Fire Ins. Exchange v. Berray

• Decision Date: 15 February 1983
• Docket Number: No. 1,CA-CIV,1
• Citation: 694 P.2d 259,143 Ariz. 429
• Parties: FIRE INSURANCE EXCHANGE, a reciprocal or interinsurance exchange, Plaintiff-Appellee, v. Tom BERRAY and Bonnie Berray, husband and wife, Defendants-Appellants. 5834.
• Court: Arizona Court of Appeals

Page 259

694 P.2d 259

143 Ariz. 429

FIRE INSURANCE EXCHANGE, a reciprocal or interinsurance exchange, Plaintiff-Appellee, v. Tom BERRAY and Bonnie Berray, husband and wife, Defendants-Appellants.

No. 1 CA-CIV 5834.

Court of Appeals of Arizona,

Division 1, Department A.

Feb. 15, 1983.

Johnson, Jessen, Dake & Oplinger by James E. Vieh, Phoenix, for plaintiff-appellee.

Cox & Cox by Stephen L. Cox, Phoenix, for defendants-appellants.

OPINION

KLEINSCHMIDT, Judge.

Appellants Tom and Bonnie Berray challenge the granting of summary judgment in favor of appellee Fire Insurance Exchange by which the trial court found that an exclusion clause of a homeowner's liability insurance policy applied so that there was no liability coverage for or duty to defend appellants in an action brought for injuries received at the hands of Tom Berray. We reverse.

On the evening of April 9, 1980, appellant Tom Berray and Raul Rodriquez stopped at a vacant gas station in Phoenix to discuss differences that had arisen between them earlier in the evening over bets on a pool game. After exchanging words Rodriquez began beating Berray. Berray was struck a number of times before he was able to pull himself into his van. Berray took a gun from the van and shot Rodriquez after Rodriquez ignored warnings not to come any closer. Rodriquez subsequently filed a civil action against Berray in superior court to recover for injuries suffered as a result of the gunshot.

Fire Insurance Exchange had issued a homeowner's policy to the Berrays which contained an "intentional acts" exclusion worded as follows:

We do not cover direct or indirect loss from:

....

6. The result of intentional acts of an insured.

On June 13, 1980, Fire Insurance Exchange filed a complaint for declaratory judgment in the Maricopa County Superior Court, alleging that its policy provided no coverage for injuries arising from Tom Berray's intentional shooting of Raul Rodriquez and that it had no duty to defend the Berrays in litigation arising from the shooting. Berray, Rodriquez and both of their spouses were named as defendants in the declaratory judgment action. Appellee moved for summary judgment based on the clause excluding intentional acts.

The trial court granted appellee's motion for summary judgment. Appellants argue that the intent referred to in the exclusion is the intent to do bodily harm rather than the mere intent to do a voluntary act. They further argue that there is a disputed question of fact as to whether Berray meant to injure Rodriquez and that summary judgment was therefore inappropriate. The only evidence the trial court considered was the deposition testimony of Tom Berray. Appellants argue that whenever Tom Berray was asked at the deposition whether he "intended" to shoot, harm, injure, or kill Rodriquez, he always stated that he had no such intention. Such disavowals were, sometimes explicitly and sometimes by implication, contradicted by appellant himself elsewhere in the record.

On appeal from the grant of a motion for summary judgment the facts and reasonable inferences therefrom must be viewed in the light most favorable to the party opposing the motion. Grain Dealers Mutual Insurance Co. v. James, 118 Ariz. 116, 575 P.2d 315 (1978); Washington National Trust Co. v. W.M. Dary Co., 116 Ariz. 171, 568 P.2d 1069 (1977). Summary judgment is inappropriate where a genuine issue of material fact is presented or when the slightest doubt as to the facts exists. City of Phoenix v. Space Data Corp., 111 Ariz. 528, 534 P.2d 428 (1975); Byars v. Arizona Public Service Co., 24 Ariz.App. 420, 539 P.2d 534 (1975). Conversely, summary judgment is appropriate where there is no genuine dispute as to any material fact, only one inference can be drawn from the undisputed material facts, and based on the undisputed material facts the moving party is entitled to judgment as a matter of law. Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 519 P.2d 61 (1974); Dutch Inns of America, Inc. v. Horizon Corp., 18 Ariz.App. 116, 500 P.2d 901 (1972).

Despite Berray's statements that he never intended at any time to harm Rodriquez he testified in other portions of his deposition that he reached a point where he felt that his life was in danger and that he felt justified in shooting Rodriquez and even killing him. Berray conceded that he intended to take his gun, intended to point it in the direction where he believed Rodriquez to be, and intended to pull the trigger because he felt his life was in danger. There was no claim that the gun discharged accidentally or that Berray believed it to be unloaded. He admitted that he knew it was loaded and that it discharged because he pulled the trigger. When asked why he shot Rodriquez, Berray stated, "Well, you know, after looking at the whole situation, to defend myself."

We find this issue to be governed by Clark v. Allstate Ins. Co., 22 Ariz.App. 601, 529 P.2d 1195 (1975). In Clark, a clause in an insurance policy excluding intentional injury was found to apply in a situation in which one high school student struck another student in the face and injured him. The assailant argued on appeal that the exclusion clause should not apply because although he had intended to strike the other boy he had not meant to hurt him. In holding that the injuries to the boy struck were a result of an intentional act which negated coverage under the insurance policy, the court stated:

The contention of young Clark that he did not intend to injure Niemi does not make the question of intention an issue of material fact which must go to the trier of fact. Perhaps if Clark maintained that striking Niemi was an accident, and that the blow itself was unintentional, summary judgment would be improper due to the dispute over a material fact. However, the act of striking another in the face is one which we recognize as an act so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law.

22 Ariz.App. at 602, 529 P.2d at 1196. To the same effect is Steinmetz v. National American Ins. Co., 121 Ariz. 268, 589 P.2d 911 (App.1978).

We find in this case that only one inference can be drawn from Berray's testimony. The action of intentionally aiming a gun, known to be loaded, at a person at close range and intentionally firing it is an act so certain to cause harm that it must be said, as a matter of law, that the person pulling the trigger intended the resulting harm despite his statements to the contrary.

Appellants' reliance on Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972) is misplaced. In Vanguard Browning had robbed a drive-in window of a liquor store. He fired a shot with a pistol over his shoulder as he drove away and the shot hit Cantrell who was at the window. The trial court found that Browning had merely shot in the general direction of the injured person, Cantrell, and had not intended to shoot him. The trial court held that the exclusion clause in that situation did not apply. The critical difference between the facts in the Vanguard case and the facts in this case are that Browning did not believe his gun was aimed in a manner to strike Cantrell whereas Berray testified that he intentionally pointed the gun at Rodriquez and pulled the trigger because his life was in danger.

Appellants urge, however, that an act committed in self-defense should not be considered an "intentional act" within the meaning of the exclusion. With this we agree.

We have been asked to rule as a matter of law that a person who consciously acts in self-defense in defending himself against a wrongful attack is precluded from calling on his insurance company to defend him because of his "intentional act." A narrow and literal interpretation of the term "intentional acts" would lead to the application of the exclusion in these circumstances. However, on closer analysis, it would appear that Berray is entitled to at least a defense by the insurance company.

The primary purpose for incorporating an "intentional acts" exclusion into an insurance policy is "... to preclude individuals from benefiting financially when they deliberately cause injury." Globe American Cas. Co. v. Lyons, 131 Ariz. 337, 339-40, 641 P.2d 251, 253-54 (App.1981). When an insured is responding to an unjustified attack and acting in self-defense, this policy behind the exclusion loses meaning if applied to exclude the duty to defend the insured.

While the act of shooting a person in self-defense is intentional in a narrow sense, in a broader sense it is not. One confronted with the need to defend himself has had the situation thrust upon him and matters have progressed to a point where action is his only resort. There is a close similarity between such a circumstance and events that we think of as conventional accidents.

Anyone who reads the facts of this case as we have recited them could well conclude that Berray was not really acting in self-defense. For those who read the facts that way the result we reach...