Safeco Ins. Co. of America v. Dotts
| Decision Date | 26 July 1984 |
| Docket Number | No. 5797-III-6,5797-III-6 |
| Citation | 38 Wn.App. 382,685 P.2d 632 |
| Court | Washington Court of Appeals |
| Parties | SAFECO INSURANCE COMPANY OF AMERICA, a domestic corp., Respondent, v. Harry DOTTS, a single man, and James A. McKee, individually and as administrator and personal representative of the estate of David M. McKee, and the estate of David M. McKee, Appellants. |
Jay E. Leipham, Glen A. Harlow, Underwood, Campbell, Brock & Cerutti, P.S., Spokane, for appellants McKee.
Carl J. Oreskovich, Hemovich & Nappi, Spokane, for appellants Dotts.
Ronald G. Morrison, Huppin, Ewing, Anderson & Hergert, PS, Spokane, for respondent.
James McKee, administrator of the estate of David McKee, and Harry Dotts appeal the summary judgment determination that Mr. Dotts' insurance policy did not cover his liability for the assault of David McKee. We affirm.
The facts are undisputed. Safeco Insurance Co. (Safeco) issued 22-year-old Harry Dotts a mobile homeowner's liability policy providing "personal liability" for damages due to bodily injury caused by an "occurrence". The policy definition of "occurrence" is: "An accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage." (Italics ours.) The policy further excluded from personal liability "bodily injury or property damage which is either expected or intended from the standpoint of the insured."
During early morning hours, Mr. Dotts went to visit his girlfriend. When she did not answer the door, he crawled into her home through her bedroom window. He found his girlfriend and David McKee. Mr. McKee was sitting on the bed. Not paying much attention to Mr. McKee, Mr. Dotts and his girlfriend went into another room where they argued. They agreed David McKee should leave. Mr. Dotts returned to the bedroom, sat down on the bed next to Mr. McKee and asked him if he would leave. Mr. McKee neither responded nor looked at Mr. Dotts.
To get Mr. McKee's "attention", Mr. Dotts began a motion to slap Mr. McKee with his open palm. Mr. McKee started to lean back, and Mr. Dotts assertedly instinctively adjusted the motion of his arm and hand. He backhanded Mr. McKee with his open hand. Thus, the contact between Mr. Dotts' hand and Mr. McKee's face was an open-handed, backhanded slap. The contact did not mark the insured's hand or the victim's face. No other physical contact occurred. Soon, Mr. McKee left the premises seemingly unaffected by Mr. Dotts' slap.
Later that morning, Mr. McKee was taken by a friend to a Spokane hospital, where he lapsed into a coma. He died 5 days later without regaining consciousness.
A Stevens County jury convicted Mr. Dotts of second degree manslaughter and second degree assault. At that trial, Mr. Dotts testified he did not intend to hurt the deceased and he was not angry with him; Mr. Dotts just wanted to get Mr. McKee's attention.
The personal representative of David McKee's estate, his father, James McKee, brought civil suit for damages. Later, Safeco filed a separate declaratory judgment action seeking a determination it had no duty to defend Mr. Dotts and no duty to pay any judgment. Safeco, as plaintiff in the second civil action, then moved for summary judgment asking for the ruling that David McKee's death was not an "occurrence" covered by the policy. Alternatively, Safeco maintained the death was "expected" or "intended" from Mr. Dotts' viewpoint for purposes of activating the policy exclusion. Safeco's motion was granted, and James McKee and Mr. Dotts appeal.
Appellants maintain coverage exists under an "occurrence" policy for intentional acts which cause subjectively unintended resultant injuries. Mr. Dotts' policy equates an "occurrence" with an "accident". We have previously held this term is unambiguous. See, e.g., Unigard Mut. Ins. Co. v. Spokane School Dist. 81, 20 Wash.App. 261, 579 P.2d 1015 (1978). The longstanding Washington rule in accidental death cases 1 is [T]o recover under a policy insuring against death or injury by accidental means, (1) it is not enough that the result was unusual, unexpected or unforeseen, but it must appear that the means were accidental; and (2) accident is never present when a deliberate act is performed, unless some additional, unexpected, independent, and unforeseen happening occurs which produces or brings about the result of injury or death.
(Some italics ours.) Johnson v. Business Men's Assur. Co. of Am., 38 Wash.2d 245, 249, 228 P.2d 760 (1951); see also 166 A.L.R. 469 (1947); 29 Am.Jur. Insurance 706 (1960).
The parties agree the backhanded slap was a "deliberate act". Similarly, for purposes of this appeal, it is undisputed Mr. Dotts subjectively did not intend or expect the "result" of death. At oral argument, appellants maintained the record does not reveal the actual cause of death. We disagree. While the record does not reflect a medical diagnosis, it nonetheless sets forth an uninterrupted chain of events put into motion by Mr. Dotts' deliberate slap. The decedent was taken to the hospital within hours of the assault. Appellants have not presented facts in opposition to Safeco's motion for summary judgment to raise an inference that the actual cause was "independent" of the hand slap within the meaning of Johnson. Rather, the only facts offered by appellants to suggest a material issue of fact exists is the decedent's flinching, or leaning-back action, at the prospect of being slapped. Appellants contend this was an independent and unexpected action so as to keep the incident within the policy definition of "occurrence". This argument is unpersuasive. The victim's leaning back may have been subjectively unexpected and even unforeseeable, but it was not "independent" since it was instantly and directly connected to...
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