Mallin v. Farmers Ins. Exchange

• Court: Nevada Supreme Court
• Writing for the Court: SPRINGER; STEFFEN and YOUNG, JJ., and WHITEHEAD; HANDELSMAN
• Citation: Mallin v. Farmers Ins. Exchange, 839 P.2d 105, 108 Nev. 788 (Nev. 1992)
• Decision Date: 15 September 1992
• Docket Number: No. 20903,20903
• Parties: Jennifer B. MALLIN, Individually, and Jennifer B. Mallin and Roberta Grill, as Guardians of Jessica B. Mallin, and Jennifer B. Mallin as Special Administratrix of the Estate of Virginia Mallin Egyed, Deceased; Edith Egyed, Executrix of the Estate of Alex Egyed, aka Alexander Egyed, Deceased; Jeanne Di Fiore Cosgrove; John Di Fiore II; Jared E. Shafer, Executor of the Estate of Elizabeth Barton Di Fiore, aka Betty Di Fiore, Deceased; Miles Levy; Elise Kagasoff; and Jared Shafer, Administrator of the Estate of Jack Levy, Deceased, Appellants, v. FARMERS INSURANCE EXCHANGE, a California corporation, Respondent.

Page 105

839 P.2d 105

108 Nev. 788

Jennifer B. MALLIN, Individually, and Jennifer B. Mallin and Roberta Grill, as Guardians of Jessica B. Mallin, and Jennifer B. Mallin as Special Administratrix of the Estate of Virginia Mallin Egyed, Deceased; Edith Egyed, Executrix of the Estate of Alex Egyed, aka Alexander Egyed, Deceased Jeanne Di Fiore Cosgrove; John Di Fiore II; Jared E Shafer, Executor of the Estate of Elizabeth Barton Di Fiore aka Betty Di Fiore, Deceased; Miles Levy; Elise Kagasoff and Jared Shafer, Administrator of the Estate of Jack Levy, Deceased, Appellants, v. FARMERS INSURANCE EXCHANGE, a California corporation, Respondent.

No. 20903.

Supreme Court of Nevada.

Sept. 15, 1992.

Rogers & Rogers, Beckley, Singleton, Delanoy, Jemison & List and Daniel F. Polsenberg, Morse & Mowbray, Gordon & Silver and Don Springmeyer, Las Vegas, for appellants.

Thorndal, Backus, Maupin & Armstrong, Las Vegas, for respondent.

OPINION

SPRINGER, Justice:

The case is brought by the personal representatives of three persons who were shot and killed at a residence insured by a homeowner's policy issued by Farmers Insurance Exchange. Farmers denies any liability under the policy because an intentional shooting is not an "accident" covered by the policy and because the policy contains an express exclusion of coverage for casualties "[a]rising as a result of intentional acts of the insured." The trial court granted summary judgment to Farmers, declaring that, under the undisputed facts of this case, Farmers was entitled to judgment as a matter of law. We affirm the summary judgment.

The homicides in question occurred in the following manner. The assailant, Alex Egyed, was having difficulties with his wife, Virginia Mallin. On the evening of the homicides, Virginia had attended a social event with her friends, Nina Schwartz, Betty Di Fiore and Jack Levy. Because of earlier misunderstandings with her husband, Virginia had decided not to stay at home that evening but, rather, to stay with her friend, Nina Schwartz. Before going to Nina's home, Virginia asked her friends to stop at her house so that she could pick up her daughter, Jessica. While Virginia was at the house, Alex confronted her and asked her to talk to him; she refused to talk to him, however. Alex then went to Jessica's room, where he found Jessica, a friend of Jessica's and Betty Di Fiore. Alex shot Di Fiore in the head, killing her. He then left Jessica and her friend and went downstairs, where he found Virginia in the kitchen. Alex shot his wife in the head, killing her. He subsequently proceeded outside to the car occupied by Jack Levy and Nina Schwartz and shot Jack Levy in the head, killing him. Alex then returned to the house and shot and killed himself.

The insurance policy in this case provides coverage for "damages from an accident." (Emphasis supplied.) An accident, under the policy "means a sudden event ... neither expected nor intended by the insured." The policy expressly exempts damages "[a]rising as a result of intentional acts of an insured." (Emphasis supplied.) As mentioned above, one of the insureds in this case, Alex Egyed, shot his wife and two of her friends in the head: Shooting three people in the head has every appearance of being an intentional act. If, instead of shooting his wife, Alex had, in a fit of anger, broken up all of their living room furniture, probably no one would have thought of filing an insurance claim; still, the claimants seek indemnity for losses which they claim resulted from an "accident" under Farmers' "Homeowners Package Policy."

Representatives of the unfortunate deceased victims, the claimants in this case, contend that the shootings were not "intentional acts." It is not easy to understand, under these circumstances, how shooting three people can be described as "unintentional." The claimants' expert psychological witness, Dr. Glovinsky, testified that in his opinion "at the point in time that Alex pulled the trigger he intended to kill her [his wife]" and that "Alex Egyed had the intent to kill her." (Emphasis supplied.) Of course Alex "intended to kill" his victims; and the trial court was justified on this record in holding that a jury could not have rationally concluded that Alex did not intend to kill three people. Because there is no evidence that the casualties in this case did not result from intentional acts of the insured, the trial court properly granted summary judgment to the insurance company.

It is curious to see how the claimants try to avoid the insurance policy language and how they can maintain that the killings in this case were accidental and not intentional. The claimants, through their expert witnesses, and in particular psychologist Glovinsky, advance the position that Alex was "unable to control his acts at the time of the homicides" and that Alex was "overcome by his emotions to the degree he was unable to make the rational decision not to commit the acts that he committed." Notwithstanding Dr. Glovinsky's testimony that Alex was so overcome by emotion that he was unable to control himself, this expert witness testified not only that Alexintended to kill his victims but testified further that Alex's state of mind was such that he was mentally able to make a conscious decision not to shoot another person present at the time and place of the shootings, namely, his step-daughter, Jessica. Significantly, Dr. Glovinsky testified that Alex made the decision not to shoot his stepdaughter because "he had no malice toward Jessica."

In the face of the testimony of their own witness and the way in which Alex shot and killed these people, the claimants are hard-pressed indeed to argue that these killings were accidental and not, as they rather clearly appear to be, "intentional acts."

In its simplest denotation, an intentional act is merely "a willed muscular contraction." ¹ We are speaking here, however, of more than the mere voluntary flexion of Alex's trigger finger and more, even, than the intentional shooting of a firearm. The mental process that is critical here is, in Dr. Glovinsky's words, Alex's "intent to kill " his victims. The "willed muscular contraction" of his trigger finger was accompanied here with the willed objective of taking the lives of three persons. Intention involves the intersection of two ideas: bodily motion and operation of the will. Specifically, "intent" or "intention" denotes a design or desire to cause the consequences of one's acts and a belief that given consequences are substantially certain to result from the acts. Restatement (Second) of Torts § 8A (1965). Alex had the design and desire to kill his wife and her friends and knew that shooting his victims in the head would result in their deaths. Thus, it must be fairly said that Alex intended to kill them.

The rather simple idea of what is intentional and what is accidental ² is turned awry by modern psychoanalytical ("psychodynamic") theories, which put into question an individual's capacity to exercise free will over his or her actions. Those who follow these theories believe that unconscious and unwilled mental forces, and not individual will or intent, cause human actions. In the present case, when the claimants' psychological experts testify in their affidavits that Alex was not mentally able to make the moral decision as to whether or not he should kill, they are opining in terms of psychological theories that are far from being universally accepted and which, in my opinion, have been expressly rejected by this court. See Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957). Thus, I give no credence to testimony stating that Alex was so overcome by emotion that he was not mentally able to make the kill or not-to-kill decision.

None of the claimants' experts testified that when Alex killed, he did not have the intent to kill. The testimony is directly to the contrary. Alex's supposed inability to control his acts is not the same as an inability to intend his acts. What the psychologists seem to be saying is that Alex actually did intend to kill these people but that because of some kind of psychological force Alex was not able to control or decide against doing these intentional acts. Such testimony does not bring Alex's damaging acts within the policy language; and, further, Nevada has expressly chosen, in its criminal law, not to relieve an assailant of responsibility for his or her acts by reason of mental compulsions or irresistible impulses.

Specifically, Nevada has rejected in its criminal law the so-called "volitional" defenses to criminal liability. The "loss of volitional control," the "I-couldn't-help-myself" defense of "irresistible impulse" was expressly rejected in Sollars. Id. at 253-55, 316 P.2d at 920. If we have refused to accept the loss of volitional control as a defense to criminal liability, it is inconsistent and most improvident for this court now to hold that it was permissible for a jury to decide that Alex did not intend to kill his victims because of his supposed loss of will power. ³ Thus, even if one of the experts had actually testified for the claimants that Alex, because he was overcome by emotions, did not or could not intend to kill his wife and her friends, it would still be necessary to hold, as a matter of law, that the deaths in this case resulted from the "intentional acts of the insured." In short, this court does not accept the described psychoanalytical theory which renders an individual not responsible for supposedly uncontrollable acts done in a rage or under other emotional stress. ⁴

As stated above, the main thrust of the claimants' case is that Alex lost control of himself and thus lost control over his actions. The affidavit of William D. O'Gorman, M.D., however, goes farther than this. Dr. O'Gorman testified that Alex was "unable to control his acts at the time of the homicides." He further stated that Alex "at the time of the...