Chacon v. American Family Mut. Ins. Co.

• Decision Date: 05 March 1990
• Docket Number: No. 88SC330,88SC330
• Citation: 788 P.2d 748
• Parties: Reyes CHACON, Sarah T. Chacon, and Nicholas Chacon, through his next friend, Reyes Chacon, Petitioners, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, licensed to do business in the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 748

788 P.2d 748

Reyes CHACON, Sarah T. Chacon, and Nicholas Chacon, through his next friend, Reyes Chacon, Petitioners, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, licensed to do business in the State of Colorado, Respondent.

No. 88SC330.

Supreme Court of Colorado En Banc.

March 5, 1990.

Rehearing Denied April 2, 1990.

William E. Myrick, P.C., Stephen P. Doyle and Robert A. Starrett, Denver, for petitioners.

Dickinson, Everstine, Kelly & Prud'Homme, Gilbert A. Dickinson and Teresa M. Garcia, Denver, for respondent.

Justice ROVIRA delivered the Opinion of the Court.

The petitioners, Reyes and Sarah Chacon, challenge the court of appeals decision affirming the trial court's grant of summary judgment in favor of the respondent, American Family Mutual Insurance Company (American Family). We granted certiorari to consider whether a homeowner's policy, which contains a severability clause, may exclude coverage to an insured, based upon the actions of a co-insured. The court of appeals held that, pursuant to the policy's "intentional act" exclusion, the intentional act of any insured precluded recovery by all insureds. Chacon v. American Family Mutual Ins. Co., 762 P.2d 732 (Colo.App.1988). We affirm.

I

This case arose as the result of the vandalism of an elementary school by the Chacons' 10-year-old son, Nicholas Chacon, and another boy, which caused damages in excess of $6,000. The school district's insurer reimbursed the school district for the damages incurred. It then filed suit against the Chacons pursuant to section 13-21-107(1), 6A C.R.S. (1987), which allows a school district to recover damages in an amount not to exceed $3,500 from the parents of a minor under the age of eighteen, living with such parents, who willfully damages property belonging to the district. A default judgment was entered against the Chacons for $3,492.21 plus costs and interest.

Prior to commencement of the suit by the school district's carrier, the Chacons filed a loss claim relating to the damages caused by their son's vandalism under their homeowner's policy which was then in effect with American Family. Coverage was denied based upon the policy's "intentional act" exclusion. The Chacons then brought suit against American Family for breach of a contractual duty to defend, settle, or indemnify.

Cross-motions for summary judgment were filed by the parties. The trial court found that the Chacons could recover $250 under a supplemental provision in the policy, ¹ but were barred by the intentional act exclusion of the policy from recovering under the general liability provisions of the policy. The court of appeals affirmed the holding of the trial court.

It is undisputed that the Chacons are the named insureds under this policy, while their son qualifies as an additional insured. The policy defines insured to mean "you and your relatives if residents of your household. It also means any other person under the age of 21 in your care or in the care of your resident relatives." It provides that "each person described above is a separate insured under this policy." The policy also contains a severability provision which states that "this insurance applies separately to each insured. This condition will not increase our limit of liability for any one occurrence."

It is undisputed that the liability incurred by the Chacons resulting from the actions of their son is within the scope of coverage provided by the policy, which states that the insurer "will pay, up to our limit of liability, all sums for which any insured is legally liable because of bodily injury or property damage covered by this policy." American Family, however, contends that recovery by the Chacons, under the general liability provisions of the policy, is precluded by an "intentional act" exclusion in the policy which provides that personal liability coverage does "not apply to bodily injury or property damage ... which is expected or intended by any insured."

American Family argues that this exclusion clearly and unambiguously excludes coverage to all insureds when any individual insured causes property damage which is "expected or intended." It asserts that the focus of the exclusion is damage. Therefore, when damage is intentionally caused by any insured, recovery by all insureds is precluded.

The Chacons, however, argue that American Family's interpretation of the insurance policy fails to give effect to the severability provision contained in the contract. They conclude that the severability clause creates separate insured status for each insured, which requires that the exclusion be applied independently to each insured. Under this approach, "any insured" describes who, among the individual insureds, will be excluded for their own intentional act. They argue that the policy is, at a minimum, reasonably susceptible to either interpretation, requiring that it be construed to provide coverage to the insured.

II

An insurance policy is a contract which should be interpreted consistently with the well settled principles of contractual interpretation. See, e.g., Republic Ins. Co. v. Jernigan, 753 P.2d 229 (Colo.1988); Commercial Union Ins. Co. v. State Farm Fire & Casualty Co., 546 F.Supp. 543 (D.Colo.1982). This approach acknowledges that:

[A]n insurance contract is a mutual agreement, ratified by the insured by his acceptance, both parties are bound by its provisions, unless waived or annulled for lawful reasons. In the absence of statutory inhibition, an insurer may impose any terms and conditions consistent with public policy which it may see fit.

12 Appleman, Insurance Law and Practice § 7004, at 37-39 (rev. ed. 1981) (footnotes omitted). In applying these principles, words should be given their plain and ordinary meaning unless the intent of the parties, as expressed in the contract, indicates that an alternative interpretation is intended. Where a contractual provision is clear and unambiguous the court should not rewrite it to arrive at a strained construction. Jernigan, 753 P.2d at 232. However, when a contractual provision is reasonably susceptible to different meanings it must be construed against the drafter and in favor of providing coverage to the insured. Id.; see also Commercial Union Ins. Co. v. State Farm Fire & Casualty Co., 546 F.Supp. 543 (D.Colo.1982); Coxen v. Western Empire Life Ins. Co., 168 Colo. 444, 452 P.2d 16 (1969).

In Republic Insurance Co. v. Jernigan, 753 P.2d 229 (Colo.1988), we considered an insurance policy which contained a severability clause identical to the one presented here, and concluded that this provision made the rights of the insured several. As such, recovery by an innocent insured was not precluded by the intentional act of a co-insured. Jernigan, however, does not preclude the denial of coverage to an innocent insured, where the policy explicitly provides for such a result. ² Thus, we must determine whether the exclusionary provision at issue here clearly and unambiguously denies coverage.

Initially, the "intentional act" exclusion contained in the Chacons' homeowner's policy referring to the actions of "any insured," must be distinguished from those policies which refer to the actions of "the insured." ³ The majority of courts which have considered this issue have held that "unlike the phrase 'the insured,' the phrase 'any insured' unambiguously expresses a contractual intent to create joint obligations and to prohibit recovery by an innocent co-insured." Sales v. State Farm Fire & Casualty Co., 849 F.2d 1383, 1385 (11th Cir.1988) (citations omitted).

For example, in Spezialetti v. Pacific Employers Insurance Co., 759 F.2d 1139 (3 Cir.1985), the court held that the arson of a co-insured barred recovery by an innocent spouse because of an exclusionary provision in the policy which provided that "insurance shall not apply to loss or damage [resulting from] any dishonest act or omission by any insured...." Id. at 1140. The plaintiff argued that the provision did not clearly indicate who was excluded from coverage. The court, however, concluded that the innocent co-insured was trying to:

[A]void a clear application of the clause here by conjuring up ambiguities.... A court should read policy provisions to avoid ambiguities if possible and should not torture the language to create them. We have no difficulty in determining that in this case "any insured" means one covered by the policy....

Id. at 1142.

Similarly, in McCauley Enterprises v. New Hampshire Insurance Co., 716 F.Supp. 718 (D.Conn.1989), the court considered a policy which contained both a severability clause ⁴ and an exclusionary provision, which applied to the actions of "any insured." The court denied recovery to the innocent co-insured, noting that "the language 'any insured' has been consistently interpreted as expressing a contractual intent to create joint obligations and to prohibit recovery by an innocent co-insured." Id. at 721. See also Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App.1983) (innocent co-insured denied recovery pursuant to an intentional act exclusion applicable to acts committed by "an insured," which unambiguously excluded coverage as to all insureds); State Farm Fire & Casualty Co. v. Wolford, 116 A.D.2d 1011, 498 N.Y.S.2d 631 (1986) (recovery precluded as to all insureds by "any insured" exclusionary language).

Some courts which have considered similar exclusionary provisions, however, have held that they did not preclude recovery by an innocent insured. For example, in Worcester Mutual Insurance Co. v. Marnell, 398 Mass. 240, 496 N.E.2d 158 (1986), the parents, named insureds, were sued by a third party for damages caused by their son, an unnamed insured, in an automobile accident. The automobile exclusion, contained in their homeowner's policy, provided that coverage did not apply to bodily injury or property damage "arising out of the ownership, maintenance, use,...