Pachucki v. Republic Ins. Co.

• Decision Date: 30 May 1979
• Docket Number: No. 76-592,76-592
• Citation: 278 N.W.2d 898,89 Wis.2d 703
• Parties: Gary A. PACHUCKI, Plaintiff-Appellant, v. REPUBLIC INSURANCE COMPANY, Dale Boschke, Anthony Anderson, Bernard Halas and Underwriters Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 898

278 N.W.2d 898

89 Wis.2d 703

Gary A. PACHUCKI, Plaintiff-Appellant, v. REPUBLIC INSURANCE COMPANY, Dale Boschke, Anthony Anderson Bernard Halas and Underwriters Insurance Company Defendants-Respondents.

No. 76-592.

Supreme Court of Wisconsin.

Submitted on Briefs May 2, 1979.

Decided May 30, 1979.

Marjan R. Kmiec and Richard A. Sachs, Jr., Milwaukee, on brief, for plaintiff-appellant.

Burton A. Strnad and Howard H. Koppa, Milwaukee, on brief, for defendants-respondents.

COFFEY, Justice.

This is an appeal taken from interlocutory judgments entered in favor of the defendant-respondents Underwriters Insurance Company (hereinafter Underwriters) and Republic Insurance Co. (hereinafter Republic.) ¹ Judgment was granted dismissing the plaintiff-appellant, Gary Pachucki's complaint and the cross-complaints against Underwriters and Republic after a bifurcated trial to the court on the issue of insurance coverage.

The plaintiff-appellant, Gary Pachucki, commenced this action seeking to recover damages for personal injuries suffered during an incident at work on September 10, 1972 when he was struck in the right eye. On the date of the accident, the plaintiff was employed as a printer at Steins Garden Center of Milwaukee. At approximately 5:30 p. m., co-employees and the defendants in this action, Dale Boeschke, Bernard Halas and Anthony Anderson, ² entered the room where Pachucki was working and started a "greening pin war." A greening pin war is described as being comparable to the shooting of paper clips with rubber bands. The flying metal object that caused an injury to the cornea of the plaintiff's right eye was a greening pin, similar in size and weight to a bobby pin.

The plaintiff's complaint also named as defendants in this action Republic and Underwriters insurance companies. At the time of the accident, Republic had in full force and effect policies of homeowners insurance covering the parents of Dale Boeschke and Anthony Anderson, with their children named as additional insureds. Similarly, Underwriters had issued a homeowners policy to the parents of Bernard Halas, naming him as an additional insured. The original answers filed by the insurance companies were subsequently amended to allege certain defenses in coverage relying upon the "business pursuit" and the "intentional tort" policy exclusions. Each policy contained the following language in the coverage exclusionary provisions:

"THIS POLICY DOES NOT APPLY:

"1. Under Coverage E Personal Liability and Coverage F Medical Payments to Others: . . .

"(d) to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits; . . .

"(f) to bodily injury or property damage which is either expected or intended from the standpoint of the insured."

Republic and Underwriters moved for summary judgments of dismissal upon the above recited policy exclusions. In the alternative, the insurers requested a bifurcated trial with respect to the issue of policy coverage in the event that the motions for summary judgment were denied. The trial court denied the respective summary judgment motions but granted Republic's and Underwriter's requests for a separate trial on the issue of coverage.

At the trial on the issue of coverage, the defendant Boeschke stated that he did not mean to hit or hurt the plaintiff as he was taking haphazard aim. However, on cross-examination, Boeschke contradicted this testimony stating that although he had no intention of hitting the plaintiff in the eye, he had intended to strike Pachucki's body with the rubber band-propelled projectile. In his testimony, Boeschke stated "You do not have too much control" when shooting a greening pin; and admitted that the plaintiff could be hit in the eye because of the lack of control over the flying object's course of travel. Boeschke personally realized the danger of the flying object, testifying that on one occasion he had bled after being struck with a greening pin.

The defendant, Bernard Halas, testified that he was aiming in the plaintiff's general direction but was not trying to hit any particular part of his body. He explained that since a flying greening pin could strike anywhere on a person's body he realized there was a possibility that the pin could hit Pachucki in the face. The Defendants, as well as the plaintiff, stated that the "war" game was spontaneous and not the result of any provocation or animosity. During the 3-5 minute "game of war" the plaintiff and the defendants fired approximately 30 greening pins with only one other pin striking the plaintiff in the leg. It is undisputed in the record that the plaintiff returned the defendants' volleys and that Boeschke was standing about 6 feet away when he fired the pin into the plaintiff's eye.

After trial, the court granted judgment in favor of the insurance companies and made the following pertinent findings of fact:

"21. That the shooting of greening pins is an activity ordinarily associated with non-business pursuits.

"22. That the defendants were shooting greening pins with the intent of hitting the plaintiff, although they had no intent to hit plaintiff in the eye and cause the specific injury which occurred.

"23. That it was a substantial certainty that the plaintiff would sustain some kind of damage.

"24. That from the standpoint of the actors, the shooting of the greening pins was an intentional act of the kind and character exempted from coverage pursuant to the exclusion contained in each of the three policies."

Issue:

Whether pursuant to the language contained in a homeowners insurance policy excluding coverage for bodily injury or property damage which is either expected or intended from the standpoint of the insured is coverage excluded only upon adequate proof that the insured specifically intended the resulting injury?

The appellant's preliminary contention is that the language of the intentional tort exclusion is ambiguous and must be construed in favor of coverage. See: McPhee v. American Motorists Ins. Co., 57 Wis.2d 669, 676, 205 N.W.2d 152 (1972). The insurers in this case concede that the intentional tort exclusion and the language used therein refers only to the denial of coverage for intentionally caused injuries, and does not refer to an intentional act of itself. We apply this court's interpretation recited in Garriguenc v. Love, 67 Wis.2d 130, 134-35, 226 N.W.2d 414 (1975) setting forth the reasonable person standard for insurance contract construction and thus we do not find the policy language ambiguous as a reasonable person in the position of the insured would interpret the policy language as specifically applying only to injuries intentionally caused.

The appellant's principal argument is that the policy provision excluding coverage for ". . . bodily injury . . . which is either expected or intended from the standpoint of the insured" should be construed as requiring proof of a specific intent to cause injury. The appellant maintains that under this construction of the intentional tort exclusion, insurance coverage should be provided as it is virtually undisputed that none of the defendant co-employees intended to inflict injury to the plaintiff's eye.

To the contrary, the respondents support the trial court's analysis of the policy exclusion interpreting the provision to mean: where the insured intends to strike or hit a third party, the intent to injure may be inferred by the nature of the act as well as the reasonable foreseeability of the resulting harm, even though the actual injury is different in character or magnitude.

Home Insurance v. Neilsen, (Ind.App.1975), 332 N.E.2d 240 outlines three general rules that have emerged with respect to the construction of an intentional tort exclusion:

(1) The minority view follows the classic tort doctrine of looking to the natural and probable consequences of the insured's act;

(2) The majority view is that the insured must have intended the act And to cause some kind of bodily injury;

(3) A third view is that the insured must have had the specific intent to cause the type of injury suffered. ³

The trial court denied coverage in the instant case with application of the majority view. The majority position is summarized in the following: (1) it is necessary that the insured intend both the act as well as intending to cause bodily injury in order for the exclusion to apply; (2) intent may be actual or may be inferred by the nature of the act and the accompanying reasonable foreseeability of harm; (3) once it is found that harm was intended, it is immaterial that the actual harm caused is of a different character or magnitude than that intended. See: Butler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934 (1976); Clark v. Allstate Ins. Co., 22 Ariz.App. 601, 529 P.2d 1195 (1975).

To date, there is no Wisconsin case law that has squarely met the issue of determining the interpretation of ". . . bodily injury or property damage which is either expected or intended from the standpoint of the insured." In Peterson v. Western Cas. & Surety Co., 5 Wis.2d 535, 93 N.W.2d 433 (1958) the court construed the phrase excluding coverage for ". . . injury . . . caused intentionally by . . . the insured" and affirmed the trial court's finding of coverage. Peterson was injured while standing next to the insured's open car door and was struck as the car moved away from its parked position. The court concluded that although the insured may have acted intentionally in an effort to escape from the police as he rapidly backed up his auto, his intentional acts were not directed toward the plaintiff. This court stated in regard to the trial court's finding that the insured's acts constituted gross negligence:

"The law may treat gross negligence as equivalent to intentional wrongdoing for some purposes, but not for the purpose of excluding liability for gross...