Jones v. Norval

• Decision Date: 29 May 1979
• Docket Number: No. 42043,42043
• Citation: 279 N.W.2d 388,203 Neb. 549
• Parties: Samuel JONES, Appellee, v. Richard NORVAL et al., Appellees, Impleaded with Farmers Mutual Insurance Company of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 388

279 N.W.2d 388

203 Neb. 549

Samuel JONES, Appellee, v. Richard NORVAL et al., Appellees Impleaded with Farmers Mutual Insurance Company of Nebraska, Appellant.

No. 42043.

Supreme Court of Nebraska.

May 29, 1979.

Syllabus by the Court

1. Insurance: Negligence: Damages: Intent. An injury is "expected or intended" from the standpoint of the insured if a reason for an insured's act is to inflict bodily injury or if the character of the act is such that an intention to inflict an injury can be inferred as a matter of law.

2. Assault and Battery: Insurance: Intent. Where an 18-year-old man intentionally hits another person in the face with his fist, with force enough to knock the person unconscious, an intent to cause bodily injury can be inferred as a matter of law, and the subjective intent of the actor is immaterial.

Barlow, Johnson, DeMars & Flodman and John F. Recknor, Lincoln, for appellant.

Michael O. Johanns and Scott T. Robertson of Peterson, Bowman, Larsen & Swanson, Lincoln, for appellee Jones.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

McCOWN, Justice.

This is an action for a declaratory judgment that a homeowner's insurance policy provided coverage for a judgment against an assured for a willful and intentional assault. The District Court, after trial, granted plaintiff's motion for a directed verdict and entered judgment for the plaintiff and against the defendant, Farmers Mutual Insurance Company of Nebraska, for $5,000, the amount of the assault judgment, less a stipulated credit. The insurance company has appealed.

In November 1975, plaintiff, Samuel Jones, recovered a judgment against the defendant, Richard Norval, for $5,000 and costs for a willful, intentional assault in which Norval hit Jones in the face with his fist and broke Jones' jaw. Richard Norval was an 18-year-old minor who resided with his parents in their home and was an insured person under a homeowner's insurance policy, issued by the defendant, Farmers Mutual Insurance Company of Nebraska. Plaintiff's demand for payment of the judgment was rejected by the insurance company upon the ground that the insurance policy excluded coverage for the assault. This action for declaratory judgment followed.

The matter was tried by stipulation of the parties on the basis of the testimony in the prior assault trial and on the depositions of the plaintiff and the defendant, Richard Norval. The evidence established that on October 4, 1973, Richard Norval went to Jones' residence to talk to him about certain derogatory remarks about Norval that Jones had supposedly made to Norval's girl friend. Norval was 18 years old and a 3-sport athlete who had graduated from high school the preceding spring. Jones was a senior in high school. When Norval arrived at the Jones' residence, he asked Jones to come out on the porch and the two discussed the matter for approximately 10 minutes. At that time Jones attempted to go into the house, but Norval placed his hand against the door to prevent it. Jones pushed Norval's hand away and Norval hit Jones in the face, striking him with his closed fist, knocking him out, and breaking his jaw. Norval's testimony was that he did not intend to injure Jones, that he reacted instinctively, and that he did not expect to hurt Jones. The following question and answer are crucial. "Q. * * * whether or not you intended to cause harm, you intended to hit him? That's true, isn't it? A. Yes, that's true." Essentially Norval's testimony was that although he intended to hit Jones, he only intended to cause a sting or a bruise but not a serious injury that would require medical attention.

The insurance policy contained an exclusion providing: "This policy does not apply: * * * to bodily injury or property damage which is either expected or intended from the standpoint of the Insured." The District Court specifically found that Norval did not expect or intend to cause injury or damage to the plaintiff and did not act with the specific intent to cause harm. The District Court sustained plaintiff's motion for directed verdict and entered judgment against the defendant insurance company in the amount of $5,000 less a stipulated $984 credit. The court also taxed attorney's fees and costs to the defendant.

The critical issue in this case is whether Norval expected or intended to cause bodily injury to Jones and whether or not the subjective testimony of Norval that he did not intend to injure Jones is sufficient to raise a factual issue of intent for submission to the fact finder.

In State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 207 N.W.2d 364, this court specifically considered the language of the exclusion involved here. In that case we affirmed the trial court's determination that a youth who fired a B-B gun from a slowly moving automobile without specific aim and struck a schoolmate did not intend or expect to do bodily injury to the schoolmate, but only intended to scare him. In that case we held that: "(U)nder the language of the exclusion in question, an injury is either expected or intended if the insured acted with the specific intent to cause harm to a third party. It seems to us to be immaterial whether the injury which results was specifically intended, i. e., the exclusion would apply even though the injury is different from that intended or anticipated." This court recognized that it was difficult to precisely delineate the scope of the rule and it cited and discussed numerous cases illustrating the scope of the rule. We said: "The term 'expected' when used in association with 'intended' carries the connotation of a high degree of certainty or probability and seems to be used to practically equate with 'intended,' because one expects the consequences of what one intends." This court pointed out in the Muth case the practical factual differences which distinguish that case from the one now before us. In the Muth case we said: "If, in the situation before us, the trial court had found that Allen had intended to hit James, even though he might have intended no serious injury, the language of the exclusion would have eliminated coverage."

In the case now before us there is no way in which Norval can avoid his specific admission that he intended to hit Jones, and there is no escape from the fact that he hit him hard enough to break his jaw and knock him out. A physically mature 18-year-old athlete who intentionally hits another person in the face with his fist hard enough to break his jaw and render him unconscious must be said to expect or intend the natural, normal consequences of his own intentional act. In the language of the Muth case, such a rule "will tend to promote the public policy of excluding coverage where there is a deliberate intention to cause physical harm or where, * * * such intention must be attributed as a matter of law because the acts are of such a nature that the injury must necessarily be expected." Numerous cases support that position. In Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir., 1968), the insured deliberately sideswiped a motorcycle causing personal injuries to the rider. The court said "Where an intentional act results in injuries which are the natural and probable consequences of the act, the injuries as well as the act are intentional."

In Hins v. Heer, 259 N.W.2d 38 (N.D., 1977), an intentional blow to the jaw was involved as well as the same language in an exclusionary clause. The court dismissed the action against the insurance company and said: "Nothing in the record before us supports a finding that Heer's blow was an accident or unintentional. Further, we find no merit in Hins's assertion that a distinction exists between Heer's intentional act of assaulting Hins and the consequences of such assault. * * * The 'occurrence' giving rise to the instant case falls clearly within the purview of Exclusion Clause 1(f) of Heer's homeowner's insurance policy."

In Steinmetz v. Nat. Am. Ins. Co., 589 P.2d 911 (Ariz.App., 1978), the identical exclusionary clause was involved. The facts are likewise virtually identical in that the insured struck the plaintiff in the face causing serious injuries. The court upheld a summary judgment for the insurer and held that notwithstanding the actor's statement to the contrary, the act of striking another in the face was an act so certain to cause a particular kind of harm that the actor who performed such an act intended the resulting harm for purposes of the liability policy provision. The Arizona court stated: "The exclusion here is unambiguous. By its language it excludes from coverage the intentional acts of the insured which result in injury. It follows that if the injury results from the natural and probable consequences of the intentional act, the subjective intent of the actor is simply immaterial the exclusion applies."

The case of Clark v. Allstate Insurance Company, 22 Ariz.App. 601, 529 P.2d 1195, also involved an insured intentionally striking the plaintiff in the face with his fist. The insured maintained that he had no subjective intent to injure. The court said: "The contention of young Clark (insured) 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." The court said: "(T)he 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."

The cases overwhelmingly indicate that an injury is "expected or intended" from the standpoint of the insured if a reason for an insured's act is to inflict bodily injury or if the character of the act is such that an intention to inflict an injury can be inferred as a matter of law. Continental Western...