, C.J., lead opinion). ⁵

We further agree with the Court of Appeals that this language requires a subjective inquiry into the intent or expectation of the insured. Arco Industries Corp. v. American Motorists Ins. Co., 448 Mich. 395, 407, 531 N.W.2d 168 (1995). In this case, the policy's use of the word "expected" broadens the scope of the exclusion because "expected" injuries are the "natural, foreseeable, expected, and anticipated result of an intentional act." DiCicco, supra at 674, 443 N.W.2d 734. ⁶ We have, therefore, stated that this "intended or expected" language bars coverage for injuries caused by an insured who acted intentionally despite his awareness that harm was likely to follow from his conduct. Auto Club Group Ins. Co. v. Marzonie, 447 Mich. 624, 641-642, 527 N.W.2d 760 (1994) (Riley, J., plurality opinion); Frankenmuth, supra at 550, 489 N.W.2d 422. "In other words, coverage is precluded if the insured's claim that he did not intend or expect the injury 'flies in the face of all reason, common sense and experience.' " Marzonie, 447 Mich. at 642, 527 N.W.2d 760 (Riley, J., lead opinion), quoting DiCicco, 432 Mich. at 720, 443 N.W.2d 734.

In his deposition testimony, Harrington admitted that he intentionally pointed his gun at Tew and intended to shoot him, hoping to stop Tew's advance toward the bedroom window. From these admissions, the Court of Appeals majority correctly inferred that Harrington certainly was aware or "knew that intentionally shooting at Brian would result in serious bodily harm or death." ⁷ We agree and find that Harrington intended, or at least expected, that bodily injury would result from shooting Tew; moreover, we find that any conclusion to the contrary would "fl[y] in the face of all reason, common sense and experience." Id. ⁸

In so holding we acknowledge that certain other jurisdictions have found that an insured's intentional act taken in self-defense does not constitute intentional conduct. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984), and Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981). However, our holding today is consonant with the majority of state court's that have similarly refused to create a self-defense exception to the intentional-act exclusion. Moreover, it is true to the plain wording of the exclusion. Indeed, while the Harringtons argue that acts taken in...