Norman v. Insurance Co. of North America
| Decision Date | 13 January 1978 |
| Docket Number | No. 761504,761504 |
| Citation | 218 Va. 718,239 S.E.2d 902 |
| Parties | Clark S. NORMAN, Jr. v. INSURANCE COMPANY OF NORTH AMERICA. Record |
| Court | Virginia Supreme Court |
Alan M. Frieden, Norfolk (Adler & Kantor, Norfolk, on brief), for plaintiff in error.
William M. Harris, Norfolk (Taylor, Gustin, Harris, Fears & Davis, Norfolk, on brief), for defendant in error.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.
This appeal questions the action of the lower court in sustaining the demurrer of Insurance Company of North America (INA) to an amended motion for judgment filed by Clark S. Norman, Jr. We consider whether under the allegations of the motion there was coverage under a general liability policy issued to Norman by INA, and whether INA is estopped from denying coverage.
Norman alleged that he was the owner of property in Norfolk on which two buildings were located one occupied by him as his residence, and the other consisting of rental apartments. In February, 1973, Norman was the insured under a valid general liability policy issued by INA, which contract of insurance reads in part as follows:
An "occurrence" is defined in the policy as meaning:
"An accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured."
Norman alleged that on February 17, 1973, he attempted to remove the property of a tenant, Wanda Gail Wilson, from one of his apartments, he having previously notified her to vacate the premises. He claimed that while in the process of removing Wilson's property, she, her brother Ronald Wilson, and two of their friends arrived and questioned his action. An argument ensued during which Norman alleged that, believing Ronald Wilson was about to attack him, he fired his pistol at the floor without removing it from his pocket and without aiming it at anyone; and that "(t)he bullet, however, ricocheted from the floor and hit Ronald Wilson". Thereafter, Wilson sued Norman, alleging that Norman "did willfully and maliciously commit an assault and battery upon (Wilson) . . . with no provocation recognized by law" and that Norman "shot (Wilson) with a pistol" having prior thereto threatened him with "a monkey or pipe wrench". Wilson further alleged that Norman, after wounding him, continued to fire his pistol at him as he and his friends ran from the premises.
Upon a trial of the case brought against appellant by Wilson, the court gave an instruction on assault and battery which reads as follows
The jury returned a verdict in favor of Wilson in the amount of $50,000, of which $5,000 was specified to be punitive damages. This verdict was approved by the trial judge and Norman's petition for a writ of error was denied.
The action brought by Wilson alleging the intentional assault and wounding of him by Norman was defended by INA under a reservation of the right to deny coverage. Appellant received a letter from the resident representative of INA, dated February 14, 1974, which reads:
The allegations of the amended motion for judgment can be summarized. Norman alleges: (1) That his wounding of Wilson was unexpected and accidental and that "the jury never considered whether the plaintiff intended or expected to injure Wilson within the meaning of the insurance policy"; (2) That, other than its February 14, 1974 letter, the only communication that he received from INA was a letter from the attorneys retained by the company to represent him, advising the date on which depositions were scheduled to be taken and the date on which the case was set for trial; that he was not notified of the result of any investigation made by INA; that he was not properly advised of the meaning of a reservation of rights defense or fairly informed of his company's position under such a reservation; (3) That, unexplained to him by appellee, there was "an inherent conflict of interest" for INA to have defended him from a charge of assault and battery while at the same time relying on the fact that such an assault and battery had been committed and would be a complete defense to its liability to Norman under the policy; (4) That prior to the trial an offer was made on behalf of Wilson to settle the case for $16,500, which offer was not communicated to Norman by his attorneys until after the jury had returned a verdict; and (5) That INA refused to post a suspending or supersedeas bond incident to Norman's appeal to the Supreme Court of Virginia from the judgment obtained by Wilson.
In substance, Norman alleges that his policy did afford him coverage and that INA has breached its contract with him by failing to have defended him adequately in the suit brought by Wilson and in failing to pay the judgment which Wilson recovered. Further, Norman claims that the company's violation of other alleged duties owed to him constituted a waiver of its reservation of right to deny coverage and that INA is estopped by its conduct from relying on such reservation.
The position of INA is that the action brought against appellant by Wilson was not grounded upon negligence but upon a deliberate, intentional and malicious wounding and that the jury so found. It says that its policy does not protect against all bodily injury claims no matter how incurred; that it agrees to pay on an insured's behalf only the sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage caused by an occurrence ; and that an occurrence means an accident. Appellee contends that no definition of accident includes a willful and malicious assault and battery or an intentional and malicious shooting of one person by another.
Norman finds comfort in the language "from the standpoint of the insured" found in the policy's definition of "occurrence". It is clear that regardless of the standpoint of the viewer, the occurrence referred to in the policy means "an accident". The intentional assault and battery of Wilson by Norman cannot be converted into an accident by a mere statement from the person making the assault that he did not intend the act or its consequences. An insured will not be permitted to say that an intentional and malicious firing of a pistol at another, resulting in an injury, was neither expected nor intended. That was what the case of Wilson v. Norman was all about. A malicious and intentional assault was alleged, not a wantonly negligent act resulting in an assault and battery. Its verdict shows that the jury found that an expected and intended injury was inflicted on Wilson by Norman. The verdict of the jury was approved by the trial judge and was affirmed on appeal. The subject matter in controversy in Wilson v. Norman has been authoritatively settled and is res judicata.
Norman cites and relies upon State Farm Mutual Auto Insurance Company v. Worthington, 405 F.2d 683 (8th Cir. 1968); Lumbermens Mutual Insurance Company v. Blackburn, 477 P.2d 62 (Okl.1970); Brooks v. Continental Casualty Company, 13 La.App. 502, 128 So. 183 (1930).
In these cases the actions brought by the insureds did not involve an intentional assault and battery. Worthington is typical. There an insured fired a shotgun in the direction of several boys whom he thought were stealing his watermelons. One of the boys was killed and his parents recovered a judgment against the insured. The court found that while the discharge of the gun by the insured was intentional the fatal wounding of the boy was accidental, and ruled that the result was therefore unintentional and held the company liable. In the instant case the firing of the gun by Norman, and the wounding of Wilson...
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