Bell v. Tilton, 55460

Decision Date02 December 1983
Docket NumberNo. 55460,55460
Citation674 P.2d 468,234 Kan. 461
PartiesChristopher BELL, et al., Appellants, v. Russell Wayne TILTON, et al., Defendants, and Great Plains Mutual Insurance Company, Inc., Garnishee-Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Where an insurance company provides an attorney to defend its insured against a pending action, while reserving its policy defenses, said attorney's defense of the action is held not to estop the insurance company from asserting its policy defense in a subsequent garnishment proceeding.

2. Where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.

3. Trial court's determination the intentional aiming and firing of a BB gun at the face of the injured party was not covered by insured's liability insurance policy which excluded injuries intended or expected from the standpoint of the insured, is affirmed notwithstanding the fact there was some evidence by the insured that he did not intend to cause the particular injury which resulted from his acts. The trial court properly held the insured's statements relative to his intent were not conclusive on the issue of whether the insured's acts were intentional and that such determination must be based on the totality of the evidence relative thereto.

C. Stanley Nelson, of Hampton, Royce, Engleman & Nelson, Salina, argued the cause and was on brief, for appellants.

Robert S. Jones, of Norton, Wasserman, Jones & Kelly, Salina, argued the cause and was on brief, for garnishee-appellee.

McFARLAND, Justice:

Plaintiff-garnisher Christopher Bell appeals dismissal of his garnishment action against garnishee Great Plains Mutual Insurance Co., Inc.

The background facts as found by the trial court are summarized as follows:

Great Plains Mutual Insurance Company issued its homeowners policy No. H-1-331-2 to Rodney and Katherine Tilton which generally provided liability limits of $25,000.00 for bodily injuries or property damage caused by a covered occurrence. Defendant, Russell Wayne Tilton (Rusty), is the son of Rodney and Katherine Tilton, and was an insured under the terms of the insurance policy. Coverage under the policy was limited by Exclusion (1)(f) which provided as follows: "This policy does not apply ... f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured." (Emphasis supplied.)

On January 26, 1979, Chris Bell and Dion Gengler spent the night with Rusty Tilton at his rural home in celebration of his birthday. Each of the boys was eleven years old. The following morning after breakfast and some normal scuffling around, the boys took Rusty's BB gun and went bird hunting. The BB gun, though a toy, was powerful enough to kill birds. Rusty had been taught by his father how to handle guns, including the dangers inherent in gun handling, and he had successfully completed the basic hunter safety course which taught the art of safe gun handling. After lunch, the three boys and Rusty's sister, Leslie, went to the barn to play. Rusty took his BB gun along. The barn is a two-story rock structure. The second story or hayloft was reached by a stairway inside the barn leading to a trap door in the loft floor. There is a hay door about four feet by six feet in the front of the barn through which to load hay into the loft. The children all went into the hayloft and there was shooting of the BB gun. The evidence is conflicting as to whether Rusty was actually shooting the gun directly at the other two boys, but there was at least some play acting to that effect.

After a while, Rusty left the hayloft to go to the house and he apparently got some more BBs. When he left, Chris and Dion closed the trap door to the loft and piled various objects onto it so that Rusty could not get it open again from below. Rusty shot some BBs at the trap door when he could not get it open and also fired a few at a crack in the loft floor. He then went outside and shot some BBs into the open hay door. At one point he tried to place a ladder to the hay door to enter the loft, but the other boys prohibited his entry. He then put the ladder down and resumed shooting through the hay door from just below the door. Rusty then stationed himself at a shed which was across the driveway from the barn and was approximately thirty feet from the hay door. He resumed shooting BBs through the open hay door. A "game" developed whereby Chris and Dion would run across the open hay door inside the loft and [Rusty] fired the BB gun into the door and apparently at the running boys. This routine went on for a period of time but with no "hits" taking place on the boys. Ultimately, Chris peeked around the side of the hay door opening. Rusty saw Chris, took aim and fired the BB gun at him. The BB pellet hit Chris in the right eye, causing severe injury. About three months earlier, Rusty had fired the BB gun at Chris and a pellet struck Chris' cheek. Although it hurt, Chris was not injured.

This action was filed on April 22, 1981, and a jury trial began on January 11, 1982. The trial was conducted upon a theory of negligence, the issue of intentional fault having been abandoned by the plaintiff. At the conclusion of their deliberations, the jury returned their verdict finding Russell Tilton to be 56% at fault and Chris Bell to be 44% at fault for Chris' injuries. (The judgment against Russell Tilton was $30,800.00.) No fault was assessed to Rusty's parents, Rodney and Katherine Tilton. Plaintiff filed this garnishment proceeding against Great Plains Mutual Insurance Company claiming under the Tilton's homeowners policy.

The trial court then concluded the circumstances of plaintiff's injury came within the "expected or intended" exclusion of the Tilton policy and, accordingly, garnishee insurance company had no liability thereon. The garnishment was dismissed and, based upon lack of policy liability, the claim for attorney fees was denied.

The first issue is whether the trial court erred in failing to find garnishee insurance company was estopped to assert its policy exclusion.

Before proceeding, some additional facts need to be stated. After plaintiff Bell filed his personal injury action against defendants Tilton, demand was made upon the insurance company herein to defend the action. The Tiltons also retained their own counsel. The insurance company provided an attorney (Robert S. Jones) for the Tiltons' defense of the action but, by letter to the Tiltons' privately retained attorney (Thomas H. Conroy), stated:

"I want to make it clear we will, on behalf of the Company and Mr. and Mrs. Tilton, defend this entire lawsuit, including the claims against Rusty, individually, so long as you clearly understand that by doing so, the Company does not waive any rights it has set forth in this letter to disclaim and deny the obligations to pay judgment rendered for those claims I have discussed which are against Rusty personally for his alleged willful, negligent and reckless act in shooting Chris Bell in the eye with a BB." (Emphasis supplied.)

Mr. Conroy, on behalf of the Tiltons, replied:

"We understand you do not waive any rights set forth in said letter to disclaim and deny the obligation to pay judgments rendered for the claims you described which are against Rusty personally for his alleged willful, negligent and reckless acts in shooting Chris Bell in the eye with the BB."

Plaintiff's original action against the Tiltons predicated liability on both negligence and intentional tort theories. Subsequently, plaintiff dropped his intentional contention and relied solely on negligence. Before trial Mr. Jones, on behalf of the Tiltons, filed a motion in limine seeking to preclude the plaintiff from making any mention at trial of Rusty Tilton's intent at the time of the shooting. At the hearing on the motion in limine on January 7, 1982, plaintiff's attorney, Mr. Nelson, expressed concern in light of some answers by defendants to interrogatories, whether the plaintiff should amend his petition and reinsert an allegation of intentional and willful conduct. After a heated exchange between counsel, the court assured Mr. Nelson the Tiltons would not claim Rusty's actions were intentional, rather than negligent. In other words, the matter of intent was not in the lawsuit. The trial went ahead on plaintiff's negligence theory and the jury returned an award of $55,000.00 for plaintiff but found him 44% at fault for an effective judgment of $30,800.00.

When Great Plains was subsequently garnished by plaintiff, the insurance company hired Mr. Jones to represent it on the garnishment. In its answer, Great Plains asserted it was not indebted to Rusty Tilton under its insurance policy as his injury to plaintiff had been intentional and in defending the Tiltons in the Bell lawsuit the garnishee had timely reserved its right to disclaim liability.

Plaintiff argued Great Plains was estopped to assert the policy exclusion defense as Mr. Jones, in the Bell litigation, had waived it at the January 7, 1982, pretrial hearing. On October 16, 1982, Judge Richard W. Wahl, who had also been the trial judge in the initial litigation, found the garnishee was not estopped to assert its policy exclusion defense. In his memorandum decision Judge Wahl wrote:

"The garnishee now before the Court was not a party to the trial of the issues. The theory of the case was determined by the plaintiff to be negligence. The issue of intentional conduct by Russell Wayne Tilton to inflict injury upon Christopher Bell by shooting him in the eye with the BB gun has never been before the Court."

Continuing:

"The issue of coverage was not adjudicated at the prior proceeding and the garnishee is now free to assert its non-coverage defenses. There is not an identity of parties between the trial on a negligence theory and the present garnishment. The issue of coverage not...

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