Celina Mut. Ins. Co. v. Forister, 4-1181A173

CourtCourt of Appeals of Indiana
Citation438 N.E.2d 1007
Docket NumberNo. 4-1181A173,4-1181A173
PartiesCELINA MUTUAL INSURANCE COMPANY, Appellant (Defendant Below), v. Shirley D. FORISTER, Appellee (Plaintiff Below).
Decision Date11 August 1982

Page 1007

438 N.E.2d 1007
Shirley D. FORISTER, Appellee (Plaintiff Below).
No. 4-1181A173.
Court of Appeals of Indiana,
Fourth District.
Aug. 11, 1982.

Page 1008

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.


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

Page 1009

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."

The exclusion section of the policy provided:

"[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.


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...

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