Commercial Union Ins. Co. v. Mauldin, 8218SC752

• Decision Date: 07 June 1983
• Docket Number: No. 8218SC752,8218SC752
• Citation: 303 S.E.2d 214,62 N.C.App. 461
• Parties: COMMERCIAL UNION INSURANCE COMPANY v. Sanford Lee MAULDIN, Collector of the Estate of Kay Mauldin Pugh, Deceased, Tommy Joe Wilmoth and Brenda S. Wilmoth.
• Court: North Carolina Court of Appeals

Page 214

303 S.E.2d 214

62 N.C.App. 461

COMMERCIAL UNION INSURANCE COMPANY v. Sanford Lee MAULDIN, Collector of the Estate of Kay Mauldin

Pugh, Deceased, Tommy Joe Wilmoth and Brenda S. Wilmoth.

No. 8218SC752.

Court of Appeals of North Carolina.

June 7, 1983.

Smith, Moore, Smith, Schell and Hunter by Bynum M. Hunter and Alan W. Duncan, Greensboro, for plaintiff-appellee.

Nichols, Caffrey, Hill, Evans and Murrelle by G. Marlin Evans and R. Thompson Wright, Greensboro, for defendant-appellant.

VAUGHN, Chief Judge.

The sole issue is whether the trial court erred in finding that Wilmoth was not covered by the homeowner's policy for the claims asserted by Sanford Lee Mauldin. An insurance policy is a contract between the parties and is to be construed and enforced in accordance with its terms. Allstate Insurance Co. v. Shelby Mutual Insurance Co., 269 N.C. 341, 152 S.E.2d 436 (1967). "[I]f the meaning of the policy is clear and only one reasonable interpretation exists, the courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein." Woods v. Nationwide Mutual Insurance Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978). There is no ambiguity in the sentence "[This policy does not apply] to bodily injury or property damage which is either expected or intended from the standpoint of the insured." The sentence obviously means that the policy is excluding from coverage bodily injury caused by the insured's intentional acts, determining whether the act is intentional from the insured's point of view.

A similar clause in an insurance policy was interpreted by the Fourth Circuit in Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir.1962). In Stout, the policy stated: "This coverage does not apply: (c) to injury, sickness, disease, death or destruction caused intentionally by the or at the direction of the insured." The insured had shot and killed a "peeping Tom" who was looking into his daughter's window. He was indicted for murder and pled guilty to voluntary manslaughter. Subsequently, the administratrix of the deceased's estate brought a wrongful death action against the insured. The insurer refused to defend the suit on the grounds that the death was intentionally inflicted and thus not covered by the policy. The Fourth Circuit agreed, holding that the insured's acts took him outside the coverage of the policy because the insured admitted he intentionally caused decedent's death when he pled guilty to voluntary manslaughter.

In this case, Wilmoth stipulated that he intended to shoot his wife but not Pugh. He pled guilty to second degree murder of Pugh. As in Stout, Wilmoth's guilty plea to second degree murder removed him from coverage under the policy. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Rogers, 299 N.C. 597, 264 S.E.2d 89 (1980). In discussing the element of intent in second degree murder, our Supreme Court said:

While an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death. [citations omitted] ... [A]ny act evidencing "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and...