Ohio Cas. Ins. Co. v. Clark, 980057

CourtUnited States State Supreme Court of North Dakota
Citation1998 ND 153,583 N.W.2d 377
Docket NumberNo. 980057,980057
PartiesOHIO CASUALTY INSURANCE COMPANY, Plaintiff and Appellee, v. Daniel CLARK, insured, and Kelly Girodengo, a minor child, sole surviving child of George Girodengo, Deceased, by and through her Grandmother, and next Friend, Maria Entzel; and Maria Entzel, surviving Mother of George Girodengo, Deceased, Defendants and Appellants. Civil
Decision Date18 August 1998

Randall J. Bakke (argued), of Smith Bakke Hovland & Oppegard, Bismarck, for plaintiff and appellee. Appearance by Scott K. Porsborg.

Glen R. Bruhschwein (argued), of Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, for defendants and appellants Kelly Girodengo and Maria Entzel, and Irvin Nodland (appearance), of Irvin B. Nodland, P.C., Bismarck, for defendant and appellant Daniel Clark.


¶1 Daniel Clark, Kelly Girodengo, and Maria Entzel have appealed a judgment declaring Ohio Casualty Insurance Company has no duty to defend or indemnify Daniel Clark in a pending lawsuit for the wrongful death of George Girodengo. We conclude there are no genuine issues of material fact about Daniel Clark's intent in shooting George Girodengo. Daniel Clark's killing of George Girodengo was an intentional act for which insurance coverage was excluded, and the issue of self defense is res judicata. We affirm.


¶2 "Early on January 17, 1996, Daniel Clark shot George Girodengo twice, after finding him in Clark's wife's bedroom. Girodengo died in surgery. Clark was charged with murder. On May 17, 1996, a jury returned a verdict finding Clark not guilty of murder, but guilty of manslaughter." State v. Clark, 1997 ND 199, p 2, 570 N.W.2d 195. On appeal from his criminal conviction, Clark contended the trial court erred in instructing the jury on the lesser offense of manslaughter, arguing " '[t]his was an intentional shooting.... Unless Clark had some right to intentionally pull the trigger, he was guilty of murder.... He was either excused by reason of self defense or he was not.... The evidence did not support giving an instruction of manslaughter.' " Id. at p 10. In affirming the conviction, we said, "[t]he fact a shooting was intentional does not preclude a verdict of manslaughter if the shooting resulted from an unreasonable belief in the necessity of using force" and concluded "the trial court did not err in instructing the jury on the offense of manslaughter." Id. at p 11.

¶3 Maria Entzel, George Girodengo's mother, and Kelly Girodengo, his daughter, sued Daniel Clark and his wife, Peggy Clark. Against Daniel Clark, the complaint alleged: "[O]n or about January 17, 1996, Daniel Clark carelessly and negligently discharged a firearm," resulting in George Girodengo's death. Against Peggy Clark, the complaint alleged: "On or about January 16 and 17, 1996, Peggy Clark invited George Girodengo into the Clark residence" and "Peggy Clark negligently misrepresented to George Girodengo the safety of his presence at the Clark residence."

¶4 While providing a defense, Ohio Casualty Insurance Company, which had issued a homeowner's insurance policy to Daniel Clark, brought an action against Daniel Clark, Kelly Girodengo, and Maria Entzel for "[a] declaratory judgment stating that the acts of Daniel Clark are excluded from coverage under the Ohio Casualty policy, and therefore that Ohio Casualty owes no duty to defend or indemnify Daniel in connection with the Girodengo lawsuit." The policy contains the following coverage provision:

COVERAGE E--Personal Liability

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.

The policy contains the following exclusion:

1. Coverage E--Personal Liability and Coverage F--Medical Payments to Others do not apply to bodily injury or property damage:

a. which is expected or intended by the insured; ...

The trial court granted Ohio Casualty's motion for summary judgment. Judgment was entered accordingly, and this appeal followed.

¶5 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 32-23-02, and 32-23-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.


¶6 The trial court ruled "this policy, as well as public policy, unambiguously excludes coverage for acts 'expected or intended' by the insured." Daniel Clark, Kelly Girodengo, and Maria Entzel (hereinafter collectively referred to as the appellants) contend the allegations of the amended complaint would support a recovery under a risk covered by the policy and Ohio Casualty had a duty to defend. The appellants argue "[i]t is undisputed that the allegations of the Amended Complaint do not allege any intentional act;" the trial court erred "because of its failure to distinguish between the duty to defend and the duty to indemnify;" the court's "analysis should not go beyond the face of the Amended Complaint and the language of the insurance policy;" and "[t]here should have been no inquiry by the trial court into the underlying facts; only the allegations of the Amended Complaint were needed for purposes of determining the duty to defend."

¶7 In Hins v. Heer, 259 N.W.2d 38 (N.D.1977), Marlo Hins was injured by Robert Heer in an assault and battery. Hins sued Heer. Heer's insurer refused to defend, asserting the policy did not cover willful acts. A default judgment was entered against Heer. Hins argued the insurer had a duty to defend. This Court held "Hins has no standing to challenge Aid's [the insurer's] duty to defend pursuant to the provisions of Heer's homeowner's insurance policy." Id. at 39. See also Medd v. Fonder, 543 N.W.2d 483, 487 (N.D.1996) (an insurance policy relates to the parties executing it, is designed and intended for the benefit and protection of the insured, and is not intended to be of direct benefit to an injured claimant). Thus, in construing an insurance policy, we are concerned with the insured's rights under the policy, rather than a third party's interest in compensation.

¶8 Under N.D.C.C. § 32-23-06, a trial court is required "to render a declaratory judgment to determine both coverage and duty to defend, whether or not the insured's liability has been determined." Blackburn, Nickels & Smith, Inc. v. National Farmers Union Prop. & Cas. Co., 452 N.W.2d 319, 323 (N.D.1990). "Ordinarily, an insurer has a duty to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or a possibility of coverage under the insurance policy." Nodak Mut. Ins. Co. v. Heim, 1997 ND 36, p 11, 559 N.W.2d 846. Courts, however, do not operate in a vacuum. In re R.M.B., 402 N.W.2d 912, 917 (N.D.1987); In re Estates of Kjorvestad, 304 N.W.2d 83, 86 (N.D.1981). An insurer "has no duty to provide a defense in an action that would yield no possibility of liability to its insured." Hanneman v. Continental Western Ins. Co., 1998 ND 46, p 45, 575 N.W.2d 445. Furthermore, labeling Daniel Clark's conduct as negligent "does not alter its true nature." See Heim, at p 31. "[T]he duty to defend does not depend on the nomenclature of the claim. Rather, the focus is on the basis for the injury." Heim, at p 31.

¶9 The appellants argue "Ohio Casualty has agreed to defend this suit 'even if the suit is groundless, false or fraudulent.' " This Court has previously addressed a similar argument:

Kovash misconstrues the meaning of the clause. It does not oblige the plaintiffs to defend any groundless, false or fraudulent case against an insured; rather, it requires them to defend only those actions which come within the terms of the insurance policy, even if those actions are groundless, false or fraudulent. See Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, 175 (1966). In this case Vannet's claim against Kovash is for intentional acts. Intentional acts are specifically excluded from coverage. Whether the claim for intentional acts is also groundless, false or fraudulent has no bearing on the duty to defend.

National Farmers Union Prop. & Cas. Co. v. Kovash, 452 N.W.2d 307, 312 (N.D.1990).

¶10 We conclude the trial court did not err in looking beyond the face of the complaint to determine if Ohio Casualty had a duty to defend in the underlying action for George Girodengo's wrongful death.


¶11 The appellants contend the trial court should not have granted the insurer's motion for summary judgment because there are genuine issues of material fact on Daniel Clark's intent.

¶12 The appellants argue: "It is clear that there exists a reasonable inference of negligence or recklessness based on the facts presented in this record." We said in State v. Clark, 1997 ND 199, p 11, 570 N.W.2d 195: "There was evidence of recklessness, and we conclude the trial court did not err in instructing the jury on the offense of manslaughter." From that passage, the appellants contend this Court has rejected intentional conduct as the sole conclusion that can be drawn from the evidence. The appellants' reliance on the quoted language is misplaced. Clark argued in the criminal appeal " '[t]his was an intentional shooting.' " Id. at p 10. Thus, the intentional nature of the shooting was a given. At the hearing in the trial court, Clark again contended the shooting was intentional.

¶13 The appellants argue there are genuine issues of fact about which shot killed George Girodengo and about whether both discharges of the gun were intentional. Clark argued below "he intentionally pulled the trigger. There is no question about that, none. ...

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