Easley v. American Family Mut. Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Before LOWENSTEIN; SPINDEN
• Citation: Easley v. American Family Mut. Ins. Co., 847 S.W.2d 811 (Mo. App. 1992)
• Decision Date: 08 December 1992
• Docket Number: No. WD,WD
• Parties: Shawn EASLEY, Plaintiff-Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellant, v. Douglas & Sandra WILLMENO, Defendants-Respondents. 45688.

Page 811

847 S.W.2d 811

Shawn EASLEY, Plaintiff-Respondent, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellant, v. Douglas & Sandra WILLMENO, Defendants-Respondents.

No. WD 45688.

Missouri Court of Appeals Western District.

Dec. 8, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 22, 1992.

Application to Transfer Denied March 23, 1993.

Erwin L. Milne, Jefferson City, for defendant-appellant.

Fairfax Jones, St. Louis, for plaintiff-respondent.

Before LOWENSTEIN, C.J., and SHANGLER, TURNAGE, KENNEDY, BERREY, FENNER, ULRICH, BRECKENRIDGE, HANNA, SPINDEN and SMART, JJ.

SPINDEN, Judge.

Shawn Easley was seriously hurt in a school yard fight on January 24, 1984. An argument between Easley and Douglas Willmeno during high school basketball practice ignited the fight. After practice, Willmeno waited outside the school for Easley. As Easley left the school building, Willmeno walked up to him and hit him in the chin with his fist. Easley fell backward, bounced off a wall, and his head went through a window. He was cut seriously; his ear was nearly severed from his head.

Easley sued Willmeno, and the court entered judgment for Easley for $82,088.14. ¹ Now, in this subsequent action, Easley seeks to recover the judgment from American Family Mutual Insurance Company pursuant to § 379.200, RSMo 1986. ² American Family had issued a mobile home owner's insurance policy to Willmeno's mother. American Family impleaded the insured, Sandra Willmeno, and her son Douglas into the action as third-party defendants.

Easley and American Family filed cross motions for summary judgment. The trial court declared that the American Family policy covered the injuries. American Family appeals. We reverse.

American Family's policy excluded coverage of "bodily injury or property damage ... which is expected or intended by any insured[.]" Indeed, Missouri courts have consistently held that an insured's intentional infliction of damage cannot be deemed an accident and cannot be covered by liability insurance. Permitting an insured to insure himself against his wanton, reckless or willful acts would enable him to insure himself from bearing the consequences of his intentional acts and would, therefore, be contrary to public policy. Keeler v. Farmers and Merchants Insurance Company, 724 S.W.2d 307, 309 (Mo.App.1987); Fidelity and Casualty Company of New York v. Wrather, 652 S.W.2d 245 (Mo.App.1983); and White v. Smith, 440 S.W.2d 497 (Mo.App.1969).

The trial court found that "... [Willmeno] did not intend to knock [Easley] toward the glass window or through it or to cause the severe injuries that [Easley] sustained." The trial court concluded, on the basis of American Family Mutual Insurance Company v. Pacchetti, 808 S.W.2d 369 (Mo. banc 1991), that American Family had failed to establish that the policy excluded coverage of Easley's injuries because Willmeno had not intended to knock Easley through the window, but only wanted to bloody his nose or blacken his eye. The trial court concluded from its reading of Pacchetti that an insurer can escape liability for an intentional act only when the insured intended the specific injury which resulted from the act.

In Pacchetti, the Supreme Court considered an exclusionary clause identical to the one in this case. At issue in that case was the death of a youth who had died shortly after the insured had given him cocaine. The court held that the policy did not exclude coverage and that the insurer was liable. The court reasoned:

The insurer ... does not automatically bring the exclusion into play simply by showing that cocaine is harmful, ³ or that the insured's acts in providing it ... were intentional. Many intentional acts are within the coverage of liability insurance policies, even with this standard exclusion. It must be shown not only that the insured intended the acts causing the injury, but that injury was intended or expected from these acts.

Id. at 371 (emphasis added).

We believe the trial court read Pacchetti too narrowly. We read it as instructing that an insurer can escape liability for intentional acts when it establishes not only that the insured acted intentionally, but that the insured intended his acts to injure--not benefit--the victim. The insurer must establish that the insured acted volitionally and with a motive to harm or injure. The Pacchetti court was not requiring a showing that the insured intended the specific injury which resulted.

The trial court's contrary interpretation resulted from its focusing on a somewhat confusing passage in Pacchetti where the court discussed whether the insured intended to harm the victim:

It remains for the insurer to show that this particular insured expected or intended the result which occurred. The record does not compel a finding that he did. It is just as likely that [the insured], in his perverted way, might have thought that [the victim] would derive some transitory pleasure or benefit from what apparently would be his initial experience with cocaine.

808 S.W.2d at 371. The trial court concluded that "the result" meant that an insurer had to establish that the insured intended the precise results which occurred before the policy's exclusionary clause relieved it of liability.

"The result" in Pacchetti was not a reference to death, to the exclusion of all other results. The issue was not whether the insured intended to kill the victim; it was whether he intended to benefit or to harm the victim. The result would have been the same in Pacchetti if the victim had not died but had suffered severe brain damage. Note the key sentence in the paragraph: "It is just as likely that [the insured], in his perverted way, might have thought that [the victim] would derive some transitory pleasure or benefit from what apparently would be his initial experience with cocaine."

Easley argues that the trial court's interpretation of Pacchetti was consistent with two of this court's cases, American Family Insurance Company v. Lacy, 825 S.W.2d 306 (Mo.App.1991), and Economy Fire and Casualty Company v. Haste, 824 S.W.2d 41 (Mo.App.1991). The Lacy decision does not aid Easley for it reaches the same conclusion we reach in this case. To the extent that Haste contains dicta subject to an interpretation that an insured must have intended the precise result which occurred before an exclusionary clause will relieve the insurer of liability, we clarify in this case that this was not the intent of that language. In any case, the result in Haste is consistent with this decision.

In Lacy, this court stated:

The substantive law identified two material facts as essential to the proof of an action by an insurer for a declaratory judgment that the acts that caused injury to another were intentional and so excluded from the liability coverage. There must be issuable proof "not only that the insured intended the acts causing the injury, but...