Farmers and Merchants Ins. Co. v. Cologna

• Decision Date: 18 August 1987
• Docket Number: No. 14890,14890
• Citation: Farmers and Merchants Ins. Co. v. Cologna, 736 S.W.2d 559 (Mo. App. 1987)
• Parties: FARMERS AND MERCHANTS INSURANCE COMPANY, Appellant, v. Rita K. COLOGNA and Paulette Cologna, Respondents.
• Court: Missouri Court of Appeals

Page 559

736 S.W.2d 559

FARMERS AND MERCHANTS INSURANCE COMPANY, Appellant, v. Rita K. COLOGNA and Paulette Cologna, Respondents.

No. 14890.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 18, 1987.

Motion for Rehearing or Transfer to

Supreme Court Denied Sept. 8, 1987.

Application to Transfer Denied

Oct. 13, 1987.

Stephen H. Snead, Mann, Walter, Burkart, Weathers & Walter, Springfield, for appellant.

C. Ronald Baird, John R. Lightner, Dorr and Baird, P.C., Springfield, for respondent Paulette Cologna.

No appearance for respondent Rita K. Cologna.

CROW, Chief Judge.

Farmers and Merchants Insurance Company ("Farmers") appeals from a judgment, per jury verdict, declaring that policy number 7 68 89 87 ("the policy"), issued by Farmers to Rita K. Cologna ("Rita"), provides coverage for Rita's actions in causing the death of Eugene F. Cologna, Jr., ("Gene").

Rita, born April 14, 1946, married Gene in 1965, and they became parents of Tim, born February 15, 1968, and Elizabeth, born April 26, 1972. Rita and Gene were "divorced" in 1979, the decree awarding Rita "the family home and the acreage." The decree also provided, according to Rita, that she was "to remain the beneficiary on two life insurance policies on Gene's life."

At some undisclosed time thereafter, Gene married Paulette Cologna ("Paulette").

Effective August 4, 1982, Farmers issued the policy to Rita, covering the period from that date until August 4, 1983. The policy provided, among other things, that if suit were brought against Rita for damages because of bodily injury, Farmers would (a) pay up to its limit of liability for the damages for which Rita was legally liable, and (b) provide Rita a defense at Farmers' expense by counsel of Farmers' choice. There was, however, an exclusion stating that coverage did not apply to bodily injury "which is expected or intended by the insured."

On Saturday, March 26, 1983, Gene went to Rita's residence, and while he was there a shotgun, held by Rita, discharged, killing him. Rita's testimony about the incident is summarized infra.

Paulette thereafter commenced a wrongful death action against Rita, seeking money damages for Gene's death. While Paulette's action was pending, Farmers instituted the instant case, averring, among other things, that Rita either expected or intended that her actions would cause Gene's death, consequently the policy afforded Rita no coverage. Farmers prayed the court to enter a declaratory judgment construing the policy and determining the respective rights and liabilities of the parties.

Trial on July 1, 1986, produced the judgment described in the initial paragraph of this opinion.

The first of Farmers' five assignments of error that we consider is point IV, which maintains that the trial court erred in denying Farmers' motion for a directed verdict at the close of Farmers' evidence, in that Farmers' evidence, even when viewed in the light most favorable to respondents, established as a matter of law that Rita intended to cause bodily injury to Gene.

In a suit by an insurer seeking a declaratory judgment that a liability policy issued by it provides no coverage to an insured by reason of an exclusion in the policy, the burden is on the insurer to prove facts which make the exclusion applicable. Mission Insurance Company v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972). Consistent with that precept, Farmers tendered a verdict-directing instruction, given by the trial court, stating: "Your verdict must be for [Farmers] if you believe that [Rita] expected to cause bodily injury to [Gene]."

Only in exceptional circumstances, as in the case where a defendant in his pleadings or by his counsel in open court admits or by his own evidence establishes the plaintiff's claim, or where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a plaintiff's claim, is a trial court justified in directing a verdict in favor of a plaintiff having the burden of proof. Zagarri v. Nichols, 429 S.W.2d 758, 760 (Mo.1968).

Mindful of those principles, we examine Farmers' evidence pertinent to the exclusion.

The only witness called by Farmers was Rita. She testified that about ten days before the shooting, she received a phone call from Gene at the residence she occupied with Tim and Elizabeth. Rita quoted Gene as saying he needed the insurance policies mentioned in the second paragraph of this opinion "for his taxes." At some unspecified time thereafter, Gene, according to Rita, told her that he wanted to change the beneficiary on the policies from her and the two children to Paulette. Rita knew Gene "didn't have the right to do that."

On the Monday or Tuesday preceding the shooting, Gene came to Rita's residence, blocked her driveway, climbed the fence surrounding her house, and pounded on the door. When Rita went to the door, Gene said, "I need those insurance policies."

Rita instructed Tim and Elizabeth, who were departing for school, to leave via the back door, as she expected Gene would come in if they went out the front.

Gene, said Rita, threatened to block the driveway until she turned over the policies. Rita, who was "late for work," told Gene the policies were in the "safety deposit box." Gene thereafter departed.

On Wednesday afternoon, March 23, three days before the shooting, Gene phoned Rita, telling her he would be out to her house and she would sign the papers he wanted her to sign. Rita, who was taking "night classes" at a Springfield college, left immediately and went to a friend's home, where she remained until class time.

On Friday evening, March 25, Gene returned to Rita's home. Elizabeth answered the door, and told Rita Gene was there. Rita went to the door and was told by Gene that he had papers for her to sign. Rita said no.

Then, according to Rita, Gene "pushed his way on in and shoved me up against the wall in the house." Rita, at that time, was on medication she described as a "blood thinner" and "anticoagulant." As a result of Gene's incursion, Rita sustained "bruising," and a torn fingernail that bled.

An argument ensued, during which Gene said he was not leaving until Rita "signed the papers." Rita persisted in her refusal, and Gene eventually left.

About eight o'clock the next morning, there was a "pounding" on Rita's front door. Rita, Tim, Elizabeth, and one Marion Crum--described by Rita as her "boy friend"--were in the house asleep. Rita arose, looked through a window, and saw Gene at the door.

Rita took Tim's shotgun from beneath Elizabeth's bed, obtained a shell from the utility room, and "pushed it in the thing at the bottom." She then went to the door, but did not take the gun with her, as she was "shaking out of fear."

When Rita opened the door, Gene was "out near the driveway." Gene, according to Rita, said he was "going to get some parts for the truck and would be back." With that, Gene departed.

Asked what her intent was when she got the gun, Rita replied, "I wanted him to understand that he couldn't come there every two or three days knocking on the door and disturbing our lives." Then, this:

"Q. Did you intend to shoot him?

A. No.

Q. Did you get the gun with the intent to do bodily injury to him?

A. No.

Q. Your intent was to scare him and say, 'Quit coming around about this insurance?'

A. Yes.

Q. You put the gun back in the kitchen that time because you were too nervous to use it, to use the gun?

A. Yes.

Q. You've had no real experience with guns, have you?

A. Very little."

After Gene left, Rita took the gun to the utility room. She then fed Tim and Elizabeth breakfast, took them to their "Saturday activities," ran some personal errands, and returned home "around eleven o'clock." Marion Crum was still there, asleep. A few minutes later, Gene knocked at the door. When Rita opened it, Gene demanded that she "sign the change of beneficiary forms."

Rita refused, telling Gene she was not obligated to do so. Thereupon, according to Rita, Gene said, "You are going to sign these or I will beat the shit out of you." At that point, Gene forced his way into the house. Rita became fearful about her physical safety. She explained, "I bruise very easily, and if I was cut, the blood did not clot like blood would normally clot and any injury would be dangerous."

Rita went to the utility room, picked up the gun, entered the kitchen, and pointed the gun at Gene. Asked whether the safety was on or off, Rita replied she thought it was on, but she did not know.

Rita commanded Gene to get out of her house and off her property, pointing the gun in his "general direction." Gene backed from the kitchen into the dining room, followed by Rita. Gene stopped there, and Rita stopped in the "threshold area." Describing what occurred next, Rita testified:

"Q. And then he made a sudden movement toward you, didn't he?

A. Yes, he did.

Q. Did you think he was trying to get the gun from you?

A. Yes, I did.

Q. And you started to back up as he started to move toward you?

A. Yes, I did.

Q. And about halfway through your first step, the gun went off?

A. I don't--I couldn't tell you what step it was but the gun did go off when I backed up.

Q. You don't know whether you had your finger on the trigger or not?

A. I don't remember having my finger on the trigger. I don't know, know whether I did or not.

....

Q. And at that point in time you knew, didn't you, that if a loaded gun was pointed in somebody's direction and that gun discharges for whatever reason that there is a great likelihood that that person at whom the gun was pointed will be injured or killed? You knew that, didn't you?

A. Yes.

Q. You don't know whether Gene Cologna ever touched the gun before or after it discharged, is that correct?

A. That is correct.

Q. When you stepped back in response to his movements, you don't know whether you tripped?

A. I think I stumbled.

....

Q. Do you know of anything that came into contact with...