Mangus v. Western Cas. and Sur. Co.

• Decision Date: 13 July 1978
• Docket Number: No. 77-415,77-415
• Citation: 41 Colo.App. 217,585 P.2d 304
• Parties: H. Wayne MANGUS, Plaintiff-Appellant, v. The WESTERN CASUALTY AND SURETY COMPANY, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 304

585 P.2d 304

41 Colo.App. 217

H. Wayne MANGUS, Plaintiff-Appellant, v. The WESTERN CASUALTY AND SURETY COMPANY, Defendant-Appellee.

No. 77-415.

Colorado Court of Appeals, Div. III.

July 13, 1978.

Rehearing Denied Aug. 3, 1978.

Certiorari Granted Oct. 10, 1978.

William E. Kenworthy, Denver, for plaintiff-appellant.

Kane, Donley & Wills, Lee Wills, Colorado Springs, for defendant-appellee.

KELLY, Judge.

The plaintiff, H. Wayne Mangus, appeals from a judgment absolving the defendant, Western Casualty Co., from liability on its policy of insurance for the conduct of its insured, Victor Miller. We reverse.

During a property settlement conference, Victor Miller shot and killed his former wife, Mary Louise Mangus, and wounded her husband, Wayne Mangus. Miller was tried on charges of first degree murder and assault to commit murder and was found not guilty by reason of insanity. Mangus commenced a civil action for the wrongful death of his wife and for the assault and battery committed on him. The jury returned a verdict in favor of Mangus on both of his claims. Although Miller's mental condition was not litigated in the tort action, it is not disputed here that Miller was insane when the shootings occurred.

After this court ordered a new trial on the issue of damages for the wrongful death claim, Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219 (1975), Certiorari dismissed, 189 Colo. 481, 569 P.2d 1390 (1975), a settlement was entered into between Mangus and Miller. In return for a satisfaction of judgment, Miller conveyed certain real property to Mangus, and assigned to Mangus his rights under the homeowner's policy issued to him by Western Casualty. Under the terms of the homeowner's policy, Western Casualty agreed to pay on behalf of Miller "all sums which the Insured shall become legally obligated to pay as damages because of bodily injury . . . including death at any time resulting therefrom, sustained by any person . . ." but coverage for "injury, sickness, disease, death or destruction caused intentionally by or at the direction of the insured" was specifically excluded.

Mangus commenced this contract action against Western Casualty, alleging that he was the assignee of Miller's rights under the insurance policy. Western Casualty defended on the theory that Miller's conduct was intentional conduct, which was specifically excluded from the policy, and that Mangus was collaterally estopped by the prior civil action to assert otherwise. The trial court agreed and dismissed Mangus' claim against Western Casualty Co.

Mangus' contentions on appeal present two primary questions. First, whether, by virtue of the doctrine of collateral estoppel, one who obtains a judgment for assault and battery against a person found insane in a criminal trial is barred from contending that the insane tortfeasor's conduct was not intentional within the meaning of the exclusionary clause of a homeowner's insurance policy. If it does not, the second issue is whether the insane insured's conduct was intentional and therefore excluded from the policy. We agree with Mangus that the doctrine of collateral estoppel does not apply and that Miller's conduct was not intentional within the meaning of the homeowner's policy.

The trial court erred in holding that Mangus was collaterally estopped to deny that Miller's conduct was intentional. Its reliance on Butler v. Behaeghe, Colo.App., 548 P.2d 934 (1976), is misplaced. The sanity of the person perpetrating the assault was not involved in Butler, and the case is, therefore, distinguishable.

Here, the issue in the tort case was not identical with the one presented in this action. See Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Rather, the question is whether the intentional acts exclusion in the insurance policy applies to acts committed while the insured is insane. In the tort case, the issue was whether Miller was civilly liable for assault and battery, and, not being a defense, the insanity of the defendant was not litigated. See Vosnos v Perry, 43 Ill.App.3d 834, 2 Ill.Dec. 447, 357 N.E.2d 614 (1976). See also Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165...