Connecticut Indem. Co. v. Nestor
| Decision Date | 25 October 1966 |
| Docket Number | No. 160,No. 2,160,2 |
| Citation | 4 Mich.App. 578,145 N.W.2d 399 |
| Parties | The CONNECTICUT INDEMNITY COMPANY, a foreign corporation, Subrogee of John H. Orem and Jeanne Goe Orem, Plaintiff-Appellee, v. Bernard S. NESTOR, Hope Nestor and Brad Nestor, Jointly and Severally, Defendants, and Union Mutual Insurance Company of Providence, Garnishee Defendant and Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
David C. Hertler, Bell & Hertler, Pontiac, for appellant.
Robert M. Petteys, Bogues, O'Donnell & Petteys, Huntington Woods, for appellee.
Lawrence D. Silverman, Detroit, for the Nestors, defendants.
Before LESINSKI, C.J., and KAVANAGH and QUINN, JJ.
On August 14, 1962, John Orem and his wife Jeanne, owned a residence in Hazel Park, Michigan which was insured against fire by the plaintiff, The Connecticut Indemnity Company. On that date Brad Nestor, a minor of 8 1/2 years, set fire to the Orem residence causing damage in the amount of $6,851.91. The Orems made a claim against the plaintiff for their damage and were paid the amount.
Plaintiff brought this action as subrogee against the defendants Brad Nestor, his father, Bernard, and his mother, Hope Nestor, for the damages.
At the trial before a jury the defendant minor, Brad Nestor, testified that he started the fire to frighten the Orem children and Mrs. Orem because he was angry with them, but that he did not intend to burn the residence.
The defendants called no witnesses to rebut this testimony and both sides rested. The trial court granted the motion of defendants Bernard S. and Hope Nestor, and directed a verdict of no liability as to them, but granted plaintiff's motion for a directed verdict against defendant Brad Nestor.
After the entry of judgment on this verdict, plaintiff charged Union Mutual Insurance Company of Providence as garnishee defendant under its policy of insurance indemnifying the insured against liability under the following provision:
The garnishee defendant maintained that under the exclusionary language of the policy which read in part as follows: 'under coverages E and F to bodily injury or property damage caused intentionally by or at the direction of the insured,' it had no liability for the acts complained of against Brad Nestor.
From the trial judge's ruling granting judgment for plaintiff against the garnishee defendant following a hearing this appeal is taken asserting as error the court's conclusion that the exclusionary language did not avoid coverage.
Although this case reaches us in the posture of an appeal from what purports to be a summary judgment, examination of the record convinces us that the judgment was not summary. The trial court had before it the transcript of the testimony of Brad Nestor at the jury trial as well as the deposition he had given before it. Counsel for both parties were...
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