Shelter Mut. Ins. Co. v. Williams By and Through Williams

• Decision Date: 18 January 1991
• Docket Number: No. 62879,62879
• Citation: 804 P.2d 1374,248 Kan. 17
• Parties: SHELTER MUTUAL INSURANCE COMPANY, Plaintiff/Appellee, v. Daniel B. WILLIAMS, By and Through his father and next friend, Robert R. WILLIAMS, et al., Defendants, and James Alan Kearbey, Defendant/Appellant.
• Court: Kansas Supreme Court

Page 1374

804 P.2d 1374

248 Kan. 17

SHELTER MUTUAL INSURANCE COMPANY, Plaintiff/Appellee, v. Daniel B. WILLIAMS, By and Through his father and next friend, Robert R. WILLIAMS, et al., Defendants and James Alan Kearbey, Defendant/Appellant.

No. 62879.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. The acts of an insured who is mentally ill are "intentional" within the meaning of a provision of an insurance policy excluding coverage for intentional acts of the insured if the insured understood the nature and quality of his acts and intended to cause the injury, even though he is unable to distinguish between right and wrong.

2. In a declaratory judgment action by an insurance company seeking a determination of coverage under a policy provision excluding coverage for intentional acts by the insured, the record is examined and it is held: The district court did not commit error (1) in its instructions concerning defendant's mental capacity or in defining the burden of proof, and (2) in finding there was no coverage under the insurance policy.

Elizabeth Lea Henry, of Fletcher & Mathewson, P.A., Wichita, argued the cause, and Andrew B. Fletcher, of the same firm, guardian ad litem, was with her on the briefs, for defendant/appellant James Alan Kearbey.

Reid Stacey, of Kansas Dept. of Social and Rehabilitation Services, Wichita, argued the cause and was on the briefs, for defendant/appellant SRS.

Stephen M. Kerwick, of Foulston & Siefkin, Wichita, argued the cause, and Nicholas S. Daily, of the same firm, was with him on the brief for plaintiff/appellee.

ALLEGRUCCI, Justice:

This is a declaratory judgment action brought by Shelter Mutual Insurance Company (Shelter) to determine coverage under a homeowners insurance policy containing an exclusion for "bodily injury or property damage expected or intended by an insured."

The facts are not in dispute. On January 21, 1985, James Alan Kearbey entered Goddard Junior High School armed with an M-1A rifle and a .357 magnum handgun. As he proceeded through the halls of the school, Kearbey fired the rifle several times, killing the principal, James McGee, and wounding Daniel B. Williams, Don Harris, and Dawn Swearingen.

Kearbey was a very intelligent 14-year-old who was having problems at home and at school, where he was failing every subject. Dr. Gary Hackney, a clinical psychologist, had been counseling Kearbey since 1983. He described him as an angry, upset, frustrated, and depressed young man. Kearbey repeatedly got into fights with fellow students and was called names. He had a particular problem with a group of "jocks," who picked on him a great deal. The evening before the shooting, Kearbey told a friend that one of his teachers was rough on him and that someone ought to shoot the teacher. At the school on the morning of the shooting, he told the same friend that he was "going to blow everybody through hell's gate." He left the school and went to his house about a block away. He later returned to the school and got into a prone position to try to shoot people in the building, but his glasses fogged up from the cold and he was unable to see. As he walked past the school office, Dawn Swearingen, a teacher, saw Kearbey and thought perhaps he was carrying the gun for some kind of speech. She called to the principal, who came out of the office and asked Kearbey what he was doing. Kearbey then swung around and began spraying the hall with bullets. The principal was shot once through the heart. Swearingen reported that Kearbey never said a word. Kearbey testified that this part had blanked out for him and he could not remember what had happened, although he remembered the spent cartridges coming out of the weapon.

Kearbey continued through the halls of the school and was confronted by another teacher, Don Harris. When Harris asked to see the rifle, he got no response. Kearbey walked by Harris with a brisk walk. When Harris called again, Kearbey turned, knelt, and fired the gun. He hit Harris and Danny Williams, a student.

Kearbey testified at trial that he did not intend to harm his victims but acknowledged his contrary deposition testimony that his objective was to "[g]et the dudes that were messing with [him]." After the shooting, Kearbey tried unsuccessfully to obtain car keys from two people and then fled the area.

At trial, Hackney testified that, when he met with Kearbey the next day, Kearbey was not actively psychotic. Hackney testified at trial, however, that at the time of the shooting Kearbey had a brief reactive psychosis, which meant a sudden onset of psychotic disorder. When Kearbey entered the school, he was out of contact with reality. Hackney testified that, when Kearbey entered the school, he was goal-oriented, but when he realized that the boys who had been picking on him were not in the gym, he "lost it." According to Hackney, a good description of Kearbey's conduct at this time was "walking into a very dense fog," because Kearbey could not distinguish fantasy from reality.

Daniel Williams and Don Harris brought an action for damages against Kearbey, his parents, and the Goddard school system. In that action, Kearbey's parents demanded that Shelter provide coverage and defend them under a previously issued homeowners insurance policy, which provided coverage for personal liability and medical payments to third parties. One provision of this policy excluded coverage for "bodily injury or property damage expected or intended by an insured." After the damages action was filed, Shelter brought this declaratory judgment action on May 29, 1986, to determine whether Kearbey's conduct was excluded from coverage.

Following the shootings, Kearbey was committed to the care and custody of the Kansas Department of Social and Rehabilitation Services (SRS) as a juvenile offender, pursuant to K.S.A. 38-1663(f). He was a resident at the Youth Center at Topeka when the petition here was filed. On June 6, 1986, the district court issued a summons with instructions to serve Kearbey at the Youth Center. The summons was returned, indicating service on Kearbey by leaving a copy with Bob Heintzelman at 1440 N.W. Highway 24. Heintzelman was a Social Services Administrator IV and Program Director at the Youth Center.

On October 29, 1986, the Kearbeys moved for appointment of a guardian ad litem for Kearbey, pursuant to K.S.A.1989 Supp. 60-217(c). The motion was sent to Kearbey in care of Dr. Carol Mills at the Youth Center but was not directly served on SRS. On October 29, 1986, the district court appointed a guardian ad litem and ordered that compensation be paid from funds of the State Secretary of SRS pursuant to K.S.A. 38-1616. SRS entered a special appearance in the case and sought to amend the order, arguing lack of notice, lack of personal jurisdiction, lack of authority under K.S.A. 38-1616, liability of the parents, conflict of interest, and the parties' duty to assume the costs of litigation. The motion was overruled. When Shelter sought an order directing an agent to receive service of process on Kearbey, the court held that service upon Dr. Robert C. Harder, State Secretary of SRS, and Dennis Molamphy, the guardian ad litem, would satisfy K.S.A.1989 Supp. 60-304(b)(2). Summonses were returned showing personal service on Kearbey and on Dr. Harder.

On December 8, 1987, Molamphy moved to withdraw as guardian ad litem, which was sustained. The court appointed Reid Stacey, counsel for SRS, to represent Kearbey. Stacey requested relief from this order, which was overruled. Following a motion for reconsideration, the court withdrew the appointment of Stacey, appointed private attorney Andrew Fletcher as guardian ad litem, and ordered Shelter to pay the costs of the guardian ad litem if Kearbey prevailed, but ordered SRS to bear the expenses if Kearbey did not prevail. Kearbey turned 18 on July 26, 1988, but no action was taken to remove the guardian ad litem and he continues to represent Kearbey at this time.

Trial in this action began on August 16, 1988. The jury answered three questions submitted at trial, finding that Kearbey had expected or intended bodily injury to (1) Daniel Williams, (2) Dawn Swearingen, and (3) Don Harris. The court then entered judgment for Shelter, finding no coverage and no duty to pay damages.

Both defendants Kearbey and SRS appealed. Kearbey raises two issues:

(1) The district court erred in failing to adopt the majority rule of law, and a jury instruction to reflect this rule, that injuries caused by a tortfeasor who lacks the capacity to understand the nature and quality of his actions or who is mentally incapable of controlling his actions cannot, as a matter of law, be excluded from insurance coverage which excepts the expected or intended acts of the insured; and

(2) the jury instructions regarding Kearbey's mental state were clearly erroneous and improperly defined the burden of proof.

The issue raised by SRS is whether the district court had personal jurisdiction over SRS to order SRS to pay the guardian ad litem fees.

The Court of Appeals, in affirming the district court as to Shelter's duty, adopted what it designated the "minority view," that an injury inflicted by a person who is mentally ill is " 'intentional' when the actor understands the physical nature of the consequences of the act and intends to cause the injury, even though incapable of distinguishing right from wrong." 788 P.2d 1344. As to the payment of the guardian ad litem fees, the Court of Appeals held that the district court erred in ordering SRS to pay them because the court did not have personal jurisdiction over SRS.

When the Kearbeys were sued by Daniel Williams and Don Harris, the Kearbeys demanded that Shelter defend and indemnify them. Shelter concluded that Kearbey's actions might be excluded from coverage under the policy because of the exception for bodily injury or property damage expected or intended by an...