Steinmetz v. National American Ins. Co.

• Decision Date: 21 December 1978
• Docket Number: No. 1,CA-CIV,1
• Citation: 121 Ariz. 268,589 P.2d 911
• Parties: Howard STEINMETZ, Appellant, v. NATIONAL AMERICAN INSURANCE COMPANY, Appellee. 3764.
• Court: Arizona Court of Appeals

Page 911

589 P.2d 911

121 Ariz. 268

Howard STEINMETZ, Appellant, v. NATIONAL AMERICAN INSURANCE COMPANY, Appellee.

No. 1 CA-CIV 3764.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 21, 1978.

Rehearing Denied Jan. 16, 1979.

Review Denied Jan. 30, 1979.

Hofmann, Salcito & Stevens, P. A. by Leroy W. Hofmann, Phoenix, for appellant

Lewis & Roca by Thomas C. Horne, John P. Frank, Anthony R. Lucia, Phoenix, for appellee.

OPINION

JACOBSON, Presiding Judge.

The sole issue raised by this appeal is whether the trial court properly determined that the only jury issue in this declaratory judgment action was the intentional nature of the act of the insured as compared to the intention of the insured to injure.

This litigation was instituted by appellee, National American Insurance Company (National American), against its insured William Currie and appellant Howard Steinmetz to determine its liability coverage for an alleged tort committed by Currie against Steinmetz. Based upon a jury verdict, the trial court entered judgment in favor of National American, determining that its homeowners policy did not afford liability coverage for the incident involved. Steinmetz has appealed.

The facts are relatively simple. On the evening of December 9, 1973, at the Disabled American Veterans' Hall, Currie punched Steinmetz in the face, causing serious injuries. Currie alleged the provocation for the blow was that Steinmetz was calling Currie a liar and a thief. Steinmetz subsequently sued Currie. At the time of the incident, Currie held a homeowners policy issued by National American. This policy provided that it would not apply:

"to bodily injury or property damage which is either expected or intended from the standpoint of the Insured."

At time of trial, the trial court excluded any evidence as to Currie's subjective intent to do injury to Steinmetz and instructed the jury as follows:

"Ladies and gentlemen of the jury, as stated before, the sole issue for you to decide is whether the Defendant, Mr. Currie, intentionally struck Mr. Steinmetz in the face.

"The question of interpreting the language of the insurance policy is a matter of law, for me to rule upon, and you are not to concern yourself with the language of the policy. I have instructed you to determine the fact of whether Mr. Currie intentionally struck Mr. Steinmetz.

In determining the issue of Mr. Currie's intention you are instructed that an intentional act is a voluntary act directed by a person who understands what he is doing, and comprehends the nature and consequences of his act.

"You are not to consider whether Mr. Currie intended to injure Mr. Steinmetz, but only whether he intended to strike him."

The basic theory in Steinmetz' case was embodied in the following requested instruction, which was refused by the trial court:

"I instruct you that unless you find that the defendant William Henry Currie acted on September 2, 1973 with the specific intention of causing the bodily injuries which were sustained by the Defendant Howard Steinmetz, then the injury to Howard Steinmetz was not 'expected or intended by Currie' as defined by the National American policy, and your verdict must be in favor of the Defendants and against the Plaintiff."

The question thus resolves itself into a determination of whether the exclusionary language of the policy applies to intended acts (i. e., the punch in the nose), or only to intended injuries (i. e., the serious consequences of the punch).

Two Arizona Court of Appeals decisions have touched on this issue, both from Division 2 of this court, Clark v. Allstate Insurance Co., 22 Ariz.App. 601, 529 P.2d 1195 (1975) and Vanguard Insurance Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). ¹

In Vanguard, a would-be robber fired a shot at a liquor store clerk, striking him in the eye. In a subsequent suit by the store clerk against the robber's insurer, the insurance company defended under an exclusion identical to the one presented here. The trial court found that the robber had no intention to harm the store clerk but merely shot to frighten him. Based upon this factual finding, the court held:

"If he did not intend the resulting harm, it certainly was not expected 'from the standpoint of the insured.' Since the exclusionary clause did not clearly express an intention to exclude liability for unintentional or unexpected injury resulting from a deliberate act of the insured, we decline to hold that the mere doing of an intentional act by the insured relieved the insurer of liability." 18 Ariz.App. at 489, 503 P.2d at 965.

Approximately two years later, the same court in Clark construed an insurance policy which excluded from coverage "bodily injury or injury to or destruction of property caused feloniously or intentionally by or at the direction of an Insured." This...