Lockhart v. Allstate Ins. Co.

• Decision Date: 30 March 1978
• Docket Number: CA-CIV,No. 2,2
• Citation: 579 P.2d 1120,119 Ariz. 150
• Parties: Thomas J. LOCKHART and Rosemary L. Lockhart, Individually and as husband and wife, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee. 2697.
• Court: Arizona Court of Appeals

Page 1120

579 P.2d 1120

119 Ariz. 150

Thomas J. LOCKHART and Rosemary L. Lockhart, Individually and as husband and wife, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 2 CA-CIV 2697.

Court of Appeals of Arizona,Division 2.

March 30, 1978.

Rehearing Denied May 2, 1978.

Review Denied June 8, 1978.

Aboud & Aboud by Michael J. Aboud, Tucson, for appellants

Slutes, Browning, Zlaket & Sakrison, P. C., by A. John Pelander and Thomas A. Zlaket, Tucson, for appellee.

OPINION

HATHAWAY, Judge.

The subject of this appeal is a summary judgment in favor of Allstate as to its duty to defend appellants in a tort action and coverage of its homeowners' insurance policy issued to appellants.

Section II of the Allstate policy provides in pertinent part:

"COVERAGE X Family Liability

Allstate agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. Allstate shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient . . . ."

On the same page of the policy, we find a provision as to "EXCLUSIONS". It sets forth the following exclusion from the family liability coverage:

"to bodily injury or property damage which is either expected or intended from the standpoint of the Insured."

Allstate's position, on motion for summary judgment, was that the bodily injury which was the subject of the pending tort action was within the "expected or intended from the standpoint of the Insured" exclusion of its policy. In July 1974, Mr. Lockhart and Norman C. Owes, both armed with guns, were involved in a shooting altercation with each other. Multiple shots were fired by both and as a result, Owes was injured. He filed suit for damages against appellants for the injuries arising out of the shooting incident and Allstate defended appellants under a reservation of rights (Pima County Superior Court Cause No. 152628). The jury returned a verdict against appellants in the sum of $878 and Owes moved for an additur or in the alternative for a new trial on the issue of damages only.

Appended to Allstate's motion for summary judgment were a copy of (1) the insurance policy, (2) a recorded statement given by Lockhart to an Allstate investigator, (3) a reservation of rights letter mailed to the Lockharts, and (4) a minute entry ordering a new trial in the tort action.

According to Lockhart's recorded statement, Owes fired the first shot from a distance of ten to fifteen feet. Lockhart had entered the house where the shooting occurred armed with a gun he had taken from his car because, ". . . I just kind of felt funny something might happen when I went in . . . maybe it was nothing but drinking, but I just didn't want to take anymore chance." Owes fired five shots but only two were "aimed shots" whereas Lockhart fired seven shots. He stated:

"My shots, you know, were there, you know just at him in fact, (inaudible) I fired 7 shots, I tried to hit his arm where his arm was, and after then I just tried to stop him."

Also, when asked whether he intentionally tried to hit Owes, Lockhart responded:

"Yeh, I tried to hit his arm, yes tried to hit him stop him from shooting."

The minute entry order granting the new trial reflects that a key question was whether Lockhart acted in self-defense. The court, in declining to grant an additur or a new trial on the sole issue of damages, indicated that the jury had considered the issues of liability and damages together and let the issue of liability influence its decision on the question of damages. It therefore ordered a new trial on all issues except the issues of negligence and contributory negligence as to which the court had previously directed a verdict.

Allstate argued from the foregoing that even if Lockhart was acting in self-defense at the time of the incident, the policy provided no coverage. In Vanguard Insurance Company v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972), we held that an "intentional injury" exclusion clause, such as we have here, does not relieve the insurer from liability merely because its insured intentionally fired a pistol. (According to the insured, he had not intended to harm the injured person but merely fired the pistol in order to frighten him.) On the other hand, in Clark v. Allstate Insurance Company, 22 Ariz.App. 601, 602, 529 P.2d 1195, 1196 (1975), we sustained a summary judgment in favor of the insurer, holding that the "intentional injury" exclusion clause was applicable because the 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."

We agree with Allstate that the possible legal justification of self-defense does not save an otherwise intentional act from the "intentional injury" exclusion. Home Insurance Company v. Neilsen, 332 N.E.2d 240 (Ind.App.1975). See, Hartford Accident and Indemnity Company v. Krekeler, 363 F.Supp. 354 (E.D.Mo.E.D.1973), rev'd on other grounds, 491 F.2d 884 (8th Cir. 1974).

The insurance policy excludes coverage for an intentional act of the insured which was intended to cause injury or which could be expected to cause injury. The question of self-defense presents an issue of motive or justification for an intentionally caused harm but does nothing to avoid the inference of intent to harm that necessarily follows Lockhart's deliberate shooting at Owes. Home Insurance Company v. Neilsen, supra. Lockhart's own statement demonstrates that he intended to shoot the gun and to cause injury. Whether he intended the precise injuries which occurred is immaterial. We are of the opinion that despite Lockhart's affidavit stating that he fired his gun only to protect himself and to prevent Owes from shooting him, there is no factual issue as to his...