N.M. On Behalf of Caleb v. Daniel E.

• Decision Date: 08 January 2008
• Docket Number: No. 20060284.,20060284.
• Citation: 2008 UT 1,175 P.3d 566
• Parties: N.M. on behalf of her son CALEB, Plaintiff and Appellant, v. DANIEL E. and Safeco Property & Casualty Insurance Companies, Defendants and Appellees.
• Court: Utah Supreme Court

175 P.3d 566

2008 UT 1

N.M. on behalf of her son CALEB, Plaintiff and Appellant, v. DANIEL E. and Safeco Property & Casualty Insurance Companies, Defendants and Appellees.

No. 20060284.

Supreme Court of Utah.

January 8, 2008.

Nelson Abbott, Provo, for plaintiff.

Robert L. Janicki, Joseph E. Minnock, Sara N. Becker, Salt Lake City, for defendants.

PARRISH, Justice:

INTRODUCTION

¶ 1 Daniel swung a hockey stick at Caleb, striking him in the head and causing serious injuries. The question before us is whether the district court properly concluded in a summary judgment adjudication that this event was not an accident for the purposes of insurance coverage. We reverse the district court and hold that summary judgment was improper.

BACKGROUND

¶ 2 During the first three days of a hockey camp, seven-year-old Caleb and some of the other boys teased eight-year-old Daniel for being an inferior hockey player. On the third day of the camp, Daniel reacted violently to the verbal jabs of his peers. While in the locker room suiting up for practice, Caleb and two other boys began to tease Daniel again. Daniel responded by swinging his hockey stick at Caleb, who was wearing a full set of hockey pads but was not wearing his helmet. Daniel testified in his deposition that he was aiming the blow at Caleb's protected shoulder area and that he had no intention of hurting him. Instead, Daniel's stick struck Caleb in the head, causing serious injuries that required hospitalization and brain surgery.

¶ 3 Daniel was covered by a homeowner's insurance policy issued by Safeco Insurance Company of America ("Safeco").¹ This policy indemnified Daniel against liability for "damages because of bodily injury or property damage caused by an occurrence." The policy defined an "occurrence" as "an accident, including exposure to conditions which result in: bodily injury; or property damage."

¶ 4 Caleb filed a claim against the policy for his injuries, but Safeco denied coverage. Caleb then filed suit against Safeco, seeking a declaratory judgment that Safeco must provide coverage to Daniel for any legal liability arising out of the incident. Safeco filed a motion for summary judgment, asserting that it had no liability because the incident was not an "accident" under the terms of the policy.² The district court agreed and entered summary judgment in favor of Safeco. We now review the district court's ruling and reverse.

STANDARD OF REVIEW

¶ 5 A district court shall enter summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). Thus, in reviewing a district court's grant of summary judgment, an appellate court "view[s] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party," Sur. Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 15, 10 P.3d 338, and cedes no deference to the lower court's legal conclusions, Swan Creek Vill. Homeowners Ass'n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122.

ANALYSIS

¶ 6 Safeco's duty to indemnify Daniel is determined by the terms of the insurance policy covering him. See Fire Ins. Exch. v. Estate of Therkelsen, 2001 UT 48, ¶ 14, 27 P.3d 555. The policy covers events deemed to be accidents. Although the policy itself does not define the term "accident," Utah case law has consistently defined this term in insurance policies:

The word [accident] is descriptive of means which produce effects which are not their natural and probable consequences.... The probable consequence of the use of given means is the consequence which is more likely to follow from their use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds.

Richards v. Standard Accident Ins. Co., 58 Utah 622, 200 P. 1017, 1023 (1921) (internal quotation marks omitted); see also Therkelsen, 2001 UT 48, ¶ 15, 27 P.3d 555; Nova Cas. Co. v. Able Constr., Inc., 1999 UT 69, ¶ 13, 983 P.2d 575; Hoffman v. Life Ins. Co. of N. Am., 669 P.2d 410, 416-17 (Utah 1983); Thompson v. Am. Cas. Co., 20 Utah 2d 418, 439 P.2d 276, 278 (1968); Handley v. Mut. Life Ins. Co., 106 Utah 184, 147 P.2d 319, 322-23 (1944); Sanders v. Metro. Life Ins. Co., 104 Utah 75, 138 P.2d 239, 242-43 (1943).

¶ 7 There are thus two independent methods by which bodily injury or property damage may be deemed nonaccidental. First, harm or damage is not accidental if it is the result of actual design or intended by the insured. Second, harm or damage is not accidental if it is the natural and probable consequence of the insured's act or should have been expected by the insured.³ The first category presents a factual question as to what the insured intended. The second category generally presents a legal question as to what the average individual would expect to happen under the circumstances. See Hoffman, 669 P.2d at 419.

¶ 8 The parties have raised several legal issues regarding the application of these two tests. We first resolve these legal issues and then proceed to apply these two tests in our review of the summary judgment proceeding.

¶ 9 The first legal question raised by the parties is whether Daniel's age is relevant in determining if Caleb's injury was the natural and probable consequence of Daniel's swinging his hockey stick. We hold that it is relevant. The question of whether harm is the natural and probable consequence of an act is determined from the perspective of the insured. Id. at 416; Allstate Ins. Co. v. Patterson, 904 F.Supp. 1270, 1277 (D.Utah 1995). In determining what is natural and probable from the insured's perspective, "[e]ach individual may be considered the average individual unless the facts disclose that in reality he is not; and when the facts do so show, then the question of the accidental nature of the result must be measured by this knowledge." Hoffman, 669 P.2d at 419 (internal quotation marks omitted). In short, we apply "an objective test unless the evidence shows that the insured is not an `average individual.'" Id. Because eight-year-old children lack the experience, maturity, and reasoning skills of adults, Daniel was clearly not an average individual at the time of the incident. We therefore determine the natural and probable consequence of Daniel's actions from the perspective of an average eight-year-old child.⁴

¶ 10 We next resolve the question of whether we focus on the actions of the tortfeasor or the resulting injury as being accidental in nature. According to this court's clear precedent, we focus on the accidental nature of the injury. Safeco, however, relies upon two cases from the court of appeals for the proposition that we should focus on the accidental nature of the act giving rise to the injury. In State Farm Fire & Casualty Co. v. Geary, 869 P.2d 952, 955 (Utah Ct.App. 1994), the court of appeals, in examining whether an injury resulting from a shotgun blast was caused by an accident, stated:

Seemingly, the resolution of this "occurrence" issue hinges on whether we focus on either the shooting or the injury as accidental or intentional. For the reasons explained below, we are persuaded by the case law which focuses on either the accidental or intentional nature of the shooting, rather than the ensuing injury.

In support of this proposition, the court quoted a decision of the Washington Court of Appeals, which stated that "`[an] accident is never present when a deliberate act is performed, unless some additional, unexpected, independent, and unforeseen happening occurs which produces or brings about the result of injury or death.'" Id. (emphasis omitted) (quoting Safeco Ins. Co. of Am. v. Dotts, 38 Wash.App. 382, 685 P.2d 632, 633-34 (1984)). Later, in Fire Insurance Exchange v. Rosenberg, 930 P.2d 1202, 1203 (Utah Ct.App.1997), the court of appeals examined whether tossing a lit cherry bomb onto the property of another had produced an accident. Following its own precedent from Geary and once again quoting language from the Washington Court of Appeals, the court held that the injury in question was not accidental because it was a foreseeable result of the deliberate act of throwing the cherry bomb. Id. at 1205.

¶ 11 We reject the approach taken by the Utah Court of Appeals in these two cases because it conflicts with this court's clear precedent.⁵ First, we have clearly held that we do not examine whether an act is intentional or deliberate, but rather whether the result was intended or expected: "This court has definitely gone on record as construing the ["accidental means" provision] and equivalent provisions as reaching cases where the death or disablement is the unexpected result, intended acts making the result itself, rather than the means, the accident." Handley, 147 P.2d at 322. Even if an act is not accidental but intended, it may result in an accident if "the result was unexpected [and] unanticipated."⁶ Id.; accord Kellogg v. Cal. W. States Life Ins. Co., 114 Utah 567, 201 P.2d 949, 951 (1949) ("[I]f death is an unexpected result of an intended act it is to be considered accidental."); Richards, 200 P. at 1023. Second, the language adopted by the Utah Court of Appeals from the Washington Court of Appeals improperly introduces the concept of foreseeability to the definition of "accident." Rosenberg, 930 P.2d at 1205 (erroneously holding that the resulting injury need only "fall within the spectrum of foreseeability"). We have clearly held that "the test is not whether the result was foreseeable, but whether it was expected."⁷ Hoffman, 669 P.2d at 416.

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