Public Employees Mut. Ins. Co. v. Fitzgerald

• Decision Date: 22 April 1992
• Docket Number: No. 13997-9-II,13997-9-II
• Citation: 65 Wn.App. 307,828 P.2d 63
• Parties: PUBLIC EMPLOYEES MUTUAL INSURANCE COMPANY, Appellant, v. James F. and Melinda FITZGERALD, husband and wife; and James F. Fitzgerald, as Personal Representative of the Estate of Jamie W. Fitzgerald, Respondents.
• Court: Washington Court of Appeals

Page 307

65 Wn.App. 307

828 P.2d 63

PUBLIC EMPLOYEES MUTUAL INSURANCE COMPANY, Appellant, v. James F. and Melinda FITZGERALD, husband and wife; and James F. Fitzgerald, as Personal Representative of the Estate of Jamie W. Fitzgerald, Respondents.

No. 13997-9-II.

Court of Appeals of Washington Division 2.

April 22, 1992.

Sidney R. Snyder, Jr., Merrick, Hofstedt & Lindsey, P.S., Seattle, for appellant.

D. Michael Shipley, Schweinler, Lowenberg & Lopez, Tacoma, guardian ad litem.

James F. Imperiale, Griffin, Imperiale Bobman & Verhey, Tacoma, for respondents.

PETRICH, Chief Judge.

Public Employees Mutual Insurance Company (PEMCO) appeals from a declaratory judgment finding it liable for bodily injury coverage under a homeowner's policy. PEMCO contends that the insured mother's acquittal by reason of insanity for the death of her child does not preclude a finding that the child's death was "intended and expected" and, therefore, excluded under the insurance policy. We are satisfied that an acquittal in a criminal proceeding by reason of insanity does not preclude an insurer from proving that its insured's conduct falls within an "intentional and expected" exclusion of coverage; that whether an insured was incapable of forming an intent because of mental illness or defect is a factual determination; that the trial court did not err in granting summary judgment because PEMCO failed to raise a material issue of fact concerning the mother's mental illness; and that the trial court did not err in ordering PEMCO to pay Melinda Fitzgerald's guardian ad litem fees. Accordingly, we affirm.

FACTS

On December 29, 1988, Melinda Fitzgerald killed her two-and-a-half year old son by choking and drowning him. After her arrest, she made a statement to the police detailing the events that had occurred. ¹ The State charged her with first degree murder. After a waiver of her right to a jury trial, the court acquitted her, finding her not guilty by reason of insanity.

James Fitzgerald, Melinda Fitzgerald's husband, made a claim to PEMCO for liability coverage for their son's death. PEMCO filed this action for a declaratory judgment to decide whether it was liable to cover the damages resulting from the child's death. James Fitzgerald then moved the court for the appointment of a guardian ad litem for his wife and asked the court to impose the costs of this appointment on PEMCO. PEMCO did not oppose the appointment of a guardian ad litem, but it did oppose its responsibility for the costs. PEMCO then moved for summary judgment. The court entered a summary judgment order holding PEMCO liable for claims arising out of the child's death. Subsequently, the court ordered PEMCO to pay the costs of the guardian ad litem.

Section II of the homeowner's policy governs the Fitzgeralds' claim. Part E of that section, which governs personal liability coverage, provides:

Coverage E--Personal Liability

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

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

b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.

Under Section II of the policy governing exclusions, the policy provides:

1. Coverage E--Personal Liability ... do[es] not apply to bodily injury or property damage:

a. which is expected or intended by the insured;

The policy defines "bodily injury":

1. "bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death resulting therefrom.

STANDARD OF REVIEW

This court engages in the same inquiry as the trial court on appeal from summary judgment. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to prevail as a matter of law. Wilson, at 437, 656 P.2d 1030. The interpretation of the language in an insurance policy is a question of law subject to de novo review. Roller v. Stonewall Ins. Co., 115 Wash.2d 679, 682, 801 P.2d 207 (1990). Exclusionary clauses in insurance policies are strictly construed against the insurer. Rodriguez v. Williams, 107 Wash.2d 381, 386, 729 P.2d 627 (1986).

EXCLUSION FOR INTENTIONAL ACTS

The traditional rule has been that when a slayer is insane at the time of his or her act, the "intended or expected" exclusion to a liability policy is ineffective, even though the policy would have excluded recovery had the slayer been sane at the time of the act. 4 Couch on Insurance 2d (1984) § 27:155; 10 Couch on Insurance 2d (1982) § 41.696. The purpose for this rule is as follows:

[T]o deny coverage for acts caused by an individual lacking the mental capacity to act rationally is inconsistent with a primary purpose for incorporating intentional injury exclusions into insurance policies, i.e., to preclude individuals from benefiting financially when they deliberately cause injury. An individual who lacks the capacity to conform his behavior to acceptable standards will not be deterred by the existence or nonexistence of insurance coverage for the consequences of his acts.

Globe American Cas. Co. v. Lyons, 131 Ariz. 337, 641 P.2d 251, 253-54 (Ariz.App.1981) (citing Congregation of Rodef Sholom of Marin v. American Motorists Ins. Co., 91 Cal.App.3d 690, 154 Cal.Rptr. 348 (1979)).

There are emerging views, however, that differ from this traditional rule. One such view is that "intentional" under an insurance clause is an issue of fact different from that at issue in criminal proceedings. PEMCO urges this viewpoint and one which would exclude coverage upon proof that the insured understood the nature of his or her act but could not distinguish right from wrong. See generally Annot., Liability Insurance: Intoxication or Other Mental Incapacity Avoiding Application of Clause in Liability Policy Specifically Exempting Coverage of Injury or Damage Caused Intentionally By or At Direction of Insured, 33 A.L.R.4th 983 § 2 at 987 (1984).

The question presented is one of first impression in Washington. PEMCO urges this court to apply the reasoning of the Washington Supreme Court in Grange Insurance v. Brosseau, 113 Wash.2d 91, 776 P.2d 123 (1989). We find that case inapplicable to the facts at hand. Brosseau follows an emerging trend of cases finding that self-defense, while an excuse in a criminal proceeding, does not make an otherwise intentional act unintentional. In Brosseau, Grange Insurance initiated a declaratory judgment to determine if it had a duty to defend its insured in a wrongful death action. The insured asserted that he had acted in self-defense and, hence, the result of his act was not "intended or expected." The court assumed for the sake of argument that the insured had acted in self-defense, noting that the actual determination was an unresolved question of fact. Brosseau, at 95, 776 P.2d 123. The court looked to the insured's own words to determine as a matter of law that the insured's act was deliberate. "Brosseau's statement establishes that he pumped the shotgun, aimed it at Anderson, and pulled the trigger. Brosseau's own words confirm that he deliberately fired the shotgun at Anderson. The fact that he claims to have done so in self-defense in no way negates the deliberate nature of his act." Brosseau, at 96, 776 P.2d 123. The court rejected the reasoning of the Ohio Supreme Court, which held in Preferred Mut. Ins. Co. v. Thompson, 23 Ohio St.3d 78, 491 N.E.2d 688 (1986), that there is no deterrent rationale in cases of self-defense and therefore, the exclusion should not apply. The Brosseau court said that such reasoning is sound when discussing public policy, but does not apply to a contractual interpretation. The court said, "We do not accept the principle that because intentional acts are excluded in order to avoid control of the risks by the insured, acts of self-defense are included because the insured does not control the risks. Simply because a risk is calculable does not mean it is covered." Brosseau, 113 Wash.2d at 98, 776 P.2d 123.

PEMCO urges us to examine statements Melinda Fitzgerald made to the police to determine as a matter of law that she intended or expected her acts to end her child's life. Brosseau does not compel us to do so. "In Brosseau, there was no issue of fact as to the insured's intent to shoot the victim, but only whether the reason for the shooting made the exclusionary language inapplicable." Safeco Insurance v. McGrath, 63 Wash.App. 170, 174, 817 P.2d 861 (1991), review denied, 118 Wash.2d 1010, 824 P.2d 490 (1992). One asserting self-defense has the capacity to intend the consequences of his or her act. One suffering from mental illness or defect does not necessarily have that requisite capacity. See U.S.F. & G. Ins. v. Brannan, 22 Wash.App. 341, 589 P.2d 817 (1979) (jury instruction proper when providing that for an act to be "intended," the insured must have the "mental capacity to form the requisite intent to commit the act"); New York Underwriters Ins. v. Doty, 58 Wash.App. 546, 794 P.2d 521 (1990) (absent proof of insanity, insured is presumed to be sane and able to form the general intent to commit the acts in question).

Other jurisdictions have dealt with the issue presented in differing contexts. The following cases arose on summary judgment: Allstate Ins. Co. v. Miller, 175 Mich.App. 515, 438 N.W.2d 638 (1989) (court agreed with majority line of cases that if a person is insane, he cannot act intentionally and held that summary judgment denying coverage was inappropriate because insureds presented evidence that slayer was unaware of what he was doing...