Farm Bureau Ins. Co. v. Witte

• Decision Date: 14 May 1999
• Docket Number: No. S-98-297,S-98-297
• Citation: 594 N.W.2d 574,256 Neb. 919
• Parties: FARM BUREAU INSURANCE COMPANY of Nebraska, Appellant, v. Irma WITTE, Appellee, and Jennifer Joy Borgmeyer, individually, and Alexander Eric Witte, by his guardian and next best friend, Jennifer Joy Borgmeyer, Intervenors-Appellees.
• Court: Nebraska Supreme Court

Page 574

594 N.W.2d 574

256 Neb. 919

FARM BUREAU INSURANCE COMPANY of Nebraska, Appellant, v. Irma WITTE, Appellee and Jennifer Joy Borgmeyer, individually, and Alexander Eric Witte, by his guardian and next best friend, Jennifer Joy Borgmeyer, Intervenors-Appellees.

No. S-98-297.

Supreme Court of Nebraska.

May 14, 1999.

Syllabus by the Court

1. Insurance: Contracts: Appeal and Error. The interpretation and construction of an insurance contract or policy involve questions of law, in connection with which an appellate court has an obligation to reach its conclusions independent of the determinations made by the court below.

2. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. The party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

3. Insurance: Contracts: Liability: Public Policy. A policy of insurance is a contract. Parties to an insurance contract may contract for any lawful coverage, and an insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract if the restrictions and conditions are not inconsistent with public policy or statute.

4. Insurance: Contracts. An insurer's duties to its insured are defined and governed by the terms of the insurance policy.

5. Insurance: Contracts: Intent. An insurance policy is to be construed as any other contract to give effect to the parties' intentions at the time the contract was made. When the terms of the contract are clear, they are to be accorded their plain and ordinary meaning.

6. Insurance: Contracts. Coverage under an insurance policy or contract is generally understood to consist of two separate and distinct obligations: the duty to defend any suit filed against the insured party and the duty to pay, on behalf of the insured, sums for which the insured shall become legally obligated to pay because of injury caused to a third party by acts of the insured.

7. Insurance: Contracts: Proof. Under Nebraska law, the burden to prove that an exclusionary clause applies rests upon the insurer.

8. Intent. If an intentional act causes injuries which are the natural and probable consequences of the act, the injuries as well as the act itself may be deemed intentional.

9. Insurance: Mental Health: Intent. Although an insured may suffer from a diagnosed mental illness, symptoms of which may negate the insured's ability to form the requisite intent for culpability in a criminal prosecution, the insured may still commit an act from which an intent to harm may be inferred as a matter of law in a civil action.

10. Insurance: Intent: Evidence. Presented with adequate evidence, an insured's intent to injure may be inferred as a matter of law from the shaking of an infant or a young child, regardless of the insured's subjective intent.

Gary J. Nedved, of Keating, O'Gara, Davis & Nedved, P.C., Lincoln, for appellant.

Patrick M. Flood, of Hotz & Weaver, Omaha, for intervenors-appellees.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Appellant, Farm Bureau Insurance Company of Nebraska (Farm Bureau), filed a petition in the district court for Lancaster County seeking a declaratory judgment that the exclusionary clause in a policy of homeowner's insurance issued by Farm Bureau to appellee Irma Witte excluded coverage for damages she inflicted on Alexander Eric Witte, an infant child, by shaking him, causing shaken baby syndrome. The mother of Alexander, appellee Jennifer Joy Borgmeyer, intervened.

Farm Bureau moved for a directed verdict at the conclusion of the evidence. The trial court denied the motion. Thereafter, the jury determined that the exclusionary clause in the Farm Bureau policy did not exclude coverage under that policy. Judgment was entered accordingly. Farm Bureau appeals. We reverse the order of the district court denying Farm Bureau's motion for directed verdict and remand the cause to the district court with directions to vacate the judgment entered upon the jury's verdict and to enter judgment granting Farm Bureau the relief specified in its amended petition for declaratory judgment.

STATEMENT OF FACTS

Injuries to Alexander.

During the period of September through December 1994, Irma occasionally babysat her infant nephew, Alexander. Irma agreed to babysit Alexander on December 15, and Alexander's mother, Borgmeyer, brought Alexander to Irma's home at approximately 7 p.m. Irma had been in contact with Borgmeyer earlier that day. Borgmeyer sold "crank," or methamphetamine, to Irma, and the two women used the drug together. In addition to her methamphetamine consumption, Irma consumed at least two beers while she was caring for Alexander.

Irma testified that she felt depressed and frustrated that evening about her recently failed marriage and her use of alcohol and illegal drugs. At some point after her two young children were in bed, Irma was holding Alexander in her arms, trying to get him settled. Alexander was fussy and would not sleep. Irma shook Alexander. Although she readily admitted shaking Alexander, Irma testified at trial that she could not remember exactly how long she shook him and that she did not recall whether Alexander's head struck any hard surface during the shaking. Irma added, "I was frustrated, but not with Alex." Irma stated that she did not intend to harm the baby and that she was not thinking about him when she shook him.

Irma's ex-husband, Jim Witte, and his brother, Eric Witte, Alexander's father, arrived at Irma's home at about midnight. Jim and Eric fixed a snack to eat, and they watched television. Irma dressed Alexander in his snowsuit and placed him in his car seat. Eric left with Alexander at approximately 1 or 1:30 a.m.

The record does not reveal Alexander's condition when he left Irma's home. The trial evidence indicates, however, that Alexander's parents sought medical care for him soon after retrieving him from Irma's care. Alexander was admitted to Children's Hospital in Omaha on December 16, 1994.

Dr. Fred Kader, a pediatric neurologist, examined and treated Alexander in the hospital. Dr. Kader diagnosed Alexander with "neurological difficulties as a result of having child abuse from a significant closed head injury and trauma due to shaken baby syndrome." Dr. Kader described shaken baby syndrome as "a constellation of findings in a child who has evidence of neurological deficit," including, inter alia, evidence of retinal hemorrhages and bleeding within the brain or between the brain tissue and the bone of the skull. Dr. Kader found that Alexander had evidence of seizures, intercranial and retinal hemorrhages, and neurological depression, all of which had occurred within 24 hours of Dr. Kader's examination of Alexander on December 16, 1994. Dr. Kader found that Alexander had sustained a skull fracture injury on the right side of his brain which had occurred within 24 hours of Dr. Kader's examination. It was uncontroverted that as described above, Irma had cared for Alexander during part of that 24-hour period. Other than Irma's admitted shaking of Alexander, there was no trial evidence of any event which could have caused Alexander's injuries.

According to Dr. Kader, many but not all infants afflicted with shaken baby syndrome show associated direct evidence of trauma, such as a skull fracture or a focal contusion under the site of a blow to the child's head. Dr. Kader testified that skull fractures on an infant cannot be caused by shaking the baby and that in order for a skull fracture to occur, the child's skull must come into contact with a hard surface or object. Dr. Kader testified that although he could diagnose shaken baby syndrome, he could not state whether the injury was a result of intentional conduct by another person.

In addition to the new head injuries to the right side of Alexander's brain described above, in Dr. Kader's examination of Alexander, Dr. Kader also found that Alexander had lesions on the left side of his brain. Unlike the fracture injury on the right side of Alexander's brain which was recent in origin, Dr. Kader stated that the lesions on the left side of Alexander's brain were several days to 1 week old and that these lesions were healing. Dr. Kader opined that "there were possibly multiple reasons" for the lesions on the left side of Alexander's brain, including shaking or a more significant direct contusion to that part of Alexander's brain. Dr. Kader testified that in diagnosing Alexander with the cluster of symptoms he referred to as "shaken baby syndrome," he included both the new injuries to the right side of Alexander's brain as well as the healing injuries to the left side of Alexander's brain. Dr. Kader noted that the fracture injury to the right side of Alexander's brain affected the left side of Alexander's brain in "the subsequent evolution of the event." Dr. Kader testified that if a child was already suffering from an underlying brain injury which was drawing upon the neurological reserves in the child's body in order to heal, a subsequent brain injury to the child could be caused by an impact of less force than that which caused the first injury, because the child's neurological resources would already be taxed by healing the preexisting injury.

Irma was interviewed by Nebraska State Patrol Investigator Michael Malmstrom on December 16, 1994, at Children's Hospital, where she had gone to see Alexander. Irma fabricated three different versions of how Alexander's injuries occurred before telling Malmstrom the truth. Irma admitted that she had shaken Alexander and that she had consumed...