Nabozny v. Burkhardt

• Decision Date: 07 March 2000
• Docket Number: Docket No. 113876.
• Citation: 606 N.W.2d 639,461 Mich. 471
• Parties: John NABOZNY, Plaintiff-Appellee, v. Kevin BURKHARDT, Defendant, and Pioneer State Mutual Insurance Company, Garnishee-Defendant-Appellant.
• Court: Michigan Supreme Court

606 N.W.2d 639

461 Mich. 471

John NABOZNY, Plaintiff-Appellee, v. Kevin BURKHARDT, Defendant, and Pioneer State Mutual Insurance Company, Garnishee-Defendant-Appellant.

Docket No. 113876.

Supreme Court of Michigan.

March 7, 2000.

Edson & Hastings (by Gerald Edson), Port Huron, MI, for plaintiff-appellee.

Richard F. Huegli, Port Huron, MI, for garnishee-defendant-appellant.

Kallas & Henk, P.C. (by Constantine N. Kallas), Bloomfield Hills, MI, amicus curiae for Insurance Information Association of Michigan.

Opinion

PER CURIAM.

The plaintiff was injured in a fight with defendant Kevin Burkhardt. Plaintiff broke his ankle when his opponent tripped him. The plaintiff sued, but Pioneer State Mutual Insurance Co., the defendant's insurer, refused to defend or indemnify, reasoning that the injury was not the result of an "accident" and thus was not a covered "occurrence" within the terms of its policy. The plaintiff obtained a default judgment against the defendant, and sought to garnish the funds of Pioneer. The circuit court granted judgment for the plaintiff and the Court of Appeals affirmed. We reverse the judgments of the circuit court and the Court of Appeals.

I

On the evening of April 8, 1994, plaintiff John R. Nabozny and several friends from Yale High School were at "Brown's Pit," a gravel pit on Brown Road in Clyde Township of St. Clair County. Also present were defendant Kevin M. Burkhardt and others from Marysville High School. Though underage, these young men were drinking.

There came a point when Mr. Burkhardt challenged Mr. Nabozny to a fight. Mr. Nabozny declined, but the offer was soon renewed. This time, Mr. Burkhardt grabbed Mr. Nabozny by the upper body while bringing his leg across the back of Mr. Nabozny's leg. Mr. Burkhardt later acknowledged that he tripped Mr. Nabozny "[t]o get him down to the ground so I could have the advantage."

In the process, Mr. Nabozny's ankle was broken, either when his leg was struck or when he landed on the ground. A physician later performed surgery to bring the ankle into alignment so that it could heal properly.

Mr. Nabozny sued Mr. Burkhardt in circuit court, seeking compensation for medical expenses and other harm.¹ Mr. Burkhardt notified Pioneer State Mutual Insurance Company, which provided homeowners insurance for the Burkhardt family. However, Pioneer refused to defend or indemnify him. The basis for the refusal was that the policy provided liability coverage for damages caused by bodily injury arising from, inter alia, an "occurrence," which the policy defined in this manner:

"[O]ccurence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:

a. bodily injury; or

b. property damage.

Pioneer said that the intentional tripping of Mr. Nabozny had not been an "accident."

With Pioneer declining to defend or indemnify, Mr. Burkhardt allowed himself to be defaulted. Mr. Nabozny then obtained a default judgment in the amount of $75,000.²

Pioneer entered the case when Mr. Nabozny attempted to garnish the judgment amount. Pioneer moved for summary disposition, but the motion was denied.³

Following a jury trial, the circuit court granted judgment on the jury's verdict in favor of Mr. Nabozny,⁴ and later denied Pioneer's motion for judgment NOV or, alternatively, for a new trial.

Pioneer appealed, but the Court of Appeals affirmed. 233 Mich.App. 206, 591 N.W.2d 685 (1998).

Pioneer has now filed an application for leave to appeal in this Court.⁵

II

As indicated, the policy issued by Pioneer to the Burkhardt family provides liability coverage for damages arising from an "occurrence," which in turn is defined as an "accident."

Upholding the judgment of the circuit court, the Court of Appeals analyzed the word "accident" in light of several decisions of this Court,⁶ as well as the decision of the Court of Appeals in Frankenmuth Mut. Ins. Co. v. Masters, 225 Mich.App. 51, 570 N.W.2d 134 (1997). 233 Mich.App. at 212-215, 591 N.W.2d 685. After discussing those opinions, the Court of Appeals concluded:

Therefore, we conclude that while Burkhardt certainly engaged in intentional conduct when he initiated the fight with plaintiff, the evidence contradicts a finding that he intended to harm plaintiff, or even that harm to plaintiff was anticipated or naturally expected as a result of his conduct. Accordingly, the jury's finding that plaintiff's injuries resulted from an accident because they were neither anticipated nor naturally to be expected was not against the great weight of the evidence. [233 Mich.App. at 215, 591 N.W.2d 685.]

We will not linger in a review of the approach taken in the earlier decisions of this Court, or by the Court of Appeals in Masters. Rather, we will turn directly to our unanimous decision in Masters, in which we reversed the judgment of the Court of Appeals and partially overruled three of our earlier decisions.⁷ In Frankenmuth Mut. Ins. Co. v. Masters, 460 Mich. 105, 595 N.W.2d 832 (1999), the owner of a clothing store and the owner's son intentionally started a fire in the store, intending only to damage the inventory and allow the owner to collect insurance proceeds. The fire was not so easily contained, however, and it caused extensive damage to adjoining businesses, which had varying degrees of insurance coverage.

The owners of the adjacent properties and their insurers sought to recover their losses from those who were responsible for the fire. This prompted Frankenmuth Mutual, which provided liability insurance to the owner of the clothing store, to file a separate suit, seeking a declaratory judgment that there was no coverage.

As in the present case, the policy in Masters provided coverage for liability arising from an "occurrence." And, again, an "occurrence" was defined, in part, as an "accident."

In Masters, we first stated the basic principles governing the interpretation of an insurance contract.⁸ We next reiterated prior holdings that "an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected." 460 Mich. at 114, 595 N.W.2d 832. Further, we held that "the definition of accident should be framed from the standpoint of the insured, not the injured party," and that "the appropriate focus of the term `accident' must be on both `the injury-causing act or event and its relation to the resulting property damage or personal injury'" (emphasis in the original). 460 Mich. at 114-115, 595 N.W.2d 832.

We then turned to the difficulty that arises when an intentional act causes unintended consequences. Quoting from Justice GRIFFIN's opinion in Auto Club Group Ins. Co. v. Marzonie, 447 Mich. 624, 648-649, 527 N.W.2d 760 (1995), we said that the test was whether the consequences of an insured's intentional act

either were intended by the insured or reasonably should have been expected because of the direct risk of harm intentionally created by the insured's actions. When an insured acts intending to cause property damage or personal injury, liability coverage should be denied, irrespective of whether the resulting injury is different from the injury intended. Similarly, ... when an insured's intentional actions create a direct risk of harm, there can be no liability coverage for any resulting damage or injury, despite the lack of an actual intent to damage or injure. [460 Mich. at 115-116,595 N.W.2d832.][⁹]

Applying those principles to the facts of Masters, we concluded that the fire was caused by an intentional act. Moreover, the fire was set with the intention of doing property damage. Thus, the fire could not be characterized as an "accident," and there was no "occurrence" as that term was used in the insurer's policy. 460 Mich. at 116, 595 N.W.2d 832.

III

We analyze the present case using the same principles that we applied in Masters.

To determine whether the tripping of Mr. Nabozny was an accident, we view the matter from the standpoint of Mr. Burkhardt, the insured. Though the testimony of the insured is not controlling with regard to this aspect of the inquiry, we find in this case that Mr. Burkhardt's testimony is revealing.¹⁰ Here is his account of what happened when he approached Mr. Nabozny a second time, after Mr. Nabozny had initially refused to fight:

Q. Can you just tell us, though, the incident itself basically what happened in the incident, what did you do?

A. I grabbed him and threw him on the ground, and I hit him a couple of times in the chest area, and got up off of him, it was over with.

Q. Where did you grab him, do you recall?

A. Up here somewhere, I think. Shoulder.

Q. You're referring to the front of your body?

A. Right, the arm or something. I don't know.

Q. Did you use your legs in some manner in this?

A. Yes.

Q. How—what did you do with your leg?

A. Put my leg behind the back of his calf.

Q. And did what?

A. Brought him down.

Q. Did you move your leg at all?

A. Just frontwards and backwards, like just the back part of it.

Q. Okay. Did you use some motion with your leg?

A. Yes.

Q. And the purpose of that was to do what?

A. To get him down to the ground so that I could have the advantage.

Q. So when you grabbed him and you took—what would it be, your right leg?

A. Yeah.

Q. What was the point of using your leg on Mr. Nabozny?

A. To get him down on the ground.

Q. That was your object, is that right?

A. Right.

Q. And then that worked you got him on the ground, right?

A. Yes.

Q. And then you ended up in a position where with relation to him?

A. On top of him.

With regard to whether Mr. Nabozny's injury stemmed from an "accident" notwithstanding the intentional nature of Mr. Burkhardt's action, we recall that "a determination must be made whether the consequences of the insured's intentional act `either were intended by the insured or reasonably should...