Sullivan v. Great Plains Ins. Co.

• Decision Date: 19 March 1982
• Docket Number: No. 43890,43890
• Parties: Thomas J. SULLIVAN, Appellee, v. GREAT PLAINS INSURANCE COMPANY, an insurance corporation, Appellant.
• Court: Nebraska Supreme Court

Page 375

317 N.W.2d 375

210 Neb. 846

Thomas J. SULLIVAN, Appellee, v. GREAT PLAINS INSURANCE COMPANY, an insurance corporation, Appellant.

No. 43890.

Supreme Court of Nebraska.

March 19, 1982.

Syllabus by the Court

1. Insurance: Motor Vehicles. Absent specific evidence to support the claim that the driver of a motor vehicle specifically intended to cause an injury similar to the type which resulted, damage to property owned by another and caused by reason of the negligent, or careless, or even willful reckless operation of an automobile does not amount to bodily injury or property damage caused intentionally by or at the direction of the insured. Therefore, such damage to property is not within the exclusion of a liability policy which specifically excludes coverage for damages to persons or property caused intentionally by or at the direction of the insured.

2. Insurance: Motor Vehicles: Words and Phrases. The word "accident," as used in an automobile liability policy, is a more comprehensive term than "negligence," and, in its common signification, means an unexpected happening without intention or design. A policy covering liability arising from an accident, or from injuries accidentally sustained, does not cover an injury resulting from the willful act of insured, but it does cover claims based on negligence, recklessness, or wanton misconduct, where no intent or purpose to injure is shown.

Jeffrey A. Silver, Omaha, for appellant.

Kelley, Wallace, Scritsmier, Moore, Romatzke & Byrne, P. C., North Platte, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, Great Plains Insurance Company (Great Plains), appeals from a declaratory judgment entered by the District Court for Lincoln County, Nebraska, finding Great Plains liable to Thomas J Sullivan (Sullivan) for damages to an automobile owned by Sullivan and a power pole owned by Nebraska Public Power District (NPPD) and damaged by Sullivan, under the terms of a certain automobile policy issued by Great Plains to Sullivan. We affirm.

At the time of the accident in question, Sullivan was a 20-year-old resident of North Platte, Nebraska, and employed as an electrician's helper at the Gerald Gentleman Power Plant south of Sutherland, Nebraska. He owned a 1974 Pontiac automobile which he had insured with Great Plains under its standard automobile policy which included, among its coverages, liability coverage and collision coverage. Specifically, the policy provided with regard to liability coverage as follows: "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, arising out of the ownership, maintenance or use of an owned automobile ...." The policy further contained several exclusions, one of which read as follows: "This policy does not apply: ... (e) to bodily injury or property damage caused intentionally by or at the direction of the insured ...."

The collision coverage provided as follows: "The company will pay for loss caused by collision to the owned automobile but only for the amount of each such loss in excess of the deductible amount stated in the declaration as applicable hereto." The policy defined "collision" to mean "collision of an automobile covered by this policy with another object or with a vehicle to which it is attached or upset of such automobile." The policy defined "loss" to mean "direct and accidental loss of or damage to (a) the automobile, including its equipment."

The accident in question for which damages were sought by Sullivan from Great Plains occurred along Highway 25 south of Sutherland, Nebraska, on February 4, 1977. Sullivan's vehicle was observed northbound on Highway 25 by a member of the Nebraska State Patrol who was on aerial patrol at the time. Sullivan was clocked from the air at speeds of 105 miles per hour.

Two other state patrolmen were occupying two patrol vehicles parked along Highway 25 and were conducting a traffic check. As Sullivan's vehicle approached the location of the state patrol traffic check, his vehicle slowed and proceeded through the traffic area check by driving in the southbound lane. From that location the Sullivan vehicle proceeded in an easterly direction on Highway 25 to a point where Highway 25 makes an abrupt turn at the crest of a hill from straight east to straight north. At that point Sullivan's vehicle left the road, went through a ditch, up an embankment, struck the NPPD power pole, and stopped in a pasture adjacent to Highway 25.

One of the two patrolmen conducting the traffic check drove immediately to the scene of the accident, arriving approximately 60 seconds after the accident had occurred, and found Sullivan's vehicle coming back onto the highway where it accelerated, spun around, and ended up in the ditch along Highway 25. Sullivan then got out of the vehicle and started running to the north along Highway 25 where he was contacted by the patrolman and placed into custody. At the time of his arrest he was hysterical and crying. Sullivan was thereafter charged with speeding and willful reckless driving. He pled not guilty to both charges and, apparently at the direction of the county court, was admitted to Mount Airy Hospital in Denver, Colorado.

The evidence discloses that Sullivan apparently had been suffering some mental difficulties for some time and had earlier been diagnosed as a paranoid schizophrenic with symptoms including paranoia, feelings that people were talking about him, and suspicious, defensive, and guarded behavior. The evidence further discloses that apparently all of this information was made known to Great Plains before the policy was issued, by a letter from the treating physician to Great Plains.

While still in treatment, Sullivan pled guilty by waiver to the charge of reckless driving and the speeding charge was dismissed.

Great Plains denied coverage for the damage to both the NPPD power pole and the Sullivan automobile on the basis that the damage to the power pole was the result of an intentional act by Sullivan, and therefore excluded from the liability coverage within the meaning of the policy, and the damage to the automobile was not a "loss" because it was not "accidental." Sullivan then filed the instant declaratory judgment action seeking a declaration that the various losses were covered by the Great Plains policy.

Turning first to the matter of the property damage and the liability coverage, we believe that Great Plains is in error in contending that the damage to the pole was not covered because it was an intentional act by Sullivan and therefore excluded from the coverage of the policy. While we have never directly passed upon this question of intention with regard to property damage under a liability coverage provision of an automobile policy, we have had occasion to discuss the matter of an "intentional act" in connection with similar language contained in homeowners' policies. Specifically, in State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 207 N.W.2d 364 (1973), we held: "An injury is either expected or intended within the meaning of an exclusion in a policy of liability insurance reading as follows: 'This policy does not apply to bodily injury or property damage which is either expected or intended from the standpoint of the insured,' if the insured acted with specific intent to cause harm to a third party." (Syllabus of the court.)

To the same effect see Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981). There is simply no evidence in the record from which it may be concluded that Sullivan was driving his automobile in such a way so as to intentionally collide with the NPPD power pole and cause damage to the pole. Whatever the evidence may disclose, it is clear that Sullivan was intending to rapidly leave the area where the pole was located and in fact negligently, but unintentionally, struck the pole. Even after Sullivan struck the pole, he sought to return to the road for the obvious purpose of continuing his efforts to flee the area. There is simply no evidence that he "intended" to leave the highway and strike the pole. If anything, the opposite is established by the evidence.

If we were to accept Great Plains' argument, we would be compelled to hold that in every accident where there is any evidence of a violation of law or any evidence that the automobile was then being knowingly and intentionally operated, though perhaps in a negligent or careless or...