Lewis v. Allstate Ins. Co.

• Decision Date: 03 December 1998
• Docket Number: No. 97-CA-00183-SCT.,97-CA-00183-SCT.
• Citation: 730 So.2d 65
• Parties: Katina LEWIS, Natural Mother and Next Friend of Destiny Bowie Lewis and Donnetta Nicole Bowie, Minors v. ALLSTATE INSURANCE COMPANY.
• Court: Mississippi Supreme Court

730 So.2d 65

Katina LEWIS, Natural Mother and Next Friend of Destiny Bowie Lewis and Donnetta Nicole Bowie, Minors v. ALLSTATE INSURANCE COMPANY.

No. 97-CA-00183-SCT.

Supreme Court of Mississippi.

December 3, 1998.

Rehearing Denied April 15, 1999.

Dale Hubbard, Jackson, Attorney for Appellant.

John Brady, Jackson, Attorney for Appellee.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

¶ 1. In this case, Katina Lewis, the natural mother and next friend of Destiny Bowie Lewis and Donnetta Nicole Bowie, minors (Lewis), seeks the reversal of the circuit court determination that Aaron Thompson has no coverage under his parents' homeowner's insurance policy for the wrongful death lawsuit filed by Lewis against Aaron Thompson, Shannon Michael Green and Tyrone Wilson and that Allstate Insurance Company (Allstate) Aaron Thompson, Green and Wilson negligently caused the death of Donnell Bowie by throwing molotov cocktails in a house where Bowie slept.

¶ 2. Upon careful review, we hold that pursuant to the policy under review in this particular case, Aaron Thompson's intent to cause property damage was sufficient to trigger the intentional acts exclusion within the insurance policy. Because there is no genuine issue of material fact as to the intent of the insured, Aaron Thompson, summary judgment was proper. Accordingly, we affirm the circuit court below.

I. BACKGROUND

¶ 3. Allstate issued homeowner's policy No. 02007637 to Stanley and Jacqueline Thompson on September 9, 1992. At the time, the Thompsons resided in Chicago, Illinois. Aaron Thompson is the son of Stanley and Jacqueline Thompson, and at the time of the actions that are the basis of the wrongful death lawsuit brought by Lewis, Aaron was a student at Jackson State University in Jackson, Mississippi.

¶ 4. On August 28, 1993, Aaron Thompson, Shannon Michael Green and Tyrone Wilson were apparently involved, in some fashion, in an altercation at a local nightclub in Jackson, Mississippi with Maury Richardson and others. Thompson, Green and Wilson went to 1313 Barrett Avenue, the residence of Richardson. Thompson drove the vehicle, while Green and Wilson assembled "molotov cock-tails" or firebombs.

¶ 5. Thompson, Green and Wilson alleged that they all believed that Richardson would not be at home and that they assumed that no one else was at Richardson's home. Upon arriving at Richardson's residence, Green and Wilson broke a window of the house, threw the "molotov cocktails" into the bedroom they believed belonged to Maury Richardson, and returned to the vehicle where Aaron Thompson waited. The three fled the scene, with Thompson driving.

¶ 6. The molotov cocktails caused a fire in the residence. However, unknown to Thompson, Green or Wilson, Donnell Bowie was sleeping in another bedroom of the residence at 1313 Barrett Avenue. As a result of the fire, Bowie died of smoke inhalation. Bowie left surviving him a minor daughter, Destiny Bowie Lewis, and an unborn daughter, Donnetta Nicole Bowie, with whom Bowie's girlfriend Katina Lewis was pregnant at the time of Bowie's death.

¶ 7. Subsequently, Thompson, Green and Wilson were arrested an charged with capital murder. Green pleaded guilty to charges of arson and manslaughter. Wilson was tried and found guilty of manslaughter and arson. Thompson pleaded guilty to accessory after the fact of murder. On September 2, 1994, Lewis filed her wrongful death lawsuit against Green, Wilson and Thompson, alleging that the three men were negligent in assuming that the residence in question was unoccupied when the firebombs were thrown.

¶ 8. Stanley and Jacqueline Thompson made demand upon Allstate to defend and indemnify Aaron Thompson against the wrongful death lawsuit under the terms of the homeowner's policy. Allstate proffered a defense for Aaron Thompson but reserved the right to deny coverage. Allstate then filed its Complaint for Declaratory Judgment.

¶ 9. After filing the complaint for declaratory judgment, Allstate moved for summary judgment, asserting that three different exclusionary provisions of the homeowner's policy are applicable to Lewis's claim against Aaron Thompson: the criminal acts exclusion; the automobile use exclusion; and the intentional acts exclusion. Granting summary judgment to Allstate, the trial court ruled that the intentional acts exclusion precludes coverage for Thompson and ruled that Allstate does not have a duty to defend Aaron Thompson or indemnify him for any verdict rendered against him in the wrongful death action. It is from this finding that Lewis appeals, asking 1) whether the trial court erred in interpreting the intentional acts exclusion of the policy to apply to the facts of this case and 2) whether the trial court erred in granting summary judgment to Allstate Insurance Company based upon the intentional acts exclusion of its homeowner's policy.'

¶ 10. The intentional acts exclusion is contained on page 23 of the policy, under "Section II—FAMILY LIABILITY AND GUEST MEDICAL PROTECTION Coverage X Family Liability Protection":

Losses We Do Not Cover:

1. We do not cover bodily injury or property damage resulting from:

(a) An act or omission intended or expected to cause bodily injury or property damages. This exclusion applies even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected;

II. INTERPRETATION OF EXCLUSIONARY CLAUSE

¶ 11. Lewis argues that the trial court erred by finding that the intentional acts exclusion¹ was applicable. Of course, Allstate argues that the intentional acts exclusion is applicable. This Court has not yet determined whether an exclusionary clause for bodily injury or property damage resulting from an act intended or expected to cause bodily injury or property damage should apply when the bodily injury results from property damage. Accordingly, we will resolve this appeal pursuant to the Mississippi cases that exist. To the extent that they are useful in the process of rendering a decision, we will look to cases from other jurisdictions.

¶ 12. The interpretation of insurance policy language is a question of law. Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995). Generally, under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979). Under Mississippi law, ambiguous and unclear policy language must be resolved in favor of the insured. Harrison v. Allstate Ins. Co., 662 So.2d 1092, 1094 (Miss.1995). Further, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer. Nationwide Mutual Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994). In Mississippi, "[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it." Coleman v. Sanford, 521 So.2d 876, 878 (Miss.1988).

¶ 13. Lewis argues that the policy in this case should be read to exclude coverage for bodily injury resulting from an act or omission intended or expected to cause bodily injury and to exclude coverage for property damage resulting from an act or omission intended or expected to cause property damage. However, according to Lewis, the exclusionary provision does not apply to a claim for bodily injury that results from an act intended or expected to cause only property damage. We disagree with Lewis's construction. Parsing the language as Lewis suggests does not follow from a normal reading of the policy. Further, it does not require the policy to be construed broadly. The intent of the policy language is not ambiguous.

¶ 14. This Court has previously addressed whether an intentional acts exclusion precluded coverage when an insured shot an individual and claimed that the shooting was not intentional. Southern Farm Bureau Cas. Ins. Co. v. Allard, 611 So.2d 966 (Miss. 1992). In Allard, the personal injury suit was resolved prior to the suit for declaratory judgment. Id. at 967. The jury found that Allard, the insured, did not intend to shoot Rowland, the victim. The homeowner's policy covering Allard contained an exclusion to liability coverage stating that coverage "does not apply to bodily injury or property damage which is expected or intended by the insured." Id. at 968. The Court noted that under Mississippi law, "`[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.'" Id. (quoting Coleman, 521 So.2d at 878). Without determining whether the policy language was ambiguous, the Court relied on the jury's conclusion that, based on the evidence, Allard did not intend to shoot or hit Rowland; rather, Allard only intended to stop Rowland by shooting in front of him. Id. at 968-69.

¶ 15. As to whether the particular exclusionary provision in question applies to exclude coverage under the scenario in question, i.e. where the insured intended to cause property damage only, but his conduct ultimately resulted in bodily injury, this Court has not been presented with such an issue. Accordingly, we turn to other jurisdictions for comparable treatment of this particular issue.

¶ 16. Our research reveals only one case with facts like those under review here. Michigan Millers Ins. Co. v. Anspach, 109 Ohio App.3d 618, 672 N.E.2d 1042, 1044 (Ohio Ct.App.1996). In Anspach, the children of the insured planned to burglarize the home of one Judith Simpson and to conceal the burglary by setting fire to the house. Id. at 1043. The juveniles believed that the house would be unoccupied that night. Id. at 1044. Five of the juveniles, including the children of the insured,...