Raby v. Moe

• Decision Date: 23 February 1989
• Docket Number: No. 88-0491,88-0491
• Citation: 441 N.W.2d 263,149 Wis.2d 370
• Parties: James and Shirley RABY, individually, and as Special Administrator of the Estate of Steven Raby, Deceased, Plaintiffs-Respondents-Cross Appellants, v. Terrence Lee MOE, Defendant-Cross Respondent, Victor Green, Defendant, Heritage Mutual Ins. Co. d , Defendant-Appellant-Cross Respondent.
• Court: Wisconsin Court of Appeals

Page 263

441 N.W.2d 263

149 Wis.2d 370

James and Shirley RABY, individually, and as Special Administrator of the Estate of Steven RabyDeceased, Plaintiffs-Respondents-Cross Appellants, v.Terrence Lee MOE, Defendant-Cross RespondentVictor Green, DefendantHeritage Mutual Ins. Co. ^d Defendant-Appellant-Cross Respondent. No. 88-0491.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 6, 1989.

Opinion Released Feb. 23, 1989.

Opinion Filed Feb. 23, 1989.

Barrett J. Corneille and Bell, Metzner & Gierhart, S.C., of Madison, for defendant-appellant-cross respondent.

Richard E. Rosenberg and Nowlan & Mouat, Janesville, for plaintiffs-respondents-cross appellants.

Margaret B. Grabowski and Brennan, Steil, Basting & MacDougall, S.C., Janesville, for defendant-cross respondent.

Before GARTZKE, P.J., EICH and SUNDBY, JJ.

EICH, Judge.

Heritage Mutual Insurance Company appeals from a judgment awarding civil damages to James and Shirley Raby, whose son Steven, a liquor store clerk, was killed during a robbery at the store.The robbery was planned and executed by four men, including Terrence Moe, whose parents were insured under a homeowners policy issued by Heritage.The Rabys sued Heritage, Moe and the three other men, claiming that Steven's death was caused by the men's negligence in planning and executing the robbery.Heritage claimed that its policy did not cover Moe's actions because of an exclusion denying coverage for any acts "expected or intended" by the insured.

The jury found that Moe was negligent in conspiring with the others to commit the robbery, but that he had not "expected or intended" any injury to Raby.The jury apportioned the negligence forty-five percent to Moe and five percent and fifty percent, respectively, to two other conspirators (the fourth conspirator--the man who entered the store and shot Raby, was dismissed from the action after a default judgment was entered against him).Because the defendant who the jury found to be fifty percent negligent was insolvent, the trial court"redistributed" that negligence to Moe and the remaining conspirator, thus increasing Moe's allocation from forty-five to ninety percent and the other defendant's from five to ten percent, and entered judgment accordingly.The Rabys cross-appeal from that portion of the judgment reallocating the negligence among the defendants.

The issues on the appeal are: (1) whether the "intentional acts" exclusion in Heritage's policy bars coverage for Steven Raby's death; (2) whether the trial court erred when it declined to submit a question to the jury inquiring whether Raby's death was an "occurrence" within the meaning of the basic coverage sections of Heritage's policy; ¹(3) whether the "doctrine of fortuity" precludes Moe from receiving "benefits"--in the form of insurance coverage--for his "criminal wrongdoing"; (4) whether the court erred in instructing the jury on various points; (5) whether the jurors were improperly informed of the ultimate effect of their verdict; and (6) whether the court erred in the admission and rejection of certain evidence.The sole issue on the cross-appeal is whether the trial court erred when it reallocated the negligence of the insolvent defendant.We resolve all issues in favor of the judgment and affirm.

The basic facts are not in dispute.Terrence Moe, Jeff Thompson, Victor Green and Charles Garnett planned the liquor store robbery.Green furnished a shotgun, shells, and other paraphernalia, and Moe drove the car.While Moe waited in the car, Thompson entered the store, took money from the cash register and shot and killed Raby.Thompson was tried and convicted of first-degree murder, while Moe, Green and Garnett (whose involvement was limited to helping plan the robbery) entered pleas to second-degree murder, party to the crime.

Raby's parents sued all four men for damages resulting from their son's death.Green, like Thompson, allowed a default judgment to be taken against him, and Garnett and his insurer settled with the Rabys prior to trial.As a result, the case went to trial primarily on the Rabys' claim against Moe and Heritage, although the verdict also asked the jury to ascertain and apportion the negligence of Moe, Green and Garnett.The jury found all three men causally negligent with respect to Steven Raby's death.As indicated, the jury also found that Moe neither expected nor intended that Raby would be injured during the robbery.Other facts will be referred to below.

I.THE "INTENTIONAL ACTS" EXCLUSION

Heritage's policy excludes coverage for bodily injury "which is expected or intended by the insured," and it is conceded that Terrence Moe was an "insured" for purposes of this action.Heritage argues first that the exclusion applies because the Rabys' lawsuit was originally one for the "intentional infliction of emotional distress," an intentional act within the meaning of the policy language.

In support of its argument, Heritage refers us to an allegation in the Rabys' original complaint to the effect that Thompson's act of pointing the gun at Steven Raby prior to shooting him caused Raby emotional distress before the trigger was pulled.But the fact remains that the Rabys never advanced a claim for intentional infliction of emotional distress at trial.Indeed, to the extent such a claim may have been alleged in the original pleadings, it was expressly withdrawn at trial, and the court, indicating that it was "dismissing" any such claim, never submitted it to the jury.

Heritage contends, however, that the issue was in fact tried, and that there is evidence in the record which would support a finding that Moe intended to cause harm to Raby--evidence that Moe believed that Thompson might use the shotgun to "scare" Raby into surrendering the cash register receipts.In particular, Heritage points to testimony of Moe and Thompson to the effect that they knew the clerk would be "scared" by the presence of the shotgun, and Moe's acknowledgment that he"didn't like the idea" of Thompson's use of a loaded gun because if the clerk also had a weapon there could have been a "shootout" in the store and thus a "good possibility" that someone could be injured.Moe also stated that he thought Thompson might use the gun to "just scare the clerk by shooting up in the air or something, or at his leg or something...."

What Heritage's argument boils down to is that, in light of this testimony, Moe must be considered to have intended or expected some injury to Raby and that this is sufficient to invoke the exclusion, citing a statement in Pachucki v. Republic Insurance Co., 89 Wis.2d 703, 714, 278 N.W.2d 898, 904(1979), quotingButler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934, 938(1976), to the effect that the "intentional injury" exclusion applies if the insured " 'acts with the intent or expectation that bodily injury will result even though the ... injury that does result is different either in character or magnitude from the injury that was intended.' "However, given the jury's finding that Moe did not intend or expect that Raby would be injured in the robbery, we fail to see how the quoted language aids Heritage's cause.

The question is not whether there is evidence in the record that might support Heritage's assertions.The intent to inflict injury which triggers the policy exclusion is a question of fact.Pachucki, 89 Wis.2d at 711, 278 N.W.2d at 902.In this case, the jury specifically found that Moe, although a coconspirator in the robbery, neither intended nor expected that any injury would befall Raby that night.The law applicable to review of jury verdicts requires us to sustain the jury's findings if there is any credible evidence to support them.Gegan v. Backwinkel, 141 Wis.2d 893, 899, 417 N.W.2d 44, 47(Ct.App.1987)."Our search is for evidence to sustain the verdict returned by the jury, not for evidence to sustain a result it could have reached but did not."Id.This is particularly true where, as here, the jury's findings have the approval of the trial court.Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598(1984).

Moe testified that, while he thought Thompson might use the gun to attempt to scare the store clerk, it was not "any part of the plan for the armed robbery that anybody should shoot [him]."According to Moe, when he and the others planned the robbery, no one expressed any intention to shoot the clerk, and he stated unequivocally that he neither intended nor expected that any shooting would occur, or that the clerk would suffer any harm.Remembering that the Rabys' claim in this case was for their son's death, not for any fright he might have experienced before being shot, we are satisfied that Moe's testimony, together with the voluminous evidence on all aspects of the group's planning and execution of the robbery, provides adequate support for the jury's verdict.Given that verdict, the trial court correctly ruled that the policy exclusion did not apply.²

II.COVERAGE FOR "OCCURRENCES"

The primary "coverage" portions of Heritage's policy state that the company will pay for injuries "caused by an occurrence...."In the context of such clauses, an "occurrence" is an "accident."Smith v. State Farm Fire & Cas. Co., 127 Wis.2d 298, 302, 380 N.W.2d 372, 374(Ct.App.1985).

Heritage argues that because there must be an "occurrence" in order for coverage to be extended in the first place--before one even gets to the question of whether "intentional injury" or any other exclusion might apply--the jury should have been asked to determine whether Raby's gunshot injuries "were caused by an accident."

We note first that the event--the "injury"--giving rise to this lawsuit was the shooting of Steven Raby.And whatever uncommunicated intent or design Thompson, once inside the store, may have formed to fire the shot, the question is not Thompson's intent, but Moe's.Thompson's intent is irrelevant to this...