Kling v. Collins

• Decision Date: 23 November 1981
• Docket Number: No. 14410,14410
• Parties: Kathleen Murphy, Wife of/and Herbert J. KLING v. Paul W. COLLINS.
• Court: Court of Appeal of Louisiana — District of US

Page 478

407 So.2d 478

Kathleen Murphy, Wife of/and Herbert J. KLING v. Paul W. COLLINS.

No. 14410.

Court of Appeal of Louisiana, First Circuit.

Nov. 23, 1981.

Wayne W. Foley, New Orleans, for plaintiffs and appellees.

Prentiss Cox, Houma, for defendant Paul W. Collins.

Lloyd T. Bourgeois, Thibodaux, for defendant and appellant State Farm Fire & Cas. Co.

Before CHIASSON, EDWARDS and LEAR, JJ.

CHIASSON, Judge.

Plaintiffs-appellees, Herbert J. and Kathleen M. Kling, husband and wife, filed suit for damages against Paul W. Collins, defendant-appellee, who, in turn, filed a third party demand against appellant, State Farm Fire & Casualty Company, his homeowners insurer. State Farm denied coverage on the basis of an exclusionary clause in the policy. The trial court rendered judgment in favor of plaintiffs and against Paul Collins and State Farm Fire & Casualty Company, jointly, severally and in solido, awarding Mrs. Kling $15,000 in general damages and Mr. Kling $4,387.15 in special damages. State Farm appealed the trial court's judgment. The Klings and Mr. Collins did not appeal nor did they file an answer to the appeal taken by State Farm.

In the late afternoon of May 22, 1976, Mrs. Kling and her mother, Mildred Madere, brought Florence Collins, wife of Paul Collins and sister of Mildred Madere, home from the hospital to her residence in Houma, Louisiana. Mr. Collins had formerly been married to Mildred Madere and Mrs. Kling had been his stepdaughter. The record shows that ill feelings existed between Mr. Collins and Mrs. Kling for many years. Mr. Collins stated he did not want Mrs. Kling in his home. On this occasion, after he had told her to leave his house, Mr. Collins contends that Mrs. Kling began shouting and making gestures toward him whereupon he shoved her in an effort to make her leave his house. Mr. Collins further contends he did not intend to harm Mrs. Kling.

Mrs. Kling contends defendant intentionally pushed her to the floor in an attempt to remove her from his house. As a result of her fall, she sustained a wrist injury.

State Farm contends the trial court erred in not applying the exclusionary clause contained in Collins' homeowners policy. The clause reads as follows:

"THIS POLICY DOES NOT APPLY:

1. Under Coverage E-Personal Liability...

(f) TO BODILY INJURY OR PROPERTY DAMAGE WHICH IS EITHER EXPECTED OR INTENDED FROM THE STANDPOINT OF THE INSURED."

State Farm has the burden of proving the applicability of the exclusionary clause in its homeowners policy. von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283 (La.App. 1st Cir. 1978); Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971). It must therefore prove that the bodily injury sustained by Mrs. Kling was intended or expected from the standpoint of the insured, Mr. Collins.

State Farm relies primarily on the case of Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1974), writ denied, 310 So.2d 643 (La.1975). In Kipp, supra, the court was faced with a factual situation wherein the insured confronted her husband and another woman (plaintiff) dancing in a bar. The insured proceeded to grab plaintiff by her hair and shoved her to the floor, resulting in injuries to plaintiff. The insured admitted that she intended to grab plaintiff's hair and to shove plaintiff to the floor, but denied that she intended to injure her. This court affirmed the judgment of the lower court against Mrs. Hurdle stating that "it is presumed she (the insured) intended the consequences of her aggressive action." We further held therein that the exclusionary clause (worded exactly like the one in the present case) was applicable and no coverage existed.

State Farm therefore argues that because Mr. Collins admits pushing Mrs. Kling, it must be presumed he intended the consequences of his act and the exclusion in the policy should be applied. The trial judge in concluding otherwise stated:

"While it is beyond question that defendant did push Mrs. Kling, the court is of the opinion that Mr. Collins did not intend any harm or injury to the lady. After considering the evidence carefully, the court has concluded that Mr. Collins in pushing or shoving the plaintiff did not intend any real harm or injury to her, but rather only wanted her to leave his home. Having so concluded, the court believes the exclusionary clause in Mr. Collins' homeowners insurance policy is not applicable to the facts of this case since the bodily injury to Mrs. Kling was neither expected nor intended from the standpoint of Mr. Collins. The homeowners insurance policy covers the injury and damages incurred by the plaintiffs and the exclusionary clause in the State Farm Fire and Casualty Company policy is not applicable. (See Sherwood v. Sepulvado, (La.App.) 362 So.2d 1161.)"

In Kipp, supra, the insurer proved that the insured intended to pull plaintiff's hair and intended to force her to the floor. Injury necessarily follows from such actions.

In this case, the insurer only proved that its insured pushed plaintiff in an attempt to get her out of his home. The insurer herein did not prove that its insured intended to shove plaintiff to the floor or intended to harm or injure her in any manner.

State Farm, under the facts of this case, did not carry its burden of proving that Mr. Collins intended to injure Mrs. Kling. We cannot presume, as we did in the case of Kipp, that Mr. Collins intended the consequences of his act since the circumstances of this case and the nature of his actions are not so aggressive as to reasonably justify such a presumption. The exclusionary clause should apply only when the "act" is of such a...