Group Ins. Co. of Michigan v. Czopek

• Decision Date: 09 September 1992
• Docket Number: No. 11,Docket No. 90390,J,11
• Citation: 489 N.W.2d 444,440 Mich. 590
• Parties: GROUP INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellee, v. Don A. CZOPEK & Herdis B. Petty, Defendants-Appellants, and Arthur A. Smith, Defendant. Calendaran. Term 1992.
• Court: Michigan Supreme Court

Page 444

489 N.W.2d 444

440 Mich. 590

GROUP INSURANCE COMPANY OF MICHIGAN, Plaintiff-Appellee, v. Don A. CZOPEK & Herdis B. Petty, Defendants-Appellants and Arthur A. Smith, Defendant.

Docket No. 90390.

Calendar No. 11, Jan. Term 1992.

Supreme Court of Michigan.

Argued Jan. 8, 1992.

Decided Sept. 9, 1992.

[440 Mich. 592] Thomas K. Dipietro Law Offices by Ronald M. Haystead, Detroit, for defendants-appellants.

Brandt, Hanlon, Becker, Lanctot, McCutcheon, Schoolmaster & Taylor by Edwin F. Dyer, II (Nancy L. Bosh, of counsel), Detroit, for plaintiff-appellee.

Harris & Mooney, P.C. by John G. Mooney, Detroit, for defendant-Smith.

OPINION

MALLETT, Justice.

This is an action for declaratory judgment, seeking to determine the insurer's obligation to defend or indemnify its insured for his liability for injuries he inflicted upon two police officers when he resisted arrest.

We are called upon to consider whether the injuries caused by defendant Arthur Smith's assault on two police officers constituted an "occurrence" as required by plaintiff's homeowner's policy. We also consider whether intoxication can turn an intentional act into an accidental one under the insurance policy language.

I

On New Year's Eve, 1983, eighteen-year-old Arthur Smith went out with a friend, bought a twelve-pack of beer, and drove around awhile drinking. Smith drank six of the twelve beers in approximately thirty to forty-five minutes.

Smith and his friend then went to a New Year's Eve party where Smith drank two more beers and a pint of peppermint schnapps, except for four shots drunk by a friend.

About 11:00 p.m., Smith left the party and began walking home. He knew that he was drunk and that his speech was slurred. Officer Czopek, a defendant in the instant action, testified that he saw Smith walking down the center of Gudith Road, weaving from side to side. As a result, Smith was interfering with traffic and putting himself at great risk.

Officer Czopek stopped his car, turned around, and drove back down the road. He pulled up next to Smith and tried to talk him into getting off the road. Smith refused and became belligerent. Czopek then made a U-turn, radioed for back-up assistance, and watched Smith.

Smith turned off the road and began to walk across a field to avoid the traffic light at the corner of West and Gudith Roads. He then tried to cross West Road. As he started to cross the street, he dove or fell into the westbound lane of traffic. Officer Czopek drew even with Smith and again told him to get out of the road. Smith again began shouting at the officer.

Czopek turned into a nearby driveway near Smith, got out of the car, and called to Smith. Instead of listening to the officer, Smith stopped and, as Czopek approached, began shouting that he had to go home because his father was going to kill him. Officer Czopek tried to calm him down, but Smith grabbed him by the lapels. Czopek then realized that Smith was extremely drunk.

When Corporal Herdis Petty arrived on the scene, Smith became hostile and belligerent. The two policemen tried to handcuff Smith. The struggle which ensued lasted nearly one hour. Smith lay on the ground and kicked and swung his legs. As the two police officers tried to put him into the police car, he wrapped one leg around part of the car while still kicking with the other. Each time they got him partially in the car, Smith tried to get out.

As a result of their struggle with Smith, Officers Czopek and Petty suffered injuries. Officer Czopek suffered frostbite on one of his hands; Officer Petty had some ribs broken where Smith kicked him. Smith also bit his hand.

Smith admitted that he knowingly resisted arrest because he did not want to go to jail. However, he did not recall kicking or hitting anyone and, because of this, did not think he harmed either officer. He admitted, however, that he intended to resist arrest.

Smith was charged with assault and battery, and was fined $250 at his criminal trial.

The officers filed a civil suit against Smith's parents. Group Insurance Company of Michigan (GICOM) was the parents' homeowner's insurer. It filed the instant action, asking the court to declare that it was not required to defend or indemnify Arthur Smith. Trial judge Richard Hathaway granted GICOM's motion for summary disposition. The Court of Appeals affirmed the lower court's decision in an unpublished opinion per curiam.

In lieu of granting leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of Metropolitan Property & Liability Ins. Co. v. DiCicco, 432 Mich. 656, 443 N.W.2d 734 (1989), and to discuss whether forcibly resisting arrest can be considered an "occurrence" within the policy language, regardless of whether the injury was intended or expected from the standpoint of the insured, 434 Mich. 882, 452 N.W.2d 209 (1990).

On remand, the Court of Appeals again found in an unpublished opinion per curiam in favor of GICOM. According to the panel, there was no "occurrence" within the meaning of the policy. Further, the panel found that even in light of the DiCicco "intended or expected" language, the incident fell within the exclusionary clause of the policy.

Officers Czopek and Petty filed an application for leave to appeal in this Court on November 16, 1990. We granted leave to determine whether the injuries suffered were the result of an occurrence. Further, we consider whether an intoxication can vitiate making the insured's actions "accidental" under the policy.

We find that Arthur Smith's actions were intentional, and therefore there was no "occurrence" as defined within the policy. Further, we find that an intoxicated person can intend the results of his actions. Thus, an intoxicated person's actions need not be considered "accidental" under the policy. We affirm the decision of the Court of Appeals in favor of plaintiff GICOM.

II

The first step in determining if an insurance policy applies is to determine whether the policy is clear and unambiguous on its face. If an ambiguity exists, the policy must be construed in favor of the insured. Powers v. DAIIE, 427 Mich. 602, 624, 398 N.W.2d 411 (1986). Under the heading Coverages, the policy at issue states:

"Coverage E--Personal Liability

"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence."

The next heading in the policy is "Exclusions," under which the following appears:

"This policy does not apply:

"1. Under Coverage E--Personal Liability and Coverage F--Medical Payments to Others:

* * * * * * "f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured."

On the same page, under the heading "Additional Definitions," the policy provides:

"5. 'occurrence': means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage."

The terms used in an insurance policy either are clearly defined within the policy or are given their commonly used meaning. Fireman's Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. 1317, 1323, n. 7 (E.D.Mich.1988). Omitting the definition of a word that has a common usage does not create an ambiguity within the policy. We conclude that the provisions in the GICOM policy are clear and unambiguous. We cannot create ambiguity where none exists. Edgar's Warehouse, Inc. v. United States Fidelity & Guaranty Co., 375 Mich. 598, 602, 134 N.W.2d 746 (1965). It is also improper for us to rephrase or interpret the clear and unambiguous language of the policy. Instead, we must enforce the language of this contract as it is written. Eghotz v. Creech, 365 Mich. 527, 530, 113 N.W.2d 815 (1962).

Further, the exclusions to the general liability in a policy of insurance are to be strictly construed against the insurer. Francis v. Scheper, 326 Mich. 441, 448, 40 N.W.2d 214 (1949). Clear and specific exclusions must be enforced. An insurance company cannot be found liable for a risk it did not assume. Illinois Employers Ins. of Wausau v. Dragovich, 139 Mich.App. 502, 507-508, 362 N.W.2d 767 (1984); Kaczmarck v. La Perriere, 337 Mich. 500, 60 N.W.2d 327 (1953).

III

We must consider whether Arthur Smith's assault on officers Petty and Czopek constituted an "occurrence" under the policy. We find that it did not. The policy language supplied coverage on behalf of the insured for all of the bodily injuries caused by the insured that constituted an occurrence. An occurrence is defined by the policy as "an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage." The meaning of "accident" in insurance policies has been defined as:

"anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected by the person injured or affected thereby--that is, takes place without the insured's foresight or expectation and without design or intentional causation on his part. In other words, an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected." Guerdon Industries, Inc. v. Fidelity & Casualty Co. of New York, 371 Mich. 12, 18-19, 123 N.W.2d 143 (1963).

In his deposition, Mr. Smith admitted that he intended to prevent the arrest. His actions, biting and swinging his arms and legs, were intended to make it impossible for the officers to easily get him into the squad car and on his way to the police station. Because of Arthur Smith's admission in his deposition, we are unwilling to conclude that his resisting arrest, which resulted in injuries to the policemen, was an "accident." It clearly was not an undesigned contingency...