Cameron Mutual Insurance v. Moll

• Decision Date: 10 July 2001
• Citation: Cameron Mutual Insurance v. Moll, 50 S.W.3d 329 (Mo. App. 2001)
• Parties: (Mo.App. S.D. 2001) Cameron Mutual Insurance Co., Plaintiff/Respondent v. Larry Moll and Sharon Moll, Defendants/Appellants. ED78245 0
• Court: Missouri Court of Appeals

50 S.W.3d 329 (Mo.App. S.D. 2001)

Cameron Mutual Insurance Co., Plaintiff/Respondent v. Larry Moll and Sharon Moll, Defendants/Appellants.

ED78245

Missouri Court of Appeals Eastern District

07/10/2001

Appeal From: Circuit Court of Perry County, Hon. John W. Grimm

Counsel for Appellant: Albert C. Lowes and David J. Roth II

Counsel for Respondent: David M. Remley

Opinion Summary: Larry and Sharon Moll appeal a declaratory judgment in favor of Cameron Mutual Insurance Company. The court found Cameron was under no duty to defend or indemnify either Mr. or Mrs. Moll because Mr. Moll's actions were intentional and therefore did not constitute an "occurrence" as defined in the insurance policy.

Southern Division holds: (1) There was substantial evidence to support the court's finding that Mr. Moll's conduct was intentional and that he expected or intended his actions would lead to injury. Therefore, Mr. Moll's conduct did not constitute an "occurrence" under the insurance policy, and Cameron owes no duty to defend or indemnify Mr. Moll.

(2) There was not substantial evidence that Mrs. Moll expected or intended any harm to result from her actions. Accordingly, Cameron is under a duty to defend and indemnify Mrs. Moll.

Dowd, P.J. and Russell, J. concur.

Richard B. Teitelman, Judge

Cameron Mutual Insurance Company ("Cameron") brought a declaratory judgment action, seeking a determination of whether the conduct of its insureds, Larry and Sharon Moll, was covered by the Molls' farm insurance policy. At issue in the declaratory judgment action was whether the conduct of Mr. and/or Mrs. Moll constituted an "occurrence" as defined in the insurance policy. The trial court entered judgment for Cameron, concluding that because Mr. Moll's conduct was intentional, it did not constitute an "occurrence" and that Cameron therefore had no duty to defend or indemnify Mr. or Mrs. Moll. It is from this judgment that the Molls appeal. For the reasons set forth below, we affirm in part, and reverse in part.

FACTS

On July 9, 1996 Larry Moll arrived home from work and saw two 14-year-old boys fishing off the dock in his pond. Angry at seeing trespassers on his property, Mr. Moll went to his house, grabbed a shotgun and went down to the pond. Upon arrival, he fired one shot into the pond to get the boys' attention. He then went to the dock to confront the boys and to "teach them a lesson." Believing that he did not have the boys' "undivided attention," Mr. Moll struck one of the boys on the head with the shotgun and grabbed the other by the neck with his left hand.

One of the boys was carrying a large sheath knife. Mr. Moll took the knife away and threw it into the pond. Subsequently, Mr. Moll instructed the boys to remove their clothes. When they protested, Mr. Moll asked them if they really wanted to argue with someone with a gun. The boys took off all of their clothes and threw them in the pond. No additional weapons were found. Mr. Moll escorted the boys to his home, had them sit on the gravel in his driveway, went inside his house, and got a video camera. He then asked the boys to identify themselves by name on the videotape.

The Perry County Sheriff's Department was summoned to the Molls' property. The officers arrived, released the boys, and interrogated Mr. Moll. Mr. Moll eventually pleaded guilty to misdemeanor assault charges relating to his battery of the two boys.

Cameron filed its petition for declaratory judgment, naming both Mr. and Mrs. Moll, as well as the two boys and their respective custodial parents, as defendants. In its petition, Cameron alleged that because Mr. Moll's conduct fell within the policy's "expected or intended" exclusion, it was not an "occurrence." Therefore, Cameron claimed, it had no contractual or other legal duty to defend or indemnify the Molls against any claim, suit or cause of action brought against them regarding the events of July 9, 1996.

The relevant portion of the policy provides as follows:

Coverage L - Personal Liability: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence...

"Occurrence" means accident, including continuous or repeated exposure to conditions which result in bodily injury or property damage neither expected nor intended from the standpoint of the insured. (emphasis added).

The trial court granted declaratory relief to Cameron, finding that the coverage for both Mr. and Mrs. Moll was excluded under the policy definition of "occurrence."

STANDARD OF REVIEW

When reviewing a declaratory judgment, our standard of review is the same as in any other court tried case. McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo.banc 1996). We are required to sustain the judgment of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). In applying this standard, we review both the law and the evidence of the case, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. Rule 73.01(c)(1) and (2).

POINT I

The Molls' first point on appeal claims that the trial court erred in concluding that coverage under the policy was excluded for Mr. Moll. Mr. Moll contends there was no showing that he intended his conduct to injure the boys and that his conduct therefore constitutes an "occurrence" entitling him to coverage.

Missouri law provides that coverage is barred by the "expected and intended" language if it is shown that (1) the insured intended the acts causing the injury, and (2) injury was expected or intended from these acts. American Family Mut. Ins. v. Pacchetti, 808 S.W.2d 369, 371 (Mo.banc 1991). The burden is on the insurer to establish that the exclusion bars coverage. Id. at 370, citing, Farmers and Merchants Ins. Co. v. Cologna, 736 S.W.2d 559, 562 (Mo.App.S.D. 1987).

Whether Mr. Moll's conduct was intentional is not disputed. The issue is whether Mr. Moll expected or intended to cause the boys' injuries.¹ Mr. Moll contends that the only direct evidence of his intent is his testimony that he intended to "teach the children a lesson" to protect them from hazards on the farm. He maintains that the possibility of psychological and physical injury did not even cross his mind.

In the context of exclusion clauses such as this one, where an insured claims there was a benign intent behind a harmful act, Missouri courts have employed two different tests to assess the intent of the insured. American Family Mutual Ins. v. Franz, 980 S.W.2d 56, 58 (Mo.App.W.D. 1998). Under the "subjective" test, the coverage is excluded based upon the insured's own actual subjective intent to cause harm. Id. Conversely, under the "objective" test, coverage is excluded if it is determined that a hypothetical reasonable person would have foreseen harm from his or her acts. Id.

It is not clear from the record whether the trial judge applied a subjective or objective standard in determining that the boys' injuries were expected or intended. Whether a subjective or objective approach was used, however, makes little practical difference. Franz, 980 S.W.2d at 58. Even when the subjective approach is used, an insured's subjective intent to cause injury can still be inferred from the nature and circumstances of the insured's intentional acts, especially when an intentional act results in injuries which are the natural and probable consequence of such an act. Id. This is because courts are reluctant to accept the insured's own testimony as conclusive on the question of intent Id. Thus, "an admission of specific intent is not the only way to...