Phoenix Ins. Co. v. Helton

• Decision Date: 18 July 1974
• Docket Number: No. T-307,T-307
• Citation: 298 So.2d 177
• Parties: PHOENIX INSURANCE COMPANY, Appellant, v. Henry Eugene HELTON, Appellee.
• Court: Florida District Court of Appeals

Page 177

298 So.2d 177

PHOENIX INSURANCE COMPANY, Appellant, v. Henry Eugene HELTON, Appellee.

No. T-307.

District Court of Appeal of Florida, First District.

July 18, 1974.

Rehearing Denied Aug. 19, 1974.

Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

Charles L. Cetti, of Phillips, Williams, McGraw, Cetti & O'Brien, Pensacola, for appellee.

BOYER, Judge.

The principles hereinafter announced will be more easily understood if we first chronologically deraign the facts.

For brevity the appellant will be referred to as 'Phoenix', the appellee as 'Helton' and the insured tort-feasor (James Mason Bracklin) as 'Bracklin'.

Sometime before the occurrence of the events giving rise to this controversy Phoenix issued an automobile liability insurance policy to Bracklin, which policy contained an exclusion which provided that the policy would not apply 'to bodily injury or property damage caused intentionally by or at the direction of the insured.'

In December of 1967 Helton, who had known Bracklin for many years, saw Mr. and Mrs. Bracklin at an establishment known as Sy's Place. Helton was accompanied by a woman named Dina Morris. Helton, a professional bondsman, was at Sy's Place for the purpose of attempting to arrest a woman for whom he had made bond. He apparently found the woman, who threw a drink in his face and then ran out the door. Dina Morris ran out after her. Apparently as a result of mistaken identity, Dina Morris became engaged in a fight with Mrs. Bracklin, who was not the woman who had thrown the drink in the face of Helton. A group of people gathered around the struggling women. Bracklin attempted to reach his wife to extricate her from the melee but was 'grabbed from behind' by two unidentified men. He then went to his car for the purpose of using it as an instrument of access. Helton's hand was injured when he struck the headlight of the car. At the risk of rendering this opinion unusually lengthy, we will, in order to focus upon the points here involved, quote all of the testimony adduced at the trial relative to the use of the vehicle by Bracklin and the manner in which Helton sustained his injury.

Helton's testimony was as follows:

'Q. What happened during the hairpulling out there in the parking lot?

'A. Well, we was, you know trying to separate them, and the car came through there, and I pushed the boy out of the way and my hand went in the headlight and got it broken.

'Q. And you were hit there in the mob at the time Mr. Bracklin drove up in his car and ran into the group?

'A. Well, I guess you could say that.

'Q. And in the process you got your hand bumped by the headlight of his car?

'A. Well, I guess so. You can say that. I got it broke in four or five places.

'Q. All right, with reference to the movement of the automobile, was it headed into the crowd or around the crowd?

'A. Well, I would say that Mr. Bracklin was, you know, probably trying to--

'Q. Just as to the movements of the automobile, Mr. Helton.

'A. I would say he was trying to get, you know, around the--

'Q. Just what did the automobile do?

'A. Well, he wasn't in the middle of the street. In other words, when he--we were, you know, in the middle of the street and he came down the street. I pushed Mr. Welch out of the way and, in doing so, my hand went in the headlight.'

Mr. Bracklin testified as follows:

'Q. Then what happened?

'A. I went back to the front door of the place, and James Helton was coming out of the door then, I hollered at him to help me break it up. I didn't know who it was fighting over there with my wife, and I don't know if he knew either. But, it seemed like I just couldn't get any help, so I just got in my car and started to try to get her and leave, and I couldn't get to her.

'Q. And you went and got your automobile to come back and get your wife, didn't you?

'A. Yes sir.

'Q. And you drove up right into the crowd in order to get your wife, didn't you?

'A. No, I didn't drive into the crowd.

'Q. Well, how would you describe how you drove your car then?

'A. I came around the corner of the building, and I passed pretty close to them. I didn't see Mr. Helton at the time--I don't know where he was. I still didn't know who the woman was fighting. I didn't find that out until later.

'Q. Mr. Bracklin, you knew when--well, you knew Mr. Helton hurt his hand that night, didn't you?

'A. No sir.

'Q. Do you remember telling Mr. Harper at that time that you got your car to try to scatter out the crowd so you could get your wife and leave?

'A. I told him I drove pretty close to the crowd, but I didn't drive into them. I think he asked me that question, and I told him I didn't drive into them, I drove close to them.'

An insurance adjuster, James A. Harper, testified that he had taken a statement from Bracklin and that the statement contained the following:

'The car was sitting right behind me at Sy's, so I got in my car and drove around the corner and right near the crowd. Ray Welch was hit when I went through the crowd and knocked down. I turned around in the parking lot behind the building and started back through the crowd--or near the crowd and two men ran across the road in front of me neither of them was hit. The crowd was still there all milled around the fight, and I just drove on off. As far as Gene Helton getting hit, I didn't see him get hit, and I don't know how he got his hand hurt.'

Mr. Harper further testified that in response to the question 'Did you go back through the middle of the crowd, or did you go around the edge of the crowd or what? Mr. Bracklin replied.

'To the edge of the crowd. I didn't try to go through the middle of the crowd. My wife was in the middle of the crowd, and I just wanted to scare some of them away from there so I could get her out of the middle of that crowd.'

Helton sued Bracklin and obtained judgment by default. Thereafter Helton caused to be served upon Phoenix a writ of garnishment. Phoenix responded that the injuries sustained by Helton were caused intentionally by Bracklin and that therefore there was no coverage afforded by Phoenix's policy. The case went to trial on those issues.

The jury returned a verdict in favor of Helton and against the garnishee, Phoenix. In subsequent proceedings, the court granted Helton's motion for award of attorney's fees against Phoenix, and entered a judgment against Phoenix for attorney's fees in the sum of $4,000.00.

This appeal followed. We will consider the points raised in the order presented.

Phoenix contends that the evidence demonstrated that as a matter of law the injury to Helton was caused intentionally by Bracklin and that therefore the exclusionary provision of the policy is applicable. Phoenix further contends that the trial court erred in charging the jury as follows:

'The court instructs you that injury or damage is caused intentionally within the meaning of an intentional injury exclusion clause if the insured has acted with the specific intent to cause harm to a third party.

'An insurer will not be relieved of its obligation under a policy containing an intentional injury exclusion clause unless the insured has acted with the specific intent to cause harm to a third party.'

and that the court further erred in refusing to give the following instruction requested by Phoenix:

'In determining whether any injury was caused intentionally, you are instructed that the law presumes that a person intends the natural consequences of his act. Therefore, if you find that James Mason Bracklin intentionally drove his automobile into or so close to a group of persons that as a normal consequence of the act it was probable that someone would be injured, you should conclude that the act and therefore the injury was intentional.'

First we observe that the evidence adduced before the jury as to the manner in which the injury occurred, all of which is hereinabove quoted, was simply insufficient, even if every bit of it was believed by the jury, to sustain the defense based upon the exclusionary provision in the policy. In short, the evidence is insufficient to establish that Helton's injury was 'caused intentionally by or at the direction of the insured.' At best the evidence establishes negligence. (We see no need to discuss Helton's contribution to that negligence.)

However, had the evidence been sufficient to sustain appellant's contention that Bracklin intentionally drove Into the crowd, we would nevertheless be required to affirm on the authority of Cloud v. Shelby Mutual Ins. Co. of Shelby, Ohio, Fla.App. (3d) 1971, 248 So.2d 217 and Gulf Life Insurance Company v. Nash, Sup.Ct.Fla.1957, 97 So.2d 4.

Appellant urges that if the act by which the injury is caused is intentional then the injury is intentional. Were we to follow that theory to its logical conclusion then there could never be a recovery for injuries sustained in an automobile collision because the driver of the offending automobile would unquestionably always have been intentionally driving same; therefore the act of driving being intentional the resulting injury would be intentional (under appellant's theory) and would therefore fall under the exclusionary provision of the policy. Such a contention was rejected by the Supreme Court of Florida in Gulf Life Insurance Company v. Nash, supra, wherein the court stated:

'The principle of law is firmly imbedded in the jurisprudence of this State that contracts of insurance should be construed most favorably to the insured. To draw such a fine distinction between the words 'accident' and 'accidental means' would do violence to this principle. It is a classic example of a distinction without a difference. As a practical matter, the average person buying accident insurance policies assumes that he is covered for any fortuitous and undesigned injury. The average man has no conception of the judicial niceties of the problem and even the most learned judge or lawyer, in attempting...