Raby v. Moe

• Decision Date: 17 January 1990
• Docket Number: No. 88-0491,88-0491
• Citation: 450 N.W.2d 452,153 Wis.2d 101
• Parties: James and Shirley RABY, individually and as Special Administrator of the Estate of Steven Raby, Deceased, Plaintiffs-Respondents-Cross-Appellants, v. Terrance Lee MOE, Defendant-Cross-Respondent, Victor Green, Defendant, Heritage Mutual Insurance Company, Defendant-Appellant-Cross- Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 452

450 N.W.2d 452

153 Wis.2d 101

James and Shirley RABY, individually and as Special Administrator of the Estate of Steven Raby, Deceased, Plaintiffs-Respondents-Cross-Appellants, v. Terrance Lee MOE, Defendant-Cross-Respondent, Victor Green, Defendant,

Heritage Mutual Insurance Company,

Defendant-Appellant-Cross-

Respondent-Petitioner.

No. 88-0491.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 5, 1989.

Decided Jan. 17, 1990.

Barrett J. Corneille, Virginia L. Newcomb, and Bell, Metzner, Gierhart & Moore, S.C., Madison, on briefs, for defendant-appellant-cross respondent-petitioner.

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

David A. Schumann, and Brennan, Steil, Basting & MacDougall, S.C., Janesville, on brief, for defendant-cross respondent.

CECI, Justice.

This case is before the court on petition for review of a decision of the court of appeals, Raby v. Moe, 149 Wis.2d 370, 441 N.W.2d 263 (Ct.App.1989), which affirmed a judgment of the Rock county circuit court, Mark J. Farnum, Circuit Judge. The respondents, James and Shirley Raby, commenced a civil action for the death of their son, Steven Raby, who was shot and killed during an armed robbery of the liquor store where he worked. The respondent, Terrance Moe (Moe), participated in the commission of the robbery and was named as a defendant in the action. Moe was insured under a policy of homeowners insurance issued by the petitioner, Heritage Mutual Insurance Company (Heritage), at the time of the robbery. Heritage was also named as a defendant in the action.

Heritage moved for summary judgment, arguing that its policy of insurance did not provide coverage for damages resulting from Raby's death because of an exclusion to coverage for injury "expected or intended" by the insured. The circuit court denied the motion, and the case ultimately proceeded to trial. At the trial, a jury found that Moe was negligent in his participation in the robbery and that his negligence was a cause of injury to Raby. The jury also found that Moe neither expected nor intended that Raby would be injured during the robbery. The circuit court entered judgment on the verdict, holding Moe and Heritage liable for civil damages for the death of Raby. The court of appeals affirmed the judgment.

The dispositive issue before this court is whether the circuit court should have granted Heritage's motion for summary judgment on the grounds that the policy exclusion for injury "expected or intended" by the insured bars coverage for damages resulting from Raby's death. We find that Moe's intentional participation in the armed robbery was so substantially certain to result in some type of bodily injury that the circuit court should have inferred the intent to injure necessary to invoke the policy exclusion on the facts of this case as a matter of law. ¹ Accordingly, we reverse the decision of the court of appeals, which affirmed the judgment of the circuit court.

The basic facts of this case are undisputed. Jeff Thompson came up with a plan to rob a liquor store in Janesville, Wisconsin. During the afternoon of January 23, 1986, Thompson spoke with Victor Green and Moe and asked them to assist him in committing the robbery. Green agreed to provide Thompson with a 12-gauge shotgun and shells to use during the robbery, and Moe agreed to drive the "getaway" car. ² That evening, Thompson, Moe, and Green met at Green's house to prepare for the robbery. At approximately 7:30 p.m., Moe drove Thompson to the liquor store and parked in an adjacent parking lot. He waited in the car while Thompson entered the store alone with the loaded shotgun, took money from the cash register, and shot and killed Steven Raby, the store clerk. Thompson, Moe, and Green were arrested for the murder of Raby. Moe testified concerning the facts of the robbery at the criminal trial of Thompson. Thompson was convicted of first-degree murder. Moe and Green pleaded guilty to second-degree murder, party to a crime, pursuant to secs. 940.02(2) and 939.05, Stats. 1985-86. ³ At the time of the robbery, Moe was an insured under a policy of homeowners insurance issued by Heritage to Moe's parents. The policy provided:

If a claim is made or a suit is brought against any insured for damages because of bodily injury ... caused by an occurrence 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 ...

An occurrence was defined in the policy as an accident. The policy also contained an exclusion to coverage for damages arising from bodily injury "expected or intended by the insured." Bodily injury was defined in the policy as bodily harm.

James and Shirley Raby commenced a civil action on their own behalf and on behalf of the estate of Steven Raby, their son, seeking damages for Steven's death. Moe and Heritage were named as defendants in the action. ⁴ The complaint alleged that Moe was careless and negligent in planning and executing the robbery and that his negligence caused the injuries and death of Steven Raby.

Heritage filed a motion for summary judgment, arguing that it could not be held liable for damages resulting from Raby's death by virtue of an exclusion in its policy of insurance for bodily injury "expected or intended by the insured." Heritage maintained that the intent to injure necessary to invoke the exclusion could be inferred from the nature of Moe's intentional act of aiding and abetting the armed robbery as a matter of law. The circuit court denied the motion, and the case ultimately proceeded to trial. A jury found that Moe was negligent with respect to the events of January 23, 1986, and that his negligence was a cause of injury to Raby. The jury further found that Moe neither expected nor intended that Raby would be injured during the robbery. Heritage renewed its motion for summary judgment in motions after verdict. The circuit court denied the motion and entered judgment assessing damages against Moe and Heritage for the death of Steven Raby.

Heritage appealed to the court of appeals, which affirmed the judgment of the circuit court. The court of appeals found that the intent to inflict injury which triggers the policy exclusion is a question of fact which was properly submitted to the jury. Raby, 149 Wis.2d at 380, 441 N.W.2d 263. The court held that there was sufficient evidence presented at trial to support the jury verdict and that the circuit court properly ruled, on the basis of that verdict, that the policy exclusion did not apply. Id. at 381, 441 N.W.2d 263. Heritage petitioned this court for review of the decision of the court of appeals, which we granted.

Heritage argues that the intent to injure which invokes the policy exclusion for injury "expected or intended" by the insured may be inferred on the facts of this case as a matter of law. We construe Heritage's argument as asserting error in the circuit court's failure to grant summary judgment on that basis. Summary judgment may be used to address issues of insurance policy coverage. Jones v. Sears Roebuck & Co., 80 Wis.2d 321, 325, 259 N.W.2d 70 (1977); Backhaus v. Krueger 126 Wis.2d 178, 180, 376 N.W.2d 377 (Ct.App.1985). When called upon to review the denial of a summary judgment motion, we apply the standards set forth in sec. 802.08, Stats., in the same manner as the circuit court. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831 (1980). A motion for summary judgment should be granted by the circuit court where the pleadings, depositions, affidavits, and other papers on file show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See sec. 802.08(2).

We find that there is no dispute of the material facts in this case. The record made on the motion for summary judgment reveals that Moe drove Thompson to the liquor store to perpetrate the armed robbery and that he pleaded guilty to party to a crime of second-degree murder as a result of his involvement in the robbery. The record also reveals that Moe was aware that Thompson planned to use a loaded shotgun during the robbery and that he knew that Thompson entered the liquor store with the shotgun in order to effectuate the robbery. Further, there is no dispute that Moe was insured under the terms of the homeowners insurance policy issued by Heritage to Moe's parents at the time of the robbery. Based on these undisputed facts, we review the legal issue presented in this case. We will reverse the circuit court's denial of summary judgment if it has incorrectly decided that issue. Prince v. Bryant, 87 Wis.2d 662, 666, 275 N.W.2d 676 (1979).

Our review of the applicability of the policy exclusion to the facts of this case is guided by the principles set forth by this court in Pachucki v. Republic Insurance Co., 89 Wis.2d 703, 278 N.W.2d 898 (1979). In Pachucki, this court interpreted a policy exclusion for bodily injury "expected or intended from the standpoint of the insured." The court noted that in order for the exclusion to preclude insurance coverage in a given case, two requirements must be met. First, the insured must intentionally act, and, second, the insured must intend some injury or harm to follow from that act. Id. at 710, 278 N.W.2d 898.

In the instant case, there was no factual issue raised on the motion for summary judgment concerning Moe's intent to participate in the crime which resulted in the death of Steven Raby. Moe's testimony at the criminal trial of Jeff Thompson indisputably established that Moe willingly and actively assisted Thompson in the commission of the armed robbery by driving the getaway car. Moe's intent to act is further established in this case by his voluntary plea of guilty to party to the crime of second-degree murder, contrary to sec. 940.02 and sec. 939.05, Stats. This court has...