Harris v. Richards, 69,299

• Court: United States State Supreme Court of Kansas
• Writing for the Court: SIX; ABBOTT; PRAGER
• Citation: 867 P.2d 325,254 Kan. 549
• Parties: Donald HARRIS, Appellant, v. Roy RICHARDS, et al., Appellees.
• Docket Number: No. 69,299,69,299
• Decision Date: 21 January 1994

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867 P.2d 325 254 Kan. 549 Donald HARRIS, Appellant,
v.
Roy RICHARDS, et al., Appellees. No. 69,299. Supreme Court of Kansas. Jan. 21, 1994. Syllabus by the Court

1. As a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy.

2. Where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.

3. An accident is an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.

4. The relationship between "occurrence" and "accident" as those terms are used in a homeowners insurance policy is discussed and applied to the issue of whether a shooting was an "occurrence" under the policy.

5. A liability provision in an insurance contract excluding coverage for injuries expected or intended from the standpoint of the insured excludes from coverage an injury which the insured intentionally caused.

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Donald G. Strole, Lawrence, argued the cause and was on the brief for appellant.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and Robert J. Luder, of the same firm, was with him on the brief for appellees.

SIX, Judge:

This is a homeowners insurance policy coverage case. Donald Harris sought damages for bodily injury resulting from shotgun wounds in an action filed against Roy and Ruth Richards as administrators of the Estate of Douglas Windle Hawley, deceased. The trial court granted the Richards' motion for summary judgment, concluding that the policy did not provide coverage [254 Kan. 550] because (1) the shooting was not a covered occurrence, and (2) the intentional acts exclusion applied.

Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on motion of this court).

We find no error and affirm summary judgment.

Facts

At approximately 6:50 p.m. the evening of October 27, 1989, Donald Harris was seated in the cab of his pickup truck with Kimberly Hawley. Douglas Hawley, Kimberly's ex-husband, fired two shotgun rounds into the back window of the pickup. Harris was on the driver's side and Kimberly was on the passenger side of the cab. When Douglas fired the shots he could not have seen whom he was shooting at due to darkness. The pellets struck Harris on the right side of his face, causing facial scarring and blindness. Douglas walked around to the side door and fired a third shot, which killed Kimberly. He then killed himself.

Charles and Sharon Hawley, Douglas' parents, were the named insureds on a homeowners liability policy issued by Farm Bureau Mutual Insurance Company (Farm Bureau). For purposes of the summary judgment motion, Douglas is considered to be an insured under the policy. Farm Bureau is not a party to the litigation.

Harris filed his petition on October 25, 1991, long after the four-month limit of the non-claim statute had run. See K.S.A. 1992 Supp. 59-2239(1). The defendants, Roy and Ruth Richards, are the administrators of Douglas' estate. The trial court ruled that Harris' claim against the estate is limited to any applicable insurance coverage. See K.S.A.1992 Supp. 59-2239(2). Harris alleged that Douglas had intended only to shoot Kimberly. Harris did not specify whether his claims were based on negligence or battery.

The Richards argued that the fundamental nature of the underlying tort was that of a battery rather than negligence. Consequently, they asserted that K.S.A. 60-514(2), the one-year statute of limitations for battery, barred the claim, and they moved for dismissal. The motion was denied. The Richards cross-appeal the denial of their motion to dismiss.

[254 Kan. 551] Because we have affirmed the trial court's analysis of the insurance coverage issue, we find it unnecessary to address the cross-appeal other than to indicate we find no error in the trial court's ruling on the statute of limitations issue.

The Richards' summary judgment motion asserted that there was no homeowners coverage because the shooting was not an occurrence under the policy and also was excluded under the "expected or intended" acts exclusion. Harris filed a memorandum in opposition to the motion, in which he stated that he essentially agreed with the Richards' statement of uncontroverted facts. Harris also submitted additional proposed facts. These proposed facts were not supported by any record citations. The Richards' reply emphasized Harris' failure to comply with our summary judgment Rule 141(b) (1993 Kan.Ct.R.Annot. 133-34).

Harris' Contentions on Summary Judgment

Harris contends that summary judgment was not proper because there remained issues of material fact to be resolved. He reasons that one can infer from the undisputed facts in the Richards' memorandum in support of summary judgment that Douglas

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intended to shoot only Kimberly and unintentionally shot Harris. He believes one also can infer that Douglas shot Harris either because of mistaken identity or without knowing of Harris' presence.

According to Harris, the factual question at issue concerns Douglas' intent when he fired the shots into the back of the pickup truck. Harris believes that because intent is a key factual issue, summary judgment is improper.

Richards' Contentions on Summary Judgment

The Richards explain that Harris' assertion that Douglas believed Kimberly was the only person in the truck cannot be inferred from Harris' uncontroverted facts and has no basis in the record. They observe that there is no evidentiary basis for the statement that Douglas subjectively intended to injure only Kimberly. They maintain that under certain circumstances, Kansas and other jurisdictions have held that in the insurance policy context, intent to injure can be inferred as a matter of law. Consequently, they suggest that the central question in the case [254 Kan. 552] at bar is whether Douglas' intent to injure Harris can be inferred as a matter of law, not whether Douglas had actual intent to injure.

Our review of the record and of the parties' contentions convinces us that summary judgment was a proper procedural vehicle for resolving the case at bar. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed).

Was the Shooting an "Occurrence" Under the Policy?

The resolution of the instant action requires our interpretation of a homeowners insurance policy; consequently, the acknowledgement of our established rules of construction that are applicable to the case at bar is appropriate. We have frequently observed that "[a]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for...