Swindal v. Prudential Property and Cas. Ins. Co.

• Decision Date: 10 April 1992
• Docket Number: No. 91-01219,91-01219
• Citation: 599 So.2d 1314
• Parties: 17 Fla. L. Weekly D931 Larry S. SWINDAL and Nicholas Castellano, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 1314

599 So.2d 1314

17 Fla. L. Weekly D931

Larry S. SWINDAL and Nicholas Castellano, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.

No. 91-01219.

District Court of Appeal of Florida Second District.

April 10, 1992.

Rehearing Denied July 2, 1992.

W.C. Airth, Jr. of Williams & Airth, P.A., Orlando, for appellant Larry S. Swindal.

Raymond T. Elligett, Jr. of Schropp, Buell & Elligett, P.A., Tampa, for appellee.

ALTENBERND, Judge.

Larry S. Swindal and Nicholas Castellano appeal a final summary judgment in favor of Prudential Property and Casualty Insurance Company in Prudential's action for declaratory judgment. ¹ Prudential issued Mr. Castellano's homeowners insurance policy. Mr. Castellano shot Mr. Swindal during an argument. The summary judgment determined that Mr. Swindal's injuries were not covered by Prudential because the homeowners policy excluded coverage for bodily injuries expected or intended by the insured. After considerable collective difficulty in discerning the correct outcome, we reverse because there is a disputed question of fact whether Mr. Castellano fired the gun intentionally or by accident. Thus, we conclude there is a disputed issue of fact whether Mr. Castellano expected or intended to cause bodily injury to Mr. Swindal during this argument. As we stated during the last visit of this case to this court, the fact finder must determine whether "the injury was caused by a negligent or an intentional act." Prudential Property & Casualty Ins. Co. v Castellano, 571 So.2d 598, 599 (Fla. 2d DCA 1990). See Perez v. Otero, 348 So.2d 564 (Fla. 3d DCA 1977). Because we are not certain that our interpretation of Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989), and State Farm Fire & Casualty Co. v. Marshall, 554 So.2d 504 (Fla.1989), is correct and this opinion could impact on standard language in virtually every homeowners insurance policy in Florida, we certify a question to the supreme court.

In early 1983, these two men engaged in an ongoing feud, apparently because Mr. Castellano's wife had been married to Mr. Swindal. In July 1983, Mr. Swindal allegedly threatened Mr. Castellano with a shotgun and held him at gunpoint for 45 minutes. In an effort to resolve their differences, the two participated in citizen's dispute settlement mediation on August 15, 1983. ² After the meeting, Mr. Swindal drove through the Castellanos' driveway at high speed. Mr. Castellano thought he saw a gun in Mr. Swindal's hand. Actually, it was a hammer.

Mr. Castellano obtained his handgun from his closet. He left his home, got in his car, and proceeded to chase Mr. Swindal. He admits that he intended to frighten Mr. Swindal. Mr. Castellano then exited his car and approached Mr. Swindal's car with the loaded gun, safety off, and finger on the trigger. Mr. Castellano reached inside Mr. Swindal's car to grab what he thought was a gun. Mr. Swindal grabbed for Mr. Castellano's gun, which fired. Mr. Castellano admits that his finger was on the trigger, but denies that he fired the gun on purpose. He maintains that the gun accidentally discharged during the brief struggle. ³ Mr. Swindal sustained serious injuries.

In addition to this lawsuit, the incident resulted in two other legal proceedings. The record in this appeal contains limited information concerning the other two cases. First, the state charged Mr. Castellano with a criminal offense arising out of the incident. He was tried by a jury and found not guilty. Second, Mr. Swindal filed a civil action against Mr. Castellano. We have no information concerning the allegations in that complaint. Thus, we do not know whether the complaint alleged an intentional tort or an act of negligence or both. Apparently, the civil case was settled, but the record does not disclose the terms of the settlement.

The homeowners insurance policy involved in this case is entitled "The Prudential Homeowners Three" and appears comparable to the standard form supplied by the Insurance Services Office as HO-3. Section II, Coverage E, of the policy provides liability coverage under a comprehensive insuring agreement. ⁴ The coverage is limited by an exclusion which provides that Coverage E does "not apply to bodily injury or property damage: a. which is expected or intended by the insured."

The trial court decided that Mr. Castellano's admitted conduct, at a minimum, constituted an intentional assault. Thus, it concluded that the insured intended to frighten his victim and that fright was a legal harm. As a matter of law and undisputed fact, it held that Mr. Castellano intended some harm to Mr. Swindal. That the nature and extent of the actual harm was far greater than that allegedly intended by the insured was not relevant to the trial court. The trial court was "troubled" by the fact that any other ruling might permit coverage for an illegal act or for the consequences of intentional, aggressive conduct.

We share the trial court's concern that insurance coverage should not, as a matter of general public policy, protect an insured from the "known and necessary consequences" of his own criminal conduct. Everglades Marina, Inc. v. American Eastern Dev. Corp., 374 So.2d 517 (Fla.1979). On the other hand, Mr. Castellano was found not guilty in the criminal proceeding. See generally Annotation, Criminal Conviction as Rendering Conduct for which Insured Convicted within Provision of Liability Insurance Policy Expressly Excluding Coverage for Damage or Injury Intended or Expected by Insured, 35 A.L.R. 4th 1063 (1985). The insurance policy does not have an exclusion for all damages that directly or indirectly arise from intentional, aggressive conduct. It only excludes coverage for "bodily injury expected or intended by the insured." If Mr. Swindal's injuries were caused by a negligent discharge of the firearm, the public policy that denies insurance coverage for the known and necessary consequences of criminal acts is not invoked. Instead, the invoked public policies are those that encourage compensation for victims of negligence and promote the cost-spreading of identified risks among a relevant segment of the population. ⁵

The trial court concluded that the supreme court in Landis and Marshall expanded the intentional injury exclusion and empowered the trial judge to exclude coverage for damages that may "inevitably flow" from an intentional act, even though the injuries are proximately caused by a separate negligent act. In Landis, the supreme court referred to harm that "inevitably flows" from an intentional act and stated that "specific intent to commit harm is not required by the intentional acts exclusion. Rather, all intentional acts are properly excluded by the express language of the homeowners policy." 546 So.2d at 1053. Thus, it is not unreasonable to conclude that Landis effectively changed the intentional injury exclusion into a broader intentional acts exclusion. We are uncertain whether this was the supreme court's intent. This panel has been unable to agree whether the "inevitably flowed" test of foreseeability of injuries, if that is the test of Landis, is more or less restrictive than established concepts of substantial certainty and proximate causation. ⁶

As a general principle, where a reasonable person would believe that a particular result is substantially certain to follow, the person will be treated as if the result was intended. See W.L. Prosser, Handbook of the Law of Torts 32 (4th ed. 1971) The evidence in this case could readily support a finding that the shooting was substantially certain, not merely foreseeable. We conclude, however, that Landis does not authorize a trial judge to make this finding prior to trial if a question of fact exists. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979).

We conclude that this standard insurance exclusion, which must be construed in favor of coverage, does not exclude coverage for bodily injuries unless, at a minimum, the injuries are the direct and proximate result of an intentional act. ⁷ If the damages are caused by a separate act of negligence, even if it occurs in the same general time frame as some intentional act, the damages are not excluded if they are the result of an unexpected or unintended negligent act and are not the result of an intentional act.

This case demonstrates that the occurrence of an intentional act does not necessarily mean that the insurance coverage excludes all injuries arising during the period when that intentional act takes place. In this case, the only undisputed intentional act is assault or assault with a deadly weapon. Fright may well be an excluded injury that is proximately related to the act of assault. Quite arguably, a resulting heart attack would also be related. But the injury in this case is a massive physical injury to the victim's head. This injury is not the result of fright. It was caused either by an intentional battery with a deadly weapon or by a negligent discharge of the weapon. Thus, there is an unresolved dispute of fact as to whether the damaging act is intentional or negligent.

We distinguish cases in which the insured intentionally fired a gun and thereafter maintained that the bullet wounds were not injuries connected to the shooting. Compare Draffen v. Allstate Ins. Co., 407 So.2d 1063 (Fla. 2d DCA 1981) (excluding coverage for injuries incurred when insured "met his mark" four out of six times, firing gun at his pursuers) with Spengler v. State Farm Fire & Casualty Co., 568 So.2d 1293 ...