Continental Western Ins. Co. v. Toal

Decision Date18 June 1976
Docket NumberNos. 45813,45833,s. 45813
Citation309 Minn. 169,244 N.W.2d 121
PartiesCONTINENTAL WESTERN INSURANCE COMPANY, Respondent, v. Darryl TOAL, a.k.a. Tony Johnson, et al., Appellants, Beatrice E. Erickson, Individually and as Trustee for the Heirs and Next of Kin of Daniel Paul Erickson, Deceased, Appellant, and TRAVELERS INSURANCE COMPANY, Respondent, v. James Edwin ROSS, Appellant, Beatrice E. Erickson, Individually and as Trustee for the Heirs and Next of Kin of Daniel Paul Erickson, Deceased, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

1. A jury instruction that 'it is the law that one is charged with intending the natural and probable consequences of his willful acts and with expecting the foreseeable results of such acts' is improper when interpreting a liability insurance policy which excludes from coverage bodily injury 'expected or intended from the standpoint of the insured.'

2. Where facts show that the insureds intentionally prepared themselves to inflict serious injury in order to facilitate an armed robbery, and a killing occurs in the course of that robbery, an intent to injure may be inferred as a matter of law.

MacIntosh, Commers & Rex Lawrence Commers and Bruce P. Barten, Minneapolis, for Toal.

Donald H. Nichols, Minneapolis, for Ross.

Cragg & Bailly and Robert S. Cragg, Minneapolis, for Erickson.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II, and Thomas L. Adams, Minneapolis, for Cont. Western.

Richards, Montgomery, Cobb & Bassford and Lynn G. Truesdell III, Minneapolis, for Travelers Ins. Co.

Heard before SHERAN, C.J., OTIS, KELLY, MacLAUGHLIN, and BREUNIG, JJ., and considered and decided by the court en banc.

MacLAUGHLIN, Justice.

These are declaratory judgment actions by respondents, Continental Western Insurance Company and Travelers Insurance Company, seeking a determination of no insurance coverage for a killing which occurred during the course of an armed robbery by their insureds. A jury returned a special verdict finding that the killing was 'expected or intended from the standpoint of (the insureds)' who were willing participants in the armed robbery. The trial court ordered declaratory judgment in favor of the insurance companies. We affirm.

On August 6, 1972, a group of individuals attempted an armed robbery of the Stardust Lanes bowling alley in Minneapolis. The participants included James Edwin Ross, Darryl Toal (also known as Tony Johnson), Noah Lindsey, Wade Russell, Isaac Russell, Tommy Russell, and Renee Huggar. Ross was the 'chief planner' of the armed robbery. Ross talked Toal into joining in the robbery because Toal was 'good as a pistol man' and had previously participated in other armed robberies. Ross diagramed the layout of the bowling alley for Toal and explained to Toal that his assignment was to go in and get the money and come out. When Toal expressed concern about his safety, Ross said he would provide Toal with a gun. Subsequently, Ross gave him a .38-caliber handgun, loaded it, and told Toal 'all you got to do is pull the trigger.' Toal was taken to a firing range to 'check * * * his accuracy' with a gun. Ross also supplied Isaac Russell, another participant in the robbery, with a loaded .38-caliber pistol.

It is clear from the testimony that while Ross and Toal did not specifically intend to shoot anyone during the robbery, they did intend to threaten people with the guns and to use them if it became necessary to accomplish the robbery. Ross knew that at least four of the participants were carrying guns. He claimed that it never entered his mind that anyone would be shot, although he admitted that it was no 'great surprise' or 'shock' when the robbers discovered that someone had been shot. Toal conceded that before the robbery he was afraid somebody might get hurt or killed.

During the robbery, Toal entered the bowling alley, went to the counter, and pulled his gun. He pointed his loaded .38-caliber pistol at the employee behind the counter, Mr. Daniel Erickson, saying, 'This is a stickup.' When Erickson responded, 'This must be a joke of some kind,' Toal struck him in the head with the butt of the gun, causing the gun to discharge. Erickson stumbled, but had not been hit by the bullet. As Toal reached the cash register, he heard two more shots. He turned around to see Wade Russell leaning over the counter and Erickson lying on the floor. Wade Russell had apparently shot Erickson twice in the back with a .22-caliber pistol. After the shooting Toal and Russell ran out of the bowling alley without the money. Toal ran down an alley to a location where Ross was waiting in a car with the motor running.

Erickson died as a result of his gunshot wounds. His widow brought a wrongful death action against the participants in the robbery on the theory that they were all engaged in a joint venture. It was ascertained that Ross was a named insured under a $50,000 policy of homeowners insurance with Travelers Insurance Company, and that Toal was insured under a $25,000 homeowners policy with Continental Western Insurance Company. Anticipating a claim under these policies, the liability insurers for Ross and Toal brought this declaratory judgment action seeking a determination of no coverage on the ground that the injury was 'expected or intended' and, therefore, excluded from coverage. The matter was tried in district court before a jury. At the close of trial the court instructed the jury, over the objection of appellants, as follows:

'* * * (I)t is the law that one is charged with intending the natural and probable consequences of his willful acts and with expecting the foreseeable results of such acts.

'There is a distinction between intending an act and intending a result, and the fact that something happened does not necessarily mean it was the natural and probable consequences of that act.

'In determining the foreseeability of the result, you jurors should weigh all of the facts and circumstances concerning this matter that have been received into evidence during the trial. You are advised that foreseeability means something more than a possibility, something less than a certainty.'

The jury returned a special verdict finding that the injury was 'expected or intended,' and the trial court ordered declaratory judgments in favor of the insurance companies. Motions for judgment notwithstanding the verdict, for an amended order for declaratory judgment, or for a new trial in each action were denied. These appeals followed.

The issues raised are: (1) Whether the trial court's instruction that 'it is the law that one is charged with intending the natural and probable consequences of his willful acts and with expecting the foreseeable results of such acts' is proper and correct when interpreting liability insurance policy clauses which excluded from coverage bodily injury 'expected or intended from the standpoint of the insured'; and (2) whether on the facts of this case, the court may infer an intent to injure as a matter of law.

The insurance policy covering Ross provides:

'The Travelers will 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 section applies, caused by an occurrence. * * *

"occurrence' means an accident including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage Neither expected nor intended from the standpoint of the Insured.' (Italics supplied.)

The insurance policy covering Toal provides:

'This policy does not apply to bodily injury or property damage which is either Expected or intended from the standpoint of the insured.' (Italics supplied.)

The insurers contend that the killing of Mr. Erickson was 'expected or intended' by the insureds since they clearly intended to commit the armed robbery and the killing was a direct result of that robbery. Appellants counter that, in order for these exclusions to apply, the insurers must show that the insureds specifically intended Erickson's injury, and that merely showing that the act which caused the jury was intentional is insufficient to exclude coverage under the policy.

The trial court broadly interpreted the exclusion and instructed the jury to the effect that if the insured intends an act he also intends the natural and probable consequences of that act. Under the trial court's interpretation of the clause, it is immaterial whether the insured actually intended the injury so long as the injury is a natural and probable consequence of an intentional act. After careful consideration, we have concluded that the trial court was incorrect in its interpretation. In Caspersen v. Webber, 298 Minn. 93, 98, 213 N.W.2d 327, 330 (1973), we held that an insurance policy's intentional injury exclusion--

'* * * does not relieve the insurer of liability unless the insured has acted with intent to cause a bodily injury. When the act itself is intended but the resulting injury is not, the insurance exclusion has no application.' 1

In Caspersen, the insured had pushed a hatcheck girl out of his way, causing her to lose her balance. She fell against a rack attached to the wall and was injured. Her injuries were the natural and probable consequence of the insured's intentional act and, accordingly, the insured was found liable for the intentional tort of assault and battery. We held that the assault and battery did not come within the intentional injury exclusion clause in the defendant's insurance policy because the insured's conduct did 'not indicate an intention to cause bodily injury to plaintiff although he did intend the act which caused her injuries.' (298 Minn. 99, 213 N.W.2d 330).

Our holding in Caspersen which recognized a distinction between...

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