Linebaugh v. Berdish

• Decision Date: 12 November 1985
• Docket Number: Docket No. 79414
• Citation: 376 N.W.2d 400,144 Mich.App. 750
• Parties: James Michael LINEBAUGH, a/k/a Jim Michaels, Plaintiff-Appellee Cross-Appellant, v. Linda BERDISH, Defendant-Appellant Cross-Appellee, and Transamerica Insurance Company, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 400

376 N.W.2d 400

144 Mich.App. 750

James Michael LINEBAUGH, a/k/a Jim Michaels Plaintiff-Appellee Cross-Appellant, v. Linda BERDISH, Defendant-Appellant Cross-Appellee and Transamerica Insurance Company, Defendant-Appellee.

Docket No. 79414.

Court of Appeals of Michigan.

Submitted April 8, 1985.

Decided Aug. 6, 1985.

Released for Publication Nov. 12, 1985.

Foster, Meade, Magill & Rumsey by Katherine E. Ward, and Brimacombe & Schlecte, P.C. by Mark A. Hopper, Ann Arbor, for plaintiff-appellee cross-appellant.

Googasian, Hopkins, Forhan & Hohauser by George A. Googasian and Jacquelyn K. Hayes, Bloomfield Hills, for defendant-appellant cross-appellee.

Ulanoff, Ross & Wesley, P.C. by Stuart A. Ulanof, Southfield, for Transamerica Ins. Co.

Before HOOD, P.J., and V.J. BRENNAN and MAHER, JJ.

PER CURIAM.

Linda Berdish filed suit in Oakland County Circuit Court against James Michael Linebaugh on September 22, 1982, seeking recovery for damages she allegedly sustained because of injuries allegedly resulting from several incidents of nonconsensual intercourse ("sexual assault") and forced fellatio perpetrated by Linebaugh (a disc jockey) when he was twenty-one and she was fourteen years of age. The complaint also contained allegations of negligence. Berdish amended her complaint (incorporating all allegations contained in her first complaint) on June 9, 1983, adding Linebaugh's employer as a party defendant. On June 14, 1983, Linebaugh filed the present action against Berdish and Transamerica Insurance Company (Transamerica) seeking a declaratory judgment to require indemnification under Linebaugh's parents' homeowner's policy for any judgment recovered against Linebaugh in the Berdish suit and to compel Transamerica to defend Linebaugh in that suit. Transamerica claimed in its September 13, 1983, answer that coverage was excluded under the policy because Linebaugh's actions were intentional. Transamerica, however, agreed to defend Linebaugh with a reservation of its rights.

On January 17, 1984, Linebaugh moved for partial summary judgment against Transamerica. Transamerica filed a cross motion for summary judgment on March 21, 1984. Judge Richard D. Kuhn issued an opinion and order on June 11, 1984, denying Linebaugh's motion and granting Transamerica's motion, GCR 1963, 117.2(3). Judge Kuhn found no duty to defend Linebaugh and no duty to indemnify him should Berdish recover in her underlying lawsuit, which has not yet gone to trial. A final order was entered on June 28, 1984, and Berdish appeals from this order as of right and Linebaugh cross-appeals as of right.

The first issue for our consideration is whether an intent to injure may be inferred as a matter of law from the nature of Linebaugh's alleged sexual contacts with Berdish.

Although neither party identified the basis for the summary judgment motions, the trial court based its grant of summary judgment for Transamerica on GCR 1973, 117.2(3), since affidavits were attached to the motion. See also MCR 1985, 2.116(G)(3)(b) (affidavits required for a motion under rule MCR 1985, 2.116(C)(10)). A motion for summary judgment under GCR 1963, 117.2(3) asserts that no genuine issue of material fact exists. Such a motion for summary judgment should not be granted when there is an issue of material fact, since the motion tests the factual support for plaintiff's claim. Soderberg v. Detroit Bank & Trust Co., 126 Mich.App. 474, 479, 337 N.W.2d 364 (1983), lv. den. 419 Mich. 867, 347 N.W.2d 457 (1984). The trial court must consider the affidavits submitted, pleadings depositions, admissions and documentary evidence. GCR 1963, 117.3. See also MCR 1985, 2.116(C)(10) and (G)(5). The opposing party must show that a genuine issue of disputed fact exists. The test is whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. This Court is liberal in finding a genuine issue of material fact. Rizzo v. Kretschmer, 389 Mich. 363, 371-373, 207 N.W.2d 316 (1973). In this case, the central issue is whether Linebaugh, then twenty-one years old, intended to injure Berdish, then fourteen, when he allegedly had sexual intercourse with her. Unless the intent to injure can be inferred as a matter of law, a genuine issue of fact regarding Linebaugh's intentions remains and summary judgment under this rule would be improper. Thus, if we decide that intent to injure can be inferred, as a matter of law, summary judgment was proper because coverage under the policy in question excludes intentional injuries.

Although no findings of fact have been made in Berdish's related suit against Linebaugh for injuries arising out of Linebaugh's alleged sexual contacts with her, a "declaratory judgment action is especially suitable and available to adjudicate before trial conflicts arising between an insured and an insurer". Group Ins. Co. of Michigan v. Morelli, 111 Mich.App. 510, 514, 314 N.W.2d 672 (1981).

The cases in Michigan concerning exclusions from homeowner's insurance coverage have generally construed one of two policy forms. Many older cases, in particular, have concerned exclusions for "injury, sickness, disease, death, or destruction caused intentionally by or at the direction of the insured", which is approximately the wording of the policy in this case.

The homeowner's policy issued by Transamerica to Linebaugh's parents provides that Transamerica will indemnify its insureds against "occurrences" which are accidentally caused. The policy states in part:

"Section II. Comprehensive Personal Liability, definition

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"(b) Occurrence. 'Occurrence' means an accident, or a continuous or repeated exposure to conditions, which results in injury during the Policy Period, provided the injury is accidentally caused. All damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence.

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"Section II of this Policy Does Not Apply:

"(c) Under coverages E and F, to injury, sickness, diseases, death or destruction caused intentionally by or at the direction of the Insured."

The other line of Michigan cases interprets exclusions for some type of "bodily injury which is expected or intended from the standpoint of the insured". The type of insurance coverage being construed in a particular case should be constantly borne in mind. See generally, Anno: Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured, 31 ALR4th 957, 971-976.

The general rule appears to be that the exclusion found in the instant case, to be effective, requires both an intentional act and an intentionally caused injury. Putman v. Zeluff, 372 Mich. 553, 557, 127 N.W.2d 374 (1964); Morrill v. Gallagher, 370 Mich. 578, 588, 122 N.W.2d 687 (1963) (firecracker intentionally thrown but injury was not intentional). This also appears to be the general rule in cases involving exclusions for injuries intended or expected by the insured. Morelli, supra, 111 Mich.App. p. 514, 314 N.W.2d 672. The central issue in the instant case focuses on whether there remains a question of fact as to Linebaugh's intention to injure or whether intent to injure may be inferred here as a matter of law from the facts of the case because a twenty-one-year-old man allegedly had sex with a fourteen-year-old girl. As a preliminary, a discussion of the cases dealing with intent is necessary.

Insurance coverage has been excluded for intentional acts in several cases. Kermans v. Pendleton, 62 Mich.App. 576, 579-580, 233 N.W.2d 658 (1975), involved an insured who shot and wounded another person. The defendant's homeowner's policy excluded bodily injury "caused feloniously or intentionally". This Court held that any distinction between intended felonious acts and unintended felonious results was a distinction without a difference, at least under the circumstances of that case. Both acts and results are intended when a firearm is pointed at another human being and the Court noted that the actual result could be anticipated.

In Morelli, supra, James Nesbitt was dating Ellen Wilson. While he was with her at her home, Morelli, who had previously dated Wilson, walked over to Nesbitt and kicked him in the face, breaking Nesbitt's nose. A finding that Morelli had committed the intentional tort of assault and battery encompassed "the corollary finding that [Morelli] must have intended the injury". 111 Mich.App. 516, 314 N.W.2d 672. Relying on Kermans, supra, this Court found the distinction between intended tortious acts and unintended tortious results to be one without a difference under the circumstances. Morelli's policy excluded bodily injury "expected or intended from the standpoint of the insured". This Court found Nesbitt's injury to be the "natural, foreseeable, expected and anticipatory result of the intentional act of Morelli", and, thus, the act and the injury were intentional. Id. Interpreting a similar exclusion in Wright v. White Birch Park, Inc., 118 Mich.App. 639, 645, 325 N.W.2d 524 (1982), this Court held that "a reasonable person could 'expect' injury to a person that repeatedly receives blows from fists thrown to a point where that person states he 'had enough' ".

In Farm Bureau Mutual Ins. Co. v. Rademacher, 135 Mich.App. 200, 351 N.W.2d 914 (1984), Rademacher intentionally struck Eberhard with his fist after the latter threw snowballs at his van. Eberhard suffered a broken jaw. Rademacher's homeowner's policy excluded injury "caused intentionally". The trial court found Eberhard's injury to be "a natural, probable, foreseeable, and expected result". Id., 202, 351 N.W.2d 914. This Court found the factual situation to be most similar to the Kermans and Morelli cases. Thus, the trial court's inferential finding that the injury was...