Cooperative Fire Ins. Ass'n of Vermont v. Bizon

• Decision Date: 28 March 1997
• Docket Number: No. 95-214,95-214
• Citation: Cooperative Fire Ins. Ass'n of Vermont v. Bizon, 693 A.2d 722, 166 Vt. 326 (Vt. 1997)
• Parties: COOPERATIVE FIRE INSURANCE ASSOCIATION OF VERMONT v. Robert BIZON, James W. Ashcroft, Administrator of Estate of James R. Ashcroft, James W. and Marta Ashcroft.
• Court: Vermont Supreme Court

Page 722

693 A.2d 722

166 Vt. 326

COOPERATIVE FIRE INSURANCE ASSOCIATION OF VERMONT v.Robert BIZON, James W. Ashcroft, Administrator of Estate of James R. Ashcroft, James W. and Marta Ashcroft.

No. 95-214.

Supreme Court of Vermont.

March 28, 1997.

Allan R. Keyes and Joseph H. Badgewick of Ryan Smith & Carbine, Ltd., Rutland, for plaintiff-appellee.

James A. Dumont, Marybeth McCaffrey, and Sandra M. Lee and Mary Kay Lanthier, Law Clerks (on the brief), of Keiner & Dumont, P.C., Middlebury, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

This appeal arises from a declaratory judgment action brought by plaintiffCooperative Fire Insurance Association of Vermont against its insured, Robert Bizon, to seek a determination that it did not have to defend or indemnify Bizon in a civil action over the shooting death of James R. Ashcroft on Bizon's property.Cooperative Fire subsequently added by motion James W. Ashcroft(hereinafter defendant), as administrator of James R. Ashcroft's estate and his parent.¹James W. Ashcroft is plaintiff in the underlying tort action against Bizon.After a trial without jury, the trial court found that Cooperative Fire did not have the duty either to defend or indemnify Bizon against the underlying tort claim.Only defendantJames W. Ashcroft has appealed.We affirm.

The facts are as follows.Bizon owns and manages a bar in the City of Rutland.For a period of time, he regularly stored liquor supplies in his garage at his North Clarendon home.As a result of several burglaries of the supplies, Bizon's son installed a motion monitor so that movement within the garage would turn on a radio in Bizon's bedroom.Bizon also installed flood lights to illuminate the garage area and kept a loaded .357 magnum handgun in the house to protect against burglars.At some time prior to March 17, 1991, Bizon stopped putting liquor in the storage building and placed a sign on the garage giving notice that all the liquor had been removed.He left the garage door unlocked and the flood lights unlit, but activated the motion alarm and kept the loaded handgun in the kitchen near the rear door.

In the early morning of March 17, 1991, the motion alarm awakened Bizon.He immediately rose from bed, armed himself with the loaded gun to confront the burglars he suspected were in the garage, and turned on the flood lights.He did not call the police.He placed himself near the rear of a parked Ford truck in front of the garage door and ordered those inside to come out.

As the first two persons came running out of the garage door, Bizon yelled to them to stop and fired a warning shot into the air.The two figures continued running away.A third person appeared; Bizon ordered him to stop, and then fired in the direction of the doorway.This third person, who was James R. Ashcroft, started to follow the first two individuals.Bizon shot twice at him.One of the bullets struck Ashcroft's right hip, severing major blood vessels in his legs.A fourth person then appeared at the door and surrendered, crawling towards Bizon on his hands and knees.

As Ashcroft lay on the ground bleeding to death, he said to Bizon, "I'm shot, you hit me."Bizon replied, "I shot you once and I'll shoot you again if you don't tell me who your buddies were."Then Bizon called to his girlfriend, watching from inside the house, to phone the police.The police arrived about eight minutes after the call and thirteen minutes after the shooting incident.Medical help arrived too late to save Ashcroft's life.

At the criminal trial, a Rutland County jury acquitted Bizon of involuntary manslaughter in the killing of Ashcroft.Meanwhile, Bizon filed for bankruptcy.

The lawyer for Ashcroft's family and estate notified Bizon that he would pursue a damage claim, and Bizon notified Cooperative Fire, which brought a declaratory judgment action in the Addison Superior Court to determine whether it was obligated to defend or indemnify Bizon.Shortly thereafter, the Ashcrofts brought a wrongful death action in Rutland Superior Court against Bizon, alleging three theories of negligence: (1) Bizon's recklessness or negligence led to the armed confrontation that resulted in the killing, (2) Bizon shot at Ashcroft in the negligent belief he had a right to self-defense, and (3) Bizon's negligent delay in obtaining medical aid for the injured youth caused an otherwise avoidable death.

Cooperative Fire joined the Ashcrofts in its declaratory judgment action seeking an injunction against pursuit of the Rutland liability suit while the coverage question was unresolved.Both the declaratory judgment and wrongful death actions were delayed by the inability to obtain discovery from Bizon while his criminal case was pending and later by Bizon's bankruptcy filing.The last barrier was removed when the bankruptcy court lifted its stay of the tort action to the extent of insurance coverage.Although Cooperative Fire did not obtain an injunction, its action went forward first.

At trial, plaintiff Cooperative Fire argued that the insurance policy contained exclusions from coverage claims for damages arising from the insured's intentional acts or from claims arising from the insured's business activities and that either or both of these exclusions applied to bar coverage of the Ashcrofts' civil suit.Defendant Ashcroft denied that either exclusion applied because (1) Bizon acted involuntarily to fend off what appeared to be an unexpected attack on himself and his home, and (2) no business supplies were stored in the garage at the time of the incident.Although Bizon did not actively participate in the trial, he supported plaintiff's position that the policy exclusions applied.

The trial court held that the business exclusion did not apply because Bizon was not using the garage for business purposes at the time of the incident.It held that the intentional acts exclusion applied because "Mr. Bizon deliberately fired the hand gun at Mr. Ashcroft several times for the purpose of hitting him with the bullet."The court concluded that Cooperative Fire did not have to defend or indemnify Bizon against the Ashcroft claim.

On appeal, defendant focuses exclusively on his claim that Bizon was negligent in shooting Ashcroft.He contends that the trial court erred in finding the intentional act exclusion applied without finding that Bizon had the subjective intent to harm Ashcroft.Plaintiff first challenges defendant's standing to appeal.²On the merits, plaintiff argues that the court's finding that Bizon intended to shoot Ashcroft was sufficient to invoke the intentional act exclusion, without a finding that Bizon intended to harm Ashcroft.Alternatively, plaintiff argues that coverage should be denied because the killing was not an "accident" as required for coverage under the policy.

We turn first to the issue of standing.³We note that this is a declaratory judgment action and in such an action "all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding."12 V.S.A. § 4721.We also note that Cooperative Fire made defendanta party, initially so that it could seek a restraining order against defendant's prosecution of the wrongful death suit, but thereafter defendant participated as the only party opposing plaintiff's claim.Further, we note that Bizon's bankruptcy action meant that the only method defendant had of collecting a judgment was from plaintiff, and that the Legislature has specifically authorized suits against insurance carriers to collect in such situations.See8 V.S.A. § 4203(3).

We have no difficulty in holding that defendant has standing to appeal in these circumstances.Ordinarily, a party may appeal if the party has some legal interest which may be, by the judgment appealed from, either enlarged or diminished.SeeIn re Estate of Walsh, 133 Vt. 429, 430, 341 A.2d 706, 706(1975);see alsoIn re M.C., 156 Vt. 642, 642, 590 A.2d 882, 882(1991)(party must be "aggrieved" by decision in order to appeal).Generally, an intervenor, or third party, may appeal, by virtue of the party status, any issue on which the party is aggrieved.SeeState v. Schaefer, 157 Vt. 339, 344, 599 A.2d 337, 341(1991), cert. denied, 502 U.S. 1077, 112 S.Ct. 981, 117 L.Ed.2d 144(1992).

The purpose of a declaratory judgment is "to declare rights, status and other legal relations whether or not further relief is or could be claimed."12 V.S.A. § 4711.Thus, "[a] person interested under a ... written contract ... may have determined any question of construction ... arising under the ... contract ... and obtain a declaration of rights, status or other legal relations thereunder."Id.§ 4712.The Declaratory Judgment Act is a remedial statute that must be construed liberally to effectuate its purpose.SeePoulin v. Town of Danville, 128 Vt. 161, 163, 260 A.2d 208, 209(1969).The Act"opened ... to plaintiffs at an early stage of the controversy a right to petition for relief not heretofore possessed."Gifford Memorial Hosp. v. Town of Randolph, 119 Vt. 66, 70, 118 A.2d 480, 483(1955).A declaratory judgment will issue if it serves the useful purpose of clarifying the legal relations of the parties or terminating the insecurity and uncertainty of the controversy.SeeCommercial Ins. Co. v. Papandrea, 121 Vt. 386, 392, 159 A.2d 333, 337(1960).

Although we have never definitively determined the role of the tort-plaintiff in a declaratory judgment action over liability insurance coverage, the standard practice has been to join tort-plaintiffs as parties.Indeed, we have considered numerous coverage disputes based on an appeal to this Court by the tort-plaintiff.See, e.g., United States Fidelity & Guar. Co. v. Giroux, 129 Vt. 155, 156-57, 274 A.2d 487, 488-89(1971).The...