State Farm & Casualty Co. v. Frank Boyson, Admin. Etc., 00-LW-3444
| Decision Date | 06 July 2000 |
| Docket Number | 00-LW-3444,76194 |
| Parties | STATE FARM & CASUALTY COMPANY, Plaintiff-Appellee v. FRANK BOYSON, ADMIN. ETC. et al., Defendants-Appellants CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case No. CV-315171.
For Plaintiff-Appellee: DAVID L. LESTER, ESQ., HAROLD H. READER ESQ., Ulmer & Berne, 1300 East Ninth Street, 900 Bond Court Building, Cleveland, Ohio 44114-1583.
For Defendants-Appellants: FRANK BOYSON, Pro Se, 802 East Building, Elyria, Ohio 44035-5631.
For Richard E. Acree, Sr.: RICHARD L. DEMSEY, ESQ., BRENDA M. JOHNSON, ESQ., KATHLEEN J. ST. JOHN, ESQ., Nurenberg Plevin Heller & McCarthy, First Floor Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113-1792.
Appellant Richard Acree, Sr. appeals the trial court's summary judgment in favor of State Farm. The trial court's summary judgment for State Farm resolved the issue in State Farm's declaratory judgment action as to whether its insurance policy provided coverage in a wrongful death action against its insured Patrick Doyle for shooting and killing appellant's son, Richard Acree, Jr.
Richard Acree, Sr. assigns the following error for our review:
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT RICHARD ACREE, SR. IN GRANTING PLAINTIFF STATE FARM FIRE AND CASUALTY COMPANY'S MOTION FOR SUMMARY JUDGMENT.
Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.
On January 2, 1995, State Farm's insured Patrick Doyle entered a North Olmsted restaurant and shot his estranged wife, Margaret, nine times as she sat at the bar. Patrick Doyle also shot Richard Acree, Jr., who also sat at the bar. Margaret Doyle and Richard Acree, Jr. died shortly thereafter. Subsequently, Doyle killed himself.
Doyle's homeowner's insurance policy with State Farm included the following coverage provisions:
The policy defined "occurrence" as an accident, including exposure to conditions, which results in bodily injury. The policy specifically excluded coverage for "bodily injury or property damage which is either expected or intended by an insured" or "bodily injury to any person or property which is the result of willful and malicious acts of an insured."
Richard Acree, Sr., as administrator of his son's estate, filed a wrongful death action [CV-2984101 against Frank Boyson, administrator of Doyle's estate. Boyson requested State Farm defend him in the wrongful death action and indemnify him in the event of a judgment. State Farm filed a complaint for declaratory judgment [CV-315171] seeking a determination that it had no duty to defend or indemnify Boyson under the homeowner's policy. State Farm alleged the policy only provided liability coverage for claims arising out of an "accident" and the policy specifically excluded liability coverage for injuries intended or expected by the insured or which result from an insured's willful and malicious acts.
Richard Acree, Sr. filed an answer and counterclaim to State Farm's complaint. In the counterclaim, Richard Acree, Sr. alleged Patrick Doyle negligently discharged a handgun and Patrick Doyle's negligence proximately caused Richard Acree, Jr.'s death. Richard Acree, Sr. sought a determination that Patrick Doyle's insurance policy covered his conduct and required State Farm to indemnify Doyle's estate for claims arising from Richard Acree, Jr.'s death.
State Farm filed a motion for summary judgment, alleging Doyle's homeowner's insurance policy did not cover the wrongful death claim because Doyle's act of shooting Richard Acree, Jr. was intentional and did not constitute an "accident" as required for coverage under the policy. In support of its argument, State Farm cited excerpts of deposition testimony from several witnesses to the shooting. Bar patron Doug Schill stated Doyle was "most definitely" aiming at Richard Acree, Jr. and was "two, three feet" away from Richard Acree, Jr. when he shot him. (Schill Depo. at 14.) Restaurant owner Arturo Sanfilippo stated Doyle was one foot away from Richard Acree, Jr. when he shot him and Doyle seemed to be aiming at Richard Acree, Jr. (Sanfilippo Depo. at 26.)
State Farm also argued Doyle's conduct fell within the policy's exclusion for injuries, which are expected or intended by an insured. Citing Physicians Ins. Co. v. Swanson (1991), 58 Ohio St.3d 189, 569 N.E.2d 906 and Gearing v. Nationwide Ins. Co. (1996), 76 Ohio St.3d 34, 665 N.E.2d 1115, State Farm argued the intent to injure is inferred when an insured engages in inherently
harmful conduct. State Farm also argued that Doyle's conduct was excluded from coverage as a "willful and malicious" act.
In response to State Farm's motion for summary judgment, Richard Acree, Sr. argued that Richard Acree, Jr. was an innocent bystander who happened to be in Doyle's line of fire. Richard Acree, Sr. pointed out that shell casings were found fifteen to seventeen feet away from Richard Acree, Jr. Richard Acree, Sr. attached deposition testimony by bar patron Ronald Wilamosky that Doyle initially fired four shots from twelve to fifteen feet away from the victims. (Wilamosky Depo. at 20.) Richard Acree, Sr. also attached deposition testimony from Officer Wayne Wozniak who headed the investigation into the shooting. Wozniak stated h e could not determine if Richard Acree, Jr. was shot accidentally or intentionally. (Wozniak Depo. at 91.) Richard Acree, Sr. also argued that, although Doyle intentionally fired his gun, he did not intend to injure Richard Acree, Jr. and, accordingly, Richard Acree, Jr.'s death was an "accident" within the meaning of his insurance policy with State Farm. Richard Acree, Sr. also argued that Doyle's conduct was not "willful" or "malicious" because he did not intend to injure Richard Acree, Jr.
On October 29, 1997, the trial court granted State Farm's motion for summary judgment. On November 24, 1997, the parties filed a stipulation that the wrongful death action was dismissed with prejudice at the defendants' costs. The stipulation further provided that "[n]othing in this journal entry is stipulated so as to effect the consolidated action under Case No. 315171." On the following day, Richard Acree, Sr. appealed. This court dismissed Richard Acree, Sr.'s appeal for lack of a final appealable order because the trial court failed to declare the rights of the
parties. State Farm v. Boyson (Sept. 11, 1998), Cuyahoga App. No. 73580, unreported. Thereafter, upon motion by Richard Acree, Sr., the trial court amended its journal entry and found that State Farm had no duty to provide defense or indemnity with respect to the wrongful death action. The court also found that Richard Acree, Sr. was not entitled to recover on his counterclaim against State Farm. This appeal followed.
In his sole assignment of error, Richard Acree, Sr. argues the trial court erred in granting State Farm's motion for summary judgment.
Summary judgment is appropriate when the following have been established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Civ.R. 56(C), Celotex v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265.
The Court of Appeals standard of review for summary judgment is the same as that of the trial court, de novo. Brown v. Scioto Cty Bd of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 536 N.E.2d 411, appeal dismissed (1988), 39 Ohio St.3d 710, 534 N.E.2d 94. In applying the de novo standard, the Court of Appeals reviews the trial court's decision independently and without deference to the trial court's determination. Brown, 87 Ohio App.3d at 711, 622 N.E.2d at 1157. The burden of showing no genuine issue as to any material fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264, 274, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 196 N.E.2d 781, 783-784.
However, the non-moving party has the reciprocal burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801. See Dresher, 75 Ohio St.3d at 295, 662 N.E.2d at 275 .) An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202.
Doyle's policy with State Farm provided liability coverage for claims because of bodily injury caused by an occurrence. (Insurance policy, Section II, Coverage L.) The policy defined "occurrence" as an accident which results in bodily injury. (Insurance policy Definitions, subsection 7.) The policy does not define "accident." However, undefined terms used in insurance policies should be given their plain and ordinary meaning. See ...
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