Fire Ins. Exchange v. Altieri
| Decision Date | 08 November 1991 |
| Docket Number | No. H007931,H007931 |
| Citation | 235 Cal.App.3d 1352,1 Cal.Rptr.2d 360 |
| Court | California Court of Appeals Court of Appeals |
| Parties | FIRE INSURANCE EXCHANGE, Plaintiff and Appellant, v. Michael Joseph ALTIERI, a minor, et al., Defendants and Respondents. |
Ralph E. Mendell, Campbell, Warburton, Britton Fitzsimmons & Smith, San Jose, for plaintiff and appellant.
Susan G. Flanagan, Hoge, Fenton, Jones & Appel, Inc., Monterey, for defendants and respondents Altieri.
Andrew H. Swartz, Spiering, Swartz & Kennedy, Monaterey, for defendant and respondent Story.
During an altercation, Fire Insurance Exchange's insured, Michael Altieri, a minor, struck another minor, Greg Story, in the face. Story sued Altieri for damages for assault and battery and sued Altieri's parents for negligent supervision. Pursuant to a stipulated judgment, Altieri and his parents were required to pay Story $310,000 for his injuries if their homeowner's insurance provided coverage or $5,000 if it did not. Fire Insurance Exchange sought a declaration of its rights and obligations under the policy. After a court trial, the court ruled that Fire Insurance Exchange was required to indemnify Altieri for Story's damages. Relying on Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098 (Clemmer ) for the proposition that coverage is mandated unless the insurer can prove its insured acted with a " 'preconceived design to inflict injury,' " (id. at p. 887, 151 Cal.Rptr. 285, 587 P.2d 1098) the court noted,
Fire Insurance Exchange appeals, contending the court erred in requiring it to prove not only that Altieri acted intentionally, but also that he acted with the specific intent to cause the serious injuries which Story received. We agree. As the Supreme Court recently explained in J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1023-1025, 278 Cal.Rptr. 64, 804 P.2d 689 (J.C. Penney ), the " 'preconceived design to inflict injury' " requirement of Clemmer is relevant only to the issue of whether the insured had the mental capacity to intend to commit the wrongful act. Since that issue was not in controversy here, we reverse the judgment.
On April 12, 1989, Michael Altieri was two days short of being 16 years old. He They stopped at a red light a block or so away from school, at the intersection of Pacific and El Dorado Streets. There they saw Greg Story, a ninth grader, standing by his bicycle, waiting to cross the street. Story was on his way to his orthodontist. He knew Davis from his physical education class, although they had never done anything socially. He didn't know Altieri at all.
was in his sophomore year at Monterey High School. After school let out at approximately 2:45 p.m., Altieri ran into fellow students Brent Christiansen and Michael Davis, 1 who offered to give him a ride home. Christiansen drove, Davis sat in the front passenger seat, and Altieri sat in the back seat.
From the car, Davis made an insulting comment to Story about his bright green shoelaces. Story responded by calling Davis a "faggot." Altieri asked Davis if he was going to let Story say that to him, but he didn't respond.
Story crossed the street in front of Christiansen's car. When he reached the other side, his books fell out of his book bag to the ground. Davis shouted out "[s]omething of provocation" to Story who yelled back "faggot" and gave them "the bird." Story then continued picking up his books.
The light turned green and Christiansen drove off. Altieri testified he was angry as he went through the intersection. He asked Christiansen two or three times to turn the car around so that he, Altieri, could "kick [Story's] ass." Christiansen finally did so. As they were heading back, Altieri bet Davis $1 who could hit Story first. Davis did not believe Altieri would actually hit Story "because I didn't see Mike as that kind of a person ... [b]ecause he was never like that."
Story was still leaning over picking up his books when Altieri and Davis returned. Altieri testified, "I was concerned of the bet, who would hit him first." He put a boxing glove that was in Christiansen's car on his right hand, walked up behind Story, grabbed him by the hair with his left hand, and with his right hand, hit Story in the mouth from a distance of six or seven inches. In his deposition, Davis described the blow that Altieri struck as Story testified he felt the blow around his lower jaw. He remained conscious, and no one noticed any blood. Story and Altieri were both around the same size--five feet eight inches and 157 pounds. At that point, Davis, who was six feet tall and weighed 185 pounds, hit Story as hard as he could, also in the face. Story was knocked to the ground, something came out of his mouth, and Davis's fist was cut. 2
Altieri was stunned by Story's injuries. Davis had to shake him to get him to leave. Both minors ran away from the scene. Neither summoned help.
The following day, a juvenile officer interrogated Altieri at the high school. Altieri initially denied being involved in the incident, stating that he had gone home with a John Catelona. Later he admitted hitting Story. When the officer asked him why, he stated, " 'Because he flipped us off.' " Altieri told the officer " 'that he and Davis, before leaving the vehicle to go hit the victim, had bet each other a dollar who would hit the victim first, he or Davis' " and that Davis " "
At trial, Altieri testified that he "had no intent to damage or hurt Greg bad at all." Story testified that he remembered being "hit once [but] now, I know I was hit twice." He remembered the sensation of a blow to his lower jaw after the first hit, but he didn't remember pain. He stated he was knocked unconscious and the next Story filed an action for personal injuries against Altieri, Davis, and their parents. The parents were sued for negligent supervision, as well as vicarious liability under Civil Code section 1714.1, subdivision (a). 3 Fire Insurance Exchange provided the Altieris with a defense and then brought this declaratory relief action.
thing he knew he had woken up on the concrete.
The underlying action was settled by stipulation. The parties agreed: (1) that the Davis family would pay Story $5,000; (2) that the Altieri family would also pay Story $5,000 if it were determined they had no coverage under their policy; and (3) that if it were determined that Fire Insurance Exchange was obligated to indemnify the Altieris, the insurer would pay Story $300,000 on behalf of Michael Altieri and an additional $10,000 on behalf of his parents. An order approving compromise of the minor's claim was filed April 26, 1990.
On appeal, Fire Insurance Exchange (hereafter insurer) contends the court erred in requiring it to prove that Altieri acted with the specific intent to cause serious injuries to Story. We agree. Although the court in J.C. Penney took great pains to limit its decision to child molest cases, 4 its statutory construction of Insurance Code section 533 5 and its explication of the meaning of the phrase " 'preconceived design to inflict injury' " in Clemmer is relevant, and indeed binding, in other contexts.
The J.C. Penney court noted that although section 533 is " 'an implied exclusionary clause which by statute is to be read into all insurance policies [citation],' " (52 Cal.3d at p. 1019, 278 Cal.Rptr. 64, 804 P.2d 689) it is not subject to the rules governing the interpretation of contracts, which require strict construction against the insurer. Rather, as a statute it is subject to the rules of statutory construction. (Id., at pp. 1019, 1020, fn. 9, 278 Cal.Rptr. 64, 804 P.2d 689.) The court specifically disapproved the contrary view expressed in Congregation of Rodef Sholom v. American Motorists Ins. Co. (1979) 91 Cal.App.3d 690, 697, 154 Cal.Rptr. 348. 6 The J.C. Penney court then proceeded to determine the Legislature's intent in enacting section 533 by (52 Cal.3d at p. 1020, 278 Cal.Rptr. 64, 804 P.2d 689.) It noted that section 533, when read literally, is internally inconsistent, purporting to exclude coverage for willful acts but mandating coverage for negligent acts. Negligence, it noted, "is often, perhaps generally, the result of a 'willful act.' " (Ibid.) The court observed that "willful act" in section 533 must mean " ' "something more than the mere intentional doing of an act constituting [ordinary] negligence" ' [citation]" because otherwise it "would allow an insurer to deny coverage for a negligent act." (Id., at p. 1021, 278 Cal.Rptr. 64, 804 P.2d 689.) Thus, the court concluded, section 533 "does not preclude coverage for acts that are negligent or reckless." (Ibid.)
The court then proceeded to discuss two of its prior decisions. The first was Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 648, 39 Cal.Rptr. 731, 394 P.2d 571, in which the court observed: "Section 1668 of the Civil Code and Section 533 of the Insurance Code establish a public policy to prevent insurance coverage from encouragement of wilful tort."...
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