Berg v. Fall

• Decision Date: 12 November 1986
• Docket Number: No. 86-0246,86-0246
• Citation: 405 N.W.2d 701,138 Wis.2d 115
• Parties: Robin L. BERG, Jr., Plaintiff, v. James FALL, Defendant-Appellant, State Farm Insurance Company, Defendant-Respondent. . Submission on Briefs
• Court: Wisconsin Court of Appeals

Page 701

405 N.W.2d 701

138 Wis.2d 115

Robin L. BERG, Jr., Plaintiff, v. James FALL, Defendant-Appellant, State Farm Insurance Company, Defendant-Respondent.

No. 86-0246.

Court of Appeals of Wisconsin.

Submission on Briefs Nov. 12, 1986.

Opinion Released March 10, 1987.

Opinion Filed March 10, 1987.

Review Denied.

Thomas D. Bell and Lila M. Hambleton of Doar, Drill & Skow, S.C., New Richmond, for defendant-appellant, James Fall.

Thomas R. Jacobson and Thomas J. Niemiec of Lommen, Nelson, Cole & Stageberg, P.A., Hudson, for defendant-respondent, State Farm Ins. Co.

Before CANE, P.J., LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

James Fall appeals a summary declaratory judgment dismissing his insurer, State Farm Insurance Company, from an action commenced by the plaintiff, Robin Berg. Berg's claim arose when Fall struck him in the face with his fist. Fall argues that because he acted in self-defense, State Farm's policy clause excluding liability coverage for bodily injury "expected or intended by the insured" does not apply to his conduct. The trial court held that the blow triggered the exclusion clause regardless of whether Fall intended primarily to defend himself or to injure Berg. Whether an exclusion of liability coverage for bodily injury "expected or intended by the insured" encompasses bodily injury caused by acts of self-defense is a question of first impression in Wisconsin. We note that other jurisdictions have answered the question differently. ¹ We conclude that an insurance policy excluding liability coverage for intentionally caused bodily injury nonetheless covers privileged acts of self-defense.

Our standard in reviewing a summary judgment is the same as the trial court's. We therefore owe no deference to its determination. See Messner v. Briggs & Stratton Corp., 120 Wis.2d 127, 131, 353 N.W.2d 363, 365 (Ct.App.1984). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.; sec. 802.08(2), Stats. Because the record presents a genuine issue as to whether Fall acted in self-defense, and because we conclude that this factual question is material to the legal issue of insurance coverage, we reverse the trial court's judgment.

We first consider whether the record reveals a genuine issue of fact. On the night of the incident, Berg had been drinking and bowling at a Hudson bowling alley. There he met Fall, whom he knew from their mutual place of employment, a nearby grocery store. After leaving the bowling alley, the two walked to the grocery store where it was Fall's duty as a supervisor to collect and then deposit the store's daily receipts.

Berg claims that Fall taunted him as they walked toward the store. He further contends that he pinned Fall against the store in order to prevent a threatened attack, then backed away, keeping his hands at his side, repeating that he did not want to fight. Berg claimed that Fall then removed his jacket and attacked. Berg recalled seeing Fall's fist coming toward his face, then remembered nothing until he later regained consciousness on the ground.

As a result of the blow, Berg lost two front teeth and bumped his head. He required extensive dental work to replace the missing teeth. Fall cut his hand and received six stitches.

The depositions reveal that both men were in their early twenties. Berg stood six feet, four inches tall, and weighed about 265 pounds. Fall weighed 165 pounds and was five feet, ten inches tall.

Although the trial court concluded that whether Fall acted in self-defense was immaterial, it also apparently found that Fall did not act in self-defense. The record, however, supports competing inferences as to whether Fall acted in self-defense. While the characterization of the facts outlined above supports the trial court's finding, we can just as reasonably reach the opposite conclusion given Fall's version.

According to Fall, Berg taunted and shoved him on the way to the store. He claims that Berg threw him against the store's outside wall and pinned him there, tearing his jacket and making threatening, unintelligible noises. Fall claims that he pushed Berg away, removed his torn jacket because it was impeding his efforts to defend himself, then after Berg swung at him, struck Berg in the face with his fist. Fall testified that he was certain that Berg would have followed him had he fled inside the store. His only alternative, he stated, would have been to crouch down and absorb whatever punishment he feared Berg would inflict.

The trial court rejected Fall's version. We review the same written evidence placed before the trial court. We would accord special deference to a finder of fact that observed the testimony and demeanor of witnesses. Such, however, was not the trial court's role in rendering its summary judgment. While the jury will be free to draw its own conclusions based on evidence presented at trial, we find nothing in the depositions to indicate that Berg's version is inherently more credible than Fall's. Accordingly, we conclude that the facts could also reasonably support a finding that the allegedly cornered Fall, six inches shorter and 100 pounds lighter than his claimed assailant, had been acting in self-defense when he struck Berg.

The remaining issue is simply stated: Does State Farm's exclusion apply to liability for bodily injury caused by a privileged act of self-defense? State Farm argues that because Fall intended to strike Berg, he intended the ensuing bodily injury regardless of his primary motivation. Fall argues, however, that he did not act intending to cause bodily injury but, rather, acted intending only to prevent injury to himself. Under this argument, any bodily injury to Berg was incidental to Fall's act of self-defense. We conclude that a privileged act of self-defense is not excluded from coverage by State Farm's policy language.

The construction of an insurance policy is a question of law. Accordingly, we owe no special deference to the trial court's conclusions regarding coverage. Hartland Cicero Mut. Ins. Co. v. Elmer, 122 Wis.2d 481, 484, 363 N.W.2d 252, 253-54 (Ct.App.1984). We may not bind the insurer to an unbargained for risk by construing a clear policy beyond its plain meaning. See Olguin v. Allstate Ins. Co., 71 Wis.2d 160, 165, 237 N.W.2d 694, 697 (1976). However, an ambiguous policy must be construed against the insurer. Id. at 164, 237 N.W.2d at 696. Exclusion clauses especially are strictly construed against the insurer if they are of uncertain import. Meiser v. Aetna Cas. and Sur. Co., 8 Wis.2d 233, 238, 98 N.W.2d 919, 922 (1959).

State Farm's policy, excluding liability coverage for "bodily injury expected or intended by the insured," is not clear as to whether it covers bodily injury caused by privileged acts of self-defense. The test of an ambiguous term's meaning is not what...