MacKinnon v. Hanover Ins. Co.

• Decision Date: 03 February 1984
• Docket Number: No. 82-582,82-582
• Citation: 124 N.H. 456,471 A.2d 1166
• Parties: James F. MacKINNON v. HANOVER INSURANCE COMPANY.
• Court: New Hampshire Supreme Court

Page 1166

471 A.2d 1166

124 N.H. 456

James F. MacKINNON v. HANOVER INSURANCE COMPANY.

No. 82-582.

Supreme Court of New Hampshire.

Feb. 3, 1984.

Backus, Shea & Meyer, Manchester (Jon Meyer, Manchester, on brief and orally), for defendant.

Hall, Morse, Gallagher & Anderson, Concord (Robert E.K. Morrill, Concord, on brief and orally), for intervenor, Kimberly A. MacKinnon.

PER CURIAM.

This interlocutory transfer without ruling from the Superior Court (Souter, J.) arises out of an action for declaratory judgment to determine coverage under a homeowner's liability insurance policy. In an underlying tort action, the present intervenor, Kimberly A. MacKinnon, on behalf of her daughter, claims liability against the present plaintiff, James F. MacKinnon, on theories of battery and negligent infliction of emotional distress, arising from alleged acts of assault in the form of sexual abuse by the plaintiff against his six-year-old stepdaughter.

The present defendant, Hanover Insurance Company, disclaims coverage for liability on either theory, under a policy exclusion for "bodily injury ... which is expected or intended by the insured." For the purpose of interpreting and applying this exclusion, the superior court has transferred two questions which in effect ask (1) whether the intention or expectation on which the exclusion turns is the actual intention or expectation of the insured with respect to bodily injury and (2) whether evidence of the insured's intoxication is admissible in determining such intention or expectation. We answer yes to each question.

The first question is about interpretation. On its face, the quoted language does not present any need for interpretation. The meaning of the language is plain, and the common meaning of the language governs. Baker v. McCarthy, 122 N.H. 171, 175, 443 A.2d 138, 140 (1982). There is no indication that "bodily injury ... expected or intended by the insured" refers to anything other than actual expectation or intention, as to the bodily injury, in the mind of the insured at the time he took the action allegedly resulting in injury. We hold that the exclusion refers to such actual expectation or intention.

Essentially three objections to this conclusion have been raised. The first rests upon the authority of cases construing "injury" to mean any injury resulting from an act intended or expected to injure. This interpretation would broaden the exclusion, since it would not limit coverage by reference to the particular injury intended. The present policy is not open to such an interpretation for the simple reason that the exclusion speaks of "bodily injury ... expected or intended by the insured," not of bodily injury resulting from an act expected or intended by the insured to injure.

Moreover, the cases cited in support of the broader exclusion characteristically are cases construing an exclusion relating to "bodily injury intended or expected from the standpoint of the insured." E.g., Smith v. Senst, 313 N.W.2d 202 (Minn.1981), Steinmetz v. National American Ins. Co., 121 Ariz. 268, 589 P.2d 911 (App.1979). The criterion of the insured's standpoint was apparently adopted to reverse the judicial practice of determining coverage for accidental injury by reference to the expectations of the victim, rather than those of the insured. See Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888, 890-91 (Me.1981). But a reference to intention or expectation from the insured's "standpoint" does, or may do, more. Such an exclusion may be construed to introduce what has been called an "objective normative" standard of intent or expectation. Such at least would allow for the possibility of the broader reading of the exclusion for which the defendant argues. A reference to intention or expectation "by" the insured does not allow for such a construction. The cases turning on "standpoint" are thus inapposite. We note also that even the "standpoint" cases do not necessarily support the defendant's view. Id. at 891.

The second objection to our conclusion is that some acts are so nearly certain to produce injury that intent or expectation to injure should be inferred as a matter of law, so as to exclude coverage. The principal weakness of this position is that the policy language could have provided for this expressly, but did not. The principal strength of this position rests on a dictum in Vittum v. N.H. Ins. Co., 117 N.H. 1, 4, 369 A.2d 184, 186-87 (1977). That opinion construed an exclusion tied to "injuries intentionally caused." Id. at 4, 369 A.2d at 186. While we noted that the trial court had found the insured had in fact intended the injury in question, we also responded to an argument of the insured by observing that the Restatement (Second) of Torts § 8A, regarded intended consequences as including those which the actor knows are "substantially certain" to result from an act, even if not actually desired. Id.

On reflection, we decline to modify the usual rules of construction in cases of insurance contracts by injecting concepts of substantive tort law into the process. We are not here concerned with the policy of the law of torts, any more than we were concerned in Vittum with "some remedial legislative goal." Id. We note, too, that in the present case Vittum is of limited precedential value because the court was not concerned with "injury ... expected or intended," but with "injuries intentionally caused." The language at issue in Vittum is at least open to the...