Farmers and Mechanics Mut. Ins. Co. v. Cook

• Decision Date: 10 December 2001
• Docket Number: No. 29842., No. 29841
• Citation: 210 W.Va. 394,557 S.E.2d 801
• Parties: FARMERS AND MECHANICS MUTUAL INSURANCE COMPANY OF WEST VIRGINIA, Plaintiff below, Appellee, v. Gerald COOK and Brenda Cook, Defendants below, Appellees, Leah D. Buckler, Administrator of the Estate of Homer G. Buckler, Deceased, Defendant below, Appellant. Farmers and Mechanics Mutual Insurance Company of West Virginia, Plaintiff below, Appellee, v. Gerald Cook and Brenda Cook, Defendants below, Appellants, Leah D. Buckler, Administrator of the Estate of Homer G. Buckler, Deceased, Defendant below, Appellee.
• Court: West Virginia Supreme Court

557 S.E.2d 801

210 W.Va. 394

FARMERS AND MECHANICS MUTUAL INSURANCE COMPANY OF WEST VIRGINIA, Plaintiff below, Appellee, v. Gerald COOK and Brenda Cook, Defendants below, Appellees, Leah D. Buckler, Administrator of the Estate of Homer G. Buckler, Deceased, Defendant below, Appellant.

Farmers and Mechanics Mutual Insurance Company of West Virginia, Plaintiff below, Appellee, v. Gerald Cook and Brenda Cook, Defendants below, Appellants, Leah D. Buckler, Administrator of the Estate of Homer G. Buckler, Deceased, Defendant below, Appellee.

Nos. 29841, 29842.

Supreme Court of Appeals of West Virginia.

Submitted November 7, 2001.

Decided December 10, 2001.

Tammy Mitchell Bittorf, Esq., Layva, Bittorf & Santa Barbara, P.L.L.C., Martinsburg, West Virginia, Attorney for Farmers and Mechanics Mutual Insurance Company of West Virginia.

Daniel R. James, Esq., Keyser, West Virginia, Attorney for Gerald and Brenda Cook.

George I. Sponaugle, II, Esq., Sponaugle & Sponaugle, Franklin, West Virginia, Attorney for Leah Buckler. STARCHER, Justice:

In this case from the Circuit Court of Hardy County, we address a situation where a wife, in the defense of her husband, shot and killed a third-party aggressor. The wife has been acquitted of any criminal responsibility, but the alleged aggressor's widow has sued the couple for wrongful death.

The couple gave notice of the lawsuit to their homeowners' insurance company. The homeowners' insurance company has refused to provide liability coverage or a legal defense to the homeowners, citing to an "intentional acts" exclusion in the policy. The insurance company does not contest that the homeowners acted together in self-defense, but does, nevertheless, contend that the shooting of the third party was intentional, and as such it could be expected that there would be bodily injury. The circuit court, in an order dated December 27, 2000, agreed with the insurance company and denied the homeowners a right to coverage and a right to a legal defense.

As set forth below, we reverse the circuit court. We conclude that when an individual acts in self defense or in defense of another, an insurance company may not rely upon an intentional acts exclusion to deny coverage or a legal defense.

I. Facts & Background

The instant case is a declaratory judgment action filed by an insurance company, appellee Farmers and Mechanics Mutual Insurance Company of West Virginia ("Farmers and Mechanics"), against the purchasers of a homeowners' liability insurance policy, appellants Gerald and Brenda Cook, and against appellant Leah Buckler, an individual who has sued the Cooks for the wrongful death of her husband, Homer Buckler.

The circumstances underlying the instant action were meticulously discussed by this Court in a previous criminal appeal involving Brenda Cook, styled State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999). Additional discovery was conducted in the instant declaratory judgment action to supplement the story. We draw our discussion of the facts from both of these sources.

Mr. and Mrs. Cook owned a home and a tract of land in Moorefield, West Virginia. The Cooks were repeatedly harassed and threatened by neighbors due, in part, to the Cooks' placement of a fence and rocks along the edge of their property bordering Hickory Ridge Road. At various times, the fence was torn down, roofing nails were placed in the Cooks' driveway, and piles of rocks and dirt dumped on their property.

One of the individuals who harassed and threatened the Cooks was Homer Buckler. Mr. Buckler was a huge man, standing 6 feet, 4 inches and weighing in excess of 300 pounds. The Cooks repeatedly sought the help of law enforcement authorities to stop the intimidation by Mr. Buckler, to no avail. For example, after the Cooks' fence was torn down, the sheriff investigated and spoke with Mr. Buckler, and as a result, Mr. Buckler agreed to apologize to the Cooks. However, instead of apologizing, Mr. Buckler visited the Cooks and threatened to kill them if they ever called the authorities again regarding his conduct.

On May 7, 1997, Mrs. Cook spoke with a state trooper by telephone about an investigation into the vandalism of the Cooks' nearby cabin. The trooper indicated he was going to come out to the area and speak to Mr. Buckler about the matter. Shortly after the conversation ended, Mrs. Cook heard a truck outside her house, and looking outside saw Mr. Buckler throwing rocks onto her property in the direction of Mr. Cook.

Mr. Cook—who was 5 feet, 6 inches tall and weighed 140 pounds—approached Mr. Buckler and asked that he not throw rocks on his property. At the same time, Mrs. Cook loaded a shotgun and walked outside, fired a warning shot in the air, and then hurried to her husband's side. Mrs. Cook contends she asked Mr. Buckler to leave, and told him she had already called the police. Mr. Buckler immediately looked at Mr. Cook and said, "You're a G___d_____ dead man. I warned you, I told you never to call them."

Witnesses indicate that Mr. Cook began to walk away, but that Mr. Buckler pursued and attacked him. Mr. Cook responded by swinging his fist at Mr. Buckler; Mr. Buckler threw Mr. Cook to the ground and began beating him.

As Mr. Buckler beat Mr. Cook, Mrs. Cook held the shotgun in one hand and tried to pull Mr. Buckler off her husband. Mr. Buckler paused long enough to strike Mrs. Cook and rip her shirt open. Mrs. Cook again plead with Mr. Buckler to stop, but she was ignored.

Mrs. Cook claimed she was afraid her husband would be killed, so she pointed the shotgun at Mr. Buckler's right arm. She testified in a deposition that she "didn't really aim it, I just, it was close enough to where the barrel would have just, the shot would have like just grazed maybe the side of his arm." As Mrs. Cook fired, Mr. Buckler raised up and raised his right arm, causing the shot to land under his right armpit. Mr. Buckler later died of his injuries, and Mrs. Cook was charged with and convicted of second-degree murder.

In State v. Cook, supra,

Mrs. Cook appealed her conviction to this Court. After carefully examining the record, we concluded that Mrs. Cook had established that she acted in defense of her husband Gerald in shooting Mr. Buckler, and that the State had failed to rebut this defense beyond a reasonable doubt. We reversed Mrs. Cook's conviction and remanded the case for the entry of a judgment of acquittal.

Subsequent to this Court's opinion, Mrs. Buckler filed a wrongful death action against the Cooks for the death of her husband. The Cooks sought liability insurance coverage and defense counsel for the wrongful death action from their homeowner's insurance carrier, appellee Farmers and Mechanics.

Farmers and Mechanics filed the instant declaratory judgment action seeking a declaration that there was no coverage and no duty to provide a defense under the homeowner's insurance policy because of an exclusion for "intentional acts." The policy excludes coverage for "bodily injury or property damage ... which is expected or intended by the insured."

After discovery was conducted by the parties, upon motion the circuit court granted summary judgment to Farmers and Mechanics. In an order dated December 27, 2000, the circuit court concluded that Mrs. Cook expected and intended to shoot Mr. Buckler. Furthermore, the circuit court held that it could be inferred that she expected and intended to cause Mr. Buckler bodily injury, because whether a policyholder intends to cause harm to another is viewed from an objective, not subjective, viewpoint. In other words, the circuit court concluded that a reasonable, prudent person would expect that firing a shotgun at another person would cause bodily injury—regardless of what Mrs. Cook contended her intentions and expectations truly were. Lastly, the circuit court ruled that while Mrs. Cook's self-defense argument might absolve her of criminal liability, "[a] claim of self-defense will not defeat or diminish the intent behind the act of the insured for purposes of insurance coverage." Accordingly, the circuit court found that because of the intentional acts exclusion, Farmers and Mechanics had no duty to provide a defense to Brenda Cook, and no duty to provide coverage under her homeowners' insurance policy.

The circuit court also found that Mr. Cook had "approached and antagonized" Mr. Buckler, and thereby intentionally and willfully initiated a fight with Mr. Buckler. The circuit court also found that Mrs. Buckler's complaint "arguably alleges" that Mr. Cook had acted to "create a scenario which would allow and permit his wife ... to shoot Homer Buckler under the guise of self-defense." Accordingly, the circuit court concluded that Mr. Cook's actions "entail[ed] a conscious and intentional element, removing the same from the scope of coverage afforded by the Farmers and Mechanics Policy."

The Cooks and Mrs. Buckler now appeal the circuit court's December 27, 2000 order.

II. Standard of Review

This Court reviews a circuit court's entry of a declaratory judgment de novo, since the principal purpose of a declaratory judgment action is to resolve legal questions. Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). When a declaratory judgment proceeding involves the determination of an issue of fact, that issue may be tried and determined by a judge or a jury, just as issues of fact are tried and determined in other civil actions. W.Va.Code, 55-13-9 [1941].¹ See also, Syllabus Point 16, Mountain Lodge Association v. Crum & Forster Indem. Co., 210 W.Va. 536, 558 S.E.2d 336 (2001) ("West Virginia Code § 55-13-9 and Rules 38, 39 and 57 of the Rules of Civil Procedure, read and considered together, operate to guarantee that any issue triable by a jury as a matter of right in other civil actions cognizable by the circuit courts shall, upon timely demand in a declaratory judgment proceeding, be tried to a jury."). Any determinations of fact...