Celina Mut. Ins. Co. v. Forister

• Decision Date: 11 August 1982
• Docket Number: No. 4-1181A173,4-1181A173
• Citation: 438 N.E.2d 1007
• Parties: CELINA MUTUAL INSURANCE COMPANY, Appellant (Defendant Below), v. Shirley D. FORISTER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1007

438 N.E.2d 1007

CELINA MUTUAL INSURANCE COMPANY, Appellant (Defendant Below), v. Shirley D. FORISTER, Appellee (Plaintiff Below).

No. 4-1181A173.

Court of Appeals of Indiana,

Fourth District.

Aug. 11, 1982.

John T. Lorenz, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellant.

Patrick W. Harrison, Cline, King, Beck, Harrison & Runnels, Columbus, for appellee.

MILLER, Judge.

Appellant-defendant Celina Mutual Insurance Company (Celina) is appealing an adverse summary judgment rendered in favor of appellee-plaintiff Shirley D. Forister in the amount of $25,000 plus $3,333.33 in prejudgment interest together with costs. The basis for Forister's complaint against Celina is that Celina is liable to her on an unsatisfied judgment which she obtained against her former husband Parker Wells (Wells) in a personal injury action brought to remedy the injuries she received when Wells shot her in their home. At the time of the shooting Wells was covered by a broad form homeowner's policy with Celina.

Celina claims the trial court's summary judgment against it in the present case is erroneous because 1) genuine issues of material fact exist regarding its policy defense that Forister's injuries were "expected or intended" by Wells; and 2) Celina was entitled as a matter of law to refuse to defend Wells in the Forister/Wells suit based upon the policy's exclusion of coverage for injuries expected or intended from the standpoint of the insured, and thus Celina is not precluded from raising the intended injury defense in the present action. Because we find Celina failed in its burden of establishing a genuine issue of material fact regarding its affirmative defense that Wells intentionally inflicted Forister's injuries, we affirm the trial court's judgment and need not address the second issue.

FACTS

The facts are undisputed that on April 26, 1978 Wells injured his wife, Shirley Wells (now Forister) by shooting her in their home. At the time of the incident Wells was insured by Celina under a "Broad Form" homeowner's policy which provided:

"COVERAGE E--PERSONAL LIABILITY. This Company agrees to 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. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient." ¹

The policy section entitled "Coverage F--Medical Payments to Others" obligated Celina

"to pay all reasonable medical expenses, incurred within one year from the date of the accident, to or for each person who sustains bodily injury to which this insurance applies caused by an accident, while The exclusion section of the policy provided:

such person is ... on an insured premises with the permission of any Insured; or ... elsewhere, if such bodily injury ... is caused by the activities of any Insured."

"[t]his policy does not apply ... [u]nder Coverage E--Personal Liability and Coverage F--Medical Payments to Others ... [for a loss due] to bodily injury ... which is either expected or intended from the standpoint of the Insured."

Forister brought the present action against Celina on December 11, 1979 in Bartholomew Superior Court and alleged she had an unsatisfied judgment against Wells, Celina's insured, in the sum of $75,000, which judgment she had received on August 24, 1979 in a personal injury action she had brought against Wells in the Jennings Circuit Court to recover damages for her injuries resulting from the shooting incident. The theory of her present complaint is that the shooting incident was covered under Wells's homeowner policy and consequently Celina is responsible for the unsatisfied judgment against Wells. It is undisputed that Forister's complaint against Wells simply alleged Wells "negligently and carelessly shot and wounded" Forister, and Celina did not defend Wells in the Forister/Wells action. Further, the parties agree that at the time the trial court entered summary judgment in the instant case, Forister had established her judgment against Wells, the existence of the homeowner's policy and that the policy provided facial coverage for her injuries. Celina's theory of defense, as stated in the trial court's pre-trial order, was the policy specifically excluded coverage for bodily injury intentionally inflicted by the insured.

In an affidavit supporting its affirmative defense and in opposition to Forister's summary judgment motion, Celina's trial attorney averred he was "generally familiar with defendant's [Celina's] file in this matter and the various occurrences before, during and after the 1978 shooting," and asserted that the facts established the shooting to have been committed intentionally. The trial judge also conducted a hearing at which he heard testimony from Celina's counsel pertaining to Celina's refusal to defend Wells.

As noted above, the trial judge entered judgment against Celina in the sum of $25,000 (the policy limits) plus prejudgment interest in the amount of $3,333.33 together with costs.

DISCUSSION AND DECISION

At the outset we note the well-settled rule that summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Criss v. Bitzegaio, (1981) Ind., 420 N.E.2d 1221, citing Ind. Rules of Procedure, Trial Rule 56(E); Shideler v. Dwyer, (1981) Ind., 417 N.E.2d 281; Bassett v. Glock, (1977) 174 Ind.App. 439, 368 N.E.2d 18; Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d 785. Moreover, in summary judgment proceedings, as at trial, the burden of establishing the existence of material affirmative defenses is on the defendant. Criss v. Bitzegaio, supra, where the Court concluded "defendants presented no evidence in support of their allegations" that plaintiff's action to obtain an undivided one-third interest in land by virtue of a resulting trust was barred by the statute of limitations, the doctrine of laches, or the statute of frauds. Id. at 1225.

With respect to which party generally carries the burden of proof regarding an exception to an insurance policy, our Supreme Court has stated "[i]f the loss is within a warranty or exception, it is a matter of defence, [sic] which must be pleaded affirmatively by the defendant." Louisville Underwriters v. Durland, (1890) 123 Ind. 544, 547, 24 N.E. 221, 222; e.g., State Farm Life Insurance Co. v. Spidel, (1964) 246 Ind. 458, 202 N.E.2d 886 (the insurer has the burden of proving the affirmative defense of suicide being a risk not covered under a life insurance policy); Red Men's Fraternal Accident Ass'n v. Rippey, (1913) 181 Ind. 454, 103 N.E. 345 (death from a cause excepted from a life insurance policy is a matter which the insurer must plead in its answer and prove at trial). Applying this principle, this Court in Snodgrass v. Baize, (1980) Ind.App., 409 N.E.2d 645 (opinion on rehearing), established the elements and burden of proof in a case where a tort claimant had recovered a judgment against an insured tortfeasor, and then sought to satisfy the judgment in proceedings supplemental through a recovery on the tortfeasor's insurance policy.

"Snodgrass [the judgment holder] established a prima facie case by presenting evidence of his judgment, the insurance policy and facial coverage under the policy, i.e., the policy provided coverage for bodily injury due to an accident caused by the insured. It then became incumbent upon Penn Mutual to go forward with evidence sufficient to create a genuine question of fact. The insurance company introduced evidence that Baize's act was intentional and, thus, not covered by the policy. The trial court, faced with a conflict in the evidence, resolved the conflict in Penn Mutual's favor. On appeal we will not reweigh the evidence."

Id. at 647.

In the present case the record reveals (as Celina conceded at oral argument) that at the time of summary judgment Forister had established her prima facie case--her negligence judgment against Wells, the insurance policy and facial coverage under the policy. It then became incumbent upon Celina to present material sufficient to establish a genuine issue of fact regarding its affirmative defense, that is, Wells's actions were intentional and thus fell within the intentional injury exclusion of the policy.

Here, in ruling on the summary judgment motion the trial court had before it the pleadings, Forister's motion, Celina's affidavit and the testimony of Celina's counsel. Having reviewed these materials we find the only information to show Wells intentionally shot Forister, as contended by Celina both in the trial court and on appeal, is contained in the affidavit by Celina's trial counsel. ² This affidavit as it relates to Wells's intent reads as follows:

"Comes now defendant by its counsel, C. Richard Marshall, and being first duly sworn upon his oath, does say the following in opposition to Plaintiff's Summary Judgment Motion:

1. that he is counsel for defendant and is generally familiar with defendant's file in this matter and the various occurrences before, during and after the 1978 shooting which is the subject of this case;

2. that the shooting of Shirley Wells (now Forister) by her then husband, Parker (Parkey) Wells was accomplished by his using a 6-shot .22 cal. non-automatic revolver which required the trigger to be pulled for each shot; that on April 26, 1978, defendant's insured, Parkey Wells, discharged 5 shots from the weapon and struck plaintiff Forister with 4 of them; that said revolver had no safety on it and apparently contained only 5 shells, the empty cylinder being used as a...