Butler v. Behaeghe
| Decision Date | 08 January 1976 |
| Docket Number | No. 75--207,75--207 |
| Parties | Roland E. BUTLER, II, Plaintiff-Appellant, v. A. J. BEHAEGHE, Defendant and Third-Party Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Third-Party Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Bruno, Bruno & Bruno, Frank A. Bruno, David J. Bruno, Denver, for plaintiff-appellant.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for third-party defendant-appellee.
Plaintiff-appellant, Roland E. Butler II, appeals from the dismissal of a consolidated action on a writ of garnishment and a third-party complaint against third-party defendant-appellee, Safeco Insurance Company of America (Safeco). We affirm.
The garnishment action was filed pursuant to C.R.C.P. 103 in an attempt by plaintiff to obtain satisfaction on a judgment entered upon a jury verdict against A. J. Behaeghe in a civil suit for assault and battery. Behaeghe, at the time of the assault, was the insured under a homeowner's policy issued by Safeco covering his 'private residence' and affording comprehensive personal liability insurance on the use of the home. The policy obligated the company to pay on behalf of the insured 'all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . To which this insurance applies, caused by an occurrence.' (emphasis supplied) 'Occurrence' is defined in the policy to be 'an accident, including exposure to conditions . . . which results in bodily injury . . .' The policy further provided that it was the Duty of the company to defend 'any suit against the insured seeking damages on account of such bodily injury'; however, Safeco reserved the right to make an investigation of the occurrence and to settle any claim or suit as it deemed expedient. Also contained within the policy was an exclusionary clause which stated in pertinent part:
'This policy does not apply to bodily injury . . . Which is either expected or intended from the standpoint of the insured.' (emphasis supplied)
Behaeghe's third-party complaint against Safeco was premised on the company's refusal to defend Behaeghe in the civil suit or settle the claim.
Thus, the single issue dispositive of all claims against Safeco is whether the bodily injury suffered by plaintiff as a result of the acts of the insured, Behaeghe, is properly excluded from coverage under the policy. In the language of the exclusion: Was the bodily injury resulting from Behaeghe's assault on plaintiff 'either expected or intended' from Behaeghe's standpoint?
The circumstances of the assault are as follows: Plaintiff Butler and defendant Behaeghe, on July 3, 1972, were neighbors, living across the street from each other. Both had teenage sons. On that evening, plaintiff's son and several neighborhood youngsters were setting off 'fireworks,' some of which landed on the lawn of defendant's property. Defendant's son objected to the situation and a violent argument developed which eventuated in a fistfight between the two boys on the driveway of defendant's property. In response to the commotion, plaintiff proceeded across the street to defendant's property in order to disengage the combatants. Defendant insisted that the fight be permitted to continue and ordered plaintiff to leave the property. Plaintiff refused, whereupon defendant procured a length of steel pipe, again ordered plaintiff to, 'Get off my property,' and then struck plaintiff a single blow to the head. As a result of that blow, plaintiff suffered a fractured skull and permanent impairment of his eyesight.
Plaintiff thereafter filed suit alleging in his pleadings that defendant did 'without provocation, wrongfully, unlawfully, wilfully, maliciously, and Intentionally assault, beat, batter, bruise and otherwise attack him' (emphasis supplied) with his 'hand, fists, and a section of metal pipe.' He further alleged that defendant 'was guilty of malice and insult in total disregard of plaintiff's rights and feelings,' contrary to and in violation of C.R.S. 1963, 41--2--2 (now § 13--21--102, C.R.S. 1973), and therefore prayed for an award of exemplary damages in the amount of $3500. Defendant Behaeghe filed a third-party complaint against Safeco alleging that he had served a proper notice upon the company in accordance with the terms of the policy, but that Safeco refused to defend him. In answer thereto, Safeco alleged as an affirmative defense that:
'The policy of insurance issued by the third-party Defendant to A. J. Behaeghe Does not afford protection against a judgment for damages as set forth in the allegations of the plaintiff's complaint.' (emphasis supplied)
The third-party complaint was severed prior to the trial on the assault and battery claim. At trial, defendant claimed that he struck the plaintiff in a reasonable exercise of his privilege of self-defense and in an effort to defend and protect his property from trespassers. Instructions to that effect were given to the jury as well as an instruction that defendant was not liable to plaintiff if he honestly and reasonably believed that he had to use force to defend his person and providing he employed no more force than a reasonably prudent person would have under the same or similar circumstances. Additional instructions were given relating to the circumstances in which use of deadly force is permissible and in which force may be used to defend real property. Appropriate instructions on exemplary damages were given. An instruction, tendered by defendant, suggesting a theory that he had acted negligently in the use of excessive force was refused by the court as unsupported by the evidence.
The jury found in favor of plaintiff and assessed his actual damages at $167,150 to which they added an award of exemplary damages in the sum of $10,000 ($6,500 in excess of the sum prayed for in the pleadings). Defendant failed to perfect a timely appeal from the judgment entered; consequently, that judgment is final as to defendant.
Subsequently, plaintiff filed his writ of garnishment and a copy was served on third-party defendant-garnishee Safeco. Safeco answered the writ denying any obligation to Behaeghe and plaintiff traversed the answer.
In its determination of the issues raised by the writ of garnishment and the third-party complaint, the court took judicial notice of the record in the assault trial and determined that: (1) Defendant intended to strike plaintiff in the abdomen with a piece of steel pipe, that the plaintiff 'ducked,' and the blow struck him on the head, causing serious injury; (2) no facts or circumstances were present which would have led the defendant to a reasonable belief that the blow was necessary to defend either himself or a member of his family; (3) the assertion of an affirmative defense in the answer to the third-party complaint, while not specifically mentioning the exclusionary clause, is sufficient to bring the issue before the court; (4) 'injury is either expected or intended from the standpoint of the insured,' within the meaning of this policy of insurance, when the insured acts with specific intent to cause some harm to the person injured, whether the actual injury inflicted is of the same type and degree as that intended or not; and (5) where, as here, defendant's actions were intentional and of such a nature that they were intended to cause harm to the plaintiff, the defendant will be held to have intended the natural and probable consequences thereof, including any and all injuries suffered by the plaintiff. The court therefore determined that Safeco could properly conclude that it had no duty to defend Behaeghe in the assault action and that accordingly, since plaintiff's injuries were excluded from coverage under the policy of insurance, both the third-party complaint and the writ of garnishment must be dismissed.
As his initial ground of error, plaintiff contends...
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